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How Willful Misconduct Affects VA Disability Claims

Willful Misconduct

A veteran cannot receive VA compensation for a disability that is the result of willful misconduct.  38 U.S.C. § 1110; 38 C.F.R. §§ 3.1(m), (n), 3.301(a)-(b), (c)(2), (d).  Willful misconduct is broadly defined as “an act involving conscious wrongdoing or known prohibited action [;] … [i]t involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences.”  38 C.F.R. § 3.1(n); see Yeoman v. West, 140 F.3d 1443, 1448 (Fed. Cir. 1998) (holding that VA’s willful misconduct regulations were not unconstitutionally void for vagueness); Daniels v. Brown, 9 Vet. App. 348, 351 (1996) (willful misconduct negates statutory presumption that disease or injury was incurred in line of duty (citing 38 U.S.C. § 105(a))); VA Gen. Coun. Prec. 2-93 (January 13, 1993) (discussing origins and subsequent history of willful misconduct prohibition in context of tobacco use) [hereinafter 1993 VAGC Opinion ].

However, a “[m]ere technical violation of police regulations or ordinances will not per se constitute willful misconduct,” and the latter “will not be determinative unless it is the proximate cause of injury, disease or death.”  38 C.F.R. § 3.1(n)(2)-(3).  Moreover, alcohol abuse, a specific type of willful misconduct, is defined as “the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user.”  38 C.F.R. § 3.301(d); see Allen v. Principi, 237 F.3d 1368, 1376-78 (Fed. Cir. 2001); see also 38 C.F.R. § 3.301(c)(2) (“The simple drinking of alcoholic beverage is not of itself willful misconduct [; however] … [i]f, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct.”). The Board may consider state law in interpreting VA’s definition of willful misconduct. Yeoman, 140 F.3d at 1446 (holding that “[t]he Board’s consideration of … state law was a proper part of its interpretation of willful misconduct under the standards mandated by the very regulations defining that term and its relation to drunkenness.”).  The Board’s determination that a disability is the result of willful misconduct is a finding of fact.  Thomas v. Nicholson, 423 F.3d 1279, 1283 (Fed. Cir. 2005).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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How Character of Discharge Affects VA Disability Claims

VA benefits are restricted to veterans discharged or released “under conditions other than dishonorable.” The military services each have several categories of discharge, one of which is “dishonorable.” These categories are not what VA bases a character of service determination: VA has its own unique system.

VA generally accepts “honorable” discharges and discharges “under honorable conditions” as qualifying discharges without further investigation. VA has also determined that a “dishonorable” discharge is not an “other than dishonorable” discharge and so will disqualify a claimant from any VA benefits unless a narrow insanity exception applies. If an individual received a discharge under “other than honorable conditions” or a “bad conduct” discharge, VA will make a special “character of service determination” before further processing a claim. In making this determination VA is supposed to consider the veteran’s entire period of service not just the specific type of discharge. If VA determines that the individual was separated from service under a disqualifying condition, the veteran will be ineligible for compensation benefits, although he or she may still qualify for certain healthcare benefits. A character of service determination can be appealed if unfavorable.

Veterans with multiple periods of active duty may have been discharged with a different character of service for different periods of service. In such a case, the discharge for the period of service to which a medical condition is connected controls eligibility. For example, a veteran with an honorable discharge followed by a dishonorable discharge for two separate periods of service would be eligible for benefits for a condition connected to the first period of service, but not the second.

A veteran with a discharge that does not qualify him or her for compensation benefits may try to “upgrade” the character of the discharge. VA does not change the character of discharge assigned by the service branch. Each service branch has a “Discharge Review Board” (“DRB”) and a “Board for Correction of Military Records” (“BCMR”). Both of these Boards have their own procedures for reviewing cases of veterans looking to change an unfavorable character of discharge and it is beyond the scope of this KNOWLEDGE BOOK to describe the processes. Veterans who believe that their character of discharge was improper or unfair are encouraged to contact an advocate or attorney experienced in the upgrade process.

Regardless of the character of discharge, individuals are not eligible for VA benefits for conditions that result from “willful misconduct” or substance abuse. Willful misconduct includes intentional acts such as self-inflicted injuries to avoid duty or deployment. Health conditions arising from the abuse of illegal drugs or alcohol abuse are also excluded. As questions of willful misconduct are very fact specific, claimants potentially affected by this requirement are encouraged to discuss the matter with an experienced advocate. There is one very important exception to the substance abuse exclusion. An individual is eligible for VA benefits for conditions related to drug or alcohol abuse arising from another allowable service-connected condition. For example, an individual suffering from post-traumatic stress disorder (“PTSD”) as a result of an incident during service can receive benefits for the adverse health effects of alcoholism if the alcoholism is determined to be a result of the PTSD. Alcoholism unrelated to another service-connected condition would not be eligible for compensation.

VA “compensation . . . is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable.”  38 C.F.R. § 3.12(a).  “A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions[:] . . . An offense involving moral turpitude.  This includes, generally, conviction of a felony.”  38 C.F.R. § 3.12(d)(3).  38 U.S.C. section 101(2) defines a veteran as a person who “was discharged … under conditions other than dishonorable.”

While no statute or regulation generally states that dishonorable conditions are equivalent to conditions other than honorable, section 3.12(d)(4) states as follows:

(d)   A discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

. . .

(4)   Willful and persistent misconduct.  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

The law, however, contains an exception that “if it is established to the satisfaction of the Secretary that, at the time of the commission of an offense leading to a person’s court-martial, discharge, or resignation, that person was insane, such person shall not be precluded from benefits under laws administered by the Secretary.”  38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b).

VA regulations define an insane person as one who, while not mentally defective or constitutionally psychopathic, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.”  38 C.F.R. § 3.354(a); see Zang v. Brown, 8 Vet. App. 246, 253 (1995) (stating that phrase “due to disease” applies to all three circumstances provided in section 3.354(a)); see also VA Gen. Coun. Prec. 20-97 (May 22, 1997) (clarifying VA’s definition of insanity).  Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis.  Beck v. West, 13 Vet. App. 535, 539 (2000); Zang, 8 Vet. App. at 254-55; 38 C.F.R. § 3.354(a).

When determining whether a veteran was insane at the time of an offense, the rating agency “will base its decision on all the evidence procurable relating to the period involved.”  38 C.F.R. § 3.354(b).  The Court reviews the Board’s factual decision in this regard under the “clearly erroneous” standard of review.  38 U.S.C. § 7261(a)(4); Beck, 13 Vet. App. at 539; Gilbert v. Derwinski, 1 Vet. App. 49, 52-53 (1990).

Acceptance of an undesirable discharge to escape trial by general court-martial is considered a discharge or release “under dishonorable conditions.”  38 C.F.R. § 3.12(d)(1).  Such a discharge generally “is a bar to the payment of benefits.”  38 C.F.R. § 3.12(b).  Further, an honorable or general discharge awarded under the Department of Defense’s special discharge review program (“SDRP”) generally “does not remove any bar to benefits.”  38 C.F.R. § 3.12(h).  When a veteran has multiple periods of service, it is the character of service for the period in which the medical condition arises that determines eligibility.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Veteran Status and Eligibility for VA Benefits

Establishing Eligibility

The law currently sets three threshold conditions to be eligible for VA benefits:

  1.  veteran status,
  2.  character of discharge, and
  3.  a medical condition that is not the result of willful misconduct or substance abuse.

Veteran Status

Are you a Veteran?

Many eligible individuals are unaware that they are “veterans” for VA benefits purposes. Contrary to some beliefs, it is not necessary that a service member have been in combat or have retired from the military to be eligible for VA benefits. Although there are usually some minimal period of service requirements, the vast majority of individuals with active duty service (including certain training and certain “call ups” of Reserve or Guard) are “veterans” for VA purposes.

Veteran status is defined as:

  1. a claimant must be “a person who served in the active military services”, and
  2. who was discharged or released “under conditions other than dishonorable.

Although the term “veteran” appears straightforward, there are specific legal requirements for someone to be considered a “veteran” for purposes of eligibility for VA benefits.  “In order to qualify for VA benefits, a claimant . . . [must be] a ‘veteran.'”  Cropper v. Brown, 6 Vet. App. 450, 452 (1994); D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000).  A veteran is defined as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”  38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  Service in the active military, naval, or air service includes service in the United States Armed Forces or, for certain purposes, service in the organized military forces or organized guerilla forces of the Government of the Commonwealth of the Philippines in the service of the United States Armed Forces.  38 U.S.C. §§ 101(10), 101(21)(C), 101(24), 107; 38 C.F.R. § 3.40(b).

To establish entitlement to benefits, VA may accept documents submitted by a claimant as evidence of qualifying service, without verification from the appropriate service department, if the documents were issued by a U.S. service department, contain the needed information, and in VA’s opinion are genuine and contain accurate information. 38 C.F.R. § 3.203(a); Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997).  If, however, the evidence of service submitted does not meet the requirements of section 3.203(a), VA must request verification of service from the appropriate U.S. service department.  38 C.F.R. § 3.203(c); Soria, 118 F.3d at 749; Capellan v. Peake, 539 F.3d 1373, 1380 (Fed. Cir. 2008) (noting that section 3.203(c) requires verification from the service department whenever a claimant lacks the kind of official evidence specified in section 3.203(a)).

Under section 3.203, service department findings are binding on VA for purposes of establishing qualifying service.  Duro v. Derwinski, 2 Vet. App. 530, 532 (1992) (“[t]herefore, VA is prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces.”).  “Thus, if the United States service department refuses to verify the applicant’s claimed service, the applicant’s only recourse lies within the relevant service department, not the VA.” Soria, 118 F.3d at 749.  The Board’s determination of “veteran status” is a question of fact that the Court reviews under the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4).  Struck v. Brown, 9 Vet. App. 145, 152-53 (1996).

Pursuant to the American Recovery and Reinvestment Act of 2009, Congress established the Filipino Veterans Equity Compensation Fund (“FVECF”) and authorized VA to make one-time payments from the fund to eligible persons who submitted a claim within the one-year period beginning on the date of enactment.  Pub. L. No. 111- 5, § 1002, 123 Stat. 115.  The act defined the term “eligible person” as any person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, including the recognized guerilla forces, or in the Philippine Scouts.  Id.  But, “Philippine veterans are not eligible for veterans’ benefits unless a United States service department documents or certifies their service.”  Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); 38 C.F.R. § 3.9.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veterans Must Know About Finality and Revision of Decisions of VA Disability Claims

Finality and Revision of Decisions

Where a claimant does not file a Notice of Disagreement, the benefit decision becomes final.  38 U.S.C. § 7105(c).  When a prior adjudication is final, a claimant may only seek a revision of that decision on the basis of clear and unmistakable error.  38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a) (2009); see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002).  In order to properly seek revision of a prior final decision, the appellant must allege either (1) that the correct facts in the record were not before the adjudicator or (2) that the statutory or regulatory provisions in existence at the time were incorrectly applied.  See Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see 38 U.S.C. § 7111 (authorizing revision of Board decisions); Cook, 318 F.3d at 1342 n.2 (noting that, before the enactment of section 7111, final Board decisions were not subject to motions for revision based on CUE).

The only exceptions to the rule of finality are the statutory provisions concerning CUE and the section 3.156(c) regulation described above.  See 38 U.S.C. § 5109A (revision of decisions by the Secretary, including rating decisions, on the grounds of CUE); 38 U.S.C. § 7111 (revision of Board decisions on the grounds of CUE).  Both provisions state that a revision of a prior decision on the basis of CUE has the same effect as if the corrected decision had been made on the date of the prior decision.  The Court has defined CUE as follows:

Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied …. [CUE is] the sort of error which, had it not been made, would have manifestly changed the outcome … [an error that is] undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.

Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999) (expressly adopting “manifestly changed the outcome” language in Russell).  In order to constitute CUE, the alleged error must be “based upon the evidence of record at the time of the original decision.”  Cook v. Principi, 318 F.3d 1334, 1344 (Fed. Cir. 2002) (en banc).  A claimant alleging CUE must do so “with some degree of specificity.”  Pierce v. Principi, 240 F.3d 1348, 1355 (Fed. Cir. 2001).

A challenge to a regional office decision assigning an effective date with which a claimant disagrees may be made through a direct appeal of that decision, beginning with the timely filing of a Notice of Disagreement.  See 38 U.S.C. § 7105(a).  Where a claimant does not file a Notice of Disagreement, the regional office’s decision becomes final.  38 U.S.C. § 7105(c).  Once a regional office decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways:  by a request for revision of the decision based on clear and unmistakable error or by a request to reopen based upon new and material evidence.  Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) (“A decision by the Secretary … is subject to revision on the grounds of clear and unmistakable error.  If evidence establishes the error, the prior decision shall be reversed or revised.”); 38 U.S.C. § 5108 (“If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of that claim.”).

Only a request for revision based on CUE or a newly discovered service record can result in the assignment of an earlier effective date for the award of disability benefits because the effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received.  38 U.S.C. § 5110(a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”).  Further, the Court has made it clear that VA cannot adjudicate, a freestanding claim for an earlier effective date because to do so would be to compromise the rule of finality.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Disabled Veteran Must Know About Rating Reductions

There are circumstances where the VA can reduce your disability benefits. When the VA proposes to reduce a Veteran’s disability compensation, it is of the upmost importance that the Veteran act quickly by seeking the services of either an aggressive Veterans Service Organization or an Attorney accredited by the VA.   The law is very clear that to assist a Veteran in the preparation, presentation, and prosecution of a claim for VA benefits, the individual must be accredited by the VA as an agent, attorney, or representative of a Veterans Service Organization, VSO, 38 U.S.C. §§ 5901-5902, 5904; 38 C.F.R. § 14.629.   There is a one time only exception for a non-accredited individual to assist a Veteran in processing a claim under 38 C.F.R. § 14.630.

To verify the VA accreditation of an Attorney, Claims Agent, or VSO Representative, go to website:  http://www.va.gov/ogc/apps/accreditation/

Some of the most common reasons for the reduction of you VA disabiltiy Compensation are:

  I.   Failure to Report for the “Pre-Reduction” Examination.

 II.  Unprotected Benefit Rating and Your Condition Improves

An Unprotected Benefit Rating is when your disability rating is above the minimum for the disability but below the 100% rating and you have been receiving the rating for less than five (5) years.

When reducing a total disability rating based on the severity of an appellant’s condition, the burden falls on VA to show “material improvement” in the veteran’s condition from the time of the previous rating examination that assigned the appellant’s 100% disability rating.  Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Hohol v. Derwinski, 2 Vet. App. 169, 172 (1992); see also Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992); 38 C.F.R. § 3 .343(a).  The reduction must be based on “[e]xamination reports showing material improvement[, which] must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life.”  38 C.F.R. § 3.343(a).

Pursuant to 38 C.F.R. section 3.105(e), when the RO determines that a rating reduction is warranted, it is required to issue a proposed rating reduction, setting forth the reasons for the proposed reduction, and to allow the veteran a period of at least 60 days to submit additional evidence to show that the rating should not be reduced.  Furthermore, when, after such period, the RO issues a decision reducing the rating, that reduction does not become effective until the “[l]ast day of [the] month following 60 days after notice to [the] payee” of the reduction decision.  38 C.F.R. § 3.400(r); see 38 C.F.R. § 3.105(e).  The effect of sections 3.105(e) and 3.400(r) combined is that a rating reduction cannot be made effective for a minimum of 120 days after it is proposed in writing to the veteran.  Brown (Kevin) v. Brown, 5 Vet. App. 413, 418 (1993).

An important right that can easily be overlooked in the notice of a proposed reduction (because VA buries it in the notice), is the right for a “pre-determination hearing” under 38 C.F.R. section 3.105(i).  A claimant has a right to this hearing if he or she requests it within 30 days of the notice of proposed reduction.  Requesting a pre-determination is important because VA cannot implement the proposed reduction until after the hearing and it reaches a decision based on the evidence and the hearing.  In practice, this means that a claimant can delay a reduction and continue to receive full payments for some months in order to obtain evidence or assistance.

There is a risk, however, in continuing to receive full benefit payments under these circumstances.  Should the VA still conclude that a reduction is appropriate, it will create a debt against the veterans for the “overpayments” during the time waiting for the pre-determination hearing and decision.  This means that a veteran can end up with lower benefits payments andowe the VA a large sum.  Veteran’s requesting a pre-determination hearing are, therefore, strongly urged to be careful with their finances until the reduction issue is finally decided

In every rating reduction case, the Board must “ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”); 38 C.F.R. §§ 4.1, 4.2, 4.13.  Where the Court concludes that the Board has reduced a veteran’s rating without observing applicable laws and regulation, such a rating is void ab initio and the Court will set it aside as “not in accordance with the law.”  38 U.S.C. § 7261(a)(3)(A); Kitchens v. Brown, 7 Vet. App. 320, 325 (1995); see Brown, 5 Vet. App. at 422; Horowitz v. Brown, 5 Vet. App. 217 (1993).

When determining whether VA was justified in reducing a veteran’s disability rating that has continued at the same level for five or more years, “the Board is required to establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted.”  Sorakubo v. Principi, 16 Vet. App. 120, 123–24 (2002) (citing Brown v. Brown, 5 Vet. App. 413, 421 (1993)); see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995) (holding that when the regional office reduces a veteran’s rating without observing the applicable VA regulations, the reduction is void).  The regulatory requirements for reducing a disability rating that has continued at the same level for five years or more are more stringent than the general requirements for increasing or decreasing a disability rating that has been in effect for a shorter amount of time.  See 38 C.F.R. §§ 3.344(a)-(c); Collier v. Derwinski, 2 Vet. App. 247, 249–50 (1992).  “Such disabilities are considered ‘stabilized,’ and the regulation thus requires a high degree of accuracy in decisions reducing those ratings.”  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (citing 38 C.F.R. § 3.344(c)).  In addition, certain regulations “are applicable to all rating reductions regardless of whether the rating has been in effect for five years or more as required by section 3.344(c),” including 38 C.F.R. sections 4.1, 4.2, 4.10, and 4.13.  Brown, 5 Vet. App. at 420.

Pursuant to sections 4.1, 4.2, and 4.13, VA is required in any rating-reduction case “to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.”  Brown, 5 Vet. App. at 421; see also Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (such requirements “operate to protect claimants against adverse decisions based on a single, incomplete[,] or inaccurate report and to enable VA to make a more precise evaluation of the level of disability and of any changes in the condition”).  In addition, “in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work.”  Brown, 5 Vet. App. at 421; see also 38 C.F.R. §§ 4.2, 4.10.

The Court has specifically required VA to follow its own regulations when it attempts to reduce a veteran’s rating.  See Fugere v. Derwinski, 1 Vet. App. 103 (1990) (holding that VA was required to give notice and opportunity to be heard prior to deleting provision of VA Adjudication Procedure Manual M21–1MR that had provided regulatory-like procedural protections prior to reducing veteran’s rating, and noting: “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (citations omitted)), aff’d, 972 F.2d 331 (Fed. Cir. 1992).  The Court determines de novo whether VA has followed and applied its own regulations in reducing or terminating VA benefits.  See Wilson (Merritte) (making determination de novo without so stating) and Fugere (same), both supra; Brown (Kevin) v. Brown, 5 Vet. App. 413, 416–21 (1993) (same); cf. Buzinski, supra (reviewing de novo compliance with VA regulation regarding mortgage foreclosure).

If VA affords to a veteran the applicable procedural protections and nonetheless determines that a reduction in rating is warranted, the determination as to the degree of disability under the applicable diagnostic code is a finding of fact subject to the “clearly erroneous” standard of review.  See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Faust v. West, 13 Vet. App. 342, 348 (2000).

In reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of section 3.105(e) apply but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.  If a veteran with a total disability rating for compensation purposes based on individual unemployability begins to engage in a substantially gainful occupation during the period beginning after January 1, 1985, the veteran’s rating may not be reduced solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months.  For purposes of this subparagraph, temporary interruptions in employment which are of short duration shall not be considered breaks in otherwise continuous employment.  38 C.F.R. §§ 3.343(a), (c); Faust v. West, 13 Vet. App. 342, 352 (2000).

There is a clear distinction between a claim challenging a reduction in a schedular rating and one involving a claim for a restoration or an increase in a schedular rating.  See Peyton v. Derwinski, 1 Vet. App. 282 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  “The initial procedural burden regarding proposed rating reductions [pursuant to section 3.343(a) ] … falls squarely on the VA to show material improvement from the previous rating examination that had continued a veteran’s 100% disability rating.”  Ternus v. Brown, 6 Vet. App. 370, 376 (1994).  “[T]he circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary.”  Dofflemyer, 2 Vet. App.at 280.

That the Court has jurisdiction to review the BVA’s failure to decide the improper reduction claim is clear.  See 38 U.S.C. § 511(a) (“The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary to veterans …”); In the Matter of Fee Agreement of Smith, 10 Vet. App. 311 (1997) (BVA failure to adjudicate veteran’s claims properly before it was a final adverse decision with respect to that claim); Suttmann v. Brown, 5 Vet. App. 127, 133 (1993) (Board erred in failing to adjudicate a claim reasonably raised to it); see also Carpenter v. Gober, 11 Vet. App. 140 (1998) (an implied claim which is not reviewed by the BVA is considered a denial).  Thus, while the Court may not review nonfinal BVA decisions to remand, it clearly may—indeed, must—review claims explicitly or implicitly raised by the appellant and not adjudicated by the BVA.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Should Know About Extra-Schedular Rating

VA regulations provide for referring a case for extraschedular consideration when a claimant demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”  38 C.F.R. § 3.321(b)(1).  Consideration of referral for an extraschedular rating must begin with “a comparison between the level of severity and symptomatology of the claimant’s service-connected disability [and] the established criteria found in the rating schedule for that disability.”  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  VA must evaluate whether “the rating schedule is inadequate to evaluate a claimant’s disability picture.”  Id. at 116.  The disability picture includes all of a claimant’s service-connected disabilities.  See 38 C.F.R. § 3.321(b)(1) (goal of extraschedular consideration is to arrive at “an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities”).

The award of an extraschedular disability rating is the result of a three-step inquiry the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Services.  Thun, 22 Vet. App. at 115.  The first step is to compare the level of severity and symptomatology of the appellant’s disability with the established criteria in the rating schedule.  Id.  If these criteria “reasonably describe the claimant’s disability level and symptomatology” then the regular schedular rating system is adequate and extraschedular referral is not warranted.  Id.

If the rating schedule does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, then “the RO or Board must determine whether the claimant’s exceptional disability picture exhibits other related factors,” such as “marked interference with employment” or “frequent periods of hospitalization.”  38 C.F.R. § 3.321(b)(1).  When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant’s disability picture, then the case must be referred to the Undersecretary for Benefits or the director of the Compensation and Pension Service to complete the third step which is to determine whether to assign an extraschedular disability rating in order to “accord justice.”  Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b)(1).

The Board must consider referral for an extraschedular rating when either a claimant or the evidence of record suggests that a schedular rating may be inadequate.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).  “The governing norm in these exceptional cases is:  A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”  38 C.F.R. § 3.321(b).  The effects of medications for service-connected conditions can warrant an extraschedular rating referral. Fisher v. Principi, 4 Vet. App. 57 (1993).  Where the Board did not address whether referral for extraschedular consideration was warranted, the Court’s review is “limited to whether the evidence of record sufficiently raises the possibility that this regulation is applicable, such that the Board was required to discuss whether referral was warranted [under section 3.321(b)(1)].”  Barringer v. Peake, 22 Vet. App. 242, 245 (2009).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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What Disabled Veterans Must Know About Schedular Rating 100%-TDIU or Indiviual Unemployability

Schedular Rating 100%-TDIU or Indiviual Unemployability

In some cases, however, a veteran with less than a 100% scheduler rating is so affected by service-connected conditions that he or she cannot work at gainful employment. The law allows for another type of claim in such a case.

VA benefits are available to compensate a veteran at the 100% level if he or she is not able to work because of service-connected conditions even without a 100% schedular rating. This benefit is called “total disability on the basis of individual unemployability”, (“TDIU”), or sometimes “individual unemployability, ” (“IU”).

The key issue in a TDIU claim is the inability of the veteran to engage in “substantially gainful employment” because of his or her service-connected conditions. “Substantially gainful employment” means to hold a job that pays at least an amount equal to the annual poverty level set by the federal government. In order to qualify for TDIU benefits, a claimant must meet the following requirements:

  1. If the claimant has only one service-connected condition, that condition must be schedular rated at least 60% or more;
  2. If the claimant has two or more service-connected conditions, at least one of those conditions must be rated at 40% or more, and the veteran’s combined disability rating must be 70% or more; and
  3. In either case, the veteran must be unemployable because of his or her service-connected conditions.

To establish “unemployability” or “inability to substantially maintain gainful employment”, the Veteran must provide:

  1. evidence of unemployment due to service-connected conditions, employment history records for example, and
  2. medical evidence that the veteran’s service-connected condition renders him or her totally disabled and unemployable, generally a doctor’s opinion letter.

Having a paying job does not automatically disqualify a claimant from a TDIU award.  If the wages are considered “marginal” (low paying) or “sheltered” (protected from usual requirements) employment are exceptions to the TDIU qualification requirements.  Examples of employment that are allowed under TIDU:

  • A job that pays substantially less than the prevailing poverty level,
  • A job that is protected from requirements that someone else in that position would be expected to satisfy, or
  • A job working for a friend or relative, may not be “substantially gainful employment.”

Although it is always better to submit a specific claim for TDIU.  The VA has a duty to look for potential TDIU claims based on the evidence in the claimant’s VA claims file, known as a “C-file”. The VA is required to review the claims for TIDU, even if not specifically requested by the Veteran, because entitlement to TDIU is part of every claim for disability compensation. Upon reviewing the claim, the VA determines if TDIU is an appropriate award for the claim.  Evidence of unemployability can be submitted after an initial decision denying TDIU, if while a claim for schedular benefits is still being processed.

As with most VA benefits, TDIU is not a permanent benefit. The VA can require a claimant undergo periodic medical examinations to confirm that the claimant remains unable to work due to a service-connected condition. And, as with all VA examinations, a failure to report for a scheduled examination can result in suspension or termination of a TDIU benefit.

In addition, since a TDIU award is also based on “unemployability,” the VA can  periodically request employment information from a claimant receiving TDIU benefits. The VA will also cross check employment earnings with the IRS.

The TDIU rating could be terminated and the claimant could be liable to repay VA for the TDIU benefits paid since that employment began, if:

  1. the VA becomes aware that a claimant is working at a job that is not marginal or sheltered,
  2. A claimant must also be careful in performing volunteer work because the nature and time spent at unpaid work shows that a claimant could be employed and  is no longer unemployable.

If a Veteran is determined to be employale, the TDIU award can and will probably be revoked. When a TDIU rating is revoked, a claimant’s benefits go back to the amount of compensation payable under the scheduler rating and the VA can make the Veteran repay the TDIU award.

Additional Information:

Although it is best to make an explicit claim for TDIU if a claimant believes he or she is eligible, it is no longer required.  Potential entitlement to TDIU is part of every claim for disability compensation.  See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009) (TDIU “is part and parcel of the determination of the initial rating for [a] disability”).  It is now well established that the Board must consider “whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits.”  Comer v. Peake, 552 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001)); see also Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (same).  “[A] request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as a part of the initial adjudication of a claim or . . . as a part of a claim for increased compensation.”  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the question of an extraschedular rating is a component of the appellant’s claim for an increased rating).  A request for a higher disability rating and evidence indicating that the claimant’s ability to work was “significantly impaired” by his or her service connected conditions reasonably raises the issue of entitlement to TDIU as an alternative basis for increased compensation.  Id.

VA regulations provide two methods by which TDIU may be granted.  Under the first, TDIU may be assigned to a claimant who is “unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities” provided that he has received a disability rating of 60% or greater, or, if he is service-connected for two or more disabilities, at least one of those disabilities has been assigned a disability rating greater than 40%, and the combined disability rating for all disorders is at least 70%.  38 C.F.R. § 4.16(a).  If the claimant does not meet these schedular TDIU requirements, a TDIU rating may still be obtained by referral to the director of Compensation and Pension Service for extraschedular consideration when the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

38 C.F.R. section 3.321(b)(1) provides an alternative method of referring a case for extraschedular consideration when a claimant demonstrates an “exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of regular schedular standards.”  Extraschedular consideration under section 3.321(b) is not the same as TDIU under section 4.16(b) because sections 4.16(b) and 3.321(b)(1) are not interchangeable.  See Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (“the effect of a service-connected disability appears to be measured differently” by the two regulations).  Section 4.16(b) requires evidence of unemployability, while § 3.321(b)(1) requires only “marked interference with employment,” which is a somewhat less severe standard.  See Thun v. Peake, 22 Vet. App. 111, 117 (2008); see also Stanton v. Brown, 5 Vet. App. 563, 564-70 (issue of extraschedular rating is separate from issue of TDIU rating).  In other words, a claimant need not demonstrate total unemployability to obtain a section 3.321(b) extraschedular disability rating.

The term “substantially gainful occupation” is not defined by VA regulation; however, the Court has held that the term refers to, at a minimum, the ability to earn “a living wage.”  Bowling v. Principi, 15 Vet. App. 1, 7 (2001); Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991).  The Court has also held that a person is engaged in a “substantially gainful occupation” when that occupation “provides annual income that exceeds the poverty threshold for one person.”  Faust v. West, 13 Vet. App. 342, 355-56 (2000).  The M21-1MR states that “voluntary withdrawal from the labor market” is an “extraneous factor” whose “effects” should be “[i]dentif[ied] and isolate[d]” in determining whether the severity of the service-connected conditions preclude a veteran from “obtaining or retaining substantially gainful employment.”  M21-1MR, pt. IV, subpt. ii, ch. 2, sec. F.27.e.  Consequently, voluntary withdrawal from the labor market should not be an automatic bar to TDIU.

In adjudicating an assertion of entitlement to TDIU, the Board must also consider whether the existing VA medical examination reports adequately “address the extent of functional and industrial impairment from the veteran’s service-connected disabilities.”  Gary v. Brown, 7 Vet. App. 229, 232 (1994).  Thus, if the Board determines that the existing examination reports are insufficient to assess the matter of TDIU, it should request additional medical evidence before adjudicating the matter.

In resolving a TDIU case, the question is whether the claimant is capable of securing or maintaining a substantially gainful occupation.  Although a claimant may be physically able to perform sedentary employment, he or she may not be educationally and vocationally qualified to perform such employment.  Although the duty to assist does not require VA to provide a vocational assessment to a claimant seeking a total disability rating based on individual unemployability, a claimant’s education and work experience are relevant to the issue of entitlement to such a rating.  Smith v. Shinseki, 647 F.3d 1380, 1386 (Fed. Cir. 2011).

Specifically, it is within VA’s discretion to determine whether a vocational assessment was required based on “the facts of a particular case” and an assessment would be required “if, for example, the veteran were found medically qualified for a particular type of job, but there was an unusually difficult question as to whether the veteran had the educational or vocational skills for that position.”  Id.  Accordingly, Smith does not require VA to provide a vocational assessment in every instance where a claimant is seeking a total disability rating based on individual unemployability, but it does require VA to at least consider whether a vocational assessment is required and to support its determination that one is not required with an adequate statement of reasons or bases.  Id.; see also 38 U.S.C. § 7104(d)(1) (requiring the Board to provide a written statement of the reasons or bases for its “findings and conclusions[] on all material issues of fact and law presented on the record”).

If a claimant does not meet the schedular rating for unemployability provided in 38 C.F.R. § 4.16(a), he may still be granted TDIU on an extraschedular basis.  38 C.F.R. § 4.16(b).  The central inquiry “is whether that veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.”  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  In making its decision, VA may consider the veteran’s education, special training, and previous work experience, but may not take into consideration any impairment caused by non-service-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 1.19.  The Board’s determination as to whether a claimant is unable to secure and hold substantially gainful employment is a finding of fact that the Court reviews under the “clearly erroneous” standard.  Bowling v. Principi, 15 Vet. App. 1, 6 (2001).

Although the Secretary and the Board can separate parts of a claim and develop and adjudicate them separately, see Fagre v. Peake, 22 Vet. App. 188, 191 n.4 (2008) (noting the Secretary is free to “issu[e] separate Board decisions with regard to each, some, or all disabilities claimed by a veteran”), TDIU remains a component of an increased rating claim for any period not adjudicated separately, and the Board has jurisdiction over the issue as long as it has jurisdiction over an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  Evidence of unemployability subsequent to a decision denying TDIU and while a claim for increased benefits is still being processed may lead to an award of TDIU for the time period under adjudication.  If TDIU is not warranted pursuant to 38 C.F.R. section 4.16(a), the matter of a TDIU rating may still be referred to the director of Compensation and Pension Service for extraschedular consideration when it is found that the claimant is unemployable by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).

 “Evidence of unemployability,” does not equate to “100% unemployable.”  Roberson v. Principi, 251 F.3d at 1378, 1384-85 (Fed. Cir. 2001).  Instead, an appellant is not required “to show 100[%] unemployability in order to prove that he cannot ‘follow substantially gainful occupation.'”  Id.  Section 4.16(a) also indicates that “[m]arginal employment shall not be considered substantially gainful employment.”  Marginal employment includes employment in a “protected environment” including a “sheltered workshop.”  38 C.F.R. § 4.16(a).

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Same Sex Marriage is Handled During VA Benefits Claims

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges that the Fourteenth Amendment of the U. S. Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Accordingly, the Department of Veterans Affairs (VA) may now recognize all same-sex marriages without regard to a Veterans’s state of residence. VA will generally accept a claimant’s statement that he or she is married, but may investigate further if an assertion appears unreliable. The same procedure applies regardless whether the claimant is in an opposite-sex marriage or a same sex marriage.

VA is dedicated to serving all eligible Service members, Veterans and their families and providing them the benefits they have earned. All Veterans is same-sex marriages who believe they are entitled to benefits, (including those whose claims were previously denied on a ground related to their marriage) are encouraged to promptly apply for benefits.

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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What Veterans Should Know About Disability Benefits Questionaires (DBQs)

Disability Benefits Questionnaires (DBQs)

Disability Benefits Questionnaires (DBQs) are downloadable forms for Veterans to use in the disability evaluation process. DBQs can help speed the processing of compensation and pension claims.

DBQs allow Veterans and Service members to have more control over their disability claims process by giving them the option of completing an examination with their own healthcare provider instead of at a Department of Veterans Affairs (VA) facility.

DBQs enable private healthcare providers to capture important information needed by VA to accurately evaluate and promptly decide Veterans’ claims for benefits.

More than 70 DBQs are available that use check boxes and standardized language to streamline the process. DBQs average about five pages in length. Veterans are responsible for any fees their private provider may charge for completing a DBQ.

The DBQ process involves four steps:

  1. Access the form online and download it;
  2. Have your healthcare provider complete the form;
  3. Save a copy for your records; and
  4. Submit the form to VA.

The DBQ forms are available on our “List by DBQ Form Name” page

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For Cases & Decisions that Could Save Your VA Service-Connected Claims! Visit: VAClaims.org ~ A Non-Profit Non Governmental Agency

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How Clear And Unmistakable Error Affects VA Disability Claims

A decision that has become final may not be reversed or revised in the absence of a showing of CUE.  38 U.S.C. § 7111(a).  CUE “is a very specific and rare kind of error . . . that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  38 C.F.R. § 20.1403(a).

The Court has no jurisdiction to consider a CUE claim it in the first instance.  38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran’s Court can exercise jurisdiction over it”); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that “[t]he necessary jurisdictional ‘hook’ for this Court to act is a decision of the [Board] on the specific issue of ‘clear and unmistakable error'”).VA law allows a veteran – at any time – to request that a decision be reviewed and corrected if VA committed a “clear and unmistakable error” (often called a “CUE”). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right.  A true CUE is not common and is a difficult claim to win.

A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary.  38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411.  A CUE motion is a collateral attack on a final VA regional office decision or Board decision.  Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000).

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied.

  • (1) Claim must be a “closed claim” also known as a “final decision” for a CUE review.  The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
  • (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
  • (3) the error is “undebatable;” and
  • (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

Because a claim for CUE is a review of an already “closed claim” also known as “final decision claim”, special rules apply:

  1. the “duty to assist” does not apply. This means that VA does not help a claimant with a CUE claim.
  2. a CUE claim must contain specific and detailed statements regarding the error:
    1. how that error affected the decision, and
    2. why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example:  a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

Undebatable:

Further, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.”  Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  The error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.  Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the “manifestly changed the outcome” language in Russell).  A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim.  Damrel v. Brown, 6 Vet. App. 242, 246 (1994).

CUE WARNING:

A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:

(1)   a changed diagnosis, where a “new medical diagnosis . . . ‘corrects’ an earlier diagnosis considered in a Board decision;”

(2)   VA’s failure to comply with the duty to assist;

(3)   a “disagreement as to how the facts were weighed;” and

(4)   a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.

Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 (“The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim.”); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.

When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court’s review is generally limited to determining whether the Board’s conclusion is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases.  38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff’d, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo.  Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).

The U.S. Court of Appeals for the Federal Circuit has held that “a veteran’s assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim.”  Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Because the “Federal Circuit equates ‘issue’ with a ‘claim’ and not a theory or element of the claim,” “an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice.”  Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c).  A claimant, thus, has only one chance to file a CUE claim on a prior decision.  Id.

Although CUE does not require “pleading with exactitude,” it nevertheless must be plead with “some degree of specificity.”  Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although “the liberal construction of a VA claimant’s pleading must be tempered somewhat in CUE cases” that “does not require pleading with exactitude”); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).  Assertions of CUE raised by counsel, however, are not entitled to a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant).  Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF’L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice).  Perfection of an appeal for a claim involving CUE involves the same steps as any other claim.  38 U.S.C. § 5109A(e) (“[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim.”); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that “each ‘specific’ assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it”).

The VCAA does not apply to CUE actions.  See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims).  In other words, the VA has no duty to assist claimants with CUE claims.  See Livesay, 15 Vet. App at 178 (noting that the CUE “movant bears the burden of presenting . . . specific allegations of error”); 38 C.F.R. § 20.1404 (“The motion must set forth clearly and specifically the . . . errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.”); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran’s filing raises a valid claim is a factual inquiry, reviewed under the “clearly erroneous” standard).

The spouse of a deceased claimant has no right to file a CUE claim because “a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE” as 38 U.S.C. section 5109A does not “provide[] for another person, even a survivor, to seek correction of a decision on a veteran’s claim.”  Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).

Reference: 38 C.F.R. 20.1403

§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.

 (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
 (b) Record to be reviewed—
  •  (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
  •  (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
 (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board’s adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
 (d) Examples of situations that are not clear and unmistakable error—
  •  (1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.
  •  (2) Duty to assist. The Secretary’s failure to fulfill the duty to assist.
  •  (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
 (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)

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