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.


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).


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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What Veterans Must Know About Duty Requirements In Processing VA Disability Claims

Duty to Assist

In requiring the VA benefits system to be a “non-adversarial” process, Congress has imposed on VA a “duty to assist” claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.

The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to “assist” a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.

VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for “inferred” claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.

A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes “adversarial” when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA’s resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.

Duty to Provide Notice

A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a “duty to notify” the claimant of the information needed to make the application complete enough to process.

Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant’s name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.

Once a substantially complete application has been submitted, VA has a second “duty to notify.” This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.

Section 5103A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications.  Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006).  Section 5103 requires VCAA notification to be issued “prior to the initial decision of the claim, not afterwards.”  Id. at 1333. 

The Court must assess the Board’s notification analysis as a whole to adequately determine whether a factual finding regarding 38 U.S.C. § 5103(a) notification had been made by the Board in the first instance.  Prickett, 20 Vet. App. at 375-76; Yarbrough v. Nicholson, 21 Vet. App. 512 (2006).  The Court reviews the Board’s determination that VA satisfied its duty to assist under the “clearly erroneous” standard of review.  Nolen v. Gober, 14 Vet. App. 183, 184 (2000).

Duty to Obtain Records

The VA is required to make “reasonable efforts” to obtain a claimant’s military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.

As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.

“The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.”  38 U.S.C. § 5103A(a)(1).  Gardner v. Shinseki, 22 Vet. App. 415, 421 (2009) (“Accordingly, the Secretary’s duty to assist applies to all claimants, regardless of whether they have established veteran status.”).  VA is statutorily required to “make as many requests as are necessary” to obtain a veteran’s relevant service records in the custody of a Federal department or agency.  38 C.F.R. § 3.159(c)(2); see Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992) (“There is a continuing obligation upon the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication.”).

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the claimant of the information and evidence not of record that:

(1)   is necessary to substantiate the claim,

(2)   the Secretary will seek to obtain, if any, and

(3)   the claimant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim.  

See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). This duty includes making “reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.”  38 U.S.C. § 5103A(b)(1).  If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that “identif[ies] the records that the Secretary was unable to obtain,” “briefly explain[s] the efforts that the Secretary made to obtain those records,” and “describe[s] any further action to be taken by the Secretary with respect to the claim.” 38 U.S.C. § 5103A(b)(2).  These requirements also apply to private documents. 

But, the “duty to assist in the development and adjudication of a claim is not a one-way street.”  Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996).  VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit.”  38 U.S.C. §§  5103A(a)(1), (b); cf.  The Board’s determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the “clearly erroneous” standard of review.  See Nolen v. Gober, 14 Vet. App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990). 

Duty to Obtain Lost or Missing Records

VA’s duty in cases involving lost records is to seek out alternative sources for obtaining the lost records.  Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006).  Pursuant to 38 U.S.C. section 5103A, the Secretary is required to “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.”  38 U.S.C. §§ 5103A(a), (b). Where a claimant’s records are lost or destroyed, VA has a “heightened” duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence.  Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). 

However, the Court cannot grant an appellant’s claim solely because his records were lost because that remedy “would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court.”  Id. at 1351.  A veteran bears the burden of showing error on this issue.  See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that the appellant bears the burden of demonstrating error); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (holding that an appellant “always bears the burden of persuasion on appeals to this Court”).

When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board’s findings.  See Vazquez-Flores, supra; see also Cromer v. Nicolson, 455 F.3d 1346, 1351 (Fed. Cir. 2006) (“[I]n cases involving lost records, the Board has a heightened duty to explain its findings.”); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006) (where appellant’s records not available, the duty to assist and fully explain reasons and bases is heightened); Stegall, supra; see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the Court’s caselaw establishes a “heightened duty” to assist when the appellant’s medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board’s duty to assist a claimant in developing his claim is heightened in cases in which the appellant’s SMRs are lost or destroyed “and includes the obligation to search for alternate medical records”); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (holding that VA’s duty to assist is “particularly great in light of the unavailability of the veteran’s exit examination and full Army medical records”).

Duty to Provide Medical Examination 

VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.

In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant’s own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.

Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.

As part of his duty to assist, the Secretary must “make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit” including a medical examination.  38 U.S.C. § 5103A(a)(1).  The Secretary must provide a medical examination or obtain a medical opinion “when such an examination or opinion is necessary to make a decision on the claim.”  38 U.S.C. § 5103A(d)(1).  VA must provide a medical opinion or examination if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is:

(1)   competent evidence of a current disability or persistent or recurrent symptoms of a disability;

(2)   evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and

(3)   an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability.

McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i).  The requirement that the evidence indicate that a condition “may be associated” with service establishes a “low threshold.”  McLendon, 20 Vet. App. at 83. 

When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, “taking into consideration all information and lay or medical evidence (including statements of the claimant).”  38 U.S.C. § 5103A(d)(2).  “The Board’s ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’ standard of review.”  McLendon, 20 Vet. App. at 81.

Generally, section 5103A notice must be given on “all five elements of a claim for service connection,” which include:

 (1) veteran status;

(2)   existence of disability;

(3)   service connection of disability;

(4)   degree of disability; and

(5)   effective date of disability.  

38 U.S.C. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473, 487 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506), aff’d in part sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir.2007)); see also D’Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting the five elements of a claim for service connection).

Duty to Identify Inferred Claims

Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.

These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.

Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.

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What Disabled Veterans Must Know About Non-Adversarial System of the Veterans Law

Unique Aspects of Veterans Law

The basic operation of VA is very similar to other federal agencies. The legal requirements that VA must follow are created by Acts of Congress and codified in statutes. The VA Secretary, however, has very broad powers to prescribe the many rules and regulations “necessary or appropriate” to carry out those legal requirements. And, as long as the Secretary’s actions “are consistent” with the laws enacted by Congress, a court will not interfere with VA’s decisions.

Congress, however, has long recognized that veterans have earned special consideration for their service to the country. In recognition of this service, Congress has imposed several special duties and requirements on VA to ease the burden on veterans seeking benefits. Claimants should be aware of these special considerations because they provide a veteran with significant advantages in seeking an award.

There is a “basic principle of the VA claims process that claims will be processed and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under this rubric VA will assist claimants in many ways.”  Evans v. Shinseki, 25 Vet. App. 7, 14 (2011); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (stating that although the arguments made in a VA Form 9 appeal to the Board often frame the nature of that appeal: “there is nothing magical about the statements actually on the Form 9, given the VA’s non-adversarial process.”).  A claimant for VA benefits has avenues to seek redress before the Secretary within the non-adversarial VA system (motions for reconsideration at the Board, motions alleging clear and unmistakable error in Board or VARO decisions, requests for vacation of Board decisions based upon denial of due process, and even requests for equitable relief from the Secretary have long been available).  See 38 U.S.C. §§ 503, 5109A, 7103, 7111; 38 C.F.R. §§ 20.904, 20.1001, 20.1400.  

Unlike other federal benefits systems, such as the Social Security Administration process, the VA claims process is intended to be “non-adversarial, paternalistic, uniquely pro-claimant.” This means that VA is supposed to help claimants with obtaining an award, rather than opposing an award and forcing applicants to “prove” their claims by themselves. This does not mean that a claimant should “file and forget” a claim and expect VA to award a claim without questions, but Congress has removed or reduced many of the most burdensome aspects of obtaining federal benefits for VA claimants.

A significant advantage for veterans seeking benefits is that VA has no formal “pleading” requirements. This eliminates the need for a claimant to identify the specific benefits and the specific legal bases for an award when submitting a claim. Instead, VA claimants only have a general duty to file a “substantially complete” claim.

It is important to keep in mind that, even with the advantages provided by Congress, a VA claimant still has the responsibility to present and support a claim for benefits. This means that an application must provide enough information to allow VA to reasonably attempt to develop a claim to meet the legal requirements for an award. This is not a high threshold, but a claimant must meet it to have VA assist with a claim.

Filing an NOA under section 7266, however, demonstrates the exact opposite intent – a claimant’s intent no longer to pursue his claim for benefits through the Secretary, but instead to take the Secretary to court by seeking a legal review before the Court of the Secretary’s actions on his case.  This separation between VA and the Court was made even more emphatic when Congress passed the Veterans Education and Benefits Expansion Act, Pub. L. No. 107-103, 115 Stat. 976 (Dec. 27, 2001), and removed from section 7266 the requirement for a veteran to “furnish the Secretary with a copy of [an NOA].”  Bobbitt v. Principi, 17 Vet. App. 547, 552-53 (2004).

Filing an appeal to the Court thus is not an action within the “non-adversarial, manifestly pro-claimant veterans’ benefits system.”  Rather, a veteran’s appeal to this Court is the first step in an adversarial process challenging the Secretary’s decision on benefits.  See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002) (en banc), cert. denied, 537 U.S. 823, 123 (2002) (“The veterans’ benefits system remains a non-adversarial system when cases are pending before the Veterans’ [sic] Administration.  However, the Court of Appeals for Veterans Claims’ proceedings are not non-adversarial.”).  Before the Court, the Secretary becomes a represented appellee in an appellate court adversarial proceeding.

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Disabled Veterans Have the Right to be Heard with their Disability Claims

“Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]”  38 C.F.R. § 3.103(c)(1).  “It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position [on appeal].”  38 C.F.R. § 3.103(c)(2).  This provision “imposes … two distinct duties on the hearing officer …:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.”  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam).  These requirements are designed “‘[t]o assure clarity and completeness of the hearing record.'”  Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2)); see also Bryant, 23 Vet. App. at 499.

“The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.”  Thurber v. Brown, 5 Vet. App. 119, 123 (1993); see Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (Due Process Clause applies to proceedings for veterans benefits); Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (same).  The Fair Process doctrine does not prohibit administrative procedures based on a claimant’s perception that they may be “unfair.”  Rather, the doctrine provides claimants with the procedural protection of requiring that they receive notice and an opportunity to be heard, not just once, but “at virtually every step in the process.”  Thurber, 5 Vet. App. at 123.

In order to follow this regulatory mandate, a hearing officer “cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available.”  Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (per curiam).  In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer’s explanation and discussion should be centered on these issues.  Bryant, 23 Vet. App. at 496.  In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that “nothing in the regulation limits the Secretary’s duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;” rather, the hearing officer “must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.” Bryant, 23 Vet. App. at 496- 97.

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How Veterans Can File a Notice of Disagreement on their VA Compensation Claim

If you disagree with the decision VA made on your disability compensation claim, your first step is to formally tell VA that you disagree.

I received my rating and it’s wrong

“I received my rating and it’s wrong” is a statement our call center agents hear every day. You may think that VA shouldn’t have denied your claim, that you should have received a higher percentage, or that the effective date was wrong, but the odds are against it. That’s not to say that VA never makes a mistake, but an overwhelming majority of the time VA makes the correct decision based on the evidence available. In fact, VA’s issue-rating accuracy is 95 percent.

This high level of accuracy is in part because most of the decision-making is now automated. Medical information is input by the rater, and the rating for each issue is calculated and justification is provided.

So, if you aren’t happy with your rating, first carefully read your notification letter and rating decision. These documents should explain, issue-by-issue, why you received your rating, and what is needed for the next higher rating. It should also explain what the effective date is and why. If VA did not service connect your requested condition, the decision letter explains why the condition was not service connected.

If you have questions about your rating decision you can always go to your local Veterans Service Organization (VSO), sit down with a representative at your local VA office, or call the VA National Call Center at 800-827-1000. They can explain your rating so that you can decide what to do next.

If you’ve reviewed the claim decision and still think VA is wrong, you should provide additional evidence to support your condition(s) with your NOD. The claim decision becomes certified after 30 days, but it isn’t final until one year after the date of the decision. You can file a Notice of Disagreement at any time up to one year from the date of decision.

Submitting the Notice of Disagreement

To file the NOD, submit the VA-Form 21-0958, Notice of Disagreement that was included with your claim decision. This is your chance to tell VA how you feel the decision is wrong. If you don’t feel confident enough to do this on your own, your VSO can help you.

The NOD form contains blocks for each issue of contention (the medical conditions for which you filed the claim), for example, knee condition or kidney stones. Only list the conditions on the NOD where you disagree with the rating. For example, if you were rated for three conditions and only disagree with one decision, only list the decision you disagree with. Then check the block indicating what you disagree with (service connection, the rating level, or effective date).

The most important section is the narrative to explain why you feel VA incorrectly decided your claim. Don’t leave this blank. It’s entirely possible that VA missed something, and if you don’t point it out, VA will never know. Tell your story, but be clear and concise. If you need more space, add additional pages and documentation, such as private medical records, to make your point.

As explained above, there are three primary issues with your claim decision that you can disagree with: service connection, effective date and evaluation of disability (rating percentage). There is also an option for “other” if these are not appropriate.

  • Service Connection: If your claim came back “not service-connected,” explain why you think the condition should have been service connected. Was it first diagnosed in service? Was there an injury in service? Is this a condition that was caused or aggravated by a service-connected condition? For example, a service-connected knee condition can lead to back strain. The back issues are then secondary to the knee condition and can be service connected. Be specific and provide the date of the initial injury or illness if possible. That helps the rater find the documentation needed in your service treatment or personnel records. If you have copies of official documentation that prove an event happened in service, for example the write-up for a medal, attach a copy. Most illnesses are compensable if diagnosed within a year of leaving active duty. You may have to include private treatment records to prove this. Buddy statements can provide additional evidence. If there is no connection between your illness and your time in service, VA can’t legally provide benefits.
  • Effective Date of Award: Usually the date of award is the date of claim for that specific issue, but there are instances where the date could be earlier. Some of these include, the date after your discharge for claims filed within a year of leaving active duty; date an Intent to File was received by the VA; or the date of diagnosis or eligibility for a higher level of compensation for increases. Your local Veterans Service Organization can help you determine if the effective date should have been earlier.
  • Evaluation of Disability: The most common area of disagreement is the evaluation of disability. The rating levels are determined by law and are based on your symptoms. In your claim decision letter, look for the description of the rating and the associated legal reference. This reference leads to a listing that shows what symptoms match the rating level for your condition. If you have documented symptoms or test results from your doctor that show you should be in a higher rating level, explain this in your narrative and add copies of the documentation to your submission.

You may want to read over the Schedule for Rating Disabilities (38 CFR, Part 1), which provides all of the information on how claims are rated, how VA math works (38 CFR, Part 1, Section 4.25), and how percentages are based on your symptoms (38CFR, Part 1, Subpart B). Warning: the CFR is dense with legalese and medical information, and it’s why we recommend you ask a VSO for assistance.

If your symptoms don’t meet the next higher rating level, VA cannot increase your rating. In this case, you are better off keeping the current rating, and if your symptoms worsen, you can always file a claim for an increase later.

The NOD also asks you to make a choice between the Decision Review Officer (DRO) process, or the traditional appellate review process.

In the DRO review, an experienced rater will conduct an in-depth review of your claim and any new evidence that you provide. The DRO may schedule you for an additional compensation and pension exam (C&P), or contact you with follow up questions.

In the traditional appellate process, a VA rating specialist will review the prior rating and any new evidence to see if a clear and unmistakable error (CUE) was made on the previous decision.

In both processes, a new decision can be made based upon the evidence of record. If you are uncertain about which option is best for you, check with your VSO for advice.

So what happens next?

After the DRO reviews your file, NOD, and any new evidence, they will make a decision. They may either provide a new rating or continue the current rating decision. Then, you will receive a Statement of the Case that describes the information that was reviewed and how the DRO came to their decision.

If you disagree with the new decision, the next step would be to file a VA Form 9 and appeal to the Board of Veterans Appeals. Depending on the complexity of your case, the formal appeal process can take several years (and every time you submit new evidence before a decision increases that wait). It is much better to ensure you provide all of the information and evidence to tell your story during the NOD phase since it will resolve your issue the fastest.

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