Clear and Unmistakable Error Claim in a CAVC
Do you think you have a Clear and Unmistakable Error Claim (CUE) with the Court of Appeals for Veteran Claims (CAVC)? A CUE (motion is a collateral attack on a final RO or Board decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696–98 (Fed.Cir.2000).
To establish clear and unmistakable error claim for a final Regional Office (RO) decision, a claimant must show that (1) either the facts known at the time were not before the adjudicator or that the law then in effect was incorrectly applied; and (2) had the error not been made, the outcome would have been manifestly different. Grover v. West, 234 F.3d 682, 696–98 (Fed.Cir.2000); Hillyard v. Shinseki, 24 Vet.App. 343, 349 (2011). “[T]he alleged error must be ‘undebatable,’ not merely ‘a disagreement as to how the facts were weighed or evaluated.’ “ Id. (quoting Russell v. Principi, 3 Vet.App. 310, 313–14 (1992) (en banc)). The Court's review of the Board's determination on the existence of a clear and unmistakable error claim is limited to whether that conclusion was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 38 U.S.C. § 7261(a)(3); Hillyard, 24 Vet.App. at 349; Russell, 3 Vet.App. at 315.
Court of Veterans Appeals for Veterans Claims
The Court of Appeals for Veterans' Claim (CAVC) ruled in a December 5, 2008 decision that "Previous determinations which are final and binding . . . will be accepted as correct in the absence of (CUE) (clear and unmistakable error claim)." 38 C.F.R. § 3.105(a). To initiate a request for revision, a claimant must file a clear and unmistakable error motion that collaterally attacks a final decision by an RO or the Board. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000). When reviewing Board CUE decisions, the Court's review is generally "limited to determining whether the [Board] decision was 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'" Russell v. Principi,3 Vet.App. 310, 315 (1992) (en banc) (citing 38 U.S.C. § 7261(a)(3)(A)).
However, whether the appellant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions that are reviewed de novo. See Andrews v. Principi, 18 Vet.App. 177, 182 (2005) aff'd sub nom. Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004) (reiterating that the "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' standard of review . . . contemplates de novo review of questions of law"); Joyce v. Nicholson, 19 Vet.App. 36, 42-43 (2005) (in CUE adjudications, Court reviews de novo whether applicable law or regulation was applied). The Court also reviews whether the Board's decision is supported by an adequate statement of reasons or bases. See 38 U.S.C. § 7104(d)(1); Russell, supra.
U.S. Court of Appeals
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held in Andre v. Principi, that "each 'specific' assertion of CUE [clear and unmistakable error claim] constitutes a claim that must be the subject of a decision by the [Board] before [this] Court can exercise jurisdiction over it." 301 F.3d 1354, 1361 (Fed. Cir. 2002). In that case, the Federal Circuit concluded that the CUE arguments raised to this Court by the appellant "did not constitute alternative arguments in support of [CUE] claims previously asserted and decided by the Board . . . . ; Rather, they were entirely separate and distinct claims that the Board's decision had not addressed." Id. at 1362; see also Jordan v. Principi, 17 Vet.App. 261, 269 (2003), aff'd sub nom. Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005) ("[T]he change of a theory underlying a CUE claim could be interpreted in certain cases as representing not an appeal of the CUE claim rejected by the Board, but an entirely new CUE claim over which the Board has not rendered a decision and over which the Court thus lacks jurisdiction."); Russell, 3 Vet.App. at 315 (when Court reviews Board decision regarding CUE, "[t]he necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue of '[CUE]'"); cf. Jarrell v. Nicholson, 20 Vet.App. 326, 333 (2006) (en banc) (holding that "each wholly distinct and different CUE theory underlying a request for revision is a separate matter and, when attacking a prior RO decision, each must be presented to and adjudicated by the RO in the first instance and, if not, the Board lacks jurisdiction over the merits of the matter"). When an appellant raises a new theory of CUE for the first time before the Court, the Court must dismiss for lack of jurisdiction. See Sondel v. Brown, 6 Vet.App. 218, 219-20 (1994). However, the failure to raise a specific allegation of error "does not waive such a claim—it only delays its adjudication to a time when it is properly raised." Andrews, 421 F.3d at 1284.
If you believe your case has a clear and unmistakable error, please contact the attorneys at Whitcomb, Selinsky Law PC or its sister firm, the Rocky Mountain Disability Group. Please call (303) 534-1958 or complete an online contact form.