Is there a chance that a CUE (Clear and Unmistakable Error) claim based on 3.156(c) will be approved?

Posted on: Wednesday, June 06, 2018
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Is there a chance that a CUE (Clear and Unmistakable Error) claim based on 3.156(c) will be approved?

Question

Hello Jim, Initial VA denial in 1991 was based on no available SMRs. Later in 2008 SMRs were found and VA denied (no evidence of condition noted. I did not appeal and it became final. In 2010 reopended and was awarded in 2015 by BVA based in part on the SMRS that were previously submitted and medical opinion.

Question. Since the SMRs were not available when VA first decided my claim and were used in part to award my claim, is there a chance that a CUE claim based on 3.156 (c) will be approved?

While Veterans Forums state that since the SMRs were part of the previous denial (not the first) I do not have a chance. However, I cannot find anything in writing to support the Vet forums members reasoning.

Please provide feedback, and possibly, suggestions  and or recommendations.

Thank you very much!

 

Jim's Reply

What you propose is a long shot. When decisions are made, they're made with the evidence available. It doesn't matter much why the evidence isn't available, it is what it is. If you had repeatedly appealed and kept the claim open, (difficult under the circumstances) you may have appealed long enough that records were found, etc. I doubt you have a CUE claim but I'd urge you to consult with an accredited veterans law attorney and ask for a case review to determine the chances of a successful appeal. It's the VA so we never know until we try. I strongly advise that vets stay away from those "veterans forums" you mention. Most of those people are well meaning but all too often misinformed. If you don't know who the person is or any background, I'd be cautious about the advice they give.

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