Robert: Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick.
With me today is?
Zach: Zach Stolz also from Chisholm Chisholm & Kilpatrick.
Robert: Zach, I wanted to talk today about clear and unmistakable error, CUE.
What is that and why is it important to veterans?
Zach: Clear and unmistakable error is a short-hand way for what is called a revision based upon
clear and unmistakable error which is a way for a veteran to attack a final decision from
the Department of Veterans Affairs that was un-appealed for whatever reason.
Robert: So, let's sort of deconstruct that if we could for a moment.
You have a final decision and let's say it was 20 years ago.
There's a way for a veteran to challenge that decision today hypothetically?
Zach: Yes, there is.
Even if the veteran didn't appeal that decision in a timely fashion either from the Regional
Office or from the Board of Veterans' Appeals.
There are ways to attack those old decisions and that is done by a revision based upon
clear and unmistakable error.
Robert: Alright.
So, how would one-- what does one have to do to challenge a former decision that is
final based upon clear and unmistakable error?
Zach: It is a tough thing to do but the veteran would have to file a very clearly articulated
and very clearly worded revision and he would file that with the Department of Veterans
Affairs Regional Office if that's who made the decision that he's attacking or with the
Board of Veterans' Appeals if that is who made the decision that he or she is attacking
and what you have to allege is that the decision that was made by the Department was either
because the incorrect facts were before the Department or the Department applied the incorrect
law.
The veteran has to keep going, the veteran has to prove that that error in fact or that
error of law is undebatable, that is that reasonable people cannot disagree that what
VA did was wrong and then the veteran needs to go further and show that that wrong decision
cost him or her the benefits that he or she was entitled to.
Robert: Alright.
So, there's a lot that goes into this and I think the court has described this as a
pleading requirement and that's a fancy way for saying, you've got to hit all four items,
you just articulated.
Zach: Correct.
Robert: Okay and if you do not allege one of those four, you're never going to win?
Zach: That is correct.
Robert: Okay, so these are very specifically detailed arguments that have to be made either
to the Regional Office if they were the one that made the final decision or the Board
of Veterans' Appeals if they were the one that made the final decision?
Zach: Right.
Robert: Okay.
We have filed a few of these over the years--
Zach: We have.
Robert: -- as a law firm.
And it seems to me in thinking about this that there are certain kinds of decisions
that one could have a chance to win if they alleged clear and unmistakable error in a
former final decision?
Zach: Yes, I think that's true.
Robert: Okay.
What decisions might one consider challenging where a veteran has a chance to win?
Zach: The examples that come to my mind would be cases in which the Department of Veterans
Affairs reduced a veteran's award in other words let's say that that veteran had a 100%
rating and the Department of Veterans Affairs reduced that down to a lower rating than a
100%, those are often filled with the types of legal errors that we discussed that are
outcome determinative.
Another area where we have seen this is where a veteran had suffered a wound from a shell
fragment or from a gunshot wound.
We have found that in the past the Department has made a lot of legal and factual errors
in the way they rate those complicated types of situations and so we have had a lot of
success or some success attacking those by filing revisions based on clear and unmistakable
error.
Robert: It seems to me in the gunshot wound cases and the, you know with an IED, that
they miss all the different muscle groups for example that they should be considering
in those decisions.
Zach: That's right.
The Department of Veterans Affairs has had historic trouble being able to follow the
path of the gunshot or the shell fragment as it winds its way through the veteran's
body.
Robert: So, for these kinds of, I'm going to call them claims, the court refers them
to requests for revision based upon clear and unmistakable error.
It probably helps to have someone that's knowledgeable about this area of law so that you meet the
pleading requirements.
Zach: It does.
It does help to have someone knowledgeable about the law and preferably someone with
some experience and some success in handling these complicated matters.
Robert: Any other thoughts about this topic?
Zach: The only other thoughts that I have are that veterans need to be very careful
when they are doing these types of claims because once the revision is filed, the court
has been holding that these strict pleading requirements have to be complied with and
there is very, very little room for error and there's very little room to go back in
time and correct any deficiency in the pleading requirement.
In other words, once the bell is rung it is hard to unring it if you do something improper
or not complete when you file one of these revisions.
Robert: So, to say it sort of a different way if you make a mistake in the pleading
requirement, chances are you're not going to be able to do anything.
Zach: And it can cost you a lot of money.
Robert: And it can cost you a lot of money.
Zach, thanks for joining us today.
This is Robert Chisholm from Chisholm Chisholm & Kilpatrick and Zach Stolz.
Zach: Thank you.