CUE

(Clear and Unmistakable error)

BVA Citation Nr: 0723928

Motions for review of prior Board decisions on the grounds of 
CUE are adjudicated pursuant to the Board's Rules of 
Practice. 38 C.F.R. §§ 20.1400-1411. Pursuant to 38 C.F.R. 
§ 20.1404(b), the motion alleging CUE in a prior Board 
decision must set forth clearly and specifically the alleged 
CUE, or errors of fact or law in the Board decision, the 
legal or factual basis for such allegations, and why the 
result would have been different but for the alleged error. 
Non-specific allegations of failure to follow regulations or 
failure to give due process, or any other general, non-
specific allegations of error, are insufficient to satisfy 
the requirement of the previous sentence. Motions that fail 
to comply with the requirements set forth in this paragraph 
shall be dismissed without prejudice to refilling. 
 
Rule 1403, which is found at 38 C.F.R. § 20.1403, relates to 
what constitutes CUE and what does not, and provides as 
follows:
 
(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.A. § 501(a), 7111).