And I know a lot of you are worried about these cases, because CUE is one of the hardest types of cases to prove. It is so hard to prove that I don’t recommend filing a CUE claim until there are no other avenues to a win.
Think of CUE as if it were a “nuclear option” on the battlefield – if you file CUE and win, it obliviates the VA’s position from years ago and opens up possible entitlement to a lot of past-due benefits.
If you lose, though, just like a nuclear bomb, it stands a good chance of wiping out any recovery on that claim in the future.
A recent Court decision suggests that this type of CUE claim has some merit to it.
Here’s what happened. In 1980, a Veteran filed a claim for service connection of his scoliosis. Though there was NO evidence that this condition pre-existed service, the VA denied the claim, and in May 1981, the BVA issued a decision affirming the denial, saying this:
“[Scoliosis] is usually developed during youth or shortly thereafter as opposed to a condition or disorder brought about by a traumatic experience. Service physicians by physical examination and x-ray evidence diagnosed the veteran’s disorder shortly after his entrance in service as a congenital condition which existed prior to his entry in the service. Moreover, there is an absence of objective evidence to indicate an aggravation by way of a traumatic occurrence during the veteran’s short term of service.”
Sound familiar? What’s happening here is EXACTLY what the Court lashed out at the VA for doing in the Horn case: they shifted the burden of proof of rebutting the presumption of soundness to the Veteran.
But here’s where it gets interesting.
In May 2014, the Veteran filed a Motion to Revise the May 1981 BVA decision on the basis of CUE, largely making the same argument made in Horn, with the added contention that shifting the burden of rebutting the presumption of soundness to the Veteran was clear and unmistakeable error.
The BVA found that there was no CUE in the May 1981 decision because – and watch how sneaky they are – they said this: There was no “CUE as the Board properly found that there was ‘affirmative evidence that the back condition pre-existed service and was not aggravated.’ “
See what they did? In essence they said that the BVA correctly shifted the burden of presumption to the Veteran, and that the objective evidence was properly considered.