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When denied SC for not having STRs showing DX or complaints during service, at what point does STRs found in the Veterans C-file constitute “new and material evidence”?
And would those STRs meet grounds for CUE, and not just raise 38 C.F.R. sections 20.1403(d) and (e) as a VA defense?
Further, the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.” Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered. Id.at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the “manifestly changed the outcome” language in Russell). A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim. Damrel v. Brown, 6 Vet. App. 242, 246 (1994).
A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.
Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:
[[(1) a changed diagnosis, where a “new medical diagnosis . . . ‘corrects’ an earlier diagnosis considered in a Board decision;”
(2) VA’s failure to comply with the duty to assist;
(3) a “disagreement as to how the facts were weighed;” and
(4) a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.]]
Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 (“The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim.”);see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.
I ask this because, I understand a CUE claim is a ONE SHOT ONE KILL DEAL, so simply arguing the new STRs showing complaints in service might raise the VA argument that said STRs were not considered for whatever reason which would disqualify a Veteran to a revision.
Thank you for reading this, and for your reply. @Berta, and anybody else!
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