CLEAR & UNMISTAKABLE ERROR (CUE)

Hime v. McDonald, 28 Vet.App. 1 (Mar. 3, 2016)

HELD: A 1983 Board decision was not CLEAR AND UNMISTAKABLE ERROR because the Board (1) was allowed to exercise its own medical judgment at that time and (2) was not required to provide a statement of reasons or bases for its determinations.

SUMMARY: The veteran in this case challenged a November 1983 Board decision on the basis of clear and unmistakable error (CUE). However, the Court found that at the time of the November 1983 decision, the Board did not have a reason-or-bases requirement and Board decisions were decided by three-member panels that included one medical professional. The use of the medical opinion provided by the medical member of the panel was common practice. While the Court agreed with the appellant that the 1983 Board decision was not “evidence,” the Court determined that the Board decision was not CUE because of the law in existence at that time. 

FULL DECISION