Young: VA can revise decision based on CUE while appeal is pending
/Young v. Wilkie, 31 Vet.App. 51 (Mar. 11, 2019)
HELD: In representing a veteran in an appeal challenging a debt owed to VA, the representative is only entitled to a fee based on the amount of the invalidated debt that was actually recouped – not on the entire amount of the invalidated debt.
SUMMARY: Robert Young was granted service connection in a June 2012 decision. He appealed for an earlier effective date for the assignment of a higher rating. On review, a DRO determined that the June 2012 assignment of the higher rating was CUE and proposed to reduce the rating. In June 2013, the RO reduced the rating, and the veteran appealed.
At the CAVC, he argued that VA could not revise the June 2012 rating based on CUE because the CUE regulation only allows for revisions of “final” decisions – and because he had appealed that decision, it was not yet final and, therefore, could not be subject to revision based on CUE. The CAVC noted that 38 C.F.R. § 3.105(a) says that “final and binding” decisions are subject to CUE – and that § 3.104 defines final as “the end of any internal review of a matter by an AOJ.” This regulation also says that a rating decision is an example of a “final and binding” determination.
The Court also found that “it is far more efficient – and beneficial to claimants – to allow VA to correct obvious errors at the time of the identification of the error than to force it to wait until a claim is fully adjudicated and then pursue overpayments in the form of recoupment.”
