Fugo v. Brown
1993 U.S. Vet. App. LEXIS 700, 1993 WL 467847, 6 Vet. App. 40 (1993)
Rule of Law:
A claim of clear and unmistakable error (CUE) in a prior Veterans Affairs adjudication requires a specific allegation of error, either factual or legal, that, if true, would have compelled a manifestly different outcome, to which reasonable minds could not differ.
Facts:
- VA outpatient treatment records from April to June 1987 revealed appellant Joseph Fugo was being seen for Post-Traumatic Stress Disorder (PTSD).
- In July 1987, Fugo was terminated from a telephone solicitor job after three days due to inappropriate behavior and incoherent speech with clients.
- An August 1987 VA examination diagnosed Fugo with PTSD, noting complaints of poor memory, inability to handle stress, and violent outbursts.
- A VA psychologist, who treated Fugo for PTSD since May 1984, consistently opined in April and August 1988, and March 1989, that he was unemployable due to psychiatric symptoms causing short-term jobs.
- In May 1988, Fugo was dismissed from university due to unsatisfactory academic progress.
- A May 1988 VA psychiatric examination revealed severe PTSD symptoms, including a decline in intellectual functioning and an inability to maintain employment or interact socially.
- Fugo's parents reported in April 1989 that he was very nervous, had angry outbursts, difficulty concentrating and remembering, isolated himself from family, and could not hold jobs for long.
- An April 1989 VA rehabilitation panel concluded that vocational rehabilitation for Fugo was infeasible due to his inability to adjust to academic stress or persevere in programs.
Procedural Posture:
- On June 7, 1989, the Board of Veterans’ Appeals (BVA) issued a decision finding Joseph F. Fugo did not meet the criteria for a PTSD rating exceeding 70%.
- Fugo requested reconsideration of the June 1989 BVA decision.
- An expanded BVA panel granted reconsideration and subsequently denied Fugo's claim for an increased rating, also determining the June 1989 decision was not a product of "obvious error."
- During a June 1992 hearing for Fugo's reopened claim, his service representative and Fugo himself attempted to raise the issue of clear and unmistakable error (CUE) regarding the 1989 (and earlier 1987) adjudications, citing failure to apply certain laws and regulations.
- In a November 9, 1992, statement, Fugo further claimed CUE by the BVA for denying 100% unemployability and not applying the "reasonable doubt law" or 38 C.F.R. § 4.16(c).
- On February 18, 1993, the BVA issued a decision granting Fugo a 100% rating for PTSD, retroactive to March 6, 1990, but did not address the CUE claims for an earlier effective date.
- Fugo, as appellant, appealed the February 18, 1993 BVA decision to the U.S. Court of Appeals for Veterans Claims.
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Issue:
Does merely alleging "clear and unmistakable error" or making broad, non-specific claims of error in a prior adjudication suffice to reasonably raise the CUE issue, thereby obligating the Board of Veterans' Appeals to address it?
Opinions:
Majority - Holdaway, Judge
No, merely alleging "clear and unmistakable error" or making broad, non-specific claims of error is insufficient to reasonably raise the issue, thereby not obligating the Board of Veterans' Appeals to address it. The Court explained that CUE is a very specific and rare type of error, requiring a conclusion that reasonable minds could not differ on, that the result would have been manifestly different but for the error. Even if an error is accepted, if it is not absolutely clear a different result would have ensued, the error complained of cannot, by itself, be clear and unmistakable. The Court cited Russell v. Principi, emphasizing that simply claiming improper weighing of evidence, broad "failure to follow regulations," or "failure to give due process" cannot meet the stringent definition of CUE. To reasonably raise CUE, there must be specificity regarding the alleged error and persuasive reasons why the result would have been manifestly different. This standard is necessary due to the strong presumption of validity for final decisions, especially when collaterally attacked. The appellant's claims—that favorable evidence was ignored, failure to apply regulations properly, failure to accord benefit of the doubt, vague "duty to assist" claims, and failure to give reasons/bases—do not meet this standard. While the failure of the June 1989 adjudication to consider 38 C.F.R. § 4.16(c) (effective March 1989) was a potential point, it was not "manifest" that it would have led to a different result, as § 4.16(c) does not automatically trigger a total rating and the 1990 BVA decision later did consider it. The BVA's failure to note Fugo's attempt to raise the CUE claim was error but deemed harmless because the claim was not reasonably raised according to the established standard.
Analysis:
This case establishes a high threshold for overturning final agency decisions through a clear and unmistakable error (CUE) claim. By requiring specificity and a "manifestly different" outcome, the court reinforces the finality of administrative adjudications, preventing them from being endlessly relitigated based on general disagreements over evidence weighing or procedural complaints. This approach aims to preserve judicial resources and ensure that only truly egregious, undeniable errors warrant collateral attacks on past decisions, setting a strong precedent for future CUE claims within the VA system.
