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Can a 100% P&T Rating Be Set Aside Under CUE?

Recently, I have seen posts in online forums from several veterans with 100% P&T ratings from the DVA who have asked if these ratings can be set aside under a Clear and Unmistakable Error (“CUE”) theory if they begin working. My short answer- no.  Here is why- under 38 C.F.R. § 3.105(a), the VA must reverse or amend a prior decision “[w]here evidence establishes [CUE]. ” The United States Court of Appeals for Veterans Claims (Court) defines a determination of CUE in a prior adjudication to mean that: (1) “[e]ither the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied,” (2) the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made,” and (3) a “determination that there was [CUE] must be based on the record and the law that existed at the time of the prior … decision.”   See Russell v. Principi, 3 Vet. App. 310, 313-14 (1992).  So, unless one of these factors applied at the time of the original decision, the veteran will not be at risk of having his or her rating reevaluated due to subsequent improvement in the underlying conditions as the agency has already made a conscious decision not to reevaluate the veteran again.  End of story, with the rare exception of cases involving fraud.


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