References: For more information on CUEs based on VA’s constructive notice of medical records, see , and correcting errors in a rating decision, see M21-1, Part III, Subpart iv, 7.B.3. f. Applying the Benefit of the Doubt Under 38 U.S.C. 5107(b) The benefit of the doubt under is not applicable to a CUE determination since an error either undebatably exists, or there was no error within the meaning of . Reference: For more information on applying the benefit of the doubt under , see , 3 Vet.App. 310 (1992). g. Approval of Ratings Prepared 38 CFR 3.105(a) All rating decisions prepared under require the approval of the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM), or designee at the Coach level or higher. Ratings prepared by DROs require the approval of the VSCM, PMCM, or Assistant VSCM or PMCM if they address severance of SC, or a reduction in evaluation of a service-connected (SC) disability(ies). Exception: Approval of the VSCM, PMCM, or designee is not necessary if the rating decision is the result of a BVA or CAVC decision. h. Preparing a CUE Decision Use the table below to prepare a CUE decision. If… And… Then… a DRO finds a CUE on a prior decision prepares a draft decision that proposes on the basis of the CUE to reduce an SC evaluation, or sever SC for a disability the VSCM or PMCM agrees the DRO finalizes and signs the decision, and the VSCM or PMCM (or designee) signs the decision. a DRO a CUE on a prior decision the VSCM or PMCM does not agree the VSCM or PMCM documents his/her disagreement on VA Form 21-0961, Rating
Review of a CUE Allegation Use the table below to determine who has jurisdiction to review an allegation for a CUE determination, and how to notify the claimant. If … Then the RO … And the Veterans Service Representative (VSR) or RVSR … a decision has been affirmed by BVA does not have jurisdiction to review the claim for a CUE determination Rationale: The RO does not have jurisdiction to consider a of CUE in a decision that has been subsumed by a BVA decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that is desired. the decision was not appealed, but a reopened claim was followed by a BVA affirmance does not have jurisdiction to review the claim for a CUE determination Rationale: The General Counsel has concluded that the RO does not have jurisdiction to consider a CUE where BVA has reviewed the entire record of the following reopening, and denied the benefits previously denied in the unappealed decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that level is desired. Note: All SOCs for appeals in which the issue on appeal involves a prior unappealed RO decision, followed by a claim to reopen the claim that was decided by BVA, should contain a citation to . the decision was not appealed, and does have jurisdiction to review the claim for a CUE determination reviews the unappealed decision for CUE.