CUE for Incorrect 38 CFR 4.85 Table Application in Hearing Loss Rating

Direct Answer

Yes—if the 2016 rating decision applied the wrong table under 38 C.F.R. § 4.85 and the correct table, applied to the speech discrimination scores already of record at the time, would have yielded a compensable evaluation, this satisfies the elements of clear and unmistakable error (CUE) under 38 C.F.R. § 3.105(a)(1)(i). The misapplication of a specific regulatory table to documented audiometric data is precisely the type of regulatory error that § 3.105(a)(1)(i) identifies as a basis for CUE, provided the "manifestly different" outcome is absolutely clear.

Analysis

The CUE Standard Under § 3.105(a)(1)(i)

The governing regulation defines CUE as "a very specific and rare kind of error" that is "of fact or of law" and that "when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." [1]. The regulation further states: "If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable." [1].

Critically, the regulation identifies the two general categories of CUE:

> "Generally, either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied." [1].

The scenario described falls squarely within the second category—incorrect application of the regulatory provisions extant at the time of the 2016 decision.

Regulatory Misapplication: Wrong Table Under § 4.85

Hearing loss under DC 6100 is evaluated under the tables in 38 C.F.R. § 4.85, which directs raters to assign a designated Roman numeral (I through XI) based on a combination of puretone threshold averages and speech discrimination scores, with different tables applicable depending on whether the loss is unilateral or bilateral. The selection of the correct table is a mechanical, regulatory determination. If the rater used the wrong table (e.g., applied Table VI when Table VII was required, or vice versa), the resulting Roman numeral assignment—and consequently the percentage evaluation—would be incorrect as a matter of regulatory application.

Under § 3.105(a)(1)(i), this is an error "of law" because it involves incorrect application of the regulatory provisions in effect at the time of the decision. [1]. The regulation expressly contemplates this category of error. [1].

The "Manifestly Different" Requirement

The dispositive question is whether the error was outcome-determinative. The standard is stringent: the error must be one "to which reasonable minds could not differ" and that "the result would have been manifestly different but for the error." [1]. If the documented speech discrimination scores in the 2016 evidentiary record, when plugged into the correct table, yield a compensable evaluation (e.g., 10% or higher) rather than the noncompensable evaluation assigned, then the outcome was manifestly different. This is not a matter of judgment or weighing evidence—it is a mathematical application of regulatory tables to objective audiometric data. Where the inputs (puretone averages and speech discrimination scores) are undisputed in the record and the only error is selecting the wrong table, reasonable minds could not differ on the outcome.

Distinction From Factual Disputes or Judgment Calls

CUE cannot rest on disagreement with the weigh given to evidence or the exercise of rating judgment. [1]. But this scenario does not involve a judgment call. The tables in § 4.85 operate mechanically: given specific audiometric values, the table prescribes a specific Roman numeral and corresponding percentage. If the rater consulted the wrong table, the error is in the application of the regulatory framework, not in the weighing of evidence. As § 3.105(a)(1)(i) states, the error exists where "the statutory and regulatory provisions extant at the time were incorrectly applied." [1].

Finality and the Scope of Review

The 2016 decision is final. Under § 3.105(a)(1), "[f]inal decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error." [1]. However, "[a]t any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended." [1].

The CUE analysis is confined to the evidentiary record and the law as they existed at the time of the 2016 decision. [1]. The speech discrimination scores must therefore have been documented in the record as of the 2016 decision date. If the scores were of record and the correct table would have produced a compensable evaluation, the CUE elements are satisfied.

Key Points

• CUE requires more than ordinary error. The standard is "absolutely clear" that a different result would have ensued; "reasonable minds could not differ." [1].
• Regulatory misapplication is a recognized basis for CUE. Section 3.105(a)(1)(i) expressly identifies cases where "the statutory and regulatory provisions extant at the time were incorrectly applied" as a general category of CUE. [1].
• The error must be outcome-determinative. Applying the correct § 4.85 table to the documented speech discrimination scores must yield a compensable rating. If it does, the result was "manifestly different." [1].
• The analysis is confined to the record as of 2016. CUE is assessed based on "the evidentiary record and the law that existed at the time of the decision." [1]. The speech discrimination scores must have been in the record at that time.
• Relief upon reversal. Where CUE is established, "the prior decision will be reversed or amended" under § 3.105(a)(1), and the effective date provisions of § 3.105(a)(1)(ii) govern the retroactive award. [1].

If you would like, a follow-up could address the effective date that would attach under § 3.105(a)(1)(ii) upon reversal, or the interaction with accrued benefits under § 3.1000 if the veteran is deceased.