Clear and Unmistakable Error (CUE) is a highly specialized and rare type of error that when brought to the attention of later reviewers, shows that the outcome would have been dramatically different if not for the error. This could have dramatically changed the outcome of your claim as well as the monthly benefits you receive.
A request for revision based on clear and unmistakable error is a method of appealing the VA’s final judgment. A CUE-based request for revision is not a claim in and of itself. It’s a legal way for a veteran to appeal a final VA decision, and each request must fulfill extremely strict criteria to be approved. CUEs are filed with the Board of Veterans Appeals or the Regional Office, whomever made the incorrect decision. These are known as pleading requirements, and they include the following items:
- Information not presented to the adjudicator at the time of the decision, or law was incorrectly applied.
- The error is undebatable. (Undeniable evidence to prove the error)
- The outcome could have been different if the error was not made.
Importantly, it is not CUE if a Veteran disagrees with how the facts were weighed or evaluated in the decision. Furthermore, the CUE must be founded on the facts and law in effect at the time the decision was made. This means that a Veteran cannot use new evidence (evidence that was not in the record) to challenge a previous decision based on CUE.
What to Include with Your CUE?
Revision requests based on CUE must be very detailed, and it is critical to include the following information.
- Explain why you think the outcome would have been different if the CUE hadn’t been implemented.
- Identify the decision you are contending was based on CUE
- Analyze why the final VA decision contains a CUE
Claims based on Clear and Unmistakable Error can be submitted at any time following the Rating judgment, even decades later. CUE claims are processed in the same way as other claims. This means that a CUE claim refusal can be appealed first to the BVA, then to The Court of Appeals for Veterans Claims. When presenting a claim for CUE, there is a “pleading” requirement.
What Constitutes Clear and Unmistakable Error?
To establish CUE, the appellant must show
- The Facts known at the time of the decision were incorrectly applied
- an error occurred based on the record and the law that existed at the time
- The outcome would have been “manifestly different” if the error had not been made.
Before filing a CUE claim, check to see whether a previous final rating decision is eligible to be attacked based upon CUE. Some final decisions cannot be challenged at a certain level because they have been “subsumed” by a later BVA decision. Typically, experienced senior appeals attorneys who understand the subtleties of the law and how to appropriately present the relevant facts, law, and concerns are most suited to make these arguments and conduct the necessary analysis.
Consult with Experienced Attorney Andrew P. Gross
An attorney can be very useful in conducting the necessary research and analysis to determine whether the decision can be appealed and, if so, where the appeal should be filed. If you’re struggling to appeal your decision or pursue a CUE claim It may help to contact the VA directly or contact a seasoned Veterans Advocacy lawyer at the Law Office of Andrew P. Gross.