CLEAR & UNMISTAKABLE ERROR (CUE)
Veterans can allege that the VA committed Clear and Unmistakable Error (CUE) in a final VA Regional Office or Board of Veterans’ Appeals decision at any time. CUE claims are difficult to win, but they can be a very powerful tool for veterans when successful because it reverses a prior, final decision and often results in substantial retroactive pay.
So, what is CUE?
As explained by the Court of Appeals for Veterans Claims, the essence of CUE is revising a final Regional Office or Board of Veterans’ Appeals decision to conform with the true state of facts or the law that existed at the time of the original adjudication. Russell v. Principi, 3 Vet. App. 310, 313 (1992).
Three Requirements to Win a CUE claim:
Either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied;
An error occurred based on the record and the law that existed at the time of that decision being attacked on the basis of CUE; and
If the VA had not made that error, the outcome would have been “manifestly different.”
Prinkey v. Shinseki, 753 F.3d 1375, 1377 (Fed. Cir. 2013).
Generally, either the facts in the veteran’s record were ignored or the law that was in place at that time was misapplied. In either instance, it must be absolutely clear to a reasonable person that the result would have been different if the error had not occurred. 38 C.F.R. Section 20.1403(a).
Examples of Clear and Unmistakable Error (CUE):
Reducing a rating without following the applicable law or regulations.
Failing to properly apply applicable law or regulations, including if the VA failed to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence and applying all relevant law and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).
Examples of Errors that are not Clear and Unmistakable:
Arguing that evidence not in a veteran’s VA claims file at the time the decision being challenged was made proves that the VA was wrong.
Arguing that the VA violated its duty to assist and a veteran’s claim would have been granted if the VA had complied with that duty.
If there was any negative evidence in the record at the time of the decision being challenged as CUE, a disagreement about how the VA weighed those facts will not constitute CUE.
If you think that the VA misapplied the law to your case or ignored obvious evidence in your VA Claims File that clearly and unarguably established entitlement to VA benefits, then you may be entitled to retroactive pay going back to the date that you filed your claim.
Hiring an attorney is the right move. Here’s why.
The Pleading Requirement. When a veteran alleges CUE in a prior Regional Office or Board of Veterans’ Appeals decision, it must be plead with specificity as to when and how the error occurred. Veterans need to cite the law that existed at the time of the decision and apply it to the facts. The argument must be persuasive enough to convince the VA that it is undeniable that the error occurred and that the outcome would otherwise have been manifestly different. The VA is not going to help with that.
Veterans can only challenge a final decision on the basis of CUE once. Unlike other VA claims that can be reopened time and time again, veterans can only challenge a final decision on the basis of Clear and Unmistakable Error once. Messing up can potentially cost a veteran years of retroactive pay.
Veterans also need to know where to file. If a VA Regional Office decision became final and was not appealed to the Board of Veterans’ Appeals, a CUE claim generally must be filed with the Regional Office that issued the final decision. However, if that Regional Office decision was appealed to the Board of Veterans’ Appeals and denied, then a veteran’s remedy lies with the Board of Veteran’s Appeals. In such instances, veterans must file a Motion for Revision on the Grounds of Clear and Unmistakable Error directly with the Board of Veterans’ Appeals. The Court of Appeals for Veterans Claims also cannot hear an allegation of CUE in the first instance. Filing a CUE claim with the wrong tribunal often causes significant additional delay because that tribunal will not have jurisdiction to hear your claim. In such instances, veterans will have waited in a long line only to be told that they need to start over at the back of a different line.
If you need help determining whether the VA committed CUE in your case, please contact me for a free claim evaluation.