Clear and Unmistakable Error (CUE)

What is CUE?

The BVA indicates that, "Clear and

unmistakable error is a very specific and

rare kind of error. It is the kind of error,

of fact or of law, 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. Generally, either the correct

facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied."

 

The U.S. Court of Appeals for Veterans Claims provides further guidance when they indicated that CUE in a prior decision is “not being reopened … [Rather] [i]t is being revised to conform to the ‘true’ state of the facts or the law that existed at the time of the original adjudication.”

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Effective Dates for CUE:

When a veteran argues for a CUE claim, he or she is arguing that a prior final decision should be reverse or revised to conform to the true state of the facts or the law that existed at at the time of the original adjudication. 

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A veteran who prevails on a CUE claim obtains the effective date that would have been given to the previously denied claim, even if the denial occurred years prior. 

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How to Win a CUE Claim:

To win a CUE claim, the veteran must establish three elements:

1. Either the facts known at the time of the decision being attacked on the basis for
   CUE were not before the adjudicator or the law then in effect was
   incorrectly applied; 

2. An error occurred based on the record and the law that existed at the time; and

3. Had the error not been made, the outcome would have been “manifestly different.”

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Not a Harmless Error

To prevail on a CUE claim, the error must not be harmless. For example, if the veteran would win on a CUE argument for an in-service event for service connection, but the record at the time did not demonstrate a current disability, then the VA or BVA will deem the error harmless. 

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Examples of Cue Claims:

1. Failing to “give a sympathetic reading to the veteran’s filings by ‘determining all potential
   claims raised by the evidence, applying all relevant laws and regulations,

2. Failing to properly apply the VA Schedule of Rating Disabilities,

3. Failing to correctly apply 38 C.F.R. § 3.303(b), which establishes a presumption of service connection for chronic diseases diagnosed in service,

4. Failing to correctly apply the regulation governing conditions that existed prior to service, 

5. Failing to properly apply the correct statute, or

6. With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an AOJ's failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error, if such failure affected the outcome of the claim.

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What are not CUE Claims:

1. ​A medical diagnosis relied upon in a VA denial was incorrect in light of a medical
   diagnosis rendered after the VA denial,

2. Any argument based on a failure to fulfill the duty to assist,

3. A disagreement as to how the facts were weighed or evaluated by the VA, and 

4. Any argument based on a change in the prospective interpretation of a statute or regulation by the Agency occurring after the VA decision

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Specific Requirements for CUE:

• Where to File The CUE Claim is Important - It is important to determine where to file the CUE claim. If the decision was never appealed and became final at the regional office, the veteran must file the CUE claim with that specific regional office. However, if the decision was appealed to the BVA, then the veteran must file the CUE claim with the BVA. A veteran cannot typically raise CUE for the first time at the U.S. Court of Appeals for Veterans claims. If you file in the wrong entity, you may waste time and be told to start over before the correct agency. 

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• You Must Be Specific - The Veteran must raise the issue of CUE with specificity as to when and how the error occurred. The argument for CUE must only use the fact and the case law as it exited at the time. 

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• You Can Only Allege CUE Once - If you do not detail the issues, facts, and basis for relief properly you will not be able to argue it again. Contact me today for a free case evaluation to make sure that you are arguing CUE correctly and so that you do not forego years of retroactive benefits.

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