The A - Z Guide: Veterans VA Disability Benefits
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Clear and Unmistakable Error

The CUE Claim

Clear and Unmistakable Error; CUE

The general rule for VA benefits is that a “final decision” denying a claim cannot be changed at some later time.  A veteran can file a new claim for the same condition based on new evidence, but the effective date of any award will be the date that the new (“re-opened”) claim was filed, not the date of the earlier denied claim.  That is why it is so important to keep a claim alive as long as possible by appealing denials whenever allowed.

An exception to the final decision rule is when a “Clear and Unmistakable Error” (also known as a “CUE”) occurred in an earlier decision.  If a claimant can establish CUE, VA is required to award the benefit as if the denial had not occurred.  VA rules allow a claimant to file a CUE claim at any time after a denial, so successful CUE claims can result in a large award of years or even decades of retroactive benefit payments.

Because CUE can result in very large payments many veterans attempt to claim CUE.  However, VA has established very specific regulations for claiming and supporting a CUE claim.  The result is that many veterans file CUE claims that have little chance of success either because they do not understand what a CUE is or how to file a proper CUE claim.

Veterans considering a CUE claim must understand the following important items:

* The rules for filing a CUE claim are not the same as a benefits claim
* A claimant can only file one CUE claim for any decision (only get one shot)
* The VA “duty to assist” does not apply to a CUE claim (adversarial action)
* A CUE claim must identify the specific error in the earlier decision
* The error, if corrected, must compel a different outcome
* Corrected decision made based on the record and the law as it was at the time of the original decision

These factors make CUE claims very challenging and rarely granted.  

First of all, anyone considering filing a CUE claim needs to either use a representative with experience with CUE claims or do a lot of homework.  Unlike other VA benefits claims, a CUE claim can only be filed once.  If the claim is not filed correctly or does not meet the exact VA requirements, the opportunity for a CUE award will be lost forever.  This is no time to “wing it,” especially if there is significant money at stake.

The next consideration is whether there is really a CUE claim.  A common problem with CUE claims is that the claimed error is not a CUE.  A CUE claim is limited to two types of errors.  First, a CUE may exist if the correct facts, as they were known at the time of the decision were not before the Board or the regional office.  This could occur, for example, when a medical examination report or other evidence was not properly put in the claims file.  If such evidence is later found, it may provide the basis for a CUE.

The second legitimate basis for a CUE is if the law at the time of the decision was incorrectly applied.  A simple example of this type of CUE is receiving an award for a single gunshot wound, when the veteran has suffered two gunshot wounds.  In such a case, the CUE would be improperly applying the regulations and underpaying the veteran.

Veterans must understand that CUE is not a disagreement with the decision denying the original claim.  It is not enough to claim that VA did not weigh the evidence properly, ignored something in the claim file, failed to properly “assist” the veteran, or just got it wrong.  In general, any issue that could have been raised on appeal after the denial, but was not, is not a CUE.  Many, if not the majority of, CUE claims submitted to VA do not identify an error that is really a CUE.

If it appears that there may have been CUE, it is very important that a claim be carefully prepared.  VA regulations require that CUE claims contain detailed information, not just the general type of language allowed in a regular benefit claim.  The failure to specifically identify the error is another reason that many CUE claims are denied (and cannot be resubmitted).

A CUE claim must be in writing, state the claimant’s name, claims file number, and date of the decision which contained the CUE.  In addition, a CUE claim requires specific allegations that “set forth clearly and specifically” the alleged CUE.  This means that the claimant has to identify the specific law that was applied incorrectly or the specific fact or facts that were not properly considered.  Equally important, the claimant must also explain why the result would have been different if the proper law and facts were considered.  Claims containing only “non-specific allegations” will be dismissed.

This is another area where many CUE claims fall short and are rejected.  The claim must describe how and why the previous decision would have changed if the CUE had not occurred or was corrected.  A procedural mistake that would likely result in a remand or further development in a regular claim will not be a successful CUE claim.  The error must change the outcome from a denial to an award, not just result in some doubt about the denial.  Without this, the CUE claim will be denied.

To further complicate matters, a CUE claim must be considered under the facts and the law at the time of the earlier decision.  This means that only the medical examinations and other evidence that existed as of the date of the decision can be used in resolving the CUE claim.  The same for the rules, regulations, and other laws applicable to the claim – only the law at the time of the decision is used to resolve the CUE.  As a practical matter determining which facts existed at the time is usually not too difficult.  However, figuring out what law existed many years or decades in the past can be very difficult, even for an experienced attorney.

Finally, even if a proper CUE claim is submitted, it is very difficult to obtain an award.  The legal standard for an award is much more difficult than for a regular claim.  An error must be “clear and unmistakable” to win the claim.  The Veterans Court has described a CUE as “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 latter reviewers compels the conclusion, in which reasonable minds could not differ, that the result would have been manifestly different but for the error.”  This is a very tough standard.  There are not many cases where “reasonable minds” would all reach the same conclusion.  In other words, it is not easy to get a CUE award. 

CUE is a powerful tool that if properly used can correct really bad VA decisions.  However, the CUE process is much different and more difficult than the regular claims process.  Veterans who do not educate themselves or obtain properly experienced representation can easily get their CUE claim rejected because of some special rule or regulation.  This could be a very expensive mistake because you only get one shot at a CUE claim.