Clear and Unmistakable Error Claims
Veterans who believe that their claim was improperly denied by the VA may file a motion asking the VA to revise that decision based on clear and unmistakable error (CUE). Decisions by the Board of Veterans’ Appeals (BVA) or a VA Regional Office (RO) can both be challenged by CUE. A CUE error is one where the VA made an error in fact or law, and had the error not been made the decision would have been different.
CUE motions must be based on veteran’s record and the law at the time of the decision which allegedly contained the error.
Where Clear and Unmistakable Error Can Be Used
Arguments which can be made in a CUE motion include but are not limited to:
- Failure of the VA to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence.
- Failure of the VA to apply applicable regulations.
- Failure of the VA to properly apply the Schedule of Rating Disabilities.
- Incorrect application of a regulation or statute by the VA.
Where CUE Cannot Be Used
There are some legal arguments which the CUE regulations say are not CUE:
- An argument that a medical diagnosis relied upon in a denial was incorrect in light of a medical diagnosis rendered after the decision.
- An argument based on a failure of the VA to fulfill its duty to assist.
- A disagreement as to how the facts were weighed or evaluated by the VA.
- An argument based on change in the interpretation of a statute or regulation occurring after the decision.
The Effect of a CUE Decision
Where a veteran wins a CUE motion and it is determined that the original decision constituted clear and unmistakable error, that decision is nullified and the VA is directed to issue a new decision, based on the effective date of the original claim. This has the effect of getting an effective date that can go back many years.