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3.9. Clear And Unmistakable Error

VA law allows a veteran at any time to request that a decision be reviewed and corrected if VA committed a "clear and unmistakable error" (often called a "CUE"). This is a very powerful right. Unfortunately, it is also a widely misunderstood and misapplied right.

A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied. CUE exists when: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and (2) the error is "undebatable;" and (3) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.

When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.

Because a claim for CUE is a review of an already closed claim, special rules apply. First, the "duty to assist" does not apply. This means that VA does not help a claimant with a CUE claim. In addition, a CUE claim must contain specific and detailed statements regarding the error, how that error affected the decision, and why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example, a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.

A true CUE is not common and is a difficult claim to win. Further, a veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim that VA finds does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.

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