If you’ve received a VA decision that doesn’t seem right, you may be wondering whether there’s a way to fix it. In some situations, the VA’s mistake may qualify as a Clear and Unmistakable Error, often called a CUE. If a Clear and Unmistakable Error is found, it can result in a corrected decision and potentially years of back pay.
You served your country, and you deserve every benefit you’ve earned. When the VA makes a clear mistake, it can cost you compensation for months or even years. A successful Clear and Unmistakable Error claim can help correct that mistake and recover the benefits you should have received from the start.
At VetLaw, we help veterans navigate complex VA disability issues every day. Our team understands the challenges veterans face when dealing with the VA, and we’re committed to fighting for the benefits you’ve earned through your service and sacrifice. If you believe a past VA decision was clearly wrong, we’re here to review your case, explain your options, and advocate on your behalf.
What Is a Clear and Unmistakable Error?
A Clear and Unmistakable Error is a specific type of mistake made by the VA in a final decision. The error must be obvious, and it must be clear that the outcome would have been different if the mistake had not occurred.
A Clear and Unmistakable Error is more than a disagreement with the VA’s decision. It is a mistake that should not have happened based on the facts and laws that existed when the decision was made.
Because CUE claims challenge final decisions, they are different from standard appeals. Instead of arguing that the VA made the wrong judgment call, you are arguing that the VA made a clear legal or factual error.
When Does an Error Qualify as a CUE?
Not every VA mistake qualifies as a Clear and Unmistakable Error. Generally, a CUE exists when:
- The VA failed to consider the correct facts that were already in the record.
- The VA incorrectly applied the law that was in effect at the time.
- The error is obvious and not open to debate.
- The decision would have been different if the error had not been made.
Even if the VA made a mistake, it may not qualify as a CUE unless that mistake directly affected the outcome of the claim.
Examples of Potential Clear and Unmistakable Errors
Every case is different, but there are several situations that may support a CUE claim, such as:
The VA Ignored Evidence That Was Already in the File
One common example involves service records or medical records that were already part of the veteran’s file when the decision was made.
For example, the VA may deny service connection because it claims there is no evidence of an in-service injury. If service treatment records already in the file clearly documented that injury, the denial may have been based on a clear factual error.
The VA Applied the Wrong Law
The VA must follow the laws and regulations that are in effect when it makes a decision.
If the VA uses the wrong legal standard or incorrectly applies a regulation, that mistake could potentially qualify as a CUE.
For example, if the evidence met the requirements for a particular disability rating under the regulations in effect at the time, but the VA failed to apply those regulations correctly, the rating decision may be subject to revision.
The VA Assigned the Wrong Effective Date
Effective dates determine when VA benefits begin. If the VA clearly misapplied the law governing effective dates and the mistake resulted in reduced benefits, a veteran may be able to challenge the decision through a CUE claim.
Correcting this type of error can sometimes result in significant retroactive compensation.
What Does Not Count as a Clear and Unmistakable Error?
Many veterans believe the VA made the wrong decision in their case. Unfortunately, not every bad decision qualifies as a CUE.
Disagreeing With How the VA Evaluated the Evidence
The VA often has to weigh different pieces of evidence when making a decision. Even if you believe the VA gave too much weight to one medical opinion or not enough weight to another, that disagreement alone usually does not establish a Clear and Unmistakable Error.
New Evidence
A CUE claim is based only on the evidence that existed when the original decision was made.
If you later obtain new medical records, opinions, or other evidence, that information generally cannot be used to prove a CUE.
New evidence may support a supplemental claim or another type of appeal, but it usually does not establish a Clear and Unmistakable Error.
Changes in VA Law
The VA evaluates a CUE claim using the laws and regulations that existed when the original decision was issued. If the law changed years later, that change does not automatically mean the earlier decision contained a CUE.
Why Are CUE Claims Important?
A successful CUE claim can have a major impact on your benefits. When the VA finds a Clear and Unmistakable Error, it corrects the earlier decision as if the mistake never happened. This can lead to an earlier effective date and substantial back pay.
In some cases, veterans receive retroactive benefits going back many years because a prior decision is revised.
How Do You File a CUE Claim?
Filing a Clear and Unmistakable Error claim requires more than simply telling the VA that it made a mistake. You must identify the specific decision that contains the error and explain exactly why the decision was clearly wrong based on the facts and laws that existed at the time.
Because CUE claims are held to a very high standard, it is often a good idea to work with an attorney when evaluating whether a prior VA decision may qualify for review.
An experienced VA disability attorney can:
- Review prior VA decisions for potential legal or factual errors
- Determine whether the mistake meets the strict requirements for a Clear and Unmistakable Error
- Identify the specific evidence and regulations that were overlooked or misapplied
- Prepare a detailed CUE motion that clearly explains why the decision should be revised
- Advocate for the earliest possible effective date and any retroactive benefits that may be owed
Not every VA mistake qualifies as a CUE, which is why a careful review of your claim history is often an important first step. A knowledgeable attorney can help you understand your options and determine whether pursuing a CUE claim is appropriate for your situation.
Talk to a VA Disability Lawyer for FREE
At VetLaw, we know how much is at stake when a VA mistake affects your benefits. Founded by a veteran and staffed by VA-accredited attorneys, our firm is dedicated exclusively to helping veterans navigate the VA disability system.
If you believe the VA made an obvious mistake in a past decision, the team at VetLaw can review your case and help determine whether a CUE claim may be an option.
Contact VetLaw today online or at (855) 905-1735 for a FREE case evaluation. We help veterans in all 50 states.
