What is a Clear and Unmistakable Error (“CUE”) in VA Law?
A Clear and Unmistakable Error (CUE) is a special and rare type of error. It involves a situation where the correct facts, as known at time, were not before the VA. Or the application of the law and regulations in effect at the time of the VA’s decision was incorrect.
Absent a showing of CUE, the court may not reverse or revise a decision that has become final. A request for revision of a decision based on CUE is an exception to the rule of finality. Veterans can file at any time – even years or decades – after the the court decided the original claim.
Despite the way they sound, CUE claims are hardly ever straightforward. Since the VA has no duty to assist Veterans in this area, it is very difficult to prevail on such a claim without a good VA disability attorney at your side.
All successful CUE claims have four basic elements, which are outlined below.
That final decision must come from a Veterans Administration Regional Office (VARO), or the Board of Veterans Appeals (BVA). Final decisions from the CAVC are not subject to CUE review. Since the Court of Appeals for Veterans Affairs is a federal court, only federal civil procedure applies in the cases it considers.
There is also a difference between a final decision and a preliminary decision. For example, Compensation and Pension doctors often make errors during their exams. Perhaps, as mentioned, they refer to the wrong disability rating chart. These errors are not Clear and Unmistakable Errors as they are not final decisions.
Correct Facts Not Used / Incorrect Application
A successful CUE claim must establish that either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied.
The error must be “undebatable”. In other words, the alleged error must be unquestionable, not merely a disagreement as to how evidence was weighed or evaluated.
This final prong is probably the most difficult one to establish. A successful CUE claim must show that the mistake was so significant that it changed the outcome. In short, one must show that the error prevented the Veteran from obtaining benefits to which he or she would have otherwise been entitled.
Partner with Experienced Attorneys
In a few limited cases, CUE claims can quickly reverse plain errors. For a free consultation with an experienced Veterans disability lawyer in San Diego, contact Cameron Firm, PC at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.
This article is for educational and marketing purposes only. It does not create an attorney-client relationship.