Clear and unmistakable error (referred to as CUE) involves a situation where the correct facts as they were known at the time were not before the VA or the law and regulations in effect at the time of the VA’s decision were not applied correctly. If you are challenging a prior VA decision on the grounds of clear and unmistakable error, you must do more than disagree with how VA evaluated the facts. The error must be of such a magnitude that had it not been made, it would have “manifestly changed the outcome at the time it was made.” The error must be undebatable such that reasonable minds could not disagree. Whether there was clear and unmistakable error can only be based on the laws that were in effect at the time of the VA’s decision. Also, you cannot prevail on a clear and unmistakable error claim based on the VA’s failure to assist you in getting records or scheduling examinations. These claims can be complex, and consulting legal counsel is recommended.
Claims for Revision of a Previous Final RO Decision Based upon Clear and Unmistakable Error (CUE)
Claims based upon CUE in a previous final RO decision are treated as original claims rather than as reopened claims. This gives successful claimants the advantage of receiving benefits based upon the earlier filing date of the original claim.
What are the procedures for CUE claims?
Claims based upon CUE can be filed at any time, even decades after the RO decision. CUE claims follow the same procedures as other claims. This means that the denial of a CUE claim can be appealed to the BVA and then to the CAVC.
There is a “pleading” requirement when presenting a claim for CUE. The issue of CUE must be set forth with specificity as to when and how the CUE occurred. It is not enough for a claimant to state simply that the RO was wrong. Setting forth a detailed argument identifying the error is essential to prevail in a CUE claim. Typically, these arguments and the necessary analysis are best performed by experienced veteran appeals attorneys who understand the intricacies of the law and how to best present the relevant facts, law, and issues.
What constitutes Clear and Unmistakable Error?
The CAVC defines CUE in the following manner:
[I]n order to establish CUE, the appellant must show that (1) either the facts known at the time of the decision being attacked on the basis for CUE were ot before the adjudicator or the law then in effect was incorrectly applied; (2) an eror occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been “manifestly different.”
Are there times when a Final RO Decision cannot be challenged?
Yes. Before filing a CUE claim, check to see whether a previous final RO decision is eligible to be attacked based upon CUE. Some final RO decisions cannot be challenged at the RO level because they have been “subsumed” by a later BVA decision. Again, an attorney can be especially helpful with the necessary investigation and analysis concerning whether the decision can be challenged and where that challenge must be filed.