A Clear and Unmistakable Error (CUE) in a VA decision is a very specific and rare type of mistake that can lead to a revision of a final, unappealable decision. To qualify as a CUE, the error must be so obvious that reasonable minds cannot disagree on its existence, and it must have been outcome-determinative, meaning the decision would have been different if the error hadn't occurred.

Under 38 CFR 3.105(a) a clear and unmistakable error (CUE) exists if all three of the following requirements are met:

• Either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied

• The error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and

• The determination must be based on the record and the law that existed at the time of the prior adjudication in question.

Notes:

• CUEs are undebatable. If it is not absolutely clear that a different outcome would have resulted, the error complained of cannot be clear and unmistakable.

• CUEs can be alleged by a claimant or discovered by the Department of Veterans Affairs (VA) during the adjudication of a claim.

• A factual error where the VA ignored or misinterpreted crucial evidence

• A misapplication of law or regulation that was clearly incorrect at the time of the decision

• A decision that was made without considering all relevant evidence

Note: These are just a few examples. Not all mistakes qualify as CUE. Each case is unique and must meet strict legal criteria.

• A disagreement with the VA's evaluation of evidence

• A new diagnosis or changed medical opinion

• The VA's failure to assist the veteran in obtaining evidence or scheduling examinations

Note: Simple disagreements with how the VA weighed evidence do not qualify. CUEs are rare and must meet strict legal standards.

• A CUE motion can be filed at any time—there’s no deadline, unlike appeals

• You must specify the exact decision and specific error being challenged

• File the motion in writing to the VA Regional Office or Board of Veterans’ Appeals (BVA), depending on where the error occurred

• If successful, a CUE claim can result in retroactive benefits back to the original effective date of the claim

• You can file on your own or with the help of a VA-accredited attorney or representative

CUE claims are complex and difficult to prove. Veterans should seek legal counsel from an attorney specializing in VA disability claims to help determine if a CUE exists and to assist with the claim.

At Greene & Marusak, we can help you review old decisions and determine whether the VA made a clear, outcome-altering error, and guide you through the filing process.

Give us a call at (844) 483-8737