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 or not a clear and unmistakable error exists 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 an accredited representative or claims agent is recommended.
Claims based upon CUE in a regional office 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.
ESTABLISHING A CUE
In order to establish CUE, the claimant must show that:
(1) either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator or the law then in effect was incorrectly applied
(2) an error 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.”
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.
A CUE must include exactly when and how the CUE occurred. It is not enough for a veteran to state simply that the RO was wrong. Drafting a detailed argument identifying the error is essential to prevailing in a CUE claim. It is essential to understand the intricacies of VA law and how to best present the relevant facts, law, and issues.
HOW TO SUBMIT A CUE
Submitting a CUE is the easiest part. You simply need to type it up on regular paper or use the VA Statement In Support of Claim form. After drafting your CUE you can mail or fax it in to the VA Evidence Intake Center just like submitting any other claim. We recommend faxing it in or sending it certified mail.
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.
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