Process and Timeline
The Veteran Appeals Improvement and Modernization Act of 2017 (AMA) was created to streamline the process for veterans who want to challenge a decision on their VA disability claim. There are multiple lanes a veteran can pursue to improve their rating upon initial decisions, one of which is based on clear and unmistakable error.
What is Clear and Unmistakable Error?
Clear and unmistakable error, also referred to as CUE, refers to a mistake made during a VA’s decision. More specifically, CUE occurs when there was a piece (or pieces) of information that wasn’t properly examined which would have changed the decision.
The U.S. Court of Appeals for Veterans Claims (CAVC) defines CUE through three main characteristics. CUE will be established if the appellant can show the following:
First, that the facts known at the time of the decision in question were not before the adjudicator, or that the law in effect at the time was incorrectly applied.
Second, that an error was made based on the records and laws that existed at the time of the decision.
Third, that if the error had not occurred, it would have “…manifestly changed the outcome at the time it was made.”
A VA CUE must be undebatable, not just a disagreement with the decision maker. This means that when presented with the facts, an individual in their right mind would not logically be able to refute the request.
VA CUE Claims
The term “CUE” is also used to refer to “a request for revision based on clear and unmistakable error.” While these requests are often called “CUE claims,” they are not technically claims by themselves — they are used to support claims and/or appeals. CUE requests provide a procedural route allowing veterans to challenge final VA decisions. To be successful, each request must meet specific demands, such as the “pleading” requirement.
This requirement refers to the necessity for a veteran to be exact about when and how an incident occurred. The veteran must prove, without the VA’s help, that the error is undeniable. By stating the laws at the time of the decision, how they were broken/ignored, and how that mistake affected the original decision.
To challenge a prior VA decision for clear and unmistakable error, a veteran must also prove the error was so impactful, that had it not occurred the outcome would’ve been “manifestly different.” If the VA is going to revert a final decision, it must be for a legitimate reason.
What is a VA CUE Used for?
The clear and unmistakable error VA regulation is used to rectify important mistakes that may have resulted in a veteran not receiving the benefits they deserve. While VA CUE requests are typically used by veterans, clear and unmistakable error can also be cited by the VA to reduce benefits or deny a previously approved decision.
When a veteran files for an HLR or supplemental claim, the original ruling will only be overturned if the new decision is favorable for the veteran. If the review finds out that perhaps the veteran should’ve received less or no compensation, the new decision will not be implemented. The only time that a veteran can receive a secondary decision which is unfavorable is on the basis of CUE. If the VA notices they made an indisputable mistake in the prior decision, they can cite that as a reason to reduce or retract a veteran’s benefits.
Who is Eligible to File a VA CUE?
Typically, any time a VA Regional Office (RO) responds to a veteran’s disability claim the decision can be subject to a CUE request. If a veteran has enough evidence to prove that a mistake was made in the case, they are eligible to file a CUE. There is also no time limit for filing a VA CUE request. Even if a decision was made decades ago, if it was never appealed the veteran could challenge it today without consequence. However, the effective date (the day benefits will be retroactively paid from if the request is successful) will be the day the appeal claim is made, not the date of the original decision as with other appeal tactics such as HLR or supplemental claims.
An individual can file and re-file their CUE request as many times as they want if challenging a VA rating decision. There is no limit against rating decisions. However, if the veteran is attempting to appeal a BVA decision, all CUEs must be filed simultaneously and there is no opportunity for a second chance. An improper motion at the Board level will be dismissed with prejudice, preventing the veteran from filing again and barring any further efforts to prove the Board made a mistake.
A veteran is also barred from filing a VA CUE request if the decision was appealed to the Court of Appeals for Veterans Claims (CAVC) or if a BVA decision is still new enough that it could be sent to the CAVC. Appealing to the CAVC is sometimes viewed as a better option because CUEs can be difficult to prove.
Examples of Successful CUEs
CUEs are requested for a multitude of reasons, here are some examples that occur with some frequency:
The VA fails to acknowledge the presumption of soundness. This states that unless otherwise noted, it should be assumed that a veteran entered the service with no disabilities on record. Implying that any newly acquired disabilities are likely service connected.
The VA fails to apply the herbicide presumption to brown water veterans. Brown water veterans are those who served on inland waterways during the Vietnam War and were likely exposed to Agent Orange.
The VA reduces a veteran’s disability rating before making the required findings and therefore decreases the veteran’s benefits without legitimate reason.
The VA fails to recognize that a chronic disability which manifested after the veteran’s service did so within an established time period, causing it to be service connected.
In each instance, the VA made an error that clearly ignored a law or rule that was in effect during that time.
Examples of Unsuccessful CUEs
There are also plenty of denied CUE requests in which the situation does not meet the requirements set for case reviewal, such as:
A deferred rating with no final decision from the VA
A proposed rating with no final decision from the VA
A case lost because the VA failed to help the veteran obtain documents
The VA can and will dismiss a motion for CUE if the request does not meet established VA standards or is too broad.
How Long Do VA CUE “Claims” Take?
Under the AMA, the VA’s goal for responding to appeals is roughly 125 days. Typically, for HLR and supplemental claims, the process is quicker. When done correctly CUE requests are straightforward and decisions can be made easier. However, the BVA can get overwhelmed with cases and specific ROs can experience difficulties with incomplete claims that increase wait times.