What Is Clear And Unmistakable Error In A VA Decision?

Sometimes the VA gets a decision wrong — not just in a debatable way, but in a way that clearly contradicts the evidence or the law. When that happens, veterans may be able to challenge the decision through a Clear and Unmistakable Error claim.

Below, our friends from Gregory M. Rada, Attorney at Law discuss what CUE means and how it can change the outcome of an old VA decision.

Defining Clear And Unmistakable Error

A CUE exists when the correct facts, as they were known at the time, were not before the adjudicator, or when the law was incorrectly applied. The error must be the type that would have changed the outcome of the decision — it can’t be a minor or harmless mistake. CUE is a high legal standard, and not every disagreement with a past decision qualifies.

Why CUE Claims Matter

The primary advantage of a successful CUE claim is the effective date. If the VA agrees that a prior decision contained CUE, the benefits can be retroactively adjusted to the date of the original flawed decision. This can result in significant back pay going back years or even decades.

Examples Of Potential CUE

CUE might exist if the VA ignored a favorable medical opinion that was clearly in the record, applied the wrong diagnostic code when rating a condition, or failed to consider a regulation that was in effect at the time of the decision. The key is that the error must have been undebatable based on the evidence and law available when the decision was made.

The Difficulty Of CUE Claims

CUE claims are among the hardest to win in the VA system. The veteran bears the burden of proof, and the VA applies a strict standard. Vague allegations or simple disagreements with how evidence was weighed will not succeed. These claims require precise legal arguments pointing to specific errors.

Pursuing A CUE Claim

Because of the complexity and high standard involved, veterans considering a CUE challenge should strongly consider working with an attorney. An experienced veterans disability lawyer can evaluate whether the original decision contains an actionable error and present the argument effectively.