CUE “Claims”: How to challenge a final decision
CUE (pronounced like the letter ‘Q’) stands for clear and unmistakable error. Though they are often referred to as “CUE claims,” CUEs are not actually claims. Rather, CUE is used as shorthand for “a request for revision based on clear and unmistakable error.”
Essentially, CUEs are a way for a veteran to attack a final decision from the VA. In order to do this, the veteran must show that the decision in question contained a clear and unmistakable error in fact or error in law.
Why would a veteran file a CUE?
There is no time limit for filing a CUE. So even if a veteran’s claim was decided 20 years ago and was never appealed, filing a CUE could hypothetically allow the veteran to challenge that decision today.
CUEs can be used for claims decided at the VA Regional Office level, at the Board of Veterans Appeals (the Board) level.
NOTE: CUEs should NOT be filed instead of an appeal. If the appeal period is not yet over, submitting an appeal is the easier path because CUEs must meet very strict requirements (see below).
How would a veteran go about filing a CUE?
CUEs are filed with the Regional Office or the Board, whichever made the decision that the vet is challenging. Requests for revision based on CUE must be very clearly worded and detailed because they have what the Court calls a “pleading requirement.”
“Pleading requirement” is just a fancy way of saying that the person filing must thoroughly address each of the following four requirements (or they have no chance of winning):
- The decision being challenged must be a “final decision” from the Regional Office or the Board of Veterans Appeals that was never appealed,
- When the decision was made either the correct facts were not before the adjudicator or the regulatory or statutory provisions were incorrectly applied.
- The error is “undebatable” – that is, a reasonable person would not disagree that what the VA did was incorrect.
- The error must have made a difference in the outcome of the decision. In other words, one must show that the error cost the veteran his or her benefits.
CAUTION: CUE requests are tricky and you only have one chance
Veterans should be very careful with CUE requests because if they do not meet the pleading requirements, they may be barred from filing another one. The VA does not have a “duty to assist” veterans with CUE requests and leaves very little room for error or incompleteness. So it can really help to have someone who is knowledgeable about the law to help meet all the pleading requirements.
Are there certain types of cases that often succeed in CUE requests?
There are certain kinds of cases that may be more likely to win a CUE because VA adjudicators often make legal or factual errors in these types of cases. One such example is a final decision in which the VA reduced a veteran’s award from 100% to a lower percentage. Another example is a final decision in which the claimed disability was related to a wound from a shell fragment, gunshot, or IED.
What Should I Include In My CUE?
Requests for revision based on CUE must be very specific. There are a few main points that you should make if you are filing a CUE. The first is to identify the decision you are attacking based on CUE. You cannot say you are alleging a CUE and not note which decision you think contains the error.
The second is to analyze why the final VA decision contains a CUE. It is helpful to cite to specific evidence and laws when you are laying out your argument for CUE. It is also helpful to cite the specific legal or factual basis for your allegation.
The third key part of a CUE argument is to explain why you believe the outcome would have been different if the CUE had not been made. This usually involved explaining why, if the CUE did not happen, you would have otherwise been granted benefits. There must be proof that reasonable minds could not disagree that the result would have been manifest differently if it were not for the error.
How Many CUEs Can I File?
The amount of CUEs you can file depends on the type of decision you are contending. If you are filing a CUE with a rating decision, you can file multiple CUEs if you believe multiple errors were made. For a rating decision, each CUE is a separate filing.
If you are challenging a final decision from the Board of Veterans’ Appeals, meaning a final Board denial, all CUEs must be raised at the same time. If you believe multiple CUEs were made in a single decision, you must include them all in your initial filing. Once you have filed the request for revision, you cannot file another one based on another error. Additionally, if you are denied your request for revision with a final Board decision, you cannot submit another request for revision based on CUE. Basically, you only get one chance to file a CUE with a final Board decision.
How are effective dates decided for CUEs?
If you are successful in challenging a past decision based on CUE, the usual rules for effective dates do not apply. Instead, your effective date will be the date you submitted the claim that contained the clear and unmistakable error, meaning the VA will retroactively pay you all the benefits you would have received from that date.
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