Clear and Unmistakable Error (CUE) Definition
A request for revision based on clear and unmistakable error (CUE) is a way to challenge a final decision from VA. A request for revision based on CUE is not a claim in and of itself. It is a procedural means for a veteran to attack a final VA decision and each request must meet very specific criteria in order to be successful. CUEs are filed with the Board of Veterans Appeals or the Regional Office, whichever made the decision in which contained an error. These criteria are called pleading requirements and include the following:
- The correct facts were not before the adjudicator at the time of the decision, or the law was incorrectly applied;
- The error is undebatable, meaning a reasonable person would not disagree that VA made an error; and
- The error was outcome determinative, meaning if the error had not been made, the outcome would have been manifestly different.
A veteran cannot contend a CUE if their disagreement is over how the facts were weighed or evaluated in the decision. Additionally, the CUE must be based on the facts and law that existed at the time of the decision. This means that veterans cannot allege a CUE with a decision based on a finding on the record after the final decision.
What to Include with Your CUE
Requests for revision based on CUE must be very specific and it is important to include the following:
- Identify the decision you are contending was based on CUE
- Analyze why the final VA decision contains a CUE
- Explain why you believe the outcome would have been different if the CUE had not been made
CUEs are very rare and difficult to argue. Veterans should consider consulting with a veterans advocate or attorney before they file their request for revision. Chisholm Chisholm & Kilpatrick LTD may be able to help you. Call 844-549-4500 for a free case evaluation with our office.
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