A request for revision based on clear and unmistakable error (“CUE”) is a way to challenge a final decision from VA. A VA decision becomes final when a veteran does not file an appeal with the decision and the appeal deadline passes.
What is a CUE?
A request for revision based on CUE is not a claim. 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. These criteria are called pleading requirements and they are:
- 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 the 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 allege 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.
A CUE is not a type of appeal, meaning you cannot file a CUE instead of appealing a decision that is within the appeal period.
How Many CUEs Can I File?
The amount of CUEs you can file depends on the type of decision you are attacking. 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.
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.
CUEs can be a means of securing an earlier effective date for a grant of benefits. If a request for revision based on CUE is successful, a veteran could receive a grant of benefits all the way back to the date of the erroneous decision.
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.