According to Cornell Law School, “Clear and unmistakable error (CUE Claim) is a very specific and rare kind of error. It is the kind of error of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”
Generally speaking, in CUE claims the correct facts were not placed before the Board at the time of examination. Or, the statutory and regulatory provisions were incorrectly applied.
A CUE claim, or Motion for Revision, is a claim decision reversal that was made years ago, and the veteran can be awarded benefits back to when the claim was initially filed.
How to prove a CUE Claim
The CAVC (Court of Appeals for Veterans Claims) defines CUE in the following manner: In order to establish CUE, the appellant must show that:
1. the facts known at the time of the decision were not given to the adjudicator, or the law in effect at the time was incorrectly applied
2. an error occurred based on the record and the law that existed at the time
3. had the error not been made, the outcome would have been “manifestly different.”
Let’s break this down in layman terms; A Veteran has a claim denied due to, facts that were not known at the time of the decision or the law was misapplied. This finding has to be undebatable, meaning it is clearly written in the law books, and the VA did not use these statutes to determine the outcome of the claim, OR they did not use FACTS that applied to the claim to determine the decision and had it been implemented correctly the result would have been in the Veterans favor.
Something we at VA Claims Insider tell all of our Veterans who feel they are going to pursue a CUE Claim is to seek the advice of an attorney. These are not claims you will want to open by yourself. The VA has rigorous procedures when it comes to a Veteran challenging the decision of the VA. These should be used when all other avenues have been exhausted as a “last resort.” This is due to the fact the VA does not take them lightly, you are accusing them of being wrong, and if you win, they will have to pay out a considerable amount of “back pay” in some instances.
Here are the requirements you will want to have before seeking the advice of a lawyer;
Proof of the error in the “fact or law”; do your homework and have a very organized explanation of the “who’s, what’s, when’s and where’s” of the situation.
The error is undebatable; give specific examples of other case law to prove how the outcome should have been for your claim.
Proof the outcome would have been substantially different had they not made a mistake (loss of benefits); be specific and explain the hardships this has caused.
When should you file a CUE claim?
This should be done whenever all other appeal options have been exhausted. A CUE claim should not be pursued lightly. Before you pursue this option, reach out to us to see if we can help you file an appeal for your claim. CUE claims meet very specific requirements. If the one-year appeal process timeframe is not yet over, then appeal is the correct direction to go.
Compose the revision, clearly state the error, the law or facts that apply, show how the decision has affected the outcome of your benefits.
It is solely on you to prove the facts of the error; they will not do any research on the information for you.
How to file a CUE claim
Once you have all your necessary evidence gathered for your claim, you will contact either the Regional Office or Board. The difference here is who awarded the claim. Once you have this information, you will need to be extremely specific in detailing that they have a “pleading requirement.” The reason for this is that the veteran must be specific in covering these four topics to win.
- You must be using a final decision from the Board or Regional office and it could not have been appealed
- During the decision, the reviewer must now have had the correct facts, or they were incorrectly applied
- The error made must be unquestionable and not able to be argued
- The veteran must prove that because of this error, it cost him/her their benefits
Once you compose the revision, clearly state: the error, facts that apply to the case, and explain how the decision has affected you and the outcome of your benefits.
This process is dependent on you providing the facts and evidence needed for the case. The board or regional office will not do any research on the information provided.
Once the request is mailed to you, you have 120 days to file a Notice of Appeal with the court.
Example CUE case
When asking for a reversal of a VA decision, it is essential to point out the laws that apply and how the VA Adjudicators failed to use them. Here is actual case law as an example, Citation Nr: 0506205, in Waco, TX, 2015. It is not the case itself. I would like you to review the information needed to consider a CUE revision. Here is a summary of the case, however the entire suit needs to be read to understand fully:
THE ISSUE: Entitlement to an effective date earlier than April 13, 1998, for the grant of service connection for bilateral hearing loss, to include the issue of whether there was a clear and unmistakable error (CUE) in the September 1989 rating the decision that previously denied this claim.
THE SUMMARY OF THE REQUEST: This Veteran has proof that the VA Adjudicators had overlooked evidence at the time of the claim decision and it was not applied, resulting in a denial, so the plaintiff is asking for the effective date be restored to the original claim and back pay to the time of the first consideration of the claim.
THE ORDER: As the September 1989 rating decision was clearly and unmistakably erroneous, service connection is hereby granted for the veteran’s bilateral hearing loss as of June 26, 1989, subject to the governing regulations about the payment of monetary benefits.
To read about what is needed from a CUE claim in depth, visit the VA’s example, here.
When and if you decide to challenge a VA decision it is wise to have all of these things in place, and there is no error on your part, the VA doesn’t take being challenged lightly and proving their error is vital. Seeking the assistance of an attorney is needed before proceeding, it is always good to get their opinion, even if you decide to proceed alone.
VA Claims Insider is NOT recommending any law firms, the information gathered was to help to assist with your decision and not to give any legal advice.
VA Claims Insider would be happy to look over your situation to ensure you have exhausted all other appeal options, and help with deciding the next step. To get started, visit us here. And to gain more information about VA Claims visit our blog, full of free information, here.