A Clear and Unmistakable Error (CUE) is a revision in a veteran’s benefits determination because of an obvious mistake. When used correctly, a VA Clear and Unmistakable Error filing can help you attain the benefits that you deserve.
For your consultation or to start your case, contact CUE VA claim lawyer Daren Sarphie today.
What is an Unmistakable Error (CUE) Claim?
A Clear and Unmistakable Error (CUE) is a process to change a decision in a veteran’s disability benefits claim. Generally, an unmistakable error is one that is not up for debate – when the mistake is pointed out, there’s no dispute that the correction is appropriate.
CUE filings are rare because they only apply in certain circumstances. While they are an unusual step in a veteran disability claim, a CUE filing can be won when it’s used properly. A CUE revision can result in payment of benefits and a favorable effective date.
Why Would Someone Pursue an Unmistakable Error (CUE) Claim?
An Unmistakable Error Claim (CUE) claim may be an efficient way to reverse an unfavorable decision in a veterans’ disability claim. There are multiple options to respond to a denial or incorrect award of benefits, and in some cases, a CUE is the best option.
What makes a CUE Claim Different From Other VA Appeals?
A CUE claim is different from other VA appeals in a number of ways:
- There is no appeal or new filing called a CUE. Rather, it is a motion or request that goes along with a specific claim or appeal.
- You can’t pursue a CUE filing if you simply disagree with the examiner’s judgment. Rather, you must point to a specific error.
- The claim is based on the facts at the time of the decision and whether the laws and regulations were applied correctly.
- The error must be obvious, and the result must be manifestly different from the error corrected.
- You have only one chance to request a CUE revision on a specific issue.
- There is no time limit. A CUE claim can be filed at any time.
How Can I Determine If I Have a Valid CUE Claim?
There are many presumptions and standards that may be incorrect and used as a basis for a CUE filing. When examining your case, if correcting an error would change the case result, you may have a valid CUE claim. A lawyer who understands the process in depth can thoroughly review your case and provide guidance.
What Are the Procedures for CUE Claims?
There is no specific form for a CUE claim. Instead, the request is submitted in writing and signed by the claimant or their representative. At the Board of Veterans Appeals, you file a Motion for Revision on the Grounds of Clear and Unmistakable Error. The Court of Appeals for Veterans Claims does not accept CUE filings.
Your CUE claim must be in writing and specific. It is not enough to submit paperwork asserting that the VA made an unmistakable error. You must explain what the error is and how it occurred. A CUE request that is too general will likely be denied.
The rules and procedures for CUE claims are found in 38 C.F.R. § 3.105(a).
Requirements to Win a CUE Claim
The requirements to win a CUE claim are:
- Asking for the CUE review in the correct way
- Explaining why the previous decision was incorrect
- Identifying the specific error of fact or law
- Showing how correcting the error compels a different conclusion but for the error
See Grover v. West, Jan 5, 1999, 12 Vet. App. 109 (1999), explaining that clear and unmistakable error is based on facts known but not before the adjudicator or error based on the record and the law at the time of the decision. The Grover claim discussed a foot injury and whether a CUE occurred in the rating decision following a medical examination.
Examples of Clear and Unmistakable Error (CUE)
- Failing to apply presumptions, for example, that certain disabilities are caused by military service
- Not applying the presumption of soundness; that the claimant was fit when they were examined and accepted for service
- Awarding a rating and benefits based on one injury when you have a combination of disabilities
- Disregarding material evidence or facts of record
- Applying an incorrect burden of proof or interpretation of law
- Considering factual errors in your personal, demographic, and service information when they affect the decision in your case
- Applying procedural errors that affect a substantive right
Examples of elements that are not considered clear and unmistakable error:
- Improper weighing of the evidence
- Generalities about failing to give due process
- The belief that the examiner failed to give the applicant the benefit of the doubt
- The VA’s failure to assist in getting records or scheduling examinations
- A new medical diagnosis or a change in diagnosis
- The request to submit new evidence
Hire a CUE Claim Attorney Today
Call Daren Sarphie, a CUE claim attorney to have an experienced professional help you with your CUE case.
