Understanding Clear and Unmistakable Error (CUE) in a VA Decision

This past week, I had the pleasure of receiving a call from one of my clients who had received a favorable decision from the VA in a CUE case.  The VA had agreed with our argument that a decision that was many years old (and more or less buried in the client’s file) contained CUE.  The VA was going to correct the old decision and pay the veteran back to the date of the corrected decision.  Obviously, this was a major victory!

What is CUE?

Having worked as a advocate clerk for a judge at the Veterans Court for many years before joining Veterans Help Group , it has long been apparent to me that many people struggle to understand the concept of CUE.  CUE is short for “clear and unmistakable error.”  Basically, when a veteran brings a “CUE claim,” he is asking the VA to revise a decision that is final (meaning, the time to appeal the decision has passed).  Any decision, no matter how old, is subject to at least one CUE challenge.  If the VA agrees that the old decision contains CUE, it will pay the veteran back to the date of that old decision.

Generally speaking, to win a CUE case, the veteran must show that a prior decision contains some kind of a mistake, and it must be undebatable that if this particular mistake had not been made, the veteran would have been awarded the benefit he sought.  It seems like this would be very straightforward, right?  Well, it’s not.  In my opinion, CUE cases as a whole are the most difficult cases in veterans advocate.  CUE can be difficult to spot, and it can be difficult to convince VA adjudicators that there was a mistake made in the prior decision and that if this mistake had not been made, the veteran would have been awarded his benefits.  Simply put, proving CUE usually requires doing a lot of convincing.

There are several other twists that make CUE cases complicated.  In a CUE case, the veteran must base his arguments on evidence that was in the record (or should have been in the record, see below) at the time of the old decision.  That means that, if a veteran was denied service connection for tinnitus in 1990 because there was no medical evidence linking the tinnitus to service, and in 2010 he gets a medical opinion that links his tinnitus to service, he can’t use that 2010 medical opinion to argue that the 1990 decision contained CUE (although he could use it to “reopen” his case, although that’s a subject for another blog).  The veteran must basically put himself in the shoes of the rater who made the decision in 1990.  He can only look at what that rater was looking at, and that rater didn’t have the 2010 medical opinion.  Similarly, the veteran must rest his CUE arguments on the advocate that existed at the time of the prior decision.  This requires, of course, knowing what the advocate was at the time of the prior decision!  There are also certain types of mistakes that can never amount to CUE.  For example, let’s say the VA should have given the veteran a medical examination before it made its old decision–a duty to assist violation.  This can never be CUE.  Why not?  Because there is no guarantee that the examination would have been favorable to the veteran.  In other words, it isn’t certain that, had the veteran been given the medical examination, he would have won his case.  (Remember what I said above about how the mistake must have changed the outcome of the case?)

I had the opportunity to give a presentation to the National Organization of Veterans Advocates about CUE last fall, and in doing my research for this presentation it was enlightening to see all the tiny exceptions and other pitfalls that make these cases so challenging (for example, the veteran may be able to base a CUE argument on evidence that wasn’t in the record at the time of the old decision, if the evidence was in the “constructive possession” of VA… essentially meaning within VA’s control).  There are so many ins and outs, which truth be told is illustrative of veterans advocate in general.  But when I get a client’s claims file I always make certain to check old decisions for CUE, because if you know what you’re looking for these cases can lead to a tremendous benefit for the veteran.

Was There an Error in the VA Decision Denying Your Disability Benefits?

Whether there was an error in your case — and how to prove it — requires careful review of the record of your disability and the VA’s decision, itself. If you suspect an error, we welcome you to contact our team or complete our free online case evaluation form. Veterans Help Group believes strongly in ensuring that each man and woman who served our country receives the benefits to which he or she is entitled — a mistake should not deprive you the assistance you need.

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