Filing a claim for clear and unmistakable error (CUE) can be a powerful method to gain an earlier effective date for service connection of your VA disability benefits and a large backpay award. You can file it at any time and, if successful, it is effective for the date you would have been assigned if the previous final decision that contained CUE had been granted. 38 CFR 3.400(k).
At the same time, due to the difficulty of meeting the requirements for CUE, a CUE claim is usually filed as a claim of last resort.
In order to establish CUE, the appellant must demonstrate: (1) Either the facts known at the time of the decision being attacked on the basis for CUE were not before the adjudicator, or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been “manifestly different.” Bouton v. Peake, 23 Vet. App. 70, 71 (2008). In other words, it must be undebatable that the VA made an error based on unconvertible facts or a misapplication of the law that existed at the time.
Successful CUE Claims
The following are some examples of successful CUE claims:
- VA’s failure to give a sympathetic reading to the veteran’s filings by determining all potential claims raised by the evidence, applying all relevant current laws and regulations. Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004).
- VA’s failure to apply applicable, existing regulations or statute at that time. Look v. Derwinski, 2 Vet. App. 157, 163-64 (1992).
- VA’s failure to follow the regulations that govern whether an existing disability rating should be reduced, namely 38 C.F.R. §§ 3.343 and 3.344. Olson v. Brown, 5 Vet. App. at 434; Ternus v. Brown, 6 Vet. App. 370, 376 (1994); Sorakubo v. Principi, 16 Vet. App 120, 123-24 (2002).
- VA’s failure to properly apply the Schedule of Rating Disabilities. Myler v. Derwinski, 1 Vet. App. 571, 574-75 (1991).
- VA’s failure to apply 38 C.F.R. § 3.303(b) which establishes a presumption of service connection for chronic diseases diagnosed in service. Groves v. Peake, 524 F.3d 1306 (Fed. Cir. 2008).
- VA’s failure to apply the regulation that governs conditions that preexist service. Joyce v. West, 19Vet. App. 36 (2005); see also Sondel v. West, 13 Vet. App. 213 (1999) and Akins v. Derwinski, 1 Vet. App. 228 (1991).
Unsuccessful CUE Claims
Additionally, the following are examples of unsuccessful CUE claims:
- VA’s reliance on medical diagnosis in a BVA denial was incorrect in light of a medical diagnosis rendered after the BVA denial.
- VA’s failure to fulfill the duty to assist.
- BVA’s failure to properly weigh or evaluate the facts (weight of evidence).
- Change in the interpretation of a statute or regulation occurring after BVA decision.
Cannot Be Filed for CUE
Furthermore, the following are situations when CUE claims cannot be filed:
- Board of Veterans’ Appeals (BVA) decision appealed to the Court of Appeals for Veterans Claims (CAVC) or Federal Circuit cannot be filed for CUE. See Winsett v. Principi, 341 F.3d 1329 (Fed. Cir. 2003) cert. denied, 540 U.S. 991 (2003).
- If BVA has denied claim twice or more and last claim was appealed to CAVC without success, all of the BVA denials are immune from revision based on CUE. 38 C.F.R. s. 20.1400(b) (2012).
- If BVA decision is so recent that it is still subject to appeal to the CAVC, a CUE claim cannot be lodged until no longer subject to appeal before CAVC. See Gates v. Nicholson, 19 Vet. App. 376 (2005); May v. Nicholson, 19 Vet. App. 310, 320 (2005). (Appealing a case to the CAVC is usually a better option than filing a CUE claim because it is much more difficult to prevail on a CUE claim.)
Filing a CUE claim can result in an enormous backpay award; however, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. 38 C.F.R. § 21.1403(c) (2012). Further, filing CUE claims is a complicated process and could be an exercise in futility if you are not sure what you are doing.
Contact the veterans disability law experts at the Berry Law Firm at (888) 883-2483. We are trained in properly filing CUE claims and assisting veterans to get the disability benefits they lawfully deserve.