Clear and Unmistakable Error

What Do My VA Disability Claim Results Mean?

When a disabled Veteran files a claim to receive disability compensation from your Department of Veterans Affairs regional office, their claim can have two outcomes – denial or approval. If a disability claim is stuck at a certain point in the decision-making process, the claim can also be deferred. However, all disability claims that reach a final decision are either approved or denied. An approved claim leads to a Veteran receiving a specific disability rating between 10% and 100%. This rating corresponds to a certain amount of monthly tax-free compensation that the Veteran can receive for their service-connected disability. If your claim is approved, it means the following:

  • The VA was able to find enough verifiable evidence to prove that you have a service-connected disability. In order to qualify for disability benefits, you need more than just a diagnosable physical or mental condition – the condition also needs to be service-connected. Service-connected disabilities are conditions that are directly linked to a Veteran’s time in the military.
  • The VA found your service-connected disability to be sufficiently disabling so as to warrant a disability score of at least 10%. If the VA rates your disability status below 10%, it means they view your disability as not severely debilitating enough to qualify you for benefits.
  • An approved claim also may indicate that you are suffering from multiple service-connected disabilities that together add up to a cumulative disability rating of at least 10%. The VA also recognizes secondary conditions – mental or physical problems caused or worsened by your service-connected disability – as grounds for a higher disability rating in some cases.

If the VA has denied your claim for disability benefits, it most likely means the following:

  • The VA may not have been able to find enough evidence to link your disability to your military service. In some cases, a Veteran will have a tough time getting service-connected based on the specific disability they have. Veterans with PTSD and victims of military sexual trauma often have a notoriously difficult time qualifying for service connection and disability benefits, along with sufferers of a wide variety of other mental and physical conditions.
  • The VA may have confirmed that your condition is service-connected, but they may not see it as severely disabling enough to grant you monthly compensation. The VA uses an in-house medical examination called the Compensation & Pension (C&P) Exam to determine the severity of a Veteran’s disability status. If the results of your C&P exam indicate that you are not severely disabled, you may be denied benefits, even if you have a service-connected disability.
  • Your claim might also be denied if you failed to meet the VA’s requirements when filing. The VA requires any Veteran who files a disability claim to submit certain documentation, such as military medical records, personnel records, and more. In addition, all Veterans who file claims must show up for a C&P exam. If you neglect any of these requirements, your claim is likely to be deferred at first, then potentially denied if too much time passes. To get a ruling for your claim, make sure to fulfill all of the VA’s requirements after you file.

Not Every VA Decision Is Accurate

When you file a VA disability claim, you may not always get a ruling that accurately reflects your condition. In fact, many Veterans with service-connected disabilities find their claims denied. This is because the VA does not always perfectly accurately assess a Veteran’s symptoms and the evidence they present in support of their claim. 

If you suspect that your claim has been wrongfully denied, you have the right to appeal the VA’s decision to deny your claim with the help of an attorney. In addition, you can also dispute the VA’s decision if they approve your claim but give you a disability rating that is too low.

What Is Clear And Unmistakable Error?

Many times, Veterans will have received a rating decision from the VA that is later overturned through an appeal. For example, a Veteran’s claim may be initially denied but then later be approved after the VA’s decision has been successfully appealed. In some cases, the VA allows decisions to be appealed decades after they are initially made. Normally, there is a limited window within which Veterans can appeal decisions regarding disability claims. However, if relevant service records are later associated with your claim, these records can make it possible to appeal a VA decision years after the initial ruling.

For a Veteran to qualify for their claim to be reopened years after a decision has been made, the VA will have to conclude that they made a clear and unmistakable error in regards to a Veteran’s claim. Many Veterans do not know what constitutes clear and unmistakable error on the part of the VA, and many more do not know how it can affect their eligibility for disability benefits.

If the VA is found to have been in clear and unmistakable error regarding a disability claim, a Veteran may be able to receive retroactive payment dating back to the effective date of the original claim, which might be decades before. Getting this type of compensation is not a guarantee, even with new and relevant evidence to present to the VA. However,  if it can be done, it can lead to a large back pay award for the Veteran.

When determining if there was a clear and unmistakable error in the decision-making process for a VA disability claim, there are some things that you need to consider:

  • Was the decision final? Occasionally, a claim will have been made, but the VA did not address it in a decision. That claim is still pending and is considered open. No kind of error needs to be found in this case. If a case is still open, there is no need for a Veteran to appeal a VA decision. Instead, the Veteran will need to work towards getting their claim approved and start getting disability benefits.
  • Why was the claim denied? It is important to gather as much evidence and information about the original denial as possible. If the claim was initially denied, an appeal may change the final VA’s decision. The board of veterans appeals or court of appeals for veterans claims can typically only be made a year after a VA decision is initially made. However, the presence of relevant documentation, such as service records, can overrule this time constraint.
  • What was the law at the time of the denial? Laws and regulations change, and you need to know the law at the time of the decision. In some cases, a Veteran may have been denied veterans benefits when they initially applied through the BVA decision, but could now qualify for compensation based on changes to the VA’s rules and regulations. This is often the case with Veterans suffering from PTSD – this disorder was not recognized as legitimate by the VA for decades, causing many disabled Veterans to be denied VA benefits when they initially applied.

Clear and unmistakable error (CUE), or cue claim, means that the correct facts were not known to the VA at the time, or the law and regulations in effect at the time were not applied correctly through due process. The alleged error must have been grievous enough to have changed the outcome of the prior decision at the time it was made and be so wrong that reasonable minds could not differ. These VA claims are difficult to win but certainly not impossible.

The key to a successful appeal based on CUE is presenting relevant and concrete evidence that supports your claim. In addition to presenting new evidence, you can sometimes refer to changes in VA policies as grounds for your claim to be approved when it was previously denied. If anything about the status of your claim has changed since you initially filed, these changes may be relevant to your appeal. Your attorney can help you determine what evidence should be presented in your appeal, as well as if there are any new rules and regulations upheld by the VA that may impact the outcome of your claim.

If you need help appealing a VA decision, our team of experienced attorneys is here for you. We are well-versed in the many rules and regulations upheld by the VA, and we know how difficult it can be to navigate the appeals process on your own. With the help of one of our skilled lawyers, you can appeal a VA decision with confidence.

If you believe that you may have a clear and unmistakable error (CUE) claim, please contact our team today at (888) 682-0786 for a free consultation.

Berry Law Firm

Established in 1965 by Vietnam War Veteran and attorney John Stevens Berry Sr., Berry Law Firm is a team of Veterans dedicated to defending, safeguarding, and fighting to protect the rights of Veterans. Over the decades, thousands of Veterans from across the country and all branches of the military have trusted our firm with their cases and, more importantly, their futures.

 

Sources:

https://www.va.gov/disability

https://www.ptsd.va.gov/

https://www.law.cornell.edu/cfr/text/38/20.1403