Clear and Unmistakable Error

Clear and Unmistakable Error

Veterans will often receive a rating decision from the VA that is later overturned. The question is then whether a Veteran can get paid starting from the date of the original claim, which might be decades before.

The answer to that question isn’t a straightforward yes or no. In most cases, it’s a cautiously optimistic “maybe.” However, if it can be done, it can lead to a large back pay award for the Veteran.

For a rating decision to be overturned in these cases, there needs to be a clear and unmistakable error (CUE) in the original VA decision. 

Veterans who have reason to believe a CUE may have occurred in their VA benefits claim should speak to a lawyer with experience handling such matters. Exploring options with the help of a dedicated Veterans law attorney may be instrumental in determining what the options are and, if necessary, filing an appeal.  

Appealing a VA Decision

Before addressing what qualifies as a CUE, it’s important to review how the VA processes decisions related to disability claims.

The VA rating system determines the benefits and compensation a Veteran receives. This rating is a percentage from 0-100 based on the degree of a Veteran’s service-connected disability.

The appeals process exists for Veterans who wish to have their VA disability claims reconsidered. This might be because their disability rating was too low or their back pay date was incorrect. Depending on the type of decision a Veteran seeks to appeal, there are various avenues to start this process. 

Depending on the type of appeals process and which entity it’s presented to, the types of evidence used in the appeal will vary. For example, in an appeal processed through the Supplemental Claim Lane, Veterans must present new and relevant information to have their appeal considered.


What Is a Clear and Unmistakable Error (CUE)?

VA rating decisions are not immune to mistakes. Hence, they can sometimes be overturned or amended. A CUE is a unique type of appeal when the Veteran alleges that the VA made an error in their decision. This might be because it did not have knowledge of relevant facts at the time of the decision or did not apply the laws and regulations correctly. In layman’s terms, this means that the VA made a mistake that would be undeniable to most people. 

The Defining Characteristics of a Clear and Unmistakable Error (CUE) 

At first glance, these criteria may still seem confusing. After all, what is obvious to one person’s judgment may not be obvious to another’s. Below is a summary of the defining characteristics of a CUE. 

  • The facts and the law: In the case of a CUE, the VA should have had access to the claim’s relevant facts and the ability to correctly apply the law and the VA’s regulations accordingly. 
  • The gravity of the error: An error resulting in a minor change to the outcome of a VA disability claim does not meet the threshold of a CUE, regardless of how or why the mistake was made. 
  • The unmistakable wrongness: A CUE is unambiguous. Such an error doesn’t have to do with differences of opinion or mistakes in the interpretation of the law — it refers to errors that should have been obvious to those making the decision and leaves no room for debate.  

Did the VA Make a Clear and Unmistakable Error?

When determining if there was a clear and unmistakable error, there are some things that Veterans 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. In these cases, the potential for error lies not in a decision (because none was made) but rather in the VA’s failure to make a decision. Therefore, no CUE needs to be discovered or proven in this scenario.

Why was the claim denied? 

Gathering as much evidence and information about the original denial as possible is important and can impact the steps a Veteran must take to proceed. Enlisting a lawyer who can help examine the explanations and reasoning behind a denial can reveal potential misunderstandings or even outright blunders that constitute a CUE. 

What was the law at the time of the denial?

Laws and regulations change. Occasionally, CUEs are made when someone applies the current law to a situation before that law has come into effect. These inconsistencies can form a CUE. 

Was the error harmful enough to constitute Clear and Unmistakable Error?

Again, for an error to be clear and unmistakable, it must have been grievous enough to have changed the outcome of the decision at the time it was made and be so wrong that reasonable minds could not differ. These claims are difficult to win — but certainly not impossible.

What Does it Take to Appeal a Clear and Unmistakable Error? 

The process of successfully appealing a CUE claim can be extremely challenging. The Department of Veterans Affairs sets strict guidelines and protocols that Veterans must follow if they wish to challenge a decision, and adhering to these can be intimidating. 

Moreover, if a Veteran attempts to appeal a CUE claim, the Veteran could encounter difficulty in the future should they need to make another appeal on the same grounds. In 2011, the Court of Appeals for Veterans Claims limited the number of times that a Veteran can raise clear and unmistakable errors for appeal

Still, it is possible to overturn a VA decision based on a CUE. To do so, a Veteran must have the correct information and understanding of the law. Furthermore, the Veteran will need to know how to initiate the appeals process procedurally. In challenging cases such as these, a Veteran would greatly benefit from legal assistance provided by an attorney who is already armed with this knowledge.

Veterans’ service is invaluable, and they deserve nothing but the full amount of benefits to which they are entitled. The attorneys at Berry Law are committed to continuing the fight with Veterans and upholding their legal rights. If you believe you may have a clear and unmistakable error (CUE) claim, please contact our team today at (888) 883-2483 for a consultation.

Berry Law

The attorneys at Berry Law are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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