A Clear and Unmistakable Error (CUE) claim is a specific type of appeal that veterans can file when they believe the VA made a significant mistake in deciding their disability claim. CUE claims differ from other appeals because they challenge an earlier final decision based on a legal or factual error that, if corrected, would change the outcome of the claim. However, successfully proving a CUE can be challenging, as the burden of proof is on the veteran to show that the error was clear, unmistakable, and directly affected the decision.
In this guide, we’ll explore what constitutes a CUE, how to file a CUE claim, common pitfalls to avoid, and practical tips to strengthen your case.
What Is a Clear and Unmistakable Error (CUE)?
A Clear and Unmistakable Error is a rare but serious mistake made by the VA in a final decision on a veteran’s disability claim. To qualify as a CUE, the error must meet strict criteria:
- Clear: The error must be obvious, without any room for interpretation. Reasonable minds must agree that the error occurred.
- Unmistakable: The error must be undebatable and not subject to varying opinions or interpretations.
- Outcome-determinative: The error must have directly impacted the outcome of the decision. If the error hadn’t been made, the veteran would have received a different decision (e.g., a higher disability rating or service connection).
CUE claims can challenge errors related to:
- Factual errors: The VA overlooked or misinterpreted key facts in the veteran’s records.
- Legal errors: The VA applied the wrong laws or regulations in deciding the claim.
Examples of CUE in VA Disability Claims
Understanding what qualifies as a CUE can help veterans determine if their case fits the criteria. Here are some examples of what might constitute a CUE:
- Factual Error: The VA failed to consider medical evidence that clearly showed a service-connected condition. For example, if your service medical records clearly documented a diagnosed condition during service, but the VA denied service connection based on a lack of evidence, this could be a CUE.
- Legal Error: The VA misapplied a law or regulation in effect at the time of the decision. For instance, if the VA used outdated or incorrect rating criteria to assign your disability rating, this could be a legal CUE.
- Failure to Apply the Presumption of Soundness: If the VA failed to properly apply the presumption of soundness, meaning it wrongly denied a claim on the basis that the condition was pre-existing without clear evidence that it wasn’t aggravated by service, this could be grounds for a CUE.
