How to Prove a CUE: The Burden of Proof

Filing a successful CUE claim requires you to meet a high burden of proof. The key is to show that the error was clear and unmistakable, leaving no room for debate. Here’s how to prove a CUE:

1. Review the Original Decision and Record The first step is to thoroughly review the original VA decision that you believe contains the error. You’ll need to identify the specific legal or factual error that occurred. It’s important to:
   • Look for discrepancies between the VA’s decision and the evidence available at the time of the decision.
   • Compare the decision to the relevant laws and regulations that were in effect when the decision was made.
   • Identify how the error directly affected the outcome.
   • Tip: If you can’t pinpoint a specific error, it’s unlikely that your claim will qualify as a CUE. Vague or general disagreements with the VA’s decision are not enough.
2. Show That the Error Is Undebatable A CUE claim must demonstrate that the error is undebatable, meaning that any reasonable person reviewing the decision would agree that the error occurred. The VA will only grant a CUE if there’s no room for differing opinions or interpretations.
   • Tip: The error must be so clear that the VA would have no choice but to correct it if brought to their attention. Avoid subjective arguments or disagreements about how the evidence should have been interpreted.
3. Demonstrate That the Error Changed the Outcome The final key to proving a CUE is showing that the error had a direct impact on the decision. For example, if the VA had considered the correct evidence or applied the correct law, you would have received a different outcome, such as a higher disability rating or service connection for a condition.
   • Tip: Use the evidence that was available at the time of the original decision to show how the error affected the outcome. The VA will not consider new evidence when reviewing a CUE claim—only the evidence that was on file at the time of the original decision.

Steps to File a CUE Claim

Filing a CUE claim involves carefully reviewing your original VA decision, identifying the clear and unmistakable error, and submitting a formal request for revision. Here’s how to file a CUE claim:

1. Review the VA’s Original Decision Start by obtaining a copy of the VA decision that you believe contains the error, as well as your claims file (C-file), which contains all the evidence considered in the original decision. This will allow you to review the evidence and decision-making process to identify any errors.
2. Submit a Motion for CUE A CUE claim is technically referred to as a motion for revision based on Clear and Unmistakable Error. To file this motion, you’ll need to submit a written statement to the VA outlining the specific error you believe occurred. Be sure to:
   • Clearly identify the decision you’re challenging (e.g., the date of the VA decision).
   • Describe the error in detail, including whether it’s a factual or legal error.
   • Explain how the error affected the outcome of the decision and why it qualifies as a CUE.
   • Tip: Your motion should be concise but thorough, focusing on the specific error and its impact on the decision. Avoid lengthy arguments or disagreements with how the evidence was weighed, as this is not grounds for a CUE.
3. Submit Supporting Evidence Although you cannot submit new evidence with a CUE claim, you can reference the evidence that was available at the time of the original decision. Be sure to:
   • Highlight any medical records, service records, or other documents that were overlooked or misinterpreted.
   • Include references to the relevant laws or regulations that were in effect when the decision was made.
4. Wait for the VA’s Decision The VA will review your CUE claim and determine whether the error you’ve identified meets the criteria for a Clear and Unmistakable Error. If the VA agrees that a CUE occurred, they will revise the original decision and adjust your benefits accordingly. If the VA denies the CUE claim, you may have the option to appeal.
   • Tip: CUE claims can take several months or longer to process, depending on the complexity of the case and the VA’s workload. Stay patient and monitor the status of your claim through VA.gov or by contacting the VA.

Common Mistakes Veterans Make When Filing a CUE Claim

Because of the strict requirements for proving a CUE, many veterans make mistakes when filing CUE claims. Here are some common errors to avoid:

• Disagreeing with the VA’s Interpretation of Evidence: A CUE is not a claim for reconsideration or a second opinion. Simply disagreeing with how the VA weighed the evidence in your original claim is not enough to prove a CUE. Instead, you must identify a clear factual or legal error.
• Using New Evidence to Support the Claim: Veterans sometimes mistakenly submit new medical evidence or treatment records with their CUE claim. However, the VA will only consider the evidence that was available at the time of the original decision. New evidence must be submitted through a Supplemental Claim, not a CUE claim.
• Failing to Identify a Specific Error: CUE claims must be based on specific and undebatable errors. General disagreements with the VA’s decision or subjective arguments about how the evidence should have been interpreted will not qualify as a CUE.

Avoiding these mistakes is crucial for the success of your claim. Let’s now go over some practical tips to set your CUE claim up for success.

Setting Your CUE Claim Up for Success: Real Tips and Practical Advice

Filing a CUE claim is a high-stakes process that requires careful preparation and attention to detail. Here’s how to strengthen your case and improve your chances of success:

1. Work with a VA-Accredited Attorney Because CUE claims involve complex legal and factual issues, it’s a good idea to work with an experienced VA-accredited attorney who can help identify errors and present a strong case. An attorney can review your original decision, spot any potential CUEs, and draft a clear and concise motion.
2. Focus on Legal and Factual Errors Ensure your CUE claim focuses on clear legal or factual errors that directly affected the outcome of the decision. Avoid subjective disagreements or complaints about how the VA weighed the evidence.
3. Be Thorough and Precise in Your Motion Your CUE motion should be as clear and specific as possible. Outline the error, explain how it impacted the decision, and reference the relevant evidence and laws from the time of the original decision.
4. Double-Check the Effective Date of the Original Claim If your CUE claim is successful, you may be entitled to retroactive benefits dating back to the effective date of the original claim. Make sure you review the original decision carefully to ensure the correct effective date is used.
5. Monitor the Status of Your Claim CUE claims can take time to process, so stay on top of the status through VA.gov. If the VA requests additional information or clarification, respond promptly to avoid delays.

By following these tips, you can build a strong case for your CUE claim and improve your chances of success.

Why Disability Law Group Is Your Best Resource for CUE Claims

Filing a CUE claim can be a daunting process, given the high burden of proof and strict requirements. At Disability Law Group, we specialize in identifying and proving Clear and Unmistakable Errors in VA decisions. Our VA-accredited attorneys will thoroughly review your claim, identify any legal or factual errors, and guide you through every step of the CUE process.

Let Disability Law Group help you correct the VA’s mistakes and secure the benefits you rightfully deserve.