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What is a Clear & Unmistakable Error (CUE)?
A CUE occurs when the Department of Veterans Affairs (VA) makes a mistake in processing a veteran’s disability compensation claim that is clear and unmistakable. To qualify for a CUE correction, the Veteran’s case must meet the following three (3) key requirements :
1. The VA adjudicator did not consider the facts known at the time of the decision.
2. An error occurred based on the record and the law at the time of the decision.
3. If the error had not been made, the outcome would have been different.
CUE claims are used to revise a final decision by the VA Regional Office (VARO) or Board of Veterans’ Appeals (BVA) to reflect the true state of facts or law at the time of the original adjudication.
Though difficult to prosecute, successful CUE claims can lead to substantial retroactive pay.
Understanding VA Mistakes
Yes, the VA does make mistakes. Currently, there are over 650,000 pending VA claims. Despite efforts to reduce pending claims by hiring additional staff, mistakes are inevitable due to human error—exacerbated by VA requirements for VA employees to make daily ‘Production Standards,’ lack of training, and lack of time to learn VA rules and guidelines.
Common VA Errors
The most frequent VA mistake is a “Rating Decision Error,” where the VA assigns a lower disability rating than what the Veteran deserves. Other errors include:
1. Failing to grant service connection for a disability
2. Assigning an incorrect effective date
3. Making mistakes in benefit calculations
What Constitutes a VA CUE Claim?
A VA CUE claim arises when a veteran alleges that the VA made a clear and unmistakable error in their claim. It’s not a standalone claim but a motion for revision based on such an error. If a veteran disagrees with a VA rating decision and identifies a clear error, they can file a motion for revision based on clear and unmistakable evidence.
Filing a VA CUE Claim vs. an Appeal
Filing and winning a CUE claim is challenging compared to VA appeals. If eligible to appeal and there’s a lack of new evidence, a Higher Level Review (HLR) (appeal) might be a better option. Filing a CUE claim should be deployed after exhausting other options, especially if the decision is still within a year.
Understanding a CUE
The VA strictly defines a CUE. CUEs must meet three (3) criteria:
1. The VA employee didn’t consider all available facts or misapplied the law.
2. Correcting the error would have led to a different outcome.
3. Only the record and law at the time should be considered.
Implications of CUE According to Regulations
According to 38 CFR Section 20.1403, establishing CUE requires showing that if the VA had not made the error, the outcome would have been “manifestly different.” This implies that successful CUE claims could result in the VA compensating the Veteran for the difference between the actual decision and the correct one, potentially including retroactive pay.
Here's a Hypothetical Situation of the Impact of a CUE According to Regulations
This is Sarah, an Army Veteran who applied for disability benefits because of an injury from her service. However, the VA didn’t look at all of Sarah’s medical records, so they denied or shorted her benefits. But if they had seen all the records, they would have approved her claim at the proper Rating level.
If Sarah proves this mistake was a CUE, according to VA rules, she could get retroactive pay.
This means the VA would pay her the money she should have gotten from the start, considering the correct decision. So, Sarah would receive a one-time benefits payment that otherwise she missed out on.
Fixing Past VA Mistakes with CUE Claims
When you file a CUE claim, you’re essentially asking the VA to reconsider its decisions.
Simply put, you’re pointing out a specific problem that needs fixing, no matter how long ago it happened. By filing a CUE claim, you’re urging the VA to review a decision they’ve already made and correct any mistakes, regardless of when they occurred.
It’s worth noting that not every claim ends up with a CUE payment for the Veteran. It depends on several factors. CUE claims are rare and can be tricky to spot, prepare, and follow through on. They often take several months to a year or even longer to sort out.
Important Considerations
Not all VA mistakes qualify as a CUE. The crucial factor is whether the error was clear and unmistakable at the time of the decision. If a CUE claim succeeds, the VA is responsible for paying the Veteran retroactively from the date of the claim submission.
Summary
While we have examples of approved CUE claims, it’s important to realize that each case is unique, and some CUE claims are denied. However, our 37+ years of working inside the VA – Rating and Deciding on VA CUE claims, we’ve seen payouts ranging from zero ($0) to hundreds of thousands of dollars.
Although CUE cases are rare, they can happen for various reasons, ranging from VA laws and regulations changes, VA employees rushing to make their daily production standards, and several other reasons. The trick is to spot them; CUEs are not easy to identify. Then comes the deep dive analysis into the case itself; effective dates and timelines, researching case law, and present strong legal arguments. And, if needed, appeal denied CUE claim.
CUE claims can significantly benefit veterans and their families when successfully prosecuted, often resulting in an unexpected, one-time VA benefit payment.
Getting Help
Many veterans seek our help with VA decisions, especially if they suspect a CUE has occurred.
Following specific requirements is crucial for the best chance of success. Contact us for detailed information on CUE claims.
Example Scenario of a VA CUE Claim
Let's consider the case of John, a Vietnam War veteran who suffered hearing loss due to exposure to loud explosions during combat. John filed a disability compensation claim with the VA, seeking benefits for his hearing impairment.
Initial VA Decision:
The VA reviewed John's medical records and conducted a hearing test. Based on this information, they awarded him a 30% disability rating for his hearing loss, which entitled him to certain benefits.
John's Disagreement:
However, John believed that the VA made a mistake in assessing the severity of his hearing loss. He felt that the rating decision didn't accurately reflect the extent of his impairment and the impact it had on his daily life. Despite his efforts to provide additional evidence, such as testimonies from fellow veterans who witnessed the explosions, the VA upheld their initial decision.
Identifying a Clear Error:
Upon further review, John discovered that the VA failed to consider crucial medical evidence, including recent diagnostic tests showing a more severe level of hearing loss than previously documented. He also found discrepancies in how the VA interpreted certain regulations related to hearing impairment disabilities.
Filing a VA CUE Claim:
Realizing that the VA's decision was based on a CUE, John decided to file a motion for revision under the CUE process. He provided the VA with clear and unmistakable evidence demonstrating the error in their original decision, including the overlooked medical records and regulatory misinterpretations.
Outcome of the CUE Claim:
After reviewing John's CUE claim, the VA acknowledged their mistake and revised their decision. They increased John's disability rating from 30% to 50%, reflecting the true severity of his hearing impairment. As a result, John became eligible for additional benefits and received retroactive pay dating back to when he first filed his claim.
Conclusion:
In this scenario, John's experience illustrates how a VA CUE claim can arise when a veteran identifies a clear and unmistakable error in the VA's decision-making process. By filing a motion for revision based on such an error, veterans like John can seek to correct inaccuracies in their disability ratings and receive the benefits they rightfully deserve.
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