When the Department of Veterans Affairs (VA) issues a decision, veterans usually have appeal rights to challenge the outcome. But what happens when years have passed, appeal deadlines have closed, and a veteran later realizes VA’s decision was simply wrong? This is where a CUE claim may come into play.
What is a CUE Claim?
A CUE claim is a special type of motion asking VA to revise a final decision because it was based on an error so significant that it would have changed the outcome. Under 38 C.F.R. § 3.105(a), a CUE is not just any mistake, it must be an undebatable error of fact or law that existed at the time of the original decision. If proven, a successful CUE claim essentially rewinds history: the VA corrects the decision as though it had been decided correctly from the start, which can lead to significant retroactive benefits.
Why and When to Pursue a CUE Claim
CUE claims are not a shortcut or a “second chance” at appealing. Instead, they are only appropriate when the ordinary appeal windows have closed, leaving no other avenue to revisit a final VA decision. Veterans may want to pursue a CUE claim if they believe a past decision denied benefits based on an error that was clear, obvious, and outcome-determinative. Because of the high standard, CUE should usually be considered only after other appeal options are no longer available.
What Makes CUE Claims Different From Other VA Appeals
Most VA appeals involve weighing new evidence, submitting new arguments, or applying new interpretations of law. But, CUE claims are unique because:
- No new evidence is allowed. The claim is judged strictly on the record as it existed at the time of the decision.
- High burden of proof. The error must be undebatable, not merely a disagreement about how evidence was weighed.
- Retroactive effect. Unlike ordinary appeals, which only go back to the date of a claim, a successful CUE claim corrects the original decision and can lead to benefits dating back decades.
In short, CUE claims are powerful but very limited.
How Do I Know if I Have a CUE Claim?
Determining whether you have a valid CUE claim often requires close review of the original decision and the evidence available at the time. Questions to ask include:
- Did the VA ignore or misapply an existing regulation or statute?
- Did the VA overlook evidence that was already in the file?
- Would correcting the error have changed the outcome beyond any reasonable doubt?
If the issue is simply that the VA weighed evidence differently than you would, that is not CUE. If the VA applied the wrong law or ignored undisputed facts, that may be CUE.
Examples of CUE That Qualifies
Here are a few scenarios where CUE might be found:
- Failure to apply the correct law: The VA denied service connection for PTSD in the 1990s but ignored the regulatory criteria in effect at the time.
- Ignoring service records: The VA denied service connection for a back injury despite clear service treatment records documenting the injury.
- Overlooking undisputed evidence: The VA assigned a 0% rating for hearing loss even though audiometric testing in the file clearly met the criteria for a compensable rating under the regulations in effect.
By contrast, examples that do not qualify as CUE include disagreements about how medical evidence was interpreted, or claims that new medical evidence obtained later proves the VA’s decision was wrong.
Conclusion
CUE claims can be life-changing for veterans who were wrongly denied benefits in the past, but they are also some of the most challenging claims to win. They require a precise legal argument, focused on the facts and the law as they existed at the time of the original decision. If you think a past VA decision may contain clear and unmistakable error, it may be worth consulting with an experienced veterans law attorney to determine whether pursuing a CUE claim is the right path for you.
If we can be of any assistance, please do not hesitate to contact us. You fought for your country, now let Binder and Waston fight for you.