Clear and Unmistakable Error (CUE) Claims Guide | VA Appeals

A Clear and Unmistakable Error (CUE) claim can unlock decades of retroactive VA benefits by proving the VA made an undebatable error in an old decision. Unlike regular appeals which must be filed within one year, CUE claims have no time limit—you can challenge decisions from decades ago.

However, CUE has one of the highest burdens of proof in veterans law. The error must be so obvious that no reasonable person could disagree it occurred. Success rates are low (typically under 5%), but when you win, the retroactive benefits can be enormous.

What Is Clear and Unmistakable Error?

Clear and Unmistakable Error is a specific legal term referring to an error in a VA decision that is undebatable and obvious. CUE is not simply a wrong decision or one you disagree with—it's an error so clear that reasonable minds could not differ about whether it occurred.

CUE must have four essential elements, all of which must be proven:

• The error must be one of fact or law: Not a difference of opinion or medical judgment
• The error must be clear based on the record: Obvious from evidence and law that existed at the time
• The error must be unmistakable: So obvious reasonable minds could not disagree
• The error must have changed the outcome: Had it not been for the error, the decision would have been manifestly different

This is one of the most stringent legal standards in veterans law. Courts have repeatedly emphasized that CUE is difficult to prove and should not be confused with merely disagreeing with a decision.

Types of Clear and Unmistakable Errors

Errors of Fact:

A factual CUE occurs when the VA misidentifies or mischaracterizes undisputed facts:

• Wrong dates: Decision states filed in 2015 when record shows 2013, resulting in incorrect effective date
• Stating evidence doesn't exist when it does: Decision says no service treatment records when they're clearly present
• Attributing statements to wrong sources: Misquoting what doctor said or attributing opinion to wrong physician
• Mathematical errors: Combined rating calculated incorrectly using wrong formula
• Misidentification of service: States you served in Army when DD-214 shows Air Force, affecting presumptions

Note: Factual CUEs are limited to undisputed facts. If there was room for interpretation, it's not CUE.

Errors of Law:

A legal CUE occurs when the VA applies the wrong law or regulation:

• Wrong diagnostic code: Rating back condition under hip diagnostic code when no reasonable interpretation allows this
• Failure to apply mandatory presumptions: Not applying Agent Orange presumptions when you served in Vietnam with presumptive condition
• Using wrong regulation version: Applying regulation not in effect at time or failing to apply one that was
• Applying regulation that doesn't exist: Basing decision on regulatory provision that was never enacted
• Incorrect effective date rules: Applying rules that directly contradict the statute

Legal CUEs must be based on law as it existed at time of decision. You cannot argue CUE based on law change occurring after decision.

What Is NOT CUE:

• Medical judgment calls: C&P examiner's opinion, even if later incorrect, is not CUE
• Credibility determinations: VA's decision to believe/not believe testimony is not CUE
• Weighing evidence: Giving more weight to one piece of evidence over another is not CUE
• New evidence shows decision was wrong: That's grounds for Supplemental Claim, not CUE
• Better argument available: Discovering better legal argument after the fact is not CUE
• Change in law or interpretation: Court decision or regulation change after original decision is not CUE
• Mere disagreement: Simply disagreeing with how VA interpreted evidence is not CUE

How to Identify Potential CUE

Review Old Decision Letters Carefully:

To identify CUE, obtain and thoroughly review the actual decision letter. Look for:

• Factual misstatements: Does decision state facts clearly contradicted by cited evidence?
• Citation to wrong regulations: Does decision cite provisions that don't apply?
• Internal contradictions: Does decision say one thing then contradict it elsewhere?
• Ignored mandatory provisions: Did decision fail to apply mandatory presumption or statutory requirement?
• Obvious calculation errors: Are ratings or effective dates calculated using clearly wrong math?

Compare to Law and Evidence at the Time:

CUE must be proven using only law and evidence that existed when decision was made:

• Obtain your complete claims file (C-file) from relevant time period
• Research what regulations were in effect
• Review relevant court precedents existing before the decision
• Identify what decision-maker had access to

You cannot rely on evidence created after decision, new medical knowledge, or court decisions issued after the decision date.

Apply the "Reasonable Minds" Test:

Even if you've identified an error, ask: could reasonable people disagree about whether this is an error? If there's any reasonable interpretation supporting VA's decision, it's not CUE. The error must be so obvious no reasonable person could defend it.

Examples of Successful CUE Claims

Example 1: Wrong Effective Date Due to Clear Facts

Scenario: You filed claim March 15, 2010 (proven by certified mail receipt). VA decision stated claim received July 20, 2010.

Why it's CUE: File contained clear evidence (certified mail receipt) showing March 15 filing. VA's statement that claim received in July is factually wrong based on undisputed evidence. Error changed outcome (4 months of retroactive benefits lost).

Result: Effective date corrected to March 15, 2010, with retroactive benefits paid.

Example 2: Failure to Apply Mandatory Presumption

Scenario: You served Vietnam 1968-1969 (per DD-214) and filed claim for Type 2 diabetes in 2005. VA denied claim stating you needed to prove service connection with nexus. VA never mentioned Agent Orange presumption.

Why it's CUE: Type 2 diabetes was presumptive Agent Orange condition at time of 2005 decision. Your Vietnam service was undisputed. Under law in effect in 2005, VA was required to grant service connection presumptively. Failing to apply mandatory presumption is CUE.

Result: Service connection granted with effective date of 2005 claim, resulting in ~20 years of retroactive benefits.

Example 3: Application of Non-Existent Regulation

Scenario: 2008 decision denied TDIU stating "veteran must be 100% schedular rating or 95% with one condition at 70%." This wasn't actual TDIU standard.

Why it's CUE: Decision applied standard that didn't exist. Actual requirement (38 CFR 4.16) was clear and unambiguous. Applying non-existent legal standard is CUE.

Result: TDIU granted with effective date of 2008 claim, resulting in 15+ years of retroactive benefits.

Example 4: Clear Mathematical Error

Scenario: You had ratings of 60%, 40%, and 20%. Decision stated combined rating was 84% (rounded to 80%), but failed to include the 20% condition in calculation. Correct combined rating using VA math including all three is 87.36%, rounding to 90%.

Why it's CUE: Decision acknowledged 20% service-connected condition existed but failed to include it in combined rating. This is clear mathematical error, not judgment call.

Result: Combined rating corrected to 90% with effective date when error occurred, resulting in thousands in retroactive benefits.

How to File a CUE Claim

Step 1: Obtain Complete Records

Before filing, obtain:

• The complete decision letter you're alleging contains CUE
• Your entire claims file (C-file) from time of that decision
• The regulations that were in effect at time of decision
• Any relevant court decisions existing before decision date

Step 2: Draft a Detailed CUE Argument

Your CUE claim must include detailed written argument proving all CUE elements:

• Identify the specific decision: State exact date and what it decided
• Identify the specific error: Quote exact language that is erroneous
• Prove the error is clear: Show evidence in file at that time proving error (cite page numbers)
• Prove the error is unmistakable: Explain why no reasonable interpretation could support VA's conclusion
• Show the error changed outcome: Prove that but for this error, decision would have been different
• Address why it's not a judgment call: Explain why this isn't medical opinion or credibility determination

Step 3: Cite Legal Authority

Reference the legal framework for CUE:

• 38 U.S.C. § 5109A (statutory authority for CUE claims)
• 38 C.F.R. § 3.105(a) (regulatory definition of CUE)
• Relevant court decisions defining CUE standards
• The specific regulation or statute that was misapplied

Step 4: File Using Standard Claim Form

CUE claims are filed using VA Form 21-526EZ or by letter. Clearly label your claim as a "Clear and Unmistakable Error Claim" and identify the decision you're challenging.

Step 5: Be Prepared for Multiple Levels of Review

CUE claims are almost always initially denied. Be prepared to:

• Appeal using Higher-Level Review or Board Appeal
• Eventually appeal to CAVC if necessary
• Provide additional argument refining your CUE theory

Many successful CUE claims aren't granted until Board or CAVC level. Regional offices are often reluctant to find CUE in their own prior decisions.

CUE Processing and Timelines

Initial Review:

CUE claims are reviewed by senior raters or specialized teams. Initial decisions can take 6-12 months or longer, requiring:

• Locating and reviewing old claims files
• Researching regulations from the time period
• Legal review of the CUE argument
• Coordination with regional counsel

Appeals of CUE Denials:

If your CUE claim is denied (common), you can appeal using any AMA lanes:

• Higher-Level Review: If regional office misunderstood your argument
• Board Appeal: For judicial review of whether CUE occurred (most common path)
• Supplemental Claim: If you've discovered additional evidence from old file

CAVC Review:

Many successful CUE claims ultimately succeed at CAVC level. Consider appealing to CAVC if:

• The error is genuinely clear and unmistakable
• Retroactive benefits would be substantial
• You can afford representation
• Board's reasoning is flawed or doesn't address your arguments

Strategic Considerations for CUE Claims

When to Pursue CUE:

• The error is truly undebatable and obvious
• The decision is more than one year old (outside regular appeal window)
• Correcting error would result in substantial retroactive benefits
• You have clear evidence from the time showing the error
• The error is factual or legal, not a medical judgment call

When NOT to Pursue CUE:

• You're within the one-year appeal window (use regular appeal lanes)
• The alleged error is really a difference of opinion
• You have new evidence proving your claim (file Supplemental Claim)
• Error involves medical judgment or credibility determinations
• Retroactive benefits wouldn't justify time and effort

CUE vs. New Evidence:

• If you have new evidence: File a Supplemental Claim, not CUE
• If old decision was wrong based on what they had at the time: That's CUE
• If old decision was reasonable at the time but new evidence changes things: That's not CUE

Cost-Benefit Analysis:

CUE claims are time-intensive and have low success rates. Consider:

• How much retroactive pay would you receive if successful?
• How strong is your CUE argument really?
• Do you have resources to pursue through multiple appeal levels?
• Are there alternative claims that would be easier to prove?

If retroactive benefits would be substantial (tens of thousands or more) and error is genuinely clear, CUE can be worth pursuing despite difficulty.

Common CUE Mistakes to Avoid

1. Confusing CUE With Regular Disagreement: Just because you think VA was wrong doesn't mean it's CUE. Error must be undebatable—so obvious no reasonable person could defend decision.

2. Relying on New Evidence: You cannot use evidence that didn't exist at time of decision. If your argument depends on new medical records or opinions, it's not CUE—it's Supplemental Claim.

3. Citing Law Changes: If law changed after decision making what was once correct now incorrect, that's not CUE. You must prove decision violated law as it existed at the time.

4. Not Being Specific Enough: Generic arguments like "VA didn't properly consider my evidence" don't prove CUE. You must identify specific factual misstatement or legal misapplication with precision.

5. Filing CUE When Regular Appeal Is Available: If you're within one-year appeal window, don't file CUE—use Supplemental Claim, HLR, or Board Appeal. Regular appeals have much lower burden of proof and higher success rates.

6. Giving Up After First Denial: CUE claims are almost always initially denied. This doesn't mean your argument is wrong—it means you need to appeal to Board or CAVC level where judges are more willing to find CUE in regional office decisions.

Getting Help With CUE Claims

CUE claims are among the most complex in veterans law. Consider working with:

• VA-accredited attorneys: Most successful CUE claims involve attorney representation, especially at Board and CAVC levels
• Law school veteran clinics: Some clinics handle complex CUE claims
• Experienced VSOs: VSOs with appeals expertise can evaluate whether you have legitimate CUE claim

Before investing significant time and resources, have experienced representative evaluate your potential CUE claim honestly. Many claims that feel like CUE don't meet the legal standard, and experienced advocate can redirect you to more promising strategies.

Key Takeaways

• No time limit for CUE: Can challenge decisions from decades ago
• Extremely high burden of proof: Error must be undebatable and obvious
• Success rate very low: Typically under 5% success rate
• Substantial payoff potential: Retroactive benefits can span decades
• Multiple appeal levels: Usually initially denied, success at Board/CAVC level
• Lawyer recommended: Complex claims benefit from experienced representation
• Use with old decisions: Perfect for challenging 5, 10, 20+ year old decisions with errors