You ask what is clear and unmistakable error (CUE)? It’s just a decision by the VA that is plain…
That’s true but the legal definition is: “Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.” 38 C.F.R. 20.1403(a) (2012).
Ok, let’s be honest, that’s not very clear at all. Here’s how it breaks down: CUE are errors in your claim that are so obvious that anyone paying attention to your claim would have notice them had they taken a couple extra minutes to consider it. CUE cases are hard because if it is not absolutely clear that an error was committed, the VA will deny your CUE claim. To win on a CUE case, the error has to make a difference in the outcome of your case. So, if the VA made a mistake on one component of your claim but that mistake did not affect the final outcome of your claim, the VA will consider it to be “harmless error.”
Many claims, no matter how old, can be disputed with a CUE case. There are a few limitations that basically have to do with appeals to the U.S. Court of Appeals for Veterans Claims or the U.S. Court of Appeals for the Federal Circuit but we can talk about that another day. Your CUE case can be started by filing a motion to:
Director, Management and Administration (01E)
Board of Veterans’ Appeals
810 Vermont Avenue N.W.
Washington, D.C. 20420
In a future posting, we will talk about why you should consider a CUE motion how that can mean big bucks for you.