Most VA decisions become final one year after notice. After that, the ordinary way back is a supplemental claim with new and relevant evidence, and the effective date usually resets to the new filing. Clear and unmistakable error, or CUE, is the exception. It has no deadline, and if it succeeds the corrected decision takes effect as if VA had gotten it right the first time, which can mean years of retroactive pay. The price of that power is a standard that is deliberately hard to meet.
The legal basis
Two statutes and two regulations govern CUE. For decisions by a regional office (the agency of original jurisdiction), 38 U.S.C. 5109A and 38 CFR 3.105(a) provide that a final decision containing clear and unmistakable error will be reversed or amended, with the same effect as if the corrected decision had been made on the date of the original. For decisions by the Board of Veterans' Appeals, 38 U.S.C. 7111 and 38 CFR 20.1400 through 20.1411 provide a parallel motion decided by the Board itself. A Board decision that subsumed an earlier regional office decision must be attacked at the Board level, not by asking the regional office to revise the decision the Board already reviewed.
The standard
The Court of Appeals for Veterans Claims set the working definition in Russell v. Principi, 3 Vet. App. 310 (1992), and Fugo v. Brown, 6 Vet. App. 40 (1993), and VA codified it for Board decisions in 38 CFR 20.1403(a): "a very specific and rare kind of error ... 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." All three elements must be present:
- Either the correct facts, as they were known at the time, were not before the adjudicator, or the law in effect at the time was incorrectly applied.
- The error is undebatable: reasonable minds could only conclude that the decision was wrong. A dispute about how the evidence should have been weighed is not CUE, however persuasive.
- The error was outcome-determinative: had it not been made, the result would have been manifestly different. An error that would not have changed the decision, or that only might have, does not qualify.
The review is confined to the record and the law as they existed when the decision was made. Later evidence, later medical opinions, and later changes in how a statute or regulation is interpreted cannot be used to show the earlier decision was wrong.
What never counts as CUE
The regulation and the case law list categories that fail as a matter of law. Motions built on these are denied without reaching the merits:
- VA's failure to fulfill the duty to assist, including not obtaining records or not scheduling an examination (38 CFR 20.1403(d)(2); Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc)).
- A disagreement with how the adjudicator weighed or evaluated the evidence (20.1403(d)(3)).
- A new medical diagnosis that "corrects" the diagnosis the decision relied on (20.1403(d)(1)).
- A change in the interpretation of a statute or regulation after the decision (20.1403(e)).
- Evidence that was not in the file at the time, even if it existed somewhere.
- A general allegation that the decision was wrong, without identifying the specific error.
Pleading a CUE motion
Fugo requires specificity: the motion must identify the particular error of fact or law, explain why it is undebatable, and explain why the outcome would have been manifestly different. A useful structure:
- Identify the decision by date and issue.
- Quote the finding or the legal standard the adjudicator used.
- Show, from documents that were in the file on that date, the fact or the correct legal rule the adjudicator missed or misapplied.
- Walk through the outcome: apply the correct fact or law to the record as it stood and show the result changes, such as a grant instead of a denial or a higher rating under the criteria then in effect.
File a regional office CUE request in writing with the regional office; VA has no dedicated form, though VA Form 21-4138 or a letter identifying the decision works. A Board CUE motion is filed with the Board and must meet the content requirements of 38 CFR 20.1404(b): it must "set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error." Representation matters here more than in most claims: once the Board issues a final decision on a CUE motion about a prior Board decision on an issue, that prior decision on that issue is no longer subject to revision for CUE at all (38 CFR 20.1409(c)). A vague or premature motion can close the door for good.
What you get if it succeeds
The decision is revised as of its original date. If the error caused a denial, the grant runs from the effective date the original claim would have carried; if it caused an underrating, the higher rating runs from the original date. Retroactive compensation is paid for the full period, subject to the ordinary rules on offsets and previously paid benefits.
CUE compared with a supplemental claim
A supplemental claim under 38 CFR 3.2501 needs new and relevant evidence and is far easier to win, but its effective date is generally the date of the supplemental claim unless it is filed within a year of the decision. Two exceptions make a supplemental claim the better tool for earlier effective dates in some cases: service department records received after the decision (38 CFR 3.156(c)), and liberalizing laws under 38 CFR 3.114. The right approach is often both: a CUE motion on the decision's specific legal error, and a supplemental claim with new evidence in case the CUE motion fails. They are independent paths and one does not bar the other.
Before you file
- Get the claims file. A CUE motion is argued from the record that existed on the decision date; you cannot plead it from memory.
- Read the decision's reasons and bases against the regulation in force on that date, not today's version. This site's statute and regulation histories show the text in force on any given date.
- Separate "VA weighed the evidence badly" from "VA applied the wrong rule" or "VA overlooked a fact in the file." Only the second and third are CUE.