VA Clear & Unmistakable Error (CUE): An In-Depth Look with Practical Examples

Understanding Clear and Unmistakable Error (CUE) in VA Rating Decisions

 

Understanding Clear and Unmistakable Error (CUE) in VA Rating Decisions

Many veterans are unsure of what to do when they discover an error in a VA rating decision. While the common advice is to request a Higher-Level Review, there is another lesser-known option available: submitting a request for revision based on a Clear and Unmistakable Error (CUE).

Our contributor explains the definition of a CUE, the VA’s process, and shares examples based on professional experience as a former VA rating specialist. This article aims to educate veterans on how to identify a CUE and properly file for a revision.

What Is a CUE?

According to the VA’s M21-1 manual, a Clear and Unmistakable Error exists if all three of the following criteria are met:

  • The correct facts, as known at the time, were not before the adjudicator or were overlooked.
  • The error must be of the kind that, had it not been made, would have manifestly changed the outcome.
  • The determination must be based on the record and the law that existed at the time of the prior adjudication.

CUEs are undebatable. If it is not absolutely clear that the outcome would have been different, the error does not qualify as a CUE. Veterans should obtain a complete copy of their claims folder to identify any discrepancies that meet these standards.

Time Frame for Filing a CUE

Unlike other VA appeal options, there is no time limit for filing a CUE. Veterans can submit CUE claims many years after the original decision was issued—some have successfully filed CUEs 10 to 15 years later.

Regulatory References

The governing regulation for CUEs is found in 38 CFR § 3.105(a). This regulation states that if a decision is reversed or amended due to a CUE, the revised decision is treated as if it were made on the date of the original decision. Veterans can use this to potentially receive back pay dating back to the original claim date.

Examples from the Field

Our contributor shared examples where CUEs were called on decisions that:

  • Denied service connection despite in-service complaints documented in the medical record.
  • Used incorrect diagnostic code criteria.
  • Failed to grant Special Monthly Compensation (SMC) due to oversight.
  • Missed awarding temporary 100% ratings following surgeries.

Identifying a Potential CUE

Veterans must carefully read their rating decisions in full and look for indicators such as:

  • Improper application or omission of statutory presumptions.
  • Overlooked private medical evidence listed in the decision.
  • Incorrect effective dates, especially when an intent to file was present but ignored.
  • Failure to follow procedural directives that affect benefit entitlements.

How to File a CUE Request

There is no mandatory form to file a CUE, but our contributor recommends using VA Form 21-526EZ for visibility and consistency. Veterans should write a detailed explanation and cite relevant laws and facts that were part of the original record.

Note: Veterans cannot submit a CUE on the same basis after a final decision has been made denying a previous CUE request.

Final Thoughts

To prepare an effective CUE claim, veterans should:

When a valid CUE is identified, it can significantly impact a veteran’s benefits—resulting in corrected ratings and backdated payments.

Disclaimer: The information presented in this article is based on the professional experience of our contributor, a former VA rating specialist. It is intended for educational purposes only and does not constitute legal or claims advice. Veterans should consult with an accredited representative or legal advisor for specific assistance with their VA claims.