What does it mean to have an appeal based on a clear and unmistakable error?

Veterans who have had their claims for VA disability denied have the right to appeal. When an appeal states that the correct facts were not before the VA or that the law was not applied correctly, this is referred to as a clear and unmistakable error. An appeal based on clear and unmistakable error is sometimes referred to as a CUE claim in VA terminology.

Defining Clear and Unmistakable Error

To qualify as a clear and unmistakable error, the error must have been serious enough that it would have changed the outcome of the decision at the time it was made. It must also be so wrong that reasonable minds could not disagree as to the validity. The VA’s failure to assist in getting records or scheduling examinations does not qualify for a CUE claim, nor does the fact that you simply disagree with the VA’s decision regarding your disability application.

Some potential examples of a clear and unmistakable error include:

• Reducing your disability rating without regard to a specific law or regulation
• A decision awarding benefits based on a single injury when you suffered multiple injuries as the result of the same incident
• A decision that does not take into account a crucial piece of evidence

How to Proceed With a CUE Claim

An appeal based on a clear and unmistakable error can be filed at any time and will follow the same procedure as any other type of appeal. This means the denial can be first appealed to the Board of Veteran’s Appeals (BVA) and then to the United States Court of Appeals for Veterans Claims (CAVC).

A CUE claim must:

• Specify what error the VA made
• State how that error affected the VA decision
• Explain why the decision would be more favorable to the claimant if the error was corrected

Legal Representation Is Essential

A Veteran is only allowed one opportunity to file a CUE claim for each decision. If you file a claim and do not provide the required level of detail, your right to pursue the CUE claim is lost. Therefore, it is vital that you seek the assistance of an experienced Veterans benefits attorney who is skilled in handling VA disability appeals. Call today to schedule a free, no-obligation initial consultation with the office of Sean Kendall, Attorney-at-Law.