3.9. Clear And Unmistakable Error
A decision that has become final may not be reversed or revised in the absence of a showing of CUE. 38 U.S.C. § 7111(a). CUE "is 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." 38 C.F.R. § 20.1403(a).
The Court has no jurisdiction to consider a CUE claim it in the first instance. 38 U.S.C. § 7252(a); Andrea v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veteran's Court can exercise jurisdiction over it"); Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc) (noting that "[t]he necessary jurisdictional 'hook' for this Court to act is a decision of the [Board] on the specific issue of 'clear and unmistakable error'").VA law allows a veteran at any time to request that a decision be reviewed and corrected if VA committed a "clear and unmistakable error" (often called a "CUE"). This is a very powerful right. Unfortunately, it is also a widely misunderstood and a misapplied right. A true CUE is not common and is a difficult claim to win.
A request for revision of a decision based on CUE is an exception to the rule of finality and is grounds to reverse or revise a decision by the Secretary. 38 U.S.C. §§ 5109A, 7111; DiCarlo v. Nicholson, 20 Vet. App. 52 (2006); 38 C.F.R. §§ 3.105(a), 20.1400-1411. A CUE motion is a collateral attack on a final VA regional office decision or Board decision. Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000).
A CUE is a special type of error and a claim for revision of a previous denial on the basis of CUE can be filed at any time, even years or decades after the claim was decided or the appeal denied.
- (1) Claim must be a "closed claim" also known as a "final decision" for a CUE review. The finald decision must be from the VARO, Veterans Administration Regional Office, or the BVA, Board of Veterans Appeals and was never appealed, and
- (2) either the correct facts were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; and
- (3) the error is "undebatable;" and
- (4) the error must make a difference in the outcome. In other words, a CUE is not a disagreement with a decision or an argument that VA got it wrong.
When CUE does occur and a claim is granted, the usual rules for setting the effective date of an award is by-passed. The effective date of a CUE claim goes back all the way to the filing date of the claim with the CUE. This can result in huge awards of retroactive benefits.
Because a claim for CUE is a review of an already "closed claim" also known as "final decision claim", special rules apply:
- the "duty to assist" does not apply. This means that VA does not help a claimant with a CUE claim.
- a CUE claim must contain specific and detailed statements regarding the error:
- how that error affected the decision, and
- why the decision would be different (more favorable to the claimant) if the error is corrected. Merely stating that CUE occurred or general statements similar to those in a benefits claim are not enough. For example: a decision awarding benefits based on a single gunshot wound when the veteran had two gunshot wounds is a CUE. A CUE claim asserting that a gunshot wound was more painful than VA concluded is clearly not a CUE.
Further, the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). The error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Id. at 313-14, 320; see Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999) (expressly adopting the "manifestly changed the outcome" language in Russell). A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE claim. Damrel v. Brown, 6 Vet. App. 242, 246 (1994).
A veteran can only claim CUE one time for each decision. This means that if a claimant files a CUE claim and the VA finds that the claim does not contain the required level of detail, that CUE claim is lost forever. For this reason, claimants who believe that they have a possible CUE claim are strongly urged to seek advice from a VSO, registered agent, or experienced attorney.
Errors that cannot constitute CUE, pursuant to 38 C.F.R. sections 20.1403(d) and (e), include:
(1) a changed diagnosis, where a "new medical diagnosis . . . 'corrects' an earlier diagnosis considered in a Board decision;"
(2) VA's failure to comply with the duty to assist;
(3) a "disagreement as to how the facts were weighed;" and
(4) a subsequent change in interpretation of the statute or regulation that was applied in the Board decision.
Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005); cf. Cook, 318 F.3d at 1346 ("The requirements that [CUE] be outcome determinative and be based on the record that existed at the time of the original decision make it impossible for a breach of the duty to assist to form the basis for a CUE claim."); see also MacKlem v. Shinseki, 24 Vet. App. 63 (2010); Damrel, 6 Vet. App. at 246; Fugo, 6 Vet. App. at 43-44.
When the Court reviews a Board determination that there was no CUE in a prior final decision, the Court's review is generally limited to determining whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 38 U.S.C. § 7261(a)(3)(A), and whether it is supported by adequate reasons or bases. 38 U.S.C. § 7104(d)(1); Joyce v. Nicholson, 19 Vet. App. 36, 43-44 (2005); Lane v. Principi, 16 Vet. App. 78, 83-84 (2002), aff'd, 339 F.3d 1331 (Fed. Cir. 2003); Eddy v. Brown, 9 Vet. App. 52, 57 (1996); Archer v. Principi, 3 Vet. App. 433, 437 (1992); Russell v. Principi, 3 Vet. App. 310, 315 (1992). However, whether the claimant has presented a valid CUE allegation and whether an applicable law or regulation was not applied are questions of law that are reviewed de novo. Joyce, 19 Vet. App. at 43; see also Kent v. Principi, 389 F.3d 1380, 1384 (Fed. Cir. 2004).
The U.S. Court of Appeals for the Federal Circuit has held that "a veteran's assertion of a particular clear and unmistakable error by the RO constitutes a distinct claim." Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). Because the "Federal Circuit equates 'issue' with a 'claim' and not a theory or element of the claim," "an appellant has only one opportunity to raise any allegation of clear and unmistakable error for each claim decided in a Board decision and any subsequent attempt to raise a clear and unmistakable error challenge to the same claim contained in a Board decision will be dismissed with prejudice." Hillyard v. Shinseki, 24 Vet. App. 343, 354 (2011); 38 C.F.R. § 20.1409(c). A claimant, thus, has only one chance to file a CUE claim on a prior decision. Id.
Although CUE does not require "pleading with exactitude," it nevertheless must be plead with "some degree of specificity." Jordan v. Principi, 17 Vet. App. 261, 270-71 (2003) (finding that although "the liberal construction of a VA claimant's pleading must be tempered somewhat in CUE cases" that "does not require pleading with exactitude"); Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002). Assertions of CUE raised by counsel, however, are not entitled to a liberal reading. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (distinguishing between filings by counsel in direct appeals to the Board and assertions of CUE, and holding that filings in direct appeals to the Board must be read liberally, whether filed by counsel or claimant). Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); MODEL RULES OF PROF'L CONDUCT R. 1.1 (Competence), 1.3 (Diligence); U.S. VET. APP. R. ADM. & PRAC. 4(a) (adopting the Model Rules of Professional Conduct as disciplinary standard for practice). Perfection of an appeal for a claim involving CUE involves the same steps as any other claim. 38 U.S.C. § 5109A(e) ("[CUE claims] shall be submitted to the Secretary and shall be decided in the same manner as any other claim."); see Andre, 301 F.3d at 1361 (Fed. Cir. 2002) (holding that "each 'specific' assertion of CUE constitutes a claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise jurisdiction over it").
The VCAA does not apply to CUE actions. See Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding VCAA does not apply to Board CUE motions); Baldwin v. Principi, 15 Vet. App. 302 (2001) (holding VCAA does not apply to RO CUE claims). In other words, the VA has no duty to assist claimants with CUE claims. See Livesay, 15 Vet. App at 178 (noting that the CUE "movant bears the burden of presenting . . . specific allegations of error"); 38 C.F.R. § 20.1404 ("The motion must set forth clearly and specifically the . . . 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."); see also Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting that the duty to read pro se filings sympathetically applies to CUE motions); Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (whether a sympathetic reading of a veteran's filing raises a valid claim is a factual inquiry, reviewed under the "clearly erroneous" standard).
The spouse of a deceased claimant has no right to file a CUE claim because "a survivor has no standing to request review of a decision affecting the disability benefits of a veteran on the ground of CUE" as 38 U.S.C. section 5109A does not "provide for another person, even a survivor, to seek correction of a decision on a veteran's claim." Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998).
Reference: 38 C.F.R. 20.1403
§ 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
- (1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
- (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
- (1) Changed diagnosis. A new medical diagnosis that "corrects" an earlier diagnosis considered in a Board decision.
- (2) Duty to assist. The Secretary's failure to fulfill the duty to assist.
- (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.