Clear and Unmistakable Error (CUE): Challenging an Old, Final VA Decision

CUE is also one of the hardest things to prove in VA law. Here is what it is, what it is not, and how a request is made.

Two statutes create CUE review:

• 38 U.S.C. § 5109A covers decisions made by VA regional offices. A request may be made "at any time," and VA handles it like any other claim.
• 38 U.S.C. § 7111 covers decisions of the Board of Veterans' Appeals. A request may also be made at any time, and it goes directly to the Board.

VA's rules for regional office decisions are in 38 C.F.R. § 3.105(a). The Board's rules are in Part 20, Subpart O, including § 20.1403, § 20.1404 and § 20.1409.

The regulations call CUE "a very specific and rare kind of error." It is not enough that a decision was wrong, or even probably wrong. The error must be one where, once it is pointed out, reasonable people could not disagree that the result would have been manifestly different. If it is not absolutely clear that the outcome would have changed, it is not CUE.

According to the regulations, CUE usually takes one of two forms:

• The correct facts were not before VA. The facts as they were known at the time were not considered by whoever made the decision.
• The law was applied incorrectly. The statute or regulation in effect at the time was misapplied.

Either way, the review looks only at the record and the law that existed when the decision was made. Evidence created later, and later changes in the law, do not count.

A simplified, hypothetical example: suppose a regulation in effect on the date of a decision required a certain rating whenever specific facts were shown. Those facts were clearly in the file, and VA assigned a lower rating anyway without explanation. That is the kind of error CUE exists to fix. Whether any real decision contains CUE depends on its exact record and the law on that date.

The Board's rule, 38 C.F.R. § 20.1403(d) and (e), lists things that do not qualify, and § 3.105(a) applies the same limits to regional office decisions:

• A new or changed diagnosis. A later medical opinion that "corrects" an earlier diagnosis is not CUE.
• VA's failure to fulfill the duty to assist. Even if VA should have gathered more records or ordered an exam, that failure is not CUE.
• Disagreement about how evidence was weighed. Arguing that VA should have believed one opinion over another is not CUE.
• A later change in how the law is interpreted. If VA correctly applied the law as it was understood at the time, a later reinterpretation does not make that decision CUE.

The Supreme Court applied that last limit in George v. McDonough, 596 U.S. 740 (2022). It held that a final decision is not CUE simply because a regulation VA applied at the time was later found invalid.

Also, under § 3.105(a), VA's duty to assist does not apply to CUE requests. The request rises or falls on what was already in the file.

Both § 3.105(a) and § 20.1404 require a CUE request to be in writing and signed. It must include the claimant's name, the VA file number and the date of the decision being challenged. If that decision covered several issues, the request must say which issue is involved.

Most importantly, the request must state the alleged error "clearly and specifically." It must explain the legal or factual basis for the error and why the result would have been manifestly different without it. General claims that VA "failed to follow regulations" or "denied due process" are not enough. At the Board, a request that is not specific enough is dismissed without prejudice, which means it can be filed again.

Where the request goes depends on which decision is being challenged:

• A regional office decision. The request goes to VA under § 3.105(a). But if the Board or a court has already decided that same issue on appeal, the regional office decision cannot be revised under § 3.105(a). The challenge, if any, would be to the Board's decision.
• A Board decision. The request is a motion filed directly with the Board, at the address listed in § 20.1404(c). If it is sent to VA instead, 38 U.S.C. § 7111(f) requires VA to forward it to the Board.

Under 38 C.F.R. § 20.1409(c), once the Board issues a final decision on a CUE motion about a particular decision and issue, that earlier Board decision can no longer be challenged for CUE on that issue. Any later motion on the same decision and issue is dismissed with prejudice. A final Board decision on a CUE motion can be appealed to the U.S. Court of Appeals for Veterans Claims, under § 20.1409(d).

Because of this rule, completeness matters before a Board CUE motion is filed.

CUE is meant for decisions that are already final. If a decision is still within its review period, the regular options are usually more forgiving. A Higher-Level Review, Supplemental Claim or Board appeal can address how evidence was weighed, and a Supplemental Claim can add new evidence. Neither is possible in a CUE request. Our article HLR, Supplemental Claim, or Board Appeal? explains those options.

• Which exact decision, and what date, is being questioned?
• Has the Board or a court already decided that issue on appeal?
• What statutes and regulations were in effect on that date?
• What was actually in the file then? Our guide to requesting and auditing your VA C-file can help.
• Can the error be stated in one or two sentences, with a clear reason the outcome would have been different?

This article is general information, not legal advice about any person's situation. Results in any case depend on its specific facts and record.