Clear and Unmistakable Error (CUE) Claims: Correcting Old VA Mistakes

Clear and Unmistakable Error (CUE) is the only way to reopen a final VA decision that is more than one year old and correct the effective date back to when the error occurred. A successful CUE claim can unlock years — sometimes decades — of retroactive benefits. But CUE has one of the strictest legal standards in veterans law, and most claims that feel like "obvious errors" do not actually meet the threshold.

What Qualifies as CUE

A Clear and Unmistakable Error must meet all four of these requirements simultaneously:

1. The error must be one of fact or law — not a difference of opinion or medical judgment
2. The error must be obvious from the record at the time — based only on evidence and law that existed when the decision was made
3. The error must be undebatable — reasonable minds could not disagree about whether it occurred
4. The error must have changed the outcome — if the VA had not made this error, the decision would have been manifestly different

This is an extremely high bar by design. CUE is not about proving the VA was wrong in hindsight. It is about proving the decision was indefensible at the time it was made.

Types of CUE

Errors of Fact

A factual CUE occurs when the VA misidentified or ignored undisputed facts that were clearly documented in the file:

• Wrong filing dates: The decision states your claim was received on a different date than what the certified mail receipt shows, resulting in an incorrect effective date
• Denying evidence exists when it does: The decision states there are no service treatment records when they are clearly present in the file
• Mathematical errors: The combined disability rating was calculated incorrectly using VA math
• Misidentifying service details: The decision states wrong branch of service or wrong service dates when the DD-214 clearly shows otherwise

Errors of Law

A legal CUE occurs when the VA applied the wrong law or failed to apply a mandatory provision:

• Failure to apply mandatory presumptions: Denying an Agent Orange claim for a Vietnam veteran with a presumptive condition, requiring nexus evidence when presumptive service connection was mandatory
• Wrong diagnostic code: Rating a condition under a code that clearly does not apply when no reasonable interpretation would support it
• Applying nonexistent standards: Basing a denial on a regulatory requirement that did not exist at the time
• Using wrong version of a regulation: Applying a regulation from a different time period than when the decision was made

What Does NOT Qualify as CUE

Even if the VA got your decision wrong, it is not CUE if:

• It was a medical judgment call: A C&P examiner's medical opinion, even if later proven incorrect, was a professional judgment at the time
• The VA weighed evidence differently than you would: Giving more weight to one piece of evidence over another is subjective, not an error
• A credibility determination was wrong: The VA chose to believe one account over another — that is their judgment to make
• New evidence proves the decision was wrong: New records showing your claim should have been granted is grounds for a Supplemental Claim, not CUE
• You found a better argument later: Discovering a stronger legal theory after the fact does not make the original decision CUE
• The law changed after the decision: If Congress or the courts changed the rule after your decision, the decision was not wrong at the time

Real-World CUE Examples

Example: Wrong Effective Date

A veteran filed a claim on March 15, 2010, proven by a certified mail receipt in the file. The VA's decision stated the claim was received July 20, 2010, and set that as the effective date. The receipt showing March 15 was right there in the file. This is CUE because the factual error is undebatable and it changed the effective date by four months.

Example: Mandatory Presumption Ignored

A veteran served in Vietnam from 1968-1969 (confirmed by DD-214) and filed a claim for Type 2 diabetes in 2005. The VA denied the claim, requiring a medical nexus opinion. But Type 2 diabetes was a presumptive Agent Orange condition at the time, meaning no nexus was needed for Vietnam veterans. Failing to apply this mandatory presumption is CUE.

Example: Rating Calculation Error

A veteran had three service-connected conditions rated at 60%, 40%, and 20%. The decision acknowledged all three but only included two in the combined rating calculation, omitting the 20%. Including all three changes the combined rating from 80% to 90%. This is CUE because it is a simple mathematical error, not a judgment call.

How to Evaluate Whether You Have a CUE Case

Before investing time and resources, honestly assess your potential claim:

Step 1: Get the Original Decision

Obtain the actual decision letter from the time of the alleged error. You need the exact document, not a summary.

Step 2: Get Your Claims File From That Period

Request the records that were in your file at the time of the decision. CUE is based on what the VA had, not what you can gather now.

Step 3: Research the Law at the Time

Look up the regulations and court precedents that were in effect when the decision was made. The law may have been different then.

Step 4: Apply the Reasonable Minds Test

Ask yourself honestly: could a reasonable person look at this evidence and this law and reach the same conclusion the VA did? If the answer is yes — even reluctantly — it is probably not CUE.

Step 5: Consult a Professional

CUE claims are among the most complex in veterans law. Before filing, have an experienced VA-accredited attorney or knowledgeable VSO evaluate your case. An honest professional assessment can save you years of effort on a claim that does not meet the standard — or confirm that you have a strong case worth pursuing.

Filing a CUE Claim

CUE claims are filed using VA Form 21-526EZ or by letter. Label your claim clearly as a "Clear and Unmistakable Error Claim" and identify the specific decision you are challenging. Your written argument must:

• Identify the exact decision by date
• Quote the specific erroneous language in the decision
• Cite the evidence in the file that proves the error (with page numbers)
• Explain why no reasonable interpretation supports the VA's conclusion
• Show that the error changed the outcome
• Reference the legal framework: 38 U.S.C. Section 5109A and 38 C.F.R. Section 3.105(a)

Is CUE Worth Pursuing?

CUE claims have low overall success rates and can take years to resolve. But when they succeed, the financial impact can be enormous because retroactive benefits are calculated back to the date of the original error.

Consider pursuing CUE when:

• The error is genuinely undebatable (not just "obviously wrong to you")
• The retroactive benefits would be substantial (years of back pay)
• You have the resources to pursue through multiple appeal levels
• A qualified attorney has evaluated your case and agrees it meets the CUE standard

Skip CUE when:

• You are within the one-year appeal window (use standard appeals instead)
• The error involves medical judgment or credibility (these are not CUE)
• You have new evidence (file a Supplemental Claim)
• The retroactive benefits would be minimal