VA Claim CUE/Clear and Unmistakable Error
Published April 19, 2020
Definition of a CUE
M21 III.iv.2.B.4.a. Definition: CUE
Under 38 CFR 3.105(a) a clear and unmistakable error (CUE) exists if all three of the following requirements are met:
Either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied
The error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and
The determination must be based on the record and the law that existed at the time of the prior adjudication in question.
Notes:
CUEs are undebatable. If it is not absolutely clear that a different outcome would have resulted, the error complained of cannot be clear and unmistakable.
CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim.
M21 III.iv.2.B.4.c. Identifying a CUE
A CUE will fall into one or more of the following categories:
The decision maker failed to apply or incorrectly applied the appropriate laws or regulations. (Note: These legal errors commonly involve pre-reduction due process or the failure to apply a statutory or regulatory presumption)
The decision maker overlooked material facts of record, or
The decision maker failed to follow a procedural directive that involved a substantive rule (a rule that regulates a right).
M21 III.iv.2.B.4.d. Considering Requests for Revision Based on CUE
Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or his/her authorized representative.
In a valid claim of CUE, the claimant must set forth clearly and specifically the alleged error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.
Notes:
A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.
If the CUE alleged is different from a CUE issue previously rejected, use a rating to determine whether or not a CUE was made on the new issue.
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