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Unlock Decades of VA Back Pay: Understanding the Clear and Unmistakable Error (CUE) Motion
If you are a veteran whose claim was previously denied by the VA, you may feel you are past the point of recourse, especially if that denial occurred many years ago. However, there is a powerful legal tool that allows you to challenge a final VA decision, even if the one-year appeal period has long passed: the Clear and Unmistakable Error (CUE) motion.
Why CUE Motions Are So Powerful
A CUE motion is a procedure you can file with the VA if you believe a prior denial was based on a fundamental mistake.
When a CUE motion is successful, your earlier decision is not reopened; it is revised. This distinction is crucial. When a decision is revised, it is changed to conform to the true state of the facts or the law that existed at the time of the original claim or denial.
The greatest benefit of a successful CUE motion is the potential for significant back pay. If the VA finds a clear and unmistakable error, the effective date of your benefit grant is not the date you filed the CUE, but all the way back to the date of the original, faulty decision. For example, a successful CUE could grant you service connection and back pay dating back to 1992 or even 1989.
The statutory authority for CUE decisions dictates that the revision has the same effect as if the decision had been made correctly on the date of the prior decision.
No Time Limit, But Strict Requirements
One of the most remarkable aspects of the CUE motion is the time limit—or lack thereof. Unlike standard appeals, higher-level reviews, or supplemental reviews which generally have a one-year statute, you can file a CUE motion at any time, even decades after the VA decision becomes final.
However, winning a CUE motion is very difficult, as the government does not easily concede mistakes. CUE is a specific and rare kind of error.
To successfully establish a clear and unmistakable error, you must show the following three criteria existed at the time of the original decision:
- Incorrect Law or Facts: Either the facts known at the time were not before the VA, or the law then in effect was incorrectly applied.
- Based on the Original Record: The error must have occurred based upon the evidence and the law that existed at that specific time.
- Manifestly Different Outcome: Had the error not been made, the outcome of the claim would have been manifestly different. Reasonable minds would have been compelled to conclude a different result.
It is important to understand that generally, you cannot present new evidence when filing a CUE. The VA will look only at the evidence that was in your file when the original decision was made.
What Does Not Qualify as a CUE
Veterans often confuse errors in judgment or interpretation with CUEs, but the courts and the VA have defined CUE very narrowly. A CUE does not include:
- Arguing that the VA doctor’s medical diagnosis, which was relied upon by the VA, was wrong.
- Claiming the VA failed to fulfill its duty to assist (the “duty to assist” error).
- Disagreement with how the VA weighed or interpreted certain facts against others (e.g., arguing one fact was more “probative” than another).
- Arguing based on your personal interpretation of a statute or regulation.
However, you can make legal arguments, such as pointing to specific facts in the record—like a VA doctor diagnosing PTSD—that were ignored in the rating decision.
Filing Your CUE
To file, you submit your CUE request to the regional office of the VA that issued the initial decision, or you can file a motion with the Board of Veterans Appeals.
If you are not represented by a lawyer, you should notify the VA. If the VA knows you are unrepresented, they must give a sympathetic reading to your filings. While your filing does not have to be as detailed as a lawyer’s, it must be sufficient enough to clearly communicate what you are seeking.
While the potential reward of decades of back pay is immense, CUE is not a “cure all”. Veterans considering this route must carefully read their prior denial decision to identify specific, legal errors of fact or law based on the original record.
Tags: VA Back Pay, Clear and Unmistakable Error, CUE Motion, Veterans Benefits, VA Denial Reversal, Effective Date, VA Claims, VA Law, Disability Compensation, Service Connection, marketus