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Updated Aug 12, 2024

In This Section
This section contains the following topics:
Topic
Topic Name
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1.    General Information on CUEs

Introduction

 This topic contains information on CUEs, including

Change Date

 August 19, 2021

X.ii.5.A.1.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 the Department of Veterans Affairs (VA) during the adjudication of a claim.
Reference:  For more information on the definition of CUE, see

X.ii.5.A.1.b.  Provisions of 38 CFR 3.105(a)
38 CFR 3.105(a) provides that if a CUE is established in a previous, final decision, then the
  • previous decision is reversed or amended, and
  • the effect is the same as if the corrected decision had been made on the date of the reversed decision.
Note:  Binding decisions may be revised based on CUE prior to final adjudication if the outcome is clearly erroneous, as discussed in M21-1, Part X, Subpart ii, 1.A.1.f, 38 CFR 3.104, and 38 CFR 3.105(a)(2).
Exceptions:
  • protection of evaluation in effect for 20 years or more under 38 CFR 3.951(b), and
  • protection of service connection (SC) in effect for 10 years or more under 38 CFR 3.957.
References:  For more information on

X.ii.5.A.1.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).
Important:  A duty to assist deficiency such as an insufficient examination cannot form a basis for CUE since such deficiency creates only an incomplete rather than an incorrect record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) and Caffrey v. Brown, 6 Vet.App.377, 384 (1994).
Exception:  A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim.  See VAOPGCPREC 12-1995.
References:  For more information on

2.    Handling Revision Requests Based on CUE

Introduction

 This topic contains procedures for handling revision requests based on CUE, including

Change Date

 August 15, 2022

X.ii.5.A.2.a.  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 the 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.
Important:  If a CUE finding has been determined, it may affect subsequent rating decisions to the extent that revisions in the subsequent rating decisions may be required.  See Pirkl v. Wilkie, 906 F. 3d 1371 (Fed. Cir. 2018).
References:  For more information on

X.ii.5.A.2.b.  Responding to a Request for Revision Based on CUE
For an error to rise to the level of CUE, the error must have been made on the record as it existed at the time the prior decision was made.  New evidence cannot be considered in a request for revision based on CUE.  Consequently, there is no requirement to send Section 5103 notice or any other type of initial development.
If the claimant presents a valid allegation of CUE, as outlined in M21-1, Part X, Subpart ii, 5.A.2.a, refer the case to the rating activity for review.
Reference:  For more information on the requirement that CUE be based on the record as it existed at the time of the prior decision, see

X.ii.5.A.2.c.  Responding to Invalid Requests for Revision Based on CUE
Use the table below to determine how to respond to an invalid CUE request.
If the assertion of CUE …
Then send a letter that includes the following notification language …
is non-specific as defined in M21-1, Part X, Subpart ii, 5.A.2.a
We received your allegation of a clear and unmistakable error (CUE) with our decision dated [insert date].  For VA to consider your request for revision based on CUE, you must specify the factual or legal error you believe VA made in our prior decision.  We will take no further action on your request until we receive this information.
was previously denied on the same factual basis
We received your allegation of a clear and unmistakable error (CUE).  We previously decided your allegation of CUE on the same basis and notified you of our decision on [insert date].  That decision is now final.  A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.  We will take no further action on your request.

X.ii.5.A.2.d.  Responding to a Request for an Earlier Effective Date 
Because VA has no authority to adjudicate a request for an earlier effective date based on a claim that is finally adjudicated under 38 CFR 3.160(d), regional offices (ROs) are not required to send a Section 5103 notice in these cases.  If the claimant requests a revision of the effective date of a prior decision based on a CUE, and specifies the factual or legal error in the previous claim, then the case is to be referred to the rating activity for review.
If a request for an earlier effective date of a prior claim is received and it is not based on a CUE which specifies the factual error, then send the claimant the Earlier Effective Date Letter.
Note:  If the only issue on the claim is the request for an earlier effective date, change the end product (EP) to a 400 and do not control for receipt of a response. (Clear the EP 400.)
Reference:  For more information on processing requests for an earlier effective date, see M21-1, Part V, Subpart ii, 4.A.8.

3.    Jurisdiction and Procedures for CUE Determinations

Introduction

 This topic contains information on jurisdiction and procedures for CUE determinations, including

Change Date

 August 12, 2024

X.ii.5.A.3.a.  Determining a Case of CUE
When determining whether there is a CUE
  • consider only the
    • law that existed at the time of the prior decision, and
    • evidentiary record that was before the rating activity at the time of the prior decision (to include medical records in VA’s constructive possession), and
  • determine whether the error would have by necessity changed the original rating decision.
Notes:
  • Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.
  • A new medical diagnosis (not erroneous diagnosis that warrants severance) that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.
  • The U.S. Court of Appeals for Veterans Claims (CAVC) held in George v. Wilkie, 30 Vet.App. 364 (2019) that applying a statute or regulation as it was interpreted and understood at the time of the decision does not become a CUE due to a subsequent court interpretation of the regulation or statute.  This holding was upheld by the U.S. Court of Appeals for the Federal Circuit in George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021).
Important:  Although CUEs are based on the record that existed at the time of the prior adjudication in question, a CUE finding that SC was predicated on a clearly erroneous diagnosis may be based on evidence that accumulated after the original decision to award SC.  In such cases, if severance of SC is warranted, follow the provisions of 38 CFR 3.105(d).  See Stallworth v. Nicholson, 20 Vet.App. 482, 488 (2006) and Daniels v. Gober, 10 Vet.App. 474 (1997).
References:  For more information on

X.ii.5.A.3.b.   Jurisdiction for Review of a CUE Allegation
Whether a decision was appealed to the Board of Veterans’ Appeals (BVA) or not determines the jurisdiction for review of a CUE allegation, either in fact or in substance.
Use the table below to determine
  • who has jurisdiction to review an allegation for a CUE determination, and
  • how to notify the claimant.
If …
Then the RO …
And a claims processor …
a decision has been affirmed by BVA
does not have jurisdiction to review the claim for a CUE determination
Rationale:  The RO does not have jurisdiction to consider a claim of CUE in a decision that has been subsumed by a BVA decision.
notifies the claimant
  • that the RO does not have jurisdiction to review the claim for a CUE determination
  • of the decision review rights, and
  • that a motion for reconsideration by BVA should be filed, if a review at that level is desired.
  • the decision was not appealed, but
  • a subsequent legacy reopened or supplemental claim was followed by a BVA affirmance
does not have jurisdiction to review the claim for a CUE determination
Rationale:  General Counsel has concluded that the RO does not have jurisdiction to consider a CUE claim where BVA has
  • reviewed the entire record of the claim following reopening, and
  • denied the benefits previously denied in the unappealed decision.
notifies the claimant
  • that the RO does not have jurisdiction to review the claim for a CUE determination
  • of the decision review rights, and
  • that a motion for reconsideration by BVA should be filed, if a review at that level is desired.
Note:  All statements of the case for legacy appeals in which the issue on appeal involves a prior unappealed RO decision, followed by a claim to reopen the claim that was decided by BVA, should contain a citation to VAOPGCPREC 14-1995.
  • the decision was not appealed, and
  • a subsequent BVA decision merely
    • concludes that new and material or new and relevant evidence has not been submitted, and
    • denies reopening/ readjudication of the prior claim
does have jurisdiction to review the claim for a CUE determination
Rationale:  The BVA decision does not bar a claim of CUE in the prior unappealed RO decision.  General Counsel has concluded that when BVA limits its decision to whether new and material/relevant evidence was submitted, it does not decide the merits of the issues raised in the claim.
reviews the unappealed decision for CUE.
the allegation of CUE involves an issue that has not been affirmed by a BVA decision
does have jurisdiction to review the claim for a CUE determination
reviews the unappealed decision for CUE.

X.ii.5.A.3.c.  Applying the Benefit of the Doubt Under 38 U.S.C. 5107(b)

 The benefit of the doubt under 38 U.S.C. 5107(b) is not applicable to a CUE determination since
  • an error either undebatably exists, or
  • there was no error within the meaning of 38 CFR 3.105(a).
Reference:  For more information on applying the benefit of the doubt under 38 U.S.C. 5107(b), see Russell v. Principi, 3 Vet.App. 310 (1992).

X.ii.5.A.3.d. Approval of Ratings Prepared Under 38 CFR 3.105(a)

 All rating decisions prepared under 38 CFR 3.105(a) require the approval of the division manager, or a designated reviewer. Ratings prepared by Decision Review Officers (DROs) require the approvals discussed above if they address
  • severance of SC, or
  • a reduction in evaluation of a service-connected (SC) disability(ies).
Exception:  Approval of the division manager or designee is not necessary if the rating decision is the result of a BVA or CAVC decision.
Reference:  For more information on documenting approval of rating decisions, see the Draft Rating Approval (DRA) Job Aid.

X.ii.5.A.3.e.  Preparing a CUE Decision
Use the table below to prepare a CUE decision.
If …
And …
Then …
a DRO
  • finds a CUE on a prior decision
  • prepares a draft decision that proposes on the basis of the CUE to
    • reduce an SC evaluation, or
    • sever SC for a disability, and
  • requests approval review using the DRA functionality within the Veterans Benefits Management System – Rating (VBMS-R)
the designated reviewer approves via DRA functionality within VBMS-R
  • the DRO finalizes and signs the decision, and
  • the approving official’s signature will generate on the decision.
a DRO
  • finds a CUE on a prior decision
  • prepares a draft decision that proposes on the basis of a CUE to
    • reduce an SC evaluation, or
    • sever SC for a disability, and
  • requests approval review using the DRA functionality within VBMS-R
the designated reviewer does not agree
  • the designated reviewer documents any disagreement using the DRA functionality within VBMS-R, and
  • the DRO must revise the decision to remove the proposed CUE and confirm the existing decision.
a DRO
  • finds a CUE on a prior decision, and
  • writes up an allowance on the basis of a CUE
—
the DRO signs the decision.
a member of the rating activity
  • believes there is a CUE
  • prepares a draft decision, and
  • requests approval review using the DRA functionality within VBMS-R
the designated reviewer approves via DRA functionality within VBMS-R
  • the member of the rating activity who prepared the draft decision finalizes and signs it, and
  • the approving official’s signature will generate on the decision.
a member of the rating activity
  • believes there is a CUE
  • prepares a draft decision, and
  • requests approval review using the DRA functionality within VBMS-R
the designated reviewer does not agree
  • the designated reviewer documents any disagreement using the DRA functionality within VBMS-R, and
  • the member of the rating activity who prepared the draft decision removes the proposed CUE and confirms the existing decision.
Important:
  • If the CUE involves a rating issue, the decision maker who corrects the prior rating decision must include a certificate of error on the Codesheet.
  • The final decision reducing the evaluation or severing SC does not require the signature and approval of a designated reviewer unless new evidence has been received since the proposed decision was approved.
  • In all cases where a decision is revised through CUE authority, a copy of the revised decision should be provided to the person who prepared the original decision (or their supervisor) as a training tool.
References:  For more information on

X.ii.5.A.3.f.  Tracking Compensation CUE Decisions in the CUE Log
To minimize overpayments, underpayments, and inaccurately continuing beneficiaries for Compensation benefits, designated reviewers must log each CUE decision in the Compensation Service CUE Microsoft SharePoint site.
Follow the steps in the table below to enter each CUE into the Compensation Microsoft Service CUE SharePoint site.
Step
Action
1
Go to the Compensation Service CUE Microsoft SharePoint site.
2