Clear and Unmistakable Error (CUE) Claims

Who qualifies for a CUE Claim

• The decision you are challenging is final (the appeal period expired and it was not appealed).
• The error is one of fact or law that existed in the record at the time of the decision.
• The error is undebatable — reasonable adjudicators could not disagree about it.
• Correcting the error would have manifestly changed the outcome of that decision.
• There is no deadline; decisions from decades earlier can be challenged.

This describes the general criteria in the regulation. Whether they are met in a specific case is decided by the VA, not by any representative.

How the CUE Claim process works, step by step

1. 1

   Obtain the claims file

   A CUE motion is decided on the record as it existed at the time. The rating decision, codesheet, and the evidence then of record are the entire universe of proof.

2. 2

   Isolate a specific error

   The motion must name the decision by date and identify the exact error — a misapplied diagnostic code, an ignored statutory presumption, or a regulation not applied as written.

3. 3

   Apply the three-part test

   The argument must show the error was outstanding and undebatable, based on the record and law then in effect, and outcome-determinative.

4. 4

   File the written motion

   Filed with the Regional Office for RO decisions, or as a motion to the Board for Board decisions under 38 CFR § 20.1400.

5. 5

   Decision

   If granted, the decision is revised as though the correct result had been reached originally, and past-due benefits run from that original effective date.

Key facts and where they come from

• A CUE finding revises the decision retroactively, so benefits run from the effective date of the erroneous decision.

  38 CFR § 3.105(a)

• A disagreement with how evidence was weighed can never constitute CUE.

  Russell v. Principi, 3 Vet. App. 310 (1992)

• Motions alleging CUE in a Board decision are governed by a separate rule set at 38 CFR §§ 20.1400–20.1411.

  38 CFR Part 20, Subpart O

HLR vs Supplemental Claim vs Board Appeal vs CUE vs Effective Date

The lanes are not ranked — they answer different problems. The fastest way to pick one is to ask what actually went wrong in the last decision.

Timing figures are the VA's own published processing goals, not predictions about any individual claim.

CUE Claim — frequently asked questions

How far back can a CUE claim go?

There is no time limit. A final decision from the 1970s or 1980s can be challenged today, and if CUE is found, past-due benefits run from that original effective date.

What is not CUE?

A different weighing of the same evidence, a later change in law or medical understanding, a failure of the duty to assist, or the argument that the VA should have ordered a better exam. Courts have held none of these can be CUE.

Do I get one CUE attempt per decision?

Essentially yes, per theory. Once a specific CUE allegation is decided, that theory cannot be raised again for that decision, so the motion needs to be right the first time.

Can I submit new evidence with a CUE motion?

No. CUE is decided strictly on the evidence that was in the file when the challenged decision was made, under the law in effect at that time.

What are common winning CUE theories?

The most frequently successful theories involve the plain misapplication of a rating schedule criterion, failure to apply a statutory presumption that clearly applied, or an arithmetic error in the combined-rating table under 38 CFR § 4.25.

Is CUE work fee-eligible?

Yes. A CUE motion challenges a decision the VA already issued, so an accredited agent may charge a contingent fee. Oakridge caps its fee at 20% of past-due benefits, disclosed in writing before work begins.

Related guides on cue claim

• Earlier effective date claims
• CAVC precedent tracker