A VA decision from years or even decades ago may contain a Clear and Unmistakable Error (CUE) that can be corrected today. This article explains the three CUE requirements under 38 CFR 3.105(a), what qualifies as error versus a difference of opinion, retroactive effective dates, and why CUE almost always requires a VA-accredited attorney.
The three requirements for a CUE claim are:
- The error must be undebatable, not a mere difference of opinion.
- The error must have been in the record at the time of the decision.
- The error must have directly affected the outcome.
What qualifies as an error includes administrative mistakes, incorrect interpretation of law, or missing evidence that was clearly in the record. A difference of opinion, such as a disagreement over medical evidence, does not count.
If a CUE claim is granted, retroactive pay dates back to the original decision date, potentially resulting in a substantial lump sum. However, because CUE claims are complex and the VA rarely concedes errors, an accredited attorney's assistance is almost always necessary.
For more details, watch the full video from Professor Erica on YouTube.