In Part 1, we discussed what types of errors by the BVA constitute clear and unmistakable error (CUE). In this part, we are going to discuss how to file a CUE claim and how such claims are decided. A CUE claim can be brought no matter how long ago the initial BVA decision because final, but the BVA decision cannot have been appealed to the Court of Appeals of Veterans Claims (CAVC) or the Federal Circuit. Also, if the BVA decision is recent enough that the window for appealing to the CAVC is still open, a CUE claim cannot be brought until the time period for appeal is over. A BVA decision can also not be challenged on the basis of CUE if the same claim has been denied two or more times (the initial claim, and then one or more reopened claims) and the last claim was unsuccessfully appealed to the CAVC. Basically, if you have an old BVA decision that has not been appealed to the CAVC, it may be eligible to be challenged on the basis of CUE.
A motion to revise a previous BVA decision on the basis of CUE must be in writing, signed by the veteran or his or her representative, and include the veteran’s name, the VA filing number, the date of the BVA decision, and the specific issue or issues that the veteran is challenging. It is important to be clear that the motion is not a motion for reconsideration, but a CUE motion due to the fact that a BVA denial of a motion for reconsideration is not subject to review by the CAVC. The motion must allege specific errors of fact or law and why the result would have been different were it not for those errors. If the CUE motion is not specific enough, the BVA may dismiss the motion.
Note that a CUE is an original claim to the BVA, meaning the VA Regional Office plays no role in the decision. In addition, the benefit of the doubt rule that is in veterans’ favor for other claims does not apply and there is not duty to assist on the part of the VA. As noted in Part 1, new evidence cannot be submitted, but the BVA is authorized to grant hearing requests. A BVA decision on a CUE claim can be appealed to the CAVC. If a CUE claim is unsuccessful, that is typically the end of the line because a veteran cannot bring more than one CUE challenge for a claim. There are some instances in which a veteran is able to bring a second CUE challenge for the same claim, such as if the denial was for a procedural reason, but because of the general rule that only one CUE challenge per claim is allowed, it is important to clearly bring up every potential issue in the initial CUE motion.
This is a complicated subject, but we hope that this series of posts has helped you understand the particulars of CUE claims. Again, this is an important area of VA law to be aware of in case you have a claim that may have been decided by the BVA on the basis of CUE because the effective date for a claim that successfully argues CUE is typically the date that the VA received the previously denied claim, which could result in many years of retroactive benefits.
