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Motions for Revision Based on Clear and Unmistakable Error

Many former servicemembers become understandably frustrated and disheartened when they receive a denial for VA disability compensation benefits. However, it is important to remember that you always have the option to pursue an appeal regardless of the VA’s reasons for denying your claim.

Unfortunately, the VA may award partial benefits on appeal or an effective date that is incorrect. With the help of a VA-accredited attorney, you can file an additional appeal challenging the rating or effective date assigned. However, you may find yourself in a position where you have not filed an appeal in the time allotted; even if your appeal time has expired, you may be able to file a motion for revision based on clear and unmistakable error.

Motions for revision based on clear and unmistakable error (CUE) can provide disabled veterans a second chance at obtaining the full amount of available benefits when they otherwise neglected to file an appeal promptly. Requesting revision based on CUE is a collateral attack on an otherwise final VA decision and is rather rare. VetLaw’s team of qualified lawyers can help you review a prior VA decision and understand the purpose of CUE motions and how to pursue them.

VA Mistakes

Filing a motion for revision based on clear and unmistakable error is appropriate when a former servicemember believes that the VA made an obvious mistake which was detrimental to their acquisition of benefits, and when they have neglected to file an appeal within the time allowed. Motions for revision based on CUE are not used when a veteran has not submitted the required information or when a veteran disagrees with VA’s weighing of the evidence.

Rather, 38 CFR §20.1403 states that a clear and unmistakable error involves a conclusion “to which reasonable minds could not differ,” or in other words that which is obvious in reviewing the facts and the law that was in place at the time of the prior decision. A motion for revision based on CUE must allege that a VA employee made a critical error that any reasonable VA employee, looking at the same facts and the law that existed at the time of the decision would not have made.

Examples of such errors include:

  • A failure to acknowledge a veteran’s sound health before entering the military, otherwise known as the presumption of soundness
  • A failure to accept a veteran’s application based on a presumptive service-connected condition
  • Not giving proper consideration to evidence in a case which would manifestly change the outcome of the decision

A VA-accredited lawyer can help you determine whether a motion for revision based on clear and unmistakable error is appropriate for your appeal.

When to File a Motion for Revision based on CUE

A motion for revision based on CUE can be a strategic part of any plan for obtaining the maximum VA disability compensation benefits for which you qualify. Both Regional Office (RO) and Board of Veterans Appeals (BVA) decisions are subject to revision based on these motions. However, one important distinction is that while you can file multiple motions for revision based on CUE for a single RO decision, only one motion for revision based on CUE may be filed for a BVA decision. It is crucial to consult with a VA disability attorney prior to filing a motion for revision based on CUE in a BVA decision.

Another important thing to keep in mind on these motions is that VA will routinely deny the majority of these. However, VetLaw’s team of skilled attorneys has experience both filing these motions in the first instance as well as appealing the denial. Denials of these motions at the Regional Office may be appealed to the Board of Veterans Appeals; if your motion for revision has been denied at the BVA, you can appeal that determination to the United States Court of Appeals for Veterans Claims.

VetLaw’s team of skilled attorneys can help you by reviewing your prior decision, and in filing a motion for revision based on clear and unmistakable error. In addition, if you have already received a decision based on a motion you filed on your own, VetLaw can review that decision and determine what next steps you may be able to take.

Ask an Attorney About Motions for Revision Based on Clear and Unmistakable Error

Motions for revision based on CUE can lead the VA to reconsider a claim regardless of how old the decision is. Although a motion for revision based on CUE in a Regional Office decision may be filed multiple times, a motion for revision based on CUE in a BVA decision may generally only be requested one time.

A VA-accredited lawyer can help you determine whether your VA decision contains clear and unmistakable error and whether filing a motion for revision based on CUE would be your best move. In this process, VetLaw’s team of attorneys can review your prior decision, the evidence of record at the time of that decision, and explain what the law was at the time the decision was made. Don’t hesitate to contact VetLaw today if you have a decision which you feel contains clear and unmistakable error, even if your appeal time has expired.