VA CUE: Clear and Unmistakable Error on the Old Record

What CUE is, and what it is not

CUE is a request to revise a final decision because it was already wrong when it was signed. § 3.105(a)(1) says final decisions are accepted as correct on the evidentiary record and the law that existed at the time, in the absence of clear and unmistakable error.

If CUE is found, the corrected decision has the same effect as if it had been made on the date of the reversed decision. That is the statute and the regulation. It is why people talk about CUE and old effective dates in the same breath. It is not a reason to invent a dollar example. The math, if any, follows the corrected decision and the veteran's actual history.

CUE is not a fourth AMA lane. 38 CFR § 3.2500(f) even says you cannot file a supplemental claim from the denial of a CUE request.

CUE is not "I still disagree." 38 CFR § 20.1403(d)(3), which § 3.105(a)(1)(vi) points to, says a disagreement as to how the facts were weighed or evaluated is not CUE.

CUE is not a bad exam, by itself. A later, better exam is new evidence. New evidence is for a supplemental claim.

CUE is not a duty-to-assist failure. § 20.1403(d)(2) says that failure is not CUE. An incomplete record is not the same as an incorrect one.

CUE is not a change in how the law is later interpreted. § 3.105(a)(1)(iv) says so. A later court case that reads a regulation differently does not make the old correct application into CUE.

And CUE is not a place to dump new medical records. § 3.105(a)(1)(iii) says the review is based on the evidentiary record and the law that existed when the decision was made. Duty to assist does not apply to the CUE request.

The actual rule

38 U.S.C. § 5109A says a decision of the Secretary is subject to revision for CUE. The request may be made at any time. VA or the claimant can start it. If evidence establishes the error, the prior decision is reversed or revised. For authorizing benefits, the corrected decision is treated as if it had been made on the date of the prior decision.

38 CFR § 3.105(a)(1)(i) defines the error. It is a very specific and rare kind of error of fact or of law. When called to the attention of later reviewers, it compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. If it is not absolutely clear that a different result would have ensued, the error is not clear and unmistakable. Generally, either the correct facts as they were known at the time were not before VA, or the statute and regulation then in force were incorrectly applied.

§ 3.105(a)(1)(v) blocks AOJ CUE on an issue that has already been decided on appeal by the Board or a court.

Filing requirements are picky on purpose. § 3.105(a)(1)(vii) requires a signed writing with the claimant's name, the requester if different, the VA file number, and the date of the decision. If the decision had more than one issue, identify the issue. Then set forth clearly and specifically the alleged error of fact or law, the legal or factual basis, and why the result would have been manifestly different. Non-specific allegations of failure to follow regulations, failure to give due process, or other general error are not enough.

There is no official CUE form in the same way there is a 20-0995. The regulation wants a specific written request, not a vibe.

Board CUE has its own parallel rule in 38 CFR § 20.1403. Same definition. Same "what is not CUE" list: changed diagnosis, duty-to-assist failure, disagreement about weighing.

What to look at on the letter and on VA.gov

You need the decision you are attacking and the evidence that was actually in the file that day. Not the evidence you wish had been there. Get the C-file or at least the rating decision, codesheet, and the exams then of record.

Read the decision for the law it cited. CUE is about the law then in force. A 1998 decision is not judged by a 2022 regulation.

If a later Board decision already decided that issue, AOJ CUE is the wrong door. § 3.105(a)(1)(v).

If VA denies the CUE request, that denial has its own review rights. It is not a supplemental-claim problem. § 3.2500(f).

Evidence that helps

CUE is not an evidence-gathering project. The useful "evidence" is usually the old file plus a precise legal map.

The old decision. The old exams. The old service records that were already in the file. The regulation text as it existed on the decision date.

A short, specific allegation. "The January 12, 2014, rating decision applied the wrong diagnostic code to the already-diagnosed condition then of record, and under the schedule then in force the only available evaluation was X. The result would have been manifestly different." That is the shape. Whether it is true is a case-specific question for an accredited representative.

Do not attach a 2026 MRI and call it CUE. That MRI is new evidence. Use a supplemental.

Do not write "VA failed to assist" and call it CUE. The regulation already said no.

Mistakes to avoid

Being vague. "They messed up" is the allegation § 3.105(a)(1)(vii)(B) says is insufficient. Those get dismissed without a merits look.

Attacking a weighing call. Two doctors, rater picked one. That is not CUE.

Attacking a missing exam. Duty-to-assist failure is not CUE.

Inventing a back-pay figure. If CUE is granted, the corrected decision is treated as if it had been made on the old date. The actual payment, if any, depends on the corrected rating, offsets, and the veteran's record. No one can honestly quote your number from a blog post.

FAQ

What is clear and unmistakable error?

A rare error of fact or law on a final decision. It must compel the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different. 38 CFR § 3.105(a)(1)(i).

Can I use new medical evidence in a CUE request?

No. The review is limited to the record and the law that existed when the decision was made. § 3.105(a)(1)(iii). New evidence belongs in a supplemental claim.

Is a duty-to-assist mistake CUE?

No. 38 CFR § 20.1403(d)(2).

Is there a deadline to file CUE?

38 U.S.C. § 5109A(d) says the request may be made at any time after the decision is made. "Any time" is not the same as "easy."

What happens if CUE is granted?

The corrected decision has the same effect as if it had been made on the date of the prior decision. 38 U.S.C. § 5109A(b); 38 CFR § 3.105(a)(1)(ii). Any payment consequence is case-specific.

Can I file a supplemental claim after VA denies my CUE request?

Not to review that CUE denial. 38 CFR § 3.2500(f). You still can use ordinary lanes on other decisions, and you still can file a properly pled CUE theory that was not the one just denied.

Primary sources

• 38 CFR § 3.105
• 38 U.S.C. § 5109A
• 38 CFR § 20.1403
• 38 CFR § 3.2500
• Decision reviews FAQs

Educational content only. Not legal or medical advice. Confirm against the veteran's actual notice and current eCFR / VA.gov. For claim-specific help, use a VA-accredited VSO, claims agent, or attorney.