If you spend any time at all in the various veterans forums where claims are talked about, you’re going to hear the term CUE thrown around a lot. People talk about it like it’s a magic bullet – a way to go back in time, and fix an error VA made and get all the back pay that you should have gotten if they had gotten it right the first time.
That’s true. And it’s also very misleading. The thing is, CUE claims are VERY difficult to win. You have to have a very clear idea of what the law is and how it applies to your case. But not just today’s law – you have to know what the law was at the time the claim was originally decided. It’s a tough road to win.
I’m setting out today to explain what a CUE and how it can work, and to do that I’m going to use an actual case. The veteran in question gave me permission to discuss the particulars of his case, with private information withheld of course. But it’ll help give you a clear idea of what a CUE is, how to identify one, and how to win.
WHAT IS A CUE
A CUE is technically not a claim. It’s an attack a previously decided final claim, and in legal terms, it means it has to be an error that is so obvious that too people couldn’t possibly disagree on it. This by itself is one of the toughest hurdles to climb, because it has to be undebatable, absolutely clear.
A CUE allegation has to show one of these two things:
- Either the facts as VA knew at the time weren’t in front of the rater when he or she made their decision, or they overlooked those facts
- The decision incorrectly applied the law and regulations as they existed at the time of the decision
Both of these things require that you know what evidence was available at the time to the rater, and that you know what the regulations said at the time. For the first, you need the complete c-file. For the second, you need copies of the Code of Federal Regulations as of the date the decision was made.
A CUE has to be based on a final claim. If you’re still in the appeal window, it’s not a CUE. If you have an appeal pending, it’s not a CUE. It has to be a closed, final claim.
Your CUE argument has to be completely specific. You have to specify -exactly- what evidence was overlooked, and -exactly- what regulations were misapplied.
Finally, the CUE had to have manifestly changed the outcome. It can’t be a harmless error – you have to be able to show that because of the error, you lost benefits you were entitled to.
What is NOT a CUE?
38 CFR gives examples of what is not a CUE. These include:
- Changed diagnosis
- If VA failed in its duty to assist
- Disagreements about how the facts were weighed
CASE Study
In this case study, Mr. S was a Gulf War veteran of the US Navy who served in the early 1990s. During his service he suffered a TBI and back injuries that resulted in him being medical retired. The main disability noted at the time was involuntary urinary retention—the veteran had to sometimes catheterize himself in order to urinate.
In July 1994, VA issued a rating decision granting 10% for urinary retention.
Quoting from the July 1994 rating decision: “(1) The veteran was noted to have a twisting injury to his back in October of 1992. Veteran complained of urinary retention requiring catheterization approximately once to twice per week. Veteran was also noted to have urinary leakage with soiling of his clothing… current VA examination reveals that the veteran continues to have urinary retentive problems which require self-catheterization approximately one to two times per month.” [emphasis added]
In 2018, decades later, VA granted an increase to 40% for this condition.
When VA rated this condition, VA applied diagnostic code 7512 (chronic cystitis) from the 1993 edition of 38 CFR, which specified that “mild” chronic cystitis be granted a 10 percent rating, which the veteran was granted.
However, on January 18, 1994, six months before the decision, VA adopted a final rule revising the rating criteria for genitourinary system (see Federal Register, Vol. 59, No. 11, Tuesday January 19, 1994, and 38 CFR §4.115a (1994 edition). The rules in effect at the time of the rating decision are clear: diagnostic code 7512 was to be rated as voiding dysfunction. Under voiding dysfunction, urinary retention requiring intermittent or continuous catherization is evaluated with a 30% rating.
Based on the above information, the issue here was that VA misapplied its own regulations. They made a mistake, by using an old version of the CFR to rate the claim.
In order to win this, I included with my appeal brief copies of the Federal Register notice From January 1994 announcing the final copy of the new regulations, along with copies of the 1993 and 1994 38 CFR citations.
The next piece was looking at rule 1403.
Was this a changed diagnosis? No
Was it a failure in VA’s duty to assist? No
Was it a disagreement over how the facts were weighed? Also no.
This was a decision which had become final decades before.
Finally, did it manifestly change the outcome? It certainly did … the veteran was rated 10% from 1993 until 2018.
We filed the CUE allegation in July of 2022. It was granted in November 2022. The difference between 10% and 40% over a nearly thirty-year period awarded the veteran $68,260 in back pay.
How can you apply this information?
First, because CUE claim are VERY hard to win, and require a deep understand of the law in effect at the time the decision was made, I don’t recommend filing them without representation. VA has no duty to assist with CUE claims, and in most cases they will actively fight them.
Second, make sure you have a copy of your complete c-file. It’s important to know when VA received evidence, what they received and whether or not items were overlooked.
Third, it’s important to thoroughly do your research. If you’re doing this on your own, consult with other, get advice, read the CFR and know what you are talking about.
