Previous decisions of the VA which are final and binding such as decisions of service connection, age, marital status, duration of service, dependency, line of duty, extent of disability, and other issues decided by the VA are accepted as correct in the absence of clear and unmistakable error (CUE). Clear and unmistakable error is a legal argument that a VA decision was wrong. It is not enough, however, to simply allege that the VA was wrong. The veteran must prove that VA regulations and facts specific to his or her case, in existence and in the case file at the time the VA issued its decision, could have led to only one conclusion and that the VA adopted the wrong conclusion. The veteran must show that the VA’s decision would have been manifestly different but for the alleged error of fact or law. Generally, CUE comes into play when the correct facts were not before the Board of Veterans’ Appeals or the regulatory provisions in existence at the time were incorrectly applied by the Board of Veterans’ Appeals.
For example, a veteran’s surviving spouse sought Dependency and Indemnity Compensation and was denied by the VA on the grounds that her deceased husband had not been honorably discharged, and thus, was not eligible for benefits. The veteran’s discharge status, however, had been upgraded to an honorable discharge some six months prior to his death and some ten months prior to the VA’s decision. Thus, the VA had knowledge of facts which would entitle the deceased veteran’s spouse to benefits, but the VA failed to consider the information. The VA’s failure to properly consider the facts before it laid the ground work for a CUE argument. Though CUE arguments are difficult to prove and are not very often granted, it is worth having an experienced Veteran’s Disability attorney at Gardberg & Kemmerly, P.C. evaluate your case.