As a general rule, when the VA awards service-connected disability benefits, the effective date for the award is the date of the latest claim the veteran has filed. There are, however, a very few exceptions to this general rule which allow the VA to assign an earlier effective date if an earlier claim was denied. One of these exceptions allows a veteran to request that an earlier rating decision (or decision by the Board of Veterans’ Appeals) be revised. You will often hear this type of request improperly called a “CUE claim.” “CUE” is an acronym for “clear and unmistakable error.” In reality, there is no such thing as a “CUE claim.” This type of request is properly entitled a “motion for revision based on clear and unmistakable error.”
A motion for revision of an earlier decision is rarely granted but can be a useful tool for getting an earlier effective date in the right case. A motion for revision should only be made when the VA made a specific type of error and but for that error, the VA would have granted the claim. A motion for revision is appropriate when the VA erred by incorrectly applying the law that was in effect at the time of the prior decision and when the facts are clear that the claim would have been granted if the law had been correctly applied. It is much easier to demonstrate that VA did not apply the law correctly than it is to try to show that it did not evaluate the facts correctly.
Motions for revisions have very specific pleading requirements. It is important to lay out the history of the claim and, particularly, the facts as they were known at the time of the challenged rating decision. VA will not consider evidence submitted after the challenged rating decision when determining if a clear and unmistakable error was made in making that prior decision. The motion must also specifically include the error that the veteran alleges was made in that prior decision and must show that the VA relied on that error in making its decision. You must describe the error that VA made and explain why there would have been a different outcome if the error had not been made. In other words, you must explain how the VA would have been required to grant your claim under the facts and law at the time if it had not made the error.
Some examples of clear and unmistakable errors that occur with some frequency are:
- Improper reduction of benefits where VA does not make the required findings before reducing a veteran’s rating.
- VA failure to acknowledge that a veteran is entitled to a presumption of soundness if he or she entered service without any disabilities being noted on entrance
- VA failure to recognize that the veteran should have been service connected for a chronic disability which manifested itself after the veteran left service but within a time period established by the regulations (for example, psychoses within one year after discharge or multiple sclerosis within seven years after discharge)
- VA failure to apply the Agent Orange/herbicide presumption to brown water veterans
- VA failure to award special monthly compensation (SMC-S) to a veteran who has one disability rated 100% and a combination of other disabilities rated 60% or higher
Some examples of situations where a motion for revision based on CUE will not be successful are:
- A deferred rating decision in which the VA has not yet made a final decision
- A proposed rating decision in which, again, VA has not yet made a final decision
- VA’s failure to assist the veteran in obtaining documents
It is important to note that if your motion for revision is not specific enough or does not meet the VA established standards for a motion for revision, VA can and will dismiss the motion. If the decision is a rating decision from a regional office, the veteran can correct and re-file his or her motion as many times as necessary. There is no limitation on the number of times a veteran can file a motion to revise a particular rating decision. However, if the decision is a decision from the Board, a veteran only gets one shot at a motion for revision. If the motion isn’t done correctly at the Board level, VA will dismiss the motion with prejudice, which means that it cannot be re-filed, and the veteran will be barred from any further efforts to show clear and unmistakable error in the Board’s decision.