It probably goes without saying: The VA oftentimes makes mistakes in handling Veterans’ disability claims. Afterall, VA staff are only human, and the VA is a huge bureaucracy — even with the recent staff reductions the VA expects to have nearly 400,000 employees at the end of this year. Common mistakes the VA makes in disability claims include misinterpreting evidence, improperly applying regulations, and failing to adequately develop claims. These can lead to incorrect disability ratings, delayed benefits, and denied claims.
If the VA makes a mistake on your case, there are several steps you can take, including requesting a Higher-Level Review, Supplemental Claim, or in specific situations, a Clear and Unmistakable Error (CUE) Claim. The first step to take in correcting an error is to identify the error, but you need to be specific. Basic dissatisfaction with a VA decision or just vague complaints aren’t enough to win a reversal. Then you need to gather the necessary evidence. You should also consider seeking assistance from a VA-accredited attorney which statistics show will increase your chances of success.
You have three specific options to appeal an incorrect decision.
- Higher-Level Review:
If you have no additional evidence to submit in support of your claim but you believe that there was an error in the initial decision, the Higher-Level Review option may be your best choice. The Higher-Level Reviewer will only consider evidence that was in VA’s possession at the time of the prior decision. You or your attorney will not be able to add new evidence if you are in the Higher-Level Review lane. You or your attorney can request an optional, one-time, informal telephone conference with the Higher-Level Reviewer to identify specific errors in the case, although this may cause a delay in the processing of your Higher-Level Review.
- Supplemental Claim:
If you have new and relevant evidence that the VA hasn't already considered, a Supplemental Claim allows you to submit this new evidence and have it reviewed. The VA says that “new” evidence is simply that — evidence submitted to the VA for the first time. It cannot be information that is already in VA records. It cannot be evidence a Veteran has previously provided to the VA or evidence the VA has legally acquired on behalf of the Veteran. “Relevant” evidence is a fact or facts that VA did not have enough evidence to verify at the time of their prior decision — a fact or facts that are necessary to substantiate the claim.
- CUE Claim:
This is the final way to fight for a reversal of a VA decision denying disability benefits. CUE is an acronym that stands for “clear and unmistakable error”. Technically this is not a claim at all, but a type of request which more correctly should be called a motion for revision of an error. In order to win a CUE claim, you must overcome three hurdles: You must show the VA erred in fact or law. You must show that the error is undebatable. And then you must show that the outcome would have been different if it wasn’t for that error.
Gathering Evidence
If a duty to assist error is identified (meaning the VA failed to properly gather evidence), the VA is obligated to assist you in obtaining the necessary information. For Supplemental Claims, you or your attorney will need to gather the evidence, and you will have to submit it on your own. For CUE claims, you'll need to clearly explain the error and how it would have changed the outcome.
Deadlines
Your request for a Higher-Level Review or Supplemental Claim must be filed within one year of the date on the VA's decision letter for the original claim or previous decision review. A CUE Claim can be filed at any time, even years or decades after the claim was decided or the appeal denied.
Because each situation where the VA has made a mistake has its own unique set of facts and conditions, there is no “one size fits all” here. Choosing the best option is best decided by specific analysis of your unique situation. Therefore, it is best to consult with a VA-accredited attorney to talk about your options and get guidance in deciding what makes the most sense for your individual case.
When you hire an experienced VA disability attorney you have a much greater chance of winning your claim than if you have no representation. The VA’s own statistics from the Board of Vs Appeals show that in fiscal 2024 nearly 43% of appeals were approved with attorney representation, compared to less than 30% without representation.
Veterans represented by attorneys also experience a lower denial rate for their claims. The denial rate for Veterans with attorney representation before the BVA was less than 15% compared to more than 21% of claims were denied among those Veterans with no representative to fight for their rights. VA disability attorneys also had a higher success rate than any of the Veteran Service Organizations.
Contact us at Cuddigan Law for a free evaluation of your situation. And if you hire us, we only get paid when you win your case.
