U.S. Code » Title 38 » Part PART IV— GENERAL ADMINISTRATIVE PROVISIONS › Chapter CHAPTER 51— CLAIMS, EFFECTIVE DATES, AND PAYMENTS › Subchapter SUBCHAPTER I— CLAIMS

38 U.S.C. § 5109A

Revision of decisions on grounds of clear and unmistakable error

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(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)Statutory Notes and Related SubsidiariesEffective Date

Pub. L. 105–111, § 1(c)(1), Nov. 21, 1997, 111 Stat. 2272, provided that: “Sections 5109A and 7111 of title 38, United States Code, as added by this section, apply to any determination made before, on, or after the date of the enactment of this Act [Nov. 21, 1997].”

Notes of Decisions
Cited in 217 cases (29 in the last 5 years), 1997–2026 · leading case: James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003).
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James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). · cites it 15× “In its decision, the Veterans Court upheld the ruling of the Board of Veterans Appeals (“Board”) that the alleged failure of the Veterans’ Administration’s 1 Regional Office (“RO”) to give Mr. Cook a proper medical examination before denying his 1952 claim for service-connected…”
George v. McDonough, 596 U.S. 740 (2022). · cites it 7× “The Federal Circuit also affirmed, concluding that the application of a later invalidated regulation does not fall into the narrow category of “clear and unmistakable error” permitting revision of a final decision under 38 U. S. C. §§5109A and 7111. Held: The invalidation of a…”
Denise Jarrell v. R. James Nicholson, 20 Vet. App. 326 (Vet. App. 2006). · cites it 6× “§ 7111 and 38 U.S.C. § 5109A demonstrate that, pursuant to section 5109A, the Board lacks jurisdiction to review requests for revision in the first instance.”
Phillip Andre, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 301 F.3d 1354 (Fed. Cir. 2002). · cites it 5× “In other words, each “specific” assertion of CUE constitutes a claim that must be the subject of a decision by the BVA before the Veterans Court can exercise jurisdiction over it.”
Military Order of the Purple Heart v. Sec'y of Vets. Affairs, 580 F.3d 1293 (Fed. Cir. 2009). · cites it 10× “However, I part company with the majority in its holding that the EAP violates the Administrative Procedure Act ("APA"), the statute set forth at 38 U.S.C. § 5109A, and the regulation codified at 38 C.”
Thomas F. Cacciola v. Sloan D. Gibson, 27 Vet. App. 45 (Vet. App. 2014). · cites it 6× “at 13-20; Secretary's Suppl. Br. at 17-23; Appellant's Reply Br.”
Livesay v. Principi, 15 Vet. App. 165 (Vet. App. 2001). · cites it 4× “” See also 38 U.S.C. § 5109A. In Russell v. Principi, the Court defined CUE as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.”
Simmons v. Principi, 17 Vet. App. 104 (Vet. App. 2003). · cites it 5× “§ 7111 , whereas this case involves CUE as to an RO decision, which is governed by 38 U.S.C. § 5109A and 38 C.F.R. § 3.105 (2002).”
Pirkl v. Wilkie, 906 F.3d 1371 (Fed. Cir. 2018). · cites it 6× “Pirkl filed a motion under 38 U.S.C. § 5109A to revise, based on asserted clear and unmistakable error (CUE), the three VA decisions that left him without a 100% rating between late 1953 and late 1988, namely, the September 1953, December 1956, and April 1966 rating decisions.”
Douglas F. Pierce, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 240 F.3d 1348 (Fed. Cir. 2001). · cites it 4× “” 38 U.S.C. § 5109A (Supp. IV 1998). Mr. Pierce argues that this language does not in any way limit the evidence that can be considered to evidence that was before the RO when the decision was rendered.”
Claudus G. Smith, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 281 F.3d 1384 (Fed. Cir. 2002). · cites it 2× “Section 5109A(b) addresses the case of CUE more specifically: For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if…”
Thomas G. Joyce v. R. James Nicholson, 19 Vet. App. 36 (Vet. App. 2005). · cites it 4× “See 38 U.S.C. § 5109A (codifying into law VA regulation 38 C.”
Show all 217 citing cases →
— 38 U.S.C. § 5109A(a) — 30 cases
Douglas F. Pierce, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 240 F.3d 1348 (Fed. Cir. 2001). “” 38 U.S.C. § 5109A (Supp. IV 1998). Mr. Pierce argues that this language does not in any way limit the evidence that can be considered to evidence that was before the RO when the decision was rendered.”
Military Order of the Purple Heart v. Sec'y of Vets. Affairs, 580 F.3d 1293 (Fed. Cir. 2009). “However, I part company with the majority in its holding that the EAP violates the Administrative Procedure Act ("APA"), the statute set forth at 38 U.S.C. § 5109A, and the regulation codified at 38 C.”
Frank A. Glover, Claimant-Appellant v. Togo D. West, Jr., Sec'y of Vets. Affairs, 185 F.3d 1328 (Fed. Cir. 1999).
Michael T. Rudd v. R. James Nicholson, 20 Vet. App. 296 (Vet. App. 2006).
Willsey v. Peake, 535 F.3d 1368 (Fed. Cir. 2008).
— 38 U.S.C. § 5109A(b) — 19 cases
James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). “In its decision, the Veterans Court upheld the ruling of the Board of Veterans Appeals (“Board”) that the alleged failure of the Veterans’ Administration’s 1 Regional Office (“RO”) to give Mr. Cook a proper medical examination before denying his 1952 claim for service-connected…”
Pirkl v. Wilkie, 906 F.3d 1371 (Fed. Cir. 2018). “Pirkl filed a motion under 38 U.S.C. § 5109A to revise, based on asserted clear and unmistakable error (CUE), the three VA decisions that left him without a 100% rating between late 1953 and late 1988, namely, the September 1953, December 1956, and April 1966 rating decisions.”
Regina Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir. 2013).
Claudus G. Smith, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 281 F.3d 1384 (Fed. Cir. 2002). “Section 5109A(b) addresses the case of CUE more specifically: For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if…”
Phillip Andre, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 301 F.3d 1354 (Fed. Cir. 2002). “In other words, each “specific” assertion of CUE constitutes a claim that must be the subject of a decision by the BVA before the Veterans Court can exercise jurisdiction over it.”
— 38 U.S.C. § 5109A(c) — 4 cases
Gary D. Bradley v. James B. Peake, 22 Vet. App. 280 (Vet. App. 2008).
Livesay v. Principi, 15 Vet. App. 165 (Vet. App. 2001). “” See also 38 U.S.C. § 5109A. In Russell v. Principi, the Court defined CUE as follows: Either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.”
Theodore J. Dittrich, Claimant-Appellant v. Togo D. West, Jr., Sec'y of Vets. Affairs, 163 F.3d 1349 (Fed. Cir. 1998).
Allen - Key v. Nicholson, 21 Vet. App. 54 (Vet. App. 2007).
— 38 U.S.C. § 5109A(d) — 10 cases
Phillip Andre, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 301 F.3d 1354 (Fed. Cir. 2002). “In other words, each “specific” assertion of CUE constitutes a claim that must be the subject of a decision by the BVA before the Veterans Court can exercise jurisdiction over it.”
Military Order of the Purple Heart v. Sec'y of Vets. Affairs, 580 F.3d 1293 (Fed. Cir. 2009). “However, I part company with the majority in its holding that the EAP violates the Administrative Procedure Act ("APA"), the statute set forth at 38 U.S.C. § 5109A, and the regulation codified at 38 C.”
Theodore J. Dittrich, Claimant-Appellant v. Togo D. West, Jr., Sec'y of Vets. Affairs, 163 F.3d 1349 (Fed. Cir. 1998).
Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009).
Dittrich v. West, 11 Vet. App. 10 (Vet. App. 1998).
— 38 U.S.C. § 5109A(e) — 8 cases
Denise Jarrell v. R. James Nicholson, 20 Vet. App. 326 (Vet. App. 2006). “§ 7111 and 38 U.S.C. § 5109A demonstrate that, pursuant to section 5109A, the Board lacks jurisdiction to review requests for revision in the first instance.”
Simmons v. Principi, 17 Vet. App. 104 (Vet. App. 2003). “§ 7111 , whereas this case involves CUE as to an RO decision, which is governed by 38 U.S.C. § 5109A and 38 C.F.R. § 3.105 (2002).”
Military Order of the Purple Heart v. Sec'y of Vets. Affairs, 580 F.3d 1293 (Fed. Cir. 2009). “However, I part company with the majority in its holding that the EAP violates the Administrative Procedure Act ("APA"), the statute set forth at 38 U.S.C. § 5109A, and the regulation codified at 38 C.”
Burdett Huston v. Anthony J. Principi, 18 Vet. App. 395 (Vet. App. 2004).
Holderfield v. Principi, 19 F. App'x 866 (Fed. Cir. 2001).
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