Claim Raven explanation
What this means
A final Board decision can generally be reviewed for clear and unmistakable error, either on the Board's own motion or on a party's motion that meets the governing requirements.
This section establishes which final Board decisions are within the CUE review framework. It does not by itself show that an error qualifies as clear and unmistakable or select the right review path.
How this helps your claim
The rule excludes an issue that was appealed to and decided by a court of competent jurisdiction. It also excludes an issue that a court later decided. The court exception applies at the issue level, so the procedural history must show what the court actually decided. A party-initiated motion must follow section 20.1404, and other rules define the demanding clear-and-unmistakable-error standard.
What to check in your records
Identify the exact final Board decision and issue, then trace whether that issue was appealed to a court and actually decided there.
- Keep the complete final Board decision and its stamped mailing date.
- Preserve any notice of appeal, court order, memorandum decision, mandate, or dismissal tied to that Board decision.
- Build an issue map separating matters the court decided from matters it did not address.
Start with the final decision and court history
Use the Board decision's exact caption, date, and issue wording. Broad descriptions can hide whether the requested review concerns the same issue the Board decided.
If there was court review, compare each Board issue with the court's disposition before relying on this rule. A court appeal alone is not the whole inquiry; the regulation turns on an issue appealed to and decided by the court or later decided by it.
Can a final Board decision always be challenged for CUE?
No. The rule excludes an issue that a competent court decided, including an issue appealed from the Board and decided there or later decided by the court.
Official regulatory text
38 CFR § 20.1400
eCFR snapshot: 2026-09-17. Layout and spacing are adapted for reading. The full section and its tables are included below.
§ 20.1400 Rule 1400. Motions to revise Board decisions.
(a) Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision (as the term “party” is defined in Rule 1401(b) (§ 20.1401(b) of this part) in accordance with Rule 1404 (§ 20.1404 of this part).
(b) All final Board decisions are subject to revision under this subpart except:
(1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and
(2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction.
(Authority: 38 U.S.C. 501(a), 7111)
[64 FR 2139, Jan. 13, 1999, as amended at 64 FR 73414, Dec. 30, 1999]
Related references
- 38 CFR § 20.1409: Finality of a Board decision on a CUE motion
- 38 CFR § 20.1104: When a Board decision replaces the underlying VA decision
- 38 CFR § 20.6: When a representative may withdraw from a Board appeal
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