Federal Circuit Dismisses Veteran's CUE Appeal for Lack of Jurisdiction

Federal Circuit Dismisses Veteran's CUE Appeal for Lack of Jurisdiction

The U.S. Court of Appeals for the Federal Circuit dismissed a veteran's appeal over an earlier effective date for unemployability benefits, ruling on August 27, 2026 that it has no authority to review how the Board and the Veterans Court applied a settled legal standard to her specific facts.

Information last verified on August 28, 2026.

Jurisdiction note: This case involves federal veterans benefits law and a federal appellate jurisdictional statute, 38 U.S.C. section 7292. The rules described in this article apply nationwide to every veteran's claim, regardless of the state where the veteran lives or filed.

What Happened

Tiffany M. Campbell served in the U.S. Army from January 2006 to January 2009. In February 2009, she filed a claim for service connection for post-traumatic stress disorder and other conditions. In May 2009, a VA regional office assigned her a 70 percent disability rating for PTSD.

More than seven years later, in September 2016, Campbell filed a formal claim for total disability based on individual unemployability, known as TDIU. The VA granted it in November 2016 with an effective date of September 2016, the date she filed. In July 2019, she moved to revise the May 2009 rating decision, arguing it contained clear and unmistakable error because her PTSD claim, combined with evidence of unemployability already in the file, amounted to an informal TDIU claim the regional office should have recognized and adjudicated back in 2009.

The regional office found no CUE, and Campbell appealed to the Board of Veterans' Appeals. In November 2020, the Board denied an effective date earlier than September 2016, again finding no CUE in the 2009 decision. Campbell appealed to the Court of Appeals for Veterans Claims, which in June 2022 vacated that Board decision and sent the case back, holding that the Board had noted Campbell's arguments but never fully addressed them and had wrongly asked whether she was entitled to TDIU in 2009 rather than whether she had raised a claim for it.

On remand, in January 2023, the Board again found no CUE, concluding that Campbell "did not reasonably raise the issue of entitlement to TDIU" in 2009 and that "reasonable minds could have differed as to whether the Veteran submitted evidence of unemployability," which the Board said falls short of CUE. Campbell appealed that 2023 Board decision to the Veterans Court, arguing the Board had misapplied the Roberson standard. In October 2024, the Veterans Court affirmed. Campbell then appealed to the Federal Circuit.

What the Law Actually Says

Three separate legal doctrines converge in this case, and the article covering the VA's three appeal lanes explains how a claim moves between the regional office, the Board, and the courts above it.

The Federal Circuit's jurisdiction is narrow by statute. Under 38 U.S.C. section 7292(a), the Federal Circuit may review a Veterans Court decision on the validity of a rule of law, or a statute or regulation, or an interpretation of one, that the Veterans Court relied on. But section 7292(d)(2) removes two categories from that review, except where a constitutional issue is raised: a challenge to a factual determination, and a challenge to a law or regulation as applied to the facts of a particular case. As the Federal Circuit has put it in earlier cases, the court can review questions of law, but it cannot review applications of law to fact.

Clear and unmistakable error is a deliberately high bar. A VA decision becomes final once the appeal period runs, and under 38 U.S.C. section 5109A and its implementing regulation, 38 C.F.R. section 3.105(a), a final decision can only be revised if it contained CUE. The regulation defines CUE as "a very specific and rare kind of error" that "compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." A decision that reasonable adjudicators could have read differently is not CUE, even if it turns out to have been the wrong call.

Roberson requires a sympathetic reading of a veteran's filings. In Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001), the Federal Circuit held that the VA must construe a veteran's filings liberally enough to identify every claim they reasonably support, including a claim the veteran never labeled as such. Later cases have summarized Roberson as requiring the VA to give a sympathetic reading to a veteran's filings to determine all claims for recovery supported by a liberal construction of the allegations, which can include an unlabeled, informal claim for TDIU buried inside a disability claim.

TDIU pays at the 100 percent rate without a 100 percent schedular rating. Under 38 C.F.R. section 4.16(a), the VA can rate a veteran totally disabled for compensation purposes, even with a lower combined schedular rating, if service-connected disabilities leave the veteran unable to secure or follow substantially gainful employment. The regulation sets threshold percentages, generally one disability rated at 60 percent or more, or a combined 70 percent with at least one disability rated 40 percent or more. The guide to how TDIU pays at the 100 percent rate covers those thresholds and the extra-schedular path in more detail.

Effective dates matter because a successful CUE motion is retroactive: reversing or revising a decision on CUE grounds is treated as if the corrected decision had been made on the date of the original one, which is why Campbell was pursuing a 2009 effective date rather than accepting the 2016 date she already had. The mechanics of what that retroactivity means in dollar terms are covered in the piece on VA disability back pay and effective dates.

Why the Court Could Not Reach the Merits

The Federal Circuit framed the entire case as turning on one distinction: whether Roberson was applied at all, which the court can review, versus how Roberson was applied to Campbell's specific facts, which it cannot. At oral argument, counsel for both Campbell and the government agreed that the appeal would fail if it was properly characterized as a dispute over how Roberson was applied rather than whether it was applied.

The court found it was the former. The opinion states plainly: "We lack jurisdiction over Ms. Campbell's appeal because the Board and Veterans Court applied Roberson" (slip op. at 4 to 5). The Veterans Court had found that the Board acknowledged Roberson's requirements, followed the 2022 remand instructions, and reviewed the record evidence about Campbell's job search and PTSD symptoms before concluding she had not reasonably raised a TDIU claim in 2009. Because the Board went through that analysis under the correct legal framework, the Federal Circuit held it has no power to "reassess the application of Roberson to the facts of Ms. Campbell's claim."

That is a jurisdictional holding, not a merits holding. The Federal Circuit did not say the Board got the CUE question right. It said it cannot say whether the Board got the CUE question right, because Congress gave it authority to police whether the correct legal rule was used, not to second-guess how that rule played out against one veteran's record. The practical effect is the same either way: the Board's 2023 no-CUE finding, and the Veterans Court's 2024 decision affirming it, stand.

How This Affects You

This dismissal does not change what CUE is or how high its bar sits. It illustrates something narrower but still important: once a case reaches the Federal Circuit, framing matters enormously. An argument that the Board used the wrong legal standard is a question of law the court can reach. An argument that the Board reached the wrong answer while using the right standard is, in most cases, a factual or application question the court cannot reach, even when a veteran believes the outcome was wrong.

For anyone navigating the VA claims and appeals system, that distinction runs through the whole structure of review described in the article on the three lanes for appealing a VA rating decision: the regional office, the Board, the Veterans Court, and the Federal Circuit each have a different scope of review, and each successive level narrows further. A related Federal Circuit ruling on how far back an effective date can reach is covered in the recent Miller v. Collins decision, which addressed a different piece of the same broader effective-date puzzle. For background on the disability rating and unemployability system generally, the VA disability benefits hub indexes the site's coverage of ratings, appeals, and related topics.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

Campbell v. Collins is a reminder of how structurally difficult it is to reopen an old VA decision, even when a veteran can point to specific evidence the VA arguably should have caught the first time. CUE already requires showing an error so clear that reasonable minds could not differ about it, a standard the VA and the courts apply strictly by design, since the whole point of finality is that decisions do not stay open indefinitely. Layered on top of that, once a CUE denial reaches the Federal Circuit, the court's own jurisdiction adds a second filter: it will not reweigh how the Board read the record, only whether the Board used the right rule to read it.

The nonprecedential label matters for how much weight future litigants can put on this specific opinion, but it does not make the underlying jurisdictional analysis unusual. The panel's reasoning tracks a well-established line of Federal Circuit cases, including Wanless v. Shinseki and Conway v. Principi, both cited in the opinion, holding that the court can decide what a legal rule requires but not how that rule fits a particular record. Nothing in this decision changes that line; it applies it.

This article describes what the court held and why. It does not predict how any other CUE motion, pending or future, would come out, and nothing here should be read as an assessment of any individual veteran's chances on a similar claim.

This article is for general informational purposes only and does not constitute legal advice. Veterans disability law is fact-specific and outcomes depend on the particular record in each case. Consult a qualified veterans benefits attorney or accredited representative for guidance on a specific claim.

Related articles

• TDIU: How VA Unemployability Pays at the 100% Rate
• VA Disability Back Pay: Effective Dates and What You Are Owed
• How to Appeal a VA Rating Decision: The Three Review Lanes
• VA Disability Benefits
• Miller v. Collins: Federal Circuit Narrows VA Effective-Date Path

---

Last updated: 2026-08-28. This is a developing story; details verified as of 2026-08-28.