CUE question: Anyone have any luck with § 3.322 ?

[Vync]

I am considering filing a CUE claim and wonder if anyone here has ever successfully used § 3.322 to justify CUE?

§ 3.322 covers disabilities aggravated by service. Basically, they subtract the % of disability present when joining the service from the % of disability found during the C&P exam, but there is a catch...

 

Please let me know if I am correctly understanding the last sentence of § 3.322 (a):

The way I interpret it required the VA to compare the entrance exam findings to "ascertainable terms" of the rating criteria. If they fail to do that, then they cannot reduce the rating.

Am I reading that correctly?

 

Quote

§ 3.322 Rating of disabilities aggravated by service.
(a) Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.
(b) Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is aggravated during service in a period of war, or conversely, where a disease or injury incurred in service during a period of war is aggravated during peacetime service, the entire disability flowing from the disease or injury will be service connected based on the war service.
[26 FR 1583, Feb. 24, 1961]

 

[Berta]

A great question!

I went to the BVA site and the very first hit I got was this one:

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp05/Files2/0510882.txt

This is a recent award of CUE due to violation of 3.322.

I was surprised that this was a 2015 decision but on appeal since 2005...until I also realized the veteran had filed a Motion of CUE against the BVA, who erred in a past BVA decision.

[Berta]

When I had put CUE and then 38 CFR 3.322 into the BVA search browser, 67 cases popped up but I found many of them had been denied...don't have time to read them all,... but please see my post under CUEs (by BVA) for CUE.

[Vync]

59 minutes ago, Berta said:

When I had put CUE and then 38 CFR 3.322 into the BVA search browser, 67 cases popped up but I found many of them had been denied...don't have time to read them all,... but please see my post under CUEs (by BVA) for CUE.

Hey Berta,
I had similar results in searching.

Many denials I read centered around SC status, but I'm concerned only with the improper reduction rule per the last sentence of paragraph (a).

I think the VA rater screwed up my old claim by not correctly applying the rule.

 

This BVA CUE win looks like a really good example:

Quote

This BVA CUE win describes an "ascertainable" level of disability upon entrance into the service: http://www.va.gov/vetapp05/files2/0510882.txt

Clinical evaluation at the time of the veteran's entrance examination in August 1972 was normal. The private physician who provided treatment to the veteran prior to service indicated he last saw the veteran for left knee trouble in 1967, years before entry into service, although he had seen the veteran for other conditions in the intervening years. The Board finds of record no evidence upon which the Board in May 1983 could have found that the level of the veteran's left knee disability (if any) upon entry into service was ascertainable. Therefore, absent any evidence as to how disabled the veteran was upon entry into service, deducting 10 percent for any such pre-existing disability was inarguably a misapplication of 38 C.F.R. § 3.322, and constituted clear and unmistakable error.