Guest Berta Posted December 21, 2005 Share Posted December 21, 2005 http://www.va.gov/vetapp00/files3/0029491.txt "CONCLUSIONS OF LAW 1. The unappealed January 1946 rating action denying service connection for residuals of injury of the right 4th (ring) finger, then consisting of amputation at the proximal interphalangeal joint, was final as to the evidence then considered. Veterans Regulation No. 2(a), pt. II, par. III; VA Regulation 1008 (effective 25 January 1936 to 31 December 1957); 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. § 3.306 (1999). 2. New and material evidence consisting of previously- unconsidered SMRs received from the service department in June 1948 shows that the veteran's pre-service residuals of injury of the right ring finger were aggravated by wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991); 38 C.F.R. §§ 3.156©, 3.306, 3.400(q)(2), and Part 4 (1999). " I think we had a recent CUE question here that was similiar- and I think I posted the 38 CFR 3.306 reg as the one they broke- (or maybe it was an email vet???) In any event -there are additional regs above there in the BVA decision that caused: "ORDER Service connection for amputation of the right 4th (ring) finger is granted." In essense the vet filed a CUE but the claim was granted here without granting the CUE- so he got what he wanted from an old 1946 decision he never appealed- In this type of case- the BVA did not find 'error'- but found the fact that newly discovered SMRs would have granted the old claim-interesting read. Link to comment Share on other sites More sharing options...
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Guest Berta
http://www.va.gov/vetapp00/files3/0029491.txt
"CONCLUSIONS OF LAW
1. The unappealed January 1946 rating action denying service
connection for residuals of injury of the right 4th (ring)
finger, then consisting of amputation at the proximal
interphalangeal joint, was final as to the evidence then
considered. Veterans Regulation No. 2(a), pt. II, par.
III; VA Regulation 1008 (effective 25 January 1936 to
31 December 1957); 38 U.S.C.A. §§ 1110, 1153 (West 1991);
38 C.F.R. § 3.306 (1999).
2. New and material evidence consisting of previously-
unconsidered SMRs received from the service department in
June 1948 shows that the veteran's pre-service residuals
of injury of the right ring finger were aggravated by
wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991);
38 C.F.R. §§ 3.156©, 3.306, 3.400(q)(2), and Part 4
(1999). "
I think we had a recent CUE question here that was similiar-
and I think I posted the 38 CFR 3.306 reg as the one they broke-
(or maybe it was an email vet???)
In any event -there are additional regs above there in the BVA decision that caused:
"ORDER
Service connection for amputation of the right 4th (ring)
finger is granted."
In essense the vet filed a CUE but the claim was granted here without granting the CUE-
so he got what he wanted from an old 1946 decision he never appealed-
In this type of case- the BVA did not find 'error'- but found the fact that newly discovered SMRs would have granted the old claim-interesting read.
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