1946 Decision Cued And Claim Was Granted

December 21, 2005

"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.

Question