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Carlie Test Post


carlie
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Citation Nr: 0505032

Decision Date: 02/23/05 Archive Date: 03/04/05

DOCKET NO. 03-32 661 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Nashville,

Tennessee

THE ISSUES

1. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision assigning a 10 percent

disability evaluation for an anxiety reaction.

2. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision by not granting entitlement to

service connection for the residuals of damage to cranial

nerve VII.

3. Whether clear and unmistakable error was committed in the

March 25, 1955 rating decision by not granting entitlement to

service connection for the loss of teeth.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant-veteran

ATTORNEY FOR THE BOARD

Kristi Barlow, Counsel

INTRODUCTION

The veteran served on active duty from June 1951 to November

1953, including combat service during the Korean conflict.

The veteran was a prisoner of war for approximately thirteen

months.

This matter comes before the Board of Veterans' Appeals (BVA

or Board) on appeal from a January 2003 rating decision of

the Department of Veterans Affairs (VA) Regional Office (RO)

in Nashville, Tennessee, which declined to find that clear

and unmistakable error had been committed by the RO in a

March 25, 1955 rating decision with respect to the issues set

out above.

FINDINGS OF FACT

1. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision and the statutory and

regulatory provisions extant at the time of that rating

decision were correctly applied in assigning a 10 percent

disability evaluation for an anxiety reaction.

2. The March 1955 rating decision assigning a 10 percent

disability evaluation for an anxiety reaction did not contain

factual or legal errors of such magnitude, individually or

cumulatively, that a different outcome would have to have

been reached in their absence.

3. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision, but the statutory and

regulatory provisions extant at the time of that rating

decision were not correctly applied by failing to adjudicate

the claim of entitlement to service connection for the

residuals of damage to cranial nerve VII.

4. The March 1955 rating decision failing to adjudicate the

claim of entitlement to service connection for the residuals

of nerve damage to cranial nerve VII contains errors of such

magnitude that a different outcome would have to have been

reached in their absence.

5. The correct facts, as they were known at the time of the

March 1955 rating decision, were before the adjudicator at

the time of the rating decision, but the statutory and

regulatory provisions extant at the time of that rating

decision were not correctly applied by failing to adjudicate

the claim of entitlement to service connection for loss of

tooth number 20.

6. The March 1955 rating decision failing to adjudicate the

claim of entitlement to service connection for the loss of

teeth contained errors of such magnitude that a different

outcome would have to have been reached in their absence.

CONCLUSIONS OF LAW

1. Clear and unmistakable error is not shown in the March

25, 1955 rating decision assigning a 10 percent disability

evaluation for an anxiety reaction. 38 C.F.R.

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  • HadIt.com Elder

Really good case to study for CUE. Thanks Carlie. ~Wings

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