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Cue Award At Bva


Berta
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Question

""ORDER

Clear and unmistakable error in the February 1946 rating

decision having been shown, a 30 percent rating for the

residuals of shell fragment wounds of the left forearm is

warranted from December 14, 1945."

http://www.va.gov/vetapp08/files3/0820604.txt June 2008

"As

such, the rating board in February 1946 applied the correct

schedule. As will be explained, however, the application of

the schedule was clearly erroneous."

This case is a good example of how a legal error is committed when the wrong Schedule of Ratings criteria is applied to a claim.

The medical evidence -once established- can lead to a legal error by application of the wrong criteria in Schedule of Ratings.

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  • HadIt.com Elder

Well, by golley, how about that.

The VA got it right.

It only took 63 YEARS, but, they got it right.

My hat is off to the VETERAN.......................he outlasted the VA!

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"This case is a good example of how a legal error is committed when the wrong Schedule of Ratings criteria is applied to a claim.

The medical evidence -once established- can lead to a legal error by application of the wrong criteria in Schedule of Ratings."

Berta,

Great Cue find to post for all to study.

I feel it is also provides a fine example in the importance of Diagnostic Code numbers

assigned to evaluate all disabilities to include when the provisions of said DC took effect.

I continue to feel there are many, many good CUE claims to be made, we just really have to

study which (month & year of some of our decisions) rating decision to file a CUE on and how to

request a claim of CUE and word everything just right to fit the CUE made.

Thanks for posting it.

carlie

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The hardest part I have explaining Carlie-is that the disability must clearly be established already-and that it is or should be SC.

That is why any award for SC should give a past denial a new look.

By medical evidence and award letters my husband had 100% in Section 1151 disabilities and then 100% for SC PTSD.

2 General COunsel Pres Ops and 4-5 BVA decisions clearly show that 1151 vets with direct SC too are eligible for SMC.

One of my best freiends I helped get 1151 at 100% plus SMC- so his case bears that fact out as well.

In my case the VA denied accrued SMC to me in their accrued direct SC award by stating- "the veteran was not eligible for SMC consideration under any circumstance."

That defied all logic and all VA case law and regs.My POA questioned it but never suggested I file an NOD on it-

Years later it hit me- this was a CUE.

The regs had been broken, the outcome was a monetary amount denied to me, and the medical evidence had been well established in SOCs to show SMC was due the veteran.

it is the manipulation as you say of diagnositc codes and other regs that can turn established medical evidence of service connection and "as if" service connected disabilties under 1151 - into the basis for a valid CUE.

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