Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Whether there was clear and unmistakable error (CUE) in the
October 1954 rating decision that severed service connection
for defective hearing.
REPRESENTATION
Veteran represented by: Jeany Mark, Attorney
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
September 1943.
In September 1945, the RO granted service connection for
impaired hearing and assigned a noncompensable evaluation.
In October 1954, the RO severed service connection for
impaired hearing based on clear and unmistakable error (CUE)
in the previous decision. In March 1997, the RO determined
that there was no clear and unmistakable error (CUE) in the
October 1954 RO decision. The veteran appealed the case to
the Board.
In a July 1999 decision, the Board determined that there was
no CUE in the October 1954 RO decision severing service
connection for hearing impairment. The veteran appealed this
decision to the United States Court of Appeals for Veterans
Claims (Court). In an August 2001 Memorandum Decision, the
Court vacated and reversed the Board's decision, finding that
the Board's decision that there was not CUE in the 1954 RO
decision was not in accordance with the law. The Court
directed that service connection for defective hearing be
reinstated as of October 1954.
FINDING OF FACT
The October 1954 RO decision severing service connection for
hearing impairment was not supportable by the law in effect.
CONCLUSIONS OF LAW
1. The October 1954 rating decision severing service
connection for impaired hearing involved CUE; service
connection for impaired hearing is restored. Veterans
Regulation No. 2 (a), pt. II, par. III; VA Regulation 1008;
effective January 25, 1936 to December 31, 1957; currently
38 C.F.R. § 3.105 (2001).
REASONS AND BASES
The October 1954 RO decision severing service connection for
hearing impairment was not supportable by the law in effect.
The October 1954 rating decision severing service connection
for impaired hearing involved CUE; service connection for
impaired hearing should be restored. See Veterans Regulation
No. 2 (a), pt. II, par. III; VA Regulation 1008; effective
January 25, 1936 to December 31, 1957; currently 38 C.F.R.
§ 3.105 (2001).
ORDER
By order of the Court in August 2001, there was clear and
unmistakable error in the October 1954 RO decision severing
service connection for defective hearing and service
connection for defective hearing is reinstated.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
____________________________________--
The VBM 2005 edition has made the point that only a limited number of VA regs have been changed over the years-regarding service connection criteria.
I feel that a vet- regardless of when they got a denial- if they feel that it was inappropriate-should attempt to file a CUE claim-
I feel-if they choose to do that- they should try to access similiar cases like this at the BVA and use the legal provisions that the BVA referred to such as the ones in this claim if they fit into the CUE scenario.
Also if you have access to a law library they have 38 CFR there too and that also might be a good way to find old regs to support a CUE claim.
All of the above will take a lot of time but it could possibly have a potentially good result.
Question
Guest Berta
Citation Nr: 0201139
Decision Date: 02/04/02 Archive Date: 02/11/02
DOCKET NO. 98-05 918 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Whether there was clear and unmistakable error (CUE) in the
October 1954 rating decision that severed service connection
for defective hearing.
REPRESENTATION
Veteran represented by: Jeany Mark, Attorney
ATTORNEY FOR THE BOARD
C. L. Mason, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
September 1943.
In September 1945, the RO granted service connection for
impaired hearing and assigned a noncompensable evaluation.
In October 1954, the RO severed service connection for
impaired hearing based on clear and unmistakable error (CUE)
in the previous decision. In March 1997, the RO determined
that there was no clear and unmistakable error (CUE) in the
October 1954 RO decision. The veteran appealed the case to
the Board.
In a July 1999 decision, the Board determined that there was
no CUE in the October 1954 RO decision severing service
connection for hearing impairment. The veteran appealed this
decision to the United States Court of Appeals for Veterans
Claims (Court). In an August 2001 Memorandum Decision, the
Court vacated and reversed the Board's decision, finding that
the Board's decision that there was not CUE in the 1954 RO
decision was not in accordance with the law. The Court
directed that service connection for defective hearing be
reinstated as of October 1954.
FINDING OF FACT
The October 1954 RO decision severing service connection for
hearing impairment was not supportable by the law in effect.
CONCLUSIONS OF LAW
1. The October 1954 rating decision severing service
connection for impaired hearing involved CUE; service
connection for impaired hearing is restored. Veterans
Regulation No. 2 (a), pt. II, par. III; VA Regulation 1008;
effective January 25, 1936 to December 31, 1957; currently
38 C.F.R. § 3.105 (2001).
REASONS AND BASES
The October 1954 RO decision severing service connection for
hearing impairment was not supportable by the law in effect.
The October 1954 rating decision severing service connection
for impaired hearing involved CUE; service connection for
impaired hearing should be restored. See Veterans Regulation
No. 2 (a), pt. II, par. III; VA Regulation 1008; effective
January 25, 1936 to December 31, 1957; currently 38 C.F.R.
§ 3.105 (2001).
ORDER
By order of the Court in August 2001, there was clear and
unmistakable error in the October 1954 RO decision severing
service connection for defective hearing and service
connection for defective hearing is reinstated.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.
____________________________________--
The VBM 2005 edition has made the point that only a limited number of VA regs have been changed over the years-regarding service connection criteria.
I feel that a vet- regardless of when they got a denial- if they feel that it was inappropriate-should attempt to file a CUE claim-
I feel-if they choose to do that- they should try to access similiar cases like this at the BVA and use the legal provisions that the BVA referred to such as the ones in this claim if they fit into the CUE scenario.
Also if you have access to a law library they have 38 CFR there too and that also might be a good way to find old regs to support a CUE claim.
All of the above will take a lot of time but it could possibly have a potentially good result.
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