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Cue Granted 1954 Decision


Guest Berta

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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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Guest Namvet6567

Berta, my late friend Tom McNell and I filed a claim for "grevious error," for him back to 1955. The acting substitute DRO changed it to CUE and awarded him 20%, retroactive to 1955. We were appealing the 20% when he died. I plan to continue in hopes of getting his spouse some accrued benefits. I have a copy of the 1942 38 US Code.

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Guest fla_viking

Dear Sir.

Are you still proceeding under grevious error? I thought with the courts ruling on Hyer and Cook that grevious error was no longer a viabel argument.

Terry Higgins

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Guest Namvet6567

Terry - no we're not appealing the grievous error because the CUE satisfied the SC aspect of the claim but still appealing the percentage awarded. I still use grievous error because the VA can do anything it wants and it allows them to correct a decision and because I doubt most adjudicators are aware of the decision. I believe you are correct, on the viable argument thing, though I'm not sure of the case.

Carla, what do you want, Tom's decision???

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Bless you, Flip -for helping Tom's widow-

you mentioned this matter before to me and you did VERY well for Tom with that claim-

any percentage they award can always change-

How did you get the old USC code?

Berta

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Guest Namvet6567

Hi Berta!! If I recall correctly, Tom found it thru amazon.com. Knowing that I helped Tom w/his VA claims his daughter gave it to me, when he passed. Hugs!

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Namvet,

Either a copy of Tom's EED claim or the 1942 US code regulation would be real helpful.

carlie

Edited by carlie (see edit history)
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Guest Namvet6567

Carla - his daughter just called today and is sending me his complete c-file. I'll mail you a copy of his CUE claim, when I receive it.

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Guest Namvet6567

Carla - I don't see how the 1942 US code regulation would help, you, unless it was in effect when your original claim was made.

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