Recent Cue Award At Bva

[Berta]

Citation Nr: 0919324 Decision Date: 05/22/09 Archive Date: 05/26/09DOCKET NO. 07-13 400A ) DATE ) )On appeal from theDepartment of Veterans Affairs Regional Office in St. Petersburg, FloridaTHE ISSUEEntitlement to an effective date earlier than June 11, 1962 for the grant of service connection for a right shoulder disability, including the question of whether there was clear and unmistakable error (CUE).

ORDERThe rating decision of December 1962 contained clear and unmistakable error by assigning an effective date of June 11, 1962 for the grant of service connection for a right shoulder disorder, and an effective date of August 10, 1949 is granted.From:http://www.va.gov/vetapp09/files2/0919324.txt

[Stretch]

This is a great find Berta..Looks like Kathrina Eagle was trying to bow out, but the court would let her. I wonder if she will refuse the % of retro that she will have available...I doubt it...

I need to keep this one....

Thanks

[deltaj]

Berta, This case is interesting. What about a case were a report of an in service hospitalization on a serviceman was received by the veteran from the National Personnel Records Center many years after a low service connected rating is assigned and V.A. has never requested those records from the National Personnel Records Center?

[Berta]

Yeah Stretch- she obviously didn't have any faith in this CUE claim-

if a lawyer takes a CUE claim case,they should be able to conprehend the case.

The Vet will have full opportunity from the VARO to appeal any part of the legal fee (or all of it) to the VARO.

The VA takes the 20% out from retro but then holds it back in event it is challenged by the Vet.

A legal fee must rely on a five point criteria the VA has before it is paid.

BUT the vet gets copy of this criteria as well as the lawyer and can fight the fee if it does not comply to any of the five points.

[Berta]

Delta in a case like that-there is a post here under "Newly discovered service records."

Some time ago the VA clarified this point when newly discovered service records come to light.

This statement from the VCA can often help a vet denied due to lack of SMRs that support the claim- when the SMRs or a critical part of them come to light.

I NEVER believe VA when they say the SMRs were lost in the ST Louis fire.

A vet should attempt to write directly to NARA themselves on that with a SF 180.

When VA sees USAF within certain dates and a few other dates for Army etc- they often arbitrarily use the fire excuse so they don't even have to attempt to write to NARA themselves.

As I mentioned before I had SMRs here that were "lost in the fire"

and had one vet told his SMRs too were lost in the fire which occurred AFTER he even enlisted.

"lost" SMRs mean a rater has to go no further with the claim-if it depends on those records, and they can whip out a denial real fast.

A C file can reveal whether the VA really contacted NARA or not.

The above topic I posted might well help you with this vet if the low rating was somehow dependent on the SMRs.

[broncovet]

I think this case is a tremendous victory for Veterans. However, I am not sure this case is precedential, but it should be. The essence here is that the Va lost the records then, when the records were "found" the effective date was found to be in error.

It looks like the VA has been mishandling Veterans records back to 1949, and not "just" since October, 2008, like the VA claims.

[Berta]

Here is another Beauty-this vet Cued 2 decision and the BVA granted the decision with the best EED- 1992 case, retro to 1980:

http://www.va.gov/vetapp94/files3/9420318.txt

Inpart:

"4. The service medical records of record in January 1980 clearly

show the onset of chondromalacia patella of the right knee.

5. The VA examination report of October 1979 clearly describes

positive clinical findings as to both knees, and the assessment

of "normal knee exam" clearly was inconsistent with and

unsupported by the findings reported.

6. A VA regulation, compelling rejection of examination

diagnoses not supported by the examination findings, was in

effect on January 8, 1980.

CONCLUSION OF LAW

The rating decision of January 8, 1980, contained clear and

unmistakable error and is reversible. 38 U.S.C.A. § 5107;

38 C.F.R. §§ 3.104(a), 3.105(a) (1993)."

I am trying the find the reg that was in affect in 1969 for RSGs CUE claim.

BVA cases are not precedent setting. They contain however a wealth of good info and excellent legal citations.