Question On This Cue

[Berta]

I regret the BVA web site is down but I copied this brief info from an older post I made on this claim-

my question is- do you all interpret this to mean that the veteran, under CUE recovered retro back to 1946?

http://www.va.gov/vetapp00/files3/0029491.txt

"CONCLUSIONS OF LAW

1. The unappealed January 1946 rating action denying service

connection for residuals of injury of the right 4th (ring)

finger, then consisting of amputation at the proximal

interphalangeal joint, was final as to the evidence then

considered. Veterans Regulation No. 2(a), pt. II, par.

III; VA Regulation 1008 (effective 25 January 1936 to

31 December 1957); 38 U.S.C.A. §§ 1110, 1153 (West 1991);

38 C.F.R. § 3.306 (1999).

2. New and material evidence consisting of previously-

unconsidered SMRs received from the service department in

June 1948 shows that the veteran's pre-service residuals

of injury of the right ring finger were aggravated by

wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991);

38 C.F.R. §§ 3.156©, 3.306, 3.400(q)(2), and Part 4

(1999). "

(I think we had a recent CUE question here that was similiar-

and I think I posted the 38 CFR 3.306 reg as the one they broke-

(or maybe it was an email vet???)

In any event -there are additional regs above there in the BVA decision that caused):

"ORDER

Service connection for amputation of the right 4th (ring)

finger is granted."

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In essense the vet filed a CUE but the claim was granted here without granting the CUE-(I think)

so he got what he wanted from an old 1946 decision he never appealed-

In this type of case- the BVA did not find 'error'- but found the fact that newly discovered SMRs(previously unconsidered) would have granted the old claim-(I think)

any thoughts on this? I will be glad when that BVA site goes back on line-

Edited June 14, 2006 by Berta

[Guest jangrin]

Berta,

I'm just starting to understand some of the appeals process, but what I think I read, was the Vet entereed service with a right 4th finger that was injured but was rating at 0% disabling. After being in wartime service the finger needed surgical repair. The surgical proceedure ended up be more extensive. Following surgery examination r3vealed the finger rated a 10% disability under the rating schedule. Had the surgery gone as originally anticipated his pre-existing finger injury would still have been rated 0% and no increase in rating would have applied.

At the time of the original claim for SC disability, all of the medical reports were not presented. Thus, all records were not reviewed when the claim was denied. New records were submitted, new rating applied. CUe is deemed moot. Original claim is awarded. retro pay back to original filing date.

I agree with your assesment. Like I said I/m new at this, but it isn't an error if they don't have the records, right? Not sure about if "they" loose or have lost the records? What happens then?

Thanks, Jangrin

[carlie]

Berta,

I think this is the part the vet won on.

New and material evidence consisting of previously-

unconsidered SMRs received from the service department in

June 1948 shows that the veteran's pre-service residuals

of injury of the right ring finger were aggravated by

wartime service. 38 U.S.C.A. §§ 1110, 1153 (West 1991);

38 C.F.R. §§ 3.156©, 3.306, 3.400(q)(2), and Part 4

(1999).

I also think this would apply to Terry Higgins Cue Claim.

" evidence consisting of previously unconsidered SMRs received from the service department in __________.

Only my opinion,

carlie

[Berta]

Yes- I agree-but I cannot determine what EED and retro the VARO gave this vet when the claim went back to them-

I sure wish we could access VARO decisions!

The wording of this decision seems to by pass the Constructive Notice under Bell completely-

however the VARO could have awarded date of retro as date they became aware of New and Material evidence?

BUT

they called that evidence "previously unconsidered"-so I think it is NOT new and material for the EED and the EED should go back to 1946. ????

It could help Terry.

[Guest fla_viking]

Dear Berta.

Previously not concidered evidence v. not obtaining the record therefore new and material. IN my last BVA decission. BVA rulee the missing MMPI report was new and material evidence as found by the BVA ruling and then found that CUE is not based upon new and material evidence. The Catch 22 they put me in is for CUE to occure. The facts as they were known were not before the VA. Now that the facts in my case come to the VA. The VA says ints new and material therefore no CUE.

Terry Higgins

[john999]

On my original claim in 1972 I did not get a C&P. The VA just gather evidence from the military and VA hosptal and my attending doctor and made a decision. They completely ignored my doctor's findings. The original rating is so sloppy I can't make head nor tail of it. I might ask VA for my original rating decision again because the thing I got is so incomplete.