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Clear And Unmistakable Error


Berta

Question

One of my vet org vets just asked me all this and I have problems finding my past CUE posts under the search thing.

But maybe -as a new topic -this will help others find the legal bases for CUE-

Failure of VA -in final decision- to use presumption of aggravation of service connection regulations in existence at time of alleged CUE-in regards to a pre-existing disability as aggravated by service :

see Joyce V Nicholson, Sondel V. West , Akins V Derwinski.

Failure of VA-in a final VA decision-to proper apply the Rating schedule and proper diagnostic code to a disability- which by medical evidence-should have been rated higher-

see Bentley V. Derwinski- The CAVC in this case reversed a BVA statement that there was no CUE in a 1960 BVA decision-as the VA had awarded 40% yet the medical evidence warranted 60%.

Failure of VA in a final decision to apply a statute correctly-

see Look V Derwinski- VA improperly applied 1151 to the veteran's detriment and it prejudiced the veteran's rights.

Failure of the VA to assign in a final decision- the proper rating by medical evidence:

see Myler V Derwinski-and Beyrle V Brown.

In Myler the CAVC emphatically awarded this veteran 30% retro from 1991 back to 1953.

Failure by VA- in final decision involving reductions in VA awards- to apply or follow revelant regulations.

See Olson V. Brown, Ternus V. Brown ,Sorakubo V Principi and also there is a great BVA CUE award to a PTSD vet that I posted at hadit previously-

Hope this makes it easier to find in the hadit search button-

If I put just CUE there- my search request cannot be processed.

Edited by Berta
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Berta,

Hope you don't mind - I added a couple more CUE's for research in here.

carlie

Citation Nr: 0321596

Decision Date: 08/28/03 Archive Date: 09/04/03

DOCKET NO. 00-13 932 ) DATE

On appeal from the

Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to an effective date earlier than February 10,

1997, for the award of service connection for chronic

lumbosacral strain.

REPRESENTATION

Appellant represented by: The American Legion

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

T. Douglas, Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from

June 1951 to April 1952, from April 1953 to November 1953,

and from July 1961 to June 1962. This matter comes before

the Board of Veterans' Appeals (Board) on appeal from a March

2000 rating decision by the Montgomery, Alabama, Regional

Office (RO) of the Department of Veterans Affairs (VA). In

March 2003, the veteran testified at a personal hearing

before the undersigned. A transcript of that hearing is of

record.

FINDINGS OF FACT

1. The veteran first submitted an application for service

connection for residuals of a back injury on June 25, 1962;

his claim was received within one year of his discharge from

active service on June 22, 1962.

2. A November 1962 rating decision was clearly and

unmistakably erroneous in denying service connection for

chronic lumbosacral strain.

CONCLUSION OF LAW

An effective date of June 23, 1962, is warranted for the

award of service connection for chronic lumbosacral strain.

38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2002).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

There has been a significant recent change in VA law. On

November 9, 2000, the Veterans Claims Assistance Act of 2000

(VCAA) (codified at 38 U.S.C.A. § 5100 et seq.) became law.

Regulations implementing the VCAA have also been published.

38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and

implementing regulations apply in the instant case. See

VAOPGCPREC 11-2000. Although the record does not show the

veteran was adequately informed of the provisions of the VCAA

and how it applies to his claim, in light of the favorable

outcome of this decision the Board finds the veteran is not

prejudiced by this action.

VA regulations provide that the effective date for an award

of disability compensation based on an original claim for

direct service connection shall be the day following

separation from active service or the date entitlement arose,

if the claim is received within one year after separation

from service; otherwise, and for reopened claims, it shall be

the date of receipt of the claim, or the date entitlement

arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R.

§ 3.400. For an award involving error in a prior decision,

the effective date is the date benefits would have been

payable if made on the date of the reversed decision.

38 C.F.R. § 3.400(k).

Previous determinations which are final and binding,

including decisions of service connection, degree of

disability, age, marriage, relationship, service, dependency,

line of duty, and other issues, will be accepted as correct

in the absence of clear and unmistakable error (CUE). Where

evidence establishes such error, the prior decision will be

reversed or amended. 38 C.F.R. § 3.105(a).

The United States Court of Appeals for Veterans Claims

(Court) has held that CUE is a very specific and rare kind of

error, of fact or law, that when called to the attention of

later reviewers compels the conclusion, to which reasonable

minds could not differ, that the result would have been

manifestly different but for the error. Fugo v. Brown, 6

Vet. App. 40, 43 (1993). The Court established a three-part

test to determine whether CUE is present in a prior

determination; (1) either the correct facts, as they were

known at the time, were not fully adjudicated (i.e., more

than a simple disagreement as to how the facts were weighed

or evaluated), or statutory or regulatory provisions extant

at the time were incorrectly applied; (2) the error must be

"undebatable" and of the sort "which, had it not been

made, would have manifestly changed the outcome at the time

it was made;" and, (3) a determination that there was CUE

must be based on the record and the law that existed at the

time of the prior adjudication in question. Damrel v. Brown,

6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3

Vet. App. 310, 313-14 (1992) (en banc)).

In this case, a November 7, 1962, rating decision denied

service connection for chronic lumbosacral strain because

there was no record of a back injury during active service.

It was noted, however, that VA examination revealed a chronic

lumbosacral strain. Also, apparently of record at the time

of that decision, based upon its location in the claims file

and specific references in the rating decision, was a service

department hospital report signed by a physician on June 17,

1962, indicating the veteran sustained a back injury in March

1962. The report further noted that an extensive

neurosurgical service evaluation in April 1962 had been

normal, except for "some muscle spasm and tenderness in the

lumbosacral region."

Based upon the evidence then of record, the Board finds the

November 7, 1962, rating decision denying service connection

for chronic lumbosacral strain was clearly and unmistakably

erroneous. It is undebatable that existing service medical

records demonstrated at that time that the veteran had

incurred a back injury in March 1962, with objective evidence

of muscle spasm and lumbosacral tenderness in an April 1962

evaluation, and that an existing VA examination in October

1962 included a diagnosis of chronic lumbar spine strain.

This error had it not been made would have manifestly changed

the outcome of the previous rating determination.

The record also shows that the veteran first submitted an

application for service connection for residuals of a back

injury on June 25, 1962, within one year of his discharge

from active service on June 22, 1962. Therefore, as a result

of the reversal the November 7, 1962, rating decision based

upon CUE, the Board finds that an effective date of June 23,

1962, is warranted for the award of service connection for

chronic lumbosacral strain.

ORDER

An effective date of June 23, 1962, is granted for the award

of service connection for chronic lumbosacral strain.

Cue granted for EED for grant of SC Scizofrenia

http://www.va.gov/vetapp99/files4/9933357.txt

CUE granted for EED for PTSD

http://www.va.gov/vetapp05/files1/0503568.txt

CUE EED granting Defective Hearing back to 1974

http://www.va.gov/vetapp04/files/0403497.txt

*************************************************************

ognizeCitation Nr: 0500624

Decision Date: 01/10/05 Archive Date: 01/19/05

DOCKET NO. 97-13 493A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office

in San Juan, the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an effective date earlier than April 4, 1994,

for the assignment of a 100 percent rating for service-

connected schizophrenia, including based on clear and

unmistakable error (CUE).

REPRESENTATION

Appellant represented by: Eric C. Conn, Attorney

ATTORNEY FOR THE BOARD

Panayotis Lambrakopoulos, Counsel

INTRODUCTION

The veteran served on active duty from November 1967 to

August 1969.

This appeal arises before the Board of Veterans' Appeals

(Board) from a February 1997 rating decision by the

Department of Veterans Affairs (VA) Regional Office (RO) in

San Juan, the Commonwealth of Puerto Rico, that denied a

claim for an effective date earlier than April 4, 1994, for a

total schedular evaluation for the veteran's service-

connected schizophrenic disorder. In March 1999, the Board

remanded the claim to the RO for readjudication, including

consideration of the veteran's arguments of CUE. The RO

issued a rating decision in September 1999 that addressed the

veteran's CUE arguments.

In December 1999, the Board denied the claim for an effective

date earlier than April 4, 1994, for the assignment of a

total schedular evaluation for service-connected

schizophrenia, including on the basis of CUE. In January

2002, the United States Court of Appeals for Veterans Claims

(Court) granted a December 2001 joint motion for remand filed

by the VA Secretary and the veteran. In doing so, the Court

vacated the Board's December 1999 decision and remanded the

matter for readjudication.

In October 2002, the Board issued a development memorandum

that sought additional development regarding the veteran's

claim. However, due to the invalidation of certain

regulatory authority pursuant to which the Board had

generally been issuing such development memoranda, the Board

issued a superseding remand in September 2003, directing the

RO to undertake the requested development. See Disabled

American Veterans v. Sec'y of Veterans Affairs, 327 F.3d

1339 (Fed. Cir. 2003) (invalidating 38 C.F.R. § 19.9(a)(2)

(2002)).

FINDINGS OF FACT

1. All requisite notices and assistance owed to the veteran

have been provided, and all evidence necessary for an

equitable disposition of the claim has been obtained.

2. The veteran's service-connected schizophrenia was

manifested by complete impairment, with bizarre behavior,

active psychotic symptoms, violence and aggressiveness, and

other impairments, as of a VA examination on November 7,

1973.

3. The RO's December 1973 RO rating decision was clearly and

unmistakably erroneous in that it did not properly apply the

appropriate rating criteria in effect at that time to the

evidence of record at that time; but for that error, the

outcome would have been manifestly changed.

CONCLUSION OF LAW

The criteria for an effective date of November 7, 1973, for a

100 percent rating for service-connected schizophrenia are

met. 38 C.F.R. § 3.105 (2004); 38 C.F.R. § 4.132, Diagnostic

Code 9204 (1970).

CUE Granted back to 1955 for failure to adjudicate claims

http://www.va.gov/vetapp05/files1/0505032.txt

Cue back to 1989 - low back claim

http://www.va.gov/vetapp92/files2/9217735.txt

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Carlie

My shrink said I was unemployable in 1972. The VA ignored that and gave me 10%. It took me years to get back on my feet and become really fully employed. Would that be a CUE? Now I am TDIU again but this time the VA agreed.

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John999,

In your 1972 claim

1) What was your claim for

2) What were your shrink's credentials?

3) Did your shrink review and state he reviewed your SMR's

4) What specifically did your shrink state was the nexus to

your claim for the disability and what specific evidence and/or diagnosis and

symptoms were listed ?

5) What laws did VA use to deny the claim. If the VA did not cite any laws in your denial, what exactly was their verbage.

Let us know,

carlie

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Carlie

I will have to check all that out since it was 1972. I don't remeber ever getting a c&p exam. My award was retro to the day I got out of service. I was in the military nuthouse for about two months after I got back from Vietnam. Then within a year of getting out I was in the VA nuthouse for about two weeks and went over the hill. The VA did not like that. I was in there for depression, schizophrenia, anxiety you name it. My doctor was a clinical pyschologist. He wrote a report and said I was unemployable and that I was basically a basket case at that time. He warned the VA that if I went back in the hospital I would probably never leave it. You bet I stayed away from nuthouses after that. I will talk to you some more about this sad story. I had my discharge upgraded to honorable since when I really went nuts they gave me a special court martial and settled on a unsuitability discharge after I had been in service for 28 months. I had a military lawyer who told me to take the dischage or go to jail. At this time I was seeing a military shrink and taking stelazine. I was crazy and the Army piled on and threw me out. I have been fighting back ever since. I was treated worse than a dog. This is why I know how Terry Higgins feels.

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Thank you Carlie!

I have some in my AOL favorite places

among 2500 of my favorite links-and I cannot find them!

John- do you still have that old decision?

Boy- your experience is really something-

and vets with bad paper should always try to get that changed to good paper-

It ticks me off to think that some vets went through Kangaroo courts, probably with a military "lawyer" who only knew some basic mil law-and were stigmatized by DDs or UDs and they could have fought the discharge or at least get the VA to render a Character of Service status for VA benefits.

It is not impossible in many cases.

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Berta

I do have a copy of the old decision I believe. I was too sick in body and soul to fight back when the lawyer told me to take the discharge or go to jail. I thought he was trying to help me when he was just doing paperwork reduction. They threw me out and that was what they wanted because they did not want to pay for the damage done. They said "personality disorder" and all that other BS. I fought back when I started to get some help on the outside. At that time I was having all kinds of symptoms and was probably not really competent to make decisions. I have no respect for military justice since it is a sham and a lie most of the time. My civilian lawyer told me that he had been in the AG office as a lawyer and it was just a lynch party with frosting on it.

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Guest fla_viking

Dear Fellow Veterans & friends

In the 70's the US Army had the Chapt 13 program. This allowed commanders easy acess to discharge procedures for solliders who they felt could not cut it. When I was in 73 thru 76 the Army lost 75% of its force thru Chapt 13 procedures so it put a stop to that.

They tried to get rid of me through Chapt 13. I fought it and won every time. Ti was scuh a phoney process. They really relied on our being young and stupid. I found it was great training for the VA and vets home situatoi I was in. Those two tried to get rid of me also. The vets hone had to pay me 200K before I left.

The Vets home had this scam going on. They would delibertly abuse a resident trying to make him leave. If the resdident complained about the abuse the home defended itself with. "If the vet feels abused whey dont he just leave". They pulled that queston on me in public debate and I responded with. "Why should I loose my veterans benifits because you choose to break the law and be abusive. It is you who is going to stop abusing me.

No one in the VA system or back in the Army like debating me in public no more.

Terry Higgins

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