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40 Years Retro Cuecue Award Back To 1972 “Conclusions Of Law 1. There Was Cue In The May 1972 Ro Decision In That It Did Not Grant Service Connec

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CUE award back to 1972

“CONCLUSIONS OF LAW

1. There was CUE in the May 1972 RO decision in that it did not grant service connection and a separate rating for neuropathy of the right foot. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2011).

2. An effective date of January 25, 1972 is assigned for the grant of service connection for right foot neuropathy. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a).

3. There was no CUE in that part of the May 1972 RO decision that assigned a 10 percent rating for a SFW to the right calf with RFB involving injury to MG XI. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2011).

4. There was no CUE in the May 1972 RO decision that did not address whether service connection for spondylolisthesis of the lumbar spine was warranted. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105 (2011).

The veteran did not seek all he claimed under CUE but this is,nevertheless, an interesting CUE decision.

His spondylolisthesis claim was remanded.

“The July 2011 Court-granted joint motion partially vacated the Board's November 2010 decision. The parties (the appellant and VA's Office of General Counsel, representing the Secretary) agreed that the Board's November 2010 decision did not provide adequate reasons or bases for its determination that the May 1972 rating decision did not contain CUE. The parties agreed that the Board's finding that a separate rating could not have been assigned for peripheral neuropathy of the right lower extremity under Diagnostic Code 8525 in addition to a rating for residuals of a SFW to his right calf with RFB involving injury to MG XI under Diagnostic Code 5311, on the basis that these Diagnostic Codes described the same functions, was inadequate as it did not explain why loss of sensation of the sole of the right foot and muscle damage to MG XI constituted the same symptomatology under 38 C.F.R. § 4.55(g). “

Obviously the veteran has fought this relentlessly!

I think he might have used Myler V Derwinski to develop his issues. It is one of my favorite successful CUE awards.

When a GSW (gunshot wound) creates MG injury (muscular groups),those injuries should be claimed and rated.

In this case the veteran claimed SFW( shell fragment wound ) to the right calf, and RFB means retained foreign body, a residual that can almost always affect muscle groups.(and in this case nerve endings)

His CUE succeeded because it involved the peripheral neuropathy from the RFB and not the MG involvement-but he raised all possible issues under CUE.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files4/1139736.txt

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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  • HadIt.com Elder

Derwinski was a real piece of work I am talking about the Sec not all the decisions against him

Veterans deserve real choice for their health care.

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