tdiu Tdiu Reduction Overcome By Cue Claim (Retro 1982)

[Berta]

I dont know if this beautiful CUE award is here yet. Carlie forgive me if you already posted this.

In part:

“Analysis

In July 2010, the Veteran's attorney submitted a motion for CUE, alleging that the RO failed to consider 38 C.F.R. § 3.343© when it terminated the Veteran's entitlement to TDIU in a decision dated May 17, 1982. The Veteran did not appeal the May 1982 decision and it became final. 38 U.S.C.A. § 7105. “

and

“In March 1981, the RO granted the Veteran's claim for TDIU and assigned an effective date of October 1980.

On May 17, 1982, the RO terminated the Veteran's entitlement to TDIU effective September 1, 1982. The rating action referenced the reports of April 1982 VA examinations as the genesis for the reduction. It was determined that the Veteran's service-connected back disability had improved based on the findings in the VA examinations and the rating assigned for the back disability was reduced from 60 percent to 40 percent. As a result of the reduction the RO terminated entitlement to TDIU noting the Veteran's service-connected disabilities did not meet the schedular requirement for continued entitlement to TDIU in May 1982.

A review of the rating action in question reveals that the May 17, 1982 rating action is totally devoid of any indication that the RO found, by clear and convincing evidence, that the Veteran was employable. Significantly, the rating action does not address any evidence pertaining to the Veteran's employability or discuss whether the Veteran is employable.

A review of the evidence of record at the time of the May 17, 1982 rating action demonstrates to the Board that there was not clear and convincing evidence of the Veteran's employability at that time. The reports of the April 1982 VA examinations do not provide any evidence that the Veteran is employable. The neuropsychiatric examination includes the annotation that the Veteran is unemployed at the time of the examination. The orthopedic examination did not discuss employability. The fact that the Veteran's service-connected disabilities, and in particular his back disability, had improved at the time of the April 1982 VA examinations does not equate to a finding that the Veteran was employable at that time and certainly does not provide clear and convincing evidence that he was employable.

The Board, therefore, finds, in response to the Veteran's current motion, that the May 1982 reduction did violate pertinent provisions of 38 C.F.R. § 3.343. See Olson v. Brown, 5 Vet. App. 430. The evidence of record did not demonstrate the

Veteran's actual employability to a clear and convincing evidence standard (an intermediate standard between preponderance of the evidence and reasonable doubt) as of the time of the termination of TDIU. As a result, the RO's May 17, 1982 decision that terminated the Veteran's total disability rating based on individual unemployability involved clear and unmistakable error. Therefore that May 17, 1982 decision is hereby revised such that the Veteran's total disability rating based on individual unemployability is restored. “

“ORDER

The May 17, 1982 RO decision was clearly and unmistakably erroneous in terminating the movant's TDIU evaluation; the decision is revised to restore the award of TDIU effective as of September 1, 1982, subject to controlling regulations applicable to the payment of monetary benefits.”

The veteran's attorney for this appeal was Robert V. Chisholm.

The VA owed this vet retro for TDIU from 1982 less the SC % he already had received from 1982.

Yippee! Justice prevailed here.

Here is link to the regulation the attponey cited:

http://cfr.vlex.com/vid/3-343-continuance-total-disability-ratings-19775472

Edited July 1, 2012 by Berta

[Philip Rogers]

Robert V Chisholm won me a remand, at the court, on my SMC claim, a few yrs back. He knows what he's doing.

pr

[carlie]

Berta,

This is a beauty !

[Jumpmaster]

Berta, Carlie and PR this is encouraging new for many of us here at Hadit. Does Atty Robert V. Chisholm has a website?

I am posting a CUE Questions and Issue for my 1991 VA denials in the CUE Forum.

Berta is correct Justice did prevail in this veteran's case.

[john999]

You know thousands of WWII vets were treated like this where they got a rating on discharge and a few years later the VA decided they had improved and just sent them a letter reducing them with or without an exam. Many just let the appeal date go by and carried on with their lives.