2011 Cvac Grants Sc--For Two Bva Cue Denials Of A 1963 Claim Remanded For Readjudication

[Jumpmaster]

This CUE Winner Proved!--VA failed to consider both prongs of 38 U.S.C.A. § 1111 for rebutting the Presumption of Soundness.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files2/1115486.txt

Citation Nr: 1115486

Decision Date: 04/20/11 Archive Date: 05/04/11

DOCKET NO. 02-15 026A ) DATE

THE ISSUE: Whether there was clear and unmistakable error (CUE) in a September 1963 rating decision that denied service connection for a right knee disability.

INTRODUCTION

The appellant is a veteran who served on active duty from September 1961 to May 1963. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a March 2003 RO determination which found no CUE in a September 1963 rating decision that denied service connection for a right knee disability.

In February 2005, the Board issued a decision that, in pertinent part, denied the Veteran's motion alleging CUE. He appealed that part of the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2007 memorandum decision, the Court vacated that part of the Board's decision and remanded that issue for readjudication.

In October 2007, the Board issued a decision that denied the Veteran's motion alleging CUE. The Veteran again appealed to the Court. In a May 2010 memorandum decision, the Court vacated the Board's decision and remanded the issue for readjudication.

In the May 2010 memorandum decision, the Court, citing Rivers v. Roadway Express, 511 U.S. 298, 311, 312 (1994) held, in essence, that the Federal Circuit's interpretation of 38 U.S.C.A. § 1111 had retroactive effect, and that the failure to consider both prongs of the § 1111 requirement for rebutting the presumption of soundness could serve as the basis for CUE.

FINDINGS OF FACT

1. A September 4, 1963 rating decision denied the Veteran service connection for a right knee disability.

2. The September 4, 1963 rating decision did not properly apply governing law, and such failure was outcome determinative.

3. A statutory presumption that the Veteran's pre-existing right knee disability was aggravated by service is not shown to be rebutted by clear and unmistakable evidence.

CONCLUSION OF LAW

The September 4, 1963 rating decision which denied the Veteran service connection for a right knee disorder involved clear and unmistakable error and requires revision; service connection for a right knee disability on the basis that pre-existing disability was aggravated by service is warranted. 38 U.S.C.A. §§ 5109A, 7105 (West 2002 & Supp. 2010); 38 C.F.R. § 3.105 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. § 311 (now renumbered as 38 U.S.C.A. § 1111) a veteran was considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such.

The Court remanded the case for the Board to provide an adequate explanation of whether the evidence before the 1963 RO constituted clear and unmistakable evidence that the Veteran's right knee disability did not increase in severity during service or that any increase was due to the natural progress of the disease.

At the time of the RO's decision in 1963 there is no explicit opinion in support of a finding of no aggravation. The April 1963 examination performed for purposes of a Medical Board described the Veteran's knee disability as "progressive." That opinion was not explained. The other evidence of record showed that the Veteran entered service with no manifestations of right knee disability and a physical profile of 1, or medically fit for any assignment, with respect to the lower extremities. See Chapter 9, Army Regulation 40-401 (1960) (judicially recognized by the Court in its May 2010 Memorandum Decision). In service he reported knee problems, including complaints of swelling and soreness, in November 1961, December 1961, February 1963, March 1963, and April 1963.

The post-service VA examination in July 1963 was negative, finding no evidence of effusion or arthritis while physical findings revealed no swelling, no muscle atrophy, no tenderness, no locking, full range of motion, good stability, no limp, and no defects. The examination report contains no opinion regarding aggravation.

The Federal Circuit clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), that the presumption of soundness under 38 U.S.C.A. § 1111 is rebutted only if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any pre-existing conditions were not aggravated by service.

ORDER

The appeal to establish CUE in the September 4, 1963 rating decision which denied the Veteran service connection for a right knee disorder is granted; service connection for a right knee disorder is granted.

____________________________________________

GEORGE R. SENYK

Veterans Law Judge, Board of Veterans' Appeals

[john999]

Depending on his rating that is a nice parcel of money. It shows not to give up if you know or even think you are right. Of course, it took 9 years to get it right. This guy is probably in his late 60's or early 70's. How long can an old vet wait?

[Jumpmaster]

Hello John I totally agree with you that 9 years of waiting is a long time. However, there are a lot of Vets around the world who are still waiting. I believe if you wake up each morning above ground, you always pray you've been blessed for another day, breathe the fresh air, have breakfast, juice, coffee or water. Grab your cane take a walk outside.

After walking you know the routine! Veteran assume your position at the back of the claim line! Smile and keep waiting until those SOB's get it right. I think by the time we reach the age between 60-70 most of us should be a little bit smarter---than when we were between 20-35 and would've learned to spend wisely in our senior years,

I am still waiting for my Brown Envelope to arrive sometime before the next Commander In Chief and VA Secretary leave office.

[john999]

Jumpmaster

I have a CUE at the CAVC right now. It has been to the BVA twice and the CAVC twice. I started at the VARO where the CUE happened about 6 years ago. I am asking 100% back to 1971. I am 100% now for 11 years. I have been SC'ed for 41 years. I have done a heap of waiting. I went from 10% to 100% over that period. I did not really wise up until I was about 50 years old.