Bva - Cue - Decision Date: 10/03/12

[carlie 50]

http://www.va.gov/vetapp12/Files5/1234447.txt

Nevertheless, after considering the reason set forth in the March 1969 rating decision, the Board finds that the RO committed CUE in that it failed to properly apply the applicable law and regulation to the issue.

The RO clearly found that the Veteran's hearing loss pre-existed his entry into service. Although not explicitly stated, it can be inferred that the RO found that the Veteran's pre-existing hearing loss was aggravated in service.

Thus, the presumption of aggravation applied.

The RO erred, however, in applying the clear and unmistakable evidence standard to rebut the presumption of soundness.

The reason set forth by the RO clearly demonstrates that it required clear and unmistakable evidence to show aggravation beyond the natural progression of the condition, but the standard set forth in the applicable regulation is that there must be clear and unmistakable evidence that the aggravation was NOT beyond the natural progression of the condition.

By requiring clear and unmistakable evidence to show aggravation beyond the natural progression, the RO impermissibly placed the burden of proof on the Veteran when the burden to rebut the presumption is actually on VA.

Finally, had the RO properly applied the clear and unmistakable evidence standard in rebutting the presumption of aggravation, it would have had no choice but to grant service connection for hearing loss because there was no evidence to demonstrate that the Veteran's hearing loss was not aggravated beyond its natural progression.

Accordingly, the Board finds that the RO committed CUE in the March 1969 rating decision when it denied service connection for hearing loss.

Given the procedural history of this case, however, the Board will defer a decision on an earlier effective date to the RO for adjudication in accordance with this decision.

ORDER

The March 1969 rating decision that denied service connection for hearing loss was clearly and unmistakably erroneous and, to that extent only, the appeal is granted.

[ketchup56 58]

This is exactly what the vba stated in the soc when they denied my claim for aggravation of my pre existing back condition. They also used the fact that my str"s were missing as evidence to state there was no evidence of aggravation, when the vba was the ones who lost all my service treatment records which had all my numerous visits to medical personel while in service. They acknowledged that i had a pre existing condition which they really could not deny because my ex wife still had a copy of my entrance exam physical which i submitted to them confirming the condition. I submitted buddy statements, and c&p examiner could not rule out aggravation in the imo, but the vba still denied claim. "CLEAR AND UNMISTAKABLE EVIDENCE" is a high burden for vba to rebut but they still use these lame decisions to try to deny. In aggravation claims the burden is ALWAYS on vba to rebut NOT the veteran.

[Berta 3,013]

You are correct.

Many of these types of claims are denied however, as although the presumption of soundness can be rebutted, and reveal a pre -existing condition, the VA can then make a finding that service did not 'aggravate' the pre -existing condition.

“A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are considered as noted. 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1).

VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 03- 2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. 1153; 38 C.F.R. 3.306.

Temporary or intermittent flare-ups of the pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247- 48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Accordingly, "a lasting worsening of the condition" -- that is, a worsening that existed not only at the time of separation but one that still exists currently -- is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). “

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp11/Files5/1141973.txt

[Cynthia80 1]

That CUE was in my husband letter stating that they were gonna sever his comp back in Oct 2012...VA has giving us 6mos to try and get his Line of Duty Investigation over turned which his unit screwed up on my question is will i be wasting my time by filling out a DD 149 or should i just go get a lawyer to fight the Army for me?