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Clear And Unmistakable" Evidence Standard Applied To The Issue Of Aggravation.



Decision Date: 04/25/12

The Board notes that at the time of the Board's February 1985 decision, it had not been established that the "clear and unmistakable" evidence standard applied to the issue of aggravation.

It was only in the Wagner opinion, which was issued in 2004, that the Federal Circuit held that based on the express terms of section 1111 (which was codified as section 311 at the time of the February 1985 decision) the clear and unmistakable standard applied both to the issue of whether a disability pre-existed active service, and to the issue of whether it was aggravated by service. See id. As noted above, CUE cannot be found in a Board decision that correctly applies a statute or regulation when there has subsequently been a change in the interpretation of the statute or regulation. 38 C.F.R. § 20.1403(e).

However, the Federal Circuit has recently held that its interpretation of section 1111 in the Wagner opinion was retroactive in that the interpretation of a statute explains "what the statute has meant since the date of enactment." Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (quoting Patrick v. Nicholson, 242 Fed.Appx. 695, 698, 2007 WL 1725465 (Fed. Cir. 2007)). Thus, the Federal Circuit found that a 1986 Board decision which failed to apply the clear-and-unmistakable-evidence standard to the issue of aggravation was not in accordance with the law. See id.

Therefore, the case was remanded so that the Board could determine whether the outcome of the 1986 decision would have been different had it applied the correct standard. See id. Accordingly, as this case presents the same factual scenario as addressed by the Federal Circuit in Patrick, the clear-and-unmistakable-evidence standard should have been applied to the issue of aggravation in the Board's February 1985 decision.


The February 1985 Board decision, denying service connection for a psychiatric disorder, is reversed on the grounds of clear and unmistakable error, and the motion is granted.

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GREAT find Carlie!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This was a Motion for Reconsideration under CUE.

BVA awards these types of Motions few and far between but NOTHING is impossible with the VA.

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