Jump to content

Sponsored Ads



  • Latest Donations

  • Advertisemnt

  • 14 Questions about VA Disability Compensation Benefits Claims

    questions-001@3x.png

    When a Veteran starts considering whether or not to file a VA Disability Claim, there are a lot of questions that he or she tends to ask. Over the last 10 years, the following are the 14 most common basic questions I am asked about ...
    Continue Reading
     
  • Ads

  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • Advertisemnt

  • Advertisemnt

  • Ads

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

Sponsored Ads

  • Searches Community Forums, Blog and more

  • Donation Box

    Please donate to support the community.
    We appreciate all donations!
  • 0
carlie

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

Question

http://www.va.gov/vetapp12/Files2/1214990.txt

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.

ORDER

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.

Share this post


Link to post
Share on other sites

1 answer to this question

Recommended Posts

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.

Share this post


Link to post
Share on other sites

Ad

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

  • Ads

  • Ad

  • Latest News
  • Our picks

    • OK so I had pancreatectomy in 2003 due to an impacted goldstone 2/3 of my  Pancreas was removed I am type one diabetes with very large scars continued diarrhea stomach problems Constant back and shoulder pain I recently received a Nexus letter from my  endocrinologist related to my service in the gulf war.  Any suggestions or advice from anyone
    • I would like to meet other Hadit members who live in Michigan.  We have at least two major VA Hospitals (Battle Creek, Ann Arbor).  Or maybe you go to the the John Dingell in Detroit.  

      I like Ann Arbor.  I like the fact that most of the doctors there are also at the UM Hospital.  I don't like how uickly they seem to turn over though.  
        • Like
      • 4 replies
    • Really?
      I am confused.  A few days ago I spoke to a person at a VARO who said if I die from something other than service-connected my husband gets zero, zilch, squat.  Hmmmmmm, it seems the rules change willy-nilly...I have been rated 100% P & T for over 10 years, MS is static, and I am 56 years of age.

      Can a fellow Veteran shed a light on this?

      Thank you.
        • Haha
      • 15 replies
    • Fund raising for HadIt.com
      The site is supported through ads and ad free subscriptions, we are also asking for any support you would like to send our way. You can give a $1 or more it all helps. Keep in mind though that it is NOT tax deductible and we are NOT a non profit. As the site grows so do the costs and ads and subscription do not always keep pace with the costs. Any help is appreciated, but not required.
      • 11 replies
    • Carol Ozanecki- Blue Water vet Advocate called me with this news:

      https://www.stripes.com/news/lawmakers-launch-new-effort-to-provide-agent-orange-coverage-for-blue-water-navy-vets-1.525395

      Also there is a article in Pop Culture she sent to me----mentionig Blue Water vets buy I felt it was too political to post here. You can google it if you want to read it.

       

       
      • 10 replies
×

Important Information

{terms] and Guidelines