The first 6 months at the BVA showed a whopping 522 CUE decisions.
That sure does not mean that many were granted but I think,more and more, veterans are filing CUE claims and certainly they are looking over past VA decisions, very carefully ,as within this recent BVA award.
(Some CUEs are "dismissed without prejudice" by the BVA, which means the CUE can be re-shaped and re- filed, and bolstered with better legal evidence of error.)
2. Evidence of employability in January 1985 was not clear and convincing.
"ORDER
The motion for revision of the January 4, 1985, Board decision on the basis of CUE is granted; entitlement to TDIU is restored effective August 1, 1983."
"5. Whether an October 22, 2008 decision which denied service connection for hearing loss and tinnitus contains clear and unmistakable error (CUE)."
"As noted above, the Veteran's appellant's main claim as to CUE is that the RO impermissibly substituted its medical judgment when it failed to grant these claims even in spite of the fact that the only medical evidence of record was a positive medical opinion. The Veteran's representative argued that this was therefore a Colvin violation. The Board finds this argument to be without merit however, as the RO did not use its own medical judgment in forming this opinion, it indicated several reasons why they discounted this opinion, therefore, this is merely an argument with how the facts were weighed or evaluated, which, as noted above, cannot rise to the level of CUE."
"However, the Board notes that the RO, in its October 2008 rating decision, indicated that one of the main reasons they discounted the private positive medical opinion was because there was no evidence of record that the Veteran has been exposed to hazardous noise. The Board does not find this consistent with the evidence of record at that time, namely, the Veteran's personnel records, which show that he underwent rifle training and had an expert marksmanship badge. In essence, given the Veteran's contentions and the information in his service records supporting a finding of excessive noise exposure, the Board is unable to identify any contrary evidence to support the RO's finding. In addition, such noise exposure clearly consistitutes an injury sustained during active duty for training, in light of the medical opinion of record at the time of decision linking his hearing loss and tinnitus to such exposure. As this undebatable error was the primary basis of the RO's denial, the Board concludes that the error manifestly changed the outcome of the decision at the time it was made. Such a mistake constitutes clear and unmistakable error and, as a consequence, an earlier effective date of May 30, 2008, for the award of service connection for hearing loss and tinnitus is granted.
ORDER
The claim of entitlement to an increased rating for hearing loss is dismissed.
The claim of entitlement to an increased rating for tinnitus is dismissed.
The claim of CUE in an October 22, 2008 decision which denied service connection for hearing loss and tinnitus is granted, and an earlier effective date of May 30, 2008, for the awards of service connection for these disabilities is granted."
The July 1975 Board decision, denying service connection for pes planus, is reversed on the grounds of clear and unmistakable error, and the motion is granted.
In this case, in a separate but concurrently issued decision, the Board granted an earlier effective date of January 23, 1985 for the award of service connection for PTSD. Because January 23, 1985 is the earliest possible effective date for the grant of service connection for PTSD, the moving party has been awarded the maximum benefit in this case. 38 C.F.R. § 3.400. As such, the issue of whether there was CUE in the April 1988 Board decision which denied service connection for PTSD is moot. 38 C.F.R. § 20.140)
ORDER
The claim for CUE in the April 14, 1988 Board decision, which denied service connection for PTSD, is dismissed.
Question
Berta
The first 6 months at the BVA showed a whopping 522 CUE decisions.
That sure does not mean that many were granted but I think,more and more, veterans are filing CUE claims and certainly they are looking over past VA decisions, very carefully ,as within this recent BVA award.
(Some CUEs are "dismissed without prejudice" by the BVA, which means the CUE can be re-shaped and re- filed, and bolstered with better legal evidence of error.)
FINDINGS OF FACT
1. The January 1985 Board decision denying entitlement to restoration of TDIU failed to apply the correct legal standard under 38 C.F.R. § 3.343© (1984).
2. Evidence of employability in January 1985 was not clear and convincing.
"ORDER
The motion for revision of the January 4, 1985, Board decision on the basis of CUE is granted; entitlement to TDIU is restored effective August 1, 1983."
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files3/1423661.txt
___________________________________________________
The following is an unusual decision:
"5. Whether an October 22, 2008 decision which denied service connection for hearing loss and tinnitus contains clear and unmistakable error (CUE)."
"As noted above, the Veteran's appellant's main claim as to CUE is that the RO impermissibly substituted its medical judgment when it failed to grant these claims even in spite of the fact that the only medical evidence of record was a positive medical opinion. The Veteran's representative argued that this was therefore a Colvin violation. The Board finds this argument to be without merit however, as the RO did not use its own medical judgment in forming this opinion, it indicated several reasons why they discounted this opinion, therefore, this is merely an argument with how the facts were weighed or evaluated, which, as noted above, cannot rise to the level of CUE."
"However, the Board notes that the RO, in its October 2008 rating decision, indicated that one of the main reasons they discounted the private positive medical opinion was because there was no evidence of record that the Veteran has been exposed to hazardous noise. The Board does not find this consistent with the evidence of record at that time, namely, the Veteran's personnel records, which show that he underwent rifle training and had an expert marksmanship badge. In essence, given the Veteran's contentions and the information in his service records supporting a finding of excessive noise exposure, the Board is unable to identify any contrary evidence to support the RO's finding. In addition, such noise exposure clearly consistitutes an injury sustained during active duty for training, in light of the medical opinion of record at the time of decision linking his hearing loss and tinnitus to such exposure. As this undebatable error was the primary basis of the RO's denial, the Board concludes that the error manifestly changed the outcome of the decision at the time it was made. Such a mistake constitutes clear and unmistakable error and, as a consequence, an earlier effective date of May 30, 2008, for the award of service connection for hearing loss and tinnitus is granted.
ORDER
The claim of entitlement to an increased rating for hearing loss is dismissed.
The claim of entitlement to an increased rating for tinnitus is dismissed.
The claim of CUE in an October 22, 2008 decision which denied service connection for hearing loss and tinnitus is granted, and an earlier effective date of May 30, 2008, for the awards of service connection for these disabilities is granted."
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files3/1419343.txt
________________________________________________________________________
ORDER
The July 1975 Board decision, denying service connection for pes planus, is reversed on the grounds of clear and unmistakable error, and the motion is granted.
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files1/1410978.txt
______________________________________________________________________________
This one is very unusual and it appears the veterans already won a CUE for his EED.
In this case, in a separate but concurrently issued decision, the Board granted an earlier effective date of January 23, 1985 for the award of service connection for PTSD. Because January 23, 1985 is the earliest possible effective date for the grant of service connection for PTSD, the moving party has been awarded the maximum benefit in this case. 38 C.F.R. § 3.400. As such, the issue of whether there was CUE in the April 1988 Board decision which denied service connection for PTSD is moot. 38 C.F.R. § 20.140)
ORDER
The claim for CUE in the April 14, 1988 Board decision, which denied service connection for PTSD, is dismissed.
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files1/1409415.txt
___________________________________________
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