Two recent BVA awards of CUE

[Berta]

There is often nothing better to understand CUE than be willing to read BVA decision that deny or grant CUE claims.

I will try to add more to this thread in time and have searchable other BVA CUE awards here as well. These are recent 2021 decision.

 

These are two recent BVA CUE awards and they contain legal citations and a clear statement of why these CUEs succeeded.

They contain in essense a template for the specific CUE , and legal citations and rationale as to why the CUE succeeded.

 

Citation Nr: A21006352
Decision Date: 03/23/21    Archive Date: 03/23/21

DOCKET NO. 200131-60109
DATE: March 23, 2021

"ORDER

Entitlement to an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus type II on the basis for a clear and unmistakable error (CUE) is granted.

FINDINGS OF FACT

1. The Veteran was exposed to C 123K aircraft at Westover AFB; he initially submitted an informal and formal claim for service connection for diabetes mellitus type II on February 24, 2014; and there is medical evidence that the Veteran manifested diabetes mellitus type II in April 2013.

2. An October 2015 rating decision granted service connection for diabetes mellitus associated with herbicide exposure effective June 19, 2015.

3. The Veteran did not file a timely appeal and did not submit new and material evidence within one year of the rating decision.  Therefore, the October 2015 rating decision is final.

4. The clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made.

CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus type II on the basis for a clear and unmistakable error have been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107, 5109A, 5110, 7252 (2012); 38 C.F.R. §§ 3.105, 3.303, 3.400 (2020).
The Board finds that the clear and unmistakable error of law committed by the RO in the October 2015 rating decision, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different had the error not been made and the effective date of February 24, 2014 (the date VA received the claim) would have been assigned.  Therefore, the Veteran’s request for revision is granted and the October 2015 rating decision is revised to reflect an earlier effective date of February 24, 2014 for the grant of service connection for diabetes mellitus II associated with herbicide exposure." 
This case involves exposure to AO y virtue of the veteran's MOS , ( AO C 123) but that is not mentioned because: the BVA states
" This is not a case of a claim for retroactive benefits but rather the direct application of regulations in effect and evidence of record at the time of the decision.  The criteria for service connection was satisfied.  The record had evidence of a diagnosis of diabetes in April 2013, and the regulation establishing the presumption of exposure which established an injury during Reserve duty that is presumed to have been caused by that exposure."
But the veteran did receive retro.
https://www.va.gov/vetapp21/files3/a21006352.txt

"ORDER

Entitlement to revision of a March 2004 rating decision on the basis of clear and unmistakable error (CUE) is granted, and the March 2004 rating decision is revised to reflect the separate grants of service connection for a right ankle disability, evaluated as 10 percent disabling, a right foot disability, and a lumbar spine disability, evaluated as 10 percent disabling.
and :With regard to the Veteran’s degenerative disk disease (DDD) of the lumbar spine, the Board notes that the regulations pertaining to the evaluation of disabilities of the spine were amended during the pendency of the Veteran’s original claim, which claim was filed in August 2003.  Effective September 26, 2003, the spine DCs were renumbered and the rating schedule was revised to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine.  68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003).  Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent expressed intent to the contrary. 
"Notably, the report of the November 2003 examination reflected that the Veteran’s lumbar spine disability was manifested by painful motion With regard to the Veteran’s degenerative disk disease (DDD) of the lumbar spine, the Board notes that the regulations pertaining to the evaluation of disabilities of the spine were amended during the pendency of the Veteran’s original claim, which claim was filed in August 2003.  Effective September 26, 2003, the spine DCs were renumbered and the rating schedule was revised to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine.  68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003).  Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent expressed intent to the contrary."
and:
"With regard to the Veteran’s degenerative disk disease (DDD) of the lumbar spine, the Board notes that the regulations pertaining to the evaluation of disabilities of the spine were amended during the pendency of the Veteran’s original claim, which claim was filed in August 2003.  Effective September 26, 2003, the spine DCs were renumbered and the rating schedule was revised to provide for the evaluation of all spine disabilities under a new General Rating Formula for Diseases and Injuries of the Spine.  68 Fed. Reg. 51454-51456 (Aug. 27, 2003) (effective September 26, 2003).  Where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent expressed intent to the contrary." 
https://www.va.gov/vetapp21/files2/a21003329.txt