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The Ro Did Not Properly Apply The Presumption Of Service Connection Law For Certain Chronic Diseases...
Posted 10 July 2012 - 03:57 AM
2011 BVA grants CUE on 1993 decision -
However, the RO failed to discuss whether the post-service carpal tunnel surgery, which had to have occurred within one year of the Veteran's May 1992 discharge from service, demonstrated that carpal tunnel syndrome was manifest to a degree of ten percent or more within one year after service. Since it was undisputed the Veteran had undergone carpal tunnel release surgery as evidenced by his surgical scars in early 1993, the necessity for surgery at that time as directed by a physician confirms his carpal tunnel disorder must have been manifest to a degree of 10 percent or more prior to his surgery. See 38 C.F.R. §§ 4.124a (1993), Diagnostic Code 8515 (paralysis of the median nerve, only requiring "mild" symptoms to warrant a 10 percent rating). The RO did not properly apply the presumption of service connection law for certain chronic diseases (organic diseases of the nervous system) that are manifest to a degree of 10 percent or more within one year of discharge. See 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993).
Therefore, the statutory and regulatory provisions extant at the time of the August 1993 rating decision were incorrectly applied. In short, the RO in August 1993 committed legal error. In addition, the RO's failure to properly consider the one-year presumption for chronic diseases was outcome determinative as the decision as to service connection for bilateral carpal tunnel syndrome would have been manifestly different if the law was correctly applied. Fugo, 6 Vet. App. 43-44. That is, the outcome of the Veteran receiving the award of service connection for bilateral carpal tunnel syndrome would have been undebatable at that time.
Reasonable minds could not have differed as to whether the law in August 1993 entitled the Veteran to presumptive service connection for bilateral carpal tunnel syndrome at that time. Therefore, the error committed by the RO in failing to properly address the one-year presumption for service connection for certain chronic diseases was clear and unmistakable. Fugo, 6 Vet. App. 43-44.
The Board finds clear and unmistakable error in the August 1993 rating decision as to the denial of service connection for bilateral carpal tunnel syndrome at that time. 38 C.F.R. § 3.105(a). On correction due to CUE, the Veteran is entitled to service connection for bilateral carpal tunnel syndrome as if such decision was made at the time of the August 1993 rating decision.
Posted 10 July 2012 - 06:20 AM
This is a good example that the RO really does have to follow VA regulations, or its CUE, as long as the error is "outcome determinative".
I wonder if this passed through a DRO review, where an experienced person should have caught this error. This Vet should never have had to go to the BVA for this.