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@  chuck57thSig : (30 October 2014 - 05:51 PM) Sarti07, It's Under (Va Claims And Research) Http://www.hadit.com/forums/topic/59064-Prep-For-Decision-Phaseprovisional-Rating/
@  sarti07 : (30 October 2014 - 02:43 PM) Hello, I Just Posted A Topic About Prep For Decision.. I Have No Idea Where To Find It! Lol
@  carlie : (28 October 2014 - 03:42 PM) Reelnrod - Just Pick A Topic That Corresponds To Your Stuff And Post It
@  reelnrod : (28 October 2014 - 10:11 AM) So, How Do I Post A Topic?
@  Thadine : (28 October 2014 - 08:21 AM) Irrrl
@  Thadine : (28 October 2014 - 08:18 AM) Fishing License
@  Thadine : (28 October 2014 - 08:14 AM) Thadine Quick
@  red : (27 October 2014 - 12:14 PM) Anyone Heard Any Updates On Flying Space A For 100% Disabled Vets?
@  maxwell18 : (27 October 2014 - 10:49 AM) I Did Contact My Congressman Jeff Miller, Let's See What Will Happen
@  maxwell18 : (27 October 2014 - 10:48 AM) @britton
@  Tbird : (27 October 2014 - 04:26 AM) Thank You Larry S For Your Contribution To Our Funding Campaign
@  britton : (26 October 2014 - 07:33 PM) Everyone (Veteran's) Should Recive A Memo From The Dept Of Veterans Affairs ****notification Of Medication Scheduling Change****
@  britton : (26 October 2014 - 07:24 PM) Meds That Are Consider To Be Schedule Ii Narcotic...pain Meds Like Hydrocodone Ectt Ect,,
@  britton : (26 October 2014 - 07:22 PM) As I Understand We Only Can See The Va Dr's Every 28 Days To Renew Our Prescription Meds A New Law Went Into Effect Oct 6Th 2014....i Only See Problems Problems Problems With This...grrrrr
@  maxwell18 : (26 October 2014 - 03:52 PM) This Is Maxwell18 Would The Person Who Contacted Me (Vern2) Please Contact Me Again, I Attemped To E Mail You It Returned No Reply. Thanks
@  Tbird : (26 October 2014 - 05:12 AM) Thank You Maxwell18 For Your Contribution To Our Funding Campaign.
@  Notorious Kelly : (25 October 2014 - 07:53 PM) Max- Contact Your Congressman- Dea Has Got Docs So Cowed They're Afraid To Dispense Tylenol
@  maxwell18 : (25 October 2014 - 07:10 PM) Anybody Having Problems Getting Pain Pills (Norco) Filled Us Navy Base (Nas Whiting Fld Milton Fl). Had A Prescription For 90 Norco Pills For 30 Days, 3 A Day For Pain, Got 30 For 30 Days. That Will Last Me 10 Days. Another Thing That Our Government Is Screwing With Us. I Don't Know What To Do, Don't Want To To The Va, Don't Know What They Will Either. Anybody Goy Any Ideas. 
@  Burt : (25 October 2014 - 10:28 AM) Does Anyone Else Here Wear A Don Joy Armor Knee Brace From The Va?
@  red : (24 October 2014 - 10:10 AM) Any News On Space A Flying?

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The Ro Did Not Properly Apply The Presumption Of Service Connection Law For Certain Chronic Diseases...


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#1 carlie

 
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Posted 10 July 2012 - 03:57 AM

http://www.va.gov/ve...es5/1146734.txt

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.

#2 broncovet

 
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Posted 10 July 2012 - 06:20 AM

Good job Carlie.
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.