13-10 633
13-10 633
| Board of Vet. App. | Feb 28, 2017Background
- Veteran served active duty Sept 1951–Dec 1954 and initially filed for service connection for bilateral hearing loss in April 1955; RO denied the claim in a January 1956 rating decision.
- Veteran did not appeal the 1956 denial; his November 1967 attempt to reopen was advised to submit new and material evidence but none was provided.
- Veteran filed to reopen on November 4, 2009; VA granted service connection in December 2010 with an effective date of November 4, 2009.
- Veteran argued the January 1956 rating decision contained clear and unmistakable error (CUE), alleging VA failed to consider a February 1954 audiogram showing worsened hearing.
- Board found the 1956 decision was supported by the record available at that time (including service records and the 1954 audiogram presumed to be of record), so no CUE; as earlier claims became final, the effective date remains November 4, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Jan 1956 RO decision denying service connection was CUE | The 1956 RO failed to consider a Feb 1954 audiogram showing worsened hearing, so the 1956 denial was CUE and service connection should date to discharge | The 1956 decision was supported by the facts and law of record; the audiogram was part of the service records and the issue is disagreement over weighing, not CUE | No CUE; 1956 decision not undebatably erroneous |
| Whether an effective date earlier than Nov 4, 2009 is warranted | If 1956 decision is CUE or there was an informal claim within one year before Nov 4, 2009, earlier effective date applies | Earlier decisions became final; no informal/formal claim or intent to file within the year before Nov 4, 2009 | Effective date not earlier than Nov 4, 2009; claim reopened on Nov 4, 2009 |
Key Cases Cited
- Bryant v. Shinseki, 23 Vet. App. 488 (2010) (VA hearing duties to explain issues and suggest evidence)
- Hartman v. Nicholson, 483 F.3d 1311 (2007) (notice defects not prejudicial after claim granted)
- Damrel v. Brown, 6 Vet. App. 242 (1994) (three‑prong CUE test)
- Russell v. Principi, 3 Vet. App. 40 (1993) (CUE standards)
- Fugo v. Brown, 6 Vet. App. 40 (1993) (CUE requires error that would have manifestly changed outcome)
- Natali v. Principi, 375 F.3d 1375 (2004) (absence of RO discussion not dispositive of consideration)
- United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926) (presumption that government officials performed duties properly)