Sneaky. Very sneaky. The Veteran had none of it, and appealed to the Court.
Now, I must caution you that the Court did not say that there was CUE – but it did vacate the decision and remand it to the Board to prepare an adequate analysis. The court cautioned the Board:
“[T[he relevant statute in place in 1981 provided that the Secretary must establish by “clear and unmistakable evidence” that a preexisting condition was not aggravated in service. See 38 U.S.C. § 311. By basing its decision on a lack of evidence of aggravation, the 1981 Board misapplied the presumption-of-soundness statute, which may form the basis of a CUE motion. See Russell v. Principi, 3 Vet.App. 310, 313 (1992)(en banc).”
I’m curious how this will turn out on remand, but I strongly suspect that there will be a finding of CUE, a reopening of the claim, possibly securing 37 years of past-due benefits for the Veteran’s back injury.
Why?
If the BVA is smart, it will remember the tongue lashing in Horn, and take note of the caution that the same error “may form the basis of a CUE motion“. I don’t know how the Court will respond to a BVA decision that misapplication of the presumption of soundness is NOT CUE – but I suspect that we will know what the Court meant in Horn when it said that it will “…tolerate the continuance of defective evidentiary development in presumption of soundness cases.”
Reopening REALLY Old Claims with Defective Presumption of Soundness Analysis.
Where does that leave Veterans?
If the VA used the absence of evidence of aggravation to overcome the presumption of soundness, APPEAL! There’s a strong likelihood that the VA’s decision is wrong.
1.If you have time left to file the NOD or VA Form 9, do so – continue the fight in your current appeal and do not miss any deadlines.
2.If your decision containing that error is final – whether it is a BVA or VA Rating Decision – consider filing a CUE Claim (if it is a VA Ratings Decision) or a Motion to Revise a Previously Final Board Decision for CUE (if it was a BVA Decision).
By “righting” an error that cost you benefits years or even decades ago, you might be setting yourself up for some pretty significant past-due benefits.
Be careful though, CUE Motions and Claims are really hard.
You have to be REALLY specific in what you say, and there are more than a couple procedural pitfalls you have to clear.
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