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Court Wins

The Board Erred In Finding 1983 Bva Decision Subsumed A 1953 Rating Decision

Michael Lostritto

September 13, 2016

Updated: November 20, 2023


Requests for revision based upon clear and unmistakable error are some of the most complex issues for the VA and the Court and this case exemplifies the difficulty. In 1953, the Regional Office denied the Veteran service connection for his head and neck injuries, finding there was no evidence that the Veteran suffered a gunshot wound in service. For years the Veteran wrote VA informing them that it was not a gunshot wound, but a land mine explosion, that caused his injuries. The Regional Office eventually found the Veteran entitled to service connection for residuals of a land mine explosion, with an effective date of February 2011, the date the Veteran filed a claim to reopen his case.

The Veteran disagreed with the effective date assigned, arguing that his effective date should be the date of his original claim in 1953. The Board concluded that the 1953 denial was made final by a 1983 Board decision and therefore the 1953 decision could not be collaterally attacked on the bases of CUE. The Court of Appeal for Veterans Claims held that the Board committed legal error when it found that the 1953 rating decision was made final by the 1983 Board decision. More importantly, the Court reversed the Board’s finding that the 1983 Board decision made the 1953 rating decision un-appealable, and ordered the Board on remand to consider there was clear and unmistakable error in the 1953 decision.

About the Author

Bio photo of Michael Lostritto

Michael joined CCK in September of 2016 as an Attorney, was named Supervising Attorney in 2021, and now serves as a Managing Attorney. His practice focuses on the representation of disabled veterans before the Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

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