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Court Wins

CCK Helps Thailand Veteran Secure Years of Retroactive Benefits in CUE Case

September 23, 2022
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Summary of the Case

The Veteran served on active duty in the U.S. Air Force from July 1967 to 1971.  During this time, they worked as an aircraft maintenance technician at the Udorn Air Base in Thailand.

In a December 1999 Rating Decision, the Department of Veterans Affairs (VA) granted the Veteran service-connected benefits for tinnitus at a 10 percent rate and bilateral hearing loss at a 0 percent rate.  The Veteran requested an increased rating for bilateral hearing loss, which VA denied.

In 2001, VA awarded disability compensation for mycosis fungoides due to Agent Orange exposure at a 100 percent rate.  In 2002, the Veteran requested a permanent 100 percent rating for mycosis fungoides, as well as Total Disability based on Individual Unemployability (TDIU) benefits.  VA denied these requests.  Subsequently, the Veteran filed a Notice of Disagreement.

Then, in 2005, VA severed service connection for mycosis fungoides (also claimed as non-Hodgkin’s lymphoma).  According to VA, it was unable to verify exposure to herbicides while the Veteran was on active duty, despite previously conceding herbicide exposure in 2001.

VA continued to deny the Veteran’s supplemental claims and appeals for nearly 10 years following the 2005 rating decision.  This included a November 2014 Rating Decision in which VA denied service connection for chronic kidney disease.

Finally, in December 2014, with the help of Chisholm Chisholm & Kilpatrick, the Veteran filed an appeal requesting a revision of the 2005 Rating Decision due to clear and unmistakable error (CUE).  CCK also appealed for service connection for chronic kidney disease.

CCK Argues Clear and Unmistakable Error in Previous VA Decision

Following another VA denial of service connection in a June 2016 Statement of the Case (SOC), CCK helped the Veteran file an appeal to the Board of Veterans’ Appeals (BVA).

In July 2017, the Board reviewed both the CUE case and the chronic kidney disease appeal.  CCK argued that there was clear and unmistakable error in VA’s December 2005 rating decision that severed service connection for non-Hodgkin’s lymphoma.  CCK also contended that the Veteran developed chronic kidney disease secondary to his non-Hodgkin’s lymphoma.

The Board remanded both cases for further development by VA.  However, in September 2017, VA determined that there was no CUE in the 2005 decision and, therefore, no revision was warranted.  The Board again remanded the issue back to VA in March 2018, followed by another VA rebuttal claiming that the 2005 decision was “not clearly and unmistakably erroneous.”

Finally, in May 2020, the CUE issue returned to the Board for a third time.  In their argument, CCK contended that at the time of the December 2005 rating decision, there was sufficient evidence of record indicating Agent Orange exposure during service.  According to CCK, there was enough evidence to defeat VA’s 2005 finding was erroneous for service connection to have been initially granted in 2001.  The Board agreed with CCK’s assertions.

Board Restores Service Connection for Non-Hodgkin’s Lymphoma

Based on CCK’s arguments, the Board determined that the December 2005 VA rating decision contained clear and unmistakable error when it severed service connection for the Veteran’s mycosis fungoides (non-Hodgkin’s lymphoma).  The Board restored service connection effective March 1, 2006, resulting in the Veteran winning a large sum of retroactive benefits.