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Veterans Law

Court finds Board erred in denying Veteran’s CUE claim

Lisa Ioannilli

October 24, 2017

Updated: November 20, 2023


Summary of the Case

The Veteran served on active duty from 1977 to 1980.  His enlistment examination revealed his eyes were normal, and he was thus presumed sound on entry into service.  While in service, he complained of night blindness and poor vision, which was later diagnosed as retinitis pigmentosa.  The military medically discharged for this condition.  During the Medical Board proceedings, the military physician noted this condition existed prior to service and was not aggravated by service.  In 1981, VA denied the Veteran entitlement to service connection for retinitis pigmentosa because it found the condition existed prior to service without significant aggravation in service.

Board denies Veteran’s CUE claim

In 2013, the Veteran asserted that VA committed clear and unmistakable error (CUE) in the original 1981 rating decision.  Specifically, he argued that VA failed to overcome either prong of the presumption of soundness when it concluded that his condition both existed prior to service and did not worsen in service.  VA denied the Veteran’s request for revision based on CUE in a 2014 rating decision.  The Veteran appealed that decision to the Board, which again denied the claim in April of 2016. The Board found that the requirement that VA rebut both prongs of the presumption of soundness was a recent interpretation of law, and thus did not exist at the time of the 1981 decision.  The Board concluded that it was at least debatable that the Veteran’s condition pre-existed service and was not aggravated by service.

CAVC agrees with CCK’s arguments

CCK successfully appealed to the Court the denial of revision based on CUE.  CCK argued, and the Court agreed, that the Board committed error.  Specifically, it erred when it found that the 1981 rating decision did not misapply the presumption of soundness under 38 U.S.C. § 311.  However, the law at the time of the 1981 rating decision required the RO to rebut the presumption of soundness with clear and unmistakable evidence that the Veteran’s condition both pre-existed service and was not aggravated by service.

The Court agreed that this interpretation of the statute applied at the time of the 1981 rating decision.  It held the Board failed to provide adequate reasons or bases for denying the Veteran’s CUE claim.  Accordingly, the Court vacated the Board’s decision and remanded the Veteran’s claim for further adjudication.

About the Author

Bio photo of Lisa Ioannilli

Lisa joined CCK in March 2012. Lisa is a Senior Attorney focusing on representing disabled veterans in claims pending before the U.S. Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

See more about Lisa