Legal Question in Veterans Law in California

clear and unmistakable error

In April of 2003 I filed claim with VA for service connected loss of hearing. As part of the evidence in support of my claim, I submitted four audiograms administered by the U.S. Postal Service circa 1980-1981. The result of these test was similar to audio grams administered by Audio Dept Sepulveda VA facility and QTC facility in 2003. Subsequently I was awarded a 30% disability rating effective the date my claim was failed

Given that evidence was submitted showing clear and convincing proof that said service connected hearing loss exited as far back as 1980, should the effective date of award also have been dated back to either one year prior to the date claim was filed or back to the date of the earliest Post Office audio gram.

Secondly does this constitute Clear and Unmistakable Error on the part of VA rating board.

Asked on 7/22/08, 12:10 pm

1 Answer from Attorneys

Jill Mitchell-Thein Heard & Smith, LLP

Re: clear and unmistakable error

You would only have a shot at arguing for benefits back to '80 or '81 if you had filed a VA claim back then. You can't get what you didn't ask for at the time. If you had filed a claim then, and the evidence and law were the same as they were when you were granted in 2003, then you would certainly have some basis to argue that there was an error in the original decision. Are you sure you didn't file a claim as part of your out-processing? Sometimes the military will get the claim going for you. You might make sure there indeed was no claim filed and denied in the 80's. Thanks for the inquiry.

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Answered on 7/22/08, 12:48 pm

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