CAVC Case 01-575: Back
CAVCReal U.S. Court of Appeals for Veterans Claims (CAVC) decision · July 11, 2003 · FARLEY
This is a decision of the U.S. Court of Appeals for Veterans Claims — the federal court that reviews Board of Veterans' Appeals decisions, one level above the Board. Court decisions can vacate, reverse, or affirm what the Board did.
Official 2026 VA monthly compensation, including the 2.8% COLA increase.
Dependent add-ons start at a 30% rating. Child-only and dependent-parent rates: see the full 2026 pay chart.
2026 base rates, all ratings (veteran alone)
| Rating | Monthly (2026, incl. 2.8% COLA) |
|---|---|
| 10% | $180.42 |
| 20% | $356.66 |
| 30% | $552.47 |
| 40% | $795.84 |
| 50% | $1,132.90 |
| 60% | $1,435.02 |
| 70% | $1,808.45 |
| 80% | $2,102.15 |
| 90% | $2,362.30 |
| 100% | $3,938.58 |
Conditions Claimed
BackKneeHearing LossHipHeartEye
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Issues on Appeal
BackKneeHearing LossHipHeartEye
Why It Was Decided This Way
In November 1995, the Board reopened the veteran's claim based on new and material evidence, including a February 1977 VA medical record noting that the veteran had told a physician that he had incurred "a grenade wound to the head" during World War II and suffered "subsequent hearing loss, most severe in the right ear", a condition that "was confirmed during this hospitalization by impairment demonstrated on audiogram" (R.
VA consider the previous final decision a product of [CUE], or that the [EED] should be established based on the old evidence as supplemented by the new and material evidence submitted with the reopened claim.
The Board then determined that there was no CUE in the May 15, 1981, decision, despite the appellant's contention that the RO had failed to consider 38 U.
The Board concluded that there was "no indication in the record that the law regarding service connection for hearing loss was incorrectly applied" and that "the veteran has not articulated a plausible argument based on a failure to apply the law or misapplication of the law to his case in light of the contemporaneous evidence"; based on these conclusions, the Board found no CUE in the May 1981 decision.
Reasoning that the May 1981 RO decision became final because the veteran failed to seek appellate review within one year after mailing of notice of that decision, the Board concluded: The finality of th[at] .
The veteran eventually prevailed, as a November 1995 Board decision reopened the veteran's claim on the basis of new and material evidence and granted service connection for bilateral hearing loss.
The Board determined that June 7, 1991, was the date of receipt of the veteran's request to reopen and that "[p]rior to that date, the only correspondence of record pertains only to the veteran's 5 left-eye disorder, with no mention of hearing loss", so there was no basis for an EED by direct challenge of the claim to reopen.
The Secretary responds as follows: (1) The February 2001 BVA decision finding no CUE in the May 1981 RO decision was not arbitrary and capricious because there was no medical evidence at that time of nexus between the appellant's condition and his service and because the 38 U.
Authorities Cited
Regulations Cited (38 CFR / 38 USC)
Denial Type
No Nexus|Not New Material|Duty To Assist|Cue
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