Cousin v. Wilkie

Cousin served in the Army, 1951-1953. His entrance examination showed normal findings as to his back. In service, he injured his back while lifting cans; a month later, he complained of back pain. He was diagnosed with a mild back strain and placed on medically restricted duty. In 1952, his back condition was noted to have improved, and he was removed from restricted duty. Records from 1953 note back pain before service; an x-ray showed a “pedicle defect L5” and “spondylolysis.” He was placed on a permanent profile for a “weak back.” An examination report of his discharge noted his back had been taped in 1952 and that he was then asymptomatic. In 1954, Cousin unsuccessfully sought disability compensation for his back condition. Between 1979-2009, Cousin filed three unsuccessful applications to reopen that claim. In 2012, Cousin filed another application. In 2013, the regional office granted him service connection for a back disability effective January 2012. Cousin filed a Notice of Disagreement, arguing that an earlier effective date was warranted because there was clear and unmistakable error (CUE) in the prior denials. The Veterans Court upheld the denial, finding the Board “offered a plausible explanation for why the RO may have discounted the 1953 records.” The Federal Circuit reversed. Given the proper legal interpretation of defect in the regulation then in effect and the government’s factual concessions, the regional office could not, without error, have determined that spondylolysis was a “defect.” The 1954 decision contained CUE.VA View "Cousin v. Wilkie" on Justia Law