Even though this decision goes against the Vet, one can hardly fault the Court or the VASEC for their logic. Joseph C. Hillyard, a peacetime Veteran, suffered a head injury that caused him some mental problems. He filed claims for this injury when he was discharged in August of 84. The VA turned him down. He appealed it all properly, but Vets must remember, prior to the enactment of of the 1988 VJRA and the inception of the new Court, there was no higher venue for appeal than the BVA.
He filed to collaterally attack this claim in 2001 and lost again. However, he did not appeal it to the CAVC. His rationale was logical, but there really was no clearly erroneous error to correct.
Dissatisfied with those results, he enlisted a man many consider to be an accomplished legal beagle in the VA world. That would be Kenneth M. Carpenter of Topeka, Kansas fame. Mr. Carpenter is no stranger to the Court and knows the ins and outs of adjudication there. As to why he agreed to accept this arcane CUE attack and defend it, we may never know. Altruism? Properly informed, he would probably shy away from it. The CUE laws have always been very strictly interpreted and there is virtually no fudge room. Granting CUE to decisions is rare. Very few attacks are successful. This is not to say that it is impossible, but it must be a glaring error. And more importantly, there is one abiding precept. You only get one bite at the apple.
Mr. Hillyard’s theory of apple biting was more nuanced. He believed that if at first you don’t succeed, try, try again was the tried and true adage. That is what inspired his new attack, albeit on a new theory. If the Court had allowed this, VA would be up to their ass in CUE claims that went on forever. Veterans filing new claims would have to stand in line to make room for the perennial “frequent filers”. The claims process would become so bogged down with these do overs that meaningful litigation would take years.
Mr. Carpenter should have seen this one coming. It certainly shouldn’t have come as any surprise. This decision was just posted on the Court’s website as of this morning. We may have not seen the end of this. He still has 30 days to file his appeal with the Federal Circuit and see if he can make it stick there. Somehow we doubt it unless it’s being filed in the 9th Circuit. I’m sure Vets everywhere remember the cutting edge jurisprudence handed down by them in their review of the Stolen Valor Act.
Meet the unsinkable Mr. Hillyard and his sidekick, KC from Topeka:
We pray no moral, upstanding Vets who obtain advice here would try to gum up the judicial works with litigation such as this. It is a disservice to Vets to tie up the courts at their expense. Obtaining justice is sometimes a life and death, time is of the essence pursuit. We won’t dwell on this other than to say it has a distinctive odor about it we here at HCVets find repugnant.
asknod
brewerkelli
cspencer02
jamesaurora
kcraveiro
Laura
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