Imagine having a horrible legal argument, losing it before the CAVC and still winning all the marbles. I mean ALL the marbles.That’s what we have here. Mr. Leroy Macklem doesn’t have a legal leg to stand on in his CUE claim and his attorney knows he’s holding a three-day old fish. Nevertheless, because the VA is wont to cheat, misrepresent and generally try to screw you out of what is your due, they lose this one and the Vet gets what’s behind Door #3. Which happens to be Monty’s cookie jar this time and its full of VA comp. money for Leroy.
This tale involves a particularly poor piece of law (the Extraordinary Awards Program or EAP)the VA created one day out of whole cloth. Basically they woke up one Monday and decided any Vet who got lucky on an old claim that entailed mass quantities of cash needed to have a secret review to see if they (VA) could somehow overrule or shrink the size of the judgment. Fellow Veterans can understand this. Judges and other worthy individuals who make 3 times as much as us lowly Vets on compensation deserve bonuses for saving the government so much money. In this case, in their haste to bushwhack the Vet, they ran afoul of the CAVC and end up having to pay Leroy all the way back to 1950. You read that right. 1950. Yep. That’s 60 years of back payments. You see, some chucklehead “rating expert” accidentally mailed Leroy a “preliminary” judgment rating without running it by his boss. The CAVC says they have to honor their screwup. We at AskNod say “Crack open the Dom Perignon, Leroy. You didn’t earn it but boy howdy that’s beside the point. You won.”
Leroy served for nine months as a groundpounder and did the Sicily Invasion/Occupation during WW 2. He had an injury to his hip from Christmas Eve several years earlier that compromised his abilities as an infantryman and this caused a premature end to his promising military career. He freely admitted it was not in the Line of Duty and all his military records stated as much. Nevertheless, he was awarded 20% for arthritis secondary to the bum hip. Leroy had surgery afterwards in 1944 and VA upped his rating to 70% in 1946, recharacterizing his injury as osteochondritis. Regardless of what they diagnosed, it was considered secondary to the 1941 NSC injury but increased in severity during service. As such, it was a “clean” rating devoid of fraud or misrepresentation.
In 1949, VA began sniffing around and looking for an out. They called him in for a C&P to determine if it had experienced Immaculate Remission as most VA-compensated injuries do. Deciding that a great injustice had been done to both Leroy and the government, the VA opted to strip away the rating. This they did in March of 1950.
After reviewing the medical evidence from 1944 to 1949, the rating board concluded that there was “no evidence during service of any abrupt or sudden patholo[gic] developments or trauma which could be considered a positive factor [of] aggravation of the condition which was incurred prior to service”.
We can assume Basic Training in 1943 was a tea and crumpets affair with real creme being at a premium due to the exigencies of war. Occupying Sicily was no more than being put ashore and having to haggle with Sicilians over the exorbitant cost of tomatoes and pasta. Since VA doesn’t get out much and investigate what we do in the field, certain misconceptions are bound to crop up. Leroy was simply another casualty of the VA’s interpretation of what the definition of “aggravation” consisted of. Like most of us, Mr. Macklem neglected to pursue an appeal up to a higher tribunal-not that it would have resulted in any changes. Back in those days, a denial was final when the ink dried unless you were a Senator’s son.
Fast forward to 2006 and Leroy’s filing of a CUE stating that the 1950 decision was arbitrary and a difference of opinion which did not rise to the level of a valid reason for a reduction-let alone a complete revision and retraction. Detroit’s finest quickly denied yet again and the NOD was hung by the chimney with care in hopes that the BVA would soon be there. However, the Detroit dolts took another gander at it and decided he was right.
What to Leroy’s wondering eyes appeared shortly thereafter but a mea culpa complete with a detailed proposal including all his back comp. This beat the pants off a little man in a red suit with eight tiny reindeer in Leroy’s view.
The appellant thereafter received an undated letter from the Detroit RO indicating that it had “made a decision on your appeal received on January 20, 2007.” The letter included a schedule detailing the past-due payments to which the appellant would be entitled. R. This undated letter apparently referred to a decision review officer (DRO) decision, dated June 1, 2007, indicating that the appellant’s “[b]enefits sought on appeal are granted . . . [and] reinstated April 1, 1950.” That decision states that “the severance of service [connection] is held to be a clear and unmistakable error.” Macklem v. Shinseki 2010
Leroy was smokin’ Cubans up at the Big House for all of about a month before they pulled the plug. In August, they changed their tune and said the original 1950 decision was correct-sorry Leroy, we made a mistake. What Leroy didn’t know was that they had sent this back to DC for a secret cabal to formulate a way to avoid paying out. Leroy dutifully appealed.
Bad, bad Leroy M. was on firm legal ground. He pointed out he had a winner’s ticket in his hand. You can’t change the Lottery rules after you win. VA disagreed and said “Yo. You got justice. We had a BVA judge review it and he said we’re right. You lost. You had a DRO review, a DRO hearing and a BVA decision. What’dya want? Egg in your beer?”
Leroy didn’t have a legal fire hydrant to piss on. You cannot go back and relitigate what happened in 1950. All you can do is look for some egregious error of which there was none. Any CUE argument based on an interpretation of the facts is doomed. What is forbidden is screwing a Vet out of a CUE revision by using legal means that have already been determined to be illegal (the EAP).
The operative issue in this appeal is whether VA’s reliance on the extraordinary award procedure (EAP), which has now been invalidated by the Federal Circuit, renders the August 2007 SOC void and, if so, how that affects the status of the appellant’s claim. To be clear, VA committed two errors during its processing of the appellant’s claim. First, it mistakenly sent him a proposed decision. Second, in attempting to correct the first error, VA used the EAP, which has now been declared invalid. Although the first error did not prejudice the appellant, the Court concludes that the second error is dispositive in that VA’s use of the now-invalid EAP renders all VA action taken thereafter void.
In a nutshell, but for a premature letter, Leroy would never be in high cotton. The VA DRO that pulled this bonehead manuvre was probably promoted and is now head of the Fort Harrison, Montana VARO.
I’m gonna go out on a limb and predict ol’ Leroy is going to live happily ever after with what little time he has left. There is a sequel to this as the VA Secretary refused to accept defeat. However, since nothing has been forthcoming from the BVA following the Fed. Circus remand, I strongly suspect Leroy is counting his shekels as we speak.