|Even though we cannot use single judge decisions from the Court for precedence, we find them extremely informational for what they contain. They are useful for Vets who choose to defend themselves as the following Vet did. This is called pro se which means representing oneself. It also means dusting off the old Boy Scout chapeau. While we have no qualms about advising Vets to defend themselves up to and including the Board of Appeals process, we strongly feel they should obtain real legal help when going up to the big house on Indiana Ave. Virtually all Vets who file there will discover a chipmunk or two in their pockets shortly afterwards offering to be their huckleberry. This is not a bad thing. You will be doing battle with no less than the Secretary, who is ably defended by a bevy of 500 law dogs working exclusively for him alone. The Group is called the General Counsel. This is all they do. Defending your claim there when your first language isn’t Latin can be very intimidating. We strongly suggest a legal beagle of your own, If you are not too well heeled, there are many who will do this pro bono. More Latin and this time it means “for free”. If they (your new legal huckleberries) prevail, they can pester them (the Court) for EAJA funds, too. Mr. Malcolm H. Melancon, Jr. was the latest casualty of war to go to D.C. pro se. Most of his claim held water but his CUE allegations were poorly thought out and had no basis in fact. It was more a case of “They dissed me in ‘91, dude.” What more accurately happened were the infamous hep tests in the late 80s and the early 90s that had an error rate of 33-40%. This meant obtaining meaningful results to determine if you had the big C entailed taking the test about five times. If you came up positive on 3/5 then you probably had it. The military can’t even do your blood typing correctly so it follows the Hep test would be similarly compromised. The military did test Mr. Melancon for hep when he came down with it in service. The tests indicated B, but no A or C. Lo and behold, he started getting ill about 8-10 years later and went to the VA. Now keep in mind he’d already been denied in 1991 on the theory that B is acute versus chronic. As was VA’s habit back then, no one bothered to send him out for testing to confirm A, B or C. Just a simple denial based on acute B in service-period. After an extended period of all the classic presentations of Hep C, VA finally tested him and discovered it was all a simple misunderstanding. The poor man never had B or A. It was C right out of the gate. Finally in 2004, they granted him SC, only at 0%. You see, Mr. Melancon had taken the Interferon “cure” and was now symptom free, so VA felt no compunction to give him a compensable rating. He promptly filed to appeal and also threw in a CUE attack on his unappealed 1991 denial for several lame reasons. The BVA split the difference and gave him a 2001 rating (at 0%) and tossed the CUE in the circular file. Mr. Melancon, obviously a man with some legal acumen, dutifully filed his NOA to the Court. Because there were no earth shattering legal ramifications to this claim, it was assigned to a single judge. The Court held that his 2001 reopening of the 1991 claim was legal, but the assigned rating of 0% was simply unsupported. A man who is in obvious distress with RUQP, nausea and vomiting qualifies for more than an attaboy or two. That is what the Court said, too. What the Court didn’t find was CUE. Reading the CUE regulations the Board is required to follow clearly states what is CUE and what isn’t. One of the hallmarks of what isn’t is a new diagnosis that corrects an earlier incorrect diagnosis. Mr. Melancon was screwed by the pecker checkers who did his labs in 1988. After discovering the error in 2001, he felt this was CUE. It isn’t. The VA examiners may have been remiss in 1991 for not sending him over to the VAMC for a new blood test or tests, but he never objected. Hell, he didn’t even appeal. New evidence in 2001 that uncovers an earlier error isn’t CUE. It sure looks and smells like it to the aggrieved party, but it just isn’t. Mr. Melancon had several other CUE theories but they were equally unfounded.
This Vet got his 2001 claim vacated and remanded. He may get 30% for the hep up to when he did the cure. They may or may not give him 100% for a period of a year and then they will zero him out after 2004. If he was smart, he could start amassing a collection of med recs that supports what we all know is coming. Brain fog and depression will simply be the harbingers of a lot more.
I don’t know that this man could have obtained more from his appeal. What is certain is that he attempted to collaterally attack a prior decision with insufficient assets. Further, his legal argument was defective for the attack. His narrow win on the BVA’s failure to look at the 2001 records that also documented a weight loss down to 119 lbs. was well executed. It was also glaringly obvious such that the Court had no problem seeing it.
When you get into a knife fight close in with an adversary, you better be good. It happens fast and you may not feel the lethal strike. This is what transpired here. Mr. Melancon was not expecting a no holds barred adjudication and escaped with very little of what he sought.
Without further ado, meet our legally challenged, pro se loser of the year-Mr.Malcolm H. Melancon, Jr.:
Click on the Memo decision to view Malcolm’s Texas necktie party.