CAVC–Theofrastou v. Shinseki- You Have the Right To Remain Stupid

I am including this Court decision for Vets to review. Even though it’s a Single Judge disposition, it clearly illustrates what a panel would find as well. The Veteran is representing himself before the Court, which I wouldn’t wish on my worst enemy. Even though they handle him with kid gloves and bend over backwards to do things for him they wouldn’t even consider for a represented Vet, the outcome is still the same. Wayne C. Theofrastou, a former member of the U.S. Coast Guard, is appealing a denial of his motion for Clear and Unmistakable Error in a January 2007 Board decision. As the Moving party in the suit, he can appeal this to the Court. So, let’s see what went so horribly wrong here. The Waynester lost this at the R.O. way back in 2005 He appealed to the Board and lost there in Jan. of 2007. He then let it slide with no appeal to the Court. He might have gotten traction there for a remand due to some obscure error. The raw facts are that he was chasing a jetgun claim with a fistful of internet articles and a tall order for VA to come up with the make and model of the jetgun(s) used on him in Basic training, the types and quantities of the shots he received in Basic, and the lot number of the Gamma Globulin he was administered for hepatitis protection. Yes, you read that right. Had he appealed in 07, as I said, he might have fought to a draw and gotten something. He didn’t. So he filed for the CUE which was the only way he could revisit the unappealed BVA decision. Here is where he stubbed his toe. CUE is an utter bitch to prove even when VA has done something wrong. The rules say you have to use the law as it was written in 2007, the error had to be dispositive, and of such magnitude as to alter the ruling against the Vet. The actual facts cannot be reexamined and failure to assist the Vet does not constitute CUE. You can only argue the same facts at the Court on appeal. You are not allowed to keep thinking up new reasons for a do over. Waynemeister, being pro se, was blithely unaware of these constraints and threw in some new gripes when he arrived up at the Big House on Indiana Ave. Seems he felt the benefit of the doubt was not considered by the Board (not allowed in CUE) and that the Board failed to consider documents and articles submitted in support of his claim (not mentioned in 09 BVA CUE appeal). The Court, being a cultured, soft-spoken institution, was polite in pointing out these errors to the Waynedude. They were very gracious and gave him the standard “Y’all come back now, heyuh?” just as soon as he refiled these new allegations of CUE and they were properly heard and denied before the Board-and no sooner. When a Vet sets out to defend himself, he has many assets at his disposal. He has websites devoted to helping Vets he can visit. He can even obtain a lot of free advice from well wishers at these interactive sites, regardless of their qualifications. He has the right to defend himself and apparently, he also has the right to remain stupid. This he does with abandon. He has just received a rude awakening and a large dose of jurisprudence for his efforts. In the meantime, we fellow claimants find ourselves in the waiting room. Vets have a marvelous judicial system that accords them many rights. It’s slower than the seven year itch, but it has myriad protections. There is nothing preventing Mr. Theofrastou from tying up the R.O. and the Board for years pursuing the impossible. VA will dutifully go through the motions and try to accommodate his requests. However, the requests should have to be reasonable. No one would expect the military to keep the info he demands, so his taking umbrage with failure to assist is misguided. Because he represents himself, there is no legal entity to guide him or dissuade him from this frivolous filing and the ensuing cost of time and judicial assets squandered on it. It’s selfish and myopic. One judge each from the two Courts, a minimum of 12 associate counsels at the Board and probably as many from the Court have labored on and off for several years so that Mr. Theofrastou could have his day in Court. You’re welcome, Wayne. Deserving disabled Vets everywhere salute you and your misguided pursuit of justice. Now be a peach and go home. The sad fact is he can start over on this same CUE project and bring up the two other items he forgot to include in the 09 CUE filing. This will consume even more assets and again hold up BVA appeals for other, more deserving Vets. It’s the hand we are dealt, but you will excuse me if the desire to throttle Wayne seems uppermost in my mind. Anger management training would come in handy right now.

Let us now travel to Wayne’s World.

Go here: http://search.uscourts.cavc.gov/ . Erase [Query} and type in

09-4156 and hit search

Click on the blue word “download ” in the upper left corner in between “view” and “details” to view normally.

1 Response to CAVC–Theofrastou v. Shinseki- You Have the Right To Remain Stupid

asknod says:

December 21, 2011 at 23:24

There is another post on this subject prompted by a communication from Mr. Theofrastou. Please be sure to read it as well. I t has valuable insight on this decision