COVA–Cartwright v. Derwinski(1991)–In the beginning…

      This is a post about the early days of the COVA. The decision is still quoted and cited so I decided to put it in to illustrate where our unique law came from.  

In our dissertation on  Gilbert v. Derwinski (1990), we discussed the ramifications of early law and the Court’s need to create as much precedence vis-a-vis VA law in as short a time as possible to adequately resolve Veterans’ claims in the new court. Following on the heels of that decision was Cartwright. In terms of precedence, it would prove to be earth shattering for Veterans’ claims in years to come. To prove its enduring ramifications, look no further than current decisions to see it cited again and again. Certainly, there have been follow on decisions that reiterated the same principle, but Cartwright continues to be the lighthouse on the hill.

ClydeA. Cartwright, Jr.  first applied for benefits a month after discharge in April of 1946. Unsurprisingly, he was denied. Keep in mind that there was no superior tribunal (court) to the BVA at that time and any denial was the end of the road. Following creation of the COVA in 1988, he returned to reopen his claim. Again he was thwarted with a denial. However, this time, by law, the BVA (and by extension the VARO) was required to explain why he was denied and discuss the evidence pro and con that led them to this decision. This denial illuminated a bad habit the BVA had engaged in for years and years. That is, the habit of discounting any lay testimony by Veterans as having little or no evidentiary value if unsupported by military or medical records, had been the modus operandi for so long, that the BVA was disinclined to change their ways. The VA went so far as to routinely characterize it as a Veteran’s “contentions” as if they were motivated by greed and dishonesty.

The new Court, in an effort to curb this propensity, decided to use Mr. Cartwright’s appeal as a vehicle to right this wrong:

     In its decision, the Board wrote, “[t]he veteran’s contention that he was treated continuously for asthma from 1946 to 1962 is not sufficient to establish that which has not been clinically  documented.” We surmise from this statement that the Board believes that lay evidence alone cannot prove service connection, but that service connection can only be established through medical records. This constitutes error. Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone. Cartwright, supra.

Actually, the Court also said that absent this egregious error, they would still have remanded Mr. Cartwright’s appeal because the BVA had failed to  provide an adequate statement of reasons or bases to support its factual findings. This became a tripwire to the BVA’s continual attempts to give short shrift and even shorter explanations for denying claims. Prior to this, Veterans were left scratching their collective heads, as were their lawyers, every time the BVA announced its findings. Finally, they were being taken to task for their habit of  denying without explaining cogently what the reason for the denial was.

Andy Warhol, the iconic painter of 70s fame, once opined that every person would attain fame for 15 minutes of their life at some point. Mr. Cartwright has exceeded that by several decades of jurisprudence. The reason is simple. The BVA apparently still can’t get it through their thick skulls that in order to deny a Veteran’s claim, they have to give a reasoned, well thought out rationale for their decision based on all the evidence, both positive and negative. Focusing on just the negative, or failing to address the positive frustrates judicial review by higher courts. This is so embedded in law, and VA law in particular, that one would think it it would have become a rare occurrence. One would be fatally mistaken to assume this. Quite the contrary, it is one of the most cited reasons, even in today’s legal arena, for Clear and Unmistakable Error (CUE) claims. The continuing prevalence of this error is disturbing for any number of reasons. Can it be that they do not teach this precept to lawyers in law school? We won’t burden ourselves with that concept today. We are just delighted that Mr. Cartwright appealed his decision and the Court righted what was unarguably a slippery slope for Veterans prior to his entering the legal arena.

Of note, we would like to point out that when a Vet submits a nexus letter in support of his claim, the VA is fond of holding it up to the very same legal standards they are so frequently indicted on. How many times have Veterans read that their nexus wasn’t probative because the doctor had not offered a “reasoned, cogent argument” to explain why the Veteran was entitled to service connection for his injury/disease? It’s always satisfying to read about a Judge getting a DUI. It proves we are all human and should be held to the same legal standard.

Clyde A. Cartwright, Jr., a grateful nation of Veterans thanks you profusely for your perspicacity in the face of what must have appeared to be insurmountable odds…

Cartwright,  at three pages, is one of the shortest opinions ever written . However, it is unarguably well reasoned and well written despite its brevity. A finer, more probative decision has rarely been written in so few words.

Attached below is the PDF.


About asknod

VA claims blogger
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