When filing for Clear and Unmistakable Error (CUE), one case seems to get a lot of attention where failure in the duty to assist is claimed.  This is understandable because, like a cattle drive, VA counsel will push the Veteran in that direction. The seminal case on this quoted most frequently is Caffrey v. Brown (1994). While it appears on point on the subject, a closer examination is warranted.

Thomas A. Caffrey, a Veteran on the cusp of the new war brewing inSoutheast Asia, filed for psychiatric difficulties after his 1962 separation. He did what so many of us were guilty of and failed to appeal losses in 1964, 1975, 1977, 1978 and 1979. On his sixth foray in 1988, he finally obtained private hospital evidence that was available in 1962 to document his contentions and was granted SC.  Dissatisfied with the effective date, he pursued a new legal odyssey on appeal. After pursuing a higher rating for his schizophrenia and winning, he went after VA’s perceived failure in its duty to assist with respect to medical records he had identified and asked the VA to obtain in 1964. They had failed to do this and it cost him dearly for 24 years.

The Court had been created in 1988 to review BVA decisions and this is where Tombo’s case landed after a loss below. Certain CUE precepts had been ensconced in the years following the Court’s inception. One, in this same vein, Porter v. Brown (1993) held that CUE could not attach to a decision where medical records developed after the decision were introduced. However, that Court panel left open the possibility that CUE could be found in a failure in the duty to assist. Enter Mr. Caffrey.

The finding was that CUE couldn’t be considered a factor based on the principle that an incomplete record was not an incorrect record.  It was a very disheartening ruling for many of us on its face, but let us examine this more closely. At no point in this decision was the term “service medical records” introduced. This was all about private medical records generated subsequent to Mr. Caffrey’s  separation. This is an important difference.

While I hate to introduce myself personally into any of these posts about law, I will make an exception to illustrate a point. I currently have a CUE motion filed for a similar situation. I filed for back and hip problems in 1989 and some of my records were at a civilian hospital inThailand. The government contracted with them to provide care for us since we were in a very remote/isolated location hundreds of kilometers from the nearestU.S.military installation (Takhli RTAFB). The only way in or out was by small aircraft on what appeared to be an even smaller airstrip.. I was unaware that the AF had not retrieved these records and made them part of my military medical records. When I filed in 1989, I discovered there was no record of my injuries. I identified the location and nature of the records but the VA steadfastly refused to obtain them. I called the hospital long distance and got some, but not all, of the records I needed. I filed these with the VA and they thanked me but did little else to rectify the problem. In my BVA decision the Judges acknowledged my contention that the records were incomplete but proceeded to adjudication much like Mr. Caffrey. I guess it should not come as a surprise that I lost. There is a major difference here though. Even if my records were “private” as in non-military, the mere fact that they were generated and paid for by the U.S. Government made them quasi-military. This is where Mr. Caffrey’s and my circumstances depart in two decidedly different directions.

The Caffrey decision was very limited and most attorneys do not recognize this. A proper defense today should never permit this injustice. If you petition the VA to obtain records from your time in service, the VA is required to move Heaven and Earth to locate them. This was the precedence promulgated in Schafrath v. Derwinski (1 Vet.App. 589, 593-94 (1991):

In claims for disability compensation, such as is the case here, all of the veteran’s relevant service medical records (SMRs) must be obtained.  See 38 U.S.C. § 5103A(c)(1). However, records of relevant VA-provided or VA-paid-for medical treatment and other relevant records pertaining to a claimant’s service and maintained by a governmental entity must be obtained only if the claimant provides sufficient information to the Secretary to enable him to locate those records.  See 38 U.S.C. § 5103A(c)(1)-(2).  Similarly, the Secretary is obligated to attempt to obtain any other relevant records held by a Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.  See 38 U.S.C. § 5103A(c)(3).  The Secretary’s efforts to obtain Federal records must continue until the records are obtained or until it is reasonably certain that the records do not exist or that further efforts to obtain the documents would be futile. (emphasis mine)

The Court was adamant that this was mandatory, not optional. VA has become lackadaisical about the requirements over the intervening years and now routinely cites to Caffrey without realizing the narrow scope of its ruling. Schafrath stated otherwise and dictates a different , more forceful approach. Keep this in mind when constructing your case for CUE. All is not as it seems in VA law. Narrow exceptions can be carved out of what appears to be immutable law.

I characterize myself as an”Impossiblist”. When apprised of the situation and told it is not possible to get from A to B, I immediately examine the parameters of why this is. It has been said there is more than one way to skin a cat. Likewise, a legal precedent often embodies a narrow concept, no matter how it is characterized. A viable exception can be derived if you are willing to anally examine the precept and find the thread that will unravel it for you. Accepting it at face value condemns you to the fate all others are doomed to. Don’t settle for this.

CUE law is narrow and immutable. New concepts for denial have not been added for years so it is fairly static. One venue I do not think has been developed and should be is the concept of Clearly Erroneous. This was discussed in Gilbert v. Derwinski:

Congress has provided that this Court . . . to the extent necessary to its decision and when presented, shall . . . in the case of a finding of material fact made in reaching a decision in a case before the [Department of Veterans Affairs] with respect to benefits under laws administered by the [Department of Veterans Affairs], hold unlawful and set aside such finding if the finding is clearly erroneous. 38 U.S.C. § 4061(a)(4) (1988).

A “[m]aterial fact is one upon which [the] outcome of litigation depends.” Black’s Law Dictionary, 881 (5th ed. 1979). Under § 4061(a)(4), in order for a finding of material fact made by the BVA to be set aside, this Court must conclude that the finding is “clearly erroneous.” The Supreme Court has defined the “clearly erroneous” standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v.United States Gypsum Co., 333 U.S.364, 395 (1948).  Gilbert v. Derwinski (1990).

Most attorneys who venture into the CUE arena are cognizant of the pitfalls that await them. I do not believe most VSOs are as well-versed in the nuances of it, though. VA has opened a unique window that allows us to revisit past decisions and seek redress. Simultaneously, they have erected fences to corral the permissible boundaries. Obviously, using law and regulations extant at the time of the prior decision is prudent. Similarly, the codicil that no new evidence can be introduced that wasn’t a matter of record is legitimate as well. The duty to assist holding in Caffrey, while odious in nature, is also legitimate even though it seems incongruous to find it in a non-adversarial judicial setting such as ours. We are not allowed to parse the evidence and insinuate that something was not given enough weight. The determination to reverse and revise a prior decision based on CUE has to be a violation so egregious that it changed the outcome, hence the term “outcome determinative”.

I diverge from the pack when I advocate for a lower standard than Russell concerning a showing of a manifestly different outcome. When statutes or regulations are ignored or disobeyed, the Veteran is the one made to pay. True justice can only ensue when a wrong is righted and a new de novo adjudication is applied. I understand why it is otherwise but I do not agree with it. If a decision is clearly erroneous on its face and reasonable minds can agree to as much, it stands to reason that a higher duty to the Veteran must lodge rather than the en banc Russell precedent.  The benefit of the doubt is also removed from the equation. Either an error exists or it doesn’t. There certainly isn’t any grey area here. If you had a bone to pick with VA about the outcome at the time, the correct procedure was appeal. We are always Monday morning quarterbacks 30 years later.

So, in spite of what you may have been told what proposition Caffrey stands for, things are not always what they seem. The admonition of the right hand mirror on your automobile is similar- objects are closer than they appear.

Find the Thomster’s Adventures in Justiceland below (attached).

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