LOOKING FOR CUE IN BVA PLACES


Looking For CUE

 

I have posted examples of CUE (Clear and Unmistakable Error) on several occasions but have never posted decisions where the reader can look for CUE in a BVA decision and discern it. I have chosen my first battle with the VA in 1989. I didn’t know anything about this process and trusted the DAV to do this for me. I fault no one but myself in retrospect, but feel I was represented by Huey, DUI and Louey.

The COVA, the forerunner to the CAVC was empanelled about one month after I filed. They were just hanging their sheepskins when I lost. They moved to new digs four months after they were ensconced in their first offices. My claim arrived in D.C.  early in 1991 and my docket date was March 5th, 1992. This was truly the dawn of time for the Court. If I had known about them, I could have appealed. My service officer never told me. I suspect he was so wet behind the ears he honestly didn’t know either. He didn’t go to D.C. personally. Some chowderhead higher up who lives there did the honors.   What I think of him doesn’t bear repeating. He tried to play doctor. Then he tried to do the benefit of the doubt argument. All for naught it seemed.

The beauty of our cloistered legal system is the fact that we can go back and correct deficiencies, glaring errors that were prejudicial, and judgments that were clearly and unambiguously defective.  In order to accomplish this, you, the Veteran, have to know what to look for. Just having the shopping list of what constitutes CUE isn’t enough. Being able to see it is harder. They don’t type their errors in red. One other thing they don’t do is call you up 22 years later and apologize with a back check in their hands. If this is going to happen, you have to be the active participant.

Fugo v. Brown held that you could not come into court shouting just CUE. It required that you show what you thought was CUE, why you believed it to be so, and why it manifestly changed the outcome.  We won’t go into all the facets here. What we want to examine is how you can spot it. If you have any decisions from way back when like this one, get them out, pour an iced tea and keep a pad of paper and a pen handy.

http://www.index.va.gov/search/va/bva_search.jsp?QT=+Citation%3A+BVA+92-04999&SQ=vetapp92&RPP=100&LC=0&ET=&UA=Search

In 1992 there were 20 sections of 3 judges each for a total of 60. Mostly, but not always, the same three engaged in a certain geographical area of theU.S.  They sat as two occasionally, which was legal, but never as one. That is what happened here. One of the members was required to be a medical doctor and was allowed to make decisions of a medical nature to keep things moving right along. This all changed with the COVA. They ruled that was no longer an option in 1991 several times. The BVA doesn’t listen very well or else they didn’t get the fax/email on it.  They continued to make this mistake right on up until things got so backlogged that they opted to do this with one judge and retired all the doctor judges. The error is almost unheard of now. You will find it in early ones however.

As you can see, I filed for four items. Ron whatizbutt from DAV said I was going to knock them dead at the VARO. When that phrase was pronounced “no longer operable”, he told me not to worry. We were going to D.C. for some real justice. He decided at the last moment to try to make them see reason here in Seattle at a DRO hearing and review. That dragged it out for almost all of 1990 and I finally got the F-9 filed in early 1991.  To be honest, I forgot about it until Ron called me all breathless in late March of 1992 and told me we had WON! Not exactly. I had won 0% for hearing and 0% for tinnitus. That’s an ice cream cone with two scoops of air. My VARO shared that with me in June, 1992 just on the off chance I hadn’t figured it out by myself.

The big one for my back/hips was tossed. Ron never said “Dude, let’s motor on up to the Big House.” Nobody from DAV said boo. I was led to believe I had fought the good fight and lost. If I ever came up with any new and material evidence I could refile anew and start over.

While I waited for justice in 2007/2008, I ate a steady diet of BVA and then CAVC decisions. Every time I ran across a cite, I followed it. Why did that Vet win and this one lose? Imagine my joy when I found the term CUE. Here was a way to go back in time and right this injustice. Well, not exactly. I had to find the error. I came up with a long laundry list of defects, but each in and of itself, could not manifestly change the outcome. They were procedural. You are called the moving party if you wish to upset the decision. As the movant, you have to find the perfect error- the one that caused you to lose. It has to be  seminal-that it produced an outcome determinative decision.  The error had to be such that others can point to it and say “Jez, who’s the idiot that authored that?”

I read my decision from top to bottom several hundred times with  a yellow highliter pen. I’d then go to the CAVC archives and read all those antique rulings. Finally I found it staring me right in the face. Two of them, no less.

If you read the above, you will notice I protested vociferously at every turn that my records were incomplete. Hell, I even retrieved a small portion at great expense from a rural hospital at the ass end of nowhere inThailand.  VA still refused to obtain the complete file. This violated a big precedent about 3 months old-Shafrath v. Derwinski. The Court had already said this was a bozo no-no several times before, but Roger Shafrath will always have his name in lights for as long as the CAVC holds sway on this precedent:

Although the veteran contends that the service medical records are incomplete, we are satisfied that these medical records, which include the veteran’s service entrance examination, treatment records throughout service, and his service separation examination, provide a fair basis for determining the issues on appeal.

The VA loves to move the goalposts and has done so over the years. Caffrey v. Brown in 1994 purported to overthrow failure to assist as a CUE defect. Caffrey only deals with private medical records, not official service medical records. If you tell the VA where they are, the address and what to look for, they are legally required to fetch them.  If they cannot come up with them, they have to have an excuse from their parents as to why.

One year before, the Court decided Colvin on March 8th, 1991. This again was a reminder that playing doctor, even if you were a doctor, was not according to Hoyle when you did it sitting as a judge. Lo and behold, right smack dab at the end of my back claim was the Ben Casey moment:

Based on the record, it appears likely that the  “pain” referred to was the left hip pain documented in the service medical records rather than back pain.

So, having discovered errors that would have manifestly changed the outcome of your decision, you have to dodge minefield number 2. If you send in your neatly typed CUE claim, you have to be very specific as to what you want these gentlemen to do with it. Simply asking for a revision can have unintended consequences. There are two kinds of revisions and one isn’t appealable.

A motion for revision under CUE is a redo of a prior claim. It is not a new claim, a reopening of an old one or a request for an increase. This is a battle where the VA is going to try to defend its good name. None of the rules for regular claims exist here.  This is a knife fight in a dark alley. There exists no room for error or misunderstandings.  Either you’re right or they are.

A Motion For Reconsideration (MFR) is a different genus and species. If VA entertains your request accidentally to be an MFR, a lot of things may happen. I have told readers to be wary when submitting claims because VA often plays dumb and does the “Gee, we never learned phonics so we tried to sound this out and we construed it to be a MFR”.  Here’s the long and short of MFRs.

If your BVA decision was more recent (after 1994), you had one judge. Any MFR motion entertained must be in multiples of two judges after that. Therefore you would have a three judge panel of VLJs hearing your Motion. In my case above, they would add two judges and come up with four. That is not an odd number and could conceivably result in a tie. That means I would have to have a panel of five VLJs. They do not have to grant it (the motion) and they don’t have to tell you why. To add insult to injury, you cannot appeal a decision not to hear a MFR to the CAVC. This is one of those lose-lose venues and the BVA knows it. If they agree to hear it, chances are you lost already before they start. If you are turned down, you can never bring this back to litigation. You’re done. Period.

When you file, you should use language that precludes the GS-0 from doing the MFR Macarena.  A firm disclaimer that this filing is to be construed only as a Motion for Revision must be prominent in the first paragraph. This will protect you when and if you have to go up to Indiana Ave. NW. You think I’m joking? VA is famous for handshakes that are worthless. When I filed for PCT as a residual of Hepatitis, it was “construed” to mean I was filing strictly for residuals of hepatitis and the PCT was from AO. Do not give them any corral room. Make it a cattle chute from start to finish. A) You screwed up; B) Here’s why; C) The law said this back then; D) You did that; E) Please mail my check to1234 Yellow Brick Road Oz, Kansas. 60609 – and be quick about it.

VA will resort to semantics. They will claim it’s your entire fault. They may be so bold as to say it is not unequivocally an outcome-determinative error.  Your saving grace in all this is the CAVC. When they did Gilbert v. Derwinski, they vocalized a wonderful legal principle for Vetkind:

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)

This is where you can cut a notch in the butt of your .45. If you have done your homework and you have made your case, you will prevail. CUE is fraught with pitfalls, so it behooves you to consider legal representation when you enter this den of iniquity. The VA Secretary is not going to consider you a kind, soulful, disenfranchised Vet who deserves a fair shake. If the BVA was a knife fight, then this is akin to gladiatorial combat in the Coliseum. Only one of you will prevail and the VASEC is determined not to be “it”.

Research your work. Research it again. Do not do what some try and attempt to read things into a regulation and “construe” it to be in your favor. You must find errors that are so egregious that everyone can point to as such. You need to have Court precedence to back up your contentions. Often, failure to cite to the Court decision will allow the BVA bozos to attempt to blow smoke up your alimentary canal.  Getting it all down on paper before you have to go up the ladder is paramount. VA knows this and won’t turn into a Chatty Cathy doll and tell you. If you do not get specific at the BVA, you cannot go up to the Court and say “Oh, yeah. And you know what else they did? Get this. They forgot Colvin v. Derwinski.” If you didn’t mention it in the BVA motion, that’s all she wrote and VA will win.

This is not for amateurs. BVA loves to deal with Vets one on one like this because they usually win.  Show them that you did your homework when you get around to pitching a bitch. One last admonition- keep your wallet in your front pocket and sit in a corner facing out whenever seated at a VARO.

 

About asknod

VA claims blogger
This entry was posted in General Messages, Tips and Tricks, Uncategorized and tagged , . Bookmark the permalink.

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