Carleton R. Criss had a little disagreement with the VA Secretary. Apparently he hasn’t read up on 38 CFR and 38 USC. This is unfortunate because he now has a lot of time invested into an appeal that went nowhere. I certainly hope he isn’t going to waste more time and energy on a Fed. Cir. encore. Let’s see what is amiss.
Criss came down with the hep. bug in 1998. He served as a medic from 1983 to 1989 so this is a legitimate exercise in the pursuit of justice. He feels 1998 is automatically a date that should be considered an informal claim for VA benefits even though he never filed. When he did file in 2002, he arrived without much in the way of evidence and no nexus letter. He got the wave off and didn’t appeal. He did exactly the same thing three years later and got the same identical results. Again, no appeal was forthcoming. As an aside, I might add that the definition of insanity is doing the same thing over and over again and expecting a different result.
In 2007, with a little more acumen under his belt, he got a nexus from his private physician and VA gave him a rating. He filed a NOD this time contesting the effective date. He felt he should be awarded a date in 1998 from when he originally was diagnosed with the hep. Alternatively, he argued that he should get the 2002 or 2005 date as he legitimately filed on these occasions. He then implied there was CUE and that he had filed informal claims for CUE or that the VA should have recognized he wanted to file for CUE. In fact he was quoted (and I paraphrase) saying “every claim he has made has been an informal claim for CUE”.
Allow me to enlighten you before you spend a lot of time chasing down a hoodoo lane. VA is probably guilty of many things and we all know that. They routinely misunderstand what it is we are trying to file for, forget to do things, close out files prematurely and make many other mistakes too numerous to mention. This is one of those rare times when they did everything correctly and are being castigated all the way to the Court for an adjudication that was error-free.
If you become ill due to something caused by your service to your country, VA cannot file your claim for you. They don’t have ESP and can’t read your mind until after you file. If you come down with the bug, they don’t know for a fact it was caused by service. Absent filing a claim, they are as much in the dark as Bugs Bunny. They are not “supposed to know” that this is SC. That’s why we have an evidence-gathering procedure and the submission of same for probity.
Similarly, without some nexus correlation submitted by you, the claimant, alleging something from service is the culprit, VA will not waste a lot of time pursuing the claim. If somebody came to you and said you rear-ended them and offered nothing as proof, not even their car with a bunged up rear end, would you give them much credence? VA is no different. The fact that Mr. Criss implies his claim should have provoked an examination is moot. He gave VA no reason to ask for one. When he arrived in 2007, the third time was the charm because he did bring evidence in the form of the nexus letter. What Mr. Steakhouse has conveniently disregarded is the fact that he didn’t appeal those other two decisions in 02 and 05. That would have provoked a Dog and Pony show in a heartbeat, even without a nexus letter from his doctor. He might not have won, but we don’t know that absent the NOD and substantive appeal.
One thing is axiomatic here and is being ignored by Mr. Doorman. If you don’t appeal, that’s all she wrote. VA won’t do anything else with the claim. Veterans do this every day- i.e. walk away after filing with no subsequent follow up. In fact, according to statistics, 80+% of us do, so there is nothing abnormal about Carleton’s modus operandi on this particular one.
Now, let’s talk about informal claims for CUE. I certainly wish there was an informal process for this, but CUE is radically different from a claim. In fact, CUE cannot truly be claimed until your time to appeal the denial has run out- one year from denial. CUE is an attack on a prior final decision, not one actively being pursued, so the concept that an informal claim for such is always on the table during the pendancy of the claim is so full of baloney as not to be worthy of being addressed.
Mr. Not Quite The Doorman has dragged up equitable tolling as well. I am not sure most Veterans are familiar with this term, What it means in its most basic context where we are concerned is that we were unable to file our claim or somehow prevented from actively pursuing it due to health concerns in a timely manner. If you were in the hospital in a coma, this would qualify for equitable tolling. VA would recognize it as such. If you were sitting at home (albeit sick), you might not be accorded the same degree of sympathy. There is a time and a place for equitable tolling. This wasn’t one of them.
What is of most concern to me is this proclivity to roar off to the Court and file a NOA with nothing of substance to hang your hat on. Vague assertions of EEDs and informal CUE aside, you will notice the gentleman had a law dog at his side when this got to the Court. His name was Michael D.J. Eisenberg, Esq. We assume the Esq. stands for Esquire, a nomenclature ostensibly tied to being a counsel for the aggrieved party here. One cannot assume that anymore as some enterprising “singers” address themselves with one-word names, symbols followed by “formerly known as…” and even “L’il “which is an abbreviation for a capitalized descriptive adjective and not even a noun- proper or otherwise. His initials might even lead one to assume he is a disc jockey if there are still any left.
All in all, this has to be one of the one of the lamest excuses for converting pulp into paper to enunciate a point. Fortunately Mr. Criss (no relation to Ruth) won’t make this error again. He has a nice syllabus to refer to in the future when filing for any new secondaries that are sure to crop up and beset him soon. This is also a good demonstration of why the Court has a non-precedental Single Judge disposition in place for adjudications of this nature. It separates the ribbon clerks from the poker players. And here I always though life wasn’t easy for boys named Sue.