CUE–FAILURE IN DUTY TO ASSIST


In 1994, the Court came to a very tortured decision that has disenfranchised Vets ever since. I refer to the holding in Caffrey v. Derwinski. This was hard on the heels of the Russell decision of 1992 that brought us the “manifestly different outcome” and removed the benefit of the doubt argument from CUE consideration.Prior to Russell, we had a two pronged decision. An error had to be obvious and it had to be prejudicial to the Vet. Russell added that if the error would not have changed the outcome then it was not clearly and unmistakably erroneous.

Caffrey moved the goalposts much further down the field. It put forth the proposition that an incomplete record was not an incorrect record. This was the advent of the “semantics as law” phase of the Court. While Caffrey concerned itself with private medical records held in private hands away from the VA’s grasp, subsequent decisions have tried to encroach more and more on what constitutes “private”. VAMCs have gone so far as to start using “in the community” as a catch phrase for these records. Caffrey’s holding that the failure in the duty to assist is especially troubling from many aspects. Once the VA camel’s nose is in the tent, Vets can be assured that the rest of the animal is not far behind.

38USC § 5107 is unequivocal in this respect and 38CFR § 3.159 follows it chapter and verse. The dichotomy seems to enter when the decision (denied) is final and a CUE claim is raised. When this happens, the failure to assist is now permissible. Now we have two sets of rules that unarguably conflict with one another. The premise that an incomplete record is not an incorrect record is all well and fine if VA wants to interpret Congress’ intent in that regard. The slippery slope I address today hinges on the obverse of that statement. When does an incomplete record enter into the prejudicial arena of an incorrect record?

Russell expounded extensively on the premise that a CUE determination, by rights, can only examine the record on the facts that were before the adjudicator at the time of the prior adjudication. What Russell never touched on, and what Caffrey purports to interpolate from it, is that the record can be incomplete and somehow not be prejudicial to the Vet. In a word, this sucks.

If a Vet puts the VA on notice that records are available “in the community” and asks that they be obtained, this is required, or obligatory, for the VA. It has even been held that once the VA is aware of these records,  they are either required to obtain them or have you sign a 21-4142 which permits them to do so. Ignoring your request is right out. The cutoff point is the CAVC. If the error is uncovered, a remand to obtain them ensues. If  the Vet loses hope and gives up, the incomplete record, an admittedly incorrect record, is allowed to stand and a revision based on CUE cannot be based on the failure to assist.

Caffrey hung its hat on Porter v. Brown,  5 Vet App. 233 (1993). Porter, however dealt with records that were developed after the final decision. The Court reasoned that they had left open the question of whether the failure in the duty to assist could constitute CUE. Whereupon they turned around and did just that.

Caffrey can trace its roots back to Ivey v. Derwinski (1992):

While Ivey did not specifically request his private medical records and sign the VA
release form as the veteran did in White v. Derwinski, 1 Vet.App. 519 (1991), he put the VA on notice of their existence. Ivey v. Derwinski (1992)

White v. Derwinski (1991) again dealt with private records:

The “duty to assist”  arises when a well-grounded claim is filed. 38 U.S.C. {1 Vet. App. 521} � 5107(a); 38 C.F.R. � 3.159(a); Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 5 (Nov. 8, 1990). The statute, 38 U.S.C. � 5107(a), does not explicitly require the Secretary to assist a veteran in obtaining private records. The regulation, 38 C.F.R. � 3.159(b) (1991), is broader than the statute, and does require the Secretary to help the veteran obtain private records.

The Court vacated and remanded White to comport with the above holding. So we can see there is ample precedent for the supposition that the duty to assist is mandatory for private records. The problem seems to arise when we allow our denied claims to lapse for failure to appeal to the next higher venue. This is the tenuous concept that Caffrey tried to excavate from Russell.

Let us take this one step further and enter the theatre of the absurd. When we file, VA is expected to obtain our contemporary records  from  the St. Louis NPRC. I have had numerous members come to me and say that NPRS has no medical or other records for them. Fortunately most (but not all) can be tracked down to your last duty station hospital. What of those that can’t? Is VA remiss in being unable to provide that which is needed to substantiate your claim? Obviously, VA will purport  to go through the motions to obtain them. You are put in the unenviable position of having to do their work if they don’t (and they never do.) Your Congressman/Senator is often your last resort in this. The “what if” factor still rears its ugly head in spite of all that is attempted sometimes.

I was brought up short by a distinguished attorney yesterday for not acquainting myself with the dissent of several Judges of the Court in the CUE claim against Mr. Keith Roberts. Mr. Walsh, his counsel,  made the point when he said that the original panel of three that heard the preliminary case were the three who dissented in the ensuing en banc decision against Mr. Roberts. He rightfully reasoned that if the three had continued the case as a panel, Mr. Roberts may well have simply had his claim terminated rather than be liable for fraud and jailed. While this conjecture is a case of could of, would of and should of, his point is well founded. The Court sometimes seems to operate against the best interests of the Veteran.

With that said, I decided to read the not-so-concurring opinion of Judge Steinberg where he dissented in Caffrey:

Hence, the Court’s tautological distinction between an incomplete and an incorrect record seems manifestly at variance with a fundamental precept of Russell. Surely, it can just as reasonably be said that a record which causes the adjudicator to deny a claim when the “correct facts” would manifestly have produced the opposite result was an “incorrect” record and not just an “incomplete” one. In any event, I find nothing in Russell to warrant the incorrect/incomplete-record distinction which the majority attempts to make.  Caffrey (1994)

Having discussed the issue of CUE and private records, allow me to throw a new wrinkle in. I filed a claim for my back in 1989. I was denied by the RO without a C&P. They granted one for my hearing but not for my back. I complained in my NOD and they promptly ordered one up. It was a put up job. The VA doctor found the problem area (L5-S1) but could ascertain nothing from the x-rays other than lumbar lordosis and possible ankylosing spondylitis.  He made no determination on the etiology, did not review my STRs and did not venture a nexus as to the cause. Pointedly, he also never reviewed any of my private records. The RO put on their very best Ben Casey duds and said it was not service related. This was printed on a single page that said “Sorry Charlie”. No Reasons and Bases. Nothing.

I was stationed at a very remote airstrip with 20 other guys when I injured my back. We all used a hospital contracted by the Government to take care of us. This included Air America and several other spook operations. The records of my treatment were never associated with my STRs. I found this out at my RO hearing when I pulled my C-file over and looked at it. There simply were no records of that time (October 1970 to May 1972). It  was as if the earth had swallowed me whole and spit me back out at Edwards AFB in July 1972. VA did not believe my testimony about the additional records in spite of my pleas to obtain them. In desperation, I called long distance to the tune of $80.00 US and asked them to send the documents. Something was lost in the translation because I got one page that partially documented the injury (x-ray results). VA used that to prove two things. First, there was no evidence of a back injury and second, that there was no evidence of a hip injury. They made no effort to obtain anything. Apparently in VAland, Veterans regularly pull up to private hospitals at the ass end of nowhere during a war and pay good money out of their own pockets for x rays without even consulting a doctor.

My CUE claim is before the Poobahs in D.C. I’ve debated putting up a poll like the one for Leroy Macklem. This one would ask if CUE can attach to a final decision where the VA erred in their duty to assist by not obtaining “service department records” held by an entity other than the government. Mind you, we are not discussing records “in the community”. These are actual records commissioned and paid for by none other than Uncle Sam.

Assuming VA denies, I would be forced to accept some absurd results. Being “official government records”, VA’s failure to obtain them would not technically be covered by the holding in Caffrey. If VA decides to employ mission creep with the regulations, I suppose they would repeat the mantra of “incomplete, not incorrect”, therefore not CUE. With this holding, they would open Pandora’s box for all manner of new interpretations.

What if? What if they decided one day not to obtain Joe B. Sixpack’s STR’s from St. Louis and proceeded to a rating on a knowingly incomplete record? What if Joe Bob didn’t appeal and then attempted to revise it via CUE? Does the VA get a bye on Caffrey and 38 CFR §20.1403(e)? Vets by now can see the slippery slope I am painting. The willful decision made by the RO, and compounded with interest by the BVA, not to obtain the records when apprised of their existence, content, and location created the very same incomplete record that they now will argue isn’t CUE. Judge Steinberg called this circular logic. I call it excrement emanating from a bull.

You may see me in D.C. seeking my Warholian fifteen minutes in a year or two. I thought VA was niggardly with their funds when they sent Leroy to the EAP showers. I can only assume I will get the same treatment. I dug this one up and I think it is very on point:

Fowler v. Califano, 596 F.2d 600, 604 (3d Cir. 1979) (remanding social security claim where record of appellant’s prior claim, through no fault of her own, had been lost and appellant provided evidence to reconstruct the record; the court was “inclined to agree” that it is unconscionable for the Administration to take a position that in effect permits it to profit by its own errors“). 

Since this holding precedes Caffrey and is Fed. Circuit precedence, it supercedes any finding of the Court vis a vis official government records. Well, that’s my theory anyway. As we all know, VA will “construe” it in their own inimitable way and come up with some tortured, pretzel-shaped interpretation of § 5107 or § 20.1403 that supports their view. What remains to be seen is whether the Court, like a docile cow, will follow suit.

Look , Ma! Off road Official Service Department Medrecs!

About asknod

VA claims blogger
This entry was posted in BvA Decisions, CUE, Tips and Tricks, Uncategorized and tagged , , , , . Bookmark the permalink.

1 Response to CUE–FAILURE IN DUTY TO ASSIST

  1. Loyal Blair says:

    The NVLSP has pointed out that the “absence of evidence” is not evidence of absence, here:

    Click to access

    In a like manner, when the record is “incomplete”, the VA decides to make a judgement call “against the Veteran” by assuming there is nothing in the “incomplete” part of the record that is prejudicial.
    This is logic error. That is to say, since we dont know what (evidence) is missing we are going to assume that the missing evidence is not outcome determinative (and therefore unfavorable to the claimant in this “pro claimant” system, where the Veteran is given the benefit of the doubt)
    Using this logic, the only person guilty of failing to fasten their seat belts would be the ones in an accident because the only time necessary to fasten seat belts is when an accident is imminent.
    If a person fails to fasten his seat belt, and does not get in an accident then his seat belt ticket should be dismissed.

    Of course the problem is that we are unable to predict what day an accident will occur, so we require seat belts be fastened each time, and for good reason.

    The VA insisting that the “incomplete” evidence is non prejudicial, is like the seat belt violator arguing that since he did not get hurt, he correctly predicted that the seat belts were unnecessary.

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