Imagine getting screwed by VA in 1953, filing for increase in 1990, and during the course of the claim for increase, discovering you should have had the rating all along.

Poor Mr. Emerson E. Archbold. What tangled webs the vA weaves. In 1989, the Emster filed for an increase of his service connected burn injuries from the Korean Boundary Disagreement. He asked for an increase from 10% bilaterally to 20% and a compensable percentage for his facial burn scars which vA had decided in 1953 were 0%.  Sound familiar? Being pro se, he had  neglected to bring in any evidence. I’m guessing that he somehow came into possession of the ratings % requirements from someone who was wise to it or he finally read the military rating where it described how he was going to get 40%. vA told him in the denial that he didn’t have anything.

Now here is where everything goes haywire. Embo filed the NOD correctly to appeal the denial of the hands increase and a compensable for his face. They gave him the wave off without so much as a Dog and Pony show in January of 1991. Baaaaad idea, vA! Come March, Emerson sent them the original 1953 decision saying he was entitled to the 40%. On National Tax Day in 1991, vA wrote him back and said “You screwed up in 1953 because you had one year back then to pitch a bitch. You didn’t so it’s a done deal. And, to add insult to injury, your present claims sucks too and it’s denied as well..” There oddly was no mention of the CUE cure.

June 6th, 1991 seemed like a good day to start the repair order and Mr. Archbold proceeded to try to enlighten these poor heathen yet again. I don’t have a copy of the record on appeal, but my guess is he removed all the polysyllabic words and got it down to grunt conversation like ” Ugh. Archbold have burn owwie. Both hands. vA say 40% long time ago. Me no get. Want 40% now. Both owwies. Face owwie money too. vA give 40% to 53 too.” Well, actually he said like this:

The main point I would like to make is noted on page 3 of [the] proceedings of the [MPEB]. [Block] #28 [of the form used by MPBE noted:] “Such unfitness is 40% disabling, in accordance with the standard schedule of . . . rating disabilities in current use by the VA.” [Block] #29[:] Such unfitness is permanent. [Block] #32[:] Recommendations and remarks “Plastic surgery can be accomplished. . . .[” Block] #28[:] States very clearly that 40% disability was based on ratings in use by [ ] VA. [Block] #29[:] States clearly that this is permanent. [Block] #32[:] [A]llows for the fact that plastic surgery can be accomplished at a later date.

My point is #1, 40% is the lowest rating [that my disability] should have ever gone, based on VA rating[ ] practices. #2[.] This is rated permanent. #3[.] This allowed for surgery at a later date.

…

In summary[,] I feel that the 40% rating based on VA standards established October 9, 1952[,] should be honored, and that the amount paid since September 1, 1953[,] to present should be corrected, that is a 20% correction for four hundred thirty nine months.

Some idiot at the RO made the mistake of penciling in a note that this was being accepted as a Form 1-9 (the precursor to what we call a Form 9). Nevertheless, a month later they wrote him back (July 10th) and said “You don’t get it, bozo. The Army screwed you in 52 and we just write up what they do. If you want more money you have to prove you’re worse off.” Still no offer of a C&P or relief via a CUE filing. vA was keeping this one in the Mummy file-all wrapped up.

Emerson called his congressman. vA repeated the scenario and reiterated that he had accomplished his 1-9 and was headed to D.C. for an independent review. Well, around the vA, that’s called a non sequitur. The word independent cannot occupy the space immediately before any judicial action. That would be misfeasance.

Emerson must have been a Boy Scout. Reading up on vA rules, he decided to send in an official 1-9 to cover his ass on August 5th. This time, in no uncertain terms, he stated the CUE and asked for interest on the back pay of 400 months! Ho-hah. On August 8th his brand new AMLEG rep. said the same thing to be safe. Continuing in the Boy Scout mode, on the 5th of November he wrote a letter to the VLJs hearing his appeal that he was arguing CUE for 40 to 1953. The hearing was scheduled for the 15th of that month and old Emerson must have figured these guys were as dense as my goat. I suppose in normal circles. if you keep repeating something long enough, most get it. That applies everywhere except the vA triangle where meanings disappear.

I won’t impugn the Board panel. They actually got it in January 1992. They did the proper thing and remanded it back to the RO for a de novo decision on the CUE claim. If things weren’t haywire enough yet , they were getting ready to become exponentially worse down at the local Puzzle Palace. The remand instructions were clear to everyone but the RO. This was no more complicated than boiling water but they managed to burn it.

Eight months later they denied it all again. This time they specifically included the CUE assertion but considered it a new claim that needed it’s own Form 9 to go back up to the BVA. Keep in mind the BVA owned this. They remanded it back for a decision, but it didn’t require a whole new F-9 and recertification back up the ladder. The correct procedure would have been to simply deny and send him the SSOC. No other action was necessary, but they fumigated his ass and told him he needed to do the F-9 dance. They sent another letter a month later to him to make sure he got it. What they neglected to do was tell his Veterans service officer from AMLEG ( who was now from DAV).  This is haywire on a rather grand scale.

For lack of a F-9,  the BVA was not given anything to look at re the CUE appeal so they didn’t rule on it. How could they? The RO never sent it up. Thus July 1993 passed and Emerson Archbold must have really been concerned. By now he had writer’s cramp from telling these guys how to do their job. All he had to show for it was a non-decision, an appeal, a remand, a denial and another non-decision. He must have been overjoyed at the prospect of going up to Indiana Ave. NW and having saner minds prevail.

March 1994 and spring  on the Potomac. I love D. C. I was born there. Dogwoods and cheery trees are in bloom except for the ones George chopped down in his youth. Emerson once again ploddingly laid out his theory of what was amiss. I’m sure he owned his own chart display easel and a nice laser pointer by now. After listening to all this, the Court had to write it down for themselves to follow the maze…

The fundamental procedural deficiencies that are controlling here, as discussed below, are the failure of VA to inform the veteran of his appellate rights in connection with the July 1991 RO decision which initially denied his CUE claim, to issue an SOC after he filed his July 1991 NOD on the CUE claim, and to return the CUE claim automatically to the Board pursuant to 38 C.F.R. § 19.38 for its review, after the RO’s September 1992 decision on remand from the Board. Because the disposition of this case turns on these deficiencies, the Court need not address the following two issues also raised by the facts in this case: (1) Whether the veteran’s representative, the DAV, was required to be furnished a copy of the October 21, 1992, and November 3, 1992, SSOCs, based on the veteran’s power of attorney (dated October 20, 1992 — one day prior to the mailing of the October 21, 1992, SSOC — but containing an acknowledgment date by VA of January 28, 1993) in favor of that service organization; and (2) which party bears the burden of submitting evidence that such power of attorney was received by the RO, pursuant to 38 C.F.R. § 20.602 (1995), before the issuance of the SSOCs.

Okay, got that so far? The procedural deficiencies, without even touching on the legality of these shenanigans were enough to send this back to square one. The Court,  being a humorous bunch much inclined to pulling good jokes on April Fool’s Day (see Heino v. Shinseki),  had to sit VASEC West down and explain it to him. By now he was hopelessly lost and had no clue where this thing stood…

In this case, the veteran filed an NOD in September 1990 as to a July 1990 RO denial of an increased rating for burn scars of his hands and face. R. at 251. This NOD, contrary to the assertion of the Secretary, did not initiate an appeal as to a CUE claim because no such claim had yet been made. (Archbold v. West 1996)

The law says there can only be one (1) NOD filed with respect to any claim. Concurrently, there can only be one F-9 filed that represents itself as such. This whole concept is called a claim stream. Some of our cohorts (former vA employees, no less) on other veterans help sites are unfamiliar with this legal term. Remember it. A claim stream has components that must occur in a formal order. Emerson had done this haphazardly, but it was recognizable if vA had made an attempt to understand it. They never do. His claim stream for the CUE had begun at the BVA who remanded it properly back to the RO. However, it was a different facet of the same claim stream for the increased rating on his hands. vA insisted- nay- persevered grossly in misidentifying it-as an attempt to open a brand new claim in the middle of the old claim stream. Thus they demanded a new Form 9 and refused to certify it back up to the BVA for readjudication.

I know you are having a hard time wrapping your noggin around this. It happens on a slightly less convoluted scale all the time to our claims. vA purposefully “misconstrues” what it is we’re up to and comes to the only possible conclusion that is wrong. Why is that?

Here Mr. Archbold was, finally at the Court and the VASEC was trying anew to obfuscate and cloud the waters with this inane attempt to convince a bunch of intelligent judges that downside was up. The Court wasn’t having it:

The Court holds that the veteran specifically raised the CUE claim (that the RO in 1953 was bound by the Army’s 40% “permanent” rating) in his June 1991 letter; that in July 1991 the RO specifically responded to that letter, evaluated the claim, and disallowed it; and that the July 1991 statement of the veteran on the Form 1-9 constitutes an NOD as to the RO’s July 1991 decision disallowing the CUE claim and is sufficient to give this Court jurisdiction over that claim…

The veteran’s July 1991 statement meets the requirements of § 20.201 and was filed well within one year after the RO’s mailing of notice of its July 1991 decision pursuant to section 7105(b)(1). This statement was received in August 1991 by the RO, “the activity which entered the determination with which disagreement is expressed” … (claim stream)

Although this statement was not expressly construed as an NOD by the Secretary, the Secretary’s construction does not bind this Court. Whether a document is an NOD is a question of law for the Court to determine de novo…

At the November 1991 hearing before the Board, the veteran submitted, and the Board accepted, a written document which sought to clarify his claims…

The Court notes that the Board was obligated under 38 C.F.R. § 20.203 (1995) to notify the veteran if it was concerned about the adequacy of this 1-9 Appeal, and to allow him a period of 60 days within which “to present written argument or to request a hearing to present oral argument on this [procedural] question”. The Board did not do so…

The veteran was not required to respond to the October 1992 SSOC in order to have his CUE claim returned to the Board for completion of its appellate review of that claim because he had filed a Substantive Appeal as to that claim prior to the Board remand.

Archbold supra

Does it amaze you that anything gets done correctly without the Court looking over VASEC’s shoulder? This is about as convoluted as it gets and it only took six years back then. Now, I’d be inclined to believe it might go ten with the backlog. I suspect my claim is going to end up here too. It has many similarities. That’s why I’m well-versed on this decision.

Keep a piece of scrap paper beside you to draw a picture of this or get out the trusty  CFC-360 w/ onboard GPS. This thing has more legs than a centipede.

Meet Mr. Archbold…         Archbold_93-903