As I’m in the middle of a CUE decision that will be argued at the Court, I have been studying the concept of what is, what isn’t, whether it can be argued, whether I’m precluded by Caffrey, Fugo, and Russell and more. Attorney and Head hunter Bob has graciously sent me some literature he’s accumulated over the years on this much-discussed topic.
Every time I read a new article or legal thesis on this I strike another vein of understanding. Take this for instance. TommyCUEfall1997
Here you can see that CUE was a nebulous legal theory still in its infancy. The legislation in question revoked the BVA’s authority in a later decision on the same claim to indemnify themselves against a Motion for Revision (CUE) simply by saying they had revisited a reopening of the claim and that, ipso facto, meant they had also performed the judicial dance on all facets of it, including CUE regardless of whether the claimant had claimed it or not. Let me rephrase that. They could render decisions anew on old, reopened claims but could not summarily announce anything prior did not contain CUE. Thus if you finally were granted SC for hemorrhoids in 2009, you could still legally go back and claim CUE in the 1985 decision that denied them.
Veterans finally got the right to judicial review without having to overcome that hurtle but there were many more. Consider this 2004 article by Michael Horan of Paralyzed Veterans of America. It expresses so well the intractible problems we all face when trying to right a wrong. CUETommy2004
Moving right along if you’re not too deflated yet, we have a different take in respect to the Federal Circus by Charles G. Mills. CUEFedcir
All these articles explicitly try to illuminate CUE from different perspectives and eras. With the more recent onslaught of Cook and its progeny, the book is still open. Never say Die would be the motto here. Remember the Eagle flying @ 3100 feet with a snake half-consumed and the other half with a stranglehold around his neck precluding same? This is the position I advocate.
My problems are unique (in my mind). Because I was employed by ” other government entities” sometimes, my service medical records (SMRs) ended up in places other than where they should have. My argument was simple. If the government is tasked with keeping your SMRs, and you discover they are still in a civilian hospital at the ass end of nowhere in Thailand, shouldn’t the vA retrieve them? More importantly, if you politely ask them twice? And most importantly, if you provide them with a portion proving their existence and probative nature on the subject, shouldn’t they stop what they’re doing and go get them? Most of us will never encounter this problem but there it is-a unique situation never before addressed by the Court, the BVA and the chowderheads at the RO.
If records created by the hospital and paid for by Uncle Sam are not Federal records, what are they? I maintain they are official service records created solely for the benefit of the Government. Having paid for them, I feel they should have been associated with my SMRs. Most importantly, once apprised of their location, content, and availability, I feel it was an outcome determinative error to blow me off and say “Pshaw. We feel we have everything we need right here, Mr. Nod.” We won’t go into the little error they made at the end where they put on their white suits and toy stethoscopes and said (I love this):
[Based on the record, it appears likely that the “pain” referred to [several years later after service] was the left hip pain documented in the service medical records rather than back pain.]
This would be the left hip pain which was never diagnosed and was described thus:
The episodes of left hip pain the veteran experienced in service were acute and transitory and resolved without objectively demonstrable pathology by the time of service separation in February 1973.
At what point does an acute pain turn into a chronic pain? Why, several minutes after stepping off-base for the last time. This is the way vA looks at the possibility of HCV being contracted via sexual congress. It cannot happen during service simply because the medical odds of this happening are less than 1 percent. Nevertheless the moment you are discharged and get laid, the odds go up to about 80% that your licentious, risky lifestyle was the cause of all your woes.
How the Court will rule on this remains to be seen. Duty to assist has been taken off the table in Cafffrey. I accept that. But at what point? If you pester these mental dwarves to go get the records and they don’t, are they still indemnified? Think about this for a moment. Do you think VASEC could stand up in Court under similar circumstances and say “Well, your honor, Joe Vet’s records could very well have been down in St. Louis at the NPRC. The truth is we didn’t bother to go look. The CUE regs are very clear that we can’t lose this based on a duty to assist violation so we didn’t bother. Do you guys have a problem with that?”
As for the other Dr. Kildare moment, I think they may have to hire a former President to come in and describe what the meaning of “acute” is (or isn’t). Regardless, you will see some fancy moonwalking employed. They’re going to put Neil Armstrong’s to shame when they strap on the dancing shoes.
Here’s a couple of recent examples of CUE that succeeded. I don’t consider Leroy MacKlem’s win a CUE win in the true sense. It was a brain fart of immense proportions by a harried, GS-12 DRO. I’m sure any one of us could have stepped on his necktie in a similar manner.
Here’s Dave Hornick’s epic win based on a horrible misreading of §§ 1151 and 1159.
And likewise, Pete’ Kondos’ single judge outing before the Veteran’s daughter (Mary Schoelen). Kondos+non+prec+CUE+reversal
Hopefully mine will reside in this glorious pantheon as well. I only hope it won’t require a long, tortured trip to the Big House on 1st and East Capitol St. NE.