Presenting a CUE claim to the RO should not have to be as dramatic as Martin Luther nailing his 95 Theses to the front door of the Church in Wittenberg. However, when pursuing a claim of this magnitude, a Vet does need to have a mountain of legal precedence in his or her favor that will carry the day.
Many Vets read about this novel form of adjudication and mistakenly adopt it as the tour de force that will cure their ills. Few understand the magnitude of what they are attempting and are dismayed when they don’t prevail. Take heart. While it may be the most difficult thing you ever attempt, it does have some minor advantages when you do it yourself at the RO or BVA. Pull up a chair.
The Fugo Precedent Fugo_93-407b taught us that you cannot stand up and make accusations of CUE without specifying what it was that specifically constituted it. Shouting “Fire” in a theater must be predicated on some smoke. The mere suspicion that you suspect it bears more examination before you push print.
The Caffrey precedent Caffrey_90-1511 illustrates the mistake we (me, too) of failing to appeal the error to the Court. If you do not exhaust all your legal options, you cannot claim a failure in the duty to assist. That is why this has been taken off the CUE table. Simply put, you cannot equitably argue that you should be given an earlier effective date back to your first claims filing if you weren’t industrious enough to see it through to the end. I think the precedent sucks, quite frankly. It has too many holes in it and I intend to try to make exceptions to it in my CUE before the Court.
Which brings us to the Court after you discover the BVA doesn’t quite see it your way. Let’s assume you began this after doing your own research. You file pro se or possibly with a VSO and lose at the RO. On appeal, you still fail to get traction or any meaningful input from your VSOleaglezoom.com crew. The BVA slaps you with the wet towel and in the process, exposes a new legal vein of gold you had not considered previously. Yep. The old nonadversarial “we love Vets” argument. Thank your lucky stars that those chuckleheads down at 810 Vermont Ave. NW are so dyed in the wool on screwing us. It finally backfired and we are the beneficiaries. It’s still a bitch to win a CUE but we have one more toe in the door than before.
If you had been represented all along by an attorney after your initial RO denial, you would be precluded from introducing any new facet of CUE when you arrived at Indiana Ave. NW. Whereas if you were a babe in the woods legally speaking, with nothing more than that VSO fig leaf to cover the nakedness of your ignorance at the BVA, the Court tends to take an entirely different approach to your stupidity. This can be your saving grace. Here’s how this complicated thing plays out.
38 CFR § 20.1404(b) on Filing and Pleading Requirements couches it thus:
(b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
Dismissed without prejudice simply means you are free to start over with a new theory of how you got screwed. Normally you only get one bite of the apple on a CUE motion. If you lose, that’s all she wrote. If you mangle your CUE theory and it’s obvious you don’t have a clue what you are about, they tend to smile at one another, pat you on the back, and send you home.
On its face, it would appear from § 1404(b) that you cannot go up to the Big House and then say “Ooops. I forgot to discuss __________ at the BVA.” However, in Andrews v. Nicholson, The Federal Circus took a new tack and revised what they had previously sanctioned in Roberson v. Principi. That was, of course, the idea embodied in 1404(b) apropos specific examples or theories of CUE, clearly enunciated and laid out. Thus you can see that the concept of “ignorance of the law is no defense” can be turned on its head in vAland.
Thus we now have a new gift horse to look at, albeit an inspection of his mouth is not very informative. As in my earlier article on CUE, I pointed out the incongruous nature of CUE. It does seem that the regulations are written such that CUE can be filed for but winning is virtually impossible. Law Dog Bob put it rather succinctly by saying:
Rule # 1. There is no such thing as CUE
Rule #2. If CUE is discovered, refer back to Rule #1
The Andrews precedent shined a light on the difference in the quality of legal representation in our little corner of the judicial world. As you know, and I constantly harp about it, we are precluded from any meaningful legal representation until we’ve already lost. What Congress was smoking when that sailed through is water over the bridge now. What we have to do is live with the aftermath. Since the Courts constantly browbeat us with the idea that this is a nonadversarial system, they sometimes get caught in their own web of deceit. This is what Andrews recognized and why you, constitutionally speaking, have the right to remain stupid.
Once you enter the hallowed halls of Indiana Ave. NW, your judge has to do a peculiar dance now. He/she has to sympathetically read your CUE filing for all the possible permutations that apply-whether you did or didn’t- before proceeding to weigh in on the specific allegations you bring up. Thus, upon arrival, you, or more specifically your leagle beagle, is free to come up with all manner of new legal theories you missed or were insufficiently schooled in to raise yourself. This can save your bacon. Or not. Each case is unique.
Always remember that the legal pleading necessary to prove CUE is akin to trying to prove beyond a shadow of a doubt that God exists. Likewise, the older the decision and the amount of retrodollars involved seems to have a chilling effect, too. This isn’t always true but it is in the majority of cases. I see this as an indictment of too many claims being presented as CUE where there are none. CUE exists-don’t get me wrong. It’s just that the vA has artfully conned the Court into a few codicils that have turned the early Akins (Akins_89-115) and Bentley (Bentley_89-70) COVA CUE precedents upside down. By adding several miles to the tunnel surreptitiously, vA seems to think we’ll overlook their machinations. The older these precedents are, the more entrenched they become. By not calling these defects into question, they gradually become bedrock jurisprudence.
Because law is constantly evolving, blind adherence to a particular precedent is waning. Every legal precept is fraught with a “what if…?” usually a few years later. Thus the concept of “justice delayed is not justice denied” espoused in Caffrey is gradually coming around to “Except when…”
vA constantly tampers with the CFRs. When they insert language into it to cure one ambiguity, they often do not consider the consequences of their actions on another facet of it. Thus we have the appearance of two sets of criteria for bed rest I wrote about back in June. vA eventually has so many balls being juggled simultaneously that the M-21 starts regurgitating multiple answers when queried. Of course the most damning ones become the context for your denial. The opportunity for CUE grows with each revision. Compare it to the intricacies of the tax code. Better yet, hold it up to the light of the old Friday rule. You could drop napalm on Fridays without permission with the reasonable belief that the Air Attache in Vientiane wouldn’t find out until Monday. Things would have cooled down by then and the exigencies of war would, in hindsight, prove that it was a rational choice that accomplished its objective without accidentally frying any Chinese or North Vietnamese “agricultural workers” in the process. The vA has burdened the CFRs over the years with Friday rules often to the point where obtaining a nuanced reading of the M-21 is all but impossible. This, in turn promulgates more CUE- the very same CUE that vA will insist is a veeeery rare occurrence. In fact, its so rare we are hearing about it here on a fairly regular basis. Go figure.
Mark my words. The old saw since 1994 that failure in the duty to assist isn’t CUE is going to eventually have more holes than Swiss cheese. I personally hope to put a large one in it with my own Motion. My favorite analogy is “When are they (the RO chowderheads) going to say they are not required to retrieve your records from the NPRC in St. Louis because the failure in the duty to assist isn’t CUE?” Congress never intended such a tortured revelation.