CUE (Clear and Unmistakable Error) claims intrigue me and always have. They are an example of a rare win-usually much later after a failure to appeal. CUE is one of two ways to overturn a prior decision and rarely succeeds. The reason is simple. The VA successfully argued in 1992 in Russell v. Derwinski that if (and a big, big “if”) a decision was indeed wrong, then two things must ensue. The error had to manifestly alter history and actually change the eventual outcome. Secondly, and perhaps of more import, benefit of the doubt could not seep in after a determination that CUE might be present. In other words, either the prior decision was completely correct- or it was not. Simply discovering CUE occurred requires another step to determine just how egregious the faceplant was. If it could be determined that another outcome would have resulted in a favorable resolution for the Vet, then he would prevail. This is the “manifestly changed the outcome” language. It is also why Vets rarely win in this 3-card VA Monte game. For some inexplicable reason, VA never seems to find that the manifestly different outcome would occur. Go figure. Or don’t. Such are the vagaries of ex parte justice.
Mr. Pirkl was outfitted with gill slits in 1947. By 1949 it was determined he was a paranoid schizophrenic. Shit happens. The Navy decided they no longer needed his services and he was discharged and given a whopping 10% for the malady. The VA revisited their original decision three years later and gave him 100%. Feeling they had been too munificent, they promptly revoked it eleven months and twenty seven days later, substituting a 70% rating in its stead. Contrary to popular belief, this was not the birth of bait and switch. VA has been doing this for over two hundred years. In VA’s demented view, the 100% award was probably CUE.
Mr. Pirkl, in what was to literally prove a fatal mistake fifty years later, failed to appeal. Sensing a financial windfall, VA returned three years later in December 1956 and yet again gave him a ratings haircut downward to 50%. Again, Mr. Pirkl failed to appeal and this, too, became final.
Lastly, ten years later in 1966, they descended yet again and whacked him back to 30%. Perhaps they were testing his mettle or thought his mental illness left him open to these unsupported reductions. They were wrong. This time he appealed to the Board of Veterans Appeals. His appeal was fruitless. As there was no higher authority at the time, his denial was final with no legal avenue to go further. Things remained in stasis until the advent of the Veterans Judicial Reform Act of 1989 dragged the DVA into the real world and out of its splendid isolation.
In 1991, Mr. Pirkl filed for an increase based on a few changes in his employment status and mental picture. The VJRA probably had something to do with it, too. By now he was sixty two. VA (virtually) immediately granted 100% and made it retroactive to 1988. The lightbulb went on most assuredly. Ten years went by while old man Pirkl sat and stewed over those old, earlier haircuts from 100 down to 30%. He must have done some investigating because he filed for CUE on the 1953, 1956 and 1966 reductions in December 2001.
VA segregated this into two camps and took the 1966 Board of Veteran Appeals (BVA) decision to the BVA where it originated. They, in turn, predictably decided they had not erred in 1966 and told him to go piss on a flat rock. He did so and failed to appeal yet again. Bingo. Done. Things sat like this while the Regional Office mulled their 1953 and 1956 unappealed reductions. In 2005 they, too, took the flat rock posture and told him as much. Mr. Pirkl must have been developing an inferiority complex in addition to the schizophrenic issues and finally started objecting in no uncertain terms. He filed his NOD and proceeded to dig in. He hired a rainmaker who wasn’t as adroit as he should have been. The law dog only filed CUE on the 1953 decision rather than all three (1953, 1956 and 1966.) VA sent out the flat rock SOC and continued to deny. Again, in the Form 9, Mr. Pirkl’s counsel failed to encompass the later two decisions and the Board thus only addressed the 1953 reduction. Being slippery little so-and-sos, they granted a CUE on the 1953 knowing full well that it would be whacked back down by the subsequent 1956 reduction to 50%- which, of course, it was. In fact, the BVA incorporated that right into their decision.
[The Board] decision dated August 14, 2006, found
that [the] rating decision dated September 3,
1953, had improperly reduced your evaluation
from 100[%] to 70[%]. This rating decision puts
the [Board] decision into effect. It is noted that
the [Board] decision only address[ed] the issue of
the evaluation assigned by the September 3, 1953,
rating decision, and does not [a]ffect any of the
rating decision[s] made subsequent to that date.
So, a recap of this looks like:
1991 ( retro to 1988)– 100%
2002– no CUE in 1966 (BVA)
2005– no CUE in 1953 and 1956 (VARO)
2006–BVA finds CUE in 1953 decision and restores 100% to 1957 whereupon it reverts back to 50% (and subsequently 30% in 1966).
2006– claim returns to VARO and is rated as above. Mr. Pirkl climbs back on NOD hamster wheel and begins anew.
2007-2013– Hamster wheel of denials all the way to the Fed. Circus with the unfortunate demise of Mr. Pirkl in the interim. CAVC allows Mrs. Pirkl to be substituted in his stead.
The final argument boils down to something elementary. If you have a 100% rating in 1953 reduced to 70% and it is restored fifty years later via CUE to 100%, can it be said that follow-on ratings were also the product of CUE? Or, more appropriately, would not a reduction that has been restored make any further reductions void ab initio or at least provoke a dialogue to determine their validity?
By reducing a rating to 70% , thence to 50% and again to 30% followed by a restoration to 100%, you have created a ratings non sequitur. You are also reducing a former 70% (now 100%) to 50% from 100%. This was not what occurred in 1956 and it was never discussed by any trier of fact. Therein lies the contretemps that provoked this long, drawn out study in jurisprudence.
Oddly enough, if you had handed this to a bunch of 5th graders and asked them what was fair, they would have no trouble sorting it out equitably. Given the general legal parameters and dodge ball rules, I’m sure they’d have said a long discussion about 1956 and 1966 was paramount, not to mention part and parcel, to any restoration of the full meal deal in 1953. You cannot tamper with time and not have downstream repercussions in spite of what the government and the CAVC insist. To illustrate my point, watch Back to the Future– Part II.
The Fed. Circus got this one right. It took a few trees and twelve pages to sound out the consonants, excise the double negatives and avoid dangling participles. Why Mr. and Mrs. Pirkl had to fritter away their final, golden years together on this incongruity and fight so long to obtain the obvious may forever remain an enigma. Judges Dyk, Mayer and Reyna are to be commended for their command of law and as far thinkers. CUE is an enormously complex theorem with untold twists and folds that still to this day are being explored and unraveled. They have added another chapter to the VA saga of “We’re correct, unless or until, the Fed. Circus says we’re not.”
The story would not be complete without a few attaboys for Kenbo “the woodbutcher” Carpenter of Kansas fame. He’s notched his Colt Single Six with a new win on this that, while not setting precedence per se, will certainly give pause to the VA before they start shooting off their mouth about what constitutes CUE and what doesn’t. Considering this is his specialty (along with bent brain syndrome), VA was ill-advised to lock horns with him over it. The BVA will now attempt to craft a more durable and lasting hangman’s noose that won’t slip or come undone. It will have to pass the Fed. Circus’ muster this time out as well. Or… VA may decide pissing on flat rocks is infinitely more preferable (and profitable) for them. As well they should.
P.S. And here we are after the CAVC dissed the Fed. Circus and defied the remand with yet another flawed decision. The final repair order is here dated 10/17/2018 and it unequivocally and clearly and concisely instructs the CAVC on how they will readjudicate this so as to avoid any more confusion. It will give us greater rewards as it shows the compound effect of what one CUE domino does to topple ensuing decision dominoes in the future.