Rashid El Malik adds a comment to our Pending claims doctrine post and I thought I would bring it out here so others can see what he’s asking.
I have a question? In 2003 I filed a claim for R wrist disability. In 2004, I received a 10% rating and I perfected my appeal to the Board claiming a higher rating and loss of use due to pain. In 2007, the Board remanded the R wrist claim requesting a C&P examination to determine if the wrist should have a higher rating and loss of use. After waiting over 2 years, in 2009 I file a writ to the Court, and the Court order the Board to conduct a C&P exam within 15 days. I received a maximum rating of 70% and loss of use. The Board set the effective date as the date of the C&P exam. I filed a formal CUE claim arguing the effective date should be the date of claim since I appealed the RO decision and the Board remanded the case. (Pending claim doctrine) The Board and the Court denied my claim.
Are they correct in stating there was no error in the decision because I could not rely on the 2003 date of claim. Let me also note that the Board and the Court never discuss the remand or three year delay waiting for a C&P exam that could have been completed within three months.
Mr. El Malik has a valid question. On its face, it appears the Court is fraternizing too much with the VA Secretary and Will Gunn. Let’s divide this up into it’s integral parts, for there are several.
You have one claim (r wrist) in 2003.
You win and get 10%. You appeal for a higher rating. VA tells you to piss on a flat rock.
You appeal and BVA remands with instructions to measure you again and rate appropriately. This is called a staged or Fenderson rating after Fenderson v. West. Ratings and effective dates are established by the Ratings Ranger at the VARO nearest you ( or another RO if they farmed it out) but not at the BVA. They may raise it based on a waiver of review however.
Insert remand, delay and Extraordinary Writ here
If the Rating Specialist refused to budge on an earlier effective date, it would go back to the BVA with all the new evidence of your latest (i.e. recent C&P exam revealing 70%) for a new decision on the correct effective date for the 70%.
BVA refused to grant the 2003 date probably saying the first documented proof in your files of a 70% disability is at the 2009 C&P exam. At no time prior to that day in 2009 is there any medical proof that your condition warranted a percentage higher than the originally assigned 10% in 2003. I suspect the RO rater said exactly the same thing.
You are beginning to wonder why VA blew you off for two years about here.
The Court then agreed with the BVA decision ( affirmed it).
I assume that sums it up.
Mr. El Malik is attacking with the wrong legal utensil. This is not a case of a pending claim doctrine. Put simply, Rashid received his rating effective in 2003 albeit for 10%- therefore there was (and is) no pending claim. He won. He has now been inspected, detected, injected, and rated 70%. This 2009 C&P is the first day VA can point to and say “Yeppers, Rashid. You get the big seven oh, dude.”
At about 2004 in the claim, Mr. Rashid would have been smart to also submit proof himself that this magical threshold had been reached at an earlier date-say somewhere around 2003-2007. This rebuts the VA’s contention that Rashid’s right wrist got immeasurably worse all of a sudden at the 2009 C&P-but not a day sooner.
Without this rebuttal evidence on the record, all the BVA judge has to look at is one (1) 2003 C&P and one (1) 2009 C&P. With nothing in between, there is no specific date to point to. With no new evidence submitted to support an earlier effective date for the 70%, the claim must fail. The earliest ascertainable date the 70% can be awarded is 2009. When you get to the BVA, that’s all she wrote on evidence submittal. You cannot go to the CAVC and introduce new evidence there.
The Court merely affirms that the BVA didn’t cheat while deciding they had two C&Ps to work with. The Court is not a trier of fact. They are simply the ones to take the legal pulse of this and make sure the BVA judge did it by the book. He did.
Now, as to the Court or the BVA Judge noting the Writ of Mandamus, that is an entirely different case that has nothing to do with this. It has a different docket number and is of no consequence to this adjudication. As for that two year delay? VA’s take is Justice delayed is not justice denied. You eventually got the C&P. I suppose in their eyes you were remiss in not notifying them after 90 days that you had not been scheduled for the dog and pony show.
That, Ladies and Gentleman Vets, is the tempest in the teapot that Rashid has sailed into. Poor legal advice or a poor legal strategy? Only Rashid can say and he has not given us enough to make that call. I will email him and ask him to review this for accuracy and to add any other comments. VA utilizes the House of Mirrors technique on claims filings. When they screw up. the attitude is simply ” Two years? My bad. Okay, schedule him for a C&P.” And since it’s the only game in town, we have to beg for each thing.
CUE ( clear and unmistakable error) has not occurred here. If it has, it is on Rashid’s part for not submitting evidence to rebut the 2009 C&P before it left the VARO.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
I am not certified by the Board since 2003 because of the amount of claims I was winning. From 1998 until 2003 I believe over one million dollar was granted to the veterans I represented; therefore, too many veterans were winning their cases. In-addition the vet who won their cases were veterans that the RO did not want them to win. You gave me some good legal advice. I somewhat surprise you did attempt to discuss the SMC. We need each others some don’t stop our discussions because we can help a lot of veterans who do not have the knowledge we possess. I also notice my notification to this website has changed from allowing a response on the site.
Thanks for your time
Rashid
Negatory. You are free to post here as much as you want and I encourage you to do so. Few have a talent for this-the ability to sniff out an error and focus on it to the exclusion of all else. No one is the keeper of the keys on knowledge in this poker game. Everyone has a unique set of circumstances that provoke a special set of requirements to overcome error-prone decisions. Since 65% are defective, there’s a large market for advice.
If he filed the nod in time and the civilian doctor says he had loss of use in 2003 to 2004 it seems like you have a cue case. Wonder if va sent the civilian doctor’s statement to the BVA. Randy has a good point about a long and tenuous road.Might be time for a lawdog. Just my humble two cents
The 2003 doctor stated I had loss of use of the wrist because of pain and the RO never did an analysis on the issue of pain that why I appeal the 10% rating. The 2009 doctor actually cited DeLuca and stated I had the loss of use of the R Wrist due to pain. So I called a CUE on the 2003 decision because Deluca wasn’t mention in the 2003 decision which will change the outcome of the decision.
Your thoughts
Thanks for your very interesting response. I need to correct a few mistakes base upon my first question. I did not have a C&P in 2003. I had a private doctor who diagnose my right wrist after X-rays and a MRI as Kienbocks Disease. He stated in his examination report that I would need a wrist fusion and ordered a brace for my wrist to immobilizes because of the pain. Base on that medical evidence I filed a claim for my wrist. As stated perviously I received a 10% rating in 2004.The bases for the appeal was that I had loss the functional use of my wrist. Since I perfected a timely appeal the claim should still be pending,.because I disagreed with the rating. (Pending claim doctrine) The RO took 2 years to perfect my appeal to the Board. In 2006 the Board remand the claim to the RO because they did not include the SOC. In 2007 when the Board received the SOC they remanded the case to the Appeals Management Center to schedule me for a C&P. In 2008 I filed a writ because of the delay and the Board answered the writ by remanding the case again. This time they stated in the remand that there was evidence in the record that showed my wrist in 2003 was progressively getting worse because I had to wear a wrist brace and pain. You know the rest of the story.
My question is:
1. (Pending claim) Since the claim was filed in 2003 the effective date would be the date of claim. If I would have submitted new evidence that showed the wrist was getting worse then the effective date would be the date of the new evidence. Someone ask the question “to received a rating from 10% to 70% base on the evidence in the record in 2003 was unusually. I agree! Because the evidence in the record warranted a higher rating. The C&P examiner in 2009 agreed with the 2003 medical evidence stating I had Kienbocks Disease and that I would need a wrist fusion. She concluded based upon pain (Deluca)I had loss the functional of use of the wrist. In 2003 I had the same pain and could not use my wrist because of pain; however, would you agree that since the evidence in the record from 2003 to 2009 never changed the effective date has to be the date of claim.
2. What legal theory do I use to make a legal argument. I a filing an appeal to the Federal Court of Appeals
Rashid
I agree with you on the effective date of 2003. You have made your case. Allow me to look the case up at the CAVC and study it first. The pending claim argument still doesn’t hold water because you won. You just haven’t won the correct date yet. Stand by.
Okay. It’s a matter of public records so readers can analyze this for themselves. Go to the CAVC site http://search.uscourts.cavc.gov/ and erase {query}. Insert 12-458 and Mr. El Rashid’s case will pop up. Click on the download in the upper left and it will appear as a normal document.
As I mentioned in the post above, the BVA did look at the 2003 private “C&P” and then the 2009 one. They then said there was nothing in between to base a Fenderson rating on as I conjectured. However, here is the meat of that rationale.
Mr. El Malik also argues that the 70% rating for his right wrist derangement should have been effective from September 2003–the date of a private medical examination opining that he would “certainly need a wrist fusion” in the future. (Board decision finding CUE in the January 2010 decision only to the extent that the 70% rating should have been effective June 23, 2009). This argument is not persuasive, as contemplation of a future wrist fusion does not evidence a current injury for which Mr. El Malik would have been entitled to an increased disability rating. Rather, the examiner noted Mr. El Malik’s symptoms–including pain, weakness, and trouble gripping or squeezing–and the Board relied on these current symptoms in upholding the 10% rating. (January 2010 Board decision discussing the September 2003 examination). As disagreement with how the Board evaluated or weighed evidence cannot substantiate an allegation of CUE, Damrel v. Brown, 6 Vet.App. 242, 246 (1994), the Court rejects Mr. El Malik’s allegation of CUE in the Board’s February 2012 decision to the extent that it found no CUE in the Board’s failure to award an increased rating prior to June 23, 2009.
Again, I will reiterate that you are using the wrong legal utensil here to obtain that which you wish to revise. CUE (clear and unmistakable error) must be pled with extreme specificity.You no longer can submit evidence to overturn this decision.
I am not that familiar with the practices of the Federal Circuit, but if you are pro se at the Court, you are allowed a lot of deference on your CUE claim. It does not appear as if Judge Davis (who’s an officious boob in my estimation)gave you that deference. What you can or cannot plead at the Dead Circus is minimal. This got away from you when the BVA affirmed the RO’s 70% @ 2009 (June). Yes they did screw up the date by three months. That much was CUE and easy to rebut.
By not having had the surgery at the time of the 10% rating in 2004, VA simply rated you on what you DID have, not what you would soon be needing. If you had undergone that surgery a month after the rating of 10%, you would have been entitled instantly to the higher rating of 70%. Could have, would have and should have ran fourth, fifth and sixth at Santa Anita yesterday.
I am not sure I can point to a legal precedent to support the argument you propose at the Federal Court. It has to be a violation of law. The case or controversy must center on some failing associated with the CUE that you are pleading. You cannot change your basis for your legal argument in midstream. Arguing it strictly on what you have posited as clearly and unmistakably erroneous is a very weak argument. Were it me, I would have pursued a Fenderson argument that you were and are seeking the “highest and best” rating (AB v. Brown) and argued for extraschedular remand back to the RO in 2007-8. due to the pain (Deluca).
I fear your options at this late date are few if any. This amply illustrates why ex parte justice is grossly unfair to pro se Vets. Mr. El Malik, under any other judicial scenario, especially a represented one, would have been apprised of the BVA’s intentions to affirm the RO’s decision and present argument (and evidence) immediately to rebut the BVA’s pending decision. Now he is the possessor of a rump decision that has disenfranchised him. So much for the nonadversarial, Veteran-friendly environment in which to present our claims. I would normally reiterate the tired old Shakespearean saw that a man who represents himself has a fool for a client but VA is careful to assuage our fears and assure us we’ll be given everything that’s coming to us.
In sum, Rashid. I think an appeal to the Feds would be throwing good money after bad at this point. I will, however, send this over to LawBob and ask him what his thoughts are. The inherent problem, as always, is that winning CUE claims is nigh on to impossible this high up. The tenets required set a high bar, such as manifestly changing the outcome, that few can surmount it. You nailed them on the three months (September versus June) earlier effective date but you had little or no intercurrent evidence to support your legal position between the two examinations of 2003 and 2009.
Of course, as a pro se appellant, you could argue for deference and a different legal standard of loss of, or loss of use of the right wrist because the VA and the BVA in particular, is required to analyze your claim and discern any and all benefits you are entitled to. If they did not consider the possibility of loss of use of the right lower extremity then they have failed to do due diligence and the decision is arbitrary and capricious. Again, the CUE was the worst approach but they are required to grant you a LOT of leeway on this when you arrive unaccompanied.
I see from the rest of the decision that your journey through life has not been an easy one either. This saddens me no end. Vietnam Veterans were the last to get remunerations-and often decades after the damage was wrought. I cannot express the pride with which many of the Veterans of that “conflict” (as the VFW considers it) carry themselves. We sought little in the years immediately following it. Most., like me, wished to be left alone and not reminded of it. It appears the VA, and by extension the higher Courts, are still not willing to remunerate us without a knock down, drag out fight. Very sad. I would like to commend you for carrying your own torch. It never ceases to amaze me how some of us can become so infuriated that we charge off and defend ourselves against all odds knowing we’ll be doing battle with legions of leagal beagles. You and I share that attribute. I opted for a law dog at the Court for the very reason that you write of. The card game is crooked and you need every ace up your sleeve you can muster.
Thanks for you analysis I will digest your thoughts and think about abandoning this issue. I diffidently used the wrong legal standard.
I have a new question concerning the decision because there was a second issue.
In 2004 I underwent bilateral knee replacement. The statue at the time stated a veteran shall be rated 100% for one year. In footnote 2 of the statue it stated a veteran is entitled to SMC as soon as the use of crutches is established during the one year of convalescence period.
I argued I should have received a temporary rating of R2 since I was discharged from the VA hospital confine to my bed and needed the aid and attendance of a nurse. I was assigned a nurse.
They argued R2 requires veterans to have the loss of use of three extremities plus K1. I received the loss of use of three extremities in the 2009 rating decision. Therefore they opined that I was not entitle to R2 benefits in 2004.
I argued the interpretation of the statue by the Secretary will cause a conflict. Since the benefits of SMC is only for one year he is imposing a strict interpretation instead of a liberal interpretation.
A veteran who is convalescing under Chapter 30 receives a liberal interpretation of the statute because of the temporary benefits and do not have to reach the strict interpretation of the statute to receive the 100%.
The Court agreed with the Secretary that I had to be rated under the strict interpretation of R2 to receive the one year benefits. Under that rational if I was discharged from the hospital with bilateral wounds I would be on my own by cooking my own food, crawling to the bathroom and changes my own bandages,
Your thoughts
Rashid
Rashid, you are certified as an agent to help other Vets. I am not. Your knowledge undoubtedly far surpasses mine so I would think that 33 trips to the CAVC makes you eminently more knowledgable than me on a variety of subjects. To be truthful, my endemic knowledge of the SMC requirements is something I parse each time as needed for the individual Vet. I’m ass-deep in a number of endeavours and would love to discourse at length but my duties prevent me. I sure do admire the way you beard the lion on that plethora of Writs. Take heart, As you know they rarely are granted but they sure do light a fire under the VASEC’s ass. Best of luck.
If he failed to file a NOD after the 2003 decision and waited until 2009 to move toward the higher rating he is stepping on his own necktie. After waiting for years for a decision my first stop is to see what the VA allowed and what they did not. It is ultimately the claimants decision to file right away or “ponder” the outcome as to which direction to proceed. To go from 10% to 70% is quite unusual for the VA and I feel he should just move on. Trying to backdate this decision will end up being a very long and tenuous road to travel. Not saying to give up but consider the amount of time and frustration down the road and they do in fact hold the best hand in almost every case.
Randy I filed a timely appeal. What you and Asknod are saying is the VA can set you up for a C&P exam in 2003 and take 10 years to conduct the exam which would be 2013 and if the facts of the case are the same as mine then you lose ten years of benefits. This interpretation of the law give the VA the incentives to prolong veterans cases. I will let you and Asknod know the outcome of this decision when I file it into the Federal Courts. Yes I have decided to continue the fight.
Rashid