While this isn’t my largest number of Clear and Unmistakable Error (CUE) busts on one decision in my career, it’s certainly a butt load of errors to make-not once but thrice. This was clearly a “Mission from God” assignment. Chase died the 10th-the very day this came out. I had received several earlier ones-on 3/26 (denial), 4/01 (grant) and 4/08(EED). All three were consistent with VA’s purported 98% accuracy statistic-all three were 98% incorrect. The last two only got the effective date wrong. The 4/01 decision granted on the day of the filing of the 995 and submission of an IMO. The 4/08 rating decision (RD) moved the effective date back to, of all things, the date of the filing of the NOD. Shut the front door, GI.
Since the inception of the Kung Flu quarantine, VA raters have been making errors faster than a 16 on rock-and-roll. The repair rate is just about as rapid fire but unfortunately equally error-prone. I had to harp and carry on like a shrew three times just to get it to a 10182 and we now have to take it to someone with a JD after their name to get this back on track for Chase’ accrued total disability entitlement. Elementary logic would posit that if a Veteran is so ill during the pendency of his claim/appeal that he passes away from the disease or injury, chances are an appropriate rating would be 100% schedular. Well, maybe everywhere but the VA.
Here was the first stab at screwing it up. Remember, this was an easy slam dunk with a top notch IMO.
Here’s the second shot at it with an admission that it was in error.
And the third maladroit attempt…
Finally, after the ‘I’m not going away briefing’ email to the booth bitch at Fort Pea Gravel, Arkansas, they almost got it right. The third time was the charm. The effective date is finally correct but the actual ratings are unequivocally parsimonious and bear no resemblance to the fact that Chase was in a coma during his last week on earth.
I love to read the mea culpa on the Code sheet. It was authored by their VA “Quality Control Officer, Timothy Harrell RQRS (Ratings Quality Review Squad). It did require the signature of the Assistant Veterans Service Center Manager (AVSCM) Laura Jones, which is only appropriate after you’ve hamburgered it three times in succession.
The Magic Incantation of CUE
CUE is only a true CUE when your decision is final and unappealable. The legal repair order is called a Motion to Revise. We are seeing this phenomenon (calling a stupid non-final, VA ratings mistake on yourself a CUE) because VA so dislikes this whole mea culpa enchilada thing. VA raters think of themselves as Jedi Knights. They don’t do sackcloth and ashes. Read §3.105 closely instead of doing a flyover at 25,000 ASL and you see…
(1) Error in final decisions. Decisions are final when the underlying claim is finally adjudicated as provided in § 3.160(d). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. 38 CFR §3.105 (2020)
Now, legally speaking, the above fustercluck Chase went through was a compendium of stupid errors committed by VA telecommuting raters left unsupervised. The Courts, however, call live controversy an” erroneous error”. That’s a far cry from the term CUE. CUE implies finality-always has and always will. Worse, the assigned supervisor who would normally have to sign off on this erroneous decision was AWOL. VA’s attitude on this is they can come back and fix it as they did here surreptitiously. If I’d never pitched a bitch, it would have stood forever… or until someone came along and recognized it as CUE over a year later. In this case the idiots kept coming back in the dead of the night and changing it. I’d wake up and the prior decisions were nary to be found- just the latest iteration of what they felt it should be. Like a good neighbor, I always print these before they evaporate with the morning’s dew.
The actual way you go after these gomers is to cite their bullcrap right back at them. Here’s how the VA Secretary looks at this:
The M21-1 is an internal manual used to guide VA adjudicators at the RO level. DAV v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017 ) The Secretary responds that the Board is not bound by the M21-1, DAV, 859 F.3d at 1077, and that it would therefore be improper to find the Board decision erroneous simply because it did not comply with its provisions.
But… their holy Book of M 21 verse has this to say…
M21-1, pt. III, subpt. iv, ch. 7, sec. B(3)(a); see also id., sec. B(3)(b) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); id., sec. B(3)(c) (requiring referral of an erroneous decision “to a decision maker to issue a new decision” once an error has been identified).
Again, this (fixing an error immediately after it occurs) is what VA law calls “live controversy” or the fact that you have one year from the date of any denial to pull your bacon out of the fire and fix it. This is true in the AMA context. If you are still in the Legacy system, you are bound by the 60-day hand grenade to file your VA Form 9. Our new AMA allows you to keep it alive like a volley ball passed innumerable times back and forth among the same team preparing for the inevitable spike. CUE, as I pointed out, is a dead controversy. It is a claim or appeal that has now died for lack of a substantive appeal to keep it alive. It is these claims which for which §3.105(a) is the proper vehicle to revise.
As surely as the sun comes up tomorrow, VA will reinvent the meaning of words and try to gaslight us into believing this has been the status quo all along since the War of 1812. Right. And they even had DBQs way back then in them olden days, too- but unfortunately they were not “forward facing ” to the Veteran population.
The teaching moment is simple. Win or Die. Never surrender. Never take a Faustian bargain. Fight like you’re the third monkey in line for Noah’s Ark and it just began raining. I spend more time on the phone fixing the VA’s ineptitude by leading a “technician” through VBMS and showing them the errors. They only see it when they finally believe it. Trust me. The default setting with VA is automatic-the Vet is wrong. The representative is an arrogant uncouth son of a bitch and doesn’t understand M21. Once you make them count to 53 and explain how that is less than 60 days and nights and the SOC was timely filed, they relax and allow as a CUE has been perpetrated. But it isn’t a CUE.
Today’s blog is brought to you by C, U and E.
As a postscript, I would never condone someone altering the meaning of a graffiti artist’s work but the below was submitted to me by a patron. I merely publish it to show how heartless the world has become. It is apolitical in its current, sanitized form and thus passes the smell test.
and it makes a nice bookmark with these…