Here’s a Powerpoint presentation for VA employees I received from an Agent I helped get her wings. Imagine that. In one session which they claim will only consume three (3) hours, they propose to make you a VA Jedi Knight and capable of spotting CUE from afar. Ruh-oh, Rorge, as George Jetson’s Astro used to say. Page three makes the mistake of confining the error to strictly one of law and ignores the second tine of the CUE fork inasmuch as it could also be because the chowderheads fixated on the annotated STRs and failed to discern a factual error-e.g., one where the rater forgot to look at a DD 214 or the personnel folder and spot the Purple Heart or the Combat Infantryman’s Badge. This, of course would have required giving the Vet the combat presumption under 38 USC §1154(B)/ 38 CFR §3.304(d). Bingo. Denied. Next?
Here’s the VA version of CUE for Dummies.
And here’s the first error in the lesson…
A finding, as mentioned above, is not negotiable. If it’s a finding of fact about the evidence that is in error, it’s CUE. If it’s a finding of fact about the application of the regulation that cited to the wrong legal standard, it’s CUE. Once that determination is made either way, the second phase kicks in-did it manifestly change the outcome to the detriment of the Veteran? VA likes to rehabilitate these old CUEs by fixing it in 2022 and giving you a 0% back to 1970. But, using the above Powerpoint metric, any error surrounding the evidence of record wouldn’t be CUE-just an error in applying the law. Words have meaning.
§3.104(a) sums it up best:
(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans’ Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.
So, here’s a case study for you Sherlock Holmes CUE hunters.
First, the Rating decision of 2015. Look at the evidence section. Do you see any mention of a May 2011 diagnosis by a neurologist that the Vet has TBI? Negatory. Right off, you know the evidence, as it was known in 2015, was not before the adjudicator. That’s CUE #1. The evidence section also mentions receipt of an Iraqistan “I was there” medal. But this finding notably misses the Combat Action Badge and two (2) awards of the Army Commendation Medal-proof of combat. That’s CUE #2. But do note they attempt to re-diagnose Mikey right out of a dx of TBI as if he’d somehow pulled the wool over Dr. McPeak back in 2011. Note also that this new c&p was done with a records review only. Dr. McPeak sat down with this guy for 50 minutes. Dr. Wyatt wouldn’t know this guy from Adam’s asshole if she met him on the street. So, refer back to §3.104(d) above. You can’t just announce your IMO is mo’ better than his first one. It doesn’t work that way. If that were true, an autopsy report would be useless. VA could just go get their own opinion and say the coroner was smoking crack while he did the autopsy. At some point you have to call bullshit on this tomfoolery.
I did my usual dumpster dive into Mikey’s records and right off spotted his first interaction with the VA at the local VAMC. He went to them because he was f-u-u-u———–ked up mentally. A VA doctor-and not a QTC rentadoc employee- opined in May 2011 that my boy had mild TBI which would be rated at 10% but neglected to do anything more than prescribe some headache medicine, two attaboys and pat him on the back. In a real world situation, they should have told him to march smartly down to the VARO and put in his claim for TBI. Welcome to the unreal world of VA medicine.
Fast forward through the procrastination period men always go through and it explains why Mikey finally filed in May 2014. I’m not making fun of him. I procrastinated from 1973 to 1989 and Cupcake finally ragged on me loudly enough to get me off my ass and file for my back. And then the Agent Orange shit hit in ’94. And finally, my Hep C took me out in ’06. Cupcake summed up that period of my claims existence as “Vets are alive in spite of themselves.” She didn’t even make it a personal statement about me. You’ll note I’m still married, too. So I have that going for me.
But read the explanation on page 3 of the rating decision above. Right off, they say Sorry, Mikey but you have no dx of hamburger brain. The sirens should have gone off in Mikey’s head but he trusted his VSO to be his sword bearer. Baaaaad idea. The rater went on and decided to totally ignore §3.104(d) and throw out a finding of fact as being bogus. Nothing was said about his combat medals.
“While it was noted in your post-service medical records that you were historically diagnosed with a mild TBI/concussion by Dr. Lisa McPeak in May of 2011, your more recent QTC TBI c&p found no basis for a dx. Additionally, your service txment records do not contain complaints, txment, or diagnosis for this condition. Therefore, SC for this condition is denied.” This is against the law in 50 states.
Again, all you aspiring VA do-it-yourself lawdogs should be reminded there are three ways you can get SC. 1) On a direct basis because your STRs show it; 2) on a secondary basis caused by another disease (example would be getting Hep C from a jetgun); or, 3) on a presumptive basis such as a Vietnam Vet getting automatic SC for Agent Orange diseases listed in §3.309(e). Here, the rater merely discussed SC on a direct basis instead of examining all possibilities. Always look at their legal standard of review. More often than not, they only look at the direct path. That’s a major reason why 74% of their ratings are CUE.
So, the denial in 2015 festered for seven years. I refiled for TBI and sent them a copy of Dr. McPeak’s old dx supporting the TBI. It caught air and some honest rater said “Holy Shit, Batman. Lookie here”. They sent him out for a brand new, in-the flesh c&p at bayonet distance and the new QTC APRN or whoever said Roger that. You have mild TBI and here’s your 10% but only effective back to last August when you filed to reopen.
What the hey you’re saying, right? Why didn’t I go full on and begin a long, drawn out fight for an earlier effective date? Shoot. That would be a waste of time. Fight the first battle and get the SC for it. Then dig the pit. Read this filing below for CUE. I learned fifty years or more ago the value of a well-laid out ambush. First off, note that this time they had to acknowledge the 2011 dx of TBI. And, just to CYA, they sent him out to get a new c&p for the hamburgered brain box.
Think about the phenomenon of the “Blue Wall” of police. They tend to avoid jamming up their fellow officers. Good deal. We didn’t sell our fellow soldiers down the river when we served. It was all for one and one for all. Similarly, doctors tend to subscribe to the White Wall of medicine. If you get a private shrink who says you’re bugf**ky after a rote VA denial, a new c&p will inevitably agree with your shrink. Ditto for a medical IMO for something like TBI. I depend on it in this business. It’s the whole foundation upon which we build using IMOs to win. It’s the primary reason VA denies all the time- right up until you get your own opinion. Your chance of getting a fair shake at the VA is zilch if you folks hadn’t noticed. Praying that VA will give you a truly unbiased c&p and you’ll win is like praying that Santa will come down the chimney with that shiny new Maserati. No way, José.
I don’t fault Vets for being disgusted and walking away after a denial. I did. Twice. Jez, don’t feel pregnant and alone. We were altruistic and most enlisted out of a patriotic fervor. To have VA treat you like trailer park trash hurts when you come home. If you never learned how to fight, you’d probably lose a few teeth and have about 30 fat lips before you wised up and learned to clock the guy before he even made a fist. That’s the technique I finally came across after 30 years of this. Never never never go on the defensive.
So, I built my little punji pit with the 2011 evidence knowing someone was going to see it and cave in. They did. Read the below on page 2 and see how they very carefully granted and at the same time, adroitly segued sideways and did a soft shoe routine around the 2011 error without mentioning it or the combat presumption at all. This is another thing you, as pro se Vets, need to focus on. Any time you see a rater’s fingers typing, you can be sure half or more of what s/he’s writing is pure hooey. If (they, them, their) give you 10% at all, it means you’re probably entitled to 30%. Or more.
So. How do asshole VA agents like me go after them on this? Well, as you see above, the punji pit is the first step. Let them walk right in and get impaled with a decision they can’t wiggle out of. Remember, they think we’re all dumber than a bag of amoebas. Let them keep on thinking that. Then drop that CUE nickel on them using their own evidence. Right off, you know they know they stepped on their necktie back in 2015. Thus, you hunt for every sentence, every phrase and every damning medical fact and every regulation that will support your CUE claim. You want this to look like a huge tsunami of irrefutable evidence that could only have one explanation-your version.
Now, personally, having never been taught how to write a legal brief, I tend to bogart stuff from the CAVC and the BVA to cite to say what I mean. Here below is the way I chose to go after them for this one. Granted, it’s only about $25 K worth of retro but that can be like a Make-a-Wish™ grant for a needy Vet who’s scraping to get by. Anyway, I get out my book of favorite Court cites and pile on. I know some will say brevity in legal briefs is desirable. I don’t buy it. I subscribe to the avalanche method of burying them in guilt for what they’ve done. You’ll note the way I take it down to a personal level and use phrases such as “The Secretary ignored the evidence of record and….” Humanize your Vet. Make this look like a personalized David and Goliath mismatch between you and Denis the Menace and you aim to settle the score. Throw some Latin in there to fluff it up.
One thing I’ve discovered in this CUE game is to carefully read requests for c&ps. Examine what the rater who requested it is saying. What is he asking the clinician to do? When you see the note they put in on Mikey’s request (page 4-5), you know they’re pissing on the fire and calling in the dogs. It actually says in as many words, “Write it this way.” Conversely, I’ve noticed c&p requests that pretty much hand the hangman’s rope to the clinician before the pencils are sharpened.
Lastly, and I know you pro se folks don’t have access to VBMS, I like to put in the VBMS address for the poor raters so they can find it in this lifetime. It’s just a professional courtesy but when you file a direct review at the BVA, you are not allowed to submit any new evidence. So… since all this is already in the efolder (cfile), you aren’t “adding” to the record- just annotating for the VLJ where to find it. If a pro se Vet has his cfile on a CD, he can simply refer to the cfile document construction date from the Records Management Center and point out the page the damning evidence is on.
I also have a huge (22 point font) ink stamp with “Duplicate in VBMS” I use to send in “relevant ” evidence which is already in the file. I’ve been warned not to send in duplicates but think about it. Every time they promulgate a rating decision, they also put in the standard flyers telling you how to appeal if you’re dissatisfied. Most of my Vets have a gazillion of them in their folder so who’s the fool, fool?
I’ll report back when they cut the decision. Honestly, this is more fun than fishing with 40% DuPont stump dynamite. VA should never have told me I never served in Vietnam in ’94. Talk about pissing a body off. And they don’t hand out combat medals for heroic actions above and beyond the call of duty while peeling potatoes on KP duty.