Regardless of anything you hear about Motions to Revise an old decision, also known as filing a CUE, remember one salient principle. While VA does not, and will not, entertain the benefit of the doubt (BOTD), they are required under law to engage in a sympathetic reading of your claim if you are Pro Se… or represented by a VSO or Agent like myself. Finally. A Catch 22 in a Vet’s favor for once.

One of the major benefits of being an Agent is I have no Juris Doctorate (JD) after my name. I don’t have an Esq(uire) after my name.  I also don’t have one of those ugly student loan debts that can never be repaid and retired because the interest rate metastasizes faster than cancer. I’ve never been to law school and have no college degrees. While I am admitted to practice at the Court of Appeals for Veterans Claims (CAVC) and have all the authority of an attorney, I still have to have a real attorney who is responsible for my shenanigans if I step on my necktie.

Pickles doing her RCA Victor Dog imitation

Because my practice is focused solely on those of you who are dying, or the spouses of the recently departed, my time available to practice at the Court has gradually become severely limited. Fortunately, I belong to an outfit that encompasses over a thousand of the very best attorneys in the land. Many actually choose to practice there (CAVC) and some are frequently successful. On the rare occasions when I lose a claim at the Board of Appeals (BVA), I resort to calling one of them and asking them to take the appeal on for me. Since I don’t take on unicorn or alien abduction claims, I usually am assured a taker.

There are approximately three million or more of you who are injured or disabled who seek representation before VA. Many use VSOs which are generally effective at the beginning levels of fighting VA. If you lose or end up with a Zeros for Heroes rating of 0%, it’s time to seek out professional help with legal training to win. With that said, it always amazes me how many of you choose to fight your own battle by learning this crazy system as I did back in 2008.

The term pro se means you are representing yourself but it encompasses far more legally. If you are represented by a National Service Officer (NSO), in the eyes of the law you are still pro se. Ditto if you use a VA Agent like me. The major difference is a NSO is not required to learn VA law. He only needs to know which VA form to submit and give you a very generalized idea of what you need to win. Some are extremely intelligent and go the extra mile to learn what it takes to win legally. Some do not. VA Agents are required to pass a very difficult examination to ensure they can provide you with legal services commensurate with those of a skilled VA attorney. But go figure. A VA attorney is not required to take the exam.

So how does this play out in the VA litigation arena? When I appeal a claim up to the BVA, I need extensive knowledge of what the Court has already declared as binding law. That requires far more than basic knowledge of which form to submit or which benefit to seek. My legal briefs are not pleas begging a Veterans Law Judge (VLJ) for the BOTD. I have to present an argument supported by all those Veterans who went before you and already walked point on the injury/disability. CUE is a bitch to win at any level- and way harder if you’re talking fifty years ago.

ROBERTO’S GREAT BIG CUE 

But… as a VA Agent with no JD, in order to win I have to talk like an attorney at hearings and write briefs that supports my client’s entitlement to the benefit. With all that said, let’s discuss this CUE. CUE is shorthand for Clear and Unmistakable Error. I’ve written many articles about CUE on my site. What I have never done is discuss the legal reason for a sympathetic reading of a CUE claim. Frankly, I figured it was out of bounds like BOTD. Don’t confuse it with BOTD. I think I stated Roberto’s CUE quite clearly.

Redacted CUE filed 1-15-2021

Buried in the sympathetic reading laws are their foundations below. Veterans are not trained in the art of litigation war. Few are attorneys themselves. Even worse, if they are, they are skilled in regular law- tax law, divorce, real estate, murder. After JD school, they still have to learn the intricacies of VA law. As a comparison, think of VA law as John Philips Souza military music compared to the civilian rock and roll of the Rolling Stones. Civil law doesn’t have can openers like CUE or the BOTD. How about the Presumption of Soundness at Entry to service?

Try this on for size:

VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Here’s one of my favorite phrases in my briefs:

Because appellant is proceeding pro se with an Agent, he is entitled to both a sympathetic reading of his informal brief and a liberal construction of his arguments. See Calma v. Brown, 9 Vet.App. 11,15 (1996); De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). Although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are “not generally trained or licensed in the practice of law.” Cook v. Brown, 68 F.3d 447, 451 (Fed.Cir.1995).

Cool beans, huh? The reason for this article is based on the above. My oldest client, in terms of how long I have been representing Vets, is Roberto. He, like me, came down with Hepatitis C and it dang near killed him. By the time they came out with the cure, it was too late. Roberto now has liver cancer and his days are numbered. After I won it, I promised him I would fight this to the bitter end and beyond for his wife-if he augers in before I win. And here we are nine years later. He’s hanging on by a thread with some of those “just a few more years” drugs like Nivolumab™. I hear they make you horribly nauseous so Roberto’s quite the Eleven Bravo Twenty on this for continuing to fog a mirror. He inspires me.

I made several passes (3) with different legal theories of CUE all the way to the Board for Roberto. Each was shot down. But by acting and sounding like an attorney, it caused all those VLJs to treat me like one. My bad. The legal standard of review was ignored and the denials were vicious. Even worse, I didn’t wave the ‘Comer v. Peake’ flag and demand that we get a sympathetic reading.

So, wanting the best for Roberto, off we went to the Court. Here’s Ken’s masterful offense below-some of which I’d never even considered. Check out the defective notice argument. The reason they wouldn’t “see” my argument was a gross failure to treat me (and Roberto) as a pair of village idiots who shouldn’t be allowed to play with matches.

Roberto’s Last Stand

Granted, Denis the Menace and his OGC cronies did a masterful job of  a smoke screen before the Court, but they didn’t even address the prong of CUE I was arguing-i.e., the statutory and regulatory provisions extant at the time were incorrectly applied. Roberto went in to the hospital on September 15, 1970-sixty two days after he separated on July 15, 1970. VA got his claim on September 18, at the earliest. As probably anyone in VA law knows, the date of claim if you come down with something in the first year after you part company and file is day following separation- or July 16, 1970- assuming, arguendo, it isn’t the clap. It’s also enshrined on many a VSO’s wall as the Golden One-Year Rule. His request for medical assistance generated a claims file number and an intent-to-file (ITF) claim. He completed his ITF claim exactly 365 days to the day later-well within the suspense date of September 26 (date of discharge from the San Juan VAMC hospital)by timely filing his 526. This isn’t rocket science unless you work at the BVA.

Roberto’s Last Stand II-the reply brief

As luck would have it, we drew Judge Greenberg. For any of you who do this for a living know, we got the cat’s pajamas. Judge Greenberg ‘s feelings about Veterans are stronger than most folks’ love for their dogs. Here’s his take on this.

Judge Greenberg’s Edict

Roberto’s case just popped back up in Caseflow Friday morning so it’s time to fetch a shovel and begin sharpening my punji sticks again. This time, the village idiots at the Board will have no excuse for their ignorance if they can’t construe what it is I’m alleging. Actually, any argument from me would only echo what Ken and Judge Greenberg already said.

Here, justice was almost thwarted by the Secretary’s attempts to purposefully misconstrue Roberto’s claim any ol’ whichway for service connection in 1970. I get it. That’s a shit ton of shekels. In fact, I’m guessing it probably wouldn’t even fit in ol’ Monty’s famous Cookie Jar behind Door Number 3. That was reason enough to try to pull this off. Which brings back one of my favorite cites to law…

Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome. See Foman v. Davis, 371 U.S. 178, 181-82 (1962).

Gotta love them cites. Let the Courts do your talkin’ for you.