CAVC– Bouton v. Peake (2008) Re: CUE

Posted on September 27, 2011 by asknod

    Here’s a decision that illustrates how CUE works. Keeping in mind that there are three ingredients needed to produce CUE, and that a manifestly different outcome would have ensued, read about Mr. John P. Bouton’s travails with VA Secretary James B. Peake.

http://www.uscourts.cavc.gov/documents/bouton-1494.pdf 

     Isn’t it entertaining how the Judges are polite as pie ,but manage to make the BVA judge look like a complete boob and the RO “ratings expert” appear about as intelligent as a sunflower?  This is a primary example of how flawed the lower echelons of VA justice are (or can be) and why it is imperative to see your claim through to the end. Oftimes, justice is delayed, but not denied in this system. If your facts and the record support it, you will win. Assuming, of course, there are no intercurrent causes that precipitated the injury/disease.

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CAVC–Fagre v.Peake (2008)–Appeal each and every claim

Posted on September 27, 2011 by asknod

 Here’s a wonderful type of decision that the Veteran will only see cited once or twice in a lifetime. Larry D. Fagre has appealed an adverse decision of the BVA. He asks for a “reconsideration” of his case and this is often done by the BVA in a panel format as opposed to a single judge decision. This also has to occur and be mailed to the proper address in D.C. within 120 sunrises and sunsets. Not one day more unless you can prove you were comatose in an ICU somewhere. The VA term for a Vet requesting an extension is referred to as equitable tolling. 

     What Mr. Fagre does not know is that the VA is preparing to pull a really neat hat trick on him. They interpret the rules and regulations a lot differently from you and me. My wife and the owner of this website will probably put a price on my head, but I go to sleep every night thankful that the VASEC isn’t a woman. Actually, that’s politically incorrect and a cheap shot. I apologize in advance. This time the VA Secretary chose to interpret the “reconsideration” clause as meaning you had to enumerate each and every item you were denied for that you wished to have the BVA Panel “reconsider”.  BVA is taking their lead from an old rule or decision (I’m too lazy to go look for it- trust me) where precedence dictated if you appealed an RO decision, you had to enumerate each issue you wished to appeal. And, God forbid, if they failed to rule on it and you didn’t catch it and file an NOD contesting it, they would claim it was dead because you didn’t complain. So, if the Vet is not savvy, legally speaking, then tough luck. You shoulda read the fine print, chump. 

     What Justices Kasold, Hagel, and Lance pronounce here  is a repudiation of the VA’s inherent propensity to promise the Vet they will make sure he is amply rewarded for his service. With a few prerequisites, qualifiers, and “except”s of course.  So our law school lesson today is list everything, every time, on every form and then VA cannot say “Yeah, well your Honor, we’re trying to give the poor Vet everything he’s entitled to, but he didn’t ASK for it specifically. The NOA (or NOD, Form 9, Answer to an SOC or SSOC) was SILENT for that subject so we interpreted that to mean he didn’t wish to appeal it. Therefore that issue is final. However, because we’re such swell guys and feel sorry for the chump, ahem, Veteran, we’ll reopen his case and take another look. Of course the effective date for financial compensation will be 2010, not 2001 when the Veteran failed to appeal the earlier decision.” 

     Get used to it. Be a Boy Scout and be prepared for this kind of treatment.  VA screws up 60% of what it does the first time and when the Court catches it, they sometimes make VA go back in time and “retrospectively” medically evaluate a Vet. Kind of like a CSI cold case reconstruction. But that is another fairy tale and not for discussion today. 

    Ladies and Gentlemen, please allow me to introduce you to poor Mr. Fagre, a true David against the behemoth VA Goliath. What you are about to read is in the nature of an ORDER from the CAVC, not a simple ruling, remand or vacatur.  In exalted legalspeak, this is akin to “Do not pass Go!. Do not collect $200. Comply with this or we’ll huff, and we’ll puff, and we’ll blow your house down.” 

http://www.uscourts.cavc.gov/documents/Fagre_07-1000_Panel_Final_.pdf

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CAVC–Barton v. Shinseki (2010)– SJD on Hep.

Posted on September 27, 2011 by asknod

This is one of those interesting reads that we love to post for you. In spite of the fact that it is a single judge ruling and has no precedence, it still is refreshing to see the judge lambaste the VLJ and the RO for their inherent stupidity regarding their adjudication skills.

Another thing the reader will find refreshing is the final realization by someone in authority that there were no tests available in 1972 to ascertain if one had Hep C. A CAVC judge has to explain this to a “ratings expert” trained in this art form. Additionally the judge has to finally ask the burning question we’ve all been waiting years to have answered. To wit, if a Vet smokes some left handed tobacco, or, perhaps has a “history” of a love affair with Jack Danials, that he somehow is more “at risk” of contracting HCV. The judge goes so far as to get in the examiner’s face and ask: “Where does it say that a Vet with a “racy lifestyle” that includes a few indiscretions without a raincoat on, is automatically at risk for HCV and therefore it is not service-connected?”.  This line of reasoning is circular. Remember, VA can say on Monday that sexual promiscuity has a very low risk percentage of transmitting HCV when you claim that as a risk factor, but on Tuesday the Vet probably contracted it from a wild, unprotected sexual lifestyle as evidenced by his venereal warts. And naturally, this all occurred after his time in service. How? Why it’s elementary VA logic, my dear reader. There was no report of venereal warts in his service medical records ergo he must have incurred them after service.

The Vet does have his work cut out for him. He is going to have to get off his duff and go farther afield to gather better internet articles in defense of his claim. The judge states as much, too. A decision on this will be interesting. I’m almost positive the VA Secretary will send this out for an IMO from the very best deniers at QTC. It will require the semantic policing by an expert English scholar as well as to get all the “not”s in the right places. When it is returned to the Court, the Vet very well may lose. If he does, I pray he asks for reconsideration by a panel and it breaks new legal ground.  Mr. Wayne R. Barton may become our new poster child if he pulls this one off. We certainly wish him all the luck in the world. He’s going to need it.

http://search.uscourts.cavc.gov/isysquery/372478c4-9864-41d5-b3a8-03021ef6e2a6/1/doc/

Ruh-oh, Rorge. Trouble in paradise. Pretty nice piece of work though, huh? Now, why can’t we get this cutting edge analysis at the BVA or RO level? Why does it always have to get to the Supreme frigging Court before someone acknowledges that the Emperor is naked and has been had by the tailor? Hello? McFly??

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CAVC–Mattern v. West (1999)–Holy Grail of Hepatitis Precedent

Posted on September 27, 2011 by asknod

This decision, decided in 1999, is something we have been searching for at AskNOD for quite some time. To wit, a decision on Hepatitis (and by extension, Hepatocellular Carcinoma) that set precedent. As you are aware, to set a precedent (or to sit a president for all of you from Chicago) requires a panel or en banc decision of the CAVC. A panel decision consists of 3 judges. An en banc decision is one decided by the whole Court- i.e. all seven judges.

While this decision is 11 years old, it in no way is out of date for judicial purposes. The meat of this decision is that the mere presence of the Vet in Southeast Asia was conducive to his contracting liver cancer (from Hepatitis). He had no seminal moment of infection, no medical records pointing to hospitalization, and nothing untoward that would set off alarms with his doctors. He simply fell ill about 40 or so years after service and subsequently died.  His wife filed for DIC and appealed all the way to the Court. She also did a very credible job of backing up her claims not only with nexus opinions from the Vet’s treating physicians, but with coherent, well posited theses on the prevalence of Hepatitis infections and HCC in indigenous SEA populations. This avenue of attack has never been used by Vets since except in unsubstantiated claims to that effect. This lady did her homework or else her attorney did. I suspect the former.

In any case, I feel it behooves the reader or any Vet considering filing to investigate this disease vector. Obviously, if the Court is willing to recognize it as a viable risk factor, then Vets should be utilizing it in their defense and citing the decision as established precedent. Any evidence you can submit in favor of your claim has to be rebutted or addressed by the RO and the BVA. If they consider this information and still deny you, you have even more ammunition with which to build your case. VA is not permitted to ignore CAVC precedent-setting cases such as this. Of further note, remember that the CAVC is NOT a division of the VA. They are a completely separate entity and often at odds with the VA Secretary and his minions. Witness this case and the ensuing favorable decision:

http://search.uscourts.cavc.gov/isysquery/3574ef27-1230-470c-bd11-19ff6e2dffbb/8/doc/

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CAVC & Fed. Cir.–Roberts v. Shinseki (2009) –Dumb and Greedy

Posted on September 27, 2011 by asknod

Imagine you’re very poor or horribly lazy (or both). Then spread a lot of time on your hands very liberally. What do you come up with? A Vet with a half-baked tale of PTSD. Meet Mr. Keith A. Roberts, a Veteran with entirely too much time on his hands and a typewriter.  This gentleman concocted a story with just enough truth in it to give it wings (no pun intended). All would have been well and he would have lived happily ever after, but he had a serious character flaw-he was also greedy.

Mr. Roberts filed for a personality disorder that metamorphosed into a PTSD claim in 1993. By 1997 he had been pursuing this for 6 years. Finally, in 1998, his claim was approved as an acquaintance (whom he claimed as a best friend) had been killed by a collapsing aircraft-thus artificially validating his stressor. The RO awarded 50% effective the date of his claim in 93. He appealed and they gave him 100% with the same date of claim.

Mr. Roberts must have had some pressing financial needs because he came back again in 2002, hat in hand, asking for an earlier date for his PTSD prior to his claim in Dec. 1993. Believe it or not, the RO took the bait and they gave him July 1992 as an effective date. Most prudent Vets (honest or dishonest) might have walked away satisfied that they weren’t going to milk this cow any further. Not so, Mr. Roberts. He appealed this date and claimed several more mental problems secondary to the PTSD and an earlier effective date again and was denied.

Mr. Roberts decided to throw Napalm on the fire and contacted the VA Office of the Inspector General (VAOIG). He complained that the RO had mishandled his claim. After thoroughly examining the circumstances, the IG determined that something was not as it seemed. They decided to spend some money and find all the witnesses to this “stressor” that Mr. Roberts claimed. You have to wonder what was going through this bubblehead’s brain. More money. Yahoo! This is way too easy. Too bad I didn’t start this sucker up back in 1970. These guys at VA are way naive.

In 2004 the jig was up. The IG (at great expense) interviewed everyone associated with the accident and nobody had seen Mr. Roberts at the scene, let alone witness him direct the rescue operation.  Apparently Mr. Roberts was telling a fib or simply “disremembered” the facts. To his credit, he didn’t claim he had been awarded the Medal of Honor.

Finally, in August, 2005, they had a Texas Necktie Party and strung him up. They took away his rating for PTSD and the house of cards collapsed. His claims for VA benefits for tobacco use, alcohol abuse, a digestive disorder, erectile dysfunction, an eye disorder, obesity, chronic fatigue syndrome, a personality disorder, a cardiovascular disorder, pulmonary disorder, and arthritis of the right knee which were secondary to the PTSD, evaporated with his lost rating. Well, come on. If he was lying about the PTSD, chances are he was lying about these other ailments, too. And besides, if the other claims were caused by PTSD and now he didn’t have it (and never did), then the other claims are dead. Mr. Roberts filed this appeal to the CAVC and felt he’d get a better shake from them. NOT. Read on and watch a master conniver at work. One has to shake his head over this. The guy had it made in the shade, but couldn’t leave well enough alone.

http://www.uscourts.cavc.gov/documents/Roberts_05-2425_published_opinion_4-23-2010.pdf

Incidentally, Mr. Roberts has several different theories on why he should be allowed to keep the shekels ($320,000.00). The Court disabuses Mr. Roberts of these notions. In addition, our grateful Nation now seeks return of those very same ill-gotten shekels.

So, kids, what can we learn from this show and tell? Steal from your friends or relatives. Never, ever steal from the government. And if you do, don’t keep coming back for more.

A sequel to this tale is in order. Mr. Roberts decided to pursue this up to the Federal Circuit Court, obviously not satisfied with what the Court had to say. He lost and is now a guest on an extended staycation at a Federal prison for a few years. When he gets out, he can start repaying Uncle Sam some of those samoles he absconded with. I’m sure they went after his assets and plucked him clean.

http://www.veteranslawlibrary.com/files/Fed_Cir_Cases/2011/Roberts_10-7104.pdf

Sometimes it just doesn’t pay to get out of bed to steal anything.

As a Post Script to this, I have added a new update that supercedes it. Please make sure you read it:

https://asknod.wordpress.com/2012/01/18/roberts-v-shinseki-a-miscarriage-of-justice/

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CAVC–Young v. Shinseki –Hold the phone- we’re not finished here.

Posted on September 27, 2011 by asknod

Last year while I was in the VA hospital lying around  watching myself die (for a whole year), I missed out on many decisions handed down by the Court. This particular one is very interesting for a number of reasons. In Vigil v. Peake (2008) we introduced you to the concept of 38 CFR § 3.156(c) as a vehicle to obtain review of prior unappealed decisions. As we mentioned, the only other path was via a CUE filing which is very arduous and fraught with legal requirements.

In Young v. Shinseki, another facet has come to light. It’s always been there, but rarely cited. Assume you filed a claim in the past and it was denied. Let’s say you filed an NOD and also submitted new and material evidence that rebutted the denial and would prove your case. If VA failed to make a determination on the new evidence (either for or against) as contemplated in 38 CFR §  3.156(b), then your claim has never been  fully adjudicated and still remains open. The only codicil to this is that the new evidence would have to prove your claim for SC.

We here at ASKNOD admire the jurisprudence exhibited by the CAVC. They continue to introduce the camel’s nose under the tent. The VA Secretary, in frustration, races from one decision to another trying to evict the camel. Between, Vigil,Grovesand Young, our esteemed Judges at the Court have provided us with precedence to help win our cases. We always enjoy reading these types of decisions as they so rarely come down in the Vet’s favor.

http://www.uscourts.cavc.gov/documents/Young-2310.pdf

One has to love this paragraph:

Generally, an NOD must be filed within one year from the date of the underlying ROdecision, and if no NOD is filed within the one-year appeal period following the RO decision, the decision will become final. See 38 U.S.C. §§ 7105(b)(1), (c). However, 38 C.F.R. § 3.156 provides a potential exception to this general rule. Pursuant to § 3.156(b), VA must consider any new and material evidence received during the one-year appeal period following an RO decision “as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2008). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. See Muehl v. West, 13 Vet.App. 159, 161-62 (1999).

This, however, is the clincher (emphasis is ours)

Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings.

This is also another example of the Court curbing its collective tongue and refraining from telling the VA Secretary that he must have been raised by wolves if he continues to come up with these arcane legal arguments that don’t stand up in Court. Ah. How sweet the sound of justice for Vets. Onwards through the fog, gentlemen. Vote for Oat Willie.

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CAVC– Macklem v. Shinseki– Leroy Macklem, Come on down!

Posted on September 27, 2011 by asknod

downloadImagine having a horrible legal argument, losing it before the CAVC and still winning all the marbles. I mean ALL the marbles.That’s what we have here. Mr. Leroy Macklem doesn’t have a legal leg to stand on in his CUE claim and his attorney knows he’s holding a three-day old fish. Nevertheless, because the VA is wont to cheat, misrepresent and generally try to screw you out of what is your due, they lose this one and the Vet gets what’s behind Door #3. Which happens to be Monty’s cookie jar this time and its full of VA comp. money for Leroy.

This tale involves a particularly poor piece of law (the Extraordinary Awards Program or EAP)the VA created one day out of whole cloth. Basically they woke up one Monday and decided any Vet who got lucky on an old claim that entailed mass quantities of cash needed to have a secret review to see if they (VA) could somehow overrule or shrink the size of the judgment.  Fellow Veterans can understand this. Judges and other worthy individuals who make 3 times as much as us lowly Vets on compensation deserve bonuses for saving the government so much money. In this case, in their haste to bushwhack the Vet, they ran afoul of the CAVC and end up having to pay Leroy all the way back to 1950. You read that right. 1950. Yep. That’s 60 years of back payments. You see, some chucklehead “rating expert” accidentally mailed Leroy a “preliminary” judgment rating without running it by his boss.  The CAVC says they have to honor their screwup.  We at AskNod say “Crack open the Dom Perignon, Leroy. You didn’t earn it but boy howdy that’s beside the point. You won.”

Leroy served for nine months as a groundpounder and did the Sicily Invasion/Occupation during WW 2. He had an injury to his hip from Christmas Eve several years earlier that compromised his abilities as an infantryman and this caused a premature end to his promising military career. He freely admitted it was not in the Line of Duty and all his military records stated as much. Nevertheless, he was awarded 20% for arthritis secondary to the bum hip. Leroy had surgery afterwards in 1944 and VA upped his rating to 70% in 1946, recharacterizing his injury as osteochondritis. Regardless of what they diagnosed, it was considered secondary to the 1941 NSC injury but increased in severity during service. As such, it was a “clean” rating devoid of fraud or misrepresentation.

In 1949, VA began sniffing around and looking for an out. They called him in for a C&P to determine if it had experienced Immaculate Remission as most VA-compensated injuries do. Deciding that a great injustice had been done to both Leroy and the government,  the VA opted to strip away the rating. This they did in March of 1950.

After reviewing the medical evidence from 1944 to 1949, the rating board concluded that there was “no evidence during service of any abrupt or sudden patholo[gic] developments or trauma which could be considered a positive factor [of] aggravation of the condition which was incurred prior to service”.
 

We can assume Basic Training in 1943 was a tea and crumpets affair with real creme being at a premium due to the exigencies of war. Occupying Sicily was no more than being put ashore and having to haggle with Sicilians over the exorbitant cost of  tomatoes and pasta.  Since VA doesn’t get out much and investigate what we do in the field, certain misconceptions are bound to crop up. Leroy was simply another casualty of the VA’s interpretation of what the definition of “aggravation” consisted of. Like most of us, Mr. Macklem neglected to pursue an appeal up to a higher tribunal-not that it would have resulted in any changes. Back in those days, a denial was final when the ink dried unless you were a Senator’s son.

Fast forward to 2006 and Leroy’s filing of  a CUE stating that the 1950 decision was arbitrary and a difference of opinion which did not rise to the level of a valid reason for a reduction-let alone a complete revision and retraction. Detroit’s finest quickly denied yet again and the NOD was hung by the chimney with care in hopes that the BVA would soon be there. However, the Detroit dolts took another gander at it and decided he was right.

What to Leroy’s wondering eyes appeared shortly thereafter but a mea culpa complete with a detailed proposal including all his back comp. This beat the pants off a little man in a red suit with eight tiny reindeer in Leroy’s view.

The appellant thereafter received an undated letter from the Detroit RO indicating that it had “made a decision on your appeal received on January 20, 2007.”  The letter included a schedule detailing the past-due payments to which the appellant would be entitled. R. This undated letter apparently referred to a decision review officer (DRO) decision, dated June 1, 2007, indicating that the appellant’s “[b]enefits sought on appeal are granted . . . [and] reinstated April 1, 1950.”  That decision states that “the severance of service [connection] is held to be a clear and unmistakable error.”   Macklem v. Shinseki 2010

Leroy was smokin’  Cubans up at the Big House for all of about a month before they pulled the plug. In August, they changed their tune and said the original 1950 decision was correct-sorry Leroy, we made a mistake. What Leroy didn’t know was that they had sent this back to DC for a secret cabal to formulate a way to avoid paying out. Leroy dutifully appealed.

Bad, bad Leroy M. was on firm legal ground. He pointed out he had a winner’s ticket in his hand. You can’t change the Lottery rules after you win. VA disagreed and said “Yo. You got justice. We had a BVA judge review it and he said we’re right. You lost. You had a DRO review, a DRO hearing and a BVA decision. What’dya want? Egg in your beer?”

Leroy didn’t have a legal fire hydrant to piss on. You cannot go back and relitigate what happened in 1950. All you can do is look for some egregious error of which there was none. Any CUE argument based on an interpretation of the facts is doomed. What is forbidden is screwing a Vet out of a CUE revision by using legal means that have already been determined to be illegal (the EAP).

The operative issue in this appeal is whether VA’s reliance on the extraordinary award procedure (EAP), which has now been invalidated by the Federal Circuit, renders the August 2007 SOC void and, if so, how that affects the status of the appellant’s claim. To be clear, VA committed two errors during its processing of the appellant’s claim. First, it mistakenly sent him a proposed decision. Second, in attempting to correct the first error, VA used the EAP, which has now been declared invalid. Although the first error did not prejudice the appellant, the Court concludes that the second error is dispositive in that VA’s use of the now-invalid EAP renders all VA action taken thereafter void.

In a nutshell, but for a premature letter, Leroy would never be in high cotton. The VA DRO that pulled this bonehead maneuvre was probably promoted and is now head of the Fort Harrison, Montana VARO.

Postscript:

I’m gonna go out on a limb and predict ol’ Leroy is going to live happily ever after with what little time he has left. There is a sequel to this as the VA Secretary refused to accept defeat. However, since nothing has been forthcoming from the BVA following the Fed. Circus remand, I strongly suspect Leroy is counting his shekels as we speak.

Posted in CUE, Important CAVC/COVA Ruling | Tagged , , | 2 Comments

CAVC- -Breedlove v. Shinseki– Assuming the claim of deceased

Posted on September 27, 2011 by asknod
Every once in a while Congress enacts a law that affects Veterans. The laws are not always helpful but this one is priceless.  38 U.S.C. 5121A is a law enacted in 2008 that allows a spouse or other legitimate heir to take over a Vet’s claim in the event of his death. Prior to this, if a Vet passed away while he had a claim in progress or an appeal in the works, his claim died with him and his spouse had to start all over again. This was pointless and finally our congressmen and Senators passed  legislation that streamlines this process. Henceforth, a spouse or eligible dependant who seeks DIC or accrued benefits can assume the claim and be recognized by the VA as being legitimate without having to start over at square one.As usual, the CAVC has to get involved, analyze the legislation and decide whether it is legit. They have a right to do this and in this case, they find themselves in a pissing match with the VASEC. He is not very happy with the rule and seeks to limit the scope of it. Sorry, General. Not going to happen. The Gods on Mt. Olympus have spoken and you lose on this one.

http://www.uscourts.cavc.gov/documents/Breedlove_08-3059_published_order_8-10-2010.pdf
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CAVC–Hamer v. Shinseki–For all the TDIU

Posted on September 27, 2011 by asknod

imagesThis is an interesting decision concerning TDIU that just came out on the 27th of July. It concerns a certain Mr. Hamer who had disabilities that rendered him virtually totally disabled in 1978, just 4 short years after his USAF service. He remained on TDIU until 1985, when either he admitted to, or VA discovered he’d been working. Consequently his TDIU was unprotected and terminated. He didn’t appeal, which, in essence, was an admission that he accepted the VA’s decision.

He returned in 2000 and requested TDIU again – effective on the date of his termination in 1985 based on Clear and Unmistakable Error (CUE) in that his rating was protected after five  or more years (from 1978 to 1985). Obviously Mr. Hamer had been dabbling in Veteran’s law in his spare time or one of his buddies down at the VFW bar was. The Gentle Reader can probably see where this is heading by now. As Mr. Hamer’s vocabulary is Latin challenged, he is (unbeknownst to him) heading for what he probably feels is a horrible miscarriage of Justice. The good news is he can appeal this decision to the Federal Circuit court. Pretend you’re a sheep and repeat after me—BA-A-A-AD idea.

If the RO denial in 2000 was merely interesting, 2007 is where it really became humorous. VA knew it screwed up back in 1985.  They sent out the private eyes and reviewed his Social Security earnings, medical records etc. Mr. Hamer was under the microscope now. They discovered he worked from 1990 to 2000 without any health issues. So, in the spirit of delay and deny, the RO 86ed the claim and booted it up to the BVA.  The VLJ tossed out the denial and agreed with him that, lo and behold, there was CUE in the November 1985 decision and promptly granted him TDIU from November 1985 up to when he started the new job in 1990.  However, they then denied him any TDIU during the decade he worked, from 1990 to 2000. Then they granted him TDIU again from 2000 to the present (2010). This was the cheapest way out for them and they artfully dodged the bullet. In essence, they threw out the old decision that he didn’t appeal in 1985, then decided to turn it into a staged rating (aka a Fenderson rating) with different ratings for different periods of time from 1985 to 2010. They could legally do this because, by granting the CUE, they discarded the original decision and substituted a brand new decision. Staged ratings, as a matter of law, are only permitted on original claims for benefits. The VA lawyers must have all been patting each other on the back and saying it was the most brilliant stroke of jurisprudence since King Solomon’s baby dilemma. I’m sure several, including the VLJ, got a nice bonus that year.

But no, this didn’t sit well with Mr. Hamer. With some poor legal assistance (from the bar?), he found himself standing in front of the CAVC with a bogus argument for why he was screwed out of all those benefits during that decade in the 90s. It’s an interesting argument, but you can see the VA Secretary’s fingerprints all over this one.  He tried to figure out how to make the mistake as inexpensive as possible. This is what caused them to investigate him so thoroughly, and investigate him they did. He quite obviously was defending himself pro se right up to the CAVC and then handed the reins over to some law dog. The VASEC made the VA judgment proof on this one when he instructed the BVA to grant CUE. They rightly concluded this case was headed up to the Court.

The CAVC is the Veteran’s best friend when it comes to getting a fair shake. They are wholly independent of the VA and quite frequently get into knock down, drag out fights with the VASEC. Nevertheless, if your legal theory is as solid as a screen door in a submarine, be prepared for a disappointing ending. The VASEC saw the writing on the wall and put the lipstick on the pig. All the CAVC could do was to agree that he had done no wrong, which they did.

Herewith, meet Mr. Steven W. Hamer and his erstwhile law dog and loyal sidekick, Kenneth M. Carpenter, Esq. In addition, please allow me to also introduce esteemed Judges Hagel, Moorman and Lance of the Court of Appeals for Veterans Claims (CAVC).

http://www.uscourts.cavc.gov/documents/Hamer_07-3181_published_opinion_July_27.pdf

This is part 1 of a three (at the moment) part judicial adventure. Here’s chapter 2 at the Fed. Circus.

https://asknod.wordpress.com/2011/11/08/fed-cir-hamer-v-shinseki-hes-baaack/

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CAVC–Vigil v.Peake(2008) re:38 CFR § 3.156(c)

Posted on September 27, 2011 by asknod

 vetcourtappealspromoMost Vets have been told that they cannot reopen or revisit old claims that were unappealed. This is true-unless the VARO committed some grave procedural error and did not follow the letter of the law. Additionally, if there were files or records that were available to the VA that were never looked at while making the decision, that too, would be grounds for CUE(clear and unmistakable error). Winning a CUE claim is really difficult as there are many rules and regulations affecting it that are too numerous to mention here. If anyone is terribly interested in it, I will send you to the site that informs you of what is required. There are also several good CAVC decisions too that are illuminating to see how the Court actually rules on these cases.

The purpose of this message, however,  is a different avenue for attacking the finality of a prior, unappealed decision at the VARO or BVA level. The controlling regulation is 38 C.F.R. § 3.156(c). For clarification I will print it here:

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. [recently overturned]

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. [Fenderson staged rating]

See also 38 U.S.C. 5110

Vigil v. Peake was the first instance of a Vet claiming this defense at the Court. He was seeking an earlier effective date for his PTSD but the decision affects any claim regardless of the injury/disease. If you, the Vet, find any service medical records (SMRs) or old TDY orders that were never used in denying your claim, then you can use these to reopen your claim. Remember that they have to be “relevant service department records”. Old photos of you and your buddies standing over a pile of dead zipperheads with a jungle in the background do not constitute useful evidence for your claim. A lot of times, records don’t get filed in your folder that you (and VA) get from the NPRS Center in St. Louis. If you kept any old records of your TDYs or PCS movements, then they are considered official records. I have discovered that NO TDY records were ever included in anyone’s files. Medical records get scattered all over the place and never make it from Battalion Aid Stations back to your SMRs. This is another reason to request all your SMRs in addition to all military records when you file a SF 180 for your records. When I asked for my SMRs in 2007, I was informed that the only set had been sent to the VARO where I filed a claim in 89. Luckily, I got them back when I asked for an unredacted copy of my C-file. Winning your claim with VA is often a game of “Prove it”. VA will contend (often without looking) that there is no evidence to back up a claim you are making. Having your records is half the battle. Having records that aren’t on file in your mil/med. folders may mean the difference of winning or losing or getting your claim paid back to when you first filed it. Most Vets are not too savvy on how this appeals process works and neither are the idiots who you go to for help. VSOs constantly fail to appeal things for you until its too late. I see it happen quite frequently.

Here is a link to view the Vigil Decision:

http://www.uscourts.cavc.gov/documents/Vigil_05-3246.pdf

Posted in Important CAVC/COVA Ruling | Tagged , , | 2 Comments