Veterans Claims Help

BVA rulings cannot be cited for precedent. Neither can single judge dispositions of cases at the CAVC level. Only panel or en banc cases are used for precedent-setting decisions. I’m sure you or the law dog representing you are aware of this. BVA is the only AOJ who can hear this case. The CAVC does not decide CUE cases-only that they were fairly adjudicated. As you know, CUE implies an outcome-based decision. This process depends heavily on the facts submitted, facts available to the adjudicator at the time of the decision and correct application of the law as it was written at the time of the decision. From what you have written, it would appear that the BVA has substituted their medical opinion for that of a doctor which is a clear and unmistakable error on their part. They definitely should have sent it out for an IMO or remanded it to the VARO for VA to evaluate your condition.

One item you haven’t mentioned is Layno v. Brown (1994). This little precedent-setting gem is very germane to your argument. You are allowed to testify about your medical condition insofar as what comes to you via your 5 senses. You were there. VA is required to rebut this testimony if they wish to prevent it from being given any prejudicial weight in your favor. One of the VA’s favorite methods of denial is that you have not proved your case, that there is no medical record of such an occurrence, or that you cannot corroborate your statements.

Here is the controlling statute in 38 U.S.C. Title 38 USC 5104:

(a) In the case of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant’s representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision. (b) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

What might work in your favor is a failure on VA’s part to list all the evidence considered. This is a CUE error more times than not. Go to the VA.gov website and click on BVA decisions and search the CUE decisions up to your case being heard originally. You cannot cite CAVC/ Fed. Cir. precedents set after your BVA ruling decision. You only get one shot at the apple unless the BVA dismisses your claim without prejudice. CUE is one of the hardest cases to prove so you have to be on your toes and at the top of your game.

This is from Colvin v. Derwinski (1991):

The BVA decision does not cite medical evidence of record in this case or recognized medical treatises to support these medical conclusions. The BVA, in finding that the new evidence
did not provide a new factual basis for a claim was, in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions. BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing
recognized medical treatises in its decisions that clearly support its ultimate conclusions. See 38 U.S.C. § 4009 (1988); Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 4 (Nov. 8, 1990). This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before this Court.

Another point of interest, although it doesn’t necessarily involve CUE, is that “new and material evidence” as described in 38 CFR 3.156(a) can be a new nexus from a doctor. This was also incorporated into the Colvin decision. This is often overlooked in VA jurisprudence when they refuse to reopen a claim on the bogus grounds that you haven’t brought anything “new or material” to the table. Make sure your law dog reads Colvin from front to back as well as Gilbert v. Derwinski. Just one Vet’s opinion, mind you. I’m not a lawyer- I just read a lot. Good luck, sir.

Allegations that previous adjudications had improperly
weighed and evaluated the evidence can never rise to the
stringent definition of clear and unmistakable error. Fugo,
6 Vet. App. at 44. Additionally, VA’s failure in the duty to
assist cannot constitute clear and unmistakable error. Cook
v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). The
alleged error must be of fact or of law that, when called to
the attention of later reviewers, compels the conclusion, to
which reasonable minds could not differ, that the result
would have been manifestly different but for the error.
Thus, even where the premise of error is accepted, if it is
not absolutely clear that a different result would have
ensued, the error complained of cannot be clear and
unmistakable error.

If a claimant wishes to reasonably raise a claim of clear and
unmistakable error, there must be some degree of specificity
as to what the alleged error is and, unless it is the kind of
error that, if true, would be clear and unmistakable error on
its face, persuasive reasons must be given as to why one
would be compelled to reach the conclusion, to which
reasonable minds could not differ, that the result would have
been manifestly different but for the alleged error. Fugo, 6
Vet. App. at 43-44. If the error alleged is not the type of
error that, if true, would be clear and unmistakable error on
its face; if the claimant is asserting only disagreement with
how the RO evaluated the facts before it; or if the veteran
has not expressed with specificity how the application of
cited laws and regulations would dictate a “manifestly
different” result, the claim must be denied or the appeal to
the Board terminated because of the absence of legal merit or
the lack of entitlement under the law. Luallen, 8 Vet. App.
at 95.

Douglas was decided this year so you cannot cite it for any precedents in a CUE case. All your CUE cites must be prior to the 2004 date I saw mentioned in one of your early posts. You cannot, by VA law, ask for an earlier effective date for your claim in a CUE case. When you go to the CAVC site:

http://www.uscourts.cavc.gov/

Look to the left,rest the pointer on opinions and click on it. This gives you access to any panel CAVC decision. Two categories below that you’ll find “Decisions and Opinions”. These are single judge rulings that are not precedent setting but give you a good feel for how the CAVC thinks and, again, cites precedent that you can use. Just for poops and grins, type in “Clear and Unmistakable Error 2009” w/o the quotes (of course). It will spew out every CUE case decided by single judge disposition this year. Knowledge is power, RMG. I didn’t even know how to turn this computer on 2 years ago. If the MOPH hadn’t told me (erroneously)that tattoos were not on the list of presumptive causes for Hep C I never would have questioned the butthead”s wisdom. I knew differently and listened to his BS for a week or so. He told me my chances of winning Hep/ AO claims were worse than an ice cube’s chances in hell. I retrieved my POA and started learning all about Chapter 38, Code of Federal Regulations. Next, I tried digesting 38 U.S.C. You really only need to master the former of the two, and Part 3 and 4 are the only ones pertinent to claims. There is a whole part devoted to CUE (19 or 20) which will interest you :

http://www.law.cornell.edu/cfr/cfr.php?title=38&type=chapter&value=1

Remember, if you lose you really have no one to blame but yourself. Trusting anyone to carry the water for you is a fool’s errand. Lawyers have access to all the things I have shown you here today. So do VSOs. They are LAZY. Witness the DAV service officer you mentioned advocating throwing in the towel rather than appeal! Or my SO telling me I was going to lose before it had even been adjudicated. This kind of legal advice I can do without. I suspect you can too. If you have a viable case I’ve noticed you can browbeat these bozos down. It’s the death of a thousand paper cuts. When your C-file starts to look like the first printing of Gutenberg’s bible and weighs as much, you start to get results. Of course that’s just one Vet’s opinion. Having a viable presumptive cause is the preliminary ticket to eventual success (see the VA risk form to the left).

Thanks.