Arneson V. Shinsek

[carlie]

I wonder if this memorandum can be applied to BVA board (panel)

decisions that were adjudicated in the past ?

Any takers ?

From vetlawyers / Bergmann & Moore

http://www.vetlawyers.com/newsletters/may2011Newsletter.pdf

Page 5

Arneson v. Shinsek

" CAVC HOLDS THAT CLAIMANTS HAVE A

RIGHT TO A PERSONAL HEARING BEFORE

ALL BOARD MEMBERS WHO ULTIMATELY

DECIDE THE APPEAL"

" This decision is about fairness,” said Glenn Bergmann, Mr.

Arneson’s attorney. “We knew that once the judges

looked at the process, they would make the right decision.

We are happy to have played a role in it.” As a result of this

decision, the Chairman of the Board of Veterans Appeals

issued a memorandum on May 12 2011."

[cooter]

The Court thus held that “the pertinent statutes and

implementing regulation regarding Board hearings entitle a

claimant to an opportunity for a hearing before all the Board

members who will ultimately decide his appeal”

I guess they figure to show a little heart before they deny it for the last time! ha

Coot

[broncovet]

Arneson vs Shinseki is a panel CAVC decision so it is precedential and binding upon the BVA. The question is whether its binding retroactively, (in the past). CUE errors only apply to the laws at the time of the decision so if it is CUE you are seeking, it appears Arneson wont help you.

However, it would appear this is about an interpretation of the law, so the "effective date" of the interpretion may be up for grabs. Remember, under the old laws, claims had to be "well grounded". After that was dropped, the VA could never again deny a claim because it was not "well grounded".

I dont know what would happen if you had a claim denied because it was "not well grounded" and try to "CUE" it on that basis today. You might be able to find that and my guess would be that it would apply to this case, also.

[broncovet]

With all that I posted below, there is another regulation about "liberalizing" laws. A "liberalizing" law means that they used to deny them on this, but the law changed so they cant deny it on that basis anymore. I think the Veteran gets the more favorable version applied.

If that is the case, then Arneson may help you after all. However, if this is an unappealed decision (ie. Cue) then I dont know which would apply...the "liberalizing" law, or the strict interpretation of CUE.

[carlie]

bronco,

I have no idea why you are bringing in issues like claims for CUE.

[broncovet]

I brought up the issue of CUE because you asked,

"I wonder if this memorandum can be applied to BVA board (panel)

decisions that were adjudicated in the past ?"

...You did not mention if the "Board Decision" that was adjudicated in the past was timely appealed or not. If it was timely appealed, then, it does not appear that CUE would apply. However, decisions not timely appealed, as well as some EED appeals, fall under the stricter CUE standards.

Arneson appears to establish a precedent...that is, that claimants have a right to a personal hearing from all board members. Therefore, if the VA fails to give claimants a right to a personel hearing, then that would be a legal error. I dont know if this "legal error" of failing to give claimans the right to a personal hearing would rise to the Cue level or not, but if the claimant could establish that the VA improperly denied them the right to a hearing, then one could argue that this legal error rises to CUE criteria, since the VA is not free to ignore its own regulations. They must follow the laws, and if they dont, the Veteran can argue this is CUE. Of course, the Cue error would need to be outcome determinative, and be based on the laws at that time.

[carlie]

It could not be a CUE for prior BVA decisions.