Sign in to follow this  
Followers 0
lotzaspotz

Appealing BVA CUE denial to CAVC

7 posts in this topic

I filed a CUE at the RO, which was denied.  It was based on 3.156(c).  I filed an appeal on that with the BVA, which was also denied.  Since I haven't traveled this road before, are CUE's eligible to be appealed to the CAVC? 

Basically, I found evidence in my husband's military medical and VA records that wasn't listed or discussed in prior decisions, therefore, was not considered.  This is not new evidence.  Anyway, on one claim, tinnitus, I've asked for CUE for an earlier effective date.  The other, a hearing loss denial, although the BVA decided to reopen his claim for a later effective date.  In 1993, he thought tinnitus and hearing loss were both rolled into each other.  Husband was an ATC guy and worked flight lines for 20 years with the old fashioned earpieces that were inserted directly into the ear canal.  His MOS is on the list, and I sent in the fast letter about this, but it wasn't considered.  Anyway, that's the short version.  Thank you.

Share this post


Link to post
Share on other sites



What was the reasons for the denied appeals ??

Share this post


Link to post
Share on other sites

Basically it involved the fact that we discovered evidence in my husband's military medical and VA medical files that the RO and then the BVA said didn't exist.  So we filed a CUE trying to salvage the original claim filing date.  They attest to thoroughly reviewing files before they deny based on evidence in the file, but in truth, they either overlooked or ignored it.  We provided it with the CUE, but it was not rebutted.

Edited by lotzaspotz

Share this post


Link to post
Share on other sites

This sounds like you may have a valid CUE.  The Board is required to explain why it rejected favorable evidence in its reasons and bases.  Did the Board decision give reasons it rejected your favorable evidence?  Was this favorable evidence included on the "evidence list"?   If this favorable evidence was not included on the evidence list, then you may have to reopen under 3.156, and not CUE.  

 

For further study on this issue study the following cases: (Dont even think of representing your self in this manner unless you have studied, at a minimum, these cases, because the lawyer who represents VA will have studied them):  

Pond Vs. West 1999

Norris vs West 1998

Hardin vs West 1998

Cropper vs Brown 1994

Simon vs Derwinski 

and Sheed vs Derwinski.

     If you are representing yourself at the CAVC level (rarely advised), then you should read over these cases, dont go to the CAVC uninformed.  Be informed if you do hire a lawyer:

1.  If you lose, you pay nothing.

2.  Even if/when you win, you may not have to pay attorney fees, or pay less, because any EAJA fees will be deducted from the typical 20 percent fee.

The court typically grants EAJA fees when you win, so you are not likely to have to pay all of the 20%.   

3.  Even when you win and EAJA fees do not cover the attorney fees, the attorney has to submit a bill, and the court wont authorize payment of attorney fees that the court feels is excessive.  (The court has attorney hourly rates for different areas and likely will not award attorney fees over the standard hourly rate).  

 

Edited by broncovet

Share this post


Link to post
Share on other sites

I will add that, with a recent BVA denial most lawyers who represent Veterans will be more than happy to look at your denial to see if they think there was error.   You can have them look at it, give an opinion, and decide.  However, remember the period for filing a NOA is 120 days, not one year, so dont wait too long.  

What I did was send my BVA decision to an attorney, and I still worked on doing my own appeal.  Then, I can compare the attorney's opinion to mine, and see which is better.  In my 2012 Board denial, I wound up hiring the NVLSP, who did so Pro Bono.  

If I had to do it over again, I would have gotten a "for pay" attorney, as opposed to NVLSP Pro Bono attorney because they ONLY worked on one issue, and, while that issue generated EAJA fees for them, it did not result in money for me.  In other words, its like we "won" a zero percent rating in that we "won" a remand, and the VARO said, "Ok, we are complying with the remand order, and the answer is still no."  

You can only appeal denied issues, you can not appeal remanded issues, because they are not decided yet.  So, I appealed the denied issues, and now Im appealing the issues that were remanded and denied a second time.  

Keep this in mind.  When you appeal to the CAVC the evidence is sealed.  You can not submit "new" evidence to the CAVC.  The CAVC will only decide the case based on what is already in the RBA.  (This is not true with  a remand, because a remand confers upon the claimant a right to submit new evidence). 

Mine was complicated because the BVA decision was a partial remand, partial denial, partial grant.  I can not/did not appeal the remanded issues, only the denied issues.  

Edited by broncovet
1 person likes this

Share this post


Link to post
Share on other sites

I agree about attorney representation at the CAVC.  We already have attorney representation for other claims, but as you know, most attorneys stay clear of CUE's, and you can't have more than one attorney representing you at a time.  So, if the attorney you have doesn't want it, you either change attorneys for everything or go pro se.  Thank you for this list of cases, I'll get busy reading.

 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now
Sign in to follow this  
Followers 0