Cue Claiming Res Judicata

[BasehorVet]

I was discharged from Air Force in 1985. I gave testimony at a Formal Physical Evaluation Board that determined my back was injured in the Line Of Duty, that the disability was permanent and gave me a 10% disability rating using the VASRD to provide identification of the injury.

AFI36-3212 Chapter 1 - GENERAL PROVISIONS

1.1. Purpose of the Disability Evaluation System (DES).

1.1.1. To maintain a fit and vital force, disability law allows the Secretary of the Air Force (SAF) to remove from active duty those who can no longer perform the duties of their office, grade, rank or rating and ensure fair compensation to members whose military careers are cut short due to a service-incurred or service-aggravated physical disability.

1.2. Responsibilities.

1.2.1. The SAF prescribes directives to carry out provisions of Title 10, U.S.C. These are used to decide fitness for continued military duty; percentage of disability in unfit cases; suitability for reappointment, enlistment or reentry on active duty; and entitlement to disability retirement or severance pay.

Since the SAF administratively acted according to the provisions above, the Department of Defense adjunticated the evidence presented within the hearing and approved my discharge from the Air Force effective April 15 1985. I notified the VA of my pending release and had copies of my DD214 sent to them from the Air Force.

USC 38 §17.34 (B) Tentative Eligibility Determinations.

USC 38 §17.102 Charges for care or services.

A letter from the VA denied my service connection because "We have carefully considered your reopened claim for service connection of hearing loss and back disability. We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon “RES JUDICATA".

The Supreme Court applied the rule of res judicata to administrative decisions which have become final. See Astoria Fed. Savs. & Loan Ass’n v. Solimino, 501 U.S. 104, 107-08 (1991).

“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.” United States v. Utah Constr. & Mining Co, 384 U.S. 394, 422 (1996).

The Court, in deciding Hazan v. Gober, 10 Vet.App. 511, 521 (1997), found that the failure of the Board to address the 1989 testimony in its 1994 decision “as the sole basis for an earlier effective date is nonprejudicial error (emphasis in text) (citing Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc)) because the Board was collaterally estopped from viewing that evidence any differently from the way it had in 1990, absent a finding that the Board had committed obvious error in its 1990 decision.” citing Chisem v. Brown, 4 Vet.App. 169, 177 (1993) (Board has “discretion to correct an ‘obvious’ error when one is found” and that discretion is not subject to review in this Court); (citations omitted).

See Black’s Law Dictionary 887-88 and 1305-06; cf. Collateral estoppel, Ibid at 1306 (“‘Res judicata’ bars relitigation between of the same cause of action between the same parties where there is a prior judgment, whereas ‘collateral estoppel’ bars relitigation of a particular issue or determinative fact.” Roper v. Mabry, 15 Vet.App. 819, 551 P.2d 1381, 1384.).

Under the doctrine of res judicata (‘issue and claim preclusion’), a judgment entered on the merits by a court of competent jurisdiction in a prior suit involving the same parties or their privies settles that cause of action and precludes further claims by the parties or their privies based on the same cause of action, including the issues actually litigated and determined in that suit, as well as those which might have been litigated or adjudicated therein. See McDowell v. Brown, 5 Vet.App. 401, 405(1993); see also Johnson v. Brown, 7 Vet.App. 25, 16 (1994)

My reasoning is that the SAF is a privie to the DOD and that the DOD is a Department within the US Government and since the Department of Veterans Affairs is also a Department within the US Government that the decision by the DOD to accept the findings of that I was discharged for a permanent disability, that the disability was permanent and that it occurred In The Line Of Duty and the VA was bound, in this case, by that adjudicated decision.

The requirement that the decision would have been manifestly different if not for the CUE is overcome because the Formal Physical Evaluation Board listed two findings of disability; they rated my hearing under the VASRD 6297 as 0% and my back disability under 5299-5295 as 10%.

Title 38 PART 4 § 4.31 —SCHEDULE FOR RATING DISABILITIES In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.

“It is also well-established that the law of the case doctrine is a rule of practice and not a limit on the court’s power, see, e.g., 18 James Wm. Moore et al., Moore’s Federal Practice § 134.21[1], at 134-46 (3d ed.1999)

‘law of the case should not be applied woodenly in a way inconsistent with substantial justice,’ United States v. Miller, 822 F.2d 828, 832 (9th Cir.1987).” Hudson supra, at 1363-64.

This would have allowed me to seek an increase instead of trying to reopen the case in 1990, 1999 and 2009 under "well grounded or/and new and material evidence.

[Berta]

'A letter from the VA denied my service connection because "We have carefully considered your reopened claim for service connection of hearing loss and back disability. We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon “RES JUDICATA".

[Berta]

'A letter from the VA denied my service connection because "We have carefully considered your reopened claim for service connection of hearing loss and back disability. We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon “RES JUDICATA".

Do you mean the above letter came in 1985?

Can you scan and attach to a post here - their entire medical rationale and the reasons and basis part?

(Cover the personal stuff)

[Wings]

x

x

x

Did you appeal the 1985 VA Decision?

Have you searched the COAVC and the Fed Cir for Res Judicata?

~Wings

[Berta]

the VA's take on Res Judicata is explained well in this BVA decision:

http://www4.va.gov/vetapp10/files1/1011828.txt

As I understand it if the BVA denies a CUE claim without prejudice, the veteran can sometimes manipulate the CUE claim on another basis to file it again.

'See Gober, 234 F.3d at 702. In

other words, once a theory of CUE in a particular decision

has been rejected, it may not be raised again. See Link v.

West, 12 Vet.App. 39, 44 (1998) (where there is a final

decision, the doctrine of res judicata prevents a claimant

from raising the same CUE arguments more than once); Russell

v. Principi, 3 Vet.App. 310, 315 (1992) (en banc) (same); see

also Robinson v. Shinseki, 557 F.3d 1355, 1360-61 (Fed. Cir.

2009) (because a CUE claim requires error to be alleged with

some degree of specifity, each new CUE theory is independent

for res judicata purposes and constitutes a distinct claim)."

I have a personal example that might explain what I mean.

I filed a CUE claim on a 1998 decision in which the VA failed to consider my husband for SMC.They said he was not eligible for SMC under any circumstance.

The veteran had 100% SC for PTSD and multiple Sec 1151 conditions over 60% that certainly warranted at least the “S” award and some K awards if not a higher level such as L or M.

The VA has been farting around -ooops I mean attempting to resolve this issue since July 2004 .Without reading my legal evidence.

I have signifcant legal citations from OG Pres Ops, 38 CFR ,21-1 to prove they committed a CUE.Section 1151 ratings are to be considered just like direct SC ratings for SMC purposes.

They have never yet acknowledged this legal evidence.

Then the VA proposed the IHD reg and it changed the whole ball game.

My husband clearly had IHD , diagnosed back to 1988 in his VA medical records and was exposed to Agent Orange.I asked the VA to properly rate his IHD based on hios ECHO etc at 60% to 100% disabling prior to his death and then award him SMC posthmously as an accrued benefit to me under the Nehmer Court Order.

Say the VA still continues to deny him SMC consideration....and say I never appeal that ( but I sure will)

Say the appellate period passes and I decide to file a CUE on their now final decision not to award him SMC.

The CUE has now changed into legal error in not considering SMC as being denied for AO direct SC conditions and not 1151 conditions.

"(because a CUE claim requires error to be alleged with

some degree of specifity, each new CUE theory is independent

for res judicata purposes and constitutes a distinct claim).'

Each new CUE theory can overcome res judicata -as I understand what the BVA case states.

In my new claim I stated to VA that my pending CUE would be rendered moot by a proper SMC Consideration and accrued award under Nehmer for the IHD claim.

The conditions they malpracticed on (1151/FTCA )- I had proved subsequently were all AO SC conditions.That changed Everything.

"My question is do you feel that I have a claim to CUE the 1985 uncontested final decision from the VA based upon “RES JUDICATA"." I dont think it matters here if Res Judicata is involved or not.

What other reasons did they give for denying the back claim?

Did they have some proof that this was a pre existing condition? If so, did the service period "aggravate" the condition?

Or did they try to say with no medical proof or rationale that this was pre existing or a congenital disorder etc.

How did the VA in that 1985 decision account for this evidence:

"I gave testimony at a Formal Physical Evaluation Board that determined my back was injured in the Line Of Duty, that the disability was permanent and gave me a 10% disability rating using the VASRD to provide identification of the injury."

I think you might have a CUE there.We need more info on why they denied.

Edited August 17, 2010 by Berta

[BasehorVet]

I requested a copy of my claim file in September 2009 and they still have not sent me a copy so I am going at it blind, I have never seen my claim file to determine what they based their decision on in 1985. It puts me at a bit of disadvantage since a claim to reopen the 1985 decision with new and material evidence was denied in July 2010 and now I am on the clock to either fight the denial in 2009 or walk away. I walked away in 1985, 1990 and 1999 but now my back is toast and I cannot walk away.

I have always been denied by the VA presenting the same paragraph "We have carefully considered your reopened claim for service connection of hearing loss and back disability. We have found it necessary to deny service connection for your back disability because this condition, under existing laws, cannot be classified as a disease or injury. The law allows payment only for benefits only for those disabilities which do result from disease or injury."

I qualify for medical benefits under Priority Group 3 and only co-pay a little for prescriptions (Go Figure?) so I went to see Psychologist at the VA Medical Center and we discussed that I may be suffering from PTSD due to the physical pain I suffer from since 1981 and that the depression is due a lot to the VA denying me compensation for so many years by denying service connection. Every time that I step into a VA medical center my anxiety level goes through the roof. The new laws about PTSD may be helpful since my trauma happened in peacetime. I am still waiting on an appointment with a Psychiatrist to get some Amitriptyline but in the meantime my Psychologist has scheduled me for some sessions on how to deal with the pain and depression. When the VA denied my claim in 1990 I had been diagnosed as clinically depressed and placed on total temporary disability in a workman comp case, the case finally ended with me being fired and very little relief because of the DD214 that I handed to my employer after my discharge that stated in the narrative (Block 28), "Discharged by Reason of Physical Disability with Entitlement to Severance Pay".

I appreciate all of your advice, you are warriors who stand up day by day to give solid advice to other veterans and this commendable.

[Berta]

How has the VA characterized your back disability?

What did the Mil diagnose it as and what is VA diagnosing it as?

If you seek a vet rep with an office in or near your VARO building, they might be able to get a copy of your C file faster.

For them not to respond to the C file request in almost a year is unusual.

"so I went to see Psychologist at the VA Medical Center and we discussed that I may be suffering from PTSD due to the physical pain I suffer from since 1981 and that the depression is due a lot to the VA denying me compensation for so many years by denying service connection."

In my opinion the psychologist is not stating anything that would help you here with a VA claim.

PTSD comes from mental and emotional trauma.

Depression could be secondary to a SC disability.

If VA awarded PTSD or depression comp for denying our claims so many years- most of us here would now be living in mansions.

I am appalled at this psychologist's assessment.

Without the C file you are really in the dark as to even preparing a CUE claim.

"When the VA denied my claim in 1990 I had been diagnosed as clinically depressed and placed on total temporary disability in a workman comp case, the case" Etc

with evidence like that the VA would surely deny the depression as secondary top any SC disability- because they have an etiology they can use against it .

"It puts me at a bit of disadvantage since a claim to reopen the 1985 decision with new and material evidence was denied in July 2010 and now I am on the clock to either fight the denial in 2009"etc

With a copy of your med recs ,and SMRs etc- I hope you can attain a strong independent medical opinion from an expert in the filed of the disability they denied.

That can be costly but it is often the best investment a veteran can make to get a proper SC award.

I dont know what disability you have and why they denied SC comp in 1985.

Have you Irised them to see where your C file is and what is being done to copy it?

Do you have your complete SMRs , 201 files, and your Medical records?They are not part of the actual C file.

Edited August 18, 2010 by Berta