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.

[john999]

File to reopen and if and when you are denied do an NOD and hire a lawyer. Forget chasing the CUE for now. Work on establishing SC now.