Lost Cue The Impossible Dream

[john999]

My CUE at the BVA was denied. The BVA admitted that the VA excluded my doctor's evidence in my 1973 decision. However, they said that even if they had not excluded the evidence of "Chronic Schizophrenia" that I would still only be ratable at 10%. The BVA said that a statement from a VA doctor on the locked psychiatric ward that I got on well with the other mental patients was all they needed to deny that I was low balled on my rating. My doctor said I could not work or function in society. This is what reasonable minds conclude that life on a locked ward is the same as life on the outside. It is more complicated but that is the basic idea. My lawyer is taking it to CAVA. The VA said also that no matter how unfair a decision is that does not make a CUE. If they never gave you appeal rights that is also not a CUE.

[john999]

We are going to federal court because the law as written denies due process. We could hope they will settle to avoid presedent. I know my lawyer wants to get paid.

[Philip Rogers]

John, your lawyer will get paid, at the CAVC (Court of Appeal for Veterans Claims), thru the Equal Access to Justice Act (EAJA), which is part of the reason he's so willing to appeal. I think you'll win, eventually! Like you said, the BVA decision is no surprise.

pr

We are going to federal court because the law as written denies due process. We could hope they will settle to avoid presedent. I know my lawyer wants to get paid.

[Chuck75]

John, did you ever ask for a C&P exam?

"I never had a C&P exam."

I believe that if you have asked for one, and/or they have not given one, that itself in your favor.

x

x

x

I think you will win at COAVC. Your attorney thinks so too, or he would tell you otherwise.

Your attny should provide you with Precedent cases that he's going to cite/submit with his Appeal; otherwise, you will be setting Precedent.

I haven't read court cases for awhile, because I have some genuine cognative dissonance at present (keeping my distance mentally from the VA). My CUE should be decided by the VARO soon, and when I get it, I'll plug myself back into reading and writing.

The BVA has conceded Error, but they are loathe to call it "clear and umistakable". In my mind, withholding critical material evidence (proving the veteran's innocence) runs afoul of constititional law. In a real court of law, witholding evidence is a crime.

See Brady v. Maryland, 373 U.S. 83 (1963),^[1] was a United States Supreme Court case in which the prosecution had withheld from the criminal defendant certain evidence. The defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

John, It's ain't over yet, sorry to say. ~Wings

[carlie]

John, did you ever ask for a C&P exam?

"I never had a C&P exam."

I believe that if you have asked for one, and/or they have not given one, that itself in your favor.

Chuck,

New evidence can not be considered in a claim for CUE.

Now if there were to be SMR's/STR's that were lost or "misplaced" and not used in

the adjudication of the Rating Decision that the CUE is filed on, there is a reg for that,

I believe it's 38 CFR 3.156.