Lost Cue At Cavc

[john999]

I lost my CUE claim that was decided by a panel at the CAVC. They shot down every point and argument my lawyers brought up at the hearing. It seems that even when the BVA admits that evidence that was in the hands of the VA was not used in a rating decision that is not a CUE. The so-called court said that since before 1990 the VA did not have to mention, list or refer to any particular evidence in the record in a decision I lose. No point that my lawyers brought up would have made any difference. 7 years of waiting down the drain. I have not gotten a call from my lawyer, but I read that the CAVC upheld the BVA's denial of my CUE. The BVA denied my CUE but did not dismiss it because they agreed that evidence in the record was not before the rater. The CAVC blew by that, and just said the VA did not have a duty to mention in any way my evidence, so there is no way to tell if they considered it or not. Only in the VA system can you get away with something like that where since you cannot prove the VA did or did not consider evidence then the VA wins. It would be like you confessed to a crime and you had a trial and the subject of your confession just never came up, so they let you go. The VA suppressed the evidence in my claim and got away with it. Any reasonable mind can tell they never considered my doctor's evidence, but the VA falls back on regulations that make it impossible to prove. So much for having Ken Carpenter on my side. However, if my lawyer wants to take it to federal court I am ready. I can afford $450 since I have too many assets to get it file for free I think.

John

[FormerMember]

I've traced the history of CUE all the way back to the first case-Bentley. By 1992 and a pile of losses, VA tried to say the Court didn't have the authority to even hear a CUE. The poohbahs disagreed and have been hearing them ever since. Bentley, Akins and the other early Vets won on the fact that anything that was a mistake was grounds for reversal. Russell changed all that. Then Fugo, and then Caffrey. Each one chopped off a leg of John's arguments. I think when you give them the GPS coordinates and they don't go get the records/info, then the failure in the Duty to Assist gives birth to the CUE. It did to me in my 89 case. Now I find they not only did not go get the records but went so far as to say the partial set I was able to obtain and submitted in 1991 were not considered as evidence. I lost. That is CUE. John's is CUE but VA had a different set of rules that changed every thirty minutes depending on the circumstances of the moment. I guess I'd have to throw down and go for it, though. Injustice eventually has to be recognized.

a

[carlie]

John,

The $450 is no problem, it's the following years I think that do us damage.

The waiting and the BS.

Sorry it didn't happen . . . yet :-(

[Vync]

John,

That really stinks. I hope the next leg in your legal battles involves them pulling their head out of their rear end.

[JR Reihs]

John,

I am really at a loss for words on your case. The CAVC really stuck their head in the sand on this one, and the only way to change it, is to keep plugging along as far as you can stand to do so.

What is the point of medical evidence when it is allowed to be ignored at will even at the highest levels who are there to right the wrong from the lower level.

My wife never really understood my frustration with the VA as a whole.......8 months ago, she was offered and accepted a job at the Richmond Va, VA medical center, as they do heart and lung transplants, and thats her thing.......she works 7 off 7 so she travels. 2 weeks into her job, she came home and I could tell something was bothering her so I asked, her relpy was, I do not understand how the VA could let so many Vets go homeless. It seems that this facility is day housing the many Vets who have no where else to go, so they hang out at the VAMC.......Understand that Next to the Pentagon, this VAMC is the largest government Bldg. She told me that at night, the Vets wonder off the premises as they understand the rules.......She now understands mine and every other Vets, hate, hurt and frustration with the system.

Sorry for the rant, your post just brought up more of what we know, and what an outsider realized in less than 14 days.

[john999]

Yes, my lawyer could not believe that there could be a system where you submit evidence and there is no way to show that the VA did or did not consider it in a decision. The assumption before 1990 was that all evidence the VA received they considered in a claim. So all the vets before 1990 that submitted IME's/IMO's the VA could just ignore them, and use only their evidence in the form of a C&P or hospital notes, and deny you or low ball you. Also if the you were admitted to a VA hospital, and a rubber room goon made an entry in your medical notes this would be more than enough to destroy 5 IME's you submitted that were never even looked at by the VA. Unless all the evidence mitigates on your behalf then in a CUE you lose. My lawyer made all the arguments in three briefs. Even when the BVA admitted that my doctor's report in my original claim was not part of the rater's decision making process the CAVC still shot me down saying the VA did not have to show they even looked at my evidence. I know this is the weird CUE law, but it is fundamentally unfair and unjust. So I will keep fighting and maybe someone, somewhere can fix this. As Carlie says it is the time waiting for this decision that hurts. I don't need the money (it would be nice) but I was kicked out of the Army, basically, for asking for help and then screwed by the VA all before I was 22 years old.

In claims since 1990 some of this has been fixed. They must at least list your evidence and then they can ignore it. Back in the day they did not even have to list it, so there was no way to know if they even looked at it. Now they maybe look at it and then exclude it. If I was not a 22 year old in deep shit maybe I would have filed an appeal after the low ball decision. I did not know I could do that since I did not even remember filing the initial claim. I don't know if I had a VSO. I never got the decision letter since they sent it to the wrong address and returned it to sender. That is almost like saying a guy in a coma should be sure to file his appeal on time. I was in a psychotic coma of sorts living on the street going place to place for about 5 years after I was discharged. The law is the law, Son, and ignorance is no excuse. This is the law for criminals not for war veterans.

John

[FormerMember]

Ah, Padewan. Therein lies fruit of your claim. A decision mailed but not received abrogates the Presumption of Regularity. If the decision in 1973 was mailed to you but returned (and clearly documented in the c-file as having been returned), then your appeal rights from the 1972 claim are still viable. As long as they did not successfully remail it to you within the permitted suspense year, then technically the claim lay in stasis and an appeal remained viable. I wonder if the Kenster thought about that facet? That should be the crux of your argument.

As such, it isn't CUE but a claim for an earlier effective date based on lack of finality. This would be characterized as a "freestanding claim". Finality of a claim cannot attach to one whose claimant has not had an opportunity to exercise his/her right to contest it thoroughly (at the BVA) to its logical conclusion. You did have one last level of appeal to the BVA available to you that was thwarted by the failure to receive your decision. However, the codicil to that is the phone (and USPS) works both ways. If you moved or failed to apprise the VA of your new home under the overpass during the running time of the claim, they can say they had no way to send it to you. If you collected any of the funds within a year of the time of the decision, that too, would constitute an implicit acceptance of the decision- as is- with no effort to appeal. Of course, it would also show you were aware the decision occurred. In the obverse, if the funds accrued for a whole year or more untouched (proving your ignorance of the completed adjudication), this would be your smoking gun for the EED argument. The appeal would then pick up with the date of decision (where you left off) and you could now file your NOD with the 10% and begin that argument about Dr. Rothburd's records not being addressed. This is covered in the Doctrine of Laches which does not penalize a Veteran for failure to act on a screwup for decades. http://asknod.wordpress.com/2012/02/21/cova-manio-v-derwinski-doctrine-of-latches/

There's more than one way to skin the VA cat as I demonstrated in my 94 EED win.

A sends