CUE Appeal decision made; I got a phone call today

[Judy]

CUE claim has taken six years. I've had to endure three (3) BVA Appeal hearings over the past 21 months. Today I got a phone call from someone in "Litigation" she said. Informed me that my claim was decided on February 23rd and the letter would be forthcoming. This is a very old CUE case. My first BVA Appeal hearing was the Judge I'll call "S"; the case was remanded back to RO for lack of jurisdiction (by BVA) which necessitated a second hearing. BVA did not assign Judge "S" but rather Judge "R" presided. Later, I get a phone call from BVA official explaining to me that "two judges cannot make a case decision as it could possibly be a tie, and that would be NO decision, therefore, I MUST have yet a third BVA Appeal hearing with yet a third Judge. That was held (now 19 months ongoing) by Judge "P". So today I get the phone call mentioned above. Since litigation is the jurisdiction of the OGC, I wonder what (if anything) my phone call (ahead of written notification) means? Any insight from anyone? Berta? Thanks to all. Judy B.

 

[FormerMember]

Re too many judges. Up to 1994, there were 20 "sections" of three judges each which were divided up to handle appeals geographically. Back then (from 1960-1994)  a "Board" was always three judges (VLJs or Veterans Law Judges). One was always a doctor/lawyer. Colvin v. Derwinski did away with the "doctor as a judge" part of the game and it became three judges alone. In 1994, they began allowing a Board to consist of just one judge to be able to hear more appeals. Until several years ago, we still only had 60 judges. We now have about 120 due to the FDC program and VA shoveling all those claims up to the BVA.

Often, due to the length of some appeals, a VLJ may retire who has held a hearing but was not able to render a decision before his/her retirement. A new VLJ steps in and the Vet is allowed to decide if he wants a new hearing before the new judge. In some cases, a Vet has a hearing before a VLJ and then has a hearing before another VLJ over another matter combined with his/her appeal. In these instances, because two judges might decide for and against creating a "tie" situation, there must be a third judge added to ensure a 2-1 decision. A Vet is allowed to ask for a third hearing in front of that added-on judge to ensure due process. Hence we occasionally see three-judge Boards in this day and age. It's very rare though. I've even heard of a five judge board back in 1997. 

One thing many of you are unaware of. There is an "old school" contingent of VLJs and a burgeoning new group of free thinkers who do not kow tow to the old ways. They are actually real judges rather than shills for the VA Secretary. This is why we're seeing more wins out of the Board than in decades past.

[Berta]

Alex is correct(OF COURSE) Thanks Alex for chiming in-  and this is also explained a little in one of the multiple topics and posts from Judy over the past  years-as to the need for an additional hearing. 

I dont see that as a bad thing---but I could not find any actual BVA decisions or links to them here from Judy and only found one of her cases at the BVA.

Gastone is right-we need to have the links to the BVA decisions and remands...the Docket # and Citation # will do  if they are too lengthy to post here.

 

[Judy]

Hope I am posting replies to the correct place here. 

Berta, BroncoVet, Alex and all. Thank you for your replies.

Berta is right, I have been at this many years. Let me try to cut to the chase here. DIC was won in 2009 on a reopened case in 2007. Done. I filed 1151 and it was denied. I filed EED on the DIC but seriously I didn't have a winnable case (due to reopened claim). Done. In 2012 I (again) sought out Dr. Bash and he thought the possibility of a "win" was to CUE them on the 1970 rate reduction of the vets disability (100 down to 30%) so we went with filing that in 2012....jumped through all the hoops, RO denial, appealed, denied, ....finally it went to BVA and four years later (2016) I had first BVA hearing on the CUE. Strong case, Dr. B and I attended and both felt encouraged as we left the hearing. Then came the letter that the RO had never officially issued a FINAL decision/denial SO BVA remanded it. Now, RO issues final denial and back to BVA for a second hearing (June 2017). BVA did not assign same VLJ from the first hearing. I told 2nd VLJ  that I was surprised as I thought the second hearing would be the SAME VLJ. I was told to "wait" and they would go see if first VLJ was available to preside; the second VLJ returned and said that was not possible so the hearing proceeded. After 60+ days, I get a phone call from an official explaining to me (as already mentioned here) that I MUST have yet a third BVA hearing on the matter and it MUST be a third VLJ so as to have an "uneven" numbered panel of VLJ's to make the decision. Okay, I got it. December 2017 I have the third hearing, third VLJ and I wait. On February 21st, I emailed Secretary Shulkin and 5 others requesting assistance and quoting regs to them showing the error(s) (including the CUE's) on the part of the VA AND the BVA. I won't go into the details of my email but I will say it was, in my humble opinion, compelling to say the least. Then yesterday, I got the phone call from "litigation" telling me the decision was made on February 23rd (two days after my email to Secretary Shulkin and others). I sent a text to Dr. B. and he returned text to me saying "most unusual" that I got the phone call. Hmmmm. That's all folks. That's it. 

Edited February 27, 2018 by Judy

[Berta]

"DIC was won in 2009 on a reopened case in 2007. "

I assume they gave the re-open date as the EED and that can only be changed with a  valid CUE on a past DIC denial, as long as the DIC claim was filed within one year after  your husband's death.

But the CUE depends on medical evidence in VA's possessions at time of the alleged erroneous denial.

"sought out Dr. Bash and he thought the possibility of a "win" was to CUE them on the 1970 rate reduction of the vets disability (100 down to 30%) so we went with filing that in 2012."

I love Dr Bash but I do not comprehend his logic here at all.

I dont even see the possibility of any accrued benefit award even if they did have evidence in 1970 that should have continued the 100%. Accrued benefits derive from a claim the veteran had pending with VA at time of their death, that is assumed by their surviving spouse.It has to be the exact same type of claim, that the veteran had pending when they died.

Personal example:

My husband died at 30% SC PTSD and that claim for higher rating was pending when he died.

Also he filed a Section 1151 claim, fearing the VA was malpracticing on him and would cause his death.

I became the claimant for both claims when he died and had to provide considerable evidence to the VA.....evidence that was in VA's possession when he died....but some was missing from the med rec files and I got it all from his shrink.

They awarded posthumously 100% SC PTSD and also DIC  under 1151 (which subsequently became direct SC death due to his malpracticed AO IHD and AO DMII.

My accrued claims were filed within one  year after his death.

Even if the 1151 accrued  had not been filed, Nehmer would have warranted the IHD award anyhow.

My point is my focus was solely on proving the two claims he filed before he died.... with evidence in VA's possession before he died.

The 100% PTSD claim was fairly easy- the other claim (1151) involved evidence in his VA medical records in his lifetime that revealed malpractice. He was right. It was there.

My FTCA wrongful death case (lots of work on my part)made the 1151 impossible for the VA to deny that clim againwhen they got the FTCA info from VA OGC.Wrongful death, based on evidence in VA's possession at time of death.

I regret I dont have a single clue on how the way Dr.Bash saw your issue would benefit you at all based on the accrued regulations.

Accrued benefits must be filed within one year of a veteran's death .The only exception is the 2010 Nehmer Court Order.

"sought out Dr. Bash and he thought the possibility of a "win" was to CUE them on the 1970 rate reduction of the vets disability (100 down to 30%) so we went with filing that in 2012."

Is this the only issue on appeal? 

Others will try to help.

Edited February 27, 2018 by Berta

[Judy]

Thank you to everyone who replied. My BVA Appeal was denied. 

[Berta]

You can appeal the denial to the US CAVC if you  think the BVA  decision is wrong.......

But the Court of Veterans Appeals will not accept any new evidence.

I dont advise anyone filing with the court who does not have a lawyer. 

Then again Pro se claimants have won at the CAVC without legal help.

One of the best awards I ever saw from the CAVC, was to a veteran who had handwritten every document he had sent to the court. He obviously didnt have a computer but  he knew VA case law and his argument was strong enough to win.