Cue At Bva Board

[john999]

I have my CUE with the BVA Traveling Board member next Wednesday at the VARO in St. Petersburg. I have a lawyer who is doing a brief. Who knows if this thing will actually fly. The lawyer seems confident and stands to get a nice check. I am less confident knowing how slick the VA is in avoiding payment for past wrongs. I have to be at the VARO at 8:30 in the morning. Thank God, I can just shut up and let the lawyer do the talking. I have to get up early to drive from Tampa. The VA has tried to frame it as a case of attempting to weight the evidence both pro and con which rules out a CUE. My case is that the VARO did not weigh the evidence. They did not have the evidence before them even though the evidence was in the file. They have also attempted to claim that my service connected disability was not the reason I could not work. The reason, according to the VA, is a personality disorder(emotionally unstable personality) which incapacitated me and made me unable to work or to even relate to other people at the time of my original rating. My SMR's say depression and anxiety and the VA says schizophrenia in it original decision. For this I got a 10% rating. The report from my doctor which never saw the light of day at the VARO says unable to work or function at all in society due to chronic schizophrenia. What would reasonable minds make of this if they had seen all the facts of the case?

[Berta]

No I dont think so either now John but I am confused as to NVLSP's statement on page 1098 in the footnote # 69 and then on page 1185 footnotes 238 and 244 regarding Bell-

and they state:

"The constructive Notice rule only applies to VA adjudications issued prior to the 1992 Bell Decision".Footnote referencing Damrel

and then states:"it is limited to documents generated by the VA."

Thus if the constructive notice rule only applies to ratings or decisions prior to 1992-involving VA documents-

that seems to involve any prior decision to 1992-

I am more confused now then ever on Bell after reading this.

[Pete53]

I think Bell does apply cause after all it is a fix for what the VA had been doing wrong and you are now in the right place at the right time.

[broncovet]

Berta said, " I have always felt you had strong basis here for CUE." I said I thought it was a slam dunk, in agreement with her.

Of course, you are right..NOBODY can accurately predict the outcome. Your lawyer is probably in the best position, however, and you mentioned that he felt good about it.

We were merely offering "layperson's" opinions, which dont mean a lot. I am certainly not trained in law. We were just trying to be helpfull, and I was probably overly optimistic in using the slam dunk words.

I do think, however, that attorneys are VERY GOOD at getting paid, and dont often take big risks with cases they dont think will fly.

I dont think most attorneys would invest the time and money necessary to do your case if they thought there was less than a 50% chance of getting paid. I think most of them would like to work on the cases where they had an 80% or better chance of winning, at least in their opinion.

I think Berta knows the law as well as any layperson, and better than lawyers who are not familiar with VA law. Based on Berta's opinion, and my opinion, I still think your chances are better than 80%. Frankly, I can't even see how the VA can "weasel" out of this one.

As far as the "constructive notice" rule of Bell not going back to 1973, that is somewhat of a grey area. For this, however, I would suggest that the "constructive notice" rule just put into words what what may well have been happening before that time. Bell certainly was an important case, but the "presumption of regularity", for example, has been around for some time.

It could well be that your lawyer could argue the presumption of regularity, that is, the VA ordered your files, and a clerk sent to them, and we can presume that the VA was in "constructive receipt" of your evidence. The presumption of regularity could well mean that we can presume the clerk sent the VA your entire file, inclusive of this probative evidence, and that the post office delivered it. This POR would have a basis for support as the Va had other evidence in your file, so why would it not have that evidence.

Edited January 29, 2010 by broncovet

[john999]

I am a pessimist. Tell me everything is fine and I start to worry. Tell me life is hopeless and I start finding reasons that it is not so bad. I appreciate the feedback. I have always thought to some extent the VA is a lottery. You still have to go for it. If I win the CUE I will be happy. If I lose I will be pissed off, but not crushed. The lawyer has already said he would appeal to the court. The best judge of future actions is past actions. The VA cheated me in the past, so I assume they will try in the future.

[broncovet]

While I agree about the VA, I have gotten a very fair shake at the BVA, tho it has taken much longer than what I would like.

I won my case at the BVA level, after loosing at both the RO and DRO levels first. Mine was not a "remand", but an ourtright BVA grant of benefits.

It has been my experience that the BVA did "resolve all doubt in favor of the Veteran", where the RO resolves all doubt against the Veteran.

There is an enormous skill level difference between the VARO and the BVA. The BVA knows the laws, inside and out, and also knows that if the Veteran went to the trouble to appeal at the BVA level, he wont stop there and will appeal to the CAVC or federal court if necessary, so that BVA decisions will be looked at carefully, and probably by lawyers, including, and especially, the "Reasons and basis" for decisions. You dont often see the BVA cases overturned because they failed to read the evidence. They read it. RO decisions are often overturned because the rating specialist never bothered to even read the whole file, and missed evidence.

There is ONE BVA in Washington, DC. There are 58 RO's, all over the country, and some are much better than others. All 58 of them, however, eventually have cases go to the BVA in Washington. The BVA has a set of regulations they go by, and they know, they will be "nailed" with an appeal if they do not follow regulations to the letter. The RO's get away with any violation, shredding, failure to adjuticate,..anything goes. The BVA's takes a lot more pride in their work and does not like the boss (CAVC) overturning their appeals, so they study CAVC cases and learn from them, applying the law consistent with what they think the CAVC will do.

[carlie]

In my opinion there is NEVER a VBA Claim

that is a "slam dunk".

carlie