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.

[JR Reihs]

John keep fighting on, I don't know if the BVA stated an oxymoron or they were just being a moron.

Are you sure you sent this to the BVA and not OWCP, I thought OWCP was the only agency who could bring new meaning of understanding to the English language.

[john999]

My CUE was for a higher percentage. What the VA did was to just exclude evidence from my psychologist who treated me for six months. My doctor said I was getting worse. The BVA admitted this fact. They let in evidence from a VA doctor who saw me one time on the locked ward. I never had a C&P exam. My psychologist's evidence was the only evidence that followed the criteria for an exam. The VA relied completely on my SMR's, statements from unnamed witnesses about drug abuse, and a single sentence from a VA doctor. What the VA said was that the evidence for a higher rating than 10% was not undebateable. Nothing is undebateable. Some people believe the world is flat. According to the VA's I don't think any vet can meet that standard of proof. It is a fraud. It was not a case about weighing the evidence. It was about excluding evidence. What the VA says is regardless of the exclusion of evidence you cannot meet our impossible burden anyway. The VA can exclude any evidence they want in a final decision and you still can't win a CUE.

[Wings]

My CUE was for a higher percentage. What the VA did was to just exclude evidence from my psychologist who treated me for six months. My doctor said I was getting worse. The BVA admitted this fact. They let in evidence from a VA doctor who saw me one time on the locked ward. I never had a C&P exam. My psychologist's evidence was the only evidence that followed the criteria for an exam. The VA relied completely on my SMR's, statements from unnamed witnesses about drug abuse, and a single sentence from a VA doctor. What the VA said was that the evidence for a higher rating than 10% was not undebateable. Nothing is undebateable. Some people believe the world is flat. According to the VA's I don't think any vet can meet that standard of proof. It is a fraud. It was not a case about weighing the evidence. It was about excluding evidence. What the VA says is regardless of the exclusion of evidence you cannot meet our impossible burden anyway. The VA can exclude any evidence they want in a final decision and you still can't win a CUE.

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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

[Pete53]

Never give up and remember your fight can help other Veterans. In the early 1990's a very special Veteran named Gardner from Palestine Texas took on the whole rotten system the VA had in place that actually allowed their butchers to mangle and harm you to skate and not even have to pay a dime. His win made it possible for 1151 Vets to be service connected and no one said the guy had a chance.

[john999]

Oh, I am going to fight to the bitter end. My lawyer wants to fight as well. I just see that the current CUE system is a fraud. It is the only way for a vet to modify an old decision that was not appealed. The VA actually said that even though the VA did not provide me with appeal rights in 1973 that is no CUE. They also said that no matter how unfair a decision is that is not a CUE. That leads to the question of just what would be a CUE? I am getting more pissed everytime I think about it. I already told the lawyer to go ahead to the CAVA. I will sign the papers and do whatever else is required. It is a legal argument now. It is not about evidence or even about me. It is about the law and due process. I will quit ranting about it. How far can you get outside the VA system with a claim? Is CAVA the last appeal?

[Wings]

Oh, I am going to fight to the bitter end. My lawyer wants to fight as well. I just see that the current CUE system is a fraud. It is the only way for a vet to modify an old decision that was not appealed. The VA actually said that even though the VA did not provide me with appeal rights in 1973 that is no CUE. They also said that no matter how unfair a decision is that is not a CUE. That leads to the question of just what would be a CUE? I am getting more pissed everytime I think about it. I already told the lawyer to go ahead to the CAVA. I will sign the papers and do whatever else is required. It is a legal argument now. It is not about evidence or even about me. It is about the law and due process. I will quit ranting about it. How far can you get outside the VA system with a claim? Is CAVA the last appeal?

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Levels of Appeal

VARO (VA Regional Office)

DRO (Decision Review Officer)

BVA (Board of Vets Appeals)

AMC (Appeals Management Center, Tiger Team, etc.)

COAVC (Coart of Appeal for Vets Claims)

Federal Circuit

*Personal Hearing is possible at any level of appeal.