Cue At The Court

[john999]

If you want some insight into what goes into a CUE claim at the Court of Vet Appeals that has been all the way from the RO/BVA/Court you can look at my CUE which is recent by going to the Court's website and look under King, john. Then find John T. King #10-8234. This is what a lawyer can do for you. This is a very old claim I CUE'ed. The army threw me out when I was very sick and on anti-psychotic medications. This was just to save a buck and they threw me to the dogs. The VA also denied me my due process. I don't even know if I will win and what winning may mean. This is why you should hire a lawyer when you have one of these potentially rich retro claims. My lawyer did follow this CUE all the way from the RO.

[broncovet]

I wonder if this is an "unpublished" CAVC case.

I have had mixed results doing CAVC searches. Sometimes, I can seem to find a lot, while I also tried to find this case and agree with Wings that I could not get it to come up.

According to the VBM, there are unpublished CAVC cases. I dont know why they are not published, and I dont know who decides whether to publish a CAVC case or not. So much for "open government"...they open up when they want us to have access to.

[john999]

My docket numer is 10-8234. You have to go to the website for the court. Then you look for case information. What they do is to run a listing of where your claim is at in the process. My lawyer submitted our brief. It has been at the court for about 8 months. It is in the VA's side of the tennis court now. They have to submit their brief which they have 60 days to do plus inevitable extensions. Just google "court of veteran appeals". It asks for the name of the party or lawyer. The court seems pretty efficient. They do have deadlines for things like briefs. The bad part is they remand many of the claims back to BVA. The lawyers argue every single significant concept or word in a decision. Nothing is in cement. The word "undebatable" is what the VA is using to try and crush my CUE. There is no way in the world the BVA is an honest broker. They are biased, no question.

[Meindok]

John -

My legal website pulled your case as the following number: 10-3248; it is a little different from what you posted.

I think this is yours: John T. King v. Eric K. Shineski; 10-3248

If so - here is a link - Hope it works for everyone interested:10-3248

Good luck! Dot

[john999]

I must have dyslexia. My claim is not that big a deal except to me. It does show how the VA uses certain key concepts to deny CUE claims. "Reasonable minds" means their minds. "Undebatable" means they could debate the number of angels on the head of a pin. If your CUE even hints at "reweighing the evidence" that is basis for them to dismiss it. It is easy for an inexperienced vet or VSO to make a mistake like that, so get a lawyer who understands these legal concepts.

[Berta]

This is an excellent argument John and I always felt you had a valid CUE here.

On page 26 of the brief is this statement:

Furthermore, 38 C.F.R. § 4.6 states:

"Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

I have posted that citation at hadit many times over the last 10 years.

Not only does John's case argue their interpretation of a specific word-it also raises the issue so many of us have to

go through paper warfare with them on-

it isnt really an issue -it is established VA case law and fact!

All evidence probative to any claim will be considered !

The Probative value can only be determined if the evidence is read and then considered.

I used 38 CFR 4.6 in rebuttal to my past AO death claim as well as in my CUE claim.

Only the BVA for the AO claim actually considered for the very first time in,by then about 6 years, my probative evidence.

Everyone here should give this case a good read and see how the lawyer laid it all out for the court.

He used established VA case law as well as common sense.

And he used CUSHMAN -one of the most important CAVC decisions we have ever had.

Sorry I didn't get time to read this sooner John.

[john999]

Berta

It seems if they admit they did not consider all the evidence that was before them, especially a doctor's report, that would be automatic CUE, but not in the "reasonable minds" of BVA. My lawyer pointed out the word as used by the BVA "undebatable" would make any CUE moot. Every argument or piece of evidence is debatable. It takes a "reasonable mind" to determine what that means. I like the case where BVA argued that just because there was falsified evidence in a vet's file that the RO could have come to a fair decision anyway, and that the vet could not prove that the falsified evidence influenced the decision. That is an impossible standard. This makes me think every vet who has basis of a CUE should hire a lawyer and take it all the way. I am not able to do the kind of research to argue my CUE the way it should have been argued back in 2006, but even if I did the VA would have denied it due to 30 years of retro at possible 100% level. It does not take a genious to look at a decision and see something is missing, but it takes a pro to argue it all the way up the line without making a mistake that can kill your claim. I think decisions from 60's, 70's should all be looked at for errors. My rating decision was two pages and I did not even get appeal rights.