Remand

[john999]

My CUE was remanded back to the BVA because the BVA used the rating chart for neurotic conditions when they should have used the criteria for psychotic conditions that was in use in 1972. There is no distinction now, but there was back in 1972. The rating codes were different as well. I don't know if this is good for me or bad for me. This is what happens when you go way back in time with the VA. There have been rule changes even between the time I filed in 1972 and got the decision in 1973. So BVA used the wrong law to deny my CUE. The thing is they still excluded my evidence from my doctor no matter what rating chart they used to rate me. This is why I say get a lawyer. No mere vet who does not know "inside baseball" is going to get this. The BVA fouled up and most claims end there. Most claims don't even get there.

[NSA-Saigon-ET]

Hey John,

Why not post your documents on this site to act as a training tool. It would be nice to see how the VA interpreted your claim of CUE.

[john999]

NSA

I don't have a scanner, but you can go to the CAVC website and find my case which includes all my information. It includes the BVA decision and my lawyer's brief and the remand. Just look up King,John. I can tell you most of the details via email or message. It is the progress of a CUE all the way from RO to CAVC. These things can even go to federal court. Cushman vs Shinseki 2009 is also on the court website. This is one of the most important decisions for vets who are claiming their evidence was not reviewed,shredded,altered or forged. This case made it a violation of due process for the VA to do these kinds of things. I never knew that two rating schedules existed for rating emotional disorders in 1972 one for neurotic and one for psychotic disorders. I don't believe the BVA knew it. This is a large sort of mistake. There was no diagnostic code for PTSD, of course at that time. If there was it would have been rated under neurotic disorders which a whole different criteria and rating schedule. I think combat fatigue was a neurotic disorder even if the vet was stiff as a board and hid under his bed all the time. This makes no sense to me. I think that is why they changed it for one reason into just one rating schedule for mental disorders not caused by physical injury like TBI. I don't know if they even had TBI back then as if many RVN vets did not get TBI's.

[NSA-Saigon-ET]

Thanks John, I will look it up as I am very interested in CUE claims.

Yeah, I wasted 20 years before I even started to get help just thinking I was crazy and not thinking it was from Vietnam.

[NSA-Saigon-ET]

Hey John,

I couldn't find your case at the cavc. Could you post a link to it here or give more details how to look it up.

[john999]

My CAVC case number is 10-3248.

[NSA-Saigon-ET]

My CUE was remanded back to the BVA because the BVA used the rating chart for neurotic conditions when they should have used the criteria for psychotic conditions that was in use in 1972. There is no distinction now, but there was back in 1972. The rating codes were different as well. I don't know if this is good for me or bad for me. This is what happens when you go way back in time with the VA. There have been rule changes even between the time I filed in 1972 and got the decision in 1973. So BVA used the wrong law to deny my CUE. The thing is they still excluded my evidence from my doctor no matter what rating chart they used to rate me. This is why I say get a lawyer. No mere vet who does not know "inside baseball" is going to get this. The BVA fouled up and most claims end there. Most claims don't even get there.

Hi John,

I thank you for allowing me to read this case.

I waded thru the brief filed by your attorneys and was impressed with their thoroughness of lawyer talk. I was not impressed withtheir attack to overturn the prior decisions using CUE. I realize that I am not an attorney and this is only my humble opinion, but their reasoning as to what they were trying to accomplish simply escapes me.

They quoted the definition here for CUE:

"In order for there to be a valid claim of clear and unmistakable error, there

must have been an error in the prior adjudication of the claim. Either the correct

facts, as they were known at the time, were not before theadjudicator or the

statutory or regulatory provisions extant at the time wereincorrectly applied. The

claimant, in short, must assert more than a disagreement as to how the facts were

weighed or evaluated. Russell v. Principi, 3 Vet. App.313 - 314 (1992) (en banc).

See also, Damrel v. Brown, 6 Vet. App. 242, 245 (1994.)"

Then the attorneys basically spent all the efforts in a disagreement of a prior decision by" second guessing" the rating board weighing of the evidence on their decision. There was a lot of rhetoric to obscure this by attacking a meaning of a word "undebatable"as construed by the BVA, but in the end the court said that there was no CUE because of your disagreement of the prior decision. A CUE simply cannot attack the prior decision based upon how the evidence that was before the board was used in that decision.

They did a similar tactic with the VCAA duty to assist clause. One of the sections in CUE details that VCAA does not apply, but your attorney sought to try anyway. The result was predictable in denial by the court.

They did discover during all this that there was application of the wrong DC code for disability to your case and that is cause for a remand to simply apply the correct rating code.

This case is a valuable tool for anyone since it went from the RO to the CAVC. The VA was at least consistent in upholding the regulations for CUE.

Edited June 11, 2011 by NSA-Saigon-ET