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.

[john999]

NSA

The correct facts that were known were not before the rating board when the decision was made. Those facts were my doctor'r report. According to the BVA I met the first two requirements of a CUE, but not the third which was that the facts that were not before the board or rater would have "Undebatably" changed the outcome of the rating. My lawyer did not attack the way the facts of the case were weighed. He attacked the undisputed fact that not all the facts that were available to the rater were considered in the decision. The BVA says that heresay evidence from the VA that I "seemed to get on well with other mental patients" is undebatably equal to an excluded doctor's medical report. My lawyer points out that if that is the standard of "undebatable" then all CUE claims are moot. My lawyers brief is in response to a BVA decision and not a court decision. CUE's come down to arguments over words like "undebatable" and "reasonable minds". These are major concepts in CUE law. These are not words out of a Webster's Dictionary. These are words that thousands if not millions of words have been written about. My claim has been remanded back to the BVA from the CAVC because the BVA used the wrong rating schedule. This is technical again, but all VA law is technical. Look up Cushman vs Shinseki 2009. This is a case where forged documents were used in a rating decision. The VA said it was not undebatable that the rater did not considered the forged documents in their rating. The Federal Court said that any reasonable mind would not agree with that conclusion and remanded it back to the CAVC. I wish Berta or Phil could chime in on this since they have good understanding of CUE. Much better than I do which is why I hired a lawyer. You might disagree with my lawyers reasoning, but if you don't understand it then don't pursue a CUE on your own. Understand that the BVA agreed that the original decision was based only on evidence from a VA doctor and that my doctor's evidence was not considered at all. If the VA can get away with this no vet has a chance because the VA could just ignore your IMO's or any medical records that favor your claim. I have to meet CUE standards. In a normal claim where I would have been supplied appeal rights and had appealed I think the fact that my evidence was excluded would have been a slam/dunk for the decision to have been vacated. The standards for CUE are much higher than for a regular appeal, but they are the only remedy for old claims that were not appealed and became final.

[NSA-Saigon-ET]

John,

My only intention for this case was to read what happened. My comments were and are directed to your attorney and are not a reflection on you personally. I have the utmost regard for the help you offer veterans in this site.

Please accept my deepest apology if my comments offended you as being personal.

As to whether I understand a CUE or not remains to be seen on my own claims. We will see what develops in the future.

-donald

(nsa-saigon-et)

[john999]

Donald

You don't offend me. You worry me.

[Philip Rogers]

Sorry, John, I don't have the access to internet and the time to review it right now. I just found it at the court but it's too long for me to read, right now. It'll probably be a wk before I can get to it, due to limited internet access. From what I know, the remand is a good thing. Sorry!!!

pr