Arneson V. Shinsek

[carlie]

I wonder if this memorandum can be applied to BVA board (panel)

decisions that were adjudicated in the past ?

Any takers ?

From vetlawyers / Bergmann & Moore

http://www.vetlawyers.com/newsletters/may2011Newsletter.pdf

Page 5

Arneson v. Shinsek

" CAVC HOLDS THAT CLAIMANTS HAVE A

RIGHT TO A PERSONAL HEARING BEFORE

ALL BOARD MEMBERS WHO ULTIMATELY

DECIDE THE APPEAL"

" This decision is about fairness,” said Glenn Bergmann, Mr.

Arneson’s attorney. “We knew that once the judges

looked at the process, they would make the right decision.

We are happy to have played a role in it.” As a result of this

decision, the Chairman of the Board of Veterans Appeals

issued a memorandum on May 12 2011."

[john999]

VA might say denial of a hearing falls under "duty to assist" and is not a CUE.

[broncovet]

Last I checked the BVA makes CUE errors, too. Not just the Regional Office. It would HAVE to be a "prior" decision, because you certainly can not CUE a decision that has not been completed.

Here is an example of allegations of CUE at the BVA:

http://www.cavcbar.net/Summer_2005.pdf

By "prior BVA decision" you mean there was another BVA decision and you are trying to CUE the first BVA decision, I still think the "prior" BVA decision is subject to a collateral attack by CUE. However, the second BVA decision could be appealed, but I know nothing that prevents a Veteran from filing a CUE even if he had a half dozen BVA decisions and filed a CUE on the first one.

[carlie]

By "prior BVA decision" you mean there was another BVA decision and you are trying to CUE the first BVA decision,

NO - I don't mean there was another BVA decision and trying to CUE the first decision.

My interest was would this memorandum be applicable to BVA (past BVA claims) that had a

board hearing held and ALL members were not there.

I sure wish you wouldn't take my topics and start throwing all of your twists and turns

into it. There was nothing in this topic that related to CUE's until you brought it into the topic thread.

Perhaps you misunderstood the train of thought.