Cavc Desision Number

[Flatbroke]

Berta,

The number on the CAVC decision is 10-1523. My attorney is supposed to call this afternoon and he has said in an email he was ready to take it to a Federal Appeal.

[carlie]

link:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01201924835&caseId=65227&dktType=dktPublic

https://efiling.usco...incDktEntries=Y

[Berta]

Thanks, I found your docket sheet and attorney name etc but CAVC has only published 4 decisions so far in 2012 and the last one was in Feb 2012 so I guess yours will soon be posted there.

It is good to know the lawyer is supporting a Federal Circuit court appeal.

[Berta]

Sorry-I found it and Carlie did too-----

https://efiling.usco...tType=dktPublic

OK -it is a Memorandum of decision

I dont know how to make the court font bigger

“As an assertion of error, Mr. XXXXX contends that the 2010 Board erred in finding no CUE

because to find CUE it required all relevant evidence to militate in support of a manifestly changed

outcome.”

However :

“With regard to Mr. XXXXX first argument, the 2010 Board determined that his complete

service medical records were not before the RO, but further determined that absent this error there

nevertheless would not have been a manifestly changed outcome. See MacKlem v. Shinseki, 24”

“As an assertion of error, Mr. XXXX contends that the 2010 Board erred in finding no CUE

because to find CUE it required all relevant evidence to militate in support of a manifestly changed

outcome. Assuming arguendo that such an understanding might be erroneous under the law, a fair

reading of the entire Board decision reflects that it properly stated and understood that CUE could

2

only be established if reasonable persons could not disagree that the outcome would have been

manifestly different but for the error. As noted above, the 2010 Board found that the evidence was

in dispute and that reasonable persons could differ as to the outcome; this is a correct understanding

of the law. MacKlem, 24 Vet.App. at 63; Fugo, 6 Vet.App. at 43-44; see also Damrel v. Brown, 6

Vet.App. 242, 246 (1994) (allegation of improperly weighing the evidence can never form the basis

of CUE).

As a second assertion of error, Mr. XXX contends that the 2010 Board placed an unfair

burden on him to demonstrate CUE when it determined that it was not clear what clinical evidence

supported the notation of spondylolysis on his separation examination. Mr. XXXXX reasons that

because "the diagnosis was ignored by the rating official, it makes little difference that the diagnosis

was not further explained or documented.

)

Appellant's Brief (Br.) at 14. However, the burden of

demonstrating CUE is a high one and this is because it is a collateral attack on an otherwise final

decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed .Cir. 2000); Fugo, 6

Vet.App. at 44 ("Persuasive reasons must be given as to why the result would have been manifestly

different . . . ."). Moreover, whether or not a decision contains CUE is predicated on the facts known

at the time of the decision in which CUE is asserted, Bouton v. Peake, 23 Vet.App. 70, 71 (2008),”

This CAVC decision and that of the BVA is resting on this statement:

“when those facts lack clarity or are otherwise not undebatable, then they cannot establish CUE”

Have you subsequentl;y attained Service connection for this same disability?

“Mr. XXXXX also argues that the 2010 Board erred by improperly rejecting a 2003 affidavit

of Dr. Namm because it was not in the record that existed at the time of the 1970 RO decision.

However, it is well settled law that CUE determinations are based on the record before the RO or

on the correct facts extant at the time of the RO decision, and evidence developed after the decision

under attack may not be used to demonstrate CUE in that decision. MacKlem, 24 Vet.App. at 68,

Bouton, 23 Vet.App. at 71; see also Cook, 318 F.3d at 1343.”

That point is correct. Were you able to succeed on the claim by a re-open,with this affidavit?

“The record of proceedings reflects that the 1996 Board denied reopening his claim because

Mr. XXXXX had not presented new and material evidence. Assuming arguendo that a failure to

reopen can constitute the manifestly changed outcome required to establish CUE, compare Chippen

2 As indicated in the text, supra at 4, Mr. Chastain's briefing to the Court does not specifically assert 2010

Board error in not addressing a failure of the 1970 RO to address aggravation, but, also as noted, even assuming Mr.

XXXXX's briefing can be read to make such an argument, it fails.

5

v. Brown, 9 Vet.App. 412, 422 (1996) (equating manifestly changed outcome with a change in the

merits outcome and finding that a manifestly changed outcome requires a finding that the underlying

claim for benefits would be granted), with Walker v. Peake, 2008 WL 4221491, at *5 (Vet. App.

Sept. 4, 2008) (per curiam order) (Kasold, J., dissenting) (suggesting that the reopening and

processing of a claim is a manifestly changed outcome), etc.

They are making a strong point here-

In my CUE claim, the established evidence of record undebatably warranted a finding of SC at a ratable level in a 1998 decision.

“a manifestly changed outcome requires a finding that the underlying

claim for benefits would be granted”=

therefore ----have you since succeeded in any way at all gaining SC for the exact condition you originally claimed?

I dont think anyone should ever get this far and then give up so I a glad you are filing at the Fed Cir Ct.

This part of the Memrandum decision concerns me:

“Contrary to Mr. XXXXX 's assertion, the record reflects confusion regarding what errors his

counsel asserted below”

I assume your lawyer has handled this type of claim before????

I know I asked you the same question here three times.Sorry but

My point is ,once SC is granted, then it can certainly help prove that a CUE,regarding the same exact disability ,in some cases, in a past decision , occurred.

Edited April 6, 2012 by carlie
Font Size Enlarged By Admin

[Jumpmaster]

Hello Flatbroke,

Your memoradum of decision is both interesting as well as encouraging because of a 1991 RO decision made against me that I feel was a CUE.

Have you subsequentl;y attained Service connection for this same disability?

I've been waiting since August 18, 2010 for the VARO to address my increase for the SC condition rated 0% a clear and unmistabkle error in my eyes.

and opinions of my private doctors.

Appellant's Brief (Br.) at 14. However, the burden of

demonstrating CUE is a high one and this is because it is a collateral attack on an otherwise final

decision. See Disabled Am. Veterans v. Gober, 234 F.3d 682, 696-98 (Fed .Cir. 2000); Fugo, 6

Vet.App. at 44 ("Persuasive reasons must be given as to why the result would have been manifestly

different . . . ."). Moreover, whether or not a decision contains CUE is predicated on the facts known

at the time of the decision in which CUE is asserted, Bouton v. Peake, 23 Vet.App. 70, 71 (2008),”

All my known medical history were before the RO and it's my belief the established evidence of record in the VA's hand at that time warranted a ratable level in the 1991 decision.

Flatbroke, Berta, Carlie, Philip, Teac, John999, Capt. Contaminate and others are welcome to chime in. I need all of your nonbinding help and VA knowledge after I post the raters notes from the VA Forms 21-6796 and 21-6796 b and my rating letter dated July 29, 1991 under the CUE Forum soon.

God Bless You for your service Flatbroke you're are Warrior----Drive On and may you enjoy a Happy Easter weekend. Jumpmaster

[john999]

Is your 1991 decision a final decision? It has to be final to be a possible CUE. Do you have your C-File? Regulations change over time. I found that out the hard way just recently when I filed a CUE and it finally got to the CAVC and they discovered the rating criteria for rating mental disorders had changed between 1972 when I filed and 1973 when the decision was made to rate me 10%. That cost me 6 months since it had to go back to the BVA. Actually, I filed my cue 6 years ago at the VARO. How exactly did the VA make the CUE?

[Berta]

"I've been waiting since August 18, 2010 for the VARO to address my increase for the SC condition rated 0% a clear and unmistabkle error in my eyes.

and opinions of my private doctors."

That is why I asked many times if you get SC now for this condition.

Once a condition is estabished as SC and rated at a ratable level (10% or more) , then sometimes it pays to dig out older denials for the same condition ,that could have gone unappealed, and now would become basis for CUE claim as they should have been SCed and rated in the older decision.

In my opinion, since an award like that estalishes a SC disability, then it is far more easier to seek a CUE in any past denial over the same disability.

As long as any SC is rated at "0", and the medical evidence VA had in their posssession at time of that decision did Not warrant a higher rating, then there is no manifested outcome (No comp retro) regarding a CUE.

Hopefully maybe your lawyer could get a joint remand from the CAVC to open the door for more evidence or the claim you have pending now will be granted at a ratable level and that could determine what the lawyer could do next.

I will try to find your BVA case.Can you give us thew cocket and citation number of that?

Is it possibly the private doctor's opinions regarding the Cued decision you got ,did not comply with what VA needs to see in an IMO?

Are these the same opinions you have supported the August 10 2010 claim with?

What specific Legal errors did yiou raise in this CUE?

As John asked:

"How exactly did the VA make the CUE?"

I assume the "0" is SC and not NSC.........?