Lost Cue At Cavc

[john999]

I lost my CUE claim that was decided by a panel at the CAVC. They shot down every point and argument my lawyers brought up at the hearing. It seems that even when the BVA admits that evidence that was in the hands of the VA was not used in a rating decision that is not a CUE. The so-called court said that since before 1990 the VA did not have to mention, list or refer to any particular evidence in the record in a decision I lose. No point that my lawyers brought up would have made any difference. 7 years of waiting down the drain. I have not gotten a call from my lawyer, but I read that the CAVC upheld the BVA's denial of my CUE. The BVA denied my CUE but did not dismiss it because they agreed that evidence in the record was not before the rater. The CAVC blew by that, and just said the VA did not have a duty to mention in any way my evidence, so there is no way to tell if they considered it or not. Only in the VA system can you get away with something like that where since you cannot prove the VA did or did not consider evidence then the VA wins. It would be like you confessed to a crime and you had a trial and the subject of your confession just never came up, so they let you go. The VA suppressed the evidence in my claim and got away with it. Any reasonable mind can tell they never considered my doctor's evidence, but the VA falls back on regulations that make it impossible to prove. So much for having Ken Carpenter on my side. However, if my lawyer wants to take it to federal court I am ready. I can afford $450 since I have too many assets to get it file for free I think.

John

[ArNG11]

John I am so sorry to hear about your misfortune. That really sucks. I wish you all the best and I hope that these bozos soon see the light if it doesn't strike them down first.

[stillhere]

HOPE? Is what your lost means to me John. Like you I have been denied a treated wrongly by the VA for years!

Only the saving grace of AO diseases being made as a number of presumptives, did I make the grade of a disabled veteran. Through it I have been able to make them recognize what they did to us while we there. The others that came before us and died the early deaths may never know what their dying has meant to their brothers in arms who are still on the green side by sheer luck or our bodies ability to with stand for a time that which ends it.

I have an appeal in for an EED based on the evidence they had in hand originally in 1983 but it took an significant hit by your being denied. When you loose HOPE there really isn't much to sustain the drive to go on with an appeal.

This is a very bad precedent if your case be the true SOP of how the CAVC is going to treat us! I do hope you have the fight to continue although you seem to be surrounded by a group of ignorant individuals!

Stillhere

[john999]

I will continue to fight as long as I can and it makes sense. As long as there is some place to appeal to I will appeal.

John

[FormerMember]

[broncovet]

I would humbly suggest the doctrine of laches is not the important issue. The VA is required to rate the claim based solely on the rating criteria. They are not allowed to rate on non criteria. They can not deny you benefits because you have purple hair, because you drive the wrong kind of sports car, or use the wrong brand of toothpaste. They MUST rate by the criteria, and only by the criteria specified.

In each case "time since military service" is not one of the criteria, so they can not deny on that bases. This being said, they tried to do exactly that with me, and I was eventually able to get past it. The VA does what they can get away with. If they deny you because it has been "too long since military service", and you do not appeal, the decision becomes final and can not be appealed in the absence of CUE.

IMHO the failure of the VA to rate the claim on the bases of the listed criteria, would be an error. The rating criteria for each condition is clearly laid out in the manual. So, I pay careful attention for the VA's "reasons and bases" for denial. If the reasons and bases specified is NOT one of the criteria, then I would appeal on that bases.

One example should suffice. If the VA denies you, and, in the reasons and bases, says that you are denied because you wear a funny looking hat, you dont need to prove your hat is not funny looking..you need only show that "funny hats" are not one of the criteria for rating disabilities. Further, I would hold VA accountable for their reasons and bases. If they denied you because it was "too long since military service"...then I would assume that I met all the criteria EXCEPT that it was too long since service....that is, the VA did a good job rating you and gave "ALL" the reasons and bases for denial, not just a limited few. Then, I would need only show that "too long since service" was not one of the rating criteria, and absent a listing by the VA that I did not meet the criteria in other ways, then I did indeed meet the criteria.

If you look at most BVA decisions there will be wording that "The criteria for Individual Unemployability (for example) has been met (or it has not been met). This means the board considered your case and rated you using the criteria. You were not rated on non criteria.

[Berta]

John, I have been off here for a while and am very sorry you lost at the CAVC.

But you are willing to take this into the FED Circuit and I sure COMMEND you for that!

Will Ken Carpenter be handling the Fed Circuit case along with Karl?

If we feel we are right we should NEVER GIVE UP!