Lost Cue At Federal Court

[john999]

After more than 8 years of appeals I lost my CUE appeal at the Federal Court yesterday. My lawyer did stick by me all those years. Perhaps if he knew more at the time he would have told me we would lose eventually. It was a long shot, but I learned a lot. I did learn that regardless of the reason if you do not file a NOD within one year of a decision no matter how bad it is, or how flawed you will lose 95% of the time. Even if the VA sends your decision to Outer Mongolia and you never get your appeal rights you will lose if you don't appeal in a timely way. For all you vets and spouses out there if you get a decision and it is not all you want file an appeal on time.

John

[john999]

I already have P&T and "S" so I was not really stressed by this decision. What it was was that before about 1990 the VA did not have to list or even mention any or all of the evidence of record in their decisions. They just left out my entire private doctor's report that said I was 100%. The VA probably did this to many thousands of RVN vets and other vets right up until 1990. Then they sent my appeal rights and rating letter to the wrong address. I was just 22 years old and living in the slums to afford to pay my rent while going to college on G. I. Bill. I did move around a lot and the USPS will only forward mail for a year. I got a rating of ten percent and because I believed at the time that the VA had considered my doctor's report and low balled me anyway I just shrugged my shoulders and went on about my business. I just thought this was the way the VA did things. In those days all the care you got from the VA was for your SC disability. I was not going near the VA for a mental health claim after they locked me up first time around and kept me for three weeks. I never had a VSO or anything like that. My claim was based on an in-patient stay in 1972. I don't even remember filing a claim. My private psychologist encouraged me to try college and since it did provide me some income I went. However, if I had filed an NOD I might have had a chance at a higher rating if they even read my doctor's report. My Doc was frustrated because he wrote a good report on a VA form that is not longer in use just for private medical opinions. Also, the VA changed certain rules right in the middle of my claim that set me back. I suffered from ignorance of the VA system. Since that time I have won a CUE claim on my "S" award. My lawyer is still trying to come up with another attack. He invested 8 years in this thing as well. The part about them sending my appeal rights to the correct address and returning them as "addressee unknown". How can you know your rights to file an appeal if you never get them? This was not an issue in original CUE since we did not even know the VA did this. I don't stay awake worrying about it. I got lucky with some investments I made years ago so money is not the object although I would not mind half a million in retro pay. What I do know is the technicalities in VA claims are more important than the substance. Human beings are not deciding your claim. Adding machines and cash registers make the decisions. I know I got screwed from a moral perspective but that is a big club membership for vets of my generation. I do think that in my day you had to be stark raving mad to get 100% on a mental health claim. One guy I know took PCP and the Navy discharged him as being psychotic and the VA agreed and he has received 100% for almost 50 years. In fact it ruined his life. He just sat and got stoned for the rest of his days.

John

[FormerMember]

I have one of the "Guess what? you lost." letters from 1989, too, John. My SO had to explain it because the letter sure didn't. I appealed and lost. Well, actually I got two 0% goose eggs but they wouldn't touch the Air America files and called them "personal medical records" (rater wrote PMRs) and not SMRs. They didn't say the records were fake. Fact was, they didn't say much of anything at all back then. We're bigger than that and we win because we keep trying. Both of us are 100 +S. That alone bugs them to death like we cheated to get there. Fuggem, hoss. We're bulletproof now.

___x___ clear prop

(0 0)

[broncovet]

I would love to see one of the judges at cavc explain away this dichotomy:

How is it on one hand that va judges call the system "claimant friendly" non adversarial, ex parte system giving vets the benefit of the doubt, while saying on the other hand that va can take as long as they want to process your claim with impunity, but if a vet files a nod one second past the required one year appeal period he should be immediately denied.

the cavc enforcement of these principals in the exact opposite direction that this "claimant friendly" atmosphere suggests some manipulation at the very highest level.

In a similar way, it seems disingenious that va home finance can/does charge veterans interest on money borrowed for a home, yet va pays zero interest to the same vet, sometimes, who is waiting on his va benefits. It would seem if the va has a right to charge veterans interest on va loan money, then that vet should receive a similar rate of interest when va delays his claim for 10 years or more.

It is easy to see what drives this: money. I think, however, that some sort of legislation that, indeed compensates veterans for lost purchase power of the dollars when va delays the claim over a reasonable period, say six months, would eliminate the va backlog pronto.

v

[broncovet]

Maybe someone can explain how a "claimant friendly, non adversarial, ex parte system, has a need for 500 lawyers whose job it is to represent the secretary against veterans who are seeking their benefits.

If its an ex parte system, then what are Mr Gun and the other 499 va lawyers needed for?

EX PARTE

Lat. 'By or for one party' or 'by one side.'

Refers to situations in which only one party (and not the adversary) appears before a judge. Such meetings are often forbidden.

Although a judge is normally required to meet with all parties in a case and not with just one, there are circumstances where this rule does not apply and the judge is allowed to meet with just one side (ex parte) such as where a plaintiff requests an order (say to extend time for service of a summons) or dismissal before the answer or appearance of the defendant(s).

In addition, sometimes judges will issue temporary orders ex parte (that is, based on one party's request without hearing from the other side) when time is limited or it would do no apparent good to hear the other side of the dispute. For example, if a wife claims domestic violence, a court may immediately issue an ex parte order telling her husband to stay away. Once he's out of the house, the court holds a hearing, where he can tell his side and the court can decide whether the ex parte order should be made permanent.

Edited April 11, 2015 by broncovet

[DustyAO105]

Thanks John , It might seem that you lost but you are helping thousands Vet like me that are in early stages and appeal I files my NOD 3 days after I got the denial and now the DRO has it.

[Fat]

Good information for future veteran claimants to consider.