CUE and BVA 2020

[Berta]

Vets are fiing CUEs more and more these days.

May of them fail at the RO level but some are awarded at the BVA:

https://www.va.gov/vetapp20/files1/20000710.txt

Of the 2020 BVA  decisions posted so far, at the BVA web site, 277 contain CUE, and BVA decisions helped me tremendously over the years as they show what really is or isnt a CUE.

I was interested solely in the PTSD CUE decision:

"The Veteran contends that he is entitled to an earlier effective date prior to January 11, 2012, for his service-connected PTSD. The Veteran specifically contends that his PTSD should be service-connected back to September 2009. As there is a balance of both positive and negative evidence of record, resolving all doubt in favor of the Veteran, the Veteran’s claim of an earlier effective date for service connection for PTSD back to September 11, 2009, is warranted.

Procedurally, the Veteran filed for service connection for PTSD in September 2009. A December 2009 rating decision denied service connection as the RO found the Veteran did not have a diagnosis of PTSD. The Veteran filed a timely NOD in January 2010 which was acknowledged in a Deferred Rating dated September 2010. A Statement of the Case (SOC) was issued in May 2012 that found the Veteran’s stressor was conceded but the Veteran still had no diagnosis of PTSD. The Veteran then filed a VA Form 9 in July 2012 which was addressed in a March 2015 rating decision with a grant of service connection for PTSD effective January 11, 2012.

The Veteran then filed a timely NOD as of April 2015 requesting an earlier effective date for his service connection of PTSD back to March 2009. A SOC was issued January 2018 denying an earlier effective date and the Veteran filed a VA Form 9 in April 2018. The Board finds that the December 2009 rating decision is not final and is still on appeal."

( the stressor was conceded but NO PTSD diagnosis until January 2012....???? until the BVA found the March 2009 diagnosis in his records)

"After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam. See CAPRI records submitted October 2012. As the Veteran did not file his claim for entitlement to service connection until September 11, 2009, the Board is able to grant service connection back to the date of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Therefore, the earliest date that the Veteran can receive is September 11, 2009. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009."

Although the BVA found this PTSD claim was still an open issue on appeal, the BVA granted the PTSD CUE.

[FormerMember]

I rest my case. 

[broncovet]

This case would appear to vindicate Berta:

https://abkveteranslaw.com/blog/2019/3/9/porriello-cue-res-judicata

In relevant part:

Quote

HELD: A CHALLENGE TO THE BOARD’S JURISDICTION TO ADDRESS A SPECIFIC ALLEGATION OF CLEAR AND UNMISTAKABLE ERROR (CUE) MUST BE RAISED DURING THE APPEAL PERIOD OF THE RELEVANT DECISION AND CANNOT LATER BE CHALLENGED ON THE BASIS OF CUE WHEN THE APPEAL PERIOD HAS PASSED AND ADDITIONAL APPELLATE TRIBUNALS HAVE ALREADY ISSUED FINAL DECISIONS ON THE MATTER.

Source:  https://abkveteranslaw.com/blog/2019/3/9/porriello-cue-res-judicata

[Berta]

When this crap first started well over a year ago -I thought Alex was warned -but apparently it has started again.

My vindication has always been from established VA case law.

 

I miss the two excellent members he drove off the board here.....maybe it was three .

Thank you Broncovet! And Kanewnut.!

I had no intention of having my lawyer file a Notice of Intent against him- because of his last email to me.Alex knows what that is - a NOI ( shades of WWP Alex - ), I just wanted to know if the disclaimer he typed was legal.

It was crap. But my lawyer and I had a very good laugh- and he told me to hold onto the email because there is something in it Alex  probably hopes no one ever sees.

The OGC will see it.

 

 

 

 

 

 

[FormerMember]

 

Mitchell v. McDonald, 27 Vet App. 431,440 (2015)

(Cases “must be decided on the law as we find it, not on the law as we would devise it”)

And no, Loyal. The OGC Precedent is  not on point. <<<ADDRESS A SPECIFIC ALLEGATION>>> refers to belatedly raising CUE in an adjudication already underway where CUE was never alleged below. 

Here's a piece of judicial wisdom given to me by one of the acknowledged masters of VA litigation:

A Motion to Revise will always entail CUE

Conversely, a CUE will not always entail the filing of a Motion to Revise.

I guess I can't explain it any better than that. 

Example:

Johnny Veteran was just denied an increase for PTSD last week. The decision contained errors of law.  Should he:

a) file a new claim for a Motion to Revise his recent decision based on CUE?; or...

b) file a 21-995 with supplemental evidence? or...

c) file a 21-0996 HLR claiming CUE?; or...

d) File a NOD 10182 to the BVA? or

e) c or d only

That is what this is about. As for the applicability of §14.632(c((d), you lost me. Could you be more specific as to which subsection below I'm violating? By operation of law, I need to self-report my violation anyway. We can kill two birds with one stone.

 

(c) An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall not:

(1) Violate the standards of conduct as described in this section;

(2) Circumvent a rule of conduct through the actions of another;

(3) Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty;

(4) Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations;

(5) Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation;

(6) Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged;

(7) Delay, without good cause, the processing of a claim at any stage of the administrative process;

(8) Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA;

(9) Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA;

(10) Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or

(11) Engage in any other unlawful or unethical conduct.

(d) In addition to complying with standards of conduct for practice before VA in paragraphs (a) through (c) of this section, an attorney shall not, in providing representation to a claimant before VA, engage in behavior or activities prohibited by the rules of professional conduct of any jurisdiction in which the attorney is licensed to practice law.

TIA

a

P.S. I agree with you that Kanewnut should become a lawyer. Personally, I'd suggest agent as it's far less arduous than 7 years of college. 

Edited May 2, 2020 by asknod
clarification of post

[broncovet]

Im "not all that certain" I want to go here, but I do have an opinion, and its a lay opinion only.  Im certainly unqualifed to render any more than a lay opinion as I have 0 formal training in Veterans law, while Alex and Berta probably do.  

In answer to the "Johnny Veteran" question above, I would opine that the Johnny could maximize his potential for increased benefit(s), as well as doing so quickly, by utilizing at least 2 of the above.   "If" Johnny Veteran's appeal involved a "low amount" of retro potential (under 25,000), I would recommend the Veteran do both a) and b) above  for the following reasons.

"Provided that" the decision contains an error meeting the strict Cue standard of review, then (and only then) it would make sense to file the revision immediately.  However, in the event that the Cue revision "was not" adjuticated FAVORABLY,  the Veteran would still have an opportunity to meet a lower standard of review (benefit of the doubt) by filing a simple appeal as long as it was within the one year appeal period.    In other words answer A and additionally one of the other choices (b, c, or d) "if" the outcome of the cue was either unfavorable or it wasnt completed by the VARO within the one year appeal period.  

I am unaware of a prohibition that prevents a Veteran from filing a motion to revise AND ALSO file a nod within the appeal period.  That is, filing a motion to revise and a NOD are not mutually exclusive.  

Given VA's proclivity to delay, it makes perfect sense to me to file a nod prior to the 1 year appeal period even when a motion to revise has been filed "unless" the motion to revise was fully successful before the appeal period expires.  

Berta and I have discussed this in the past, and my understanding is that she agrees with this..you can file a nod with a revision to revise still pending or even if the motion to revise was denied within the 1 year appeal period.  

Its certainly possible that Johnny Vet's claim was unable to meet the strict cue criteria, but could still succed with the lesser benefit of the doubt appeal criteria.  

(If that makes any sense).  

By leaving open the option of BOTH filing a motion to revise AND a nod, the Veteran has the best of both worlds..he has the possibility of a speedy Motion to revise his claim favorably, but, if that fails, he still can file a nod, preserving the effective date.  It makes sense the motion to revise would be filed first, and quickly, and the NOD would only be filed if the cue were not decided or not fully favorable.  

I will reiterate my desire that all parties put aside differences of opinion, and focus on helping Veterans.  The differences of opinion are quite prevelant in medicine, law, and pretty much every thing else, so its not a suprise that there is a difference of opinion here.  Its almost a suprise when 2 doctors completely agree in all aspects of diagnosis, treatment, etc, so why would we be suprised that Berta and Alex dont agree on this one?  

Edited May 3, 2020 by broncovet

[Tbird]

Locked for now