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Supreme Court hearing CUE issue

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8th&IMarine

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Interesting case with arguments heard this morning:

George v. McDonough is a case involving when a veteran has the legal right to appeal after the U.S. Department of Veterans Affairs (VA) denies a disability benefits claim. Veterans have the right to challenge final VA decisions if the agency makes a "clear and unmistakable error" (CUE). This case is about whether CUE occurred when the VA relied on later-overturned regulations to deny a disability claim.[1]

The case is scheduled for argument before the Supreme Court of the United States on April 19, 2022, during the court's October 2021-2022 term.

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  • Content Curator/HadIt.com Elder
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  • Content Curator/HadIt.com Elder

Thanks for the live stream link @Tbird!

Sounds like the Russell decision from the Federal Circuit read the statute too narrowly. The statute said one thing and the regulation rewrite altered the meaning by omitting criteria present within the statute. The Federal Circuit then decided Russell based on the regulation instead of the statute. I.e. the Federal Circuit had to decide whether to follow the law or the regulation and they simply chose the regulation. The VA is acting like a regulation can take precedence and override the plain language of a statute/law.

VA claims a ruling in favor of the veteran would open administrative floodgates and cause them undue hardship. VA estimates 16 million finally adjudicated denied claims which could be reopened to request retroactive benefits in light of their 1.4 million claim/year caseload. They are concerned that it if the court found an old law/reg to be invalid, it might retroactively apply to everyone who had incorrect decisions based upon it. They are also saying that veterans had the opportunity to request direct review, but the veteran's case was decided well before that was possible. The VA mischaracterized a lot of factors.

I learned something potentially new. The VA lawyer said a veteran can also request review by the VA Secretary, but it is rarely used.

One of the justices said this was the most obvious case of clear and unmistakable error he had seen in 40 years. I think that might have been justice Breyer.

I might be wrong in how I see this. Anyone else want to respond regarding their interpretation of the oral arguments.

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In the year 2000 I filed 3 to 4 different type Claims and appeals including a pro se CUE appeal with the BVA and then the U.S. CAVC court. I filed all these claims and appeal at about the same time to create system overload.

One of the claims was an Administrative Review request direct to the Secretary of VA called a Petition For Equitable Relief concerning VA doctor and drug abuse against myself and several other vets at the Temple, Texas VA hospital in 85 and 86. Other claims filed were a VA Section 1151 Injury claim and another TDIU request that I filed direct to the Waco Regional office.  I had nothing to lose.

The secretary responded in short order that my Equitable Relief claim was being sent to the VBA and not too long after that I received a P&T TDIU rating from VARO and then another letter from Sec of VA confirming I was considered permanent & total retroactively.

About this same time the CAVC court decision on my pro se CUE appeal stated the VARO and BVA committed due process error in not adjudicating me for a TDIU rating and court's remand instructions ordered the VARO to adjudicate me for the TDIU.  VARO had already issued me P&T TDIU just before the court's written decision in my favor.

Like a perfect storm everything came together at about the same time that resulted in about 5 years back pay so everything worked.

Also received many letters from U.S. Senators and congressmen plus two Regional office directors and director of Temple VA hospital apologizing for my mistreatment.  I had sent copies of my section 1151 injury claim to all those senators and congressmen and asking for their help.  I still have originals and copies of all those letters just in case I may need them again. 

What worked for me may not work for others.  Cheers

Edited by Dustoff 11
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