What has the Supreme Court said about (CUE) Clear and Unmistakable Error

[Tbird]

The case in question is:

George v. McDonough Oral Argument

The Supreme Court heard oral argument in George v. McDonough, a case concerning veterans denied disability benefits and the appeals process. Under federal law, veterans are entitled to benefits under federal law for injuries or disabilities resulting from their service, including pre-existing conditions aggravated during service. In 1975, Kevin George was diagnosed with paranoid schizophrenia just months after enlisting as a Marine. He received a medical discharge and filed for disability benefits through the VA. He was denied after a medical panel ruled his condition existed prior to joining the military. Mr. George appealed to the Board of Veterans' Appeals in 1977 but was unsuccessful. In 1988, Congress acted to allow VA decisions to be appealed in federal court. In 2014, Mr. George appealed again. He argued his case should be reopened because the board denied his claims based on an invalidated statute. Lower federal courts ruled against him, and he appealed.

This link will take you to the C-Span page of the hearing. This page includes the audio hearing as well as the text for those with hearing issues.

You can read the Amicus Brief here.

[Amicus Curiae - Latin for "friend of the court." Plural is "amici curiae." Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision. Such briefs are called "amicus briefs."]

[Lemuel]

2 hours ago, Vync said:

@LemuelWhen I joined in the early 90s, they made us take the ASVAB test, not a full spectrum MMPI exam. However, I was hoping he might win CUE under the aggravation vs. pre-existing condition laws/regs.  Granted he joined and was discharged in the 70s, the rules then might have differed greatly from when I joined in 1990.

Denials due to pre-existing vs. aggravation are pretty crazy, but are not always legitimate. If the entrance exam was silent for something they grant the presumption of soundness for it. Mental illness issues are often silent. Other factors like needing eyeglasses or having a healed fracture or injury scars are much more obvious. However, if an issue is noted at entrance, the military can still admit them into the service. If it is determined that service aggravated a pre-existing disability, they can still grant SC and even percentages. However, when rating the pre-existing/aggravated disability, they are required to determine the pre-service level of disability in terms of the rating schedule and deduct that from the current level of disability. I am not sure if that same law/reg was in effect back in the 70s though...

When you think about it, basic training back in the 70s was a much rougher experience than when I joined in 1990, which was still rougher than joining today (I hear recruits are given stress cards and have access to cell phones). I can see how someone might develop mental issues or suffer some sort of relapse from merely going through basic training. I honestly expected him to win based in part on the aggravation approach, not due to changes in the law/reg. Makes me wonder if he might try to send in a new CUE based on the aggravation, but I guess that depends on what is in his original C&P, discharge docs, etc... Just feel bad for him though.

 

When I joined in 1961, there was a strong prejudice against pre-existing conditions.  It appears to remain in the VA legal circles. 

After reading the Syllabus, I understood the prejudice that came from authors near my age against pre-existing conditions and short terms of service.  And I think there was the additional prejudice of creating a new line of entitlements from being of political age during the Reagan administration.

I served until 1974.  The draft had just ended before I got out.  That changed a lot of things.

I think I will have better luck with CUE.  I ask the BVA to re-open my previous BVA hearings and adjudications under 38 CFR 20.1000 which allows the BVA to reopen cases on request or on the BVA's own volition with some limitations. 

I think the BVA is taking time to investigate my allegations of fact because I received a call from a BVA staff member about what she interpreted as an FOIA request.  I was asking for an order to obtain items that had been denied to me and had not been provided to the Benefits Division on their requests.  Since they were not in my C&P file as I had noted, she said she would have to deny the FOIA request.

To make the request clearer, I ask the BVA to request a subpoena to the Medical Facility involved from the local VARO under 38 CFR 2.2.  

And I ask for a VA Central Office subpoena to the Medical Division who has the custody of my hard copy medical file that has not been scanned into the data base because my FOIA request on obtained additional copies of my C&P file on CD.

[john999]

When I joined in 1969 there was a very strong bias towards the Army diagnosing every mental condition as a pre-existing personality disorder or psychiatric disorder.  Probably half of PTSD claims were labeled as personality disorders so the Army and VA did not have to pay.  PTSD was not even recognized until the mid 1980's I think along with AO.   Vietnam vets suffered for years with being misdiagnosed.  I was diagnosed with everything from bipolar to paranoid schizophrenia. 

[broncovet]

Correct, John. Hill and Ponton law firm has at least one article on this:

https://www.hillandponton.com/personality-disorders-va/

In a nutshell, they said, "dont give up" if you have been denied based on a personality disorder (or similar) diagnosis.  

[Lemuel]

2 hours ago, john999 said:

When I joined in 1969 there was a very strong bias towards the Army diagnosing every mental condition as a pre-existing personality disorder or psychiatric disorder.  Probably half of PTSD claims were labeled as personality disorders so the Army and VA did not have to pay.  PTSD was not even recognized until the mid 1980's I think along with AO.   Vietnam vets suffered for years with being misdiagnosed.  I was diagnosed with everything from bipolar to paranoid schizophrenia. 

That went on through 1985 in many VAMC despite earlier contrary evidence.

[Vync]

@LemuelUsually, medical treatment records pertaining to hospital admissions may actually be stored at the hospitals. However, when the military began closing some of them, I have no idea where they might have been sent. 

I'm not sure the VA has subpoena powers, but they should be able to send a remand to request records. If said records are classified, there's no telling if they might be provided though.

Are you trying to get a pre-existing or aggravated condition SC'd? 

Here's my blog article which might be able to help, but given your time of service, the laws/regs I mentioned might be too new to apply. 

[Vync]

@john999When I joined, I had a few issues I noted on the questionnaire, but after the exams, the only things they officially diagnosed were acne (I was 19) and eyeglasses. In contrast, when I had the exit exam in Germany, the foreign doc noted a few things in writing, but marked all the boxes as normal. The exam lasted about five minutes total.

I have seen a trend of the VA diagnosing patients with adjustment disorders and then formally diagnose PTSD after a long time. The old DSM guidance did things differently back them.