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."]

[Richard1954]

When I joined the Army in 1971, preexisting conditions were often overlooked ( with a wink of the eye). Once a recruit got pass the physical. he was good to go if he could last pass ninety days.  After ninety days,  he could then seek treatment for any issue, and it did not ring any bells.  However in my day going on sickcall in basic was a no-no. The DI's would single you out for KP, guard duty or some other distasteful duty. I was a skinny, 6' 2"  and 145 lb kid at 17.  I had one DI that told the Mess Sgt to make sure I got extra rations,  ( heck I could not eat all the food to begin with).

We had another kid that was 17 and he literally looked younger than 17. All the recruits gave him a hard time, calling him little boy,or mama's boy and other names. No one ever questioned my age, and I never mentioned my age, for fear they would give me a hard time. I tried to support the guy,  but  I never told him my secret either.

I knew of one guy that got in with asthma, apparently he had not had a problem for a long time before enlistment so he did not mention it.  While in Basic he had some issues with exercise induced attacks  and went on sick call. One DI in particular was  cruel, learned of this guys asthma and started to harrasement him , he finally  tried to convenience him to request a discharge. The guy hung in saying  he had no place to go, and would not give up. He made it thru basic, and went on to become an  Air Traffic Controller. He could not have had bad asthma, because he got into the Personal Reliability Program (PRP) , which I know required a special physical.  After his first assignment, I don't know what became of him.

I am sure alot of guys got in with all kinds of problems,   they needed troops to fight in vietnam, so they were not going to turn anyone away. 

Before I even got thru Basic I was told to report to some officer ( I think he was a major) he told me I could not enlist for 2 years because I was only 17, he said only those 18 and above who could be drafted could enlist for 2 years.  He told me I had to take the oath again this time for 3 years. I told him, not going to happen send me home, you won't give me the school I want, I am not giving you an extra year. He sent me back to my platoon, and I never heard another word. 

Joining in 1971 basic was no picnic, and then they sent me to Infantry training at Fort Polk, Louisiana.   I don't know which was worse, the heat or the training. 

Edited June 17, 2022 by Richard1954

[Lemuel]

2 hours ago, Vync said:

@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. 

The VA Secretary has subpoena powers as do all Department Secretaries through their DOJ sections known as "General Counsel."

The VA Secretary's subpoena power is delegated to VARO directors which delegate, according to the VA research specialist I spoke to, to the local VA Office General Counsel.  38 CFR 2.2.  My request for a subpoena from the Director VARO Los Angeles is waiting to find the Office of General Council address for that VARO.

The hard copy "Medical Division medical files" are maintained in the Medical Division Archives who knows where?  In order for me to find my hard copy Medical Division file to replace items that were taken out during RO assessments and never returned to file or placed in someone else's file in error or even shredded to catch up work under pressure, I have to find the Facility that last had my hard copy medical file.  The VAMC at San Diego, Los Angeles, would probably have gone to San Bernadino.  VAMC in DC and Baltimore would probably go to the DC National Archives.  Wyoming to either Denver or Billings depending on whether it was Cheyenne or Sheridan that archived it. 

I was traveling homeless between those VAMCs during the transition from hard copy to data.  Not all of them had the same digital systems and they could not see records from one VAMC to the other at that time.  And some were still maintaining hard copy files.  The last time I saw a VA physician have my hard copy medical file was in DC shortly before I went to San Diego and requested my medical file to be transferred there.  I was there about one year being seen every two weeks and never saw a physician with anything but a laptop.  I was also seen in LA and LA may have requested my file from DC because I told them that was the last place that I saw it.

National Archives is scanning archived material into data files.  

There is a VA OIG report of a 5.25-mile-high stack of VA files that have not yet been scanned.

The above is my best guess on what is happening haven gotten 1988 files from the San Bernadino National Archives and that we do not get VA files from the military National Military Personnel Center Archives in St. Louis.

I will let everyone know once I get a copy of my hard copy medical file where it came from by return address.  The VA has active copies of all documents in the VA Compensation and Pension Files which include all of your data VA medical files. 

When I requested a copy of the VA Medical Division archived "hard copy" of my medical file what I received was a partial copy of the over 10,000 pages with copious duplicates that I received when my C&P file was belatedly released from Pittsburg sensitivity seven division in 2015 and scanned by Cheyenne Division of Denver VARO in Denver by a contractor. 

The 2 boxes I received were 18 " tall with 2 stacks of 2 sided documents in each.  4 x 18" = 64" or over 5-foot-tall stack of two sided documents to wade through for my 2016 BVA hearing.  I believe the contractor padded their bill by running stacks of documents through more than once because the back side of PROGRESS NOTES did not match the dates of the front sides and many had other documents as the back side consecutively in the stacks.

While I was a MATcat in the Navy the hospitals stored IPTR 5 years after the last entry before sending them to ST. Louis.  Civilian hospitals also had the same time period before archiving.  X-ray films were sent for silver recovery after 5 years after the last X-ray was taken on an individual.

I mention the above to show I have some experience to try to connect the dots and find my records that are missing from my C&P file.  I have had no luck with FOIA requests since 1998.  The files I had became paper machete in a flood.

[john999]

Fort Polk was a horror story.  It was a slum.  I was at Ft. Benning and Polk in the summer of 1969.  Heat stroke was the word.  We had a guy in basic with a heart condition.  He wanted to stay in the army.  They did finally discharge him.  Every time we went on a march he fell out. It took the army about 6 weeks to finally discharge him.

[Whodat]

I am from Alexandria. I hate Polk. The only time I step foot on Polk was for JRTC. 

[Vync]

On 6/17/2022 at 11:36 PM, john999 said:

Fort Polk was a horror story.  It was a slum.  I was at Ft. Benning and Polk in the summer of 1969.  Heat stroke was the word.  We had a guy in basic with a heart condition.  He wanted to stay in the army.  They did finally discharge him.  Every time we went on a march he fell out. It took the army about 6 weeks to finally discharge him.

I went to Fort Jackson in the early 90s for basic. We had a number of folks who fell out due to the heat, too. However, I remember one guy who was a holdover from the prior cycle. He had been diagnosed with narcolepsy. We wanted to stay in and actually got treatment was able to graduate. It was hard as hell for him to keep up, but he made it through to graduation.

[retiredat44]

it just occurred to me that those looking for hospital records from civilian hospitals, in the State of California, if you have not been a patient there for 7 years, they are no longer legally responsible to keep your records. You can go to their records and find out. THis may not still be the law, as I haven't looked into it in many years. Hope it helps someone.