Veteranclaims’s Blog

March 21, 2009

CUE, assorted Quotes

Filed under: CUE; 5109A(d); Andre; — veteranclaims @ 6:34 pm

Non-attorney found quotes:

“To the extent that Mr. Andino contends that the 1975 Board failed to consider certain evidence favorable to him, although this Court has recognized that a viable claim of clear and unmistakable error may be premised on the theory that the Board had failed to consider evidence of significant probative value, this Court has also made it clear that, for such a claim to succeed as to a Board decision issued prior to February 1990, the Board must have denied the very existence of the evidence. See Glynn v. Brown, 6 Vet.App. 523, 531 (1994) (Court found no clear and unmistakable error in a 1950 Board decision where the Board “did not deny the existence of an in-service injury” but only that “any injury appellant may have sustained during service did not aggravate his preexisting condition”).”

Ingram v. Nicholson, No. 03-2196 (Argued February 22, 2006, Decided July 12, 2006 )
As to the Board’s suggestion that the appellant was required to allege negligence or lack of skill, measuring the appellant’s submissions against a strict pleading requirement is fundamentally inconsistent with the concept of a sympathetic reading and, therefore, constituted legal error by the Board. The application of such a pleading requirement violates the duty to sympathetically read submissions because it required the appellant to demonstrate a level of sophistication that would render moot the duty to sympathetically read his pleadings. In other words, it is precisely because unsophisticated claimants cannot be presumed to know the law and plead claims based on legal elements that the Secretary must look at the conditions stated and the causes averred in a pro se pleading to determine whether they reasonably suggest the possibility of a claim for a benefit under title 38, regardless of whether the appellant demonstrates an understanding that such a benefit exists or of the technical elements of such a claim. The Board’s suggestion that the appellant was required to articulate a specific intent to “claim . . . compensation benefits under the provisions of 38 U.S.C.A. 1151” is similarly flawed. R. at 8, 9. The duty to sympathetically read exists because a pro se claimant is not presumed to know the contents of title 38 or to be able to identify the specific legal provisions that would entitle him to compensation. Again, there would be no need for the duty to sympathetically read pleadings if pro se claimants had encyclopedic knowledge of veterans law.

See 38 U.S.C. 5109A(d) (“A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.”); Andre, 301 F.3d at 1362 (“A claimant . . . may present a novel allegation that [VA] committed CUE ‘at any time.'”).

See Chisem v. Principi, __ Vet.App. __, __ , No. 90-1540, slip op. at 12 (U.S. Vet.App. Feb. 9, 1993) (requirement of liberal reading of all documents submitted prior to BVA decision extends to determining whether CUE claim was raised to BVA (citing Azurin v. Derwinski, 2 Vet.App. 489 (1992) (BVA must review all issues which are reasonably raised from a liberal reading of appellant’s substantive appeal ), and, where appellant raises CUE before BVA, BVA must review the issue).

See DiCarlo v. Nicholson, 19 Vet.App. __, __, No. 03-629, slip op. at 8 (May 10, 2006) (once the Secretary has made a finding of fact, a later decision reconsidering that finding outside of a certain circumstances (e.g., outside the context of CUE or reconsideration by the Board Chairman) is ultra vires and must be set aside);

Disabled Am. Veterans v. Gober, 234 F.3d 682, 694 (Fed. Cir. 2002) (“[A]llowing a claimant to seek CUE review of a specific issue in a Board decision leaves other issues in that decision subject to their own CUE review.”).

Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (each theory of CUE must be adjudicated as a separate and distinct request so that the preclusive effect of res judicata bars refiling only as to that particular assertion of CUE);

Stallworth v. Nicholson, No. 04-0093 (Decided November 15, 2006)
the Board must realize that the “plausible basis” standard is irrelevant in determining whether the Board’s 1981 finding was the product of CUE. R. at 7. The proper standard for the Board to apply is the following three-part test to determine whether the 1981 Board decision is the product of CUE: (1) whether “[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied”; (2) whether the existence of an error is “undebatable”; and (3) whether the error is of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.” Damrel, 6 Vet.App. at 245 (quoting Russell, 3 Vet.App. at 313-14).

Moreover, in this instance, Mr. Funes’s assertions of CUE are not susceptible to “clarifying modification” or rephrasing by the Board to attain the degree of specificity necessary to constitute an adequate pleading. Indeed, it would be sheer speculation for the Board to attempt to do so. See Canady, 20 Vet.App. at 402 (“[A] sympathetic reading of CUE pleadings may result in clarifying modifications.”); see also Jordan v. Principi, 17 Vet.App. 261, 270-71 (2003) (holding that an appellant is not bound to the exact words used in a request for revision on the basis of CUE in a Board decision and may “rephrase and provide additional argument and support for the same basic CUE argument presented”), aff’d sub nom. Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005).

The Board, citing Daniels v. Gober, 10 Vet.App. 474 (1997), concluded that the reweighing of old evidence to determine whether a prior decision is based on CUE is strictly prohibited . Id.”
A request for revision based on CUE must be pled with specificity, but the Board is nonetheless required to read a pro se request for revision sympathetically. See Canady, __ Vet.App. at __, slip op. at 9, 2006 WL 2563459, at *6 ( citing Andrews v. Nicholson, 421 F.3d 1278, 1282-83 (Fed. Cir. 2005)).

the Board cannot adjudicate a CUE theory that is wholly distinct from that which is presented, see Huston v. Principi, 18 Vet.App. 395, 402 (2004); see also Jarrell v. Nicholson, ___ Vet.App. ___, ___, No. 03-0572, slip op. at 8-9, 2006 WL 2434262, at *5-6 (Aug. 24, 2006 ) (en banc); but see 38 U.S.C. 7103(c) (authorizing Board sua sponte to correct obvious error in the record), 7111(c) (authorizing Board sua sponte to review for CUE in prior Board decisions), a sympathetic reading of the CUE theory may result in clarifying modifications, cf. Jordan v. Principi, 17 Vet.App. 261, 270-71 (2003) (holding that on appeal to the Board an appellant is not bound to the exact words used in a request for revision on the basis of CUE in a Board decision and may “rephrase and provide additional argument and support for the same basic CUE argument presented”), aff’d sub nom. Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005).

See Andre, 301 F.3d at 1361 (each specific theory underlying CUE attack on final decision constitutes separate claim); Link v. West, 12 Vet.App. 39, 44 ( 1998) (“Under the principle of res judicata, ‘once there is a final decision on the issue of [CUE] that particular [request for revision on the basis of CUE] may not be raised again.'” (quoting Russell v. Principi, 3 Vet.App. 310, 315 (1992) (en banc))). On the other hand, a manifestly changed outcome might be inferred from pro se pleadings, even though not explicitly stated. See Sondel v. West, 13 Vet.App. 213, 221 (1999) (“when it is clear, on the face of the decision being assailed for CUE, that the error alleged did in fact occur and would manifestly have changed the outcome of the case, the Court will reverse”); Olson v. Brown, 5 Vet.App. 430, 434 (1993) (if assertion that RO did not properly apply the “clear and convincing” standard required to terminate a total disability rating based on individual unemployability is substantiated, such a failure “would have manifestly changed the outcome of the decision” because the standard to reduce the benefits had not been met); see also Roberson, supra.

“In Myler, this court[CAVC] found CUE in a previous November 1953 RO decision’s failure to apply properly the predecessors of 38 CFR 4.72 and 38 CFR 4.56(b) for muscle injury to a veteran’s thigh. Myler, 1 Vet.App. at 574.” “Hence, the court in Myler interperted 38 CFR 4.72 and 4.56(b) as providing that “a through and through” [apparently muscle] wound by a single bullet or small shell or shrapnel fragment was to be rated as of at least moderate degree of disability” regardless of whether the muscle sustained any permanent damage. Ibid.”

“a through and through injury, with muscle damage, is always at least a moderate injury, for each group of muscles damaged.” 38 C.F.R. 4.72 (1982).”
“In 1983, the following regulation was in force:
16. Principles of Combined Ratings.
. . . . (1) Muscle injuries in the same anatomical region, i.e., ( a) shoulder girdle and arm . . . , will not be combined, but instead, the rating for the major group affected will be elevated from moderate to moderately severe, or from moderately severe to severe, according to the severity of the aggregate impairment of function of the extremity. 38 C.F.R. 4.55(a) (1982) (emphasis added);

G.C. Prec. 26-97
In July 1997, VA general counsel issued an advisory opinion, which held that the addition of PTSD as a diagnostic entity to the rating schedule, effective April 11, 1980, was a liberalizing issue for purposes of _ 3.114(a). G.C. Prec. 26-97 at 6. In doing so, the general counsel noted that the addition of PTSD as a diagnostic entity “significantly reduced [a claimant’s] burden of proof in establishing service connection” because now, a claimant need not demonstrate “in-service manifestations of a psychiatric disorder”; rather, the record must only reflect that “the claimant
experienced a stressor during service and that he or she currently exhibited PTSD symptomatology.” Id. at 4. Despite recognizing that the addition of PTSD as a diagnostic entity to the rating schedule was a liberalizing issue, the general counsel’s opinion expressly noted that such action “does not authorize a retroactive award for every grant of service connection for PTSD.” Id. at 5. Rather, the general counsel opined that “an effective date prior to the date of a claim cannot be assigned under [38 C.F.R. _] 3.114(a) unless the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diagnostic code for PTSD, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement.” Id. at 6.

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