I am not usually one to throw jabs at the VA Office of General Counsel (OGC), especially since they can’t respond on my blog.
Mostly, they’re a pretty solid lot, at least as government lawyers go.
But, this time, I have to share with you a shell-game that is being played in a certain type of case.
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Here’s how it works: you, the pro-se (unrepresented in normal people talk) Veteran, file a Claim for Revision to Earlier Effective Date (EED) based on Clear and Unmistakeable Error (CUE) with your VA Regional Office. Because you’re not a lawyer (meaning you talk and write like a normal person), you explain what you think that the Clear and Unmistakeable Error (CUE) was.
The VA Regional Office denies your CUE claim (as expected), the Board of Veterans Appeals (BVA) places its rubber stamp of approval on the denial (unsurprising), and so off you go to the Court of Appeals for Veterans Claims (CAVC).
In the Rule 33 Conference before your briefs to the Court are due, the VA Office of General Counsel (OGC) explains that you don’t have a claim that the Court can hear, because you didn’t specify the precise nature of the error in your CUE claim at the VA Regional Office (VARO).
“Not to worry,” the friendly attorney assures you, “withdraw this appeal at the Court, go back to VA Regional Office (VARO), and make this precise allegation of Clear and Unmistakeable Error (CUE). Give them a chance to review it, and if they don’t, you can always come back to the Court”.
Full of trust in one who is duly licensed to participate in the ethical practice of law (in a non-adversarial Veterans Benefits system, no less), you withdraw your Court appeal and head back to the VA Regional Office (VARO) to file your claim of CUE, being very precise this time, so there is no question what you meant.
A few weeks later, you get a letter back from the VA Regional Office (VARO), saying they are denying this CUE claim too, because you already brought the same CUE Claim but its final and unappealable because you withdrew your appeal at the Court of Appeals for Veterans Claims (CAVC). “We’re sorry”, they’ll say, “you don’t get a second bite at the apple.”
At this point, it would be completely understandable if you swallow your tongue in shock: You’ve just been punk’d by the OGC.
Here’s the real deal: Claims for an Earlier Effective Date based on Clear and Unmistakeable Error (CUE) do have to be specific. The Federal Circuit Court of Appeals – and the Court of Appeals for Veterans Claims (CAVC) – tell us that the normal pro-se Veteran has to be specific enough that the Court, the Board of Veterans Appeals (BVA) and the VA Regional Office (VARO) can identify the error that is being alleged, but not as specific as the undecipherable legalese spewed forth by us attorneys.
The Court of Appeals for Veterans Claims (CAVC) is going to sympathetically read and liberally construe an appeal by an unrepresented Veteran without a law degree, and see if the VA Regional Office (VARO) and Board of Veterans Appeals (BVA) could have reasonably figured out what you were talking about. (That doesn’t mean you’re going to win…it just means that the Court will look a little closer at your claim to see if you really raised that issue or not).
Contrast that approach with what the Court expects of us attorney types – if we plead CUE for a Veteran client and we aren’t precise…the only sympathy that the CAVC will have for an attorney is the fleeting thought “I sure hope that attorney has malpractice insurance.”
So, if you hear the VA OGC tell you “Don’t worry…”, as a general rule, you should worry.
If anyone – especially an attorney from the OGC – tells you to withdraw your appeal at the CAVC so you can start over – first see if they’ll put their reason why you should withdraw in writing for you. Then, get on the phone or a computer and call or email a Veterans Benefits attorney that understands CUE claims for Earlier Effective Dates.
Whatever you do, don’t withdraw your CAVC appeal until you’ve talked with an attorney that handles these kinds of cases for a living.
If you didn’t raise the claim properly, the CAVC will most certainly tell you; then you’ll have a decision in writing and “on the record”; if the VA Regional Office (VARO) tries to say, later, that you already raised that issue, you can show them the CAVC’s ruling that you didn’t.
PS…The above story is (mostly) non-fiction. The only fiction is that in the real situation, the Veteran was represented by an attorney that knew better. And the quotes in italics are not the precise language used by the VA OGC Attorney – he never told me “Not to worry”.
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by Chris Attig
