Veterans' Advocate Jim Strickland answers questions from VA Watchdog dot Org readers.

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Veterans' Advocate Jim Strickland provides regular columns for VA Watchdog dot Org.  If you would like to contact Jim about his columns, you can email him here...  The archive of Jim's articles is here...  To find an answer to a specific VA benefits question, use the VA Watchdog search engine... click here...  And, be sure to use Jim's:  A Military Veterans Guide To Disability Compensation and Pension Benefits -- A Compendium of Resources and Knowledge For The Disabled Veteran -- click here...   JIm's series for new vets, "Welcome Home," is also featured on Military.com. And, you can follow Jim on TWITTER here ...

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by Jim Strickland

NOTE:  Letters in my Q&A columns are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.

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Jim;

The Lord blesses you and also blesses your love one. So far since our last communication in May 09, a lot have happened from the final outcome of the approval of my 100% status, thanks to you and your wise advice.

My house is almost paid off, no credit card bills, medical benefit and education benefit for my dependents and many other good thinks that had happen so far. Peace of mine and tranquility arrive at my life at last. Thanks to you and your advice all good think have overcome over my house and my life.

As you may notice, I have advice few veterans’ friends to approach you with questions on their claim and to seek your wisdom and share of knowledge. I have take this approach because their request for assistant were out of my ability specially when it come to write that important nexus letter that is the connection between what happen years ago and what is happening today. Even dow we are dealing with high qualify professionals in their own field of medicine, at the same time they are far away with the required understanding of the Veteran Administration web and phraseology, when we talk about the specific and necessary vocabulary needed to be present it to the VA when one of this nexus letter is needed.

As you may remember the successful outcome of my story was because that special and specific help you provide my self. You were able to break down the information I provide you and used the medical detail of all those laboratory reports and assisted with the necessary arrangement and recommendation on how to present the nexus letter required to present to the Veteran Administration. Today I will like to thank you on my family behalf and on my own self. Thank you for your understanding, guidance, support, and the continuance education you are providing keeping me and many others on, when you answer those inquiry by so many others veterans that you take your time to answer and teach.

Thank you, As always, your friend from Puerto Rico.

Reply;

That's very good news sir. I think of you often and I'm pleased to know that you are finally receiving the benefits you earned by your honorable service to our country.

Please give your family my best wishes. Encourage them to take advantage of what they now have presented to them, particularly those education benefits.

I hope you'll continue to work with other veterans in Puerto Rico and assure them that with patience and a dedicated effort, the VA will eventually award to them all they deserve. When one veteran helps one other veteran, our world becomes a better place.

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Jim;


I have a vet with a very provocative CUE claim.

The VA misapplied 38 USC 1111, and 38 USC 1153 in a 1969 denial, which also manifested the outcome of 2 more denials years later,

He was awarded for same disability 2 years ago by the BVA.

The VA also used one part of a MEB report to deny his claim whereas the part they ignored supported it.

In any event-the BVA noted that a VA examiner in 2005,via an addendum to his C & P "never considered whether the veteran's depressive/bipolar disorder began in service."

Since every C & P exam calls for the "nexus" statement I want to use the AMIE worksheet used in March 2005 as evidence but the mental disability worksheets were changed in 2007.

Then again- would I actually need the 2005 blank worksheet as evidence as the "nexus " statement is so fundamental to the claims process, that I could shape the CUE into violation of the M21-1 regs that call for the C & Ps to be performed according to the worksheets?

This is just one of the potential CUEs in the older decisions. It isnt resting on a question of how medical evidence was weighed- and of course the BVA award granted the claim-but in my opinion this is a clear and unmistakable error for an examiner- even in an addendum, per the BVA to have not made any nexus statement at all.

The veteran's claim was as valid for award in 1969 as it was when BVA awarded it. Those 1969 VA decision (I have copy of his opriginal decision) sure were lacking in Reasons and BAses in such a way that a veteran could even appeal some of them.

As bad as things are today in the claims process- the SOCs are by far better then they used to be and they contain the keys to overcoming the denials.

He didnt even get a C & P when they denied in 1969.

Thanks for any thoughts here.

Reply;

Thanks for writing to me via my Veterans Benefits Guide at http://tinyurl.com/5wxapm

I appreciate your kind comments and all the nice things you have to say about the guide.

I know you as a lay veterans advocate who is very active on the Internet with advice for many veterans. To my knowledge and belief, you aren't certified by the VA to represent veterans in cases before the BVA or the court.

Neither am I. Frequent readers know I don't currently represent veterans. I don't hold a Power of Attorney (POA) for any veteran.

I offer advice to guide veterans through the administrative obstacle course that is at every Regional Office. I believe that to successfully navigate the Regional Office process is to keep claims out of the BVA and the court and that lessens the need for our attorney friends to be involved.

At the RO claims are still a matter of administrative decisions and although it may feel adversarial, it isn't supposed to be. Once away from the RO the process becomes distinctly adversarial and my education and credentials don't allow me to work in that arena.

(I'll point out that I have completed a course of training and have applied to VA to be credentialed as an individual advocate credentialed to represent veterans. Typical of our DVA, my application to become certified has been delayed for months in the offices of the DVA General Counsel as they perform background checks on me to see if my character is acceptable for their high standards. Were I to be sponsored by a Veterans Service Organization none of that would occur as it then becomes a rubber-stamp process. However, even though I've excelled in training and testing as well as having some small practical experience at all this, I'm waiting for my background check and then the local VA counsel will have an opportunity to test me again. It's beginning to appear that it will take 18 to 24 months for me to become accredited to represent individual veterans...about the same time it now takes to have your benefits application adjudicated.)

I never touch claims that I believe are CUE. CUE is a legal term and concept and as I don't have a law degree, I don't work in legal issues. My role is strictly administrative at the VARO level. I refer any veteran who I believe has a CUE claim to an attorney who is experienced in such things. I will continue to do this after I become accredited. Accreditation as an advocate isn't the same as having a degree in law.

Many well trained and experienced lawyers who practice VA law won't handle a CUE claim and will quickly refer such on to their more experienced or specialized colleagues. CUE isn't ever (to my knowledge) resolved at the RO level and is all too often taken beyond BVA to the court.

A couple of years ago I started recommending that veterans who are headed to BVA or higher only be represented by an experienced attorney and not a lay advocate. I don't believe we do our brothers and sisters any favors by playing lawyer when so many fine lawyers are available today.

In addition, I wonder about your malpractice liability when you delve into matters that are not strictly administrative? Representing a veteran in a legal sense is a heavy burden and lawyers are prepared for that by virtue of training, canons of ethics, certification before state BAR associations and malpractice insurance. Lay advocates who go beyond their skill levels are opening themselves up to significant liability should they make a mistake.

I'd refer the veteran to a trusted lawyer.

Follow-Up Comments;

You wrote back to me to protest my point of view. You stated:

"I wrote the CUE claim for the veteran. I ,too,certainly am concerned about advocates who go beyond their skill levels.I see a lot of that. I am helping him find a NSO or rep to represent him on this CUE.

The CUE has not been denied yet, therefore no NOD filed, and therefore no access to using the lawyer for vets regs-they arent applicable here.

Malpractice? I would certainly report any advocate who commits malpractice to the VA and the OGC been there done that as well

I helped this vet primarily resting on my training from NVLSP as well as the VBM and any veteran, widow or claimant can file a CUE claim themselves or via a vet rep.If the CUE is denied and an NOD follows (after the June 21 2007 lawyers for vets regulations) the can obtain a lawyer if they wish.

I am sorry I even asked you about CUE, I have had the VA CUE itself twice and have filed 2 CUES myself. And I won 40,000 regarding a past CUE claim I had. Without a lawyer -had a vet rep but he didnt even understand the award letter.

I have never represented a veteran-nor do I play lawyer-I help them prepare their claims. I did win a wrongful death FTCA settlement without a lawyer but still didnt play lawyer just used the medical evidence to prove VA malpractice-prime facie- Some vet rep out there is going to just love this vet's CUE claim and will gladly hold his POA."

As I'd said earlier, you're well known to me as an outspoken voice on many Internet sites. You're seemingly everywhere, posting comments to many boards, proclaiming your own expertise. You, like me, are a lay veterans advocate. There is a distinct difference in how we approach our advocacy efforts though. I don't claim expertise beyond the boundaries of the Regional Office. I have no skills or training to represent veterans at BVA or the court and I believe I do a disservice if I attempt to resolve cases beyond my ability.

In the untamed frontier we know as the Internet, there are a great many "experts" in every field imaginable. The Internet is the perfect place for these sorts of experts as there are no controls, no borders and anyone can say anything that they please.

You asked my opinion and when it isn't what you want to hear, you lash out. You claim to not play lawyer but at the same time you try to use lawyerly language and show off your legal skills citing how much money you've won for yourself. You open by saying you "wrote the CUE claim for the veteran" but that you are "helping him find a NSO or rep to represent him". I'm not sure which is true?

I decided to run this by a couple of trusted lawyers to make sure that I was correct. To understand a CUE, we should review what's required.

CUE is defined by the Code of Federal Regulations as:

Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statuary and regulatory provisions extant at the time were incorrectly applied.

To prevail in CUE the veteran must present a detailed and logical argument showing: (1) the alleged CUE of fact or law; (2) the factual or legal reasons for the alleged CUE of fact or law; and (3) why the decision would have been “manifestly different but for the alleged error.” If you simply state that the previous decision contained CUE without providing exactly how the previous decision contained CUE, your CUE claim will be dismissed.

The attorneys I consulted agreed that a denial of a claim is not necessary to file CUE. One lawyer said,

"There is no statute of limitations re a CUE claim, so you can file one any time. It must be preceded by a rating decision because technically a CUE claim is a request for a revision of (x) decision based on Clear and Unmistakable Error. So you need a decision to trigger the CUE claim, but that decision need not have been a denial of benefits, just not the correct one."

Another attorney practicing VA law makes these points,

"(This is a) Good issue to review. CUEs are especially problematic because VA does not have to even pretend to 'assist' and it is adversarial from the start. Also, the Vets Court has explicitly and repeatedly rejected appeals of CUE denials because the INITIAL CLAIM failed the legal test of specifically and in detail explaining the "error" in the CUE. Few vets realize that the usual ('VA made a mistake') type of assertion is not enough for a CUE. Have to specify exactly what the error was and why fixing the error would change the outcome BASED ON THE LAW THAT EXISTED AT THE TIME. Even fewer vets understand that. I have seen several good CUE cases lost on these legal 'technicalities.' And CUE claims, by their very nature, are big dollar claims - you are not going to sneak one by the VA machine."

In other words, if you screw up a CUE claim at the start, it can be be rejected for appeal later.

Each of these lawyers addressed the issue of representation and fees in the way that the attorneys who I work with (and I believe the majority of veterans lawyers) typically would. If a veteran has a legitimate CUE claim and contacts the lawyer, the lawyer will work with the veteran either pro bono or in a fashion that would allow a future, modified fee agreement. Many lawyers do something similar today...they assist a veteran with the initial claim pro bono. Then, if the initial filing is denied, a fee agreement becomes active and the lawyer takes over the appeal.

Thus, you are incorrect to say that a veteran may not use a lawyer until NOD is in place. A CUE is different than the garden variety claim denial and the usual rules of representation don't always apply.

The fact of the matter is that in telling me why you believe that you should proceed to file a CUE claim on behalf of a veteran, you've demonstrated that you have little understanding of the laws surrounding CUE. Your knowledge is lacking and any veteran that you represent in a CUE claim is not being done any favors. If you lose, I'd hope that the veteran pursues the issue of your representing him with the VA OGC.

Like other "representatives" who are highly active on the Internet claiming to be expert at all sorts of VA law, you'll continue to do as you please. This is one of the reasons that I so often protest the way that the system is set up today. Anyone with any amount of skill can make unsubstantiated claims of success and "represent" veterans as they seek to satisfy their own goals.

I stand by my assertion that a claim of Clear and Unmistakable Error (CUE) on the part of the VA should only be addressed by a properly trained lawyer who is experienced in such matters. I also stand by my statement that I won't ever go beyond the level of my own skills and file cases that I shouldn't. To do so may cause great harm to a veteran.

It's understood that you aren't a veteran. You have never taken the oath nor worn the uniform. However, I personally feel that I owe my brothers and sisters the best I can give and often enough, that means knowing when to take my ego out of the mix and seek help from a lawyer.

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TOPICS: veterans, veterans' benefits, VA, Department of Veterans' Affairs, Jim Strickland, Veterans' Advocate,