MacKlem: EAP Equals CUE

MacKlem: EAP Equals CUE

The decision in Leroy B. MacKlem v. Eric K. Shinkseki, Opinion Number 08-1409, decided August 10, 2010, involves a decision that was made through a now disallowed VA procedure, extraordinary award procedure (EAP). The Court initially denied the appeal by a single- judge memorandum decision but the decision was withdrawn and the Court found error in this panel decision.

The Veteran was a WWII veteran of the Occupation of Sicily. Prior to service he had been in a car wreck and injured his pelvis. He subsequently was discharged from the military with for a hip injury. He was initially granted a compensation rating but it was severed because the VA found the hip injury was a result of the car wreck and any aggravation was the natural progression of the injury.

The veteran claimed the VA had committed CUE in its decision. While the Court was downright antagonistic to the existence of actual CUE on the merits, the Court did find the VA erred in how it handled his case. After his allegations of CUE, the VA Regional Office proposed a decision that found CUE. However, this decision was changed through the extraordinary award procedure (EAP). EAP required certain awards by the Regional Office to be sent to the compensation and pension director for final determination. The directives creating EAP ordered the decisions granting extraordinary award shall not be disclosed to veterans or representatives and not that they were not to be told the original award had been reduced. EAP was invalidated by the Federal Circuit in Purple Heart v. Secretary of Veteran Affairs, 580 F.3d 1293 (1297 (Fed. Cir. 2009) in part because the procedure prevented a veteran from knowing what persuaded an unidentified decision-maker to reduce the award that was made by the persons before whom the hearing was held.

Here, because the Court found the VA applied an improper procedure the proper remedy was found to be to place the veteran in the position he was in before the EAP, in receipt of the favorable Regional Office decision.

Interestingly, the Court then went on to find the allegation of CUE was actually in error but that notwithstanding that fact, the veteran was entitled to the earlier favorable decision before the EAP process had intervened. The Court commented on the fact that many claims adjudicators are underqualified (26% do not have college degrees, 40% have college degrees, and only 34% have more than a college degree) and commented that the VA should be able to have some system to allow more experienced supervision to avoid mistakes. Id. at *12. Essentially, the Court took the Federal Circuit to school for its decision in Purple Heart and the VA to school for failing to correct the problem by finding a way to create an allowed system of reviews.

The short-term impact of this decision should be to open the way to a clear Court victory for any veteran that was denied under the EAP process. The long-term impact is that the opinion focuses on a real shortcoming in the claims process (inexperienced, undereducated, and undersupervised claims adjudicators). Unfortunately, I can imagine the result will be more pressure to deny all but the most simple claims at the Regional Office level while pushing more cases to the DRO and BVA level, which only exasperate those caseloads.

Decision by Judges Lance and Hagel with a concurrence by Judge Schoelen.