The due process argument was centered around the fact the notice of his RO hearing was sent to an incorrect address. However, he was offered the right to a hearing before the Board and chose not to have a Board hearing. The Court noted the right to later hearing was not taken and also noted no prejudice was shown because of the right to a later hearing and the fact he would have had the same effective date.
The CUE argument was also found to be problematic. The veteran sought to rely on an informal hearing presentation sent to the Board by the veteran’s representative. The presentation argued he was entitled to an increased rating, the presumption of soundness should apply, and the Board should accept a MEB determination that the muscular dystrophy was incurred in or aggravated by service. The Board treated the claim as one to reopen based on new and material evidence whereas the veteran argued this was enough to allege CUE in the underlying RO decision.
The Court agreed the VA has a duty to sympathetically read the pleadings of pro se veterans, even CUE claims. However, it noted the CUE must seek revision and state what constitutes CUE with some degree of specificity. Also, requests for revision of an RO decision based on CUE must first be submitted to the RO. The Court noted that he could refile anytime.
I think the decision brings to focus the issue of CUE. In this case, the veteran did not specifically site the underlying decision it wanted revised because of CUE. While perhaps not technically necessary, it is a good idea to focus a CUE claim and specifically say what decision you want revised and then explain why. The Court determined that by using the wrong jargon (ie requested an increased rating as opposed to service connection) and directing the request to the wrong body (the Board as opposed to the RO who rendered the decision they disagreed with) the issue of CUE was not properly presented.
Decided by C.J. Kasold, and Judges Davis and Schoelen.
