Hime: CUE in a Pre-Colvin Decision and Due Process

Hime v. McDonald, Opinion Number 14-3215, decided March 3, 2016 involves a claim of clear and unmistakable error (CUE) in a 1983 decision which denied entitlement to service connection for a hip bursitis.

In 1982 the veteran sought service connection for his hip and presented a statement for a VA physician supporting service connection.  Before the Board there was no negative evidence or evidence against service connection.  However, the Board still denied.  At that time, the Board was made up of 2 attorneys and one physician. 

In 2010, the veteran filed a CUE claim saying the only evidence before the Board was evidence supporting service connection, so a decision to deny was CUE.  The Board denied.  It agreed the only evidence before the Board was positive but stated the medical member implicitly provide the countervailing evidence to deny the appeal., which was not forbidden by statute or regulation at the time.

The Board decision was appealed to the Court which resulted in a JMR to address the ability to of the medical member to provide evidence.  On remand, the veteran argued the decision could not constitute a medical opinion and that allowing the medical member to provide a medical opinion would violate his due process and fair process rights as he was not given a meaningful opportunity to respond to the evidence.

The Court first addressed the difference between the Board in 1983 and now.  Then, the Board did not have to provide reasons and bases for its conclusions and included a medical member of the Board.  It also discussed the apparent fact that medical members decided cases based on their own medical expertise.

The Court decided the 1983 decision did not constitute medical evidence and then argued “the medical member of a Board section had the expertise to consider whether the medical evidence of record was competent, credible, and probative, and the Board was under no obligation to provide an explanation for its rejection of favorable evidence….  As discussed above, the presence of a medical member on the Board, pre-Colvin, allowed the Board to assess the probative value of medical opinions in a way that it now cannot, through the exercise of its own medical expertise and judgment.”  Id. at *8-9.

Judge Bartley wrote a powerful dissent.  She noted the second Board decision identified the medical opinion in the 1983 decision as a medical opinion.  She then determined the reliance on extra-record evidence leads to the conclusion that the 1983 Board decision committed CUE and violated the veteran’s constitutional due process rights when it denied service connection on the basis of extra-record evidence.

The argued that a medical Board at that time could rely on their medical expertise to consider whether medical evidence of record was competent, credible, and probative, but stated that was not what happened in 1983.  In 1983 the only evidence in the record was in favor of service connection, therefore, the decision of the Board was based on the extra-record evidence of the medical Board member.  The relevant statute in 1983 stated the Board was required to make its decision based on the entire record.  See USC 4005(d)(5).  However, Judge Bartley effectively uses this statute to argue that the Board member’s opinion was not of the record and could not be relied upon.  She also argues use of a new opinion denied the veteran constitutional due process rights as it did not first allow the veteran the opportunity to meaningfully respond to it—post-adjudication notice of the adverse opinion was not enough.

On a practical level this case has limited reach to only CUE in Pre-Colvin decisions (circa 1991).  However, Judge Bartley lays out arguments that might be used in other due process situations.

Decision by Judge Lance, joined by Judge Pietsch.  Dissent by Judge Bartley.