CAVC–ARNESON v SHINSEKI–TOO MANY JUDGES, SO LITTLE TIME


  Meet Robert H. Arneson, a Squid Veteran of the Vietnam era.  Mr. Arneson filed for several issues in 2005.  After denial and a prolonged SOC and SSOC battle, he finally had his day at a BVA Travel Board hearing in the fall of 2006. This hearing was before Veterans Law Judge Sabulsky. His claim was remanded for an IMO over a year later in October 2007. 

     In January of 2008, the Board granted one claim but continued the denial of the other two claims before them. In June of 2008 Mr. Arneson had a second Board hearing, this time via a video hookup before another, different Veterans Law Judge named Herman. This was the beginning of his problem. He now had not one, but two law judges involved in his claim. BVA law says there can be one or more judges on a decision, but panels have to be composed of odd numbers in order to attain a majority decision as opposed to a tie.  As Mr. Arneson had two judges, a third one had to be added. When this occurs, VA is required to tell you about it, not inform you after the fact when you receive the Dear John letter. This they did not do.

     Mr. Arneson rightly argued that he should have had a hearing before the third judge named Sullivan to make it legal. The VASEC disputed this and said the regs read differently, and besides, two of the three judges ruled against him anyway so it was a moot argument.  Even, arguendo, if he had been granted a hearing before Sullivan, there was no guarantee it would have come out in his favor. Then the VASEC dragged the following argument out of the closet and tried to bamboozle the Court. They weren’t buying: 

As an initial matter, it is well established “that the unchallenged historical practice of the Secretary is not evidence that the practice is correct.” Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) (citing Brown v. Gardner, 513 U.S. 115, 122 (1994)). The fact that the Chairman may assign Board  members to a panel in piecemeal  fashion cannot serve as a basis for the Secretary’s interpretation of his own regulation, especially when that practice seems so clearly at odds with the regulatory language.  The Secretary’s interpretation suggests that a veteran has a right to a hearing in front of all the Board members adjudicating his appeal only if his case is assigned to a panel from the start of the adjudication; whereas a veteran whose appeal is assigned to a panel on an ad hoc basis, as apparently occurred in the present case, has no such right.  This interpretation makes no sense.  The regulation does not state that Board members assigned to an appeal shall conduct a hearing if that hearing happens to be scheduled subsequent to their assignment. Nor does it state that a single member of a panel can conduct a hearing where a case has been assigned to be decided by a panel.  Instead, the regulation states that the Board “Member or panel” assigned to an appeal “shall conduct any hearing before the Board in connection with that [appeal].”  38 C.F.R. § 20.707 (emphasis added).  The plain language of § 20.707 does not in any way indicate that the timing of Board member assignments dictates the scope of one’s right to a hearing in front of those adjudicating one’s appeal.

     Them CAVC boys are some kind of smart. They take in all this hooey  and sort it out.  Then they chop it up into bite size pieces and digest it.  What ensues is an orderly, clear and reasoned decision. There is no magic here. They remove the wool from everyone’s eyes and shine a light on the problem logic. The Secretary is entitled to his opinion. But he most assuredly is not entitled to insert his defective logic and opinions into VA law.  Here he has attempted both and once again is being called on the carpet.

    If this was an isolated occurrence with no prior history of similar shenanigans, we could overlook his eagerness as simply misguided. The fact that Mr. Secretary engages in this defective decision making  regularly, and indeed, all the way back to his inauguration to the post, shows a juvenile approach to adjudication.  He bases far too much on how VA “has done it in the past” without examining whether it was done legally in the past.  Here it has bitten him in the buttocks once again.  

     So, in the end justice for Mr. Arneson was discerned to be skinny and the decision was vacated. It really could not have had a different outcome. The Secretary’s obstinate adherence to wrong-headedness and a narrow, myopic judicial vision have once again left him in the lurch.  We understand that VA is experiencing growing pains and has limited financial assets to offer Vets, but trying to deny them benefits with comical rule interpretations that yield improbable results has no place in a Veteran friendly environment.

     Choosing a demise like Custer’s and dying on a hill for no good reason is demented. It doesn’t grant you martyr status. It simply makes you look like an uneducated boob. This Court decision was really uncalled for. Had Mr. Secretary parsed his argument in front of a mirror several times he might have seen how foolish this was going to look when he arrived at Indiana Ave.

     I, for one, believe Veterans deserve better. Not only did we offer our lives in defense of our country, we were promised that our Government would be there for our spouse and offspring should we fall in battle. I think I speak for all of us when I say that we never expected to see this kind of shabby, vindictive, Catch 22 treatment of Veterans from the very agency created to deal with our plight. Sadly, it is becoming more and more commonplace in this current administration. Thank your lucky stars for the Court of Appeals for Veterans Claims.

http://www.uscourts.cavc.gov/documents/Arneson_09-953_published_opinion_4-20-2011.pdf


P.S. Maybe the Secretary has been eating too many Fukitol (see below) and has become addicted…

 

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling and tagged , . Bookmark the permalink.

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