CAVC–Buckzynski v. Shinseki (2011)–New Interpretations of 38 CFR


 1/11/11

Hot off the presses, this was released yesterday. It is interesting and a good read , but doesn’t set any earth-shattering precedents like Groves and Vigil did.

What it does do is spank the VASEC  once again for his annoying habit of bending the regulations into yielding meanings they were never meant to evoke. To wit, the following:

In addition to looking at the text of DC 7806, the Court looks to the overall structure of the regulation for guidance in determining the plain meaning of the regulation.  See Sharp v. Shinseki, 23 Vet.App. 267, 271 (2009).  The fact that there are other, similar sections of the regulation that do specify that a disability must be limited to the head, face, and neck–such as DC 7800 itself–indicates that if the Secretary had intended to limit DC 7806 in a similar manner, he would have included such language in the regulation.  Meeks v. West, 12 Vet.App. 352, 354 (1999) (“‘[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'”) (quoting 2A N. Singer, Sutherland on Statutory Construction § 46.05 (5th ed. 1992)); cf. Russello v.United States, 464U.S.16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted).

This pattern of rereading 38 USC and 38 CFR and magically finding meanings like this seem to be the VASEC’s stock in trade. Like some of the new age authors finding hidden phrases in the Old Testament, he conjures up interpretations of The Gospel According to St. Victor Alpha that would make his forebears proud. The CAVC has increasingly been forced to take him to task and try to abbreviate his enthusiasm for finding that which simply isn’t there.

While we know the VASEC doesn’t involve himself in every facet of adjudication, we do know that he is responsible for deciding which Board decisions he wants to vociferously defend and which ones to retreat from. As a fellow Veteran, one would expect him to be somewhat understanding and sympathetic to our claims. We see no evidence of this to date. Quite the contrary, in fact. One would hope he would take some of this good advice being proffered by the Court and disseminate it among his legal beagles. Alas, it seems all this discourse is migrating no further than the circular file next to his desk.

Veterans are already tasked with trying to navigate a labyrinthine maze of rules and if…, then…’s as it is. Compounding this with new and innovative interpretations of existing law such that it devolves down to the Thursday rule is not only unfair, but burdensome. For all of you unfamiliar with the Thursday rule, allow me to elaborate. Once upon a war, in a country we were never in, we were required to get permission from the U.S. Ambassador in Vientiane to drop napalm. Every time. These were called Romeos- a nickname for ROEs or Rules of Engagement. This evoked many a joke at the bar regarding micromanagement of the war. One of which was the observation that he generally only permitted it on Thursdays to avoid negative press publicity in case the pilot missed the intended objective and hit friendly Hmong forces. This allowed a cooling off period through Monday for the next news cycle. The meaning of the Thursday rule has evolved over the years. It now has connotations of a rule that is eternally metamorphosing with mostly  negative consequences for those affected.

The correlation here is fairly obvious. The VASEC keeps rearranging the goalposts to suit his needs at the expense of the Vet. No sooner has he been rebuffed on one front than another is erected. This serves no one. Vets need a uniform set of rules to abide by in the prosecution of their claims. Suddenly invoking the Thursday rule to the detriment of our claims simply puts off justice to a later day. That is what this decision is all about.

Without further ado, meet Mr. Frank N. Buczynski, a proud Veteran who served ably during the War to end all Wars:

http://www.uscourts.cavc.gov/documents/Buczynski_08-3000_published_opinion_1-6-2011.pdf

About asknod

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

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