Here’s a wonderful type of decision that the Veteran will only see cited once or twice in a lifetime. Larry D. Fagre has appealed an adverse decision of the BVA. He asks for a “reconsideration” of his case and this is often done by the BVA in a panel format as opposed to a single judge decision. This also has to occur and be mailed to the proper address in D.C. within 120 sunrises and sunsets. Not one day more unless you can prove you were comatose in an ICU somewhere. The VA term for a Vet requesting an extension is referred to as equitable tolling. 

     What Mr. Fagre does not know is that the VA is preparing to pull a really neat hat trick on him. They interpret the rules and regulations a lot differently from you and me. My wife and the owner of this website will probably put a price on my head, but I go to sleep every night thankful that the VASEC isn’t a woman. Actually, that’s politically incorrect and a cheap shot. I apologize in advance. This time the VA Secretary chose to interpret the “reconsideration” clause as meaning you had to enumerate each and every item you were denied for that you wished to have the BVA Panel “reconsider”.  BVA is taking their lead from an old rule or decision (I’m too lazy to go look for it- trust me) where precedence dictated if you appealed an RO decision, you had to enumerate each issue you wished to appeal. And, God forbid, if they failed to rule on it and you didn’t catch it and file an NOD contesting it, they would claim it was dead because you didn’t complain. So, if the Vet is not savvy, legally speaking, then tough luck. You shoulda read the fine print, chump. 

     What Justices Kasold, Hagel, and Lance pronounce here  is a repudiation of the VA’s inherent propensity to promise the Vet they will make sure he is amply rewarded for his service. With a few prerequisites, qualifiers, and “except”s of course.  So our law school lesson today is list everything, every time, on every form and then VA cannot say “Yeah, well your Honor, we’re trying to give the poor Vet everything he’s entitled to, but he didn’t ASK for it specifically. The NOA (or NOD, Form 9, Answer to an SOC or SSOC) was SILENT for that subject so we interpreted that to mean he didn’t wish to appeal it. Therefore that issue is final. However, because we’re such swell guys and feel sorry for the chump, ahem, Veteran, we’ll reopen his case and take another look. Of course the effective date for financial compensation will be 2010, not 2001 when the Veteran failed to appeal the earlier decision.” 

     Get used to it. Be a Boy Scout and be prepared for this kind of treatment.  VA screws up 60% of what it does the first time and when the Court catches it, they sometimes make VA go back in time and “retrospectively” medically evaluate a Vet. Kind of like a CSI cold case reconstruction. But that is another fairy tale and not for discussion today. 

    Ladies and Gentlemen, please allow me to introduce you to poor Mr. Fagre, a true David against the behemoth VA Goliath. What you are about to read is in the nature of an ORDER from the CAVC, not a simple ruling, remand or vacatur.  In exalted legalspeak, this is akin to “Do not pass Go!. Do not collect $200. Comply with this or we’ll huff, and we’ll puff, and we’ll blow your house down.” 

http://www.uscourts.cavc.gov/documents/Fagre_07-1000_Panel_Final_.pdf