Allow me to introduce you to one Ruth Hill Frederick. She is not the lady you would want to attempt to assault. Snatching her purse might be akin to overcoming the Gordian knot with no sword. I wouldn’t doubt she packs a ,25 calibre belly gun, perhaps a FN “Baby”.

Mr. Hill punched out on May 28^th, 1970. That date resonates with me as this FNG had just arrived in country thirteen days earlier. Mrs. Hill, Ruth, if you will, applied for DIC and was promptly granted it. In December, 1986, shortly after she turned 57, she remarried. Being an honest person like you and me, she timely reported this to the VARO. They discontinued her DIC at that point as that was how the law was written back then. So far so good. No harm, no foul.

The next seminal date was December 16^th, 2003. Congress decided to change the law to allow a surviving spouse to continue to collect DIC even in the event of remarriage as long as he/she did it after age 57.  I say he/she as I’m sure there must be the odd man or two who married a WASP or WAC. It was further promulgated that spouses who desired to obtain this DIC (who had married after age 57) had one year from the above date to register for it. That gave an end date of December 16^th, 2004. Before we venture any further, I want the reader to understand something. Receipt of DIC is predicated on the spouse having a permanent and total rating (i.e. 100%). Therefore the number of eligible spouses seeking DIC was finite in number, probably on the order of less than 20,000 by 2003. Conversely, by 2010 the number was probably less than 8,000. DIC pays about $1200/mo. or so currently.

Ruth, being a sharp woman of keen intellect, heard about this change in the law and filed for it in November, 2007.  I’m going to go out on a limb here and bet she also clipped Tuesday coupons for weekly specials at the local Safeway. At this point, I guess the gentle reader has already figured out that Secretary Grinch couldn’t leave well enough alone and had to steal her Christmas. His odds would have been better trying to take down a Brinks warehouse with $9 million inside and two drunken guards.

The Board, at his direction, turned her down on the request by reasoning that she hadn’t filed for this “in the window” before 12/16/04. But the Board made its decision on shaky ground-on the part of the law that was not codified.  They had not parsed the statute to perceive its true implications. You see, Ruth wasn’t applying for the DIC. She was asking to be reinstated as she had already technically “applied “for it in 1970 and been granted it.  Fearless Leader Erik the 1^st disagreed and refused to budge. He read the regulations, cast the chicken bones and brought in the tea leaf readers. As he signed their paycheck, they all concurred that there was only one way to read the statute.  They also reasoned that an uneducated dolt like Ruth couldn’t fathom these highfalutin’ laws and tried to blow smoke up her ass. Say this like a sheep: “Baaaaa-aaaad idea.” Ruth probably went out right about then and purchased the services of a nice young lawyer named Paul M. Shoenhard using all that money she had saved up clipping coupons. They filed a NOA and scampered on up to the Court for a date with the General in November of ought 10.

I think of the Beatles song about now: Now Erik it seems, had been smoking his greens, and proceeded to fabricate bull$hit.  Verily so. The Secretary stuck to his guns much like  Slick Willy when they brought out Monica’s blue dress with that pesky stain on the front.. He must have known at some point he was doomed. The statute was never intended to disenfranchise spouses who had qualified prior to its enactment, nor did it go to lengths to do so. Imagine the pit bull who has latched onto a teddy bear and has no intention of letting go. That’s how tenacious this debate became:

“The Secretary suggests that the universe of persons affected by this Public Law provision includes only those who previously applied for benefits.  He further reasons that if the universe of persons affected by this portion of the Public Law is only those who previously applied for DIC, then all such persons would have met the end date for submission of an application, rendering any such interpretation of the uncodified provision of the Public Law meaningless.  The Secretary’s universe of persons, however, is ill defined.  Specifically, it ignores the fact that there likely are surviving spouses who remarried after the age of 57 and prior to enactment of the Public Law who never applied for DIC prior to enactment of the Public Law.  Under the plain wording of the statute –which sets an end date for application –  these individuals clearly would have to submit an application no later than December 15, 2004, or forever lose their benefits.  Thus, the plain language interpretation is not rendered meaningless and is not absurd, as the Secretary suggests.” Frederick v. Shinseki (2011)

Without digging too deeply, it might be safe to assume the VASEC was a charter member of the Flat Earth Society. Mensa membership, however, is going to forever elude the Erikmeister, I’m afraid.

What is sad and oddly missing from all this is one simple test. Read the statute. Examine the meaning of it. Examine the congressional intent in enacting this and who stood to benefit. Using 8^th grade logic skills, one can see Congress was trying to sweeten life for old ladies whose husbands (or the obverse I mentioned above) had been injured in war. This is whatLincoln set out to do and the boys in Foggy Bottom were simply continuing in the same vein.

The Secretary, on the other hand, is trying his damnedest to reduce the number of eligible spouses. Had he succeeded, he might have saved the VA several hundred thousands of dollars until the Ruths of  America succumbed to old age and disease. Hell, it might not have even amounted to that much. Veterans of the big WW2 andKorea are the only beneficiaries and they are falling like flies unless the Secretary hadn’t noticed. Of all the hills to choose to die on, the General seems doomed to follow in the footsteps of Brevet Major General (Colonel) George Armstrong Custer .  The General Counsel the Secretary has at the Board (027) is either woefully uneducated or is having a communications snafu with him.  Third year legal students with any acumen whatsoever should be able to ferret out the thrust of this statute. The only other possibility is that the Secretary does not serve Veterans’ best interests. How can that be?  I can almost hear Tim Allen doing his trademark “Aeugh?”

I’ll let you be the judge on this one. Is the enemy of my enemy my friend? Not if he’s a former General, apparently. I apologize for that. It was uncalled for. I am inured to believing VA justice is imperfect justice unless or until it arrives at the Court. JOVO

http://www.uscourts.cavc.gov/documents/Frederick_09-433_published_opinion_March_11_2011.pdf

P.S. Apparently, the Secretary is unhappy with the response of the Court as I just spotted this being heard at oral argument on March 9th, 2012. Bozo Boy  isn’t finished with Ruth yet, which is sad.