CAVC–Mayhue v. Shinseki (2011) Attempted Horsetrading

 This decision came out several days ago and caught our eye here at the Nod site. The findings aren’t earth shattering, but do illuminate a regulation that is now starting to get more attention.

      Vets may remember that we started talking about how hard it was to reopen an old claim that was not appealed several years ago. We illustrated the traditional arduous route via the CUE path, but also discussed the less traveled road of 38 CFR § 3.156(c). This regulation permitted the Vet to recoup his earlier effective date for service connection with the submission of existing service dept. records which had never been associated with his VA C-File or his military records. If the records were relevant and instrumental in winning his claim, then the date of his original claim became the date of entitlement. This precept has always been in the regs. but was rarely employed. Shortly after this epiphany Vigil v. Peake was decided in 2008. We had no hand in this as the case was already in the CAVC pipeline when we started mentioning it. Nevertheless, it did vindicate our musings on the viability of this defense.

      The VA has sought to narrow the scope of the regulation by emphasizing whether the records were “relevant” to a new decision and if the case could have been decided without their benefit. VA has even gone so far, in some cases, as to question the bona fides of the new evidence, implying it was manufactured to help the claimant prevail. With new regulations concerning PTSD and the added capabilities of the internet, finding old evidence to support one’s claim is becoming markedly easier. This doesn’t bode well for VA’s pocketbooks.

     Considering the history of the Veterans Administration and their supposedly pro veteran stance to grant us that which we are entitled to by law, they certainly spend an inordinate amount of time denying the same. This dichotomy is even more aggravating to those of us who have filed honestly and in good faith only to be denied again and again. Often this is caused by poor record keeping or worse- no record keeping. 

       Mr. Samuel L. Mayhue served honorably in combat in Vietnam during his tenure with the US Army. He filed his claim for PTSD in 1994 and was (gasp) denied. He had failed to report for a exam to confirm his claim. He finally did so later in 1995, but was denied yet again. This denial was based on the fact that VA couldn’t verify his stressors, ergo no dough. Dreambucks. Wishwampum. Mr. Mayhue was very disheartened and did not appeal his adverse decision. We’re almost all guilty of that stupidity if we’re 60-ish.

     In 2000, the combat veteran attempted to reopen his old claim and submitted some new lay testimony. VA denied his request saying he hadn’t submitted new and material evidence that would permit this and that he hadn’t returned his stressor questionnaire. He dutifully did so shortly thereafter and was greeted with yet another denial in late 2002. This time the rationale was that his statements and the info he supplied couldn’t be corroborated. In November of 2003  Mr. Mayhue opted to fight and filed an NOD. I suspect he had had it up to here with this highhandedness. After all, these jokers hold all the cards and researching stressor claims is virtually impossible for the Vet to accomplish.

     Finally in March of 2005 the USACRUR found enough info to support his claim and he was given a 50% rating the following month. Well, think about this. You’ve been screwed for 11 years and then VA finally gives you some bread and a glass of water. No. Make that half of a glass of water. Sam filed another NOD and said back the boat back up to the dock, Gilligan. He wanted his earlier effective date of 1994 (rightfully so) and a TDIU or a 100% schedular rating. VA disagreed and he lost on appeal to the BVA. Which brings us up to 2011. Imagine, gentle reader, investing 16 years into this project off and on only to be handed $609/mo. (or $669/mo. if there was a Mrs. Mayhue) from a grateful nation. Quite the insult in my mind. 

     Enter the Court. The VA was once again taken to task for their arcane habit of  misinterpreting the regulations and misconstruing the legal filings of Mr. Mayhue. The BVA had decided that lay testimony supplied by Mr. Mayhue was not relevant as envisaged by §3.156(c) and therefore his argument  for an earlier effective date  was moot. Further, his request for TDIU was treated as a separate claim rather than a disagreement with his initial rating. That alone is a Bozo no-no in VAland and the BVA should have seen that one coming. Oddly enough, the VA DRO had met with Mr. Mayhue and his lawyer and tried to buy him off  in some heavy-handed horsetrading back in 2006 (after the 50% insult)by handing him a 70% rating and the TDIU. However, VA  just couldn’t bring themselves to parting with all that dough all the way back to 94. One would think it was coming out of their own pockets if he/she didn’t know any better. I have heard ex-VA examiners hold forth on the idea that raters are not so vindictive and that they never even look at what the amount of the claim might entail. Right. They don’t. Their bosses do. How soon we forget the ill-conceived Extraordinary Awards Procedure (EAP) of 2007.

      The sequel to this story is anticlimactic. The Court analyzed the evidence and noted that the VA already had everything they needed in their records to rate Mr. Mayhue for his PTSD claim in 1994. Why they denied him will probably remain a mystery to everyone employed at the VARO. It doesn’t strike us as all that mysterious though. It seems to be a pattern that never deviates except for the individual’s details. Vet files claim. Vet get denied. Vet fails to appeal. Vet comes back at a later date and files again. Vet gets denied again. Vet decides to appeal because he’s smarter(and older) this time out. Vet loses appeal. Vet goes to CAVC. CAVC discovers VA has been blowing smoke up his ass for 15 years and overturns the injustice. VA continues to fight to prevent an expensive settlement going back a number of years. Vet gets grey hair waiting. Vet finally wins just before he dies (sometimes).  

     Without further ado, gather around and listen to the Gospel according to Saints Hagel, Moorman and Lance. It’s very inspiring and the legal reasoning is impeccable, as usual.                                                                                                                                                                                                                                                                                                                     A grateful Nation will now bestow that which  should have given in 1994. I would excuse him if he fails to summons up a heartfelt thank you to the VASEC.

About asknod

VA claims blogger
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