Let us embark in the DeLorean and turn the clock back to April 22, 1991. A former Governor from Arkansas was putting down his marker for the 1992 Presidential primaries and the new Court of Veterans Appeals (COVA) was busy creating jurisprudence that later Courts would come to see as wise precedence. The Court was being forced to cite Social Security law decisions, Federal Circuit and even Supreme Court law to buttress their new Article One Court status. A legal note here. Courts tend to cite precedence laterally within their own specialty. They reach higher to the Fed. Circuit for more momentous cites when altering the existing way law is interpreted. They cite the Supreme Court when they strike down existing laws as being unconstitutional. Courts normally convene in panels of three. Simple decisions are dispensed with by single judges. When a finding of law or new precedent is affirmed, it is often done en banc– the whole Court sitting together. The Supreme Court is the only body that sits en banc all the time.

The decision we look at today is unique. It enunciates a holding- a finding- that proclaims a right for Veterans. Forget for a moment that Mr. Bagby was trying to hoodwink the VA and the Court. Yes, he lost, but that is immaterial. He should have lost. He was a bald-faced liar and he got caught. The Court was polite enough to overlook this egregious lack of upbringing and stick to the facts. Nowhere will you find an attack on his character.  It’s a hallmark of this style of jurisprudence. We need more of that in government these days

Jesse E. Bagby signed up to fight in the Big War in February of 1943. While in training and still in the United States, it was determined that he probably wasn’t going to be Rambo. He had a bodacious duodenal ulcer which required hospitalization. After recovering slightly and being discharged from the hospital, he was given his walking papers September 1, 1943. He was awarded his National Defense Service Medal for serving in a time of war and he promptly filed a claim for bingo! – a duodenal ulcer , but was denied in 1944. And that is where matters stood until 1984. His second attempt fell as flat as the first and he failed to appeal it as well.

Jesse filed yet again in 1988. This time he brought medical records and testimony from his doctor, but once again came away empty-handed. I’m betting this dude was being repped by a VSO with their own bar this time. He had to have been sitting around getting sudsed and heard another Vet running on about how easy it was to pull down some comp. pay from VA. He was unceremoniously denied at the BVA in 1989, but the big difference now was that he could appeal this all the way up to the new Court. Which is exactly what his non-attorney practitioner (read liberally as a very high ranking member of his VSO with no legal training) promptly did.

Mr. Bagby now found himself in a court where they frequently discussed what the correct meaning of “is” is. Doing his shuck and jive dance special wasn’t going to convince these folks. He had to do some quick thinking, but he didn’t have any material to work with. His own doctor admitted that he’d been treating Jesse since 1939 for ulcers. The man was out of his element here and in way over his head. He must not have thought the VA was smart enough to have a chat with his M.D. This illustrates the difference between having a free, non-attorney practitioner rather than a full-blown law dog as your mouthpiece.

The teaching moment , as we said, was what the Court held, not Mr. Bagby’s loss. The Court held that a Veteran was deemed to be of sound mind and body at the time of his enlistment or commissioning unless otherwise noted on the induction physical. That is what Mr. Bagby tried to hang his hat on. As the duodenal ulcer was not noted on his induction physical, he assumed that he was in scot-free. The regulation has some other stipulations that somehow got overlooked when they were formulating this defense. The beer bottle must have been covering up the small print that said “unless the finding of soundness can be rebutted”. As we discussed above, the gentleman’s doctor admitted freely that he had this problem prior to enlistment.

A finding of presumption of soundness as described in 38 CFR § 3.304(b), is more than just a finding. It is a positive finding and as such, a significant counterweight when it gets down to a benefit of the doubt argument. The VA is obligated to prove that you were not of sound body (or mind) when you entered service. Veterans don’t realize how closely they were examined when they enlisted. The M.D.s were required to discover any infirmity at the beginning of service to avoid exactly what Mr. Bagby was trying to get away with.  When you file a claim, you attempt to prove your ailment is related to service. The fact that you arrived without it and later began to suffer from it in service is a pretty strong indicator of where it originated. Well, perhaps to everyone except VA raters. In the same paragraph in § 3.304(b), the last sentence ends with:

Only such conditions as are recorded in examination reports are to be considered as noted.

This is very important, too. It clearly states that in order to rebut the presumption, the VA is required to rely only on medical records. They are not permitted to contact your neighbor next door who hates you (and your dog that shits on his lawn every morning) and get a statement from him that you play tennis daily with your so-called “back injury.” Binoculars are right out, too.  No, the regulation stipulates that VA obtain this damning evidence through medical channels only. Incidentally, this also protects your constitutional right to let FI-Fi out at 0 dark thirty to defecate wherever  she chooses.

With all this in mind, when you are planning out your legal defense (I prefer to think of it as an offense, or attack), this is an important element in your arsenal. I exhort you to exploit it at every turn. VA is nothing, if not anal, in their denials using a litany of excuses and phrases. I had the opportunity to observe this at a recent V,R&E examination. I watched the clerk (technician?expert?) type in my acceptance letter using a potpourri of other letters and phrases from a pull down Adobe Acrobat program. That’s undoubtedly  why some of the letters you receive from VA have flawless English until it gets to a discussion of your individual circumstances. All of a sudden the Spell-checker craps out  and  run on sentences, dangling participles and double negatives abound.  By now most of you are probably more than aware of how they hamburger the facts.

If you put VA on notice that you are well-versed in some of these legal precepts, it doesn’t guarantee a win. What is most important is that it gets entered into the record and the next higher Court will note the discrepancy and correct it.  You can assume a 70% error rate at the VARO on your claim. That sounds outrageous on its face, but the records bear it out. Remand and reversal are endemic at the BVA and the Court.  Veterans are long overdue for a revamping of the legal process at the local level.

     Gaze now on the wisdom of the ages. Justices Kramer, Mankin and Holdaway, as a panel, managed to keep this down to a three page ruling, thus unwittingly helping in our future battle to prevent Global warming and reduce our dirty little carbon footprints. Click on the Bagby PDF file below to view this gem.

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