COVA–Bell v. Derwinski (1992)–Constructive Possession

With all the talk these days of the indiscriminate shredding of Veterans files at VAROs by lazy employees, we should look back 20 years to a seminal case  that was the precursor to any of this. 

     VA is adamant for the most part that its records, and by extension, its recordkeeping, are above reproach. If something turns up missing, it is the fault of the Veteran for not submitting it. This submittal is usually accomplished by the VSO representing him/her, so this maligns the VSO as well. This is why we so strongly advocate for Veterans to do all their filing with Certified Mail, Return Receipt Requested (CM3R).  The VA cannot call the USPS a liar and get away with it. The USPS may have a lot of faults, but recordkeeping is certainly not one of them. 

     Mrs. Velma Bell, the widowed spouse of a Veteran of the Second World War was seeking DIC (we presume this as the record is unclear) and ran up against a big problem. The evidence before the BVA Court Section was missing four very important documents, three of which were produced by the VA and one (a Form 21-4138 Statement in Support of Claim) by her. The BVA and the Secretary pretty much told her she was out of luck as the documents in question weren’t in the record. Velma cut this Gordian knot in half by promptly supplying copies she had of the missing documents. Catch 22 kicked in when the BVA said that the documents in question could not be submitted later if they were not before the Board at the beginning of the Appeal. Mrs. Bell was nonplussed to say the very least. How could it be that the keeper of the sacred records was missing the same records they created and then took the legal position that the decision had to stand as is because it was against the law to introduce them after the fact? 

     Velma might have been born at night, but she was not born the night before this legal wisdom was handed down to her. She promptly lawyered up and went to the Court for some answers. The Court, bless them, looked at this and immediately saw the dichotomy, circular logic and the Secretary’s defective reasoning. 

     The Court held that if you properly submit records, or more importantly, if the VA creates records of any judicial or medical nature related to you or your claim, they are responsible for maintaining them and assuring that they are properly filed in a central repository- namely your C-file. While this would be the ideal method, the Court went further and held that any documents or medical records held by VAMCs, while not explicitly in the C-file, were still in the VA’s “constructive possession”.  

     Case in point. I had a medical exam for Agent Orange after all the information started to surface in 1991 about this chemical. My exam was in September of 1993. I filed for hep. in March of 94 but these records, clearly showing a liver dysfunction, were never included in my C-file. My SO/future used car salesman from AMVETS assured me this would occur soon as “VA is like so totally suuuper-efficient, man.” We will not discuss VSOs today. That is still a sore point seventeen years later.   Add to that his sudden departure to become a used car salesman (due, undoubtedly to a mid-life crisis) and taking my F-9 with him.

     When I finally got my hands on my C-file in 2009, lots of things were amiss. One was that these records were still absent. These are important documents that VA has a responsibility to safeguard. Fortunately they were archived at the VAMC and I was able to get a copy of them there. They will be very instrumental in proving that my liver was misbehaving in 1994 when my claim for an earlier effective date is granted. 

     Most Vets are vaguely aware of some of their rights before the VA courts. Unfortunately VA has an ugly habit of shading the truth, failing to inform you of things that might help your claim and sometimes outright mistruths. I hesitate to use the word “lies” as I would sooner believe it’s due to inefficiency and low I.Q.  As for missing or misplaced records, Veterans would be strongly advised to maintain a set for themselves. VA has a “paper file” system, one of the last in existence from what we hear. If you were to ask them a question on some facet of your claim, it would require a month and a personal search by hand of a file in a filing cabinet. Add to that the chance that something can slip out and land on the floor when searching it or, God forbid, the “files technician” absentmindedly refiles something in John Jones file- right after your (Jack Jones) file. Oops! Color that gone with the wind. It will not see the light of day until or unless someone is reviewing Johnboy’s file. Up until Velma pitched a bitch, that evidence was “regrettably not part of the Veteran’s file”. 

     The VA Secretary and his employees do not like the Court. They feel their “judicial activism” is counterproductive to the job at hand- namely denying Vets. They would prefer that the Court mind its own business and speak when spoken too. This is why there are so many cases that result in a win for Veterans on appeal.  Not because the Court has a judicial hard-on for the Secretary, but that the Secretaries of the VA have a long, storied history of mimicking Chicken Little. They a)over-interpret the regulations to find something that doesn’t exist; b) insist they have done things this way since the dawn of time and: c) warn that any relaxing of the regulation will produce a flood of claims and thus endanger the financial stability of the VA. What this produces is absurd results that disenfranchise some and reward others. We as Veterans need one set of rules to abide by. Left unchecked, this system would be far worse than the Tax code.

     Meet Velma Bell. I bet you had no idea how important her contribution was to your claims process.

P.S. The Bell decision is in the CUE regs as well. If you file a claim for CUE of an action prior to November 26th, 1992 that depended on records VA had but did not incorporate into the file then you cannot claim this precedent. It is oddly the only COVA decision exempted by CUE.


About asknod

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

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