At the dawn of time (as far as modern review of Veterans’ claims goes) pursuant to the passage of the Veterans Judicial Review Act (VJRA) of 1988, the Court Of Veterans Appeals (COVA) was created. Its stated purpose was to review appealed decisions of the Board of Veterans Appeals (BVA). Now, in order to do so, the new Court had to create a voluminous amount of precedent case law in a very short period of time. The reason being was that VA law was unique to Veterans. Many concepts of boilerplate U.S. law did not apply to our circumstances. Thus our new judges were tasked with picking through endless prior decisions from the Supreme Court as well as the Fed. Circuit to quote precedence- virtually none of which involved Veterans. More about this later.
In order to create new Veteran-specific precedents, the COVA (now known as the Court of Appeals for Veterans Claims [CAVC]or the Court) went into high gear throughout 89, 90 and 91 to produce an enormous amount of case law. This accelerated pace continued all the way into 1995 before it slowed down somewhat. Much of this is still cited today in Court and BVA decisions. Some has been overturned at the Federal circuit level on appeal or superseded by new or more nuanced reading of existing law.
However, one precedential case Veterans will see over and over is Gilbert v. Derwinski, decided October 12th, 1990. Norman (NMI) Gilbert was a groundpounder serving in Korea in 1956 when he had the misfortune of tripping and falling while carrying an M-2 .50 calibre machine gun. If you have ever been saddled with carrying one of these beasts, you can appreciate what happened to him. As was the usual case, he filed for SC and was denied. Following in the footsteps of a lot of us, he failed to appeal. After reapplying, he was denied yet again. Fortunately this was the point at which he could avail himself of the appeal procedures of the Court, which he did. The Court, in fine form, looked at his defective BVA decision and noticed the absence of any discussion regarding the positive evidence in his favor. All discussion centered on the negative evidence with a conclusion that the benefit of the doubt rule was not applicable.
When the VJRA was passed in 88, one of the new requirements was that within the “Reasons and Bases” section of a BVA decision there must be a complete and coherent explanation for the decision that included a discussion of the positive and negative evidence to facilitate review in the event of an appeal. This explanation was also a platform for the Board to state whether the positive evidence was enough to prove the case or if the negative evidence against the claim was enough to deny it. The third alternative, the benefit of the doubt, enshrined in more than a century of VA case law since the end of the War of Northern Aggression in 1865, was for consideration when the positive and the negative evidence were in equipoise- that is, equally balancing one another so as to allow two permissible interpretations, both of which were plausible. In the event of equipoise, the benefit of the doubt doctrine, now enshrined in VA law as 38 USC § 3007 (subsequently renumbered as § 5107) was to be applied. This reading of law digressed from civil law which demands “clear and convincing evidence” in order to prevail.
One observation I feel needs to be illuminated is the prevalence (and propensity) of the BVA to come down, often through semantic gerrymandering, on the wrong side of said benefit of the doubt. This is what occurred to Mr. Gilbert and what prompted his Notice of Appeal to the Court. The Court spotted the discrepancy and decided to use this case as a vehicle for enunciating the right of Veterans to this important entitlement. The fact that it continues to be abused or simply paid lip service in the stampede to deny Veterans their claims requires the Court to dust off this precedent and take the VA Secretary to task on a fairly regular basis.
In the wake of this ruling, many other important decisions were handed down that further cemented Veterans rights. Almost all of them were the result of egregious errors on the part of the Secretary and his administrative law cohorts in determining how to interpret 38 USC. Ultimately, Mr. Gilbert did not prevail in his claim after remand. However, his name will live on for aeons in the annals of VA Law.
38 USC is simply the laws as enumerated by the Congress. 38 CFR, however, are regulations promulgated by the Secretary to implement that law. Quite frequently the Court strikes down all or portions of 38 CFR that conflict with 38 USC. Even more frequently, we are now starting to see what is known in military parlance as “Mission Creep”. This occurs when our Exalted Leader takes out the legal scissors and proceeds to manufacture new interpretations of old laws from whole cloth. The fabric of 38 USC is fairly sturdy and has withstood the test of time for the most part. The same cannot be said of 38 CFR.
The mere fact that the VA General Counsel’s office constantly has to clarify the meaning of regulations contained in the CFR (VAOPGCPRECs) for Regional Office personnel indicates there is ambiguity in them. What isn’t there is wiggle room. There are not two permissible views of how to interpret the law, nor is there implied permission to read new meanings into old regulations. Once we cure the predilection of the BVA and the Secretary to detect these new “revelations”(which you and I are certainly not allowed to do), we can proceed to a more amicable form of justice instead of the antagonistic format we now endure. What we are seeing nowadays at the Court is the Secretary getting caught with his proverbial legal pants down all too frequently. This is often followed by a defective, tortured and poorly reasoned explanation to anyone who will listen as to how he arrived at this new legal epiphany. We at AskNOD have abrogated a Yahoo term and now refer to this as “Shutdown Corner”. The frequency of this bad habit is becoming frighteningly redundant and makes the Secretary resemble the ex -general he is and not the accomplished legal scholar he purports and aspires to be. We certainly had high hopes for him upon his appointment in 2009.
When you know you have been denied by the BVA for erroneous reasons and seek redress at the Court, looking through these old decisions is like being a contestant on Supermarket Sweep or being the first one to dive into a large Whitman’s sampler box. You will invariably find ample precedent to remand, vacate or reverse your decision. The Court has a voluminous amount of VA law under its belt now and precedent abounds. New interpretations are still being uncovered on laws that have never been addressed minutely. Every time Congress adds to 38 USC, it provokes another round of misinterpretations by the VA on what, exactly, is permissible. I guess it doesn’t take Karnak the All-Knowing to illuminate how they will interpret it.
Remember, in VA law, you politely present your side and sit down for several years. VA then proceeds to demolish your case. They start by questioning your morals, impugn the memory and reliability of you and your witnesses and denigrate your evidence as immaterial. All this without any rebuttal or cross examination on your part. You then attempt to rebut their insinuations, correct their misconceptions and try to refine your theory. They, in turn, claim you have now changed your story and cannot corroborate your claim. Then they cite all these cases we have been examining and use them against you. This is known as ex parte justice
It’s time to turn the tables and utilize the same technique to your advantage. Mastery of reading comprehension is almost a prerequisite for this. If you find yourself challenged in this regard, we strongly recommend seeking out a lawyer rather than a VSO. VSOs are several steps below legalzoomdotcom and were raised by wolves in our estimation.
Ladies and Gentlemen Vets, meet one of your forebears who inadvertently immortalized his name in case law- Mr. Norman (No Middle Initial) Gilbert attached below as a PDF.
P.S. In the attached picture below, the fifth gentleman from the left (standing) is 1st Lieutenant Harold “Weird Harold” Mesaris (USAF). He is holding a M-2 .50 calibre machinegun like the one Mr. Gilbert tripped and fell with. You will notice Weird Harold’s left leg is resting on a .50 cal. ammo box in an effort to support the weight of the gun. All these gentlemen were in uniform at the time (1970). We weren’t allowed to wear our military uniforms in Laos because a) we weren’t there legally in a military capacity and b) we were ostensibly civilians on vacation or USAID workers. Every one of these officers were volunteers for the Steve Canyon program. Their call sign was Raven. From left to right (standing) Craig Duerhing, Bill Lutz, Park Bunker (KIA/BNR 12/30/70), Chuck Engle (KIA 2/21/71), Harold Mesaris, Ray DeArrigunaga, (kneeling) Jeff Thompson(atop the T-28) A.D. Holt. Braver men never posed for a photo.