Failure to Interact.

It has been brought to the attention of the Court that the BVA and their bastard offspring, the VAROs, have a rather nasty habit of informing you of your denial without allowing you at some point to inject new lay testimony or evidence that might help win your case. If a fact or theory that was never raised by you in the claim is relied upon to base a denial on without additional input from you, it is prejudicial to your claim and illegal. Simply put, if they deny based on willful misconduct and you weren’t guilty of that, you must be afforded an opportunity to tell them they’re full of shit. In legalspeak this is called rebutting negative evidence. In the ex parte form of justice we are accorded, this is all too common. How many Vets finally get their denial back after a year and discover that the VA has ignored all they have presented and focused on some mundane thing that was never discussed or even mentioned?

The Veterans Court (CAVC) has never approved of it and is finally calling out VA for the practice. This was long overdue as we have no way to contact the bozos and say whazzup? We just get the Dear John letter with a few half-baked reasons and the inevitable “We really tried to find a way to grant your claim, but were stymied at every turn by where the evidence led us. If we can be of any assistance in the future, you know where we can be found. Again, out heartfelt apologies for the way this turned out.” It’s one thing for the VARO to pull this stunt. We almost expect that. When it is perpetuated at the BVA level undetected by all those busy little leagle beagles, it becomes a crime of stupidity. We pay those “attorneys” (in the form of our taxes) to be the smartest at what they do and protect our rights. Why does it feel like we are constantly getting poked from behind? No rebuttal. If 11% of you Vets appeal your denial (all Vets, not just HCVets), and only 4% win on appeal, statistical sampling would shout that most of the claims were without merit. Now add in the remand component of 70% that emanates from the Court for the mishandling of the claims. This tells you that in their rush to screw you, they somehow overlooked a lot of judicial canons and stepped on their collective necktie.

On another Veterans help site, I have noticed a small number of people who either worked for or are currently employed by the VA. What they all have in common can best be described as the flawed or narrow-minded thinking I have often associated with union types. Their focus is myopic and on what is in front of them. Inductive logic is nowhere to be found. The Vet’s testimony is considered suspect and tainted as if we all lie. VAROs do not read CAVC decisions. They read the M-21 manual only. They are convinced that their training is so wonderful and thorough that mistakes rarely occur. On the off chance that they do err, perfection is so pervasive that their co-workers spot these errors and point them out before they push print.

Reality reveals they have supervisors and have to please them with their work product. How long would you last at a major insurance corp. if you habitually found the client was in the right? Like that corp., the VA is tasked with finding the defect in your claim and magnifying it. If you present positive evidence, they often minimalize it in favor of the negative or worse-implied non-evidence. This often produces decisions that make us scratch our heads and say “Huh?”

So, in summary, when you get your Dear John missive, be sure to analyze it minutely for the rationale as to why you won’t be paying your bills anytime soon. If it includes evidence or logic that was never discussed with you (or by you), write that up in the NOD and get it on the record. On appeal above it will eventually be seen and recognized for what it is- a major, prejudicial legal defect begging to be addressed. Make it so, Number One.