Fed. Cir.–Bond v. Shinseki 2011

Obtaining justice for Vets or watching others do the same is what keeps me alive. There are several lawyers who are unarguably adept at this. Two from Kansas of all places, are the masters of the VA judicial universe. I refer to Kenneth M. Carpenter (no relation to Karen) and Virginia A. Girard-Brady. Those hyphenations really throw me. Was she a Girard or Brady before she married? Who gets first billing on this deal?

In the Fed. Cir. decision below, the Kenmeister shows his judicial acumen and argues successfully to overrule the CAVC-no small feat. The VA has always played fast and loose with 38 CFR. The regulations are continuously bent to conform to rulings that they were never designed to encompass. The hackneyed argument that “We’ve always done it this way” is getting less and less traction higher up.  What’s more, the tortured theory that even if the regulation didn’t quite go that far, the Vet was not disenfranchised and justice was kinda, sorta done doesn’t cut it on appeal to the Fed. Cir.  It usually doesn’t at the CAVC , What happened?

The government first responds that this case falls outside of our jurisdiction because, in its view, “what Mr. Bond really challenges here is the Veterans Court’s factual determination that he did not submit new and material evidence pertaining to his initial October 1996 claim within the one-year appeal period or the Veterans Court’s application of § 3.156(b) to the facts of this case.”3 Appellee’s  Br.  10.    We disagree.    Mr.  Bond’s argument is that the Veterans Court misinterpreted § 3.156(b) when it endorsed the RO’s failure to consider whether his submission contained new and material evidence because, in his view, the regulation requires such consideration.  Whether § 3.156(b) requires the VA to determine if a submission filed during the appeal period constitutes new and material evidence relating to a pending claim is a legal question divorced from the facts of this case.  We, accordingly, have jurisdiction over Mr. Bond’s appeal.  See 38 U.S.C. § 7292. With respect to the merits, the government argues that, because the “plain language” of the cover letter attached to Mr. Bond’s February 1998 submission stated that he was “request[ing] an increase in percentage rating for [his] service connected [PTSD],” the RO and Veterans Court properly treated the submission as a new claim, rather than new and material evidence relating to his October 1996 claim.  Appellee’s Br. 23.  According to the government, where a claimant requests an increased rating in correspondence attached to newly submitted evidence, the RO need not consider whether the underlying submission constitutes new and material evidence relating to an existing claim, regardless of the nature of the evidence submitted and its relationship to any pending claims.  We reject the notion that such a statement made in connection with the submission of evidence discharges the RO of its duty, under § 3.156(b), to actually evaluate the evidence submitted and determine whether it is new and material to an old claim. Bond v. Shinseki  Fed. Cir. 3d(2011) (emphasis mine)

Richard D. Bond (no relation to James) appeals a long saga of jurisprudence gone awry for years.  Mr. Bond’s odyssey began on October 8th, 1996 when he filed for bent brain syndrome. Amazingly, seven months later the VARO granted him a 30% rating on May 6th, 1997. As we all know, that meant he had one (1, uno, un, ichi, nung) year from May 6th, 1997 to appeal if he found a defect in VA’s decision. This he did in February, 1998 (nine months later) but he couched it in rather tortured English by saying “I respectfully request an increase for my presently connected pretzel brain disease.” (paraphrased).  Most importantly, he submitted new and material medical evidence with it that could support a higher rating.

VA in their own inimitable way, managed to “construe” this to be a reopening of his old claim even though it clearly fell within the confines of 38 CFR  §3.156(b). There is a big difference. If he had won, the effective date for a higher rating would have been his October 96 filing date. A reopening would be for the new filing date with the possibility of one year retro. He lost and appealed. Dates are critical here. They denied him on July 8th , 1998 for the increase. That meant he had to file a NOD or some form of “Excuse me?” within a year. He did. He filed on July 7th, 1999 with one day to spare, asked for reconsideration and submitted yet more evidence. The VARO was in high efficiency mode that month. On July 15th, just eight days later, they denied yet again.  I know the reader is going to say “Huh? How’d they do that so fast?”

And here we begin the chase in earnest. The VA now suddenly “interpreted” the Motion for Reconsideration as a NOD  and issued a Statement of the Case in December of 1999. Mr. Bond promptly filed his Form 9 in February of 2000. This part is easy so far. He’s only three years into it.

Undaunted and lacking any knowledge of what VA was up to, he filed yet again for increase in September of that year. VA denied again in October of 99 just before they sent the SOC out in December. Confused? I was. I had to go outside and do the stick drawing in the dirt and play with  our new kitten.

Again, in February of 2000, Mr. Bond had idle time on his hands and filed for TDIU. He was a very prolific author. VA realized this guy was like a bad penny and wasn’t going quietly into the night without a big fight. A late Christmas present arrived on December 29th, 2000. They decided suddenly to up his PTSD to 70% and gave him his requested TDIU- effective July 1999. Without knowing, I’m going to guess old Kenneth was involved in this by now. It has his fingerprints all over it. VA caves in and Kenny says back the boat back up to the dock, Gilligan. All the money isn’t on board yet.

As before, with only 8 days before the appeal time would run out, Messieurs Bond & Carpenter filed a NOD over the IU and the 70% rating effective date. One year later (January 2003), VA got around to issuing a SOC on this. The BVA decision came out September 2004 and partially agreed with Rich. One thing they didn’t cotton to was give him an EED all the way back to 96 which was what the poor boy was shooting for. No such luck. They did go so far as to do the informal claim rule and give him an EED (and 70%) one day shy of his 1997 30% rating date. Most guys would be content with that and our tale would end here. But Mr. Bond had a wild hair up his ass and had IU on his mind.  So, off to the big house on Indiana Ave. NW and an NOA over the IU and 70% from 96. The Court remanded for consideration of an informal claim for IU at the same time as the new 97 EED of 70%. What they didn’t do, which was fatal to their decision, was catch the 38 CFR  §3.156(b) error discussed above.  In Latinspeask, this made everything they did from here on out void ab initio. In DickandJanespeak, this means it doesn’t count. To sum it all up, the remand came back like a boomerang from the BVA after they declined to disturb their earlier decision. The Court likewise agreed with the BVA and  Kenny and Rich strapped on their boogie shoes for the Fed. Cir.

Trust the Feds to really give this the hairy eyeball. The poor Vet has 15 years into this. It just didn’t have to happen. §3.156(b) is very clear. There are other regulations and VAOPGCPRECs (9-97) that say this in DickandJanespeak so there was no ambiguity.   Here, he was still in the process of a Fenderson rating. What could be more natural than for him to request a higher %. Mr. Bond, I suspect, was probably cognizant of it. In fact, everyone who had any training in this field seemed to overlook or misinterpret the clear meaning and fail to do the finger test. You know- take your right hand and hold out all five fingers and count.  June 6th , (1997), July 6th, August 6th,  September 6th, , October 6th.  Proceed to your left hand and finish- November 6th, December 6th, January 6th, and lastly February 1997. Nine months is three (3, tres, trois, san, sahm) months less than a year. Why did this have to occupy fifteen years, untold hundreds of thousands of dineros of and God only knows how many trees for pulp to put it on paper?  Homer Simpson’s monkey Mojo could do this in between beer runs to the refer. Wilbur could have gotten Mr. Ed to do it on the first take.  We are not measuring neutrinos vs. the speed of light.  Here is the meat of the ruling. I find it speaks volumes:

Section 3.156(b) provides that “[n]ew and material evidence received prior to the expiration of the” period for appealing a decision “will be considered as having been filed in connection with the [pending] claim.”  38 C.F.R. § 3.156(b) (emphases added).  Thus, the question for purposes of the regulation is whether the evidence submitted is, in fact, new and material—not whether the claimant characterizes it as such.  Because § 3.156(b) requires that the VA treat new and material evidence as if it was filed in connection with the pending claim, the VA must assess any evidence submitted during the relevant period and make a determination as to whether it constitutes new and material evidence relating to the old claim.

This obligation persists even where, as here, the RO has concluded that the submission in question also supports a new claim for an increased rating, for neither law – nor logic – dictates that evidence supporting a new claim cannot also constitute new and material evidence relating to a pending claim.  The Veterans Court, thus,erred when it rejected Mr. Bond’s argument that the Board failed to consider whether he submitted new and material evidence on the basis that “the RO treated [Mr. Bond’s February 1998] submission as an increased rating claim.” Bond supra.

The case doesn’t end here. It has been remanded back to the CAVC who will wash its hands like Pontius Pilate and  remand it back to the BVA. The BVA will say “Not it!” and it will eventually matriculate back to the RO whence it originated for some chucklehead GS-0 to figure out if the evidence submitted  in February of 1997 was indeed new and material,  and if so, whether it warranted a rating in excess of 30%. Poor Mr. Bond. I hope the reader understands that it will be August/September of next year before the C-file even sees the light of day at his local Veterans Service Center. Add a year for them to construe what it is they are supposed to be construing and get it wrong. Then it will have to wend its way back up the ladder to the BVA for another massage. It may end up back at the big house if they (BVA) decide the Fed. Cir. dissed them.

Let’s do the math here. Mr. Bond enlisted in the Marines in 1965 and exited in 1968- a standard three year enlistment. He wasn’t drafted but even money says he was 18 when he joined. I make him out to be 64ish by now depending on his birthday. I bet he will easily be over 67 before this is concluded.  A grateful nation shows it appreciation once again. VA’s logo should read “Justice Delayed is Not Justice Denied. Trust Us.”

P.S. I filed in 1994 and they walked away from mine without finishing it after I filed the NOD and new evidence. It’s now 2011 and mine is with the VLJ.  17 years in the wings waiting for them to do their job. Obviously, Mr. Bond and I are not anomalies in the system.  If you were wondering: 3 is numerical , tres is Spanish, trois is French, San is Japanese and sahm is Laotian.

About asknod

VA claims blogger
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