It’s always interesting to follow the progress (or nonprogress) of a claim as it wends its way up the legal ladder. As the BVA is rather secretive and does not divulge the name, rank, airspeed and tail number of the Vet, we only pick up on these as they go by at the Court. I happened to spot Mr. Hamer back in the news again today. Apparently the gentleman, still under the expert tutelage of Mr. Kenneth Carpenter, has opted to take it up a notch and pursue his argument before a panel of the Federal Circuit.
This should be interesting. I posted a writeup of Mr. Hamer’s excellent adventures in claims back in October, 2010 and his subsequent mishap when the BVA inadvertently granted the very thing he wished- a CUE of his 1985 rating.
When they did this, it freed them up to use what we call the Fenderson or staged rating technique wherein you are rated retroactively based on the available medical and work history info the VA has access to. Technically they are not allowed to hire private dicks and put surveillance on your home. Hell, they don’t have to. They have their own jack-booted thugs at their beck and call. Of course, if you’re on TDIU and working, that’s a different story altogether. That’s cheating. One is the antithesis of the other. One simply cannot be “Totally Disabled Due to Individual Unemployability” if he is working. Or can he? There’s one small wrinkle here. The VA’s actions caused him to seek work to eat. He obtained what can best be described as “sheltered employment” as a Service officer of a VSO. This was still no excuse as we saw at the Court.
When Mr. Hamer won his CUE claim they Fendersoned his ass and scalped him of his TDIU during that period he was working (1989 to 2000) and then re-TDIU’d him. Apparently this rating technique did not sit well with the gentleman. Yesterday he and his esteemed mouthpiece went to the Fed. Cir. and pleaded his case before them.
You can listen to the hearing (audio only) by visiting :
Mr. Carpenter has cogently and ably made his case and it isn’t all that tortured or convoluted. He simply points out that a CUE claim is clearly defined as a restoration of one’s existing claim rather than a new, initial award that can then be Federsonated. Always remember, Fenderson was constructed to aid in determining a fluid rating predicated over time (retroactively) on an original claim. Think of it like this: You win after 10 years of VA intransigence. They give you 10%. No way, you say. I qualified for 60% on such and such a date 5 years ago and 30% 7 years back. They split it and give you 10% to begin with 10 years back, up it to 20% @ 7 years, 40% @ 8 and 60% now. “Now” was 2 years ago so you file another NOD and say Hold the phone. Now its 100% in 2010. And on and on the dance goes. But- and its an important but, Fenderson only applies to new claims, not the restoration of an old, protected rating based on CUE. You can never use Fenderson on a claim for increase and go retroactive either. Mr. Carpenter aptly points out the incongruity of bending Fenderson around like a pretzel and inserting it into 38 CFR § 3.105(a) and (e) to the judges. He’s a silver tongued devil, that man. If I am ever forced to venture into the hallowed halls of the Court or the Fed. Circuit, I hope he’s by my side. I have no qualms about sharing my take with him.
Mr. Hamer got his severance package in 1985- fully 7 years after his grant of SC. As such, it was a stabilized rating which, absent a medical finding and proper severance notice, could not be disturbed. He argued in 2000 for a finding of CUE in the 1985 severance and several months later for an increase back to TDIU immediately. His RO gave him back the IU but declined the CUE revision. He won that in 2004 at the BVA, but got saddled with the Fenderson criteria. Based on that he got the lollipop stick sans lollipop from 89 to 2000.
The Court didn’t see eye to eye with Mr. Carpenter’s arguments and found nothing wrong with this business. They utilized existing jurisprudence in Reizenstein and O’Connell to rationalize their decision. This is all well and fine if, and it’s a big if here, O’Connell and Reizenstein are truly on point and good jurisprudence.
Mr. Carpenter reaches back to SEC v. Chenery Corp. 332 U.S. 194 (1947). The SEC did what the Board did. They invented a rule to fix an inequity during the course of the adjudication. The BVA got the appeal and re-adjudicated it based on a VAOPGCPREC designed and promulgated solely to deal with Mr. Hamer’s predicament or, more properly, their predicament. This constitutes creating law out of whole cloth to buttress their argument for their inevitable decision which, lo and behold, supported their theory of how this should have been adjudicated. Mr. Carpenter has really earned his shekels if he prevails here. What it means to Mr. Hamer is a free paycheck for IU from 1989 to 2000. I agree with the precept that he’s not entitled to it, but the VA threw the first rock and then admitted their error 19 years later in an underhanded attempt to fix a very sticky wicket..
In all fairness, we shouldn’t come down on Mr. Hamer. He got the end of the stick with the defecation all over it in 85 and didn’t appeal. He legitimately won his argument for CUE in 2004 and that should have been the end of the matter. The BVA, in its own inimitable way, went to its paymaster the VA General Counsel and basically asked them how to fix Mr. Hamer’s wagon.
Those funny guys at the VA Office of General Counsel came up with this predictable “finding”:
I suppose if you were a scientist of the horizontal persuasion and wanted to prove your case that the world truly was flat, the best jury of your peers would be fellow members of the Flat Earth Society. In essence this is what the VLJ opted for.
That the Court didn’t pick this apart and see the non sequitur is appalling. Normally they are all over this kind of inequity like white on rice. A General Counsel finding in the middle of an adjudication should have made their collective hair stand on end. I wrongly impugned Mr. Hamer’s motives for appealing this last year and I humbly apologize to him and Mr. Carpenter. You cannot bend the law to prevent unjust awards. Yes, you read that right. Mr. Hamer is not legitimately entitled to his TDIU from 89 to 2000 because he was “working” in the truest sense of the word. He wouldn’t have been if the VA hadn’t committed CUE in 85, but that is a tenuous argument that will not avail him here. No, the injustice was in severing him in the first place. They compounded their error by asking the GC to craft a bulletproof finding that would cover their ass. Once they had it in the form of the VAOPGCPREC, they could walk all over his rights and dictate a new decision a la Fenderson. The Court aided and abetted this with even poorer reasoning. We can only hope Mr. Hamer’s appearance yesterday will inevitably prove to set another benchmark to VA law in our favor. We also pray the members of the Court take notes on this and avoid similar mistakes in the future.
As there is a vacancy on the Court bench, I would admonish our President to seriously consider appointing the Kenster to fill it. He sure isn’t making a killing representing us. On the other hand, this would deprive us of that which we sorely need when we appeal injustice.
This is part 2 of a three part judicial adventure. Here’s part 3: