Mr. Kenster the Carpenter seems to live in the Fed. Cir. now. Here we have him hard at work in Mr. Jerome Hampton’s defense. Ken should feel right at home in this case because it’s just a continuation of sorts of his 38 CFR § 3.156 (b) defenses in Bond v. Shinseki last month (Fed. Cir. (October 7th, 2011) and Rice v. Shinseki (CAVC , May 2009). Mr. Hampton (via Ken) actually filed to stay proceedings on his claim pending the Fed. Cir.’s disposition of Bond. This the Court declined to do, but as luck would have it, he gets to use it here as it was decided one month ago.
This is the audio of the hearing and it really makes the General Counsel for the Board look like a bunch of 1st year law students. They insist on looking through the binoculars backwards even when instructed to turn them around and use them properly.
The GC insists this is a case of a claim for increase or, in the alternative, a failure to file a timely NOD with a rating decision. Argument Number 3 (yeah, it’s complicated, huh?) would be that what Mr. Hampton filed after his rating was not truly New and Material Evidence which would fall into the area of § 3.156(b). I would call this the shotgun theory. The GC seems to be saying “He is not entitled and one of these arguments will support our contentions. We’re not sure which one, but we think at least one of them is on point.” They should be arguing that one and only one of these is the basis for the Fed. not having authority to address this. The CAVC has already stepped in it by narrowly focusing on what the BVA characterized this as- namely an argument about an earlier effective date.
Poor old Ken almost gets laryngitis trying to get the Feds to “Stay with me on this, people and follow the bouncing ball”. They keep reverting back to the CAVC’s misinterpretation. It gets humorous when the Feds finally get it and lay into the GC and say “Hold the phone, Gomer. Let’s look at what you say is not New and Material evidence first”. The GC immediately goes into Moonwalking mode trying to draw attention away from it. The ploy doesn’t work and this is where the case will be decided.
Basically anything is new and material evidence when filed if it passes a rather simple test. Once you have been rated, the biggest hurtle has been surmounted. Here, we have a claim that has been decided in the Vet’s favor in February of 2000. All he is saying is “I think you screwed up. Here are two (2) more records of psychiatric notes from my shrink that support my contentions that I should get a higher rating than 30%.”
The test is simply 1): Is it New in that it has never been introduced into his file and been used to consider the claim? and 2): Is it material (pertinent or relating to his claim for PTSD in that it would aid in making a decision)? If it passes these two smell tests then it qualifies as an addition to the existing case file and can be considered. The most important thing to consider that makes this identical to Bond and Rice is that Mr. Hampton filed this within the one year limiting period (April) following the February 22 rating decision. The GC must know its in over it’s collective head and is now grasping at straws. § 3.156(b) doesn’t permit much wiggle room and Ken has made that point in spades not once, but twice already.
If my opposition in Court was Ken and he had a success rate like that (2-0) under his belt on this subject, I’d be sitting up all night every night looking for flaws in my logic and cracks in the foundation of what I thought was a cogent, bulletproof defense. Ken really doesn’t have to do his homework. The case is what it is. The BVA and then the Court have denied based on the wrong tenets. Mr. Carpenter seeks to right the canoe (appeal), excavate the water (flawed decision-making process) and allow the sun to shine on the facts and nothing more. It’s like Detective Joe Friday saying “Just the facts, m’am. Just the facts.” The GC keeps saying “Wait. Look through the binoculars the way we do. Mr. Carpenter didin’t argue this the same way down at the CAVC. This isn’t very fair.”
Listen for yourself.
http://veteranslawlibrary.com/files/Fed_Cir_Audio/2011/Hampton_2011-7032.MP3
You can almost hear the GC start to whine when the Fed. gal and her partner lay into him and say “Whoa. Which two documents aren’t N&M? Show us. Now, why aren’t they N&M?We don’t want to hear you digress. Tell us about these two documents. Are they new to the decision? Do they bear on the subject?”. I think Ken has this one in the bag. You can bullshit some of the chuckleheads most times. You cannot bullshit Mensa members any time. They will not be swayed by dancing Hula Girls on the dashboard in grass skirts. They look at the facts.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 