Last year I did an interesting writeup about Macklem v. Shinseki (Leroy Macklem, come on down!). What I didn’t do was give a complete rationale for why the CAVC ruled the way it did. I simply mentioned the rescission on appeal of the Extraordinary Awards Procedure (EAP). I feel Veterans need to see the thinking of the VA hierarchy to better understand what they are up against. Its one thing to go to court and espouse a theory. It’s entirely another affair to create laws, hide them from view and state that you are allowed to do this (or whatever you please) simply because you decided to.
The office of General Counsel (027) is tasked with keeping abreast of the law as it is currently interpreted by the Supreme Court and the lower appeals tribunals. Congress routinely changes laws that apply to Vets, so that too must be current. The Secretary is free to promulgate new regulations after publishing them in the Federal Register. If anyone objects, then he will have to defend his changes. The changes do necessarily require a legal foundation to support them.
In August of 2007, the OGC opted to change the procedure on how large monetary awards were administered (the Extraordinary Awards Procedure or EAP). Anything over $250K had to go back to D.C. to be examined. All well and fine. This was okay until the small print was read. There it stated that this was to be done in the utmost secrecy and the Vet and his representative were to be excised from the loop. None of this was to be allowed to escape into public. If a reduction in the proposed award was instituted, no one would know. FAST letters, as they are known, are public so this did not go unnoticed.
The Military Order of the Purple Heart decided to challenge the VASEC on this and went to the Fed. Circuit to stop the practice. While they were engaged in this, VA quietly rescinded the Fast letter in question and substituted another with minor cosmetic changes. When they (VA) arrived in Court, one of their primary arguments was that the Feds didn’t have the jurisdiction to hear this because the FAST letter had changed!
I quote :
The VA first challenges this court’s jurisdiction to receive this petition, arguing that it is moot because it was filed for Fast Letter 07-19, which was withdrawn when replaced with Fast Letter 08-24.
The VA alternatively argues that its new procedure is not subject to judicial review because it is not a “rule” within the meaning of the APA. The Federal Circuit is authorized to review actions of the VA Secretary “to which section 552(a)(1) or 553 of title 5” refers, see n. 1 ante, and thus to “review the VA’s procedural and substantive rules, any amendments to those rules, and the process in which those rules are made or amended.” Disabled Am. Veterans v. Gober, 234 F.3d 682, 688 (Fed.Cir.2000) (citing cases). The APA defines a “rule” as
the whole or part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.
5 U.S.C. § 551(4). Purple Heart v. Secretary of Vet. Affairs (2009)
The current VASEC and his predecessors are more than familiar with how the law works. To attempt this sleight of hand with a straight face is almost a joke. Read this.
Petitioners refer to the new instruction that claimants are not to be informed that their claim, after a hearing and decision by the regional office, is receiving another review at a controlling level, without any right of input or participation by the claimant. The Regulations state the veteran’s “entitlement” to a hearing conducted by persons with “original determinative authority:”
Purple Heart supra
Amazing, isn’t it? VA was attempting to rearrange the judicial furniture within the confines of 38 CFR, effectively disenfranchising the Vet of any input or procedural due process- all without so much as a by your leave. The sheer effrontery of this is monumental yet this occurs every day at the VA.
The legal landscape outside 810 Vermont Ave. NW is littered with these new “interpretations” of law. There must be an Office of New Legal Technique that does nothing other than research how to craft new meanings from existing regulations. Witness the fact that every new ploy that arises at the BVA is usually found wanting for lack of any cogent legal reasoning to support it. OGC’s staid response is that they “construed” the law to mean something new that no one else ever saw. Consequently we see the EAP, implicit denial, implicit consideration and a host of other new terms to excuse their excesses. The latest ploy of denying a claim without actually denying it is the “without resort to speculation” excuse.
You submit your claim and have several risk factors for contracting hepatitis in service. One of these may happen to have connotations of willful misconduct- say a failed urinalysis when DEROSing back to the States. After 1971, we were required to pass a piss test that detected opiates (Operation Golden Flow). The idea was to rehabilitate the junkies before we sent them back home. Uncle Sam didn’t want a bunch of druggies being discharged and set loose on the street. They opted to dry them out before setting them free.
At any rate, after assembling all the evidence and say, noting a tattoo in service and/or an STD, the VA examiner tends to “opine” that the Vet had several notable risk factors, and he/she is simply unable to ascertain which one was responsible for the HCV. We all know the rater is supposed to do the BOTD dance and give it to us if two of the three risks are legitimate and incurred in the Line of Duty. VA has decided to change that method in favor of stating that the crystal ball is “too hazy” to get a clear reading and thus it would be rank speculation on the poor rater’s part to advance a theory on service connection. The result? A denial based on a choice to not adjudicate responsibly. The claim goes up to the BVA on appeal and they invariably affirm. This will withstand the CAVC’s scrutiny, too. They tend to defer to the BVA if the reason for denial can be rationalized. This is now starting to come under fire, though
The repair order is a nexus letter that cogently discusses every facet of the risks and ascribes a percentage to each. The jetguns should be thrown in because the Court now recognizes this to be a risk even if VA steadfastly refuses to. The nexus letter will introduce a new facet-a doctor unafraid to speculate.
VA will continue to come up with all manner of crazy new ways to look at established jurisprudence with an eye towards reinventing the interpretation. This is disconcerting for any number of reasons. We don’t pay the OGC to investigate cutting edge law. They are tasked with adjudicating our claims based on established tenets already in existence-to wit: M21-1 and 38 CFR. They have no business running around seeking new meanings for what the definition of “is” is. That’s Bill Clinton’s job. Congress has chartered them to perform a finite procedure. The task is simple and straight forward. VA has been doing this for more than a century without having to resort to speculation. Why this sudden moral quandary and the worry of disenfranchising the Vet? VA certainly never had any moral compunctions about denying us in the past based on squirrelly theories.
Identifying roadblocks to our claims success is an ongoing process. When VA arbitrarily changes a regulation, the Courts will call them on it. When they obfuscate and dissemble, we have to be alert to these ploys and identify them. It is assumed that as soon as we see a trend and find a way to circumvent it, VA will feel emboldened to erect yet another one. I will give them this much. They are industrious little elves with too much time on their hands.