CAVC– Barbaccia v. Shinseki–Duty To Assist


imagesIt’s nice to see the Court put as much effort into a SJD memorandum decision as they do  the bigger Dog and Pony shows. Mr. John R. Barbaccia , a Veteran as well as a frequent member of the Nasty Guard, has limped off the field with his honor and his flag intact. He will live to fight another day and perhaps return to visit Judge Alan G. Lance, Senior if things don’t go well at the BVA again.

Johnboy filed for NHL and HCV in 2000 while he was still in. He wasn’t feeling well and was getting ready to roll up and go home. He didn’t foresee 9-11-01. He finally asked for his walking papers in July of 03 and was separated.

In the meantime he was busy signing off on SF 10-5345s to give VA authorization to obtain his civilian medrecs. After all, this is what you do when you file, right? VA has a duty to assist the Vet. This is paramount when the Vet gives you the name, rank, airspeed and tail number of the doctor, where to find him and what kind of ordnance he has under his wings. One expects this to be a given that they will do what they are required to. Imagine the Johnster’s surprise when he was denied two years later. Being like most of us, he blew it off the first time and didn’t appeal. He woke up in  March 2005 and filed to reopen. The shutdown was much swifter this time- August. The reason? No New and Material evidence to reopen. Mr. B filed his NOD in November and started looking into this very carefully this time. Something was apparently amiss. All that VA doubletalk he’d gotten the last time around was starting to sink in. He didn’t have a nexus letter connecting the dots and VA was quick to use that as the salient reason for the denial. Mr. Barbaccia was getting a college education in a few short months on VA protocols. This didn’t dissuade him in the least. He filed his Form 9 and got in line at the BVA. This decision does not specify when, but it’s apparent the BVA hosed him by the record. Nonplussed, Johnmeister filed his NOA and got in line for another long wait.

He arrived here at the Court to plead his case hoping someone with a three-digit IQ and a real law degree would listen. His prayers were answered. Alan and the chipmunks went to work and discovered some serious problems with that pesky duty to assist provision. Seems the VA had been a little remiss in retrieving his civilian records:

The Secretary argues that the appellant’s written consent (R. at 220, 222) was submitted in February 2001, which is prior to the
April 2002 rating decision that became final, and that the consent was not “new and material” under 38 C.F.R. 3.156(a) (2010), because it was previously of record. Secretary’s Brief (Br.) at 8. The Secretary further asserts that the appellant “has not demonstrated any prejudice where these postservice records were not obtained where his claims were denied due in part to lack of evidence of in-service occurrence.” Barbaccia v. Shinseki (2011)

Negative copy. Say all after “was submitted in February 2001”? This is VAspeak for “we were unable to understand what it was he was submitting written consent for (second time) so we put it in the circular file. As for it being prejudicial? Well, that all depends on how you define prejudicial. We don’t think he got it in the service, so we’re not gonna squander any time looking for it even if he asks us to. What a waste of time.” Judge Lance said otherwise.

Here, the Secretary does not dispute the appellant’s argument that VA made no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision.  Barbaccia supra

Jez, I don’t know which is sadder- the VASEC trying to blow this Vet off and give him a smorgasbord of nunc pro tuncs or a Judge having to take the VASEC aside and tell him he’s not allowed to do it. He’s not in some foreign court and cannot claim unfamiliarity of the law. Hell, he writes the regulations in  38 CFR ! What kind of defensive posturing is this?  This is like a first year law student screwup. It should never have arrived at Indiana Ave. in this state. What was the Veterans Law Judge who signed off on this smoking? If Shinseki and his merry band thought they could roll Lance this easily, they may have to rethink all their legal strategy. It ain’t gonna happen. VASEC tells the General Counsel what to do. They don’t exude flatulence without permission from on high.

The Court is an august place to do business. When caught cheating, they tend to slap your wrist verbally. The current VASEC has been engaging in this sort of shotgun justice on Vets since his investiture in 09. A Vet himself, this leaves me with a sinking sensation. §3.159(c) has been in existence for quite some time in its current iteration. Nothing new has been appended to it. It doesn’t have a lot of conjunctive adjectives and sub-layers that require a Powerpoint presentation with the laser that I torture my cat with. Judge Lance must have been thinking something similar. He was polite as punch and told Eric to take Mr. B’s case back down to 810 Vermont AVE. NW and be quick about it.

As stated above, Johnbo will live to fight another day. Sir Eric will  pursue his hobby of disenfranchising Vets as he pleases frequently and legally with abandon. Judge Lance will continue to do what he does best which is identify injustice to Vets and correct it. Why Mr. Barbaccia had to wait ten years to get this straightened out and remanded for an honest “trial” will elude him (and me) forever.

An ex parte system of justice shouldn’t be mutually exclusive of communication between the participants. We shouldn’t have to read about our denial 3 years hence based on illegal actions. A simple tool called correspondence, via Ben Franklin’s invention (the USPS), could have cleared up this misadventure in short order. I do hope Mr. Barbaccia had the pleasure of attending the oral presentation of this case and stood up at the end with some spot on  comment like “Yo!. Who’s the fool, fool?”

BarbacciaJR_09-3136

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, Important CAVC/COVA Ruling and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

6 Responses to CAVC– Barbaccia v. Shinseki–Duty To Assist

  1. John b says:

    Finally received 100% rating… After all the medical papers were read

    • asknod says:

      Isn’t it amazing how long it takes to get someone in authority (usually at the OGC) to finally see the light just about at the Rule 33 conference and say Wait! He’s right. How did we miss that? Congratulations are in order. Tenacity once again pays off.

  2. John Barbaccia says:

    After all said and done. 20 percent , service connected waiting for the cancer sevice connected ratting. 13 years finnally

  3. asknod says:

    At the rate they’re going, the mental health quandary will solve itself. Darwinian thinning of the herd will reduce numbers to a manageable level. I see where the newsies commented that VASEC’s new homelessness initiative is bearing fruit. There was a marked reduction of 12% in the figures for 2010-2011. That looks good until you see that the homeless figure was 169K before it went down 9K. It’s all in how you massage the numbers.

  4. Dottie says:

    They did the exact same thing to us. Never got the records and I specifically put the hospital name, address, etc; and they never sent for them. Didn’t get the C and P exam until Mr Carpenter sent for the c-file. 2 and a half years after filing the claim!

  5. Loyal Blair says:

    There continues to be a financial incentive for the VA to delay Veterans claims, so why should we be surprised when the VA takes full advantage of this budgetary no interest loan? Its well built into the system…the Veteran cant collect interest on the delays, he can do nothing to stop them, and he can die trying. All of these scenarios result in a “0 interest loan” to the VA at the expense of the Veteran, so delay tactics are such as this are built into the system, financed on the back of Veteran and their families homelessness, suicide, and mental health. Is it any wonder why the VA cant care for all of its mental health patients?

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