Once again, the illustrious Kenneth “the wood butcher”  Carpenter sharpens his  legal skillsaw blade and gives the VASEC a much-needed haircut and manicure. This one is particularly bloody in that it results in a reversal rather than a namby pamby, vacate and remand. Reversals are, by their very nature, the ultimate bitch slap legally speaking. In DickandJanespeak, it means the legal foundation the VA based their entire defense on was faulty. It implies they got their law degree out of a Crackerjack box. I apologize to the makers of Crackerjacks for that deprecation.  It was uncalled for.

Peggy L. Quattlebaum’s spouse, Cecil L., applied for, and was denied, several ailments to include tremors of all fingers, twitching in finger, a heart condition, and a total disability rating for individual unemployability (TDIU). This was August 2000. As is their wont, VA being unaware of what their individual departments were up to, continued to send the Quattlebaums letters saying they were still in the process of examining his claims for compensation. Ten days following the last letter on December 29th, Cecil packed his bags and checked out. He was no spring chicken and the rigors of dealing with the VA probably made him apoplectic.

Peggy, obviously a well-schooled woman in the arts of the VA, filed her claims for DIC, accrued benefits and a death pension February 2001. This is important. It was done within a year of when he passed so it passed muster legally. The VA, still stumbling around in the dark, mailed Mr. Quattlebaum a letter acknowledging his recent resurrection from the dead and (Peggy’s) application for benefits. It didn’t take long in VA terms to clear this up. In a mere six months, those Dick Tracys at the Montgomery, Alabama VARO informed her her claim was dead in the water. What they didn’t put paid to was her claim for accrued benefits. This should come as no surprise to Vets. VA has a hard time “construing” what it is we ask for when we file. To misplace a part of our claims is entirely expected.

After four years and five months (January 2006) of waiting, Peggy informed the VA that she was still waiting on the accrued benefits check. She also politely asked them to review their records and determine what the status of the claim was that he had filed prior to his demise and to please send her a check for that as well. In the blink of an eye (seven months), VA returned her epistle and summarily informed her that his claim had been denied in August 2000 and, if she had a problem with that, she could file a NOD. What the letter didn’t state (or address) was this pesky little matter of the accrued benefits. VA seemed to be studiously avoiding the issue.

VA is nothing if not ingenuous. Using their best post hoc rationalization techniques, the September 2007 SOC artfully explained to her why she wasn’t going to be in the running for the VA’s version of the Publisher’s Clearinghouse Sweepstakes. VA decided to look at only the January 2006 date as a claim for the accrued benefits. Naturally, if they used that as the very first date for a accrued benefits claim, it would fail. This claim would have to have been presented within the one year statute of limitations after death. By conveniently ignoring the January 2001 filing, they avoided much financial hardship on themselves.

Peggy smartly filed the F-9 and beat feet for D.C. One would think she’d finally get this straightened out among people with triple digit IQs. Not. The BVA made the same mistakes the RO had, and didn’t investigate this properly. I witnessed this phenomenon first hand in 1992 in my own BVA misadventure. It appears they simply took the RO’s version, chapter and verse, and put their imprimatur on it. This makes for speedy justice, but not justice. By not performing due diligence at this level, they managed to overlook the seminal filing in January 2001 that explicitly requested the accrued benefits. This was all a matter of record, so no one can say Peggy and Ken snuck it into the C-File.

Without going into the minutiae of the claim, suffice it to say that VASEC was trying desperately to once again employ VA pretzel logic and bend their regulations to fit their circumstances. About the only thing they didn’t do was run to the General Counsel and ask that a VAOPGCPREC be issued supporting their contentions. The BVA’s VLJ and his minions did a miserable job of sorting this out and now the VASEC was going to the mat for them. Bad idea. When you finally find yourself before an impartial panel, the fig leaf will not cover your nakedness. VASEC owns the BVA. He can tell them what to say, what to think, what to decide and for the most part, how to decide it. He does not similarly hold sway over the Court. They had no trouble reasoning this out which leads me to believe VASEC knew it was defective and hoped to moon walk it past them. He needs a new dance instructor:

At oral argument, when confronted with the above possibility, the Secretary argued that the only proper avenue for obtaining relief in the circumstances described above is a motion for revision based on CUE. However, a CUE motion involves errors “based on the record . . . that existed” at the time of the previous decision, Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc), while an attempt to reopen involves a supplement to the record that existed before the Agency decisionmaker, see 38 C.F.R. § 3.156(a). The situation of a claimant submitting evidence that was in the possession of the Secretary, but not previously in the claims file or before the decisionmaker, more closely aligns with the concept of reopening. Further, the CUE standard requires a claimant to demonstrate that the document “would manifestly have changed the outcome of the case,” Sondel v. West, 13 Vet.App. 213, 221 (1999), imposing a significantly higher burden than that of demonstrating “a reasonable possibility of substantiating the claim,” which is the new-and-material evidence standard. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010); see supra note 6. Thus, while a request for revision based on CUE is potentially one way to obtain accrued benefits when a timely claim for such benefits has been submitted but denied, that option does not preclude the option of seeking to reopen the claim based on new and material evidence.  Quattlebaum V. Shinseki (2011)

Rubbing salt into the wound, the Court also pointed out that there has to be some continuity in the way VA administers justice. This has always been a bone of contention among Vets. How else is one to  present a structured defense of one’s claim when the reasons for denial seem to be based on a different interpretation of the law on any given day? The Court addressed that as well:

Further, in Wright v. Brown, 9 Vet.App. 300, 302-03 (1996), when a surviving spouse “submitted a document which could be interpreted as a claim alleging CUE . . . or, in the alternative, a request to reopen her [accrued benefits] claim” four years after a final Board denial, the Court did not hold (as the Secretary requests here) that such an attempt to reopen was precluded by statute. Rather, the Court stated that, “[t]o the extent that the document submitted . . . may be considered as a request to reopen,” the spouse had failed to demonstrate new and material evidence. Id. at 303. While acknowledging that an agency’s interpretation of a statute that it is charged with administering is subject to “some deference,” Cathedral Candle Co., 400 F.3d at 1365, we also recognize that “‘considerably less deference'” (Gose v. U.S. Postal Serv., 451 F.3d 831, 837-38 (Fed. Cir. 2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994)) is due to an interpretation that is (1) articulated by appellate counsel, rather than promulgated formally by administrative officials, (2) inconsistent with previous agency positions, or (3) not a reflection of the “specialized expertise'” of the agency, Cathedral Candle Co., 400 F.3d at 1367 (quoting U.S. v. Mead Corp., 533 U.S. 218, 234 (2001)). Here, deference to the Secretary’s current interpretation of the statutory scheme is particularly unjustified, where (1) the Secretary has not identified any regulation, VA Office of General Counsel opinion, or Agency-wide pronouncement positing his current interpretation, (2) this current interpretation is inconsistent with positions previously taken in Moffitt and Wright, both supra, and (3) the Secretary has not articulated – and the Court cannot discern – how this interpretation reflects his specialized expertise. Quattlebaum supra

As I have pointed out to Vets in the past, the VA either flaunts the law with no worries of ever being caught or they are artisans who carefully rearrange the judicial furniture and stage the crime scene. This may sound harsh, but it is not just my opinion. One of the reasons for the VJRA in 1988 was to address this inequity. As Sen, Cranston said at the time (and I paraphrase), VA has existed in splendid isolation for eons with no appreciable judicial oversight. This breeds contempt for the law. After reading thousands and thousands of decisions, one thing seems evident. VA either loses evidence, conveniently misplaces it or blatantly decides not to include it in the record in hopes that no one will notice. If you have the IQ of my goat and are a litigant, you may not notice it. If you are the Kenster, this stands out like a coastal lighthouse in a Maine fog. The fact that Mrs. Quattlebaum studiously included this in her evidence of record speaks volumes of what the VA either failed to do in discovery or chose not to do when they came to Court to defend their position. Ignoring the 800 lb. gorrilla will not make him disappear.

In this regard, we note that the record of proceedings reflects that Mrs. Quattlebaum attached two VA letters in support of her claim. These letters (1) indicate that Mr. Quattlebaum’s claim was still being considered by the Secretary at the time of Mr. Quattlebaum’s death, (2) were not mentioned in the August 2001 RO letter that stated that the RO “cannot approve your claim for accrued benefits because VA did not owe [the veteran] any money” (R. at 318), and (3) appeared in the record of proceedings only once (as submitted by Mrs. Quattlebaum), indicating they may not have been in the record at the time of the August 2001 RO letter. Quattlebaum supra.

Reading these decisions afterwards and doing the Monday Morning Quarterback routine, I find myself in awe of Kenneth Carpenter. Not that he is an astute, adroit counselor, but that he can separate the legal wheat from the VA chaff and see the obfuscation and legal chicanery employed day in and day out. The VA is our avenue to service connection in spite of what it may seem like. If you have only one venue to turn to and all you see is spike strips, justice can seem unattainable. When you attempt to avail yourself of same and VA resorts to deceit or decides to ignore the evidence of record, you feel pregnant and alone. On appeal to the BVA, this should all be unraveled and set aright. However, when Vets or their widowed spouses are forced to consume a decade of time in their twilight years in pursuit of this and the ones ostensibly employed to facilitate the delivery of those benefits become your foe, I submit that the process has gone horribly awry.

Singing the praises of ex parte justice is all well and fine. That assumes the process is followed and a truly non-adversarial, veteran-friendly adjudication ensues. I see less and less of that every time I look at what the VA serves up for justice at the Court. Where is the interaction contemplated and mentioned in every decision? VA has yet to ever engage me in a beer summit and ask any questions or sort out any unresolved mysteries. The accepted protocol seems to be “Damn the Veteran. Full speed ahead”. My apologies to John Paul Jones’ ancestors are in order here, as well as to the Crackerjacks folks.

Ladies and gentlemen Vets, meet Peggy L. Quattlebaum. And for those of you who frequent the VBN, this isn’t the same “Peggy”. I just want to make that clear.