And here we thought old Leroy was going to collect Monty’s cookie jar behind door #3. Not! The VA decided this was simply too big a cookie jar and filed to prevent his judgement from being enforced. Here’s the audio of the argument posted yesterday.

http://veteranslawlibrary.com/files/Fed_Cir_Audio/2012/MacKlem_2011-7034.mp3

As you may or may not know, old Leroy filed for CUE on an old 1950 claim and the chuckleheads at the RO accidentally sent out a preliminary settlement telling him how rich he was going to be.

https://asknod.wordpress.com/2011/09/27/cavc-macklem-v-shinseki-leroy-macklem-come-on-down/

It had only two of the three signatures needed to make it legal. What he didn’t know was that VA had decided, in its infinite wisdom one day, to institute what was known as the Extraordinary Awards Program. One little problem. It was illegal because you cannot have another decision on a claim behind closed doors with no representation. That, in essence, is a de novo adjudication after an adjudication. Its like a trial in the back room after the trial to make sure the jury got it “right”. In this case, it was a tool to give a haircut to Veterans’ claims where they were awarded over $25,000.00 at once.

The Purple Heart VSO brought this to trial and won. The EAP was deep sixed and everything returned to normal. Or did it? There was no “formal” EAP now, but if I know the VA, there was a new “informal” procedure that gave these things the hairy eyeball for some way to reduce them. Enter Leroy Macklem. Unbeknownst to Leroy, the VA was still doing this after they were told not to.

Leroy’s award back to 1950 would have made him very, very rich. This rankled the VA so they sent it in for an EAP review. The only thing wrong with this picture was that the EAP had been ruled dead in the water already as I mentioned above. Leroy’s law dog argued that he won but for the illegal actions of the VA. He lost at the single judge disposition but returned for a win by a panel. This is what the VASEC is now contesting.

When this occurs, the decision reverts and the appellant, Gen. Shinseki (ret.) gets first billing and the appellee (defendant Leroy) gets second shot. The VA counsel (government) argues that they want a do over. They aren’t happy one bit. Ignoring the fact that this is  res judicata, which is VA legalspeak for a done deal judicially speaking, they beg for another bite of the apple. Their argument is ingenious (for them).

VA contends Leroy’s award was actually not quite an award. It was good to go, but needed three signatures. It had only two. VA says that means it wasn’t a “finding” or “holding”. Their repair order is to send it back to the RO for a “new” de novo adjudication. Paraphrasing what the Fed. Cir. judge and the VA counsel said went like this:

Judge: So you’re looking to overturn Macklem?

Counsel: Well, not exactly, your Honor. We want to remand it down to the RO for a de novo decision. It wasn’t complete with two signatures.

Judge: But wouldn’t that mean Mr. Macklem’s award would be overturned?

Counsel: Well, we don’t know that ahead of time. The decision hasn’t occurred yet.

Judge: Well, the CAVC said his CUE claim back to 1950 has no merit and would never be granted but for the error. So how would that play out? It seems to me that your boss (VASEC) has made his feelings on this subject clear. A remand would almost guarantee a denial for Mr. Macklem. If the boss says “Here. Look at this again. You know I’m looking for a denial and I write your paycheck.  Make it so, Number 1”.

Counsel: Your honor, we don’t know that. The CAVC is forcing us to accept a decision which was never final which isn’t legal. The Court only has jurisdiction over final BVA decisions.

Leroy’s law dog got his chance at the microphone and had a mouthful to regurgitate. He rightly reasoned that but for the error with the EAP fiasco, Leroy would be driving a Lamborghini right now. By sending him the preliminary decision, they had, in essence, agreed with his CUE theory. Mailing him a final decision and a monster check was just a formality. The RO had made its decision and it was a done deal. Reneging on that  wouldn’t be according to legal Hoyle. Res judicata was raised as an affirmative defense and the judges sat and listened. The legal beagle cited to Shinseki v Sanders as the controlling precedent for the procedural error.

http://www.law.cornell.edu/supct/html/07-1209.ZO.html

Last but not least we are treated to the real meat of the appeal. Leroy’s mouthpiece recited these three salient reasons why this should not come to pass and Leroy should be allowed to enjoy the ill-gotten fruits of his CUE filing:

1) It’s prejudicial. If VASEC takes this down to the raters at the VARO, you know what they’ll find. VASEC signs their check and they can see which way the legal wind is blowing. The twenty years and a golden parachute go out the window if they find in Leroy’s favor.

2) Remand is simply not needed. But for the EAP imbroglio, the decision would have gotten it’s third signature in due course;  it would have been mailed, and we wouldn’t be here today having this discussion. In short, this has been decided and a new decision isn’t in order. The Court found error and the case is done.

3) Of real import to you and me, the lawyer enunciated that which we know to be true. Leroy is 88 years old. VA will drag their collective feet on this until he blows the canopy and punches out. We know the old saw about delay and deny-until we die. Well, the lawyer made that perfectly clear to the judges.

On rebuttal, the VA counsel tried her mightiest to dispel that scenario by saying “Gee, your honor. Look at it this way. His widow can take over his claim and if she wins, she’ll collect.

Since I have failed to renew my subscription to “Santa Knows All” and the “Tooth Fairy Chronicles”, I find myself  bereft of faith that Leroy will get a fair shake. Apparently his law dog does, too. If his spouse fails to maintain her health, I suspect the VA would say the offspring of their union do not have a constitutional right to any accrued funds that may be due Leroy. This presupposes that anyone at the RO would have the audacity to cross swords with VASEC and grant the CUE.