CAVC–BROPHY v SHINSEKI-HELLO? McFLY?


What is it in this day and age of claims filing that would allow a Veteran to file a claim with no evidence? What also would possess them to ignore all requests for substantiation? And why, pray tell, would their lawyer sit on his duff and ignore his client’s claim?

Lawyers are light years ahead of legalzoo.com and VSOs. They do this for a living and some go the extra mile and do it for Vets. Veterans law is a nice cozy little backwater that has limited parameters. More slack is given to a Vet than in a civil proceeding on paper. We have found out over a century and a half that what is proffered is not always what is received, but that is not the discussion today.

Enter one Randolph J. Brophy who served in the Gyrines from 1966 to 1970. There is no mention of his serving in RVN , or anywhere for that matter. About all we know is that he received shots for different diseases while he was in the service. Okay. So did we all.

When filing a claim, it is incumbent on the claimant to list what he/she is filing for and to prognosticate on the possible reason for the disease /injury. This helps the VA to misconstrue it and look in all the wrong places. Eventually it gets sorted out if we are lucky, and a decade down the road we may or may not see a grant. I theorize that this is a way of delaying the inevitable. It’s like a new source of money for the VA in that they can program it into the 2022 budget cycle. Avoiding paying for it now keeps the current budget on track and within its predicted parameters. As an example, I point to the M2 money supply on credit cards. It only exists on paper. The debt is real and the funds are eventually realized, but this is not cold, hard cash. I digress.

In August 2008 Mr. Brophy filed for Hepatitis, erectile dysfunction and DM2  with two Form 21-4142s. which are requests to fetch medical records. That’s it.  You read that correctly. He had his able law dog (a non-attorney) at his side when he did this ( the record implies it). As is the SOP, he got his development letter from VA in November that said “Whatdaya got? Send it in.” He replied with a terse ” Nothing to add. Decide my claim and  send me the shekels”.

December arrived along with Seasons Greetings from Uncle Victor. They were desperately trying to fathom Randolph’s risk factors as they had none to deny on. They dutifully asked for anything and everything again. Silence greeted them and as is their wont, VA denied him. The January 2009 denial included a brief note that, in the absence of any communications or N&M evidence filed, VA really had no other alternative than to deny.

What happened next is really bizarre knowing he had a law dog:

In April 2009, Mr. Brophy, again through current counsel, submitted a lengthy Notice of Disagreement with that decision. That Notice of Disagreement, however, contains no arguments based on the specific facts of Mr. Brophy’s case; rather, it contains only a litany of laws regarding VA’s various duties. Mr. Brophy ultimately appealed to the Board. In his Substantive Appeal, also submitted through current counsel, Mr. Brophy again made no factual arguments, only general assertions that VA failed to consider and properly apply numerous statutes and regulations.   Brophy v. Shinseki (2011)

At this point you and I would wake up, smell the coffee and get cracking. No, actually we’d have done so at the beginning if we had our wits about us. What ensued should not have come as a surprise to Randolph and Perry A. Pirsch, Esq. As an aside, what is it with the Esquire crap? That is sooooo passe. It’s like Jr. or Nod III. Does that imply Perry’s a vertically challenged person that needs more titles after his name? Perhaps one who feels he’s mentally inferior to his peers?  I vote for the inferior theory judging by his legal acumen.

At any rate, Randy and Perry got the deep six in August 2010. Assuming the RO didn’t shred his file and ignore something, it appears as though they had less to read than the funny paper section of the Monday morning Charlotte News Observer. Based on that, even I would be forced to surmise as much. We all know I am no fan of the VA, either.

On appeal to the Court, the problems start to pile up. As I have pointed out to Vets in the past, anything you want to argue in front of the Court better damn well have been argued in front of the RO or the BVA. Since the Court is not a trier of fact, you cannot arrive with a laundry list of  new reasons why your claim should have been granted.  Perry must have slept through that part of his legal schooling. He and Randy promptly busted out the brand new proposition that his risk was due to jetguns, or, in the alternative, the scars on his wrists. They didn’t go into a detailed explanation of why the scars on the wrists were indicative of the contraction of HCV. That was left to Judge Hagel to decipher. He politely declined:

As the Secretary points out, at no time before the regional office or the Board, however, did Mr. Brophy identify his in-service inoculations as a risk factor; indeed, he did not identify any risk factors at all, despite VA’s express request that he do so. He may not now allege error because the Board failed to read his mind. The Court finds no error in the Board’s failure to expressly consider this purportedly “favorable” evidence.  Brophy supra

Nota bene. This may be the only time you see me agree with VASEC on something. Footnote # 3 at the bottom of page four on the electronic publication is quite facetious:
Mr. Brophy invites the Court to take judicial notice of “multiple articles published on the Internet” that he contends “describe[] a problem with airgun injectors.” Appellant’s Reply Br. at 2. The Court declines the invitation, as Mr. Brophy has not demonstrated the foundation necessary for the Court to do so: that such a “problem” is not subject to reasonable dispute.  Brophy supra footnote

Ah, grasshopper. Now you see the defense. As for the scars on the wrist, the immediate thought that comes to mind is that he attempted suicide with shared razors, but that is not in the STRs. Randolph’s second theory was that he didn’t get a Dog and Pony show at QTC, but that falls flat like a cheese souffle in a room full of rugrats. Aside from arguing this at such a late date, he gave nothing to them to provoke one.

The third and last gasp was the old “duty to assist” was violated. Well, pilgrim, if you don’t ask them to play Rover and fetch, you can’t bitch on appeal. All these late-breaking revelations were to no avail, nor should they have been. Randy and Perry were out cutting bait when they should have been fishing. As an attorney, Perry’s performance was more a case of being AWOL.

I wrote a post about a BVA decision a while back and entitled it “Boldly going nowhere” as a humorous redo of the Star Trek phrase. This far and away surpasses it in spades. I almost wished I had saved the title for one similar.

https://asknod.wordpress.com/2011/09/26/bva-boldly-going-nowhere/

Mr. Brophy and his erstwhile mouthpiece lost this as we can see. It isn’t even a good teaching moment for Vets. It’s tragic in my mind to see a Vet commit claims hari kiri. If he had been pro se we could all point and exclaim ” Well,duuuuuh!”  Doing it with someone who has been granted a law license is unfathomable with behaviour like this.

If and when I find myself similarly situated, I intend to find the brightest and the best. I would have no qualms about sharing any moneys with them. Going up to the Court pro se or with this bozo would be like climbing Mt. Everest barefoot. That, if anything, is all you can derive from this judicial exercise.

http://search.uscourts.cavc.gov/isysquery/fe9cd874-44ed-4e18-8114-e8208ad608c8/66/doc/

About asknod

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

3 Responses to CAVC–BROPHY v SHINSEKI-HELLO? McFLY?

  1. asknod says:

    What do you suppose Mr. Brophy did in the military for a job? HR?

  2. randy says:

    You just can’t fix stupid no matter how hard you try. Once again the analogies were dead on and humorus.

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