Ever since I published the Cushman decision, I have been inundated in “what ifs” from Veterans. As in “What if they didn’t grant the hearing I asked for-is that deprivation of due process?” etc. Allow me to take a CAVC decision that should never have seen a panel but nevertheless illustrates what Veterans can and cannot do to obtain justice under this (the fifth) amendment. The decision I  will use as an example,  Edwards vs. Peake(2008) is classic. Mr. Irwin J. Edwards is either dyslexic, has poor attorneys or suffers from “I don’t get it” syndrome.

http://www.uscourts.cavc.gov/documents/Edwards_04-1104.pdf

Even the dumbest of the dumb of us will eventually read the instructions on the back of the box or get out the Rand McNally atlas when things go awry. Not so Mr. Edwards. Apparently, he chooses the argument least effective by complaining that the instructions were a) not clear enough to interpret; b) not written at his level of comprehension; or c) designed to lure him away from filing in a timely manner (basically estoppel)

He therefore tries desperately to couch his argument in the Due Process clause. Let’s look at what this says, and perhaps more importantly, what it doesn’t say.

First a brief history of Mr. Edwards’  claim. He was a reserve or Nasty Guard because he had a limited active duty adventure lasting from 10/01/77 to 4/04/78. For those of you from Yorba Linda, that’s five (5) months and four (4) days. This is an extremely short time in which to contract a horrible, life-long mental disability. Several months later in July, 1978 he filed his claim. VA procrastinated and finally denied in August 1981. He failed to appeal. Not the least bit deterred, he refiled in July 1987. July apparently was his slow month business wise and he had more time to devote to this project. Most guys trying to finagle the government on this flimsy a claim would have the common sense to attend their dog and pony show. Not Mr. Edwards. The February date came and went and Irvin was a no show with no explanation. In March(1987), a month later, the RO obliged him with a brand new denial to frame with the old one.

Ten years later, January 14th, 1997 dawned clear and bright. Mr. Edwards felt suuuuper motivated and marched out to the mailbox with a request to reopen this neglected enterprise. July 1997 arrived (there are a lot of Julys in this) and the mail brought yet another denial. This time it was due to a lack of any new and material evidence with which to begin this. Back in the olden days when you filed for anything, you had to present something that supported the claim. Similarly, filing a 526 and saying “Here’s the address. Send the money”. wasn’t sufficient to begin the process. Each time you do this, you have to file with more new and material info. I suspect Irvie was plumb out of that product.

Nevertheless, he filed a NOD this time. After several years in the pre-appeal state and still at the RO, Mr. Edwards hornswoggled these old boys into 50% in March 1999. I have no idea what he used to get there and it’s certainly not germane to this discussion. Dissatisfied with his effective date of  the January 1997 reopening date, he filed a new NOD disputing it right after the RO grant. The appeal was certified and the game was on.

This moved to D.C. where the Board rightfully put a fork in it. Mr. Edwards opted to go up to the big house and got some momentary traction with a remand. Keep in mind the claim was doomed and all the trees being converted to pulp were not going to put Humpty Dumpty back on the wall. It’s axiomatic that an unappealed claim, absent prescient VA examiners, can’t have an earlier effective date. Trust me.

This minor inconvenience didn’t faze Irv in the slightest. Somewhere along the line he hooked up with a couple of law dogs that agreed to carry these empty pails of water. Which brings us to 625 Indiana Ave. NW.

This is the Court’s reasoning on Mr. Edwards’ precarious legal argument claiming a due process violation :

The Fifth Amendment to the U.S. Constitution provides that “No person
shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. amend. V. “[T]he Due Process Clause provides that certain substantive rights–life, liberty, and property–cannot be deprived except pursuant to constitutionally adequate procedures.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985). An essential principle of due process is that deprivation of a protected interest must “be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The Court reviews questions of constitutional interpretation de novo. See Buzinski, 6 Vet.App. at 365 (“VA resolution of questions of constitutional interpretation are questions of law, to which no deference is accorded and accordingly this Court’s review is de novo.”).

The appellant argues that he was not provided constitutionally sufficient notice because he was not informed “of the res judicata effect of failing to submit new . . . evidence within the one year period” following the March 1988 RO decision denying his claim for service connection for a psychiatric condition (schizophrenia). Appellant’s Br. at 12. However, “an appellant’s claimed lack of subjective knowledge does not as a matter of course deprive him of due process. Rather, the Court must inquire into the procedures that were employed in this case to determine whether they comport with the Due Process Clause.” Buzinski, 6 Vet.App. at 365. Edwards v. Peake (2008)

We pause here to cut down more trees for additional paper.

The RO notified the appellant of its decision on his claim (“We cannot grant your
claim for disability benefits.”) and the reason for its decision (“You failed to report for a scheduled examination.”). R. at 191. It included notice of the right to a hearing (“If you desire a personal hearing to present evidence or argument on any point of importance in your claim, notify this office and we will arrange a time and place for the hearing.”), and notice of the appellant’s right to initiate the appeals process by filing an NOD (“You can start the appeal process by filing a Notice of Disagreement.”). R. at 192. The appellant argues that this notice was inadequate because the RO “failed to set forth a time deadline for the submission of new evidence.” Appellant’s. Br. at 11. However, the March 1988 notice clearly advised him of the period in which an appeal must be initiated (“You may appeal our decision to the Board of Veterans[‘] Appeals at any time within one year from the date of this letter.”), and promised to provide further information (“If you decide to appeal we will advise you further as to your procedural rights as your claim progresses through the several stages of the appeal process.”). Edwards supra

As much as I dislike the VA and what it does to Vets, it seems the phrase “stuck on stupid” was coined for this fellow. VA is horribly anal about telling us what the time limits are for appealing anything. What they don’t do is call up like the dentist’s girl Friday and remind you that your appointment is tomorrow at 0900. I’m not implying they should. Perhaps a  little polite reminder would be nice.  Say “Mr. Edwards. We notice your time to appeal your denial of January of 87 is due to expire soon. Please  do not overlook this important date.”  Since that isn’t likely, purchasing a calendar and reading your denial thoroughly is in order. The Irvin’s of the world will never see or read this so writing it down is futile. If they won’t come to the D&P and refuse to reschedule when it is offered, it is safe to say their motivation is questionable.

Due process can be a simple mistake on VA’s part. In fact it is more frequent than we know. I shudder to think how many Vets are disenfranchised at the RO level  when it does occur and never know. If we are not permitted any meaningful legal representation at that stage (and VSO legalzoo.com doesn’t count), then we are often effectively denied a meaningful judicial forum no matter how artfully VA tells us we got one.

Always remember, when you get your denial, it is your initial opportunity for meaningful legal representation. I do not wish to demean VSOs or service officers with a broad brush. Apparently down in Texas they have real ones who care about their charges. A case may be made that they have good ones everywhere and I’m full of hot air. I speak only from the perspective of western Washington. It’s bleak out here in my blue state. I struck out as in 0/3 over a 20 year span. I feel that is ample proof to sustain my theory here locally. WGM is lucky he lives in Texas in my book.

Your teaching moment on Due Process is over. Get back to the Superbowl. I read that the amount of guacamole eaten today will cover a football field 6 feet deep. My abiding hope is that they put saran wrap down first and avoid walking on it. Bon appetit.