COVA–SCHAFRATH v. DERWINSKI–ALLEY OOP


vetcourtappealspromoI’m sure few of you know who Alley Oop was.  He was a fixture on Sunday morning in the funny papers. I suppose they’re called cartoons now. The parallel I draw here is not about cave men per se. It’s about a Veteran named Roger Shafrath who chose to fight for his rights without any legal help. Alley Oop was a loner in that respect. He depended on no one. So to, Roger.

VA Regulations deprive us of any meaningful representation at the most critical juncture of our claim.We are stuck with this idiocy at the RO level until we lose as most know. Only when denied can we can avail ourselves of real assistance. I do not consider the VSO system the panacea that some do. Were it uniform and staffed by legal types with a modicum of intelligence, I’m sure I’d have a higher regard for it. The disturbing fact that funds are appropriated by Congress and disbursed to these organizations makes me question their non-partisan posture. They sit cheek and jowl in the same buildings with VA personnel and I am hard pressed to see the delineation.

Roger J. Schafrath was the quintessential do-it-yourselfer Navy guy. Were he to encounter a body of water that needed traversing, I wager to say he wouldn’t get his feet wet in the process. Here, he was one of the first to go toe-to-toe with the VASEC in a panel decision before the COVA. The fact that this ended in a reversal in his favor is astounding. Higher tribunals are loathe to reverse. In most cases they vacate and remand with nuanced instructions on how they would like to see it done, thank you very much.

Mr. Schafrath managed to get in on the end of the Vietnamese Boundary Dispute Conflict. By that time the Navy wasn’t actively kicking ass and taking names in the Mekong Delta anymore. They were out on the Bounding Main doing their John Paul Jones imitation. Nevertheless, every Veteran’s contribution to America is equal in my eyes. Peacetime service is just that-right up until the moment it isn’t. One usually doesn’t volunteer based on that presumption.

Most of these big name cases started brewing in a narrow window of time that brought them to fame before the COVA. Roger’s began when he injured himself playing football up in Alaska in 1977. He ended up with a medical discharge and a 20 % disability split between his wrist and elbow. In 1984, Rog had surgery to fix carpal tunnel issues  but the screws and paraphernalia associated with it became discombobulated. VA upped his wrist to 40% in 86. Everything was copacetic for several years until the VA decided it couldn’t leave well enough alone.

True to form, in an effort to husband their resources, the VA reexamined him in 88 and decided the elbow was good to go. Bye- bye to the 10%. Roger filed a NOD and said the pain was excruciating and VA had not looked at the big picture.  He was right. They hadn’t. Pressing on full bore with a SOC, they announced in their best Ben Casey lingo that his elbow was fine. He filed another NOD in January 1989 saying everything most definitely wasn’t fine and that a doctor at the Orlando OPC (Out Patient Clinic) had opined as much.

Apparently at this point, Roger actually had a VSO rep. and together they strove to get the Orlando medrecs into the BVA adjudication. Surprise! Surprise! Surprise! It was to no avail. The BVA proceeded to a decision on what could at best be described as an incomplete record due to their intransigence. This was the way things were done then. The BVA was the end of the line for Vets prior to the Veterasn Justice Reform Act of 88. With the new VJRA came the COVA and judicial review of all these BVA  Texas-style necktie parties. Roger was splendidly positioned to become a household name in VA jurisprudence and he had no clue yet.

The new COVA received his NOA and sharpened their pencils. This was going to be relatively simple and straight to the point. The VA needed to be instructed on what they could and could not do in the New World Order. The obvious error was the reduction of his elbow rating from 10 to 0% based on one exam. That was a major Bozo No-No and had been for several score years.  What was of more import was the recalcitrance to retrieve his medical records which were in their possession. §3.159 entitles us to the duty to assist.  Alas, Bell v. Derwinski wouldn’t be decided for another 7 months. Bell stands for the proposition that VA is in “constructive possession” of the medrecs. They can’t pretend they aren’t or that it  isn’t prejudicial not to retrieve them.

Basing their decision about the records heavily on Godwin and Ivey, they excoriated Mr. Derwinski for his indifference to a Veteran-friendly forum in which to present our claims. What’s more, they strongly invoked a holding that if the VA is asked to fetch medrecs which may be probative and fail to do so, they must come to you hat in hand and explain as much. At this point, to make it fair, you as a claimant should be allowed to retrieve them yourself and your claim put on hold or remanded to accommodate you.  This is more important than you think.

In 1993, the Court had one of their misogynous moments and declared in Caffrey v. Brown that failure in the duty to assist was not CUE. Their reasoning was based on large quantities of adult beverages and the misguided theory that an incomplete record is not an incorrect record. What they didn’t address was the inherent bias and lack of due process that ensues when you proceed to an adjudication on a knowingly incorrect record. It can be said that finding new and material evidence after the decision will allow you to refile or “reopen” a claim. What isn’t parsed is the loss of the earlier date for your claim. Precluding a Vet from rectifying this via CUE is particularly appropriate in this narrow scenario. What isn’t permissible is to blatantly refuse or ignore requests for inclusion of evidence known to exist.

Where the Schafrath decision meets the Warhol requirements for 15 minutes of fame is the error of Mr. Derwinski. To wit, the failure to approach Roger and at least lie: “We looked for these Orlando medrecs and we can’t find them. What do you want us to do? Would you like to take a stab at it? Tell us how you want to proceed.” That was what was supposed to happen in the nonadversarial world of the VA.

This was an alien concept to the newly truncated BVA. They were being stripped of their autonomy, one new COVA decision at a time and they didn’t appreciate it. In fact, VA justice suffered horribly during this era and for several more years until the COVA was firmly ensconced and proved their mettle. The mere fact that the COVA had to enunciate these CFR precepts to the VASEC is proof positive of their recalcitrance to adopt this new system or toe the line with their own regulations..

Mr. Schafrath did this all by himself without any leagle beagles. He is proof of what one determined Veteran can do in the face of injustice. What hasn’t been decided in my mind is the legality of not coming back to the Veteran and asking for guidance on obtaining evidence that would tend to support a claim. An ex parte judicial process allows for this-nay, demands it. For the VA to ignore this is error on its face. A strong case must be presented that addresses this shortcoming. It happens frequently and the General Counsel, when caught attempting it, always pleads the fifth and says “Joint Motion for Remand, your Honor. Mea culpas are in order. Allow us to correct this flaw.” They know full well they erred. The Court knows it , too , and turns a blind eye.

Where this has resonance is how it modifies the Caffrey CUE holding.  This isn’t settled jurisprudence yet in my book. If willful misconduct (or inaction) by the BVA was the predicate necessary to obtain an incomplete record,  where does judicial misfeasance begin? Further, once this record becomes incorrect due to said misfeasance, how can it not be void ab initio?

Misfeasance is defined as a judicial act that is performed legally but improperly. Malfeasance, on the other hand, is the commission (or omission?) of an act that is unequivocally illegal or completely wrongful. Perhaps the time has come to revisit Caffrey. A Veteran-friendly judicial environment demands it.

Allow me to introduce Roger-Mr. DIY:

Schafrath_89-114

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law and tagged , , , , , , . Bookmark the permalink.

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