COVA–MANIO v DERWINSKI–DOCTRINE OF LACHES


VetCourtAppealsPromoVeterans have a misconception about our laws. Most I have talked to think our only difference to civil courts is the benefit of the doubt doctrine. There are many other rights and one of the earliest argued was the right of a Veteran to bring forward a claim at any time for an injury claimed as being proximately due to service. This is the Doctrine of Laches. It’s another one of those gifts of a grateful nation to its sons of war.

This was called into question after the inception of the VJRA in 1989. Emilio C Manio, another of the famous Philippine Army post-WW2, was claiming he had extensive dental problems 45 years after his time in service. Much like Messieurs Layno and Caluza, he had several friends and a contemporary dentist who vouched for his bona fides. I recognize that the Philippines consist of many islands and thus have a unique population distribution. I also agree that this case is not inherently incredible until the dental charts are consulted, but I get ahead of my story.

Emilio Had signed up on October 23rd, 1945 with the new Philippine Army which had been reconstituted following the overthrow of the Japanese. He was honorably discharged on the 28th of December 1945- two months and five days later. A notation in his discharge records oddly stated that this dental condition was not service connected. That means it had to have happened before his brief enlistment. He had submitted buddy letters from two fellow Veterans that purported to say that he had complained of pain in his teeth and gums in October of 1945. With only one week of October in service, there is no corroboration that his complaints were legitimately after October 23rd.  Most dental conditions as these described would almost have to be longstanding, but nobody wants to call a Veteran a liar to his face.

The buddies also said the dentist in their merry band had occasion to pull some of these offending teeth. Keep in mind this is Manio’s second attempt to scale the BVA wall. Extensive dental records seemed to imply that one of the teeth made its way back into his mouth before discharge. Closer comparison of the October and December dental charts seemed to indicate another tooth claimed to have been pulled was AWOL before he enlisted. This can have serious implications where a Veteran’s credibility is concerned.  In 2012, we would politely say Emilio was “evidence-challenged” rather than an outright malingerer. The VA said as much, too.

The BVA was unpersuaded by this evidence, noting that one of the teeth which Lieutenant Salvador claimed to have removed was indicated by appellant’s discharge examination to be present and in good condition. Emilio C. Manio, loc. no. 833536, at 4 (BVA Nov. 14, 1988). Appellant sought to explain this discrepancy by stating that his teeth were removed over a period of time. R. at 36. Comparison of appellant’s October and December dental charts suggests that this dental extraction occurred prior to appellant’s October induction into the Army of the Commonwealth. However, the dental charts are not accurate enough to say that with any confidence. If the charts are to be believed, appellant lost five teeth after the October examination but grew back six other teeth. Finally, in his third appeal to the BVA, appellant offered the sworn statement of dentist Dr. Dela Pena. His expert testimony that pyorrhea was the cause of appellant’s tooth loss corroborated the testimony of Lieutenant Salvador–albeit over forty years after the fact.  Manio v. Derwinski(1990)

So you see the pickle he was in. Fortunately, he was a “combat Vet” and therefore gets a bye from the Court. Additionally, he had evidence which the BVA overlooked and then tried to shoehorn in at the Appeal before the Court. Since this was the first mention of the evidence, they were forced to remand for a new examination of the evidence and decide all over whether this was, in fact, service connected.

What concerns us is the right accorded to Vets that day. The Court struck down the Secretary’s assertion that stale claims had no business being adjudicated 40 years later. They didn’t specify what a proper statute of limitations might be, but simply said this was uncalled for. Since we inhabit a sweet spot, judicially speaking (or are supposed to), we are given the right to come to Court and redress our grievances at the time of our choosing.  As we all know, what the Court  giveth freely with the right hand, they can also snatch back later with the left. This the Federal Circuit did in Maxson v. Gober a few years later in 2000.

https://asknod.wordpress.com/2011/09/27/fed-cir-via-cavc-maxson-v-gober-2000-you-waited-too-long/

Manio first stood for the proposition that the BVA was remiss in reopening his claim a second time absent new and material evidence. This might have resulted in the Court’s refusal to hear it based on lack of jurisdiction. The canon ball below the water line was this:

Examination of the November 20, 1989, BVA decision reveals that the BVA erroneously failed to consider the evidence submitted by appellant in the course of prior appeals. The BVA stated “the evidence reported in the prior Board decision will be briefly discussed for clarification purposes only.” Emilio C. Manio, loc. no. 931256, at 2 (BVA Nov. 20, 1989) (emphasis added).   Manio supra

This was fatal to the BVA’s prior decision. As the Court pointed out, all the evidence must be weighed in a reopening, not just the newly submitted. This was cited in several other decisions for years until later cases started using better examples or newer names. There is no rhyme or reason as to why Manio lost his rightful place to name fame.

In 2012, Manio stands for our right to exercise the Doctrine of Laches. It also argues (inadvertently) for the theory of Immaculate Conception of diseased teeth in Emelio’s mouth. That is an interesting argument for another day and will require the participation of the Catholic Church. What we can note from  published opinions is that Mr. Manio made no subsequent appearances at 625 Indiana Ave. NW. This may mean that he prevailed in some way or they arrived at a quid pro quo.  My guess is Emilio agreed to go home with fat pockets because they didn’t have an Excessive Awards Procedure in place yet. Perhaps this is what emboldened Mr. Layno and Mr. Caluza to attempt a similar scheme.

Ladies and gentlemen Veterans,  I give you Emilio C. Manio.

Manio_90-86

About asknod

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

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s