I’m sure you’ve probably heard of  David L. Henderson’s legendary fight spanning more than a decade and 5 VA Sectretaries by now. Most Vets have. This is the stuff that good campfire stories are made of. Allow me to take you back to the time of  dial up modems. The early history of the claim is foggy, but the original denial at the BVA was August 30, 2004. Knowing how long it takes to get a spot on the docket, I think we can say he probably filed in  late 2001 during the reign of Anthony Principi the Second.

Following the 2004 denial, Dave got slack and didn’t file his NOA until January 12, 2005. This was about 15 days past the deadline, but who’s counting? The CAVC was. They declined to hear his appeal so  he filed a lot of evidence showing his PTSD ate his homework and it wasn’t his fault. He got a single judge decision continuing the denial. This prompted him to ask for, and be granted a panel decision before three of our august Article 1 Court. Unfortunately for Dave, the Supremes  came out with a decision during the pendancy of his appeal. This was the Bowles v. Russell decision which really didn’t apply to Dave and Veterans in general. It applied to civilian courts but it wasn’t going to float his boat on this trip. Old Dave had a really good argument based on Bailey v. West (1998) where they already decided this up at the Fed. Circuit.

The Rocket scientists at the CAVC decided that Bowles was better than Bailey and that was that. Never mind that Bowles has nothing in common with Veterans. They used a tortured legal path through  the blackberry brambles and emerged unscathed on the other side with new precedence based on flawed logic. This isn’t the first time nor will it be the last.

The panel decision was handed down from Mt. Ararat on July 24th, 2008. In the meantime,  Tony Principi had retired to start up QTC and been replaced by Jimbo Nicholson. Jimbo had also retired with a nice little stipend and been temporarily replaced by Gordie Mansfield. Gordie was just a stand in and  Lt. Gen. James M. Peake M.D. (ret.) had been enthroned about the time this was heard at the CAVC on December 20th, 2007.  Dave’s claim had just begun in VA time.

In almost record time, his appeal to the Fed. Circuit was decided December 17, 2009 with our latest VASEC now on his throne. The Feds didn’t think anymore of his claim than did the Court below. He got the bitchslap with pretty much the same logic employed. You’d think they’d give it a little more thought before summarily denying it.

Dave resigned himself for a new fight praying he could get some face time with the Big Guys. As luck would have it, they agreed to a do over. I’m sure the Davemeister had SEG (shiteatin’grin) all over his face when he heard this. Jez, I sure would have. This was pretty heady stuff going up to Massah’s house. They probably make you take off your shoes before entering there.

Here’s a chunk of hope and change I get a smile out of. The Supremes,  instead of mouthing the words and pretending with a wink that they were dispensing justice like their inferior brethren below, said this:

(1) None of the precedents cited by the parties controls here. All of the cases they cite— e.g., Bowles, supra; Stone v. INS , 514 U. S. 386 ; and Bowen v.City of New York , 476 U. S. 467 —involved review by Article III courts. This case, by contrast, involves review by an Article I tribunal as part of a unique administrative scheme. Instead of applying a categorical rule regarding review of administrative decisions, this Court attempts to ascertain Congress’ intent regarding the particular type of review at issue. Pp. 7–8. (Henderson v. Shinseki (2011)

This was the icing on the cake for us:

Most telling, however, are the singular characteristics of the review scheme that Congress created for adjudicating veterans’ benefits claims. Congress’ longstanding solicitude for veterans, United States v. Oregon , 366 U. S. 643 , is plainly reflected in the VJRA and in subsequent laws that place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions. The contrast between ordinary civil litigation—which provided the context in Bowles— and the system Congress created for veterans is dramatic. In ordinary civil litigation suits must generally be commenced within a specified limitations period; the litigation is adversarial; plaintiffs must gather the evidence supporting their claims and generally bear the burden of production and persuasion; both parties may appeal an adverse decision; and a final judgment may be reopened only in narrow circumstances. By contrast, a veteran need not file an initial benefits claim within any fixed period; the VA proceedings are informal and nonadversarial; and the VA assists veterans in developing their supporting evidence and must give them the benefit of any doubt in evaluating that evidence. A veteran who loses before the Board may obtain review in the Veterans Court, but a Board decision in the veteran’s favor is final. And a veteran may reopen a claim simply by presenting new and material evidence. Rigid jurisdictional treatment of the 120-day period would clash sharply with this scheme.  Henderson v. Shinseki supra

The decision is here for your viewing. Dave Henderson won a right for us that will be a hard bar for the Secretary to denigrate. He persevered for all of us  more than ten years to accomplish it. That takes a lot of patience. I’m sure five VASECs at one time or another figured he’d piss on the fire and call in the dogs. They woefully underestimated him which is no surprise. Veterans can be a persistent bunch.

As a minor footnote to this, if (and when) I win my Earlier Effective Date  claim for 1994, I will have the dubious distinction of having bearded no less than nine starting with Jesse Brown. Now, if I win the  ’89 CUE claim, that would mean I  speared every one of them (11). What the hey? Leroy Macklem did it so it can’t be that hard.

About asknod

VA claims blogger
This entry was posted in Fed. Cir. & Supreme Ct., Important CAVC/COVA Ruling, PTSD, Veterans Law and tagged , , , , , , , , , . Bookmark the permalink.

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