COVA– JOLLEY v. DERWINSKI–DUE PROCESS


Jolley v. Derwinski is one of the early COVA decisions where the Court was appalled to find out the vicarious manner in which the VA treated its Veterans. This may have come as a surprise to the newly constituted Court, but I’m sure contemporary Veterans of that era were not shocked.

Franklin L. Jolly, a Veteran of the big WW2, had the misfortune to have his strep throat advance into Scarlet Fever when he was stationed at Chanute Airpatch in Ohio in 1941.

In July of 88, Frank decided to file a claim for residuals of the fever and secondaries like rheumatic fever and heart disease. VA gave him the wave off and said they probably weren’t going to be able to find his SMRs. Sure enough, a month later the VA said no dice. We can’t find them. Mr. Jolley promptly gave them everything they could imagine to help locate them to no avail.

Moving along at a blinding pace compared to current delays, the RO denied in September of 88. So, in a short period of two months, Frank filed, was told it was going to be a bitch to get his records and was then denied. He opted to appeal to the BVA and told them at this juncture that he had read a newspaper article (included in his appeal) that stated the NPRC had discovered a wealth of new personnel files on WW2 Vets.

The BVA moved into high gear and ignored his submission. Making no attempt to verify his evidence, they proceeded to denial nine months later based on the existing evidence of record.

BVA’s logic for not searching through the new SMRs in St. Louis was that it would be a hassle. They had not been “indexed” or properly arranged in such a way as to facilitate the BVA’s search. Therefore, Mr. Jolley’s request could not be honored, the BVA was not going to be bothered and that was that.

Old Frank might have never gotten his fame or a footnote in the history of Veterans jurisprudence except for one niggling little oversight on the General Counsel’s part. The GC knew the records had been collated and indexed two months before oral arguments commenced at Indiana Ave. NW and neglected to do anything about it let alone mention it to the Court, Frank and his mouthpiece. I’m sure Frank and his pseudo-lawdog weren’t surprised by this treatment but the Court was nonplussed to say the very least.

But for a rather startling revelation made by counsel for appellee in argument, this Court would address the process undertaken by the VA in responding to the statutory mandate requiring him to “assist . . . in developing the facts pertinent to the claim.” 38 U.S.C. § 3007(a). In argument, counsel for appellee informed the Court that the recently discovered records which might contain hospital records directly relevant to appellant’s case, and which he had requested, had been available for two months prior to the hearing date in this Court. This Court views with concern appellee’s failure to notify the Court or appellant of the availability of the newly discovered records. Counsel for appellee indicated that within “the last two months” the recently discovered medical records have been “analyzed and [are] available” and identified by service number.  Appellant seeks remand in order that the newly available documents may be searched. Jolley v. Derwinski (1990)

 

The Judges didn’t think very much of this kind of shenanigan.

This Court cannot agree with appellee that “. . . 38 U.S.C. § 3007(a) and 38 C.F.R. § 3.103(a)are merely statements of VA policy and provide no basis whatsoever for Appellant’s argument that VA failed to follow its ‘procedural rules’. . . .” Br. at 12. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974). In enacting 38 U.S.C. § 3007(a), Congress was codifying the DVA’s obligation to assist claimants which existed in 38 C.F.R. § 3.103(a). The Senate Committee, in discussing 38 U.S.C. § 3007(a), stated that “the VA should be responsible for providing the material — or seeing that it is provided — needed to make the determination on eligibility.” S. Rep. No. 418, 100th Cong., 2nd Sess. 33-34 (1988). While this Court has not yet had the occasion to define the Secretary’s duty to assist, it is clear that this statutory duty encompasses responding to appellant’s request for a search of records already in appellant’s files.

Because the analysis and indexing of the newly discovered records occurred prior to argument before this Court and because the Court was not advised of the existence of such records, thus possibly mooting the case, this Court retains jurisdiction and remands as authorized by 38 U.S.C. § 4052(a) (1988). Appellee is instructed, within 30 days, to search the recently indexed records to determine whether appellant’s medical records can be found. Appellee is further instructed to report promptly to this Court and to appellant the results of its finding. In the event new evidence is produced the BVA shall take appropriate action consistent with this opinion. It is not necessary to discuss other issues raised by either side at this time.

 It is so OrderedJolley supra

Thus we see the Court’s hackles raised due to the arrogance of the GC and their cavalier attitude towards Vets. Nothing has changed in the twenty-two intervening years. The VA and its minions are far more nuanced in their approach to dissing Vets in 2012 however. They use flowering terms of endearment to mask their disdain for us. We are nothing more than a minor inconvenience and a whining bunch at that. If we would just shut up and move to the back of the bus, justice would be better served and they could move on to weightier subjects like what kind of martini to have at lunch ( gin or vodka-shaken or stirred).

The audacity of the VA to give us short shrift in 1990 has not abated. They will always consider us to be the fly in the ointment. I have had discussions with VA raters and the consensus is that the VA is far too liberal in its approach to Vets. They (the raters) feel it would be more appropriate to shrink the opportunities for appeal and limit the evidence that can be presented. In short, the agency created to assist and minister to us feels we are annoying and pampered. If they had their druthers we’d be given a brief opportunity to file and present our side. After denial, no more evidence would be admitted. The record would be sealed and our fate decided at the RO. If denied, a BVA appeal would be predicated on the same facts.  Game, set and match. Next?

Once you understand this philosophy, it may give you pause. Many is the Vet who approaches the process with the misguided understanding that they (VA) are veteran friendly as they profess to be. The VA had long been given free rein to run itself. It wasn’t until the advent of the VJRA of 1988 that Mr. Jolly was afforded a venue to fight this intransigence. Prior to that, he would have been disenfranchised and gone home with his tail between his legs. The VA had been engaged in this so long that they simply didn’t “get it”. The treatment Mr. Jolley received was mild compared to what others got in that era.

Something I always like to point out is the absence of Mr. Jolley at any future Court appearances following this remand. Could it be that he meekly submitted to the process and was denied? That his case had no merit and he gave up? There are many things that lead me to believe otherwise. VA will never be forthcoming on the outcome of these things. One can only look at the records of the CAVC and note that very few of them reappear for a do over. The same VA raters I mentioned above would have me believe that the Jolleys of the world realized the error of their ways, folded up their tents and went home empty-handed. For some reason I can’t buy that. Vets are a breed apart from their cousins (civilians). They are a hard-nosed lot. Denial breeds an insatiable desire for justice. Granted, many who are unfamiliar with the system will shrug and give up. Many more will be dissuaded by conniving VSOs into giving up the good fight. What is apparent to me is that the 5 percent who doggedly appeal these matters to the Court and beyond are never heard from again.

Can it be that the VA is the party that gives up? Can we assume that they realize the futility of more judicial development and adjudication? I suspect that once they have irritated the CAVC with their imbecilic attempts at disenfranchising us, they are too embarrassed to show their faces again. Sometimes it’s easier to give up on one when VA considers the millions waiting in the wings to be denied. With this sure prospect of a win in store, a failure to appeal is almost a crime.

Mr. Jolley did this with a non-attorney practitioner which is legal speak for someone with no J.D. after their name who has qualified to represent Veterans before the VA. While we rarely see his name anymore, it still pops up on occasion when due process is violated and VA becomes too arrogant. We owe Franklin a big thank you for standing up and blowing an ass gasket in 1990. His plight draws attention to the excesses VA is renowned for.

Jolley_89-161

About asknod

VA claims blogger
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