Few cases are heard where a Veteran wants to retain his or her anonymity. I have  seen only two before the CAVC/COVA that were precedental. Here, I can understand the desire for not publicizing the name. Our Vet had genital warts and wished to remain nameless. I guess that implies that there is social opprobrium associated with the disease but no more so than how most of us are treated upon divulging our HCV infections. Watch the shiver that goes through someone up at the lab drawing your blood when you tell them to be careful not to poke themselves.

Enough of this macabre humor and back to Mr. EF. Having filed several claims and getting his C&P for them, he then filed two additional ones (the genital warts and “anxiety disorder”) . vA granted on the former claims for  low back strain, hypertension, deviated nasal septum, varicocele (left), and condyloma acuminata. By way of explanation, varicocele is http://en.wikipedia.org/wiki/Varicocele . The  condyloma acuminata was the genital present from some earlier sexual congress. The RO did not, however, grant on the anxiety disorder. Mr. F filed a NOD on that and amended his claim to schizo-affective disorder, depressed including a swell nexus letter from his private shrink. The RO continued the denial and in good form, the BVA seconded the motion. Using that stunning insight and cutting edge logic for which they are renowned, they stated

1. Atypical depression is initially confirmed on statement from the veteran’s private physician dated May 17, 1989. This is a date too remote from the veteran’s period of active duty to warrant service connection on any basis.

Promptly contradicting themselves, they said

2. Chronic schizo-affective disorder is not shown by the evidence of record.

Remember the divide and conquer technique I’ve described before? Here they strip the depression off the filing and address it first then blithely eviscerate the schizo biz as being absent from the EOR.  This would be permissible if Mr. F had been seen by a qualified psychiatrist in a C&P setting. He wasn’t.

Back in these early days of the Court, the Judges were busy 24/7 creating jurisprudence for the ages. They were new at this and needed to set precedent.  If you’re from Chicago, that’s called setting a president. Industrious doesn’t even begin to describe what these old boys were up to. Mr. F’s decision was June 6th, 1991. They had decided Murphy seven months before (Nov.8th, 1990), Littke  six months prior (Dec. 6th 1990) and lastly Myers and Green on Jan.18th, 1991 (less than six months) . All these cases had similar circumstances and dealt with the selfsame proposition that it would far more fair to the Vet if he were accorded a Dog and Pony Show for the record before being shown the door. With that much brand new precedent staring him in the face, somehow the VASEC managed to overlook it. Such is pell mell justice. The Court has a subtle sense of humor:

In Myers v. Derwinski, U.S. Vet. App. No. 90-221, slip op. at 4 (Jan. 18, 1991), this Court stated that “it is the claimant’s statements on the VA Form 1-9 which often frame[] the nature of the appeal to the BVA. . . . Therefore upon receipt of a VA Form 1-9, the BVA must review all issues which are reasonably raised from a liberal reading of the appellant’s substantive appeal.” However, there is nothing magical about the statements actually on the 1-9 form, given the VA’s nonadversarial process. The VA’s statutory “duty to assist” must extend this liberal reading to include issues raised in all documents or oral testimony submitted prior to the BVA decision. EF v. Derwinski (1991)

Nothing magical indeed. In fact, there is nothing magical about the ex parte form of vA justice at all unless you are in their employ.  Then justice becomes horribly and inextricably intertwined with concepts like shall and must. The result at the RO and the BVA is one of “Well, I don’t see where it says we have to do that in the M-21. Just because those Gomers up at 625 Indiana Ave. NW came up with some fancy precedent doesn’t mean we all have to bow down. Screw it.”

This warfare between the new Court and the old BVA went on for years and years and still causes strife for Veterans caught in between today. One need look no further than the cavalier attitude that the VASEC evinces day in and day out at the Court. The phrases have evolved over time but the thrust certainly hasn’t. Why it is that vA can approach the bench with the same tired phrases like “The Secretary read this to mean…” and ” It was felt that the claimant was trying to ask for… but failed to specify that it was …” and “Nobody told us or if they did, we misplaced/forgot/never got around to it.”

Something most Vets know is that 38 USC, the precepts upon which 38 CFR rest, are written by Congress.  What they are appalled to learn later when they are deep in adjudication is that the VASEC writes 38CFR and can rewrite it at any time he wants. What’s more, VA has been caught issuing VAOPGCPREC’s- General Counsel precedental opinions- during litigation to support a particularly egregious denial. As an analogy, I like the one I heard once. Imagine getting pulled over for speeding. When you point out to the officer that you were doing 55 in a 55, he says “Take it up with the judge.” You arrive in court two weeks later and the judge says “Yeah, but we changed the speed limit there to 45  yesterday so you’re still guilty”.

I suspect the VASEC hums “It’s Joe Veteran’s Supermarket but the CFR department is Mine” fairly regularly judging by the number of GCPRECs that are overturned or found deficient. Of course, issuing them after the decision to defend said decision is a bozo no-no in all 50 states now. VASECs must feel they are a legend in their own mind and not bound by the rules mortal men are required to adhere to.

Mr. EF’s vacation back to the BVA… Ef_91-533

For your reading pleasure here are Murphy, Littke, Green and Myers

Murphy–Murphy_90-107

Littke–Littke_89-68

Green–Green_89-108

Myers–Myers_90-221