CAVC–SELLERS v. SHINSEKI–MACKLEM II


VetCourtAppealsPromoThis may be the best decision you’ll read in 2012. It’s a daisy. It just makes me giggle every time I go back over the analysis. It will remind you of Leroy Macklem’s high adventures in CUE land. What’s more, the Secretary’s vain attempts to argue his way back to a win are priceless. When apprised of his errors, he tries all the harder in a different direction. We get one shot at this and must have all the evidence in by decision time including theories on why we should win. Eric feels he should get a punch list and keeps tossing out “Okay, that won’t fly. How about this…”

You will see Ivan the Terrible dismiss his attorneys for incompetence after they mangle his evidence submission. It says he was going alone pro se but I see he has several rainmakers on site for the brief. Good deal. Take your protein pills and put your helmets on pilgrims. This is a wild ride with a great ending.

Let’s begin with Leroy. He won because vA cheated with the Extraordinary Awards Program. Ivan will win for similar reasons. He too got the “You won the Lotto!” call. It occurred two years before the EAP deal but that’s irrelevant. They were doing this without an official EAP even then and now the Court knows this. What’s more is that they probably still are. The Court doesn’t like it when you cheat. And when you get caught, it gets ugly. They don’t slap your hand and remand. They reverse. This little bozo is going to cost about $550,00.00 up front and then $2924.00 more every month unless he goes totally blind. If so, he’s going to be up in the SMC R range of about $8K a month. Baaaad vA. Let’s see what happened.

Ivan R. Sellers (no relation to Peter) was a groundpounder from 66-73. He wore glasses but snuck in under the presumption of soundness. Nine days after discharge, still in the golden window of presumption, he noticed some serious eye issues developing. As we all know how these things work, his eye could be falling out of the socket and they’d say “Hmm. You can still see out of it, right?” So he was good to go in their eyes (pun intended).

1982 rolled around and Ivan noticed his eyes were pooping out on him. By 1988, he knew he had to get help. Ta-da. File a vA claim. They’re the go-to agency, right? Trust them he did, yessss. vA raters disassembled and reassembled the denial and finally decided he had this all along. vA said it was genetic even though no one in his family ever had it. It was not a vA issue and he failed to appeal. End of the claim.

In February 2004, he filed a CUE claim based on his theory that they screwed up the 1988 adjudication. He had been reading a lot and finally figured it out. I’m sure his doctor said “Ivan, listen. Those chowderhead vA doctors at the RO are blowing smoke up your ass. Are you going to believe me or them? This thing started long ago when you were in the service.”

On June 14th of that year, one of vA’s finest- Cynthia Canady-called him up via landline and told him he’d struck gold. Yes, indeed. He was right all along. It had been CUE to deny him back in 1988 and vA, being a stand up organization, was going to step up to the plate and make it good with him. But not only had he won, they were throwing in a car allowance worth about $11 K more. Ivan was peeing in his pants with joy. I’m sure he sat down and roughed out what it would add up to. If not, he had a VSO who told him. Perhaps one of his drinking buddies down at the AMLEG bar. Who knows?

A week went by with no news. On the 21st, Cynthia emailed a note to the rep. asking where to mail the decision. At the same time she got Mrs. Sellers on the phone and asked about dependents and the requirements for it. We’ve all been there after we win. The mad scramble to the County courthouse to find the old divorce records? Been there. Done that. Twice.

After another week of no show, Ivan called Cynthia and asked what the holdup was. He was itching to get that new Dodge Magnum and we all know what MOPAR fever can do to you. Cynthia told him to sky down as these things take a little time. She did tell him that the settlement was going to be in the give or take column of $495.963.03. Ivan reasoned that since the cat was in the bag, he could chill for a while.

Late July rolled in. It was ski boat season and Ivan was itching to get out there on the water. He called Cynthia again and politely asked what was up. Still no baksheesh and Detroit was running low on Magnum color choices. Cynthia was a little nonplussed. She thought the rating would have been issued. She’d signed off on it and done the paperwork. The magic number now stood at $535,233.33 with a one-time $11K for the vehicle allowance.

About the second week into September, Ivan was becoming annoyed. How long could it possibly take? Another call to Cynthia revealed some troubling news. In spite of the fact that it already had two signatures, it was “back in ratings”. Ruh-oh, Rorge.  Just about this time Cynthia could smell something odiferous emanating from the claims room and abruptly said “Dude. I wish I could help but this is where my involvement ends. If you have any queshuns, call the 800 number. I’m outta here.” And so she was.

He started asking more questions towards the end of the week and they pawned him off on the blind mens’ clinic down the hall at the VHA. They said they’d look into it for him (no pun intended). They never did. Why am I less than shocked?

The blind men’s clinic turned out to be DRO Beverly Cole who was more confused than Cynthia. All she knew was this thing had come to a crashing halt and now was occupying her in basket. Being a smart cookie, Bev decided to punt to the vA Regional Counsel  (vARC)at the SquareBob Sponge Pants RO in that famous underwater city on October 28th, 2004. We can be pretty certain that this had everybody’s attention at the C&P desk up in D.C. They had the 10X90 binoculars trained on it daily.

After dawdling five weeks and hoping Bev would forget, the vARC at NORO finally and reluctantly tried to extricate herself out from under this rotten apple. She decided to do the “speculation” dance and skate away. The important thing was to make Bev do the dirty deed in case it exploded unexpectedly like an IED. Thus she just said she was available to consult but wasn’t going to make any legal decisions up or down. She did point out that there appeared to be a decision in the C-file though. I’m sure Bev was looking at that particular sheet of paper about 20 times a day.

November 14th the sun rose high in the sky and Ivanovich sent off a missive to the Houston RO. He wasn’t happy. The blind men’s clinic was notably silent and Bev wasn’t talking. He wanted some answers fast and Houston was playing deaf and dumb. He kept this up and finally was called by a Houston rater who lost the short straw contest and thus was elected to give Ivan the bad news. Yep. We hear you, Ivan but it’s in New Orleans getting fitted for what will turn into the EAP in a few years, dude. Sit tight. We’ll get back to you as soon as we can get three signatures that will stick. They were still playing him like a small mouth bass and keeping him away from the underwater logs. The short straw guy insisted they couldn’t decide on 1988 or 1989 for the award date but give them some more time. Hear? This was unadulterated bull shit but Ivan was still very naive.

Getting ever nervous, Ivan motored on down to the HOURO in person and got some disturbing news. It appeared he was going to get an effective date of February 2004, not the expected 1988 or 89. In the meantime, Bev got the raters to scare up another medical opinion to see if they could get out of both the 1988 and the 2004 gig. Nobody wanted to cough up $550 K to Ivan so they had to do some fancy footwork. The eyeball specialist wouldn’t play ball. He went with the service-connected choice and wouldn’t speculate any further whether it was actually aggravated by service. He rightly reasoned that Ivan didn’t have it before service and he sure as hell did afterwards.

The bait and switch occurred on January 31, 2005. The HOURO granted SC but only from the 2004 filing date. To sweeten the pot and make him feel better, they threw in a housebound (SMC S), an adaptive housing grant and a new automobile with adaptive technology. Ivan wasn’t buying. He’d won Monty’s Cookie Jar behind door #3 and saw what was inside. Now the RO was trying to pawn off an Earl Sheib $99.95 paint job and a week’s supply of gas.

Somehow, Ivan had come into possession of the original June 1, 2004 rating agreeing CUE had occurred. He waved this around a few times with the NOD. It contained the same thing they were trying to saddle him with except for the effective date. That rating said March 25, 1988 and Ivan was holding them to it. The decision was undated but had the three signatures needed to be valid. Good to go? Not exactly.

Just before Christmas of 2006, Ivan got his DRO hearing in front of DRO Marian Peters at the HOURO. Yep, it took 21 months to get it (the hearing). Ivan laid it all out and Marian allowed as how they really, really tried to get this through “but the front office said No!”. Who it was in the front office will remain a mystery forever. Nevertheless, Marian promised to walk this through with the hearing transcript and get these mythological front office people to change their minds. This is also known as the Good cop/Bad cop ploy to gain the trust of your mark. Marian had no intentions of trying to convince anyone of anything. The real McCoy would have been to get Cynthia back in there and let her run it by the front office. I’m sure she’d been promoted and was enjoying her new digs in the C&P office in D.C. by then so that wasn’t an option. Her new job description was probably Binocular Girl.

Six months later, a new DRO entered the picture and reaffirmed what Miriam had promised to try to overcome- a front office review. I find this rather telling that they can’t let one DRO mookwalk this through. Perhaps DRO Dexter Levitt was enlisted because he’s a man and he could talk mano a mano with Ivan. No dice. Ivan wasn’t biting.

So, a year from the original wave-off, Ivan does another hearing-this time the BvA one with his new VLJ who he’s going to try to convince.  Ivan doesn’t get it. All the dancing bears and trained zebras are not going to change the decision. His VLJ is operating under strict orders to wrap this up amicably and give him the shaft gently.  Sure enough, six months later he gets the Dear John letter but they don’t even discuss the magic June 2004 “You won” correspondence. Ivan was dumbfounded. He was beginning to get the big picture but it always comes as a blow to the solar plexus when you think you’ve made your case only to realize they were funning you. I know. I’ve been strung along by a VLJ who gave me knowing head bobs at just the right moment and agreed with me whole heartedly every time I pointed to the smoking gun evidence. I figured I’d won, too. It’s unsettling to say the least.

Ivan dutifully filed his NOA and got in line. The Court, in a single judge decision kicked him below the belt again in June of 2011. They focused, as the Board did, strictly on the denial not being CUE and ignored the June 2004 grant document. Ivan must have been thinking this was a bad dream. He promptly filed to get a panel review pro se, canned his useless legal beagle and filed the June rating as proof he’d already won. Remember, this document was strangely absent in all these decisions even though it was large as life and twice as natural. He filed it with the NOD but it mysteriously sank down to the bottom of the C-file never to be seen again.

The Court remanded it back to the BvA to decide whether the document was “real” or if perhaps Ivan had manufactured it. They were also to determine if this was some precursor to a EAP that disenfranchised Ivan. The Board, with same bozo as VLJ, determined that the June 2004 document was genuine. Next he held that there was no EAP-like process. The mere fact that the C-file was transhipped to the Squarebob Spongepants RO and was reviewed by a high up Leagle Beagle was apparently just a coincidence or overlooked entirely. Hell, maybe C-files migrate naturally every year of their own accord.  Geese do. Stranger things than this happen in ROs all over America every day.

The long and the short was that Ivan had been given a fair shake and he just didn’t understand the process. If the decision he’d received was valid, it would have had a date stamp on it. Furthermore, if it had been a real decision, he’d have gotten it a lot sooner. So there it was. One of those Fig Newtons of the imagination. Cynthia had been mistaken. Miriam had been mistaken. Everyone had signed the wrong document and it was too bad. The bright side was he’d actually won so he had that going for him. Right?

Ivan marched smartly back to the Court unimpressed with the explanation and determined to get a good legalzoom.com reading on this from the panel. And get it he did. After a lot of parsing and head scratching, Judges Kasold, Hagel and Schoelen came down in his court. As well they should have. It makes no difference how he got the decision. The three magic signatures were the VASEC’s downfall. The idiots also included the 21-4107 appeals form and the auto grant in the original decision. They not only stepped on their necktie- they did a royal face plant of epic proportions. It didn’t help that they were trying to disguise a prelude to the later outlawed EAP procedure. The decision was lousy with all their errors. What amazes me was that a single judge let this get by him and affirmed it. That is the crime that stands out.

So justice prevailed. Ivan will join the ranks of the Leroy MacKlem’s in CAVC history. The raters at the Houston RO will either get fired , go through extensive retraining or be promoted and transferred to Oakland. We already have plenty of Gomers here in Seattle so I doubt there are any openings. Ivan has passed Go! And will collect his $558K. The C&P office will pretend they were on Mars when all this occurred so they aren’t guilty of anything. The binoculars, as well as any incriminating emails, are on the shredder room floor. If you try to get in touch with the vA Regional Counsel in New Orleans, you will probably discover there is no such beast and never has been.

All in all, this is one of those decisions that will disappear up its own asshole never to be seen again. Could be that Uncle Eric is going to be soooo pissed off he’ll appeal it up to the Federal Circus. My guess is he’ll try to bury it and take back the SMC S and the automobile grant just to spite Ivan and show him who really wears the pants at vA. Ivan will spend the rest of his few years of life appealing to get that back, too. In sum, we congratulate Ivan on a well-fought battle that should have never had to be fought. This is the stuff of dreams for us. Ivan the Terrible prevails. Goliath slain!

On behalf of HCVets and Asknod, we thank you for having the stamina to fight this and see it through to fruition, Ivan. You are a testimonial to Vets everywhere. Enjoy your retirement, too.

About asknod

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

One Response to CAVC–SELLERS v. SHINSEKI–MACKLEM II

  1. Randy says:

    Nice to read about wins even though all of the BS to get there is demanding.

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