Every once in a while I see a good decision but often all I see in panel opinions is negligent lawyering . Call it Driving (claim) under the Influence (of Lawyer). What else can you take away from this? I have been known to be in error more than once. The Keith Roberts imbroglio comes to mind foremost. Nevertheless, always one to read between the lines, I dug into this one. The players:

JERROLD C. BOWEN, APPELLANT,

Daniel J. Neilsen, of Seattle, Washington, for the appellant

ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Nisha
C. Wagle, Deputy Assistant General Counsel; and Jesse B. Greenstein, all of Washington, D.C.,for the appellee

The place: 625 Indiana Ave. NW, Suite 900,  Washington DC 20004-2950

The time: Now. June twenty ninth, 2012

Okay. Mr. Bowen has chosen to appeal a CUE claim from the RO directly to the Court. Lawyering 101 is know your jurisdictional limits.  Examining the legalzoom.com credentials of Mr. Neilson, I see nowhere that he is admitted to the CAVC bar. He may serve as legal counsel for Mr. Jerrold C. Bowen , however, by virtue of his loyal service to our country in time of war from 1991-1995 honorably in the USMC. The law permits that. The same United States Code says you have the right to remain stupid too.

With that said, absent any legal training in the Lion’s den of the CAVC arena, he is an unfortunate novitiate and in way over his head. I admire him. He is quintessential Marine. “That’s why they sent me instead of the Army”-type of Marine. Gitterdone Marine. If anyone were versed in this art and also happened to be a Veteran of the Marine Corps, I would seek him out among all others to defend me.  He’s not and Bowen shouldn’t have. But then, Bowen bears the brunt of the error too because this is his friend or acquaintance. Face it. They probably didn’t meet at the bar.

The second bone of contention is that there is a matter of the misaddressed letter that went awry. The Presumption of Regularity Rule was violated but the Court let the vA off on this technicality because he was offered one by the Board which would have  remedied this glaring error. I wouldn’t have. There were two opportunities to have a hearing. Either one could have been the deciding one that granted his claim. Right? Well, not exactly.  But let’s dig deeper.

Mr. Bowen had a VSO. Ruh-oh Rorge! Rorge denied!

Mr. Bowen’s rep. scheduled the hearing. Jerrold never attended because the hearing notice was mailed to the wrong address. Guess who? But here’s where the story runs up on the rocks. His representative never followed up and found out why. Nobody ever hollered  “Excuuuuuse me! Nothing but silence. In fact, they went on up to the Board and skipped the opportunity to do it in front of the VLJ when presented with the chance. Now, on appeal at the Court, Mr. Neilson tries to pull the due process rabbit out of the hat for the very first time.

Let’s pile blame up and measure it. Mr. Bowen’s claim went south when his highly trained legal counsel (VSO) stepped into the picture. Jerrold presented the claim as a new one to Mr. Rep.. But Mr. Bowen filed in 1994 for exactly the same thing. This was all in the 1994 claim to begin with so the 2007 filing was really a reopening of the old claim. When you reopen, you have to bring a new batch of evidence to the table that nobody has seen before and it has to bear on the subject you’re filing for. Thus your Disco Degenerative Disease  records are not material to a bent brain claim. You also have to fulfill a “new” as in “never before seen” requirement. Mr. Bowen just brought in all the old stuff and said “Here. I want to file for Walrus Gumboot and Ono Sideboard. Hold me in your armchair and you can feel my disease. Here’s my MEB. Push print.” The rep. on the other hand, was not keeping track of what was going on either or he could have averted this. Or…? Maybe he was differently-abled and just overlooked this discrepancy when he was perusing the C-file. That’s his job. They actually paid him to do this for to Mr. Bowen. Baaaaad VSO.

This same error code went up to the BVA with no embellishments and they confirmed what was undoubtedly a carbon copy of what the RO deep sixed. Okay. I give up. Why appeal with exactly the same stuff you just lost with? Ever hear of buddy statements? Nexus letters? Similar medical theories from Internet articles? Perhaps a hearing to explain your side of the coin? N&M evidence to rebut with?  Naw.

So, in sum Mr Neilson was handed an impossible claim riddled with defects. If you agree to do this, you have to have a plan. You have to have some impressive, convincing evidence to prove CUE. They’re getting deaf on that whole due process argument up there these days. It’s becoming the catch-all clause when all else fails. So that in itself was a non-starter. The fact that it had not been presented until arrival at the Court shows the last-ditch defense posture of  Messieurs Bowen and Neilsen. Obviously this was cooked up after viewing a lot of chicken entrails, tea leaves and adducing da bones, mon.

I don’t mean to be cruel here but ladies and gentlemen Vets- if you screwed up this bad- you need to go home and start a new line of defense buttressed by some serious medical evidence from your guys, not a medical opinion from theirs. In order to win, you have to have a strategy. A fallback position with more ammo cached is advisable for an appeal. The CAVC is the last-ditch, stand and deliver. Your whole defense has to arrive here coherent and in one piece from the get go. All the evidence has been looked at. Everything in the oven is done. What your bring here is the judicial mistake-not the “They promised me a rose garden!”

Mr. Bowen was barking up the wrong tree and will go back to the RO with his CUE claim. There he will argue the Due Process faery tale again and burn more useless candles at the altar of futility. The smartest thing Daniel could do for Jerrold at this point would be to counsel him to begin anew from the ground up and buy a really good book on Veterans Administration claims with a tell-all on how to win them. That’s what friends do for friends. They don’t waste their friend’s and their time on futile defenses. They go on the offensive and get a good nexus (or nexi in this case). That’s just what I would do if I was similarly situated. J1VO. My apologies if I have stepped on anyones’ ego or professional standings in the judicial community hereabouts.  I merely describe what I see. I didn’t write this book. The VSO, Jerrold and Daniel did.