Have you ever been suckered into buying or selling something where you read all the fine print, filled out all the forms and jumped through the hoops? When you were finished, did you then find the “not exactly” clause? Or the Thursday clause as in “Yeah, but we only give that discount on Thursdays, buddy, and this is Monday. Sorry”

Phillip G. Cline hit this wall last year at the BVA. Like Mr. Fred J. Vigil and Mr. Samuel L. Mayhue   who went before him, Mr. Cline discovered the inexorable erosion of our rights that change every moment.

A history of 38 CFR § 3.156(c) is in order. Long ago, we had a regulation hidden in 38 CFR §3.400(q) which provided for the fact that you could, and often did, get denied because of sloppy record keeping. The regulation simply created a narrow exception to the rule and allowed you to submit new and material evidence in the form of existing service records that had never seen the light of day.  If the records were instrumental in proving your case, you won. Period. No ifs, ands, or Thursday rules. More importantly, if you had filed in 1979 for something (and been denied) and the records just came to light that proved your contentions, this would allow you that earlier filing  as your date of entitlement. This could be worth untold thousands or even hundreds of thousands of dollars. The only other way you could go back in time was a CUE filing which is a very arduous path.

After the advent of the PTSD claim and numerous failures by Vets to prove their cases,  the vA decided to modify 3.400(q), move it over to 3.156 and give it its own niche under (c). Also included in this move was a little-noticed codicil (c)(2) that said:

Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

Mr. Vigil got the Texas necktie party from VASEC Peake on this because he failed to show several things at the BVA level:

Mr. Vigil challenged this decision arguing that upon receipt of the USASCRUR records his
initial claim should have been reconsidered pursuant to 38 C.F.R. § 3.156(c) to determine if he was entitled to an effective date earlier than January 25, 1989, the date on which he filed to reopen his PTSD claim. In the decision on appeal, the Board determined that § 3.156(c) did not apply because (1) the USASCRUR records received by the RO had not been misplaced or erroneously omitted from the initial determination and therefore were not the type of record contemplated by the regulation, and (2) there was no diagnosis of PTSD in the record at the time of the original decision denying his claim. Having determined that § 3.156(c) was not for application, the Board declined, pursuant to 38 C.F.R. § 3.400(q)(1)(ii) (2005), to set Mr. Vigil’s effective date for service-connected
PTSD at a date earlier than the date of his claim to reopen. Vigil v. Peake (2008)

The Court tossed that bogus legal reasoning out and gave Mr. Vigil his earlier effective date as well they should have. Mr. Vigil had told them about the incident that provoked his PTSD but they a) ignored him and b) didn’t investigate it. When they finally did, they granted his claim but refused to go back to the earlier date of his first filing. Baaaad idea Dr. Peake. Thus USASCRUR became “acceptable and viable proof ” that had never seen the light of day. While not specifically “Official Military Service Records” per se, they did describe actions from official military records that would support a scrambled eggbrain defense-or any other for that matter.

Sam Mayhue arrived on the heels of Fred Vigil’s win. His circumstances, while being dissimilar in some respects, nevertheless closely paralleled the 3.156(c) case and controversy. Sam’s predicament foundered on the rocks for a number of years because he did what so many of us have done- he let the appeal lapse without pursuing it. When he finally returned and won, vA dutifully told him to go piss on a flat rock. He won his earlier effective date because vA actually had everything needed to grant his claim right there at their fingertips and didn’t bother to tell him about it. You or I would probably go to jail for a stunt like that. At the vA, they promote you and send you up to the Central Office to some exalted high-paying job with a cushy office overlooking Lafayette Square and the Army-Navy Club. I know. I was born in D.C.

Which brings us to Mr. Cline. After getting their collective teeth kicked in twice on this §3.156 thing, you’d assume the 027 General Counsel krewe would look long and hard at the jurisprudence before signing up for a new arm-wrestling competition over it. Not. Like a moth to a bright light, the vA just cannot bring itself to granting retroactive funds in large quantities for any reason. They have gone to great lengths to prevent or ameliorate the practice. We don’t need to look any further than the abortive attempt to hornswoggle us with the Extraordinary Awards Procedure of 2007. Read the Macklem decision if you need to get up to speed on that one.

I’m helping a Vet (member WynWn) who just won her long battle with the vA over a CUE screwing in 1979. She’s won but the non-adversarial vA we’ve all come to know and love like our own parents is now trying the knick-knack, paddy-whack, give the girl a 10% bone and send her rolling home. She’s beginning to suspect they might not be as Veteran-friendly as their PR flacks insist. You’ll hear much more about her travails soon. She has a long, hard road ahead full of Fenderson potholes. Hopefully we at Asknod will be able to show her a path through the maze that is both short and productive. “We” at Asknod is a compendium of dogs, ponies, and goats with a topping of feral cat. They serve too, who only stand and woof, whinny and meow.

Mr. Cline has fallen afoul of the (c)(2) tripwire vA enacted in 2006 when they revised 3.400(q) and moved it over to 3.156(c). You have to understand vA’s mentality. In order to formulate a good denial, they have to construct a palpable story that will permit them to think the way they do.  By carefully laying the groundwork via M 21, any rational investigation would lead down the same road and others following later would agree that they, too would have done the exact same thing under the circumstances. When Mr. Cline filed in 1993, his PTSD stressor questionnaire was rather vague. With no specific instructions to help fill it out, he was left to his own devices. His answers, though vague, raised more important questions- questions that were never asked.

In response to the question, “Did you have any civilian friends killed, wounded,
or executed,” Mr. Cline stated that a “friend drowned” while Mr. Cline was stationed with the 25th Infantry, 3rd Squadron, 17th Air Cavalry, but he did not identify the friend by name. Record (R.) at 1920. In response to the question “How many civilians were involved,” Mr. Cline wrote zero.  Cline v. Shinseki 2012

Allow me to point this out now. Mr. Cline just gave all the information needed to ascertain the stressor here (in 1993).  A man drowned to death. Phil was in Vietnam. And the man was not a civilian. Ruling out alien abduction, vA took the path least-expected and looked at it as a civilian death at home in America that had no bearing on PTSD due to combat in Vietnam. No effort was expended to discover the truth. Nothing was done to illuminate the statement such that a stressor could be developed from it. In the vA’s narrow view, this was proof, submitted by the applicant, in his own words, that the drowning had no bearing on the claim for PTSD. Thus Phillip Cline inadvertently started down the very same road Sam Mayhue did. This whole thing could have been cleared up in short order by the Joint Services Center for Unit Records Research JCURR) investigating and asking a few questions. vA doesn’t work this way. Allow me to rephrase that. vA is not proactive. They are not self-starters. You, the claimant, or your duly appointed representative must lead them to water. Sometimes you have to sit on their heads to get them to drink.

And, much like Mr. Mayhue, Phil finally got around to refiling and doing it by the book this time.  “This time” was 1999. Gee. Sound familiar? I’ve heard of a vA backlog but this was 13 years ago. Things must have been stacking up far worse than the files in Winston -Salem’s RO and none of us knew it.  At any rate, justice and Phil slowly wended their way through the system with repeated denials and lots of trees harvested for their paper.

Which one did you say was Cline”s?

In August 2003, the Philmeister finally noted the omission of a name to tie to the drowning he mentioned in 1993 and promptly submitted it. In March 2005 (yep-19 months later) vA got around to sending it out to JCURR for an assessment on this N&M evidence. Lo and behold, in February 2006 (yep-11 months) the vA acknowledged that the Philster was SC and gave him a whopping 30% for his bent brain syndrome. And then the Fenderson staged-rating party began…

In January 2008, after several interim decisions, the regional office ultimately issued a Statement of the Case granting an effective date of May 6, 1999, for the initial award of benefits for post-traumatic stress disorder, assigning a 50% disability rating for that condition effective from that date, and assigning a 70% disability rating from January 22, 2007. Mr. Cline appealed to the Board.

Cline v. Shinseki supra

vA was more than willing to grant SC for the pretzel brain-make no mistake about it. What they weren’t going to do was go way back a la Vigil and Mayhue. Having learned nothing from these seminal cases, they proceeded to trot out the (c)(2) codicil and wave it gaily in the air. They even dragged in a second argument that tried on the retroactive effect on this as his claim straddled both sides of the 2006 changeover of 3.400(q) into 3.156(c). Their myopic view was that he landed on the wrong side of it. This is where you hear the ghostly echo of Jim Nabors’ voice saying “Surprise. Surprise. Surprise, Sgt. Cline!”

The Court held this up to the light and viewed it from every different angle available and didn’t see what Uncle Eric felt was established law. In fact, they took Vigil and Mayhue apart like automobile engines and viewed their components minutely.  VASEC flunked the audition. In 2006 (then) VASEC Jimbo Nicholson had this to say about his proposed revamping of 3.40o(q):

As the Secretary explained, “[t]his limitation would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government, but limited by the extent to which the claimant has cooperated with VA’s efforts to obtain these records.” 70 Fed. Reg. at 35,388 (emphasis added). The amendments to § 3.156(c) became effective on October 6, 2006, and were not expressly made retroactive. See 71 Fed. Reg. 52,455 (Sept. 6, 2006).  Consequently, prior to October 2006, the effective date of the amended regulation, there was no limitation on VA’s ability to reconsider previously decided claims in light of the submission of new and material service department records.

Cline v. Shinseki supra

Those guys at the Court like to do the hoist on one’s own petard thing. Then the Court pulled out the old post hoc rationalization game plan and explained why that’s against the law.

The Court in Mayhue expressly declined to address the question of retroactivity squarely raised by Mr. Cline in this case because it found that the information that VA ultimately relied upon to obtain the service department records that formed the basis for granting Mr. Mayhue’s claim had been in Mr. Mayhue’s claims file all along. The Court, therefore, also did not consider whether the addition of § 3.156(c)(2) amounted to a substantive change in regulation.  Id. (“Even assuming the Secretary’s view that § 3.156(c)(2) . . . codified VA’s long-standing practice of limiting reconsideration of claims based on a claimant’s lack of cooperation–the view least favorable to the veteran–the Court finds that § 3.156(c)(2) was not for application in this case.”).[this  was from Mayhue v. Shinseki]

We will now do so.

Cline Supra (emphasis mine)

So here’s the (heavy music, please) DOM DA DOM-DOM. I always like the “gotcha” moment when they let the cat out of the bag.

Here, although the Secretary asserted at oral argument that the addition of subsection (c)(2) was merely intended as clarification of past practice, there is simply no evidence that this is so. In proposing the addition of subsection (c)(2) [in 2005], the Secretary wrote:

We propose in § 3.156(c)(2) to limit the application of this rule by stating that it
“does not apply to records that VA could not have obtained when it decided the claim
because the records did not exist when VA decided the claim, or the claimant failed
to provide VA sufficient information for VA to identify and obtain the records from
the respective service department, the Center for Research of Unit Records, or from
any other official source.” [non adversarial? benefit of the whatchamacallit?] Reconsideration based upon service department records would not be available in cases where the claimant did not provide information that would have enabled VA or another federal agency to identify and search for relevant records. This limitation would allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government, but limited by the extent to which the claimant has cooperated with VA’s efforts to obtain these records.

70 Fed. Reg. at 35,389 (emphasis added). There is no indication in this statement that it had been VA’s regular practice to decline to reconsider prior claims where claimants were found to have provided incomplete evidence. In fact, the use of the auxiliary verb “would” indicates what VA anticipated would happen in the future because of this change.

Cline v. Shinseki supra

So, pilgrims, what we have is a right protected by statute being denigrated in the name of “Well, we always did it that way so we just passed a regulation saying as much. What’s the big deal?” The big deal is it screwed Mr. Cline and any number of Vets following in his footsteps out of some serious walking around money. This mission creep philosophy suffuses all the jurisprudence that emanates from the General Counsel. The habit of trotting out post hoc rationalizations for farting in church on Sunday continues unabated. You would think at some point they’d at least run it by themselves to see how inane and uneducated they’re going to sound when they try to moonwalk this past a bunch of savvy jurists like the Court.

So. What just happened? Precedence was set  according to the Gospel of Saints Hagel and Davis. St. Lance dissented. They have given us a clean decision here- one that rationally throws out the retroactivity interpretation vis a vis JSCRUR records. §3.156(c)(2) may require a slight rewrite to incorporate this for future reference so the General Counsel remembers it. Additionally, this decision was not about just PTSD, but all injury/illness. You could just as easily substitute hemorrhoids, ingrown toenails, or HCV and you’d have the same net effect. It also defined what the meaning of “would” would mean from here on out in (c)(2).

We inhabit a special judicial niche that should always reflect Veterans’ contribution to society and the freedom of our Country. The fact that the one appointed to this task takes a decidedly anti-Veteran position that is invariably wrong and overturned on appeal gives pause for thought. Just how “non-adversarial ” is this process?

Next? Now serving CAVC-16 at Window 3.