Welcome to Larry’s ping pong game. Larry’s been playing this one since 1998. He lost here back in 2009 and took it upstairs to the FED Circus. They piddled around with it and got into a big diatribe about the Henderson concept of the inviolability of the 120 day rule on NOAs.
The Court has neatly sidestepped that issue and moved on to the separability of a claim argued under the theory of two distinctly different theories. Schroeder and Clemons gave us the precedent that a claim argued under two separate theories is still one claim and cannot be bifurcated into two disparate ones. That much is established law. Tyrues attempts to do an end run around this with the novel precedental theory that a claim for one disease/injury on a direct basis can also be considered a separate one for a presumptive illness. Once divided, both (rather than just the original one) must be appealed within the prescribed times dictated by the Court.
Judge Lance ably articulated his dissent (with Judge Schoelen) thus:
Thus, it is entirely possible for a claimant to diligently contest his or her claim only to discover that he or she has forfeited part of it because it is not obvious to a lay person that a Board decision must be appealed immediately when part of a claim has been remanded for further consideration. However, the solution to protecting diligent claimants is not to sub silentio overrule this Court’s decision by applying equitable tolling in the absence of evidence. Rather, it is to simply base our decision on a realistic expectation of diligence on the part of claimants who lack attorneys to advise them. Accordingly, the Supreme Court’s decision to remand this matter for further consideration in light of Henderson v. Shinseki, 131 S.Ct. 1197 (2011), highlights one of the central flaws of the majority opinion.
Tyrues v. Shinseki (2012) (Tyrues II)
This is interesting law insofar as Larry was pro se for a good portion of the claim up to the filing (late) with CAVC. The Supremes kicked it back using 120 day Henderson logic as I mentioned but the ensuing argument has now devolved into whether he filed before Henderson (he did). Based on that, he loses.
More importantly is the argument vis a vis bifurcation. I filed in 1994 for Porphyria as a) directly a secondary of HCV or b) due to Agent Orange. The Seattle RO ruled narrowly that I was never in Vietnam (ergo no presumptive exposure) but ignored the premise based on the Hepatitis. They do that a lot at all ROs. Don’t feel pregnant and alone.
Larry here has hit the wall in a similar situation. He filed under two separate theories but the BVA denied on one and remanded the other for more development. You and I, being rather unsophisticated, would probably interpret this as a a claim partially denied and another bite at the apple on theory #2. You and I would be very shit out of luck according to the CAVC as of August 23rd. There isn’t much difference between his situation and mine. However, the RO didn’t turn mine into TWO separate claims. Actually they never finished the second half of it in 1994. They just ignored theory #2.
Larry was ultimately denied the second hypothesis and filed his NOA. The Court said “Too late” and that’s what provoked this ping pong game. After turning several magnificent old growth trees into pulp for this project, we are now at the beginning of what will probably represent a new assault at the 3rd Fed. Cir. Larry is getting old. He’s got 14 years into this project. To give up now would be to acknowledge that the VA is right. I don’t think he will.
If the VA is permitted to take a claim and convert it into whatever they say they think you were “attempting” to file for (often referred to as construing), we are in deep doo-doo. They currently do this all the time. On the other hand, taking the claim and making two claims out of one based on separate theories is spooky. What’s to prevent a prosecutor from charging you with the crime of murder for one corpse. If he fails on that theory, can he then get a remand and a do over on the second theory? Doesn’t double jeopardy enter in here somewhere? Equitable estoppel anyone?
Larry has a long row to hoe and I smell trouble. The longer this festers the less justice will be dispensed and a desire to move on judicially will take root. What it portends to pro se Vets is a legal nightmare. When is a claim a claim? When is a claim actually two disparate claims based on two different concepts. Who gets to decide? Do they have to tell you or are you supposed to learn Braille? All these queshuns.