In CAVC 1 I began the introduction to what all of you who come after me will go through. In my book, I suggested all Vets do the mirror test. Make sure you’re positive on this and you know you’re right. If you had the stamina and endurance to withstand a gruelling two year wait for the BVA, you are now entering the beginning of Phase three. Another mirror test, please.
This time you are going to do the triage test, or for lack of the mot superior, quadrage test. Step one is the preliminary to this. How badly did the BVA hamburger this decision? If you had a VSO, was there some inadvertent complicity in the loss-say, lack of a nexus letter from a doctor that everybody neglected to mention at the VFW bar? It’s salvage time but is this salvageable?
After that analysis, move into quadrage. Is your evidence so blatant, so over the top that you can (or should) ask for reversal? For the uninitiated, reversal is an extreme bitch slap. The Court tells Uncle Eric that he was raised by wolves, knows nothing of law, and orders your case be sent back for an immediate rating in your favor and to be quick about it. This happens about 12% of the time. Sometimes the VA gets stuck on their inimitable, stupid setting and then begins inventing unique, unheard of interpretations to explain what is indefensible. This is the legendary post hoc rationalization advanced for the first time on appeal of all places. Baaaaaaaad idea. Make the word “bad” sound like a sheep saying it. It’ll make you smile. So will a reversal.
Vacate for Remand is one step down. Judges are lazy. They hate to make decisions. They would rather find legal fault with a decision and remand it for vA to fix it. This can have some really evil effects for guys like Leroy Macklem. For most of us, it is an admonition from the Court to the BVA that they screwed up yet again for the umpteen gazzionth time and, if they’d done it right, you wouldn’t be here in the first place. Some might see this legal tool as a deficit. In most cases, you will have been doing this either yourself or with a VSO for a representative. If you’re here reading this, we won’t get into how that worked out for you. The beauty of a remand is that your attorney can often fix it by getting that nexus nobody told you about, the medical C&P exam the RO never gave you, and any other odds and ends the VA overlooked in their rush to the Texas necktie party.
A partial remand is a conjunctive ruling that affirms some items you appealed and remands others that will live to see another day. If you have multiple issues you are contesting, some may be weak and others may have substance. The Judge may pick and choose between them based on their strengths or weaknesses. Thus the age-old argument for 10 or 20% for hearing loss is going to fall on deaf ears there if you can still hear out of the other one. We’ve all been there. Hell, I wager 80 % of Vets have a 0% hearing rating. As my DAV guy said in 92 ” Way cool! Now you get free hearing aids!”
An affirmation of the denial is what you do not want. and that is the last phase of quadage. Is it simply a no brainer? Were you led down this primrose path by a VSO like mine? Was he/she infused with boundless enthusiasm when receiving the POA and then suddenly invisible as though you’d contracted Ebonic plague? Many’s the Vet who gets to this doorstep and finds himself with no sage advice. Worse, his case is such a hash no self-respecting attorney wants it due to the poor handling from the outset. This is a harsh mirror test. If you thought your VSO was hard to get in touch with before, honey you have not even seen the tip of the iceberg.
You will get last gasp, Code Blue legal help from the NOVA, other kindred pro bono attorneys, and the NVLSP. They are the Lone Rangers on the White Horses at this point. They wrote the VBM for us. They can help but… Your claim is sealed upon denial at the Board. No more evidence may be admitted. The Court decides this from a standpoint of law. If VA violated it in their pursuit of a denial, the Court will usually find it and remand back for the do over. Here is the golden moment we spoke of above. Many a Vet finds the VA has lost their taste for this fight when they get caught out. The whole rationale for the denial up to this point has been dissolved. They will have to come up with a whole new alien abduction theory. They have too many fish to fry so chances are if you are even close to a win, you’ll get here. The trick is in finding the remandable defect.
The very last, unspoken, behind closed doors, aspect that isn’t part of this is a JMR (Joint Motion for Remand). I do not include it in the vacate and remand section because that is not where it goes. These are cases that effectively evaporate. They’re gone-invisible to the judicial eye. They arrive in Court and suddenly beat a hasty retreat never to be heard from again. They do not become Court statistics in the decisions-adjudicated column. They are decided outside on the Courthouse steps with a handshake and a follow-up on paper later that week. No powerpoint presentation, no apologies for the 8 years of denial, and no admission of stupidity will be forthcoming. VA is cheap. Not even a good Stolychnaya 104 proof (stirred, not shaken) martini with the obligatory obeisance of Vermouth eastward towards Paris.
This concludes the “Should I send in my Notice Of Appeal?” part of the discussion. Vet Warning. If you file pro se to protect your 120 day window to do so, you will be inundated in solicitations for attorneys. Many old growth trees are sacrificed for this noble endeavour so be forewarned. It’ll cause problems finding space in the recycle bin.
On a final note, I will say this. If the claim is dead in the water and has no chance of new life, admit as much. On the other hand, if you honestly believe you were disenfranchised, don’t cave in. You know who you are. A mirror test might let the next Vet in line get a shot at justice sooner and save us all some time. Your consideration of this is appreciated.