Sadly, some of this knowledge I am preparing to discuss seems to be on a “need to know” basis much like classified info. You’ll never hear it from VSOs which is peculiar. After all, they profess to have their ear to the ground and are in touch with the inner workings of the fabled agency.
The CAVC, formerly the COVA, used to knock out about 50 to 80 panel or en banc decisions a year in the beginning. Nowadays they spend more time on the martini circuit or the Army-Navy Country Club’s links. Last year is a classic example with only thirty three opinions decided. Of those, some like the April Fool’s decision in Heino are a joke. Buie stands out as cutting edge jurisprudence but is all too rare.
Of more import is what happens behind the Wizard of Oz’s curtain that we don’t see or hear about. I speak of the Joint Motion for Remand or JMR. This is akin to the secret handshake and password to enter in. Few Vets know of this and fewer still are aware that this is becoming a de facto settlement tool in light of the deteriorating quality of the decisions handed down at AOJs (VAROs) and the BVA. It’s becoming ludicrous to hear about all the players sitting down in a conference call at the outset, airing their mea culpas and asking for a do over. Of course no admission of outright perfidy is voiced but that isn’t the sine qua non of a JMR. The fact that something is amiss and needs to be “reaccomplished” is.
Because justice is becoming so slipshod at the BVA, and, by extension, the VA in general, the Court employs the Central Legal Staff (CLS) more and more frequently in an effort to weed out stupidity and flawed law. VA consistently maintains their rate of correctness in their decision making is on a par with 86%. VA might maintain that my goat Wally has an IQ of 120 if that’s the case. The job of the CLS is, according to the NVLSP’s VBM “to promote settlements on appeals, with minimal involvement by a judge of the Court.” An admirable undertaking, yes, but one that is predicated on the premise that the BVA’s fact-finding prowess is less than stellar. I might be tempted to say VA is unable to find their own ass even with both hands and a methane detector. This is what I’ll discuss today.
The CLS has apparently come into its own in recent years. Why is that? Innovation? Cutting edge law dogs on top of it like white on rice? No, gentle reader. It’s something far more mundane. Error is the operative word here. There is so much of it and it’s so endemic to the system that the sheer volume of stupidity issuing forth from the BVA requires a cleaning crew like the CLS to sweep up the mess and weed out the easily repaired wrongs. This is how bad it is. From the VBM:
During fiscal years 1999-2009, of the 23,699 cases terminated by the CAVC on the merits, in 19,006 appeals (or approximately 80 percent), the Court has either vacated the BVA decision because of legal error and remanded the case to the Board for further proceedings, or reversed the decision of the Board and ordered the Secretary to grant relief to the appellant. The large majority of these decisions vacating or reversing the Board decision were based on a finding that the Board committed one or more legal errors.
This give us pause before we proceed. How can it be that the vA gets to profess an 86% accuracy rate when the CAVC pokes a hole in this statistic the size of the iceberg’s damage to the Titanic’s hull? The jury is still out on that but it consists of an amalgam of several things. If you do not appeal (and most don’t) the decision is “correct”- n’cest pas? Further, if you appeal to the BVA and (gasp) lose again, it’s even more correct. Only when that miniscule percentage of motivated Vets arrive at the Court does this disparity rear its ugly head. VA has discovered that they can nip this in the bud with a do over. Thus the heavy use now of the JMR to “get it right”. Sometimes this is just an opportunity to wax the hangman’s rope and do it all over legally. More often than not, they are pulled up short by eagle-eyed, knowledgeable attorneys who insert boilerplate language to ensure this doesn’t transpire all over again. The VBM goes on to say:
This is quite a high error rate. Fortunately for claimants, in the majority of these cases, the errors are identified and the appeal is resolved without the necessity of either full briefing by the parties or expenditure of time by a single judge or a panel of three judges. This relatively speedy resolution occurs through the filing of either a joint motion to vacate the BVA decision and remand or a joint motion to dismiss accompanied by a settlement agreement.
This is the ugly secret like the mentally deranged aunt kept in the upstairs bedroom out of sight. Nobody, VA included, wants their dirty laundry aired out of doors in plain sight for all to comment on. This is why you have a better that not chance your claims will be taken seriously and not swept under the carpet.
Unfortunately, the VA’s General Counsel (section 027), headed up right now by the illustrious Will Gunn (a legend in his own mind and no relation to Peter), tends to drag their heels occasionally and in some cases dig them in. This is what they are doing with my claims. I’m sure the horrible consequences of failing to adjudicate mine in 1994 are going to have financial consequences and thus are being objected to strenuously. Nevertheless, the VBM instructs that they occasionally see the light and are remorseful:
Some of these joint motions result because counsel for one of the parties contacts opposing counsel early in the appeals process and initiates settlement negotiations, without any help from CLS. For example, Group VII of the Office of the General Counsel of the VA (which represents the appellee, Secretary of Veterans Affairs, on all appeals) is comprised of teams of appellate attorneys, with each team including at least one attorney screening BVA decisions shortly after appeals are filed to detect legal error. This sometimes results in a telephone call, before the record is even developed by the Secretary, from counsel for the Secretary to counsel for appellant suggesting that the BVA decision contains certain legal errors and that the parties settle the case with a joint motion for remand.
More often, however, joint motions are reached somewhat later in the appeals process, prodded by a Rule 33 staff conference. Shortly after the clerk has sent the notice to the appellant that his or her brief is due within 60 days of the date of the notice, the Court’s practice in most cases is for a member of the staff of the CLS to schedule, shortly prior to the date the initial brief is due, a three-way telephone conference. The Court issues an order officially setting that date and time for the telephonic briefing conference, identifying the attorney from CLS who will conduct the conference, stating that the purpose of the conference is to discuss the issues to be briefed and the future course of the appeal, requesting the parties to notify CLS if they reach agreement on a joint disposition of any or all issues prior to the conference, requiring that the parties attend the briefing conference with authority to enter into a joint motion for remand, and warning that the conference does not affect or toll the running of the 60-day deadline for submitting the initial brief.
This is where my case stands. The initial briefing resulted in the GC steadfastly refusing to budge. Therefore my leagle beagle is forced to draw stick figures in the sand and do a DickandJanespeak presentation that explains in monosyllabic words where the vA went astray. At that point, the vA will probably admit their error-or not.
We would like to belief this is a non adversarial process with all concerned advocating what’s best for the Veteran. Ah, Padawan, you are full of misguided conceptions. If the 027 krewe has been bearded often by the Vet’s attorney, animosity accrues. When next he appears, the score is remembered and old disagreements resurface. They have limitless funding and can make justice pure hell for you and me. This is where the CLS can intervene. When it’s patently obvious your position is justified, the Court can issue that order that in essence chides Mr. Gunn and his entourage to be more conciliatory and reasonable.
To cement the deal, your attorney needs to insert stiff language that forces the VA into only one outcome-a ruling in your favor. Keep in mind that this only results in a ruling granting that which you contend is the true state of affairs. The next insult awaits you at the VARO when they remand it back to the chuckleheads who screwed it up initially. They (the raters) will take this opportunity to exact their displeasure at being dissed and give you as little a possible resulting in a whole new NOD and a fight for a higher rating.
But I get ahead of myself. Here is more valuable insight for Veterans to consider. Often you do not see these behind the scenes events and attorneys are too busy to recount the blow-by-blow arguments that finally result with action in your favor:
Sometimes, counsel for the parties confer prior to the conference to discuss their positions on how the appeal should be resolved, and sometimes these pre-conference discussions bear fruit and an agreement is reached. Often, however, the staff conference is conducted as scheduled, either because counsel for the parties have not conferred prior to the conference (there is no requirement that they confer beforehand) or because pre-conference discussions have not resulted in a settlement of all of the issues. When pre-conference discussions do not result in a settlement of the issues, advocates are advised to go forward with the conference because the CLS attorney may be able to exert pressure on the VA attorney to settle the case.In addition, while nothing that occurs during the conference may be mentioned to a judge, the CLS attorney prepares a legal memorandum to the judge assigned to the case, so there may be a benefit to going forward with the conference if there is any doubt regarding the parties’ ability to reach a joint disposition.
This, too, from Section 15.6.9 in the VBM is a prerequisite for the proper pursuit and wording of an eventual concession of VA’s part:
As indicated above, counsel for the parties often are able to agree to a settlement of an appeal without briefing the case or the intervention of a judge. The settlement typically takes one of two forms. If the parties agree that the appellant is entitled to an award of additional benefits (for example, service connection, a higher disability rating, or an earlier effective date) the parties typically submit two documents: (1) a settlement agreement in which the Secretary, without conceding error, agrees to award additional specified benefits and (2) a joint motion to dismiss the appeal in light of the settlement agreement.
Remember that most of you are appealing a simple denial of your claim. As we know on Hepatitis jurisprudence, the evidence used to convict you (read deny) is specious and has no rational basis medically. I have illustrated this more times than I can count in the numerous BVA decision I regularly dissect. I have expounded that going to the CAVC without a minder is a poor choice. Doing your homework and sharing your work with the law dog you choose can speed things up immensely if you have the talent. Once VA sees the writing on the wall, they will be the ones begging for another chance to throw a new rope over the branch on the hanging tree. Thus this little warning in the VBM:
The most important issue in drafting a joint motion to vacate the Board decision and remand involves whether the conduct of the Board and/or the regional office on remand will be affected by what is said in the joint motion for remand. It does little good for an appellant to obtain a Court Order vacating the Board decision and remanding based on a joint motion in which, for example, the parties agree that the VA erred by not obtaining a medical nexus opinion from a certified orthopedist, if the agency on remand will feel free to ignore the words of the joint motion and deny the claim without obtaining any additional medical evidence.
This, then, is the thrust of my dissertation today. Any JMR entered into must have parameters to keep the little buggers on the reservation. Anally concise parameters that cannot be accidentally “misconstrued” as only the VA is renowned for must be employed. Semantics are the play toys of their ilk. Any chance for a misinterpretation of what you are trying to accomplish will be gleefully employed. It will be couched in those inimitable words “It was felt that the Veteran was trying to say…” or “The ratings examiners extrapolated that the claim was for..” and so on. As often as they are admonished by the Court and indeed the BVA to engage the Vet (and his advocate) at all stages, we only seem to hear from them about five times. Once to inform us that they got what we sent, once to inform us we are denied, again with an SOC following the NOD, and a confirmation that the claim was certified and sent to DC about 15 months after the F-9 is received.
Similarly, the BVA is so loquacious they feel compelled to inform us three years later of the news pro or con with absolutely nothing in the interim unless it’s the bad news announcing the involvement of the dreaded AMC. Remember the inception of Meals, Ready to Eat (MREs)? Three lies in one condensed acronym. The same applies to the Appeals Mismanagement Center also known as the orphan 57th RO.
JMRs are a double-edged sword. If worded properly, they can be a Godsend and instruct the BVA or RO in what they were remiss on as well dictate what needs to be reaccomplished. If worded sloppily, they can result in more errors and an outright failure on VA’s part to comply with the original reason for it in the first place. Since you’re going to be flogging the dog for about ten years on one of these things, it behooves you to go through it line by line and eliminate any vague language they can run in the wrong direction with. Murphy’s law is axiomatic here. They are a government organization. Need I say more?
Keep in mind that when you arrive at the hallowed halls of 625 Wagon Burner Ave. NW, your VSOs will be told to wait in the lobby. They have no legal training and thus are not allowed to practice any more of their voodoo leaglezoom.com on you. You have no idea how blessed you are at this point to be rid of them. Hopefully, your claim was well-enough assembled that it will hold water at this point. Remember also that good news at the beginning. There’s an 80% chance they stepped on their necktie in their haste to step on yours. Bon chance.
Wally the goat, triple digit IQ. Not to be confused with …
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
Once again you supply most excellent information.
I hope you will be honest with all here who have to go this route. I know you cannot discuss other member cases here but initially you are my law dog without a BAR card. You have helped me more than any vso. Leave you in the hall when court convenes? I’ll request that 88 injection of IFN first…
Well said and written; Most informative blended with humor and a command of the written word.
I enjoy the education and Your Body of Work.