This just in. After reading their cards and weeping, VASEC has just acknowledged they are holding what appears to be a compromised or losing hand. Oddly enough, it only took them 5 years to ascertain this (2008). I guess someone sat down and read the file instead of continuing to blindly fight on.
From: Purcell, Emily [mailto:Emily.Purcell@va.gov]
Sent: Wednesday, February 27, 2013 9:13 AM
To: Robert P. Walsh
Subject: Nodster CAVC #12-XXXX
Hi Mr. Walsh,
The Secretary can agree to remand the issue of the Board’s denial of entitlement to an effective date earlier than February 23, 2007, for the grant of service connection for Hepatitis C. The remand would direct the Board to provide adequate reasons or bases for how the January 1995 SOC clearly conveyed to Appellant that the decision on that claim was final. In order to enter into a JMR, however, we would need Appellant to abandon the tinnitus claim and arguments pertaining to CUE. Please let me know at your earliest convenience whether this is something that Appellant is interested in pursuing.
Emily C. Purcell
U.S. Department of Veterans Affairs Office of the General Counsel (027K)
810 Vermin Avenue, N.W.
Washington, D.C. 20420
In an effort to appear grandiose, they have condescended to allow one of the following:
1) a remand back to the BVA for a restatement of how the 1995 SOC was clearly a denial. This will attempt to show that the following should have amply warned me that my claim had been denied…
“We are reviewing the additional records that you submitted with your appeal and we will notify you of our decision as soon as it is reached. We are scheduling another examination to see if your tinnitus has worsened. You will be notified by separate letter of the date and time of the examination”. (RBA 3383 SOC dated 9 January 1995)
Scenario #2 will be a Joint Motion for Remand (JMR) which will hash out their surrender and the terms of my 1994 rating. As you can see, VASEC has already started putting in preconditions that require me to drop my tinnitus appeal and to withdraw my CUE claim.
Law Bob, being a gambler like me, stated the obvious. “The bid is now 3 no trump”. VA has suddenly realized their legal arguments are akin to screen doors in submarines. However, since they are so munificent, they are willing to accept my apology and hand out old Halloween candy if I throw in two claims.
I would ask Bob to think back on General Anthony McAuliffe’s response when he was asked by the Germans to surrender in 1944 at Bastogne.
According to various accounts from those present, when McAuliffe was given the German message, he read it, crumpled it into a ball, threw it in a wastepaper basket, and muttered, “Aw, nuts”. The officers in McAuliffe’s command post were trying and failing to come up with suitable language for an official reply when Lt. Col. Harry Kinnard suggested that McAuliffe’s first response summed up the situation pretty well, and the others agreed. The official reply was typed and delivered by Colonel Joseph Harper, commanding the 327th Glider Infantry, to the German delegation. It was as follows:
To the German Commander.
The American Commander
So, in sum, since I am in possession of a full house, why should I acquiesce to a remand all the way back down to Fort Fumble in Seattle and get the traditional Fenderson 0% fight for 5 years? Either VASEC offers the 60% from 1994 or we go to trial and let VASEC explain in his best post hoc rationale that VAOP OGC PREC 9-97 doesn’t mean exactly what it says it means or that the 1995 Statement of the Case was a typo and I should have understood that at the time.
Stay tuned to the next exciting adventure. Same CAVC time. Same CAVC channel. News and film at 6.