Remember the good old days when there was no review  The BVA could simply speak and you would listen. That was the end of it and your options as well. After creation of the COVA, VASECs pretended nothing had changed and enmity slowly began to build with the Court. Every once in a while they had to take him into the back room and explain elementary Black’s Law to him. Remedial education didn’t take. Hooked on Phonics was ignored and the VASEC continued to mispronounce law. No smooth transition was going to occur so the Court proceeded to disassemble everything that arrived and remand, vacate and reverse a lot of it. Over 60% of it. They still do. You can see the invisible effect that it has on jurisprudence today but unfortunately the Court all too often does the bidding of the Government, too.  They are not above sticking their finger up and trying to assay the wind direction. The shellacking Keith Roberts got is classic proof that he and Vets like Leroy Macklem are never going to get a fair shake.

Every once in a while VASEC, and by extension, his stable of toadies do an incredible faceplant and either create a new interpretation of law or just go in the back room and build it from scratch. They get that “Laws? We don’ need no stinkin’ laws.” mentality and come up with some really funny ideas. They usually don’t get away with it for very long either. They smoked Jean Erspamer for a while back in the early days over a Writ of Mandamus but nothing of import has really hit the wall like Harvey v. Shinseki in recent memory.  Uncle Eric dawdled and fiddled so long  he actually earned the VA a fine. Nothing big but the bitchslap was to get their attention- not cause irreparable harm to the Orlando Karaoke Fund.

And then along comes another one of those Excessive Awards Program (EAP) deals where they just up and start doing things a different way one day with no discussion and no cooling off period to see if it’s even street legal. This is what caused this whole problem. VA opted to give a little haircut to 38 CFR §3.103 and made the changes effective immediately on August 23rd, 2011.

 The veterans’ benefits system has been calibrated with uniquely pro-claimant principles. Hodge v. West, 155  F.3d 1356, 1362 (Fed. Cir. 1998) (“This court and the Supreme Court both have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely pro-claimant.”). Consistent with these proclaimant principles, and pursuant to statute, the VA regulations in 38 C.F.R. § 3.103 provide for certain procedural due process and appellate rights for veterans involved in VA adjudications.

These procedural and appellate rights require VA officials to “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” § 3.103(c)(2). They also require the VA “to assist a claimant in developing the facts pertinent to [his or her] claim” and “to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.” § 3.103(a). Importantly, the VA has consistently applied the § 3.103 rights both to hearings conducted at the regional offices level and in appellate hearings conducted before the Board of Veterans’ Appeals…On August 23, 2011, VA issued an immediately effective new rule (the “2011 Rule”) that eliminated some of the rights previously provided under § 3.103. See Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans’ Appeals, Clarification, 76 Fed. Reg. 52,572-01 (Aug. 23, 2011). The 2011 Rule limited the provisions governing hearings under § 3.103 so that they applied “only to hearings conducted before the VA office having original jurisdiction over the claim.” Id. at 52,574 (emphasis added). In other words, veterans would no longer have the previously available procedural due process and appellate rights during board appeals. Despite this significant departure from the pro-claimant procedures espoused by § 3.103, VA stated that the change “merely clarifie[d] current procedures” and therefore was excepted from the notice-and-comment and delayed effective date requirements of the Administrative Procedure Act.

NOVA, the National Organization of Veterans Advocates, jumped in on December 22nd, 2011 with both feet and said hold the phone, Mr. Bell. That’s not permissible in the lower 48 states. VA promptly was given 30 days time to provide the Court with a brief  Several days before they were supposed to cough up an excuse, they asked for even more time (90 days) and the Court  acquiesced but said not to expect any more time. It was showtime at the OK Corral but VA wanted to keep taking a flyer on it. Meanwhile their little haircut to  §3.103 was still rolling downhill unattended and hitting innocent Vets.

Come March 5th 2012, they asked for another 30 days and NOVA was willing to play ball if they unplugged the new, improved regulation and put it on hold. VA’s finest nodded like baseball bobblehead dolls and put on one of those braindead grins of agreement- or so it seemed.

April 27th, 2012 dawned clear and sunny. VA marched into Court and pulled out their pockets indicating they didn’t have a brief to file. Feeling rather full of themselves, they started doing the Michael Jackson moon walk and promised all manner of wonderful things if only they could ignore the tolling on this brief. Damn if the 3rd Circus didn’t bite and believe them again.

The resounding sound of the judicial door slamming into about 66 Vets woke the Feds up. All this time Vets were getting hosed while VA insisted they weren’t.

Having already received two extensions of time, on April 27, 2012, VA petitioned for a third enlargement of time. VA stated that it wanted to allow the then published repeal to become effective prior to submitting its brief. VA’s third petition was prefaced upon and reconfirmed the Government’s commitment not to apply the provisions of the 2011 Rule—which VA by that point had publicly admitted was a violation of the APA. NOVA opposed the extension of time with well-founded concerns that any additional delay would result in more cases becoming final—making it significantly harder, and perhaps impossible, for some veterans harmed by the invalid rule to obtain relief. In response, VA stated that it was not aware of “any instances” in which the 2011 Rule was applied after March 5, 2012, but if NOVA identified any cases, the cases would be “investigated and dealt with by the VA Office of the General Counsel.”

The old ‘Ne Problemo, Senor’ line .And then the Court got the VA-equivalent of a bitchslap;

Despite VA’s repeated commitment not to apply the invalid 2011 Rule, NOVA has submitted papers to this court indicating that the Board relied upon the 2011 Rule in a substantial number of cases after March 5, 2012. NOVA provided a list of the cases to VA in hopes that the VA would live up to its word to investigate and deal with the cases; VA has declined to do so.

Shocked. I am shocked. The Court was shocked. Hell, the only two who weren’t were NOVA and VASEC. NOVA knows these Bozos and worse, VA marches to the beat of a drummer no one can hear- including themselves. When faced with equitable tolling strictures like mortal men, they just lied and blew the Big Guys off. The Feds are speechless. There are three dents in the hardwood floor up there in their Court where their chins hit.

The issue remaining before us is what action we
should take in response to VA’s conduct, including its
failure to abide by its commitments. We first address why
we believe that action on our part is appropriate.

Additionally, VA’s conduct and written communications refute its assertions that its violations were unintentional. For example, VA effectively stated that it would not investigate and deal with illegal application of the 2011 Rule because it would burdensome.In other words, VA was well aware of this commitment and intentionally elected not to fulfill it.

The VA’s conduct in this matter troubles the court on multiple levels. First, VA’s conduct did not involve an isolated mistake. Starting on March 5, 2012, VA began representing in court filings and in other communications with NOVA that it would immediately stop applying the 2011 Rule. VA also made various representations implying that the Board was not applying the Rule. In spite of these representations, NOVA identified sixty cases in which the invalid 2011 Rule may have been applied—and that was just in the month of March. Thirty of these cases expressly refer to the invalid 2011 Rule, and many if not all of these thirty cases declare that the Rule renders § 3.103 inapplicable.

Finally, VA’s conduct troubles the court because, rather than remedy harm caused by its broken promises, VA attempted to shift the burden to others such as NOVA, attorneys assisting veterans (oftentimes on a pro bono basis), or to the harmed veterans themselves. In particular, VA indicated in a letter to NOVA dated November 5, 2012,4 that the routine appellate (or postdecisional, in the case of Board reconsiderations) process was the most appropriate venue for resolving affected cases.

You see the enormity of the problem by now. This isn’t ‘liar, liar, pants on fire’. It isn’t even ‘the dog ate my brief’. It’s more nuanced like Harvey with a cavalier ‘let them eat cake’ undertone.

VA, and by extension the Government attorneys repping them, all acknowledge there’s dog shit on their chukka boots but pretend the smell is  eau de parfum. The VA consensus is “Chill out, dude. We’ll fix it this year. We have so much to do and this is just a minor hiccup in the VBMS scheme of things”.

The Feds are fed up. They don’t want to hear about mitigation and ‘everyone will live happily ever after’. They are no longer listening at all. They are sharpening the punji sticks and trying to decide which animal feces to dip them in. NOVA is in the catbird seat and can pretty much tell VA that all the King’s men and all the King’s horses are not going to put this Pandora back in the box. This is going to involve what my Dad used to call some serious walking-around money. Obviously Harvey didn’t get their attention. This time there will be a lot of teeth in it and they’ll keep the mandate leash short with a choke collar attached to it. One woof. One growl or one attempt to be uncivilized and VASEC is going to find himself with a GPS ankle bracelet on and a two-mile perimeter.

Time extensions? Sorry Mr. Charlie Tuna. You used all your time outs. From here on out, you’ll actually have to bring the typewriter down here and enter your briefs while we wait. Your credibility issues precede you. In a word-you lied so we will accord you the same trust we would a dog that isn’t house-broken yet.

We expect that the Government will choose to confer
with NOVA regarding its proposed plan so that any plan
submitted to the court fully addresses the harms caused
by the Government’s conduct and minimizes the need for
further orders by this court.

Minimizes the need but does not foreclose the need entirely, if you will note. VA will need a pretty fancy tutor-fancier than the one they’ve been using thus far (JOHN J. TODOR) to teach them subservience before the Court. Worse, they only have sixty days in which to learn this new trick.  VBMS and paperless claims are going to look like child’s play compared to this pretty soon. I’m sure you’ve seen the Third Circus logo?

ONCE DISSED

TWICE FRIED

VA may have to learn how to moonwalk standing on their hands or…or the Circus may just let them off with a slap on the wrist. You would certainly think that they are sufficiently taken aback by this perfidy to exact a pound of flesh.