I love reversals. They illustrate VA law at it’s finest. Here, Mr. Larry J. Girardo gets another bite of the apple because VA is so dense and obtuse as to be unable (or unwilling) to comprehend that a filing represents a “Notice Of Disagreement” (NOD). The fig leaf the VASEC hides behind couldn’t cover up a gnat’s private parts. One wonders how this even got into their chambers.

With regard to Mr. Girardo’s December 1973 letter, the Secretary asserts that it does not constitute an NOD because it does not “express disagreement” with the RO’s decision…

He (VASEC) asserts that instead, the letter “sought a re-examination of the evidence of record because he believed his original claim had been misunderstood.”

The Court disagrees with the Secretary’s interpretation. Although Mr. Girardo did not expressly state that he disagreed with the decision, those exact words are not required. Indeed, the regulation at the time states that the NOD “need not be couched in specific language.” 38 C.F.R.§ 19.113. Instead, Mr. Girardo’s letter need only have “evidence[d] a desire for review of that determination.” Id. In that regard, his request that VA “re-check,””reexamine,” and “reconsider”its determination unambiguously satisfies § 19.113’s requirement. Thus, the Court concludes that Mr. Girardo’s December 1973 letter constituted an NOD.

Gee, how hard is that to comprehend? “But your honor. We construed it as a request for a  medical exam, or, in the alternative, as a desire to be abducted by aliens. Where do you get a NOD out of this?”  This is a win-win for Larry as well had his law dog Amy F. Fischer. Her phone should be rightfully ringing off the hook if she’s sharp enough to spot these tricks of the OGC. Remember, this is how they win at the RO and BVA. It’s often not what happened so much as what didn’t happen.

To see real justice in action, click here and click on #20 (11-2307). Once it is ensconced in the CAVC system, you’ll have to go to here  , erase {query} and enter 11-2307. Click on download to view normally.

Put on the popcorn and bust out an IPA. This is short and sweet. Nothing swells my heart like a good reversal.