FED. CIRCUS–COMER v. PEAKE(MD)–VSOS ARE NOT LAW DOGS


download“We also reject the government’s contention that the board had no duty to construe Comer’s appeal sympathetically because he had assistance from an aide from a veterans’ service organization.   Although we have held that the duty to construe a veteran’s filings sympathetically does not necessarily apply when a veteran is represented by an attorney, Andrews, 421 F.3d at 1283, the assistance provided by the DAV aide is not the equivalent of legal representation.   Comer filed his initial claim pro se, appealed the decision denying him benefits pro se, and filed his initial notices of disagreement pro se.   It was not until after he had filed his appeal that a DAV aide, in December 2003, filed a statement on his behalf.   This sort of limited assistance is insufficient to disqualify Comer as a pro se claimant.

I constantly search for that magic decision that enunciates a bouquet of rights all gathered and trimmed nicely that you can point to and say “Here, your honor(s) is the bright line rule that instructs us”. Comer will invoke Groves v. Peake (2008) ( a documented mental disorder in 1952 is the same mental disorder in 1998 and they are one in the same unless you can rebut it. Mr. Groves was asked by VA to diagnose himself, then penalized for being wrong),  Roberson v. Principi (2001) (if you wanted TDIU, you should have asked for it but you didn’t), a brief mention of one of my particular favorites Stanley v. Principi ( We’re not arguing the facts so let’s find out who’s been naughty and who’s been nice in their reading of the statutes), Barrett v. Nicholson (2006) (Whoa, dude. What’s with the hangman’s noose? I thought this was a paternalistic, Veteran friendly environment), Cook v. Brown (1996) (pretty cool-looking law dog you got there, Mister. Too bad he doesn’t have a pedigree.) and others too numerous to mention.

Meet Leroy Comer, Ladies and gentlemen. By the time you finish reading this ,you’ll begin to notice curious similarities in the current case of Malcolm in the Middle. But we’ll talk about that later. Leroy was a ground pounder in the VFW War that wasn’t (Vietnam Misunderstanding). He had the unenviable task of guarding an ammo dump which we all know was the focal point of nightly entertainment for Victor Charlie.  To the VC it was the equivalent of a nudge on Facebook.  I don’t think getting mortared every night for a prolonged period would be conducive to good sleeping habits. At any rate, when old Leroy applied for this in 1988 pro se, VA pointed out he was already rated 30% ( albeit NSC) for PTSD (cause unknown but most certainly not from Vietnam). Thus he got the empty ice cream cone with imaginary ice cream. He didn’t appeal but what he did bring to the table was evidence of unemployability and a long track record of all the hallmarks of PTSD.

Leroy came back in 1999, again pro se, and tried to reopen his claim. Back then we had to have new and material evidence that would allow us inside the RO front door. The RO denied him but he prevailed at the BVA a few years later. Leroy now had 18 years into this game and the hamster wheel was just warming up. On remand in 2003, on his twenty first anniversary of being a pro se claimant, the RO finally buckled and gave him the NSC 30% as SC. Leroy promptly filed his Notice of Disagreement (NOD) and prepared to climb onto the hamsterwheel back to the BVA. By now, 30% PTSD was a masterpiece of understatement and Leroy wanted his 1982 filing date, too. As usual, at the last moment, in an abortive attempt to compromise, the RO pukes relented and offered 50% on the bent brain and no dice on 1982. Leroy probably didn’t know it but he held the aces in this game. His unemployment was still ongoing since 1982. VA wasn’t looking at that. He wasn’t up to 70% so they wouldn’t even consider it. Big mistake. That was the standard of law. VA never even glanced at it.

In 2004, suddenly fully cognizant of their screwups, they quickly scheduled Leroy for his new Dog and Pony show to pretend to “find” that he was really, truly unemployed since his last C&P and therefore 70% and TDIU officially. This was a finding and now VA could point to a day in time that Leroy was officially rated as TDIU. And that day was the day of the Dog and Pony show- May 5th, 2004. So Leroy had a new date to appeal.

His appeal at the BVA thus turned into an argument over his TDIU (as evidenced by the record) being documentable on February 6th 1999-the date of his latest filing.  The BVA just couldn’t give it to him and walk away from it. They also denied the 1982 date saying he hadn’t alleged any Clear and Unmistakable Error (CUE) in that decision. Leroy saw where the railroad tracks led and lawyered up for his trip to the Big House. Finally. But here is an interesting forethought before I proceed. By being pro se up to now, every last thing Leroy said and did was under the highest scrutiny because he didn’t know the law. Under these circumstances, the Vet is to be handled with kid gloves- even if he is represented by idiots on parade from the local Alphabet for Vets VSO.  You cannot know how important that is. It’s even bigger than the Tooth Faery lie about Benefit of the Doubt. Waaaay bigger.

Here’s where the Roberson decision is like a ghostly voice. One would think the VA and the CAVC could correctly add up a few of the precedential cases mentioned at the beginning of this story and realize readjudicating Mr. Comer under the same legal standard they were rebuked for in Roberson wasn’t going to fly. Trying on the fig leaf of calling a DAV leaglezoomdotcom chucklehead serious legal assistance didn’t catch any air either.

Comer first argues that the Veterans Court misconstrued Roberson, 251 F.3d at 1380-84, when it held that it had no jurisdiction to consider the issue of whether he was entitled to an earlier effective date for TDIU benefits because he had not explicitly raised that issue before the board.   In his view, Roberson requires the board to consider whether a TDIU award is warranted whenever a pro se claimant seeks a higher disability rating and submits cogent evidence of unemployability, regardless of whether he states specifically that he is seeking TDIU benefits.   We agree. (Comer v. Peake)

Simply put, under Roberson, a claim to TDIU benefits is not a free-standing claim that must be pled with specificity;  it is implicitly raised whenever a pro se veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating.   See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed.Cir.2004) (The VA is required, “regardless of the specific labels claims are given in the veteran’s pleadings,” to read pro se submissions sympathetically and “to determine all potential claims raised by the evidence.” 

The government, however, attempts to distinguish Comer’s situation from that presented in Roberson.   In its view, Roberson does not apply:  (a) to appeal submissions to the board following an initial rating determination, or (b) to situations in which a veteran is assisted by a representative from a veterans’ service organization.

The government reads Roberson too narrowly.   This is not the first time that it has advanced an overly restrictive interpretation of Roberson, and this will not be the first time its efforts will be rejected.   See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed.Cir.2005) (“Roberson is not limited to its particular facts and instead ․ requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings.”

Moody v. Principi, 360 F.3d 1306, 1310 (Fed.Cir.2004) (The VA is required to give a sympathetic reading to a veteran’s filings even where the facts of a particular case do not “coincide” with the facts presented in Roberson).

And last but not least, the cornerstone of pro se law at the VA and something the VA inevitably forget conveniently.

See Hughes v. Rowe, 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (Pleadings drafted by pro se litigants should be held to a lesser standard than those drafted by lawyers since “[a]n unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims.”);  Forshey, 284 F.3d at 1357 (“[I]n situations where a party appeared pro se before the lower court, a court of appeals may appropriately be less stringent in requiring that the issue have been raised explicitly below.”).

When represented, your law dog is assumed to be the equal of Perry Mason. When pregnant and alone, you the Vet are presumed to be nothing short of Non Compos Mentis and not to be trusted with the TV remote. The CAVC forgot this to their eternal dismay-yet again. For some reason, they become inured to our pain and misfeasance at the hands of the VA. Sometimes decisions like this slip through and are appealed up to the Fed. Circus. This is our only defense. Malcolm in the Middle  went to the  Fed. Circus without a Minder and was finally accorded this consideration. They could see the railroad tracks led straight back to 810 Vermin Avenue NW.

The beauty of arriving pro se pristine at the CAVC with your brand new pedigreed law dog is blatantly obvious. Everything you stumbled through and managed to screw up or forgot to mention at the RO or BVA is forgiven . You mouthpiece can paint a glorious picture that, but for poor Johnny Vet’s ignorance, he still managed to articulate that he got short shrift and the VA squandered twenty seven years of  his life denying him unjustly.  Just because he didn’t articulate it in nunc pro tuncs and slip op’s does not give VA the right to hold him to a standard like Clarence Darrow.

Imagine a guy like Malcolm who went all the way up that mountain by himself and came back to see another legal day. If and when VA ever starts treating us (and our claims) like real human beings, we’ll be in trouble because we won’t get all these special dispensations for being in a nonadversarial, veteran friendly environment where unicorns dance under the rainbows.

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About asknod

VA claims blogger
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3 Responses to FED. CIRCUS–COMER v. PEAKE(MD)–VSOS ARE NOT LAW DOGS

  1. Kiedove says:

    Brilliant walk-through this case. The law (real law) and Congress are the only real hope for reform and the latter are hopeless fools. Veterans dealing with the VA don’t have money to fill Congressmen’s campaign war chests (which they can keep whatever they don’t spend, I’m told), but they can vote. The real reform action does seem to be with the courts (real courts). But outside of ASKNOD, and the legal professionals, not many veterans are being exposed to this kind of detailed analysis laid out in terms we can follow. Really great.

  2. Randy says:

    And yet those chuckleheads continue to beat that worn out carcass. I guess they subscribe to the 21st century thinking of, “if you cannot get it right lo these many years never back down” really confusing as to their methods or “reasons”.

  3. karen stern says:

    Whew…..

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