We have rules we live by. We have rules for appealing. We cannot modify the rules to “fix” what we forget in a judicial forum. If we appeal to a higher tribunal at the VA, we are allowed to add new and material evidence only up to, and including, the BVA. If we do not prevail there, we appeal to the CAVC but it can only be based on two basic theories-errors of fact or errors of law. We’ll leave prejudicial actions out of this list for now.
Overcoming an error of fact is difficult insofar as the CAVC is not an investigative body. As they are so fond of iterating, they are not a Court of equity nor are they a trier of fact in the first instance. Unless the preponderance of the evidence points to a clearly and unmistakably erroneous conclusion, the Court will affirm the BVA’s decision. On the other hand, an error of law is much easier to propound and indeed, more cases are overturned on this facet.
Similarly, for pro se claimants, there is a modicum of kid gloves treatment accorded us if we do forget something or decide to argue a new concept or perceived error when we arrive at the Court. Add to that the precept that VSOs are not Leaglebeagle.com and you are considered such automatically. The VA secretary abhors this because he has his game plan carefully constructed around what you are complaining of. If you then take off on a new tack and question the Presumption of Regularity as Mr. Arnold C. Kyhn did, it wrenches the monkeys at the OGC. Conflustication reigns supreme and a new legal noose must be fashioned in short order. Witness the latest Texas necktie party to emanate from 810 Yellow Brick Rd. NW. This was handed down this week. The hamster wheel is in working order and Mr. Kyhn has been aboard for ten long years.
Arnie began this whole deal over a 10% tinnitus rating. He was one of America’s Greatest Generation and answered the call to combat fascism in 1945. His hearing was clobbered and in 1998 (after a protracted appeal) he got what most would say was a generous 50% rating for hearing loss. Unfortunately, he didn’t get the tinnitus ice creme on top. Speaking from a position of knowledge, my tinnitus, in no small measure, is part and parcel of my hearing impairment. When the ringing is at it’s loudest, it often interferes with hearing anything. Hence, the two are part and parcel of one injury and inextricably intertwined much like Harris v. Derwinski. Besides, we’re talking 10%. Remember that.
The Arnold didn’t file for all this until 1998 but VA, in a surprising twist, didn’t hold Maxson v. Gober against him and granted the aforementioned 50% following a BVA remand decision. What they just couldn’t bring themselves to do was give him the piddling 10% for the ear ring. He didn’t appeal it either. In 2004, he decided to come back and revisit that. Mind you, he had an excellent nexus letter (IMO) in 1998 and supplemented it again in 2004 that conclusively tied the two together. VA, as is their wont, decided the audiologist’s 2004 medical conclusions were not new and material and declined to reopen the claim. Arnold was off to the BVA again in short order measured in VA time. In 2006, the ping pong match began in earnest. The VLJ remanded the claim back to the Lincoln, Nebraska RO and positively insisted they actually do a C&P to ascertain whether his tinnitus was service connected and compensable.
This is where the battle royale began. Arnie maintained he never got the C&P reminder to show up for the hearing test. I’ll buy that. Knowing how sloppy those chuckleheads are, it’s a wonder anything ever succeeds in getting done. As per VA reg 38 CFR §3.655, if you don’t show up for a C&P, you’re screwed.
In February 2006, the Lincoln, Nebraska, RO forwarded an audiological examination request to the VA Nebraska Western Iowa Health Care System. That examination was scheduled for March 7, 2006; however, Mr. Kyhn failed to appear for the examination. On March 31, 2006, the RO issued an SSOC in which it denied service connection for tinnitus based on Mr. Kyhn’s reported failure to appear for his March 7, 2006, examination.
In April 2006, Mr. Kyhn responded to a March 2006 request for information by stating that he had no other information or evidence to give to VA and requested that VA decide his claim
as soon as possible. The matter was returned to the Board and in its May 17, 2007, decision, the Board denied service connection for tinnitus after finding that the record contained no probative evidence that Mr. Kyhn’s tinnitus was incurred in or causally related to service or aggravated by any service-connected disability. As part of its decision, the Board determined that
the Secretary had complied with his duty to assist, pursuant to 38 U.S.C. § 5103A, because a VA audiology examination was scheduled and “notification of the examination was mailed to the veteran at his correct address of record.”
We’ve discussed the much-vaunted presumption of regularity in several other decisions I’ve written up, but the interesting thing about Mr. Kyhn’s predicament was that the C&P exam request is generated, according to VA, in a computer format and a copy of the actual document mailed to Arnie was not in the c-file. Biiiig mistake. It exists somewhere “in the cloud”. Here’s the 2011 CAVC decision. At the BVA hanging, the staff attorney merely said they’d mailed it and it was presumed he got it. No document. No date stamp. Nada. Just the word of an honest VA employee reciting the procedure on how this process worked. The BVA bit into it hook, line and sinker.
When Mr. Kyhn arrived at the Court in 2011, he got the bitchslap. Kyhn 2011 CAVC decision. The Court hit the same lure and merely affirmed it. Presumption of Regularity was proven. End of story. Or not. Back the boat back up to the dock, Gilligan. Aye, Skipper. Here’s my first writeup. This was in response to the Federal Circuit reversal and remand to the Court in May of this year (2013).
The CAVC panel has now been appropriately chastised and will have to refamiliarize themselves on their own rules on the admissibility of evidence. When you arrive, hat in hand, at the CAVC, you have a sealed Record on Appeal. How else would you ever be able to decide a claim if you could endlessly add evidence to the file supporting your position? The VA Secretary didn’t feel this applied to him. The Court has always taken a dim view of this and rarely allows anything in after the BVA has spoken. They sometimes “take notice” of generally accepted principles of law or medicine but it happens so rarely that is it is materially inconsequential. Here, however, they welcomed the VASEC’s new evidence in heartily and based their decision on the Presumption of Regularity in large part on the testimony of two VA employees. The Feds weren’t buying and the whole thing came crashing down around Shinseki’s ears. Back to the drawing board.
The OGC maintains that Arnold didn’t raise a stink about the Presumption at the BVA and did not address it until he got to the Court. All well and fine. But the BVA did and that is the problem here. When you file your substantive appeal (Notice of Disagreement) you begin to shape your contentions as to why you feel you got the short straw. When you complete the process by filing your Form 9 (the second step, or what the VA calls your substantive appeal), you further refine your arguments to rebut the Statement of the Case (SOC) that the VA has prepared where they have distilled the essence of their denial. By law, VA is supposed to defend the propriety of their actions and address your contentions. They are not supposed to go far afield and drag in new things to justify their position. Most assuredly, when called on it at the Court, they are not permitted to begin adding to the record with testimonials illustrating how the system works.
The whole purpose of sealing the record before the agency (RBA or R) is to create a static document such that everyone can point to this and that as proof. If you have an electronic transfer of a request for a C&P and it is nowhere to be found in the RBA, it would be hard to say it is a matter of record. Yes, indeed you can aver that you mailed it and the P of R should attach, but absent a concrete document that can be massaged and examined for a date stamp, it is merely one person’s word against another’s. As for supplementing the RBA, that is right out. This was the crux of the argument that caused the Fed. Circus to vacate and remand. It is also the sole reason the Court was hoist on its own petard.
What will now ensue will be interesting. Will the BVA craft a new decision that somehow tries to artfully skirt this by including Madames Bash and Bunde’s affidavits that order and decorum were observed vis-a-vis the P of R? Will they simply decide too many trees have been slaughtered and this needs to be put to rest before any more P of R cats are let out of the bag? Simply put, this is a tempest in a teapot over 10% that has dragged on interminably for ten long years. It reminds me of the two drunks arguing over who was going to pay the bar bill on the Titanic that fateful evening.
Assume, if you will, that the Ahnold is married and his missus is still making life miserable for him. That nets them $888.000 a month for the 50% hearing loss. Were he to prevail on this and get his 10%, it would increase his rating to 55% and thus round up to 60. Idiot’s delight. It will mean $1120.00 – a net increase of $232.00 a month. VA has by now squandered untold judicial resources they value so dearly since 2004 in an abortive attempt to deprive an old codger of chump change. Why, in the scheme of things, they’ve paid out more in Bonus Bucks to the Veterans Law Judges, Jo Ellen Bash, Margaret Bunde (the Lincoln, Nebraska VSC manager) and a cast of thousands than they’ll ever deliver to Mr. Kyhn in his lifetime. If you throw in hourly wages and salaries on top of it devoted entirely to making life miserable for him, the cost is staggering. Didn’t anyone sit down and do a cost-analysis determination and say “Whoa. Let’s focus our resources on reducing the backlog instead of making life miserable for one Veteran.”? No. Of course not. Can you say myopic? Sure you can. Let’s sound it out, kids. V… A… Backlog…