After Kyhn v. Shinseki finally got to the bottom of the fact that VA really has no procedure for making sure the VAMC or whoever sends out a letter to a Vet informing him of a C&P, we would think that Will Gunn would review all the upcoming cases and accomplish some triage to prevent what is happening to Lewis Collins III. Thank goodness it landed on Meg Bartley’s desk. She at least understands law and is not blindly stamping ‘affirmed’ on anything that doesn’t meet her high standards for BVA necktie parties.
Lewis here has been sideswiped by one of the oldest tricks in the VA repertoire. I speak, of course, of the habit of claiming they sent you a notice for a C&P and you never receiving one. This of course then allows them to autodeny claiming you were simply too lazy or forgot to show up. That it happens so frequently ought to be a red flag. Here, it is almost humorous. Implying a 22 year lifer missed an appointment is ludicrous. The difference here is the fingerprints all point to a well-intentioned plan to mail a C&P request letter and then an important request for documentation in the off chance he failed to report. One problem- no evidence. As they say down at my Chinese Drycleaners- No Tickee-Nooooo Laundly.
In a September 8, 2010, letter, the VA Appeals Management Center (AMC) advised Mr. Collins that it “will be developing additional evidence concerning your appeal, recently remanded
by the [Board] on July 22, 2010.” On the second page of the letter, under “Important Information,” the AMC wrote: “We asked the VA medical facility nearest you to schedule you for an examination in connection with your claim. They will notify you of the date, time, and place of the examination. If you can’t keep the appointment or want to be re-scheduled, contact the medical facility on the appointment notice as soon as possible.” On September 8, 2010, the AMC asked the VA medical center (VAMC) in Columbia, South Carolina, to schedule Mr. Collins “as soon as possible” for VA examinations in compliance with the Board’s remand decision and further requested that, “[i]f [the] veteran fails to report for examination, please provide a copy of the exam notification letter.“
Watch these dates.
A September 29, 2010, printout from VA’s Automated Medical Information Exchange system noted that the hypertension and joints examinations were cancelled on September 21 because Mr. Collins had failed to report. The AMC sent a letter dated October 18, 2010, to Mr. Collins, informing him that VA was still having trouble locating his SMRs, suggesting alternative evidence for him to submit and stating that if VA did not receive new evidence or information a decision might be made on his claims after 10 days. An AMC document dated October 18, 2010, notes that there was no answer when an employee attempted to contact Mr. Collins.
Again, notice the dates. Mr. Collins III had now received two letters. One informed him of an upcoming C&P (yet to be scheduled) on September 10th, and one telling him they would hold the record open for ten more days from October 18th to allow new and material evidence. Nowhere in the October 18th letter did they mention his failure to appear. Since the odds of VA ever calling you to discuss your claims are miniscule compared to your chances of winning at Powerball Lotto, Mr. Collins III’s failure to answer a telephone call is not grounds to give up, piss on the fire and call in the dogs.
Kyhn IV stands for the proposition that VA has no published regulations about sending out C&P notices or recording the mailing of them by placing a facsimile letter in your C-file. The presumption of regularity is pretty tough to overcome and VA has been abusing the concept for a century. If they say they mailed it, in their myopic view, they did. With C&P letters, they’ve just rolled over us like a truck and claimed they did. When the VA Secretary was finally called out on this, he got affidavits from two gals who worked in that arena but he violated the codicil about adding evidence to the record after the hanging was over. See Kyhn .
Collins versu Shinseki stands for the proposition that Kyhn jurisprudence is still in flux so they really can’t use it for much until it’s done and out of the oven. It also stands for the OJ Simpson theorem that if the glove doesn’t fit, you can’t convict. Perhaps the AMC would have had a more airtight case had they not asked that a copy of the C&P request be associated with his c file. Idiot’s delight. VA is in such a panic these days to create evidence trails to substantiate their misfeasance and ineptness that they never follow through on anything.
And then Meg the Mugger lays into VASEC.
There is no copy in the record of the letter purportedly sent to Mr.Collins notifying him of scheduled September 2010 VA examinations, despite the AMC’s request to the VAMC that “[i]f [the] veteran fails to report for examination, please provide a copy of the exam notification letter” .
The Court is not persuaded by the Secretary’s argument, clarified in his motion for reconsideration, that the Board was not required to provide an adequate statement of reasons or bases for its notification finding because Mr. Collins did not assert nonreceipt of the notice of examination before the Board. See Motion at 3. Specifically, he contends that “[w]ithout even a bare assertion of nonreceipt of notice of examination in the evidence before the Board, there was no reason for the Board to have addressed the issue of the presumption of regularity nor is there a factual basis for the Court to remand the issue for consideration in the first instance.” Id. at 4 (citing Baxter, supra). Again, the Court notes that a panel of this Court in Kyhn IV recently rejected this argument.
We at Asknod’s legal department have noticed it takes two or three cases (and sometime years) after a precedent is set to provoke a change in attitude. This is a classic example. From all appearances, they still haven’t gotten the hang of what Colvin v. Derwinski stands for yet.
In sum, the Court finds that the Board did not support its determination that, in the context of providing VA examinations, the Secretary satisfied his duty to assist Mr. Collins. Under Maggitt, the Court rejects the Secretary’s contention that it may not consider Mr. Collins’s arguments because he did not raise them (or assert nonreceipt of notice) before the Board. Likewise, the reasoning of Baxter does not prohibit the Court from considering the veteran’s arguments because, here, the Mr. Collins has not avoided asserting nonreceipt. As explained by this Court in Kyhn IV, this Court may consider an appellant’s assertion of nonreceipt of notice in the context of an argument that the Board failed to support its factual findings. And, pursuant to the Federal Circuit’s decision in Kyhn III, the
Court cannot determine on the present record whether the presumption of regularity applies to VA notification of scheduled examinations.
Woe betideth he he who attempts to tell the Judge how to read the law. Seems they sometimes forget that precept when they get up there and start pontificating on how the law is written. Considering their win-loss record at the Court (40-60), it would behoove them to look at their cards before they see and raise.
Read here of the latest bitchslap to Counsel for the Appellee by Saint Meghan and the most excellent continuing adventures of Bungalow Bill aka Lewis Collins III.