Wow. Talk about VA backlogs. Here it is. Hot off the presses. A red hot win… or is it? Time will tell soon enough when they begin the staged ratings.
BVA decision on earlier effective date sanitized
As we all know, semantics are everything in VAland. Thus even while you read of my illustrious win, you see the utter disgust dripping from the words of the VLJ, Mark Hindin, at having the Office of General Counsel bushwhack his poorly reasoned legal flimflam for the denial. Nowhere is there any discussion of the seminal VAOPOGC Precedent 9-97 or 38 CFR §3.156(b) that this hinges on. Also, no explanation for the blatant assertion about my claiming to have submitted new and material evidence after the issuance of my SOC.
My NOD clearly stated I attached the new evidence with the document. It is clearly documented in my Record Before the Agency (RBA) and there is no rebuttal of it. They merely gloss over the eight hundred lb. gorilla and move over to make room for him on the sofa. It is clearly recorded as to the time it occurred in my BVA hearing face to face as well. No one with a JD could possibly misconstrue this timeline unless… they just don’t like ol’ Asknod. I think they feel I was just too smart for my britches and a little comeuppance was in order.
Nineteen years, five months and twenty five days ago I filed my claim. I received an icy, adversarial decision today that in essence states the Veterans Law Judge had a gun held to his head and was force to relent and grant a claim he felt was unlawful. To wit,
“Although the parties (OGC and counsel for the appellant) left it to the Board to determine whether the Statement of the Case was sufficiently complete, the parties agreed that the Statement of the Case was sufficiently confusing and they could not see how the Statement of the Case would have permitted the Veteran to provide an appropriate response. The Board is bound by the stipulations and instructions contained in the Joint Motion.
As such, the Board is constrained to find that the January 1995 Statement of the Case did not comport with 38 CFR § 19.29, and therefore that the November 1994 rating decision did not become final. The appropriate effective date for the grant of service connection for Hepatitis C is March 31, 1994, when the Veteran filed his initial claim and by which time entitlement had arisen.”
Ah, mea culpas. How sweet thy sound. Five years and five months to get them to admit it after they finally granted in June 2008. What is amazing is the semantic sweater they are weaving to say I failed to file my Form 9 on part of this (Porphyria Cutanea Tarda) in 2010 while I was an inpatient in the Seattle VAMC. They maintain that I am not entitled to that date back to 1994 because I failed to appeal it ( a decision not yet made in 1994) in 2010. Sound confusing? Or, how do you file a substantive appeal on a decision that won’t be in appellate status for another fifteen years? You’ll need to borrow a DeLorean with a bodacious Flux Capacitor to make this legal epiphany work. VA really doesn’t see the dichotomy in all this. That’s what Adobe Acrobat is for.
By the way, Miriam Webster defines constrained as:
con·strain
transitive verb \kən-ˈstrān\
: to limit or restrict (something or someone)
: to use pressure to force (someone) to do something
b : to restrict the motion of (a mechanical body) to a particular mode
Seems not everyone down at the BVA Ranch is all smiley faces today. There is no joy in Vermin Lane this evening. Mighty Mark has plumb struck out.
And lastly, we would not be having this discussion if not for the prodding of a woman-Cupcake. She was the enlightened one who said “Hey. Did you hear that? Charles Kuralt just said something about Porphyria Cutanea Tarda and how it’s related to Agent Orange in Vietnam.” That was April 1992. Like any normal man, I procrastinated until I went in for an Agent Orange Registry exam in September 1993. Smooth move, Exlax. Thank goodness for the significant other other in my life, Charles.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
Well done that man.
Don’t have to say how pleased we are with the way this is heading. I’m up to page five and need to stop for a moment. So can you submit things via electronic records AND paper for the same claims? Also, I noted that they must “look at all communications” formal and informal. On Nov. 1, you posted about the VA’s move to make everyone submit things on their forms or they would be invalid. Not good for vets.
https://asknod.wordpress.com/2013/11/01/va-nod-forms-or-nothing/
Interested people can protest this rule until 12/31/13.
And we can post comments online on this lousy rule:
http://www.regulations.gov/#!home
______________________________________________________
AO81 – Proposed Rule – Standard Claims and Appeals Forms
http://www.regulations.gov/#!docketDetail;D=VA-2013-VBA-0022
Here’s the comments they have so far:
http://www.regulations.gov/#!docketBrowser;rpp=25;po=0;D=VA-2013-VBA-0022
You can post anonymously!
Well done
This is so confusing I no longer know whether to be happy for you or not.
Congrats, Nod, with a Caveat:
I dont like to rain on Christmas parades, but it doesn’t hurt to bring a raincoat just in case:
A win at the BVA does not always translate to a win at the RO!! Somewhere in between the BVA and the RO implementation, there is still another trap, unbeknownst to Vets. Its precisely that one I am trying to pull out of. It seems the RO can “interpret” the word “Remand” to mean “delay until you die”.
Standard practice is to repeat the ditty “Knick, knack, Paddywhack. Give the Vet a bone. Wait until he’s dead at home.” I expect they’ll offer your favorite lollipop with no lolly attached. What I truly suspect will be a denial of anything related to PCT in 1994 based on the flimsy pretense I failed to timely appeal in 2010. Hence the reference to the Flux Capacitor. Earlier effective dates are much like CUE. All of a sudden the starting date conflicts with later jurisprudence creating a “Which came first? The chicken or the egg?” scenario. VA, being nonadversarial, takes the position I’m damned for something in 2010 that has only now been recognized as incomplete in 1994. Suddenly, void ab initio is no longer in their vocabulary.
He was worried that his contribution to the WWP heads of state would be less than last year and boy howdy you sure don’t want those fellas missing out on the au jois do ya? Glad that you did win some of it outright though ole bean.
Shoot, bubba. This is just the beginning. “Fish on!” as we say in the Northwest. I’ll let them stumble through an initial Fenderson and then file a NOA back to Candyland. The PCT and phlebotomies are more documented than my Hep back then.This is my John Paul Jones moment. I am glad it came to win before die though.
once again, WE see that the VA Hates US, here you are sick as Hell and are THEY making your life Better? HELL NO, This was like pulling a Bad Tooth, It did not want to come out. How does Joe Vet Fight this kind of Crap, you have to have a Law Degree, to get a dog in the fight, sometimes I wonder how THEY sleep at night, But when you are EVIL, I guess its easy. What goes around, comes around.
Congratulations Sir Nod. A most excellent WIN indeed.
You gave the vA enough rope to “Constrain” themselves.
They painted themselves into a corner and “Constrained” themselves.
I am happy for You; and glad this is finally over.
This is a most wonderful Thanksgiving and Xmas present.