Many of you who come here seeking advice either do not have access to the Veterans Benefits Manual or are unaware of the VA’s M21 1MR Manual for adjudicating claims. It’s no mystery how this is done. What most Vets do not know is that Chapter 38 Code of Federal Regulations is an explanation of how to decipher 38 USC on a day-to-day basis. CFRs are dynamic and changes as jurisprudence develops. 38 USC does not change unless Congress so orders it.
The M21 manual is a how-to for VA raters to conduct their examination of your claim. As such, it becomes the de facto tool for making the actual decision. Nowhere is it written that the VA has permission to do this yet a compliant CAVC has acquiesced to the concept and now allows it. I attach a small portion here for you to read.
This proves only one thing. It is written to accomplish claims and is the primary tool for doing so. You will note references to seminal CAVC precedential jurisprudence that supports the chapter or concept. Why they are included is a deep, dark secret or a bald attempt at trying to imply objectivity and thus justice. I have yet to meet anyone in the RO who is even cognizant of the fact that an Article I Court exists above the BVA. VA does not utilize 38 CFR except to justify denial language and give you a rationale for your loss in the Statement Of the Case (SOC). The actual day-to-day adjudication is predicated entirely on the M 21. As such, it is computerized and you merely insert the facts at one end and move to the printer hopper to find out what the Ouija machine has determined. This also takes the angst out of having to deny 85% of the claimants when you know full well that most of them are deserving.
In a more perfect world, we would have a hands-on approach that would catch input errors. There would be an opportunity to spot illogical assumptions. Due to the complexity of the process and the fact that no two claims for the same illness or injury have even close to the same predicate, there cannot be a “one-size-fits-all” computer program that can analyze a finite set of facts and spit out a “if…, then…” scenario. This is why you are inevitably denied the first time out on complex claims. The honchos down in rating, having assembled what they feel is all the info that will be forthcoming, push the magic print function on the WARMS computer and out pops you poorly constructed denial using an antiquated version of Adobe Acrobat 2. This explains the disjointed, poorly constructed sentence structure with incorrect tense and dangling participles. Trying to string these sentences together, they inevitably conjoin two tails and no heads. Three-legged analyses are frequent and rationale for denials is often so incredible that VA has a hard time defending it later. Nevertheless, they do to the point of absurdity. By analogy, I’d compare it to the Thalidomide drug of the sixties- ” Something’s missing. Where’s the arms?”
The CAVC has determined that the M21 is an adjudicative tool and perfectly legal for deciding claims. Why we even have 38 CFR is a mystery if it is unused or unneeded. When you cite to it in your defense, say, on a Notice of Disagreement (NOD), you might as well be speaking Laotian in a little-used Meo dialect. VA DROs will never relate back to these contentions but proceed to merrily develop the original denial language and embellish it at great length. This is one primary reason Veterans fail in a pro se environment. You are busy arguing the apples are red and VA is insisting they are orange and have a decidedly citrus flavor with a big nose.
The M21, from all outward appearances, appears fair and benign. Nothing jumps out at you as being adversarial or anti-Veteran. In fact, every effort is made to calm the sleeping dog and not arouse him initially. In conjunction with willing VSOs, the Veteran is made to feel he inhabits a judicial enterprise exclusively tailored to him or her with adequate safeguards in place to assure objectivity, fairness and arrival at a factually correct decision. In reality, this is far from the truth. The whole ex parte process is founded on your presentation (or your VSO’s failure to present anything) of the evidence needed to corroborate your version of events. Without the service medical records and pertinent documents to work from, you often rely on your memory. Baaaaad idea. VA works strictly from the records. Lay testimony, as you can read in the small M 21 blurb I attached above, is much ballyhooed in theory but when held up to the light later, we discover VA tends to use every ploy imaginable to denigrate our testimony or that of our buddies in letters of support. I have seen the rationale for one denial based on the bald assertion that no one can remember back forty years clearly as to the inception of a tattoo in Da Nang at 0200 after a few adult beverages. Mind you, the addition of liquor to the story and the early morning hour were purely speculative on the VA examiner’s part and unsupported by physical evidence in the file. This obviously does not deter them from embellishing your denial predicated on their own life experiences when obtaining their own tattoos.
Lay testimony is one of the most often abused of any evidence submitted so it must be carefully vetted to rid it of any taint of stupidity.
VA is renowned for not retrieving that which you give them permission to seek such as civilian medical records. Unfortunately, you do not find this out until the denial or when you finally extricate an unadulterated C-file from them. You are required (or it is strongly implied that you should) to submit forms allowing VA to obtain those records you identify as being probative to your claim. In reality, they are often not associated with it. Social Security records, quite possibly one of the most probative of all, are rarely associated with your file until it reaches the BVA. When this occurs, two things happen. First, two years of waiting goes down the drain. Secondly, the claim is promptly remanded back to your Regional Office to stand in line again for retrieval of said records and a new adjudication of the claim. This little side trip is good for another one-year delay. It’s no accident. This gives the VA yet one more in basket in which to stash your claim for a year. Sometimes they send it back up and never obtain the records at all. There is no punishment mechanism built into the remand. If the RO is sloppy (and they all are) this can and will happen. The VLJ can only remand again with an admonition and a set of instructions on how to color inside the lines before returning the crayons to the box. This is why I have long advocated for what is now called the Fully Developed Claims (FDC)process. Knowing VA is slipshod and prone to this error, it behooves you to take the bull by the horns and do all the fact-finding and development of your claim. It rarely speeds things up but it ensures the record is a lot more probative and complete that entrusting them to accomplish it. Besides, it saves time by depriving them of excuses for failure to get those SSI documents.
While the BVA does not subscribe to the M 21 mantra, they do depend heavily on the C-file the RO compiles (or doesn’t). Thus we often get a rubber stamp denial that merely rearranges a few phrases to make it appear like a new document with much probative analysis and long hours of conjecture involved. Don’t buy it. At the BVA stage, you should have a much more complete assemblage of components rebutting the moronic errors committed below by the Katzenjammer RVSRs. Each error must be anally documented and a reason why it is factually inaccurate. The operable word here is ‘anally’.
Your win depends on you convincing a Judge who works for the VA Secretary. He is not impartial. He has a crew of munchkins who are paid to be adroit in the art of denial. His paycheck is signed by the agency hired to deny you. Unless, and until we get a truly independent jury to hear our claims, we will always be playing ex parte catch-up and fighting to right mistruths. I will be writing shortly about this on the latest update concerning Keith Roberts‘ long search for justice. His case is so fraught with injustice and outright malfeasance, it is hard to figure out where to start in.