What would you do if you tried to reopen a claim for Asbestosis or-what the hey- hammertoe, and they refused to reopen it? Hell, it happens all the time. But try this one on for size. You file to reopen and VA fights you from one hedgerow to the next all the way to the Court, all the while telling you you have not presented new and material evidence to do so. In a desperate attempt to avoid allowing said reopening, they opt to give you another C&P to prove you do not deserve it. Meet Joseph E. Barnett.
Joe Barnett was a squid lifer from 1951 to 1970. Considering how much asbestos they used in ships back then, one wonders how he could not be suffering from it rather than the obverse. When I see these things, I point to VA math and say that anyone who could come up with that convoluted regulation can rationalize anything. And somehow they did-more than once. This is a reopening of a prior, denied claim and means he attempted this at some time in the past with no luck. This often sets the tone of the discussion and creates a “deaf ear” syndrome within the VA.
New and material evidence, for VA purposes, is a low bar to overcome-or should be. We are constantly lulled into complacency with the assurance of nonadversarial justice that will permit even the wildest and woolliest of stories to substantiate our claims. VA is supposed to perform due diligence, even with a smile on their faces, and at least pretend to entertain our requests. With the credibility problems of promising all manner of reform these days, the casualty is the Veteran with a “marginal” claim. Quite simply, a lot of babies are being thrown out with the bathwater and no one is complaining-least of all the babies. This explains why 85% of us lose by the way. We don’t appeal.
Joe arrived at the RO, probably back in 2007 or so, and attempted to reopen with nothing more than a lay statement that a nurse had opined asbestos “could definitely have caused chronic obstructive pulmonary disease (COPD) or at least made it worse”. Most of us who help Vets would probably focus on the word “could” in the prior phrase and cringe at his prospects without a nexus letter tying his COPD to asbestos.
VA has a job to do. Granted. They are inundated with claims and foolishly either refuse to hire enough people or abuse them horribly such that some quit in exasperation. Whatever the case, being behind the eight ball seems to be their lot in life for the last 200 years. This does not give them the right to revamp the rules on reopening claims or to unceremoniously toss out lay testimony as being speculative simply because it is unsupported by the medical record (in VA’s mind).
Always remember, fellow Vets, new and material evidence submitted to open and even more importantly, to reopen a claim, is assumed to be credible for purposes of testimony. By serving America, they will at least allow us (on paper) to get our foot in the door to look at this with an eye to approving the reopening. It is a low threshold to get over-or was intended to be by no other than Congress. Only after your request to reopen the claim is granted should the second facet of the jurisprudence kick in. By that, I mean a genuine weighing of the new and material evidence to determine if it is credible. When you scream that the sky is falling like Chicken Little, VA is at least required to accept that you believe it is falling before telling you you’re full of hooey. Joe didn’t even get close to that polite consideration.
Here, the Board determined that the appellant’s October 2008 lay statement “[e]ven if true, . . . is speculative and does not amount to new and material evidence sufficient to reopen the claim” and that he “was told on multiple occasions that he needed medical evidence showing a current lung disorder is related to service, including asbestos exposure.” R. at 15. The Board also determined that the October 2008 statement did not trigger the duty to assist under Shade and McLendon v. Nicholson, 20 Vet.App. 79 (2006), as the appellant “failed to provide a medical opinion from the nurse or nurse practitioner” and “VA provided [him] with another pulmonary VA examination [in April 2010,] during the course of which the examiner provided a medical opinion expressly rejecting the suggestion that [his] current COPD was related to service or his exposure to asbestos during
service.” (Barnett v. Shinseki 2014)
This is where VA stubbed their toe. Veterans Law Judges (VLJs) remind me of little kids who get all dressed up in daddy’s pants and shoes and strap on a tie. We can forego the image of one in robes like Judge Judy because they don’t wear that attire. They’d probably like to but it’s like “all dressed up but nowhere to go” on the Titanic. They don’t hold court and have an audience. VLJs are not ready for prime time justice. They mean well and they look auspicious like judges but the similarity evaporates when they open their judicial pie holes and spout nonsensical gibberish. The unnamed VLJ who authored this abortion went so far as to discuss evidence that was not even a matter of record in the Record Before the Agency or what we call the RBA. When you do that, you are guaranteed to get a rise out of a CAVC Judge like a small mouth bass going after a #2 Mepps spinner in May. Here’s Judge Lance’s take on it in footnote #1:
Secretary’s Br. at 19. The Court is precluded from considering any material that is not contained in the record. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court shall be on the record of proceedings before the Secretary and the Board). Nor is the evidence offered by the Secretary the type of information warranting judicial notice. See Monzingo v. Shinseki, 26 Vet.App. 97, 103 (2012) (“The Court may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute.”); Jones v. Shinseki, 26 Vet.App. 56, 64 (2012) (treatise evidence should generally be weighed by the Board in the first instance). Therefore, the Court may not and will not consider any of the Secretary’s arguments premised on extra-record evidence. (Barnett supra)
This is the kind of thing that separates the poker players from the ribbon clerks. It’s also illustrates graphically why 1) we have a CAVC and 2) why this VLJ is never going to be nominated to the CAVC bench. Here’s another major face plant.
In making these determinations, the Board erred as a matter of law in several respects. First, requiring the appellant to submit medical evidence, rather than accepting his lay evidence as credible, violates both this Court’s holding in Justus and the Federal Circuit’s holding in Davidson v. Shinseki, which “explicitly rejected the view . . . that ‘competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis,” 581 F.3d 1313, 1316 (Fed. Cir. 2009).
You can see where this VLJ’s judicial notions make his juris doctor’s degree appear to have issued from a box of Crackerjacks. The second half of Judge Lance’s ire falls on due process.
Second, by invoking the April 2010 opinion as a rationale for why the October 2008 decision did not trigger the duty to assist, the Board essentially weighed these new pieces of evidence against
each other without readjudicating the appellant’s claim on the merits. Cf. Justus, 3 Vet.App. at 513. In essence, the Board determined that reopening was not warranted, as the proper course of action on reopening would be to provide the appellant with a new medical examination, which the RO already did. The flaw in this reasoning, however, and something clearly illustrated by the parties’ briefs, is that the Board precluded the appellant from obtaining meaningful review of its decision. By relying on the April 2010 examination to find that the appellant’s October 2008 lay statement was not new and material without reopening the appellant’s claim, the Board conducted a weighing of the evidence but precluded the appellant from challenging the adequacy of that evidence as to the merits of his claim.
Let’s parse this in DickandJanespeak. Our VLJ tried to rubber stamp the RO denial with the path of least resistance-merely cutting and pasting in legal precedent with no basis in fact. Joe attempted to reopen his claim. The RO went into denial mode instantly. In their haste to run him off, they even gave him a C&P and convinced the C&P doctor to agree with them. That C&P became the raison d’etre for the refusal to reopen. The attitude was that “You didn’t bring enough evidence to us to reopen and just in case, we proved you didn’t because the C&P doctor said so. This is putting the cart before the horse. You are not permitted to create negative evidence to deny a Veteran anything-least of all a legitimate attempt at reopening an old, denied claim. Yet this is the caliber of justice we are subjected to and VA considers it not only nonadversarial but the best justice in town. I think it’s the best justice money can buy down at 810 Vermin Ave. NW 20420. Remember, The VA Secretary signs the checks there so justice is what he says it is.
I counsel Vets to examine everything they get from their Regional Office when denied. VA is so inept, they tend to give us the tools with which to rebut their shoddy justice. Likewise, anything issuing out of the BVA is similarly suspect for exactly the same reasoning. Here’s a bright line example. I sent in new and material evidence with my NOD in November 1994. It was date-stamped 7 December 1994 and dutifully entered into my C-file. VA unceremoniously sent me out an SOC a month later and acknowledged they had received the evidence. This was assumed to be credible until they had an opportunity to examine it. They never did. When I reopened and won in 2008, they categorically denied I had sent in anything in spite of it being there large as life. Excuse number two was that they reviewed it but it would not have changed their decision. Excuse number three was that I had failed to submit a Form 9. Each excuse became more feeble than its predecessor. No one even bothered to accomplish the simple task of thumbing through the c-file to ascertain this error until March 3, 2013. They were still willing to go to Court until my rainmaker started making noises about presenting evidence of AO usage in Laos. That changed their tone. VA is worse than the Keystone Kops. They are more entertaining than Ringling Brothers Circus and about as convincing.
I have often pointed out that I love to read about Fed. Circuit and CAVC reversals because they clearly illustrate just how far you can stretch the rubber band of jurisprudence before it breaks. Judge Lance was on the panel that decided Shade v. Shinseki which is probably why he was handed this one. One can only imagine his glee when he took the whole clerks’ pool under him out to Red Lobster for dinner and announced “Hey. It’s cut and paste time, kids. Let’s take Shade over to Vermin Ave. and TP that chucklehead VLJ’s office with it.”
The crime, as I iterated it in the Shade post was that VA screwed the Vet once at the RO. The BVA simply rubber stamped the denial with flawed legal theory and the Office of General Counsel (OGC) seconded the VLJ and proceeded to prosecute it yet again without even bothering to parse the legal significance of Shade. I take that back. They actually cited to Shade. Dumb and Dumber. This could be superimposed over Shade because it is Shade in everything but name only. How that escaped the OGC will forever remain a mystery.
Kind of like that old rag about those who refuse to remember the past are condemned to revisit it time and time again.
Of course, the other graphic that comes to my mind is obvious.