CAVC–MURPHY V. SHINSEKI-MURPHY’S LAW STILL REIGNS


imagesI often wonder if the original Mr. Murphy ever considered his future enshrinement in the Hall of Giants when he began compiling his laws. I wonder if there was one that covered this sorry mess. Some of us struggle to shepherd our claims intact to a sane judge in DC to render judgement.  Encountering stupidity of the following magnitude would be the absolute last thing we would expect. Having the Murphy sobriquet must have been the trigger. Either that or one of the good Veterans Law Judge’s staff attorneys has a macabre sense of humor.

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download (2)George D. Murphy enlisted in the Air Force (wisely ) and pursued a thirty-year career. When he separated, he filed for sinusitis and was issued a 10% rating in 1984. Sixteen years later, he petitioned for an increase and was denied. As do most of us, he failed to appeal and that went down the tubes.  In 2003, he refiled yet again, probably after reading up on the procedures on how this all worked. He was Air Force and they are picky about your being able to read and comprehend. As usual, he got the typical denial and a long wait while they prayed he’d get bored and walk away. This time was different. George wasn’t going to listen to the VSO tuki tuki bird.

Even with no big VA backlog, his claim slowly wended it’s way to the Board of Veterans Appeals for four years. He got his five minutes with the Judge in February 2010. After all that interminable delay, the BVA promptly remanded it for a new C&P exam to find out what had transpired in the intervening seven years while the claim grew dust. Such is the pace of VA justice that when you finally get your day in Court, your claim has to be sent out for a reassessment because you aged so much in the interim. It’s also pretty scarey when nobody, including VA, thinks much of it when Vets have to wait that long.

At the VA, if you have signed a waiver of review in the first instance of any new evidence presented, the Board’s very own private Regional Office called the Appeals Management Center (AMC) is authorized to do all this and make a decision without remanding it all the way back to your own RO for a new decision at the local level. This was supposed to be a time saver when instituted in 2004. It has now devolved into a miasma of remands for all manner of problems and is sometimes no faster that just remanding back to your own RO. Vets have even nicknamed it the Black Hole. I still think they are a step above local ROs. They don’t have Binford 5000 Shredomatics installed desk-side so your evidence actually does make it into the file. The quality of the raters is above par, too. The last thing you want is a Gomer Pyle FNG doing it.

Mr. Murphy’s remand disappeared into the Black Hole but in six short months he got his 30% rating. This was a watershed moment as it now added to his rating total to attain 100% combined and a hefty pay raise. Most Vets don’t know it but VA pay is $1,857.76 per month for 90% with spouse and without rug rats. 100% is $3,017.60 – an almost $1,110.00 + difference monthly. Annually, that’s a pay raise of over $12,000.00. And here is where our Mr. Murphy ran afoul of his namesake’s Laws.

An old decision called AB v. Brown  6 Vet. App. 35 (1993) held that a Veteran who appealed for a higher rating was appealing for the highest rating attainable and not just the one above the current one he was being compensated for. The reason they used the initials AB is that the claimant wished to maintain anonymity- perhaps because the disease or injury was to a private part or the clap. The CAVC is tasked with making the determination as to whether the request is granted. Not all are. Thus Mr. Murphy’s claim was required to be sent back up to the same Veterans Law Judge who remanded it for a determination as to whether the increase from 10% to 30% might not be premature. In fact, Mr. Murphy was entitled to an appellate determination, under the auspices of AB v. Brown, as to whether he might be entitled to 50% (or higher). But under no circumstances could the VLJ lower the rating. Shoot, that’s against the law in all 57 ROs including the Black Hole. 

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We are protected against this injustice by many statutes and regulations. Once we get a rating, we own it. After five years with no appreciable improvement, VA needs dynamite medical evidence to dislodge it. Under no circumstances, can a VLJ start disassembling it at the BVA level. They’d have to remand yet again to have the RO or the Black Hole execute that dirty deed. Besides, by law, you have to have a medical exam or two to reduce a rating and be given sixty days to respond to this injustice following notification. In fact, the list of judicial faux pas runs into eight pages or more.

Finally, under the due process holding of Cushman v. Shinseki, we have a vested right in our compensation payment. Any decision to rescind or abrogate that must be based on fraud, clear and unmistakable evidence to the contrary and a denial in the first instance down at the Regional Office level such that you could appeal it upwards properly. If the BVA started doing this on a regular basis, you’d be unable to combat it or even rebut it with new and material evidence when it arrived at the Court.

You can see what this looked like when it came through the mailroom at 625 Indian Ave. NW. The chief Law Clerk up there, Gregory Block, is an old Army war horse. As would be expected, everyone around there is sporting a JD after their name- even the janitors. His is from Seton Hall and certainly one held in high regard. It can probably be said that the Gregster was alerted in short order when Mr. Murphy’s NOA crossed the threshold. This was a golden opportunity to make the BVA, and by extension, the whole VA leagal beagle kennel, look like rank amateurs. By allowing this out the door of the BVA without more scrutiny and oversight, they were advertizing the bona fides of their inferior Juris Doctor degrees for all to see. Appearance is everything in this business. If you look like a boob and act like one, you’ll get laughed right out of the court. No one will treat you seriously. Your legal theories will be ridiculed from then on even if  they are sound. Your credibility will be so compromised that you’ll even lose your own kids’ respect. You might as well advertize your membership in the Flat Earth Society.

Let me put it in perspective. Each level of jurisprudence considers itself more erudite, more educated, more highly paid and lastly, mo’ better than the traffic cops beneath it. As your claim rises to each new level of review, it is supposedly vetted for proper judicial procedures to make sure you, the claimant, were not disenfranchised. Translated into DickandJanespeak, VA likes to make sure they screwed you over perfectly legally (in their own mind) before turning it over to the CAVC on appeal.

As the CAVC is not part and parcel of the VA proper, they are not swayed by VA’s desire to cover up their errors and stupidity. Some colossally big ones like Leroy Macklem’s sometimes get out of the Pandora Box at Vermont Ave. NW but VA strives to conceal them via Joint Motions for Remand (JMR) to quietly whisk them under the carpet.

Mr. Murphy’s case gets the front stage, three Judge Panel treatment because his Veterans Law Judge illegally attempted to play Judge, Jury and Executioner over something he had no legal authority to address. However much his distaste for the AMC’s decision to grant George 30% for nose itch, the VLJ cannot summarily reduce it on his own. This is mission creep in CAVC parlance and Greg the Bouncer spotted it for what it was from the getgo. And like a dog with a bone, once apprised of the enormity of the BVA’s lack of legal talent, they weren’t going to let this one go until every VA Law Review magazine had all the juicy details.

110For that reason alone, cases like this get the reversal treatment. The CAVC Judges are not vindictive but when you cross that line from sloppy jurisprudence into judicial mis/malfeasance you can be confident of being brought back down to earth with a rough, caustic verbal tackle. As usual, Meg Bartley got the author honors on this one. Seems she’s been the author or Single Judge decision maker on quite a few reversals in her short tenure at the Court. It’s so refreshing to see someone who set precedence with their mere presence and interpretation of law while in charge of the NSVLP’s Veterans Benefits Manual authorship finally doing so from the bench.

We look forward to more of the same. Every Veteran should hire a soothsayer and tea leaf reader to find the most auspicious time to file their Notice of Appeal in hopes of drawing St. Meghan. If you have a valid claim, your chances of bringing it to fruition skyrocket in her courtroom.

About asknod

VA claims blogger
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3 Responses to CAVC–MURPHY V. SHINSEKI-MURPHY’S LAW STILL REIGNS

  1. Susan Stinnett says:

    would love to get someone to finally get DRO to actually read the files before denying. Denial for IU for not meeting 70% requirement when he had been 70% for years. Admits he did meet 70% but denies because APRN examiner had access to medical records that private physician did not. His “private physician” is a 16 year VA doctor who’s specialty is for what his claim is filed for, that has seen him for about 10 years. All types of files and letters on VA letterhead is in the record. Are they not taking time to even read the basic records? We are at almost 3 1/2 years since filing for what his doctor says is a “slam dunk”!

    • asknod says:

      Unless, or until, you carefully lay out the events and the timeline each time you file a new motion, I doubt you’ll get any traction. After reviewing my c-file during my appeal, all the pertinent information and relevant regulations/statutes were cited yet VA continued to plod along on the same wrong path citing the same wrong regulations. Not until arriving at the Court did the VA bother to consider my viewpoint, Once they did, they readily admitted their error and begged for a settlement out of Court. This is the standard procedure. Lie and deny. Better yet, ignore the pertinent regulations and base your whole denial on the wrong legal standard. When caught, apologize and ask to be allowed to “make it right”. This legal epiphany is encompassed in the Court’s holding that holds that Justice delayed is not Justice denied. Better late than never in VA’s eyes. Better yet if you die while fighting it. Then your spouse has to start all over instead of picking up where you left off.

  2. Karen S says:

    She is a breath of fresh air in this old boys network.

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