CAVC–HOFFMAN V SHINSEKI–REBUTTING THE PRESUMPTION OF REGULARITY


thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9As most of you know, Veterans law fascinates me. This is a late epiphany that I acquired while trying to decipher my losses over the years. Once I prevailed, it became an obsession in my desire to help other Vets. I like to focus on several aspects of VA law but not to the exclusion of all others. Reversals are one of my pet peeves as is the vaunted Presumption of Regularity that the VA waves about like a virgin’s intact hymen. Additionally, having won my claims virtually by myself, I am fond of the pro se format whereby we do it ourselves.

Enter Mr. Glen P. Hoffman, pro se before the CAVC.

Glen Hoffman and the P of reg.

Granted, Judge Greenberg is the FNG at the Court but this in no way makes his judicial acumen defective or deficient. Often, when sorting through the wheat and discarding the chaff, some of the essence of our claims falls by the wayside. This is especially true at the RO and the BVA level. That it persists when it is vetted by the Office of General Counsel for legitimacy (and the error continues) is of immense concern, however. We’re talking cutting-edge legal minds or at least I thought we were. This is probably one of the underlying reasons Congress enacted the Veterans Judicial Reform Act (VJRA) in 1988. VA was engaging in railroad justice with no oversight after the BVA had inveighed. It’s quite similar to the ongoing VA scheduling “misunderstanding” where we were informationally challenged by not knowing how to schedule our medical appointments and follow up on any delays.

But I digress. Mr. Hoffman decided to file a claim in February of 1990 shortly after separating from the Be all you can be Team. He had a pilonidal cyst on his butt down there at the bottom and suffered some drainage issues. This medical aspect never actually came into play until much later. Ol’ Glen was having more trouble just getting the claim submitted. As with most of us guys, he had a brain fart and forgot to sign the Form 21-526 before clicking on “send” at the USPS. VA dutifully sent it back and asked him to affix his John Hancock to it which wasn’t an unreasonable request.

The Court has always held that the VA claims process is a two-way street and I agree. We Veterans may not be the sharpest goat in the pasture but it behooves us to either get legal help or be versed in the process in order to participate. Simply saying “They dissed me.” is not a legal defense nor is failing to follow up on a claim filing.  The Glenster stubbed his toe by not following up after signing the 526. Actually, he let it slide for seventeen years. Been there and done that. I let it slide for twelve.

Mr. Hoffman finally prevailed in June of 2008 after refiling on All Hallow’s Eve of 2007. VA granted the claim but were adverse to the idea of an earlier effective date (EED) re the original filing in 1990. I commiserate with him. I’ve been down that road. VA will fight you to the mat for these huge EED awards. I can’t say why either because it’s not even their money. Go figure. Which brings us to this latest juncture.

The Record Before the Agency(RBA) is the claims file (c file). On appeal to the Court, it is referred to as the Record on Appeal or ROA. Six of one and half a dozen of another. VA, as the keeper of the records, is entitled to the Presumption of Regularity in all they do. Thus, if the c file does not contain a document you swear you mailed in, it is assumed you are a lying scoundrel and a mountebank. This assumes you failed to purchase a certified mail receipt to prove you did, indeed, send it in. An undocumented submission, in VA’s mind, never happened.  Most Vets tend to trust the VA until they discover that they shouldn’t. Here, Mr. Hoffman came to the ugly realization far too late that VA was the mountebank.

Let’s analyze this. When you fill out the 21-526, you have not been assigned a case number. VA has vacillated back and forth with several different numbering systems. At one time, they used your military service number. In the late 1960’s the military reverted to Social Security numbers to identify us. VA followed suit and did the same. Then they (VA) went to a different method of grouped numbers-ostensibly to protect our SSNs. Unfortunately, they lose so many laptops that everybody is constantly in danger of identity theft. Lastly, they reverted back to the SSN format and that is what we have now. Considering anyone with a card reader could swipe our VA ID cards and pull off our name, rank, airspeed and tail number up until the newly issued ones came out, I don’t have much faith in their IT gurus. And as for the Presumption of Regularity, I hew to the theory that it is about as sacred as the Benefit of the Doubt doctrine.

Now, remembering ol’ Glen is pro se is what makes this pretty interesting. The Big Boys at the Office of General Counsel (OGC) thought they could roll this guy for his wallet on his EED. They trotted out the Presumption of Exlax and ran with it. Glen followed suit and pointed out that he mailed in another signed 21-526. VA had sent him back the completed copy for his files and it was notably different.   This completed one now had a case file number and was missing the annotation of “You forgot to sign here.” Yeppers. Two entirely and distinctly different 526s now inhabited his personal file (but not VA’s). Their closely guarded (and constantly supervised) c file had no such document. All the protestations of the Presumption suddenly were unsupported by hard evidence. If I were a VA employee, I would have utilized Occam’s razor and looked in the RO file cabinet for the c file immediately preceding and following his for the missing 526.

In the decision currently on appeal, the Board found that the appellant had not resubmitted his claim after receiving it back from the RO in 1990. The Board denied entitlement to an effective date prior to October 2007. The Board found that if the appellant had resubmitted his form in April 1990, then it would have been in his claims file, pursuant to normal VA practice and the presumption of regularity. See Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992). No signed form was, however, found in the claims file. The Board also questioned the appellant’s credibility in waiting 17 years after allegedly submitting the signed form to contact VA and referenced the notation on his 2007 application that he had never before applied for VA benefits.

Here you can also see the attack on Glen’s credibility (in blue). Be prepared for this any time you file. VA will search high and low for an inconsistency in your lay testimony or medical records to impugn your good name. And here is why I point out Judge Greenberg didn’t just fall off a turnip wagon after his recent arrival on the Mayflower.

Read liberally, the appellant’s arguments and evidence suggest a favorable narrative: in March 1990, the RO returned the appellant’s February form, including the notation “returned for
signature” but without a VA file number, since the unsigned form could not be a formal application. Then, after the appellant returned the form in April 1990, VA mailed him a copy, this time sensibly erasing “returned for signature” and adding a VA file number, indicating that his claim would be processed. The Board failed to address the appellant’s argument and evidence of record, stating instead that it was not required to accept the appellant’s assertions without corroborating evidence. But the discrepancies in the forms potentially corroborate the appellant’s story: if the document the appellant submitted in 2009 was in fact the same document VA sent him in March 1990, as the Board assumes, then why are the documents not identical? Because the appellant provided the Board with potentially corroborating evidence, the Board erred in failing to discuss his assertions in its opinion.

I want all of you to take notice. This is one of VA’s tried and true techniques. Simply ignore your contentions and proceed apace to a denial. As many times as I pointed out the incongruity of VA stating they had received my new and material evidence and would be making a new decision soon in the January 1995 SOC, not one soul, either at the RO or the Veterans Law Judge (VLJ) Mark Hindin at the BVA, deigned to address it. It was not until I got to the CAVC that someone at the OGC finally acknowledged they had not noticed the discrepancy. Six years of litigation with repeated reminders to look at the 1995 SOC including the 2008 NOD, the 2009 DRO Review, the 2009 VA Form 9 and lastly the Notice of Appeal to the CAVC and no one addressed my contentions. Look up “blind” in MerriamVA Webster’s seminal tome and you will probably find a picture of 810 Vermin Ave. NW. Mighty convenient time to notice it, too. Here, in Mr. Hoffman’s case, they were prepared to go down with all hands on the good ship USS Presumption. Their faith in regularity was so deeply entrenched  that they had no other viable legal defense. Well, I take that back. They did trot out what we call “post hoc rationalizations” (PHRs) which are the last gasp of logic put forth anticlimactically as window dressing to buttress a weak argument. You’ll see a lot of this at the CAVC. What’s incredible is that PHRs are a red flag. If your case is airtight, they are immaterial. Inserting them merely implies the OGC is going on the spaghetti offensive and trying to make some rationale stick on the wall of 625 Indiana Ave. NW.

The Court notes that the Secretary has provided several alternative theories for the discrepancies in the record. However, these post hoc rationalizations only serve to highlight the Board’s failure to adequately explain its rejection of the appellant’s argument; the Court will not accept them as a substitute for Board analysis. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“Litigating positions are not entitled to deference when they are merely appellate counsel’s post hoc rationalizations for agency action, advanced for the first time in the reviewing court.”

I would have been tempted to reverse this but Judge Greenberg got it right. He’s going to let the VLJ clothesline himself by further trying to rationalize how the Glenmeister got his hands on a 526 all filled out replete with a case number-something that cannot exist cheek and jowl with the Presumption of Regularity. Always remember, once you rebut the Presumption of Regularity unequivocally by the weight of the evidence against it, it comes crashing down and a new scenario has to be fabricated. We at asknod call this the Presumption of We F____D up.  downloadNo more will the carefully crafted BVA decision hold water. The VLJ cannot start plucking from the PHR menu the OGC provided at the CAVC for a backup theory either. They are stuck with this tar baby and have to do some mighty tall explaining-or they can fold up the Barnum and Bailey tent and grant his EED.

I don’t see this one coming back up to Greenberg but then you do not know the lengths VA will go to nor the money they are willing to throw at it to win their case. The Presumption of Error never stopped them before and I don’t see them learning from their mistakes any time soon. Perhaps I’m just cynical and jaded.

About asknod

VA claims blogger
This entry was posted in CAVC ruling, Presumption of Regularity, Tips and Tricks, Veterans Law and tagged , , , , , , , , , , , , , . Bookmark the permalink.

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