Whoooo, doggies. Glen R. Bergman of Bergman & Moore spanked Willy Gunn’s Lumpa Lumpas in this contest. It was a frank reversal-as in bitchslap- administered by none other than our Lady of Indiana Ave. NW-St. Mary of Schoelen. It was also a repudiation of the absence of evidence being a lynchpin in the product of a denial. VA tends to backslide without constant prodding. Judge Schoelen simply provided the cattle prod. One thing is glaringly evident, though. VA still hasn’t grasped the concept of Colvin v Derwinski lo these twenty-odd years. The bad habits of those pre-1994 three-judge Boards with that confounded doctor/lawyer “super judge” die hard. Veterans Law Judge Thomas Dannaher had to be reminded to take off his Dr. Kildare outfit and stethoscope.
Ern L. Weaver. Gotta like that name. Sounds really down home like Montana or Alaska stock. Of course, in reality, he filed at the David Koresh Memorial RO in Whacko, Texas.
As with all denial cases, VA utilizes the most up-to-date excuse books put out by Cliff Notes©. They also plagiarize from the Allstate and Nationwide claims manuals to bolster their technique. Emanating just the right amount of sympathy for the denial without dripping it is an artform. In this business there’s just one niggling problem. Since the inception of the Court, VA has been cribbing from one lone excuse book unique to VA law. It’s about one chapter long, fifty-odd pages and has a finite set of denial tools available. They attempt variations of the same excuses over and over again without changing the underlying premise. You would think someone at the OGC would keep score and point out the losing strategies. Fortunately for us, they don’t and probably never will.
Ern was one of those guys who wanted to join up and kick some North Korean ass. He tried the Air Force Reserve but couldn’t get in with his bump hip. The Navy overlooked it when Ern showed up for the Meet and Greet at the AAFES entrance examination. This is where you were, in the words of Arlo Guthrie, “injected, inspected, detected, infected, neglected and selected.” At any rate, the Navy felt he was up to speed and accepted him. This is a seminal event in any serviceman/Veterans life. It signals that the military service you enlisted with declared you “sound in body and mind and accepted for service.” Overcoming that presumption is much like winning a clear and unmistakable error (CUE) claim. The presumption of soundness is a two-pronged test as you will read. Both elements of the presumption must be overcome with sound medical reasoning that supports the revocation of the presumption. It can’t be a nebulous argument or medical diatribe unsupported by logic. It also must be unequivocal and not a weak attempt at prevarication. Most importantly, what it cannot rest on is the absence of evidence as it did here.
Old Ern has also been accused of having old timer’s disease and not being able to keep his story straight. Again, this excuse came over on the SS Mayflower and I’m pretty sure Judge Mary has heard it so many times now that it sticks out like a sore thumb. At any rate, Ern turned the tables on the OGC because he did have “a year or more in service” as he claimed reflected on his DD 214. If these gomers at the OGC actually read over the RBA from the BVA they’d see this. Top-sheeting a claim in haste makes waste of valuable judicial resources and results in Happy Vets. Real justice would be served if they fined the gomers at the RO, BVA and OGC for filing frivolous denials.
Ern will live to see another claims day below at the RO and the BVA. His claim was reversed for the presumption that his hip problems increased in severity while in service, his back and hip denial were vacated and the whole shebang was remanded for a new decision based on real law. Veterans Law Judge Thomas J. Dannaher will have to fall on his sword and admit he’s a judicial dolt and shouldn’t be entrusted with the executive washroom key. That has to be hard to swallow. Will he learn from his mistakes? It’s highly doubtful. Unless or until Congress emancipates the Veterans Law Judges and divorces them and their paychecks from the VBA, we will continue to get this polluted justice.
The decision is valuable as it assembles all the pertinent CAVC and Federal Circuit decisions needed to bolster your legal arguments. Most of us Westlaw or Braille our way to these cites. Thanks to St. Mary, they’re all here in a tidy little 10-page, single-judge memorandum and well-documented for transferral for cut and paste. It’s my version of leagalbeagledotcom for Vets and why I translate it into Joe and Jane Vetspeak.
A warm thank you to Mr. Bergman for a case well-fought and to Judge Schoelen for her insight, wisdom and grasp of law. And a warm thank you to Ern for having the intestinal fortitude to carry this appeal through to fruition. So many file. So few appeal higher. Considering the odds are as high as 60% that you will prevail at the CAVC, why Veterans don’t appeal is the mystery.