You’ve probably noticed by now that a decision with the word “reversed” in the ruling verbiage is a magnet to my senses. Glen R. Bergmann bags a good one here. The BVA and the RO were just not going to do a simple lead test on Buddy here. Even after a remand to do so, they reneged and started looking at the wallpaper and the clock when it came back without one. The OGC then stood behind this indefensible bulljive instead of quietly trying to email Glen to reach an amicable JMR where everything was finally done according to Hoyle. This is a classic example of VA’s out-of-control VBA on parade. In a nonadversarial environment, an olive branch can often go a long way and preserve scarce judicial resources for others in line. When Gunn testosterone and Eskinazi estrogen mix with Veterans claims, you can guarantee some interesting, wasted judicial escapades and a lot of time spent hindering the process rather than helping it.
Just imagine a Perry Mason scenario where Hamilton Burger, with Lt. Tragg in tow, dropped by Perry’s office and they all went out for a two-martini lunch. Burger could agree to drop the murder charges to involuntary manslaughter and they could reach a modus vivendi to a sentence that was equitable and just. Perry would agree and even pick up the lunch tab because the client was paying for it anyway. In that same vein, could you imagine Laura Eskinazi or one of her munchkins calling up Glen and Co. and proposing a top-drawer lead test to get to the bottom of it? Mr. Jeffrey was in the Navy. Ships had lead paint in copious quantities back then inside and out. If it still showed up in the blood, what the hey? He wins. No skin off Laura’s butt. It’s America’s money and if Buddy has gray blood, then it probably happened in the Navy. Everyone wins and another Vet gets his claim heard sooner rather than later. Yes, Virginia. In a more perfect world, perhaps.
Instead, VA decided to ignore his and his counsel Mr. Bergmann’s impeccable logic, fight tooth and nail over whether it was apropos to have one ( a blood test) and then try to drag out an old 2001 knee x ray in lieu of it and say “Nope. Don’t say that the technician identified any lead streaking in there”.
This is classic VA “I did it my Way” logic. Rather than comply, they sail the boat around the world backwards to avoid the Panama Canal transit fee. Ignored is the theory that the 2001 technician was looking for evidence of lead poisoning. He wasn’t. He was looking for a knee injury. Duh? You could have a tumor the size of Rhode Island and the VA technician is going to opine on the meniscus-not the cancer. VA’s attempt to repurpose the 2001 knee x ray as a valuable negative diagnostic tool to rate a disease runs up against the introspective capabilities of Judge Greenberg. Had Greg Block assigned this to Kasold, I wouldn’t be writing this. Jeffrey might or might not have been in transit to the Fed. Circus in hopes of a more nuanced reading of justice had that happened.
The reversal of the finding that the BVA Board “substantially” complied with the remand order is the bitchslap. Greenberg has, as does any judge, the right to summons the proper amount of umbrage to take with a VA adjudication failure. Hence the more egregious the omission of basic justice, the stiffer the rebuke. Considering they have several options that can preserve a Veteran’s right to another day in court, the tenor of the remand often expresses just how fed up Judge X is with VA’s Texas Necktie Party held in your honor.
Judge Greenberg is a sassy old fart. He retired as an O-7 and came up through the leagle beagle ranks. I doubt anyone expected him to be as pro-Vet as Bartley but he is a piece of work. Reversing the finding of substantial compliance informs the Veterans Law Judge (VLJ) below that he got his law degree whistle out of a Crackerjack Box. Reversals bite like a cat-o-nine tails. It brings to the fore the question of just how able VLJ John J. Crowley actually is if he cannot master the concept of this basic judicial tenet in thirty three pages of BVAspeak.
Obviously, the real bitchslap is the one where it becomes patently obvious that this whole thing is part and parcel of the much broader BVA denial system. When a microcosm of Vets (5,000) who appeal and come to the CAVC annually out of the 50 thousand who appeal and lose, keep coming away with a static 65% remand, vacate or reversal of their adjudications, it speaks volumes about the quality of the decisions below. As the number of claims appealed continues to rise, the percentage stubbornly remains at 65%. Why is that?
VA’s Under Secretary for Apologies, Allison Hickey, assures us that the new VBMS, due to go online any decade now, is so perfect that it regularly clocks in at 89% accuracy and does it in just months. Months, of course, can be defined in Jupiter or Saturn months legally at VA without question. 89% can be defined as all the requests for burial flags being substantially correct and timely dispersed to the intended recipients.
Considering that Congress’ temper is getting shorter and shorter with VA’s intransigence, it follows that there will be some spillover into the judicial arena. Coming up to 625 Wagonburner Lane NW again and again with the same defective interpretation of what constitutes “substantive”, “marginal”or outright gerrymandering of the meaning of “lead test” is guaranteed to get Judge Greenberg’s goatee. His scathing dissent in the en banc Pacheco decision was all the ammo Paul Schoenhard needed to get a remand from the Fed. Circus. It’s like Greenberg ( and Bartley, too) researched Westlaw and squeezed all the juice out for him. Jeffrey is no different. It’s poor BVA law as usual with all the warts and missing parts in technicolor and 3D.
Mr. Bergmann gets to notch his six shooter,. VLJ Crowley will take a remedial course in the Presumption of Regularity as it applies to VA examiners. Mr Gibson could give a flying donut because he’s going to be down the road in short order. Former 0-7 Hickey is similarly situated. I predict she’ll soon be pulling the curtain handle over her head and punching out. Maybe she can get her old job back at Accenture. Or become the director of cheerleaders back at her alma mater. Woe betide the cadets.