Reversals are like high-Greek drama compared to vacaturs and set asides for remand to rehang the Vet. They always invoke the ‘aha’ moment where the Judge points to that fatal flaw of law and says “You can get away with quite a lot here and we’ll even give your reading of the regulations great deference, but this is over the top, son. You need to go back and crack the law books again because you’re way off the reservation. And be quick about it.” This coming from Judge Hagel is amusing but every Judge gets handed a case where the error against the Vet is so egregious that it demands a bitchslap. Poor Rebecca Ballard had valiantly picked up the standard where Danny Ballard dropped it when he died on the VA Hamster Wheel of Justice in August 2010.
Seems Danny had some big back/hip issues which he (and I) didn’t communicate in English to doctors too well. Since we were not acquainted with polysyllabic terms like ‘radiculopathy’, we kept getting denied. Eventually you prevail like Danny boy here did, but VA immediately gives you the newer C&P exam date for your effective date of rating or increase because that is the first time, to them, that it can be conclusively proven that you actually carried this diagnosis.
This bait and switch is so old, it predates the Cliff Notes book of VA excuses. “Oh. The hips? You never mentioned the hips, Danny. Let’s open a brand new claim for hips.” VA knows you are going to win this pissing match eventually but they try to impede the inevitable for as long as possible to make more work for all of us as near as anyone can tell.
Danny filed in 88 and won 30% straight out. He never came back to the trough for an increase until he was in serious shape. At that point, VA decided to become adversarial. Szemraj v Principi F3d (2004) pretty much invented the term ‘kid gloves for pro se claimants”. Comer v. Peake cemented it when they referred to VSO reps as ” the mailmen with the funny hats”. VSOs have a long memory for insults.
VA knows better than to play dumb. Hey, they have 500 staff attorneys all jostling for a position to move into a Veterans Law Judge slot when a retirement comes due. They learn the path to promotion is to bring in the denial for the team. When you arrive pro se, or nearly so, VA is required to inspect every possible permutation of what you might be entitled to. It’s not meant to be a “Well. You said you had a back problem. You asked for an increase for a what? A back injury. You never said anything about your hips. Now you want us to believe your hips are related to this and pay you back to 2004? Sorry. It doesn’t work that way”.
The BVA dragged it out further until Danny went to his maker. Rebecca immediately picked up the appeal and continued. When she got to the Court, I’m sure NOVA or NVLSP were more than happy to take this one on. Easy EAJA funds and no discussion of whether it was a win or loss for the attorney.
The irritating thing about this is always the fact that VA knows better than to pull this crap. It’s an art form to them. They string together phrases from a menu on an old Adobe 2 and end up with semantic coleslaw. They do convey the essence of the denial but the logic is often twisted as here. I see one problem. Someone should put them on the Lexis Nexis VBM list to receive a new one annually. Perhaps they’re just missing out on all the Federal Circuit Court stuff. Look at this and try to imagine not understanding that Mr. Ballard is evoking a request for an informal claim.
In September 2004, Mr. Ballard sent a follow up letter to VA stating that he was seeking an “increase in disability compensation and rating.” Mr. Ballard further stated
“The ability to do even the most simple things such as putting on socks and shoes is now impossible. Anything that requires bending my legs at the knees, hips, or the combination of both[,] is almost impossible. Climbing stairs, walking even small distances, sitting[,] and getting up from the sitting position is extremely painful.”
Hey, that didn’t faze the raters. They sharpened their pencils and warmed up the M21 Ouija Board.
In November 2004, the VA regional office denied Mr. Ballard’s claim for an increased disability rating for his back disability. The rating decision did not consider entitlement to benefits for a hip disability. Mr. Ballard filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In his April 17, 2006, Substantive Appeal, Mr. Ballard indicated that he
believed his hip problems were related to his service, which VA construed as a new claim for benefits for a bilateral hip condition.
Sure enough, a whole new claim for the hips materialized and finally, in November 2007, five years later Mr. Ballard finally got the popsicle stick without the pop on it. Had VA gone back to 2004 as they legitimately should have, he and Rebecca would have picked up a tidy $90,000 check and an effective date of 2004. VA wasn’t having any of that. Ignoring precedence, they treated old Danny and Rebecca like a couple of Perry Masons and gave them no kid glove treatment whatsoever.
The decision wisely mentions the Clemmons precedent and with good reason. Mr. Clemmons was similarly vocally challenged and had difficulty diagnosing himself mentally. VA ‘fixed’ it for him with a new diagnosis and a new effective date much more recent like Danny’s but he finally prevailed after proving he wasn’t a psychiatrist. A great read.
Using Brokowski v Shinseki 23 Vet. App (2009) brokowski.349-wp- as the canvas to paint this decision, Judge Hagel clearly shows the error of the BVA and ROs ignoring the screams of an unrepresented Vet. Worse is to purposefully misconstrue the word “hip problems” used throughout the course of the accretion of evidence as merely a problem but not a problem specifically rising to the level of a VA claim. Using this logic, the BVA Veterans Law Judge Milo Hawley referred to Rule 75-The Vet didn’t actually vocalize the phrase ” I want to file for my hips.” In VAland, that means you blew it. VA just hates informal claims because the whole concept means they have to perform due diligence and actually check all 2000 of your body parts, not just what you are asking for a raise on. And if you say your hips hurt, they have to acknowledge it.
As usual, at the end, every Judge has to slip the knife into the back between the seventh and eighth ribs deeply. Judge Hagel adroitly plants the shiv into Milo Hawley’s back with gusto in his parting sentence:
Accordingly, this matter is remanded to the Board with instructions to determine the proper effective date for the award of benefits for bilateral hip vascular necrosis. In this regard, however, the Court notes that Mr. Ballard submitted his informal
claim on September 2, 2004, and the examination that first revealed a hip disability was conducted on September 25, 2004. This is a factual question to be decided by the Board in the first instance.
Such is VA justice. Hagel takes great pleasure in rubbing it in. Hell, he even tells VLJ Hawley what the correct earlier effective date should actually be to the day.