We sure can’t blame Call Me Bob (513-509-8454) McDonald for this one. If Ric Shinseki had been minding the store and given Mr. Leonard NMI Beraud, a former squid, his due recompense, we wouldn’t have to reiterate 38 CFR 3.156 (b) again. By now, I’m sure the boys and girls over at the Office of General Counsel (OGC 027) have finally awoken to a new day and are all suffering the illness for which there is no sympathy (a hangover). It takes a lot of Scotch to drown your sorrows after a defeat of this magnitude.
Judge Meg Bartley had this dialed in sixteen months ago and the Feds just followed her script to a T. What could they do? We talked of the reinvention of the Bright Line rule after the VCAA as to what New and Material Evidence means in the new, enlightened age of VA jurisprudence. The standard was relaxed inasmuch as it became much easier to reopen a prior denied claim. We’ve discussed the duty to assist in Schafrath such that there could be no doubt what the duty to assist a Veteran consisted of. We examined Bond v. Shinseki and Young v. Shinseki thinking every permutation of 38 CFR § 3.156 (b) had been minutely examined. In spite of all this, the OGC and the BVA continue to commit the very same mistakes again and again like ADD-addled children.
What should disturb rainmakers and Judges alike is the myopic legal vision employed by Judges Alan Lance and Coral Wong Pietsch. So engrossed were they in the minutiae of a follow-on decision (by an AOJ no less) in 1990 subsuming Mr. Beraud’s original claim in 1985 that they missed the forest by only seeing the tree in front of them. It became an egregious error when Judge Meg Bartley dissented based on sound legal grounds and the dynamic duo ignored her. God, you’d think they’d have a Kumbaya Kouncil in chambers and at least look at the “big picture”. I could almost see it if it had been “Bruce Almighty” Kasold and Lance stepping on their dicks. Men do that. It has something to do with testosterone and a firm belief that women can’t chew gum, talk and ovulate simultaneously. How Coral Wong Pietsch fell down this rabbit hole is anyone’s guess. I gave her more credit for being a farthinker.
A Record Before the Agency ( aka RBA or the entire history of your claims- or your c-file) is a compendium of evidence including dates. Many attorneys will have you- a VA claimant- construct a timeline of your life from birth and list everything, including every action taken by VA by date, relating to your claim(s). This allows him/her to see the orderly flow of events and make sure everything is above board. Alan and Coral would have been well-advised to do the same or have had their ”little people” do so. It would have revealed the discrepancy of promising Leonard one thing and then denying him before he even had a chance to provide the new NM&E needed to rebut the denial. You can forgive the VLJs and their staff attorneys who got their Juris Doctorate degrees out of a Crackerjack™ box or online at a prestigious University no one has ever heard of in Nicaragua. No one expects them to get it right. The ABA keeps a tally on Judges at the appellate level in the real world. A reversal rate in excess of 8% is cause for alarm. It implies you are ignorant, have poor posture and upbringing and are most definitely NOKD (Not Our Kind, Dear) judicially. Now go one step further and add in the VA rainmakers. Imagine a reversal rate of 22-39 percent and you have the makings of kangaroo justice. Jez. Why not just hire all of America’s village idiots and call them VLJs. It would probably be far cheaper and save VA a boatload of money.
No judge anywhere -hell, no self respecting attorney- would feel comfortable coming to court with an inverted Win/Loss ratio on appeal. Except at the BVA level. Indifference and a culture of “who cares about these trailer trash Vets” is par for the course there as evidenced by Judge Laura Eskenazi’s monkeyshines now coming to light at 810 Vermin Ave. NW. So let’s take a gander at where this all went south for Mr. Beraud.
Leonard chose the Military Order of the Purple Nurple as his VSO. I did too in 2006 and felt very smug doing so. They came with glowing recommendations. I won’t go into the IQ of VSO service officers. Suffice it to say none are going to qualify for Mensa. We (MOPH and I) parted company the day the SO informed me that tattoos were willful misconduct. I don’t have any tattoos but even if this were so, it would seem every man-jack in the Navy and Marines would be the proud recipient of a Big Chicken Dinner and still be in Ft. Leavenworth making little ones out of big ones. Leonard would have been better off if he’d called Kenny Carpenter early on. Perhaps he’d have been on Bucks Boulevard a whole lot sooner.
The BVA’s esteemed Veterans Law Judge (VLJ) Kathleen K. Gallagher was assigned this case. It’s apparent from the lead-in verbiage that Leonard’s Service Officer had the IQ of a goat. He flubbed the Form 9 and forgot to appeal some of the other contentions which were denied. He brought up rather late in the day the idea that CUE was involved in the 1985 decision. With the sure knowledge of Fenderson at his back, the chowderhead VSO chose to fight a battle with no bullets. When you prevail, the whole history of the claim is laid open and the VA is obligated to examine it in a new light. Could be with the Excessive Awards Program in place at the time (2007) that this had a snowball’s chance in hell of ever panning out anyway but you still cover your bases. There was no need to look at 1985 as CUE. It needed to be examined in the light of 3.156(b). Unfortunately for Leonard, the SO was unacquainted with VA law and thus never even advanced this argument. A good attorney would have in a heartbeat. This is where that timeline would have exposed the error.
Looking at the BVA decision (Beraud BVA Decision), nowhere is there any discussion of 38 CFR § 3.156(b). It’s AWOL. The Conclusions of Law were all off base. Poor Leonard had been denied based on CUE and a brief gloss over of his “SMR”s being of record in the c-file. He and his representative were arguing apples while Kathleen was nodding sagely and saying “Roger that. I copy Oranges, over.”
In retrospect, considering no one was defending Leonard here, it’s a miracle he found his way to Amy Odom over at NSVLP. She’s an up and comer and some day may be hanging her hat over a 625 Indiana Ave. NW with her sidekick Meg Bartley. Offering praise where it is due, we also compliment Mary Hoefer on shepherding this through the CAVC and presenting it in a cogent manner for future appeal.
You can’t help but think of that old ditty “For want of a horse the battle was lost.” Fortunately, Mr. Beraud survived and finally got his 1985 effective date. But that is not the end of the matter. Beraud is soon going to become a household name around the VA and in law dog circles right up there with Walker, Colvin and Gilbert. With each examination of 38 CFR §3.156, be it (a), (b) or (c), one thing is becoming apparent. It is one of the least understood regulations in Part 3 for VA adjudicators to absorb. How they can continue to torture new meanings out of each after being excoriated for their intransigence is becoming legend.
In the short period of a decade, we have witnessed 3.156(c) finally emerge as a cutting edge tool to revise past denials. This in spite of VA’s attempted subterfuge and semantics to argue that a heretofore unseen service department record, in and of itself, should certainly not be the sole predicate for a revision of a prior denial. Prepare to see a plethora of new cases that will mirror Mr. Beraud’s. Why attempt CUE to overturn a decision in 1985 for lack of the Duty to Assist? You can’t win. Mr. Caffrey went down on that ship. The sick jurisprudence set in stone on that brain fart was that “an incomplete record was not an incorrect record.”
I predict 3.156(b) will come into it’s own soon. If you can prove you gave them the GPS coordinates in Florida where your records were stashed at a Reserve base and they deny with no attempt to retrieve them as they did here, the claim is still open. Words mean something. Written correspondence in the evidence pile supported this reversal and it was right there in front of them-all of them. Why did it take a panel of three at the Fed Circus to recognize the implications of the regulation, the timeline clearly showing the BVA and the CAVC clotheslined him and ten years to restore equilibrium to Mr. Beraud’s world? Meghan didn’t have any problem seeing it.
The immortal words from King v. Shinseki (2010) will always ring loudly here:
It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings.
I guess we could say we’re still waiting for that fabled nonadversarial, claimant-friendly VA justice a la King to materialize but it makes for a nice faery tale. We would hope that each Beraud decision builds on the presumption we are to be judged by a more liberal standard. Few offer their lives up for their nation to do with as they will. That we end up being accorded an inferior brand of justice in light of (or in spite of) that sticks in my craw. Boy howdy. It sure stuck In Meg’s, huh?