dAs most know, I glom onto every reversal that comes across the CAVC and CAFC docket. They teach far more in a short time than years of vacates and set asides. By the same token, you find more ordnance to help Veterans because this is where you find the most egregious VA errors in adjudicating claims. Since 85% of us lose our bid for stardom right out of the gate at the RO, it appears on it’s face that collectively, 25 million of us are ne’er do wells, goldbricks, malingerers and deadbeats. Oddly, that tars and feathers enlisted as well as officers. So much for that ‘officer and a gentleman’ sobriquet.
One thing enlisted folk seem to have in common is an affinity for alcohol. I dare say that fighter pilots must be included in this too, but that is not germane to the discussion here. With that affinity comes an inordinate amount of discussion about what is considered Line of Duty (LOD) and what is not. Once you’ve been shanghai’d into the service, the military actually grants you quite a bit of leeway where true willful misconduct is concerned. You get a pass on getting the clap and often a blind eye is turned towards being excessively trashed or hammered (ETOH). My Uncle Jay went up and down the promotions ladder frequently in the 1930s before signing up for the Bataan 88 Klic Fun Run in April 1942. Which brings us to Mr. Joe L. Marks.
Before I tell this sad tale, I feel it is imperative to tell you that my personal rainmaker, LawBob Squarepants (Robert P. Walsh, Esq.) has always bemoaned VA’s propensity to cast most of us as miscreants and deserving of our fates. He has repeatedly pointed out that VA legally cannot make a finding of willful misconduct twenty or thirty years down the road without some document or evidence in your military records stating as much. The practice of arbitrarily condemning you ex post facto based on 38 CFR or the M 21 manual language is not sustainable legally. Absent any finding in the military to that effect, you are exonerated. In short, it is VA’s duty to rebut the Presumption of a LOD determination and prove you were incredibly stupid when you did your swan dive off the Ferris wheel at Venice Beach in 1970. Otherwise your stupidity stands as a glorious testament (and LOD) to enlisted men’s drunken arrogance everywhere. Now to Mr. Marks.
Mr. Joe L. Marks (not Joseph) was a groundpounder of the Peacetime persuasion from 1977-85. As such, we can see he was not a three year flash in the pan. In 1980, he arrived by meatwagon at his local Army Base infirmary in a sorry state. .23 on the Richter scale is usually one of the prime ingredients Big Chicken Dinners are made of. Most of us wake up, look around and the question forms on our lips : “Dude. How did I get here? What happened?” This is why we call it the illness for which there is no sympathy. Joe wasn’t much different. In fact, after the fight that dang near gave him a concussion, he opted to get down and do some serious alcohol abuse. The key word here isn’t ‘after’ nor is it ‘before’. VA tries mightily to make that distinction so as to give wings to their willful misconduct etiology incorporated in the M 21. Fortunately he survived but the deleterious effects of concrete floors on noggins is legend. The doctor did the obligatory X rays and checked his vision. Being young and dumb, he survived for the most part but did discover he had residual injuries in the form of headaches thereafter. Fast forward to August 2004.
Joe filed for headaches as a residual of his 1980 altercation and VA promptly denied him in February 2005. As with most of us, he blew it off and then had a change of heart. He refiled in March 2006 in an attempt to reopen but again the RO refused based this time on no new and material evidence with which to do so. I mention this for good reason. In the VA game, you cannot just endlessly keep on refiling the same claim and get traction eventually. Each time you do this it become harder and harder to reopen simply because you are running out of new and material evidence to present. You want to do it once and do it right.
Joe lucked out and caught a break on appeal to the BVA in 2008 who remanded it based on the feeling he had made a case for a reopening. They put the RO on notice that acquisition of his Service Medical Records (SMRs) would be a good first step when deciding these things-specifically a determination of whether it was LOD or willful misconduct based on too much Kickapoo Joy Juice. In 2012, the RO spoke. It was willful misconduct and that was the end of it.
The RO did ask for a LOD determination from the Army but never got one. That didn’t impede them in the least and Joe got the bum’s rush.The BVA followed suit in May 2013 with the rubber stamp and here we are in DC a year later.
With the investiture of Meg Bartley to the CAVC, I remarked over a year ago that a new dynamic was going to come into play. With her background at the National Veterans Legal Services Program (NVLSP), business as usual at the CAVC, at least in her courtroom, was going to be of a different calibre. And so it has come to pass. More reversals have issued from her short tenure than in any other Judge’s time there. Judge Greenberg is running a close second but that is a story for another day.
Judge Bartley gives us a lovely education of what is and what isn’t LOD and willful misconduct. Keeping in mind the splendid isolation VA enjoyed all these years screwing Vets out of their due, it is refreshing to see the tables turned in our favor. VA has consistently and arbitrarily tarred and feathered hundreds of thousands of us as untermenschen and the dregs of society over the centuries since the War of Independence. It’s funny how badly America needs us in times of peril only to find us NOKD (Not our kind, dear) afterwards and deny on a land office scale.
Marks v. McDonald is a casebook primer on how to rebut the trash talk and smack VA will paint you with. Carefully examine his case and you see the art form VA employs to demolish his contentions. By putting his foibles on parade and listing them in the wrong order, it can be made to appear as though he got drunk, got into a fight, lost and was scooped up for the meat wagon run. In that context, it’s hard to feel compassion for his plight. Nevertheless, America has a soft spot for these chuckleheads and the Army doctor didn’t find him a reprobate or dun him for his stupidity. Nowhere will you find a determination of “not LOD” in his records yet this is what VA arrived at by twisting the facts and utilizing their superior inductive reasoning. VA is not the trier of fact in LOD determinations. That is a contemporary decision arrived at during your service-not 30 years later by a wet-behind-the-ears Rating Ranger. VA has been doing this so long they’ve convinced themselves that it is in their purvey and their purvey alone . Meg Bartley succinctly put paid to that misapprehension with her resounding reversal.
Good legal fodder is to be had here. To wit,
Holton v. Shinseki F3d. 2009
Thomas v. Nicholson F3d 2005
Myore v. Brown 9 Vet App. 1996
Once again, VA has been bridled and a sterner bit has been inserted in their mouth. This may not curb their appetite for abusing the LOD philosophy but it will remind them that splendid isolation has its limits in the new Internet world. We can’t so much as fart- let alone rearrange the VA scheduling records in Phoenix- without someone whistling loudly and pointing it out.
Many of you with Hepatitis C have been unfairly branded as drug abusers or persons of ill repute. VA is fond of pointing out a proclivity to imbibe is a harbinger of contracting HCV. How that is so is still a matter of conjecture. Does one become inebriated and fall into a puddle of HCV-contaminated blood? Can it be transmitted by sharing the same Jack Daniels Bottle without sterilizing the business end? We examined this several years ago when a Vet’s lay testimony that he smoked crack cocaine was used to arrive at a similar determination of willful misconduct and being a risk factor for contraction of the disease. VA went down in flames on that one and granted the claim but it is important to note the methodology of the denial process. Snorting cocaine in its powdered form may or may not be a risk factor but including smoking crack cocaine as a risk factor can never rise to the same level.
Hopefully, this type of kangaroo justice will abate as BVA judges become more educated. Perhaps that is an oxymoron more fitting to the RO adjudication arena but the error rate discloses they are both equally at fault. The flaw is endemic as it is clear from the M 21 where all this crap emanates from. VA utilizes the manual as the Bible of ‘how-to’ and ignores individual, unique instances where a more nuanced approach is required. Even Allstate and GEICO utilize an individual approach to their claims process instead of a one-size-fits- all cattle drive to justice.
From the M 21 IMR on willful misconduct:
“Willful misconduct in alcohol consumption cases is the willingness to achieve a drunken state, and, while in this condition, to undertake tasks for which the person is unqualified, physically and mentally, because of alcohol.
(M21 1MR, Part III, Subpart v, Chapter 1, Section D.16.A)
The M21 version, to me, has one glaring mistake. Besides describing what most of us have done at one time or another (including me) VA is attempting a post hoc rationalization of what constitutes willful misconduct wholly outside of any contemporary military or medical records that may purport to show the incident was deemed LOD. This is the incipient problem with all VA justice. This second-guessing thirty or forty years later and a “readjudication of the facts” (of which they know nothing of) has hung more Vets that we can possibly count. Meg Bartley wisely called bullshit on the practice and reversed VA’s shoddy rationale for his willful misconduct determination. He’ll get another bite of the apple at the RO on this and I severely doubt we’re going to see him back at 625 Wagonburner Lane NW.
Kudos for Robert V. Chisholm who did a bang up job on his Table of Authorities. I guess Mr. Marks can also thank his lucky stars he didn’t end up in front of Judge Bruce “Affirmed” Kasold. Finding the legal ammo for these outings doesn’t seem to be the bugaboo. Finding a sympathetic ear at the Court is the roadblock. Considering the thumb of justice weighs heavily on the scale in the Veterans’ favor, something is amiss when this would have to float up to the Fed Circus to obtain real justice. When you say your prayers tonight, include one for Judge Bartley’s continued good health in them.