Here’s an interesting case to put in the ILP file. Marine Veteran Tyrone Andrews has a problem. VA has been dogging his claim as they did mine. And much like me, he knocked them up about fifteen years after filing his Form 9. The BVA promptly gave him a hearing and a wonderful “Thank you for your service but your time to use your Vocational Rehabilitation benefits is long gone.” Nowhere in the decision was there a reasoned discussion of the fifteen year hiatus between his Form 9 and the subsequent hearing and denial nor was there any explanation about how a delay that long pretty much punches a hole in the 12 year limit. VA does that a lot. No explanation. No apology. No “Gee, we sure stepped on our necktie. How about we make this right with you?” No sirree, Bob. To VA this is bright line jurisprudence-You lose, Tyrone.
Tyrone had what VA considers to be a “minor employment handicap” for employment service help under the VR&E regulations. He was only 30% and got this one year after his separation in 1986. Some of you I have been attempting to shepherd through the ILP process are virtually horizontal cases and considered to have a “serious employment handicap”. Projectile emesis (vomiting) combined with the inability to remember your middle name on any given day can often screw up your resume. VA comprehends this and segregates us accordingly. Under their definition, you’d have to be at death’s door pounding on it with a five pound sledge hammer to truly quality for the higher of the two. But I digress.
The VR&E folks at VA are very narrow minded and tend to husband the VA’s limited financial resources for bonuses. Thus, with only a paltry 30%, poor Tyrone was not accorded that higher standard of “serious”. Okay so far. The T-meister moved right along in his studies and finally saw daylight near the end. He also was running out of time (five months) and finances to finish his desired goal of a degree in Politics (Political Science). We get 48 months on the hamster wheel of VR&E services and moolah. We also get a 12 year window in which to use it much like the GI Bill of “use it or lose it”. That VR&E codicil can be extended indefinitely or applied for decades later if you are 100% disabled like us Heppers and bent brainers.
After completing about as much education as he was going to, he returned hat in hand and asked for help to obtain a job. This really doesn’t cost VA a lot of money. They claim to have job fairs once a week and do this for us (or claim they do) gratis. VA took the position that they had changed his pumpkin into a four horse carriage and he was not entitled to any additional help. And so with heavy heart, they had to say Adios Tyrone. An important point here is to be noted. He was at 30%, which, as we mentioned above, is sub-serious employment handicap. He dutifully filed a Notice of Dispute and completed the requirements for a substantive appeal. Cue the Alex Trebek music, please.
VA sent out his SSOC a month after the Form 9 asking him what part of the interjection/adverb “No” was he unclear on. We are not legally required to answer a SSOC and Tyrone did not. After a year, unsure of what to do as most of us are, he refiled the same Form 9 substantive appeal all over again. And here matters sat for the next fifteen years while they waited for either, death, ennui or Alzheimers to kick in and dull his memory. VA got the new Form 9 but what to do?
For some reason, this art form escapes VA raters and invariably results in them a) doing nothing : b) doing the ostritch and shredding it or c) their favorite fallback position of calling it a reopening of an old claim. How many of those ” VA construed this to be a reopening of his old claim for…” have we seen over the decades? This is invariably followed by “since no new and material evidence was submitted, the claim was not reopened.” Neat hat trick but you cannot get away with it unless you have a good document forger. There is always a paper trail but VA lacked any documents saying as much. Usually they bluster their way through until caught red-handed at the CAVC where a different set of police get to inventory the evidence bags.
Now let’s throw a wrinkle into this which is what I love about VA forensic claims reconstruction.
Tyrone had also been busy over at the VBA and had lassoed another 30% rating in the interim putting him into a 60% bracket. What’s more, the effective date was pushed back to January 1991. This means he was now suffering a “serious employment handicap” and well within that 12 year window. What’s more, it effectively abolished the 12 year limiting rule entirely. VA never noticed because by now this was in the VARO basement in cold storage. At the same time the T-bow filed yet another substantive appeal of the original denial and asked that burning question: “Yo. Whazzup with the appeal?”
Bingo. We all know the BVA is backed up like a monkey after consuming a pound of extra sharp Vermont smoked cheddar. Here it is 2009 and they promptly order up a BVA hearing in March. You would never expect to see anything back for 15 months but the BVA outdid themselves. VLJ Eric Leboff promptly cranked out a denial in the unheard of time of two (2) months on May 27th.
Leboff mysteriously concluded that if you delay a substantive appeal for fifteen years, it has the uncanny effect of running out the twelve-year clock on Tyrone’s claim. Some of you claim that VA is now using “core mathematics” but to date no one has proven it. Not to be outdone with that revelation, VLJ Leboff agreed with the VR&E counseling psychologist that declared Tyrone had actually been “rehabilitated” way back in 1991-before the Form 9 filing. Rehabilitated is not the same as a felon who has paid his debt to society by his incarceration for fifteen years. In VA parlance, rehabilitated means you are good to go. There is absolutely nothing more you need to succeed now and VA is not going to even rehash that argument. This was the exclamation point to the SSOC back in 1992 that never metamorphosed into a timely BVA decision.
Mr. Andrews finally explained the core math issue of 12-15 = -3 years. He also helped Kasold, Hagel and Davis, unarguably two of whom are the most anti-Vet judges on the bench, understand that justice had been delayed, denied and fortunately he had not died in the interim while waiting.
Read here of Tyrone’s most excellent VR&E adventures. Just for the record, he was represented by the able fellows at Disabled American Veterans, by far and away the go-to guys for real legal help. He lost until he finally got his own rainmaker. Funny how that works, huh?
This will invariably help some of you when VA pulls the “Time’s up!” card out of their hat. It probably won’t avail you of any substantial justice until you get to Indiana Ave. NW but it’s the right calibre ammo for the defective legal posture. Far too often, we get into these “Back to the Future” scenarios where VA grants an earlier effective date but steadfastly refuses to honor the concomitant legal ramifications that it provokes. I find myself in the same boat so I gladly offer this as a panacea. It’s just too much fun to pull out the “No it isn’t!” card out of your hat and have the Judges all nod their heads in agreement. Sure, it may take a few years or a decade but as William so aptly opined -revenge is a dish best served chilled. When served on a bed of ice at the CAVC, it hits the spot.
P.S. Below, Mr. Andrews himself asserts he is still not getting any action on his Writ. The case is 14-540 on the docket. It shows a filing for reconsideration of the dismissal of the Writ on 20 October–five days ago. I’m not sure of what you expect them to do in such short order. Left click to enlarge.