This is a great Single Judge decision to illustrate the ultimate stupidity of finally granting something now that they’ve been denying since 1982-fully 32 years ago. Add in “losing” the c-file and having to reconstruct it (funny what makes it back in and what doesn’t) from scratch in 1995. Finally, after the whole thing plays out, it’s discovered, as usual, that somebody’s been screwing the pooch all these years. Once you lose the c-file you can kiss that Presumption of Regularity crap goodbye.
Meet Army Veteran Robert L. Reaves, a participant of the Southeast Asia Olympics held in the Republic of South Vietnam several decades ago. Huey Door Gunner extraordinaire. If you were Eleven Bravo in a hot LZ, he was your BFF. Mr. Reaves, as most of us have discovered over the years, was deprived of some singular ingredients that would have cemented his claims more solidly. As time passed and he kept chipping at the impenetrable wall of the VA, he gradually began to see what few do- a way out of this funhouse of mirrors. He even went so far as to buttress his military record and have it amended. VA insists this had no effect on the final bottom line. They used the same line on me, too.
His law dog did what all of us do and built a time line to follow the action. Each piece of evidence submitted was analyzed and the order in which it was submitted. VA did the same thing in a much more haphazard manner and then artfully rearranged the furniture to be the least advantageous to Mr. Reaves. Here is the decision and I take the liberty of plagiarizing what I suspect Mr. Reaves might have put together.
Of interest, I also insert the BVA Hanging that took an unheard of fifty two pages and two different decisions to strangle Mr. Reaves by the neck until dead. Acting Judge Tom O’Shay outdid himself with lovely inane remarks that could only emanate from the mind of a clueless dolt who has never experienced pure terror and the realization of having nowhere to go when being shot at. Here’s a priceless snippet. Wannabe Judge O’Shay is opining on why the BVA forgot to give our door gunner the combat presumption of 38 USC 1154(b):
“Although the Board in 1990 acknowledged the Veteran’s service as a helicopter gunner, they did not explicitly apply the provisions of 38 USC 354(b) [1154(b)]. The Board points out that while service as a door gunner certainly presents the opportunity to engage in combat, it does not necessarily establish that a Veteran did in fact engage in combat”.
Caught in an inexplicable situation as to what was in the c-file and when, the OGC is forced to rearrange the crime scene-but not to Judge Meg’s satisfaction. Like a cheap WalMart sweater with a thread awry, once tugged it unravels. With the unerring accuracy of a pack of bloodhounds, she and her leagle beagles follow the trail back to it’s beginning and reconstruct it one decision at a time. I’m guessing again but I’ll bet it resembled the Appellant’s brief filed with the court almost day for day.
When in doubt, shred the file. Get rid of it. The glaring judicial error is palpable. Best to dispose of this and claim ignorance. And so they did. The c-file evaporated into thin air. Some of the pieces apparently existed elsewhere because the VA sure seems to have a veeeeeeery good idea of all the negative events in this claim. Which, incidentally, is why it took old Bob Reaves all them thirty two years to have a sit and sip with Judge Bartley. He honestly believed the system was fair and he just kept stubbing his toe on some Catch 22 on the way there. He started sorting through what VA said he didn’t have and began collecting it to disprove the lies and allegations that he was a goldbrick. One word queered the whole deal and sunk him in 1982. Drugs. UCMJ. Willful misconduct. Booze to self medicate. Admissions nowadays that might enhance a claim became the brick and mortar to wall him out. When you view a timeline, you come to the inescapable conclusion that he had all the Caluza elements early on but never assembles them at the same time simultaneously.
What do we need? The Man in the Door MOS (35 Foxtrot) was important. The Air Medal was more meat. He had another MOS of 671 Charlie as a rotary wing mechanic on the 214 though. In May 1968 in country he was diagnosed with various physical and mental issues and a year later in 1969 he hit the wall with depression. At that point he dove off the deep end and started in with the drugs. After psychiatric intervention it was thankfully determined to be nothing more serious than a personality disorder. He was discharged and the reconstructed folder seems to be conveniently missing his SF 88/92 write up for noted defects at separation.
Robert didn’t give up. He knew he had bent brain and wanted help. The drug/ETOH admission and active usage contaminated the claim and VA shrinks weren’t going to start handing out ratings for that kind of misbehavior. The more evidence he gave them and the more candid his testimony, the more he pissed in his own well. By 1981 he was variously diagnosed with atypical depression, antisocial personality and substance abuse.
So here’s the timeline in detail. It paints a bright line of evidence
Reaves finally filed in August 1981 and oddly enough all these records miraculously made it into the new, improved 1995 rebuild. As would be expected, all those nasty bad mental problems were nothing more than personality disorders and the really really bad depression one was just acute rather than chronic and spontaneously resolved itself just moments before service separation because- what the hey- there was no evidence of it in the separation exam. That was mysteriously non-existent. So it was VA 3-Robert -0. He appealed to the Board and struck out.
By now our brain bent Mr. Reaves had heard of this new fangled rating called PTSD and figured it sure fit him to a T. He promptly filed again in May 1984 to reopen based on a “post traumatic nervous condition”. VA denied again three months later in July. Again on appeal he struck out. The drug addiction was the fatal flaw that wrecked these claims. Hell, even without them I doubt he would have gotten SC. VA was a hard road to hoe for a PTSD rating back then compared to today.
In October 1986 he was coming unwrapped. He showed up at a VAMC and unloaded on a VA shrink with a litany of ugly stressors and recurring nightmares, etc. Being a knowledgeable podiatrist/psychiatrist, the VA fellow promptly diagnosed Mr. Reaves as a substance abuser with a mile wide passive aggressive personality disorder.
By December of 1986 he was diagnosed by a private shrink with “depression with suicidal ideation and PTSD”. Here was the smoking gun. The kid was burning up inside and VA was just hell bent this guy was not getting a dime regardless of what he did. Unspoken, too, was a firm belief he was faking it all to get free Thorazine and trying to plug into VA welfare. It gets worse.
In October/November 1987 Mr. Reaves was voluntarily committed at a VAMC for “PTSD”. Seems he spent an inordinate amount of time on this trying to fake a rating. VA was sure convinced of it. When they finally cut him lose even more evidence had accrued of his by now obvious mental shortcomings, He was written up at discharge as “suicidal ideation, Vietnam nightmares, substance abuse and “a possible PTSD diagnosis.” Later they came right out and said it- malingering. Faker. Liar, liar. Pants on fire. Seems all these shrinks could spot the shysters from a mile off. In a June 1988 SSOC it was found that PTSD did not exist in Bob’s universe.
Here’s where it gets butt ugly. By now (1989) the VJRA had created the CAVC or COVA as it was called then. Judicial review was in vogue and the Board was beginning to play the CYA game. They sent out for a couple of Independent Medical Opinions on Mr. Bob’s brain box. Doctor #1 diagnosed PTSD straight away and cited to the SMRs. He also had a very probative opinion on the other facets manifested and said they were all part and parcel of a pretzel brain. Being a teenaged Huey door gunner might have helped build strong bodies twelve different ways but it was pure hell on you mentally. Doctor #2 echoed the same sentiments verbatim.
The 1990 Board decision was a whitewash. They dragged out a “pre-Hickson” construct and said Mr. Bob had never complained in the seventies and it was only in the eighties that all this combat crap surfaced about being shot at and feeling bummed out. In short, the two IMO doctors had been hornswoggled by this cad and he was a liar and a cheat. The summation said he wasn’t credible regarding his life-threatening stressors. What the hey? He didn’t have to be if he’d been accorded the combat presumption of 1154(b). Everything that fell from his lips was supposed to be truth unless rebutted. Nevertheless, they gave his testimony short shrift, he was a scoundrel and, by extension, was never in combat. The enlightened judges went further by ignoring two good shrinks and going back to the 1986 rating for evidence. Again, the drug allegations were waved about and he lost. Colvin v. Derwinski had not even hit the Court yet. Neither had Murphy. All that line of jurisprudence was just over the hill. In fact, the three-judge panel was divided and one dissenting Judge held a completely opposite view but was overruled. Funny how that all made it back into the reconstructed file, too. By now I’m asking myself where in hell did they find it all to reconstitute it. More so, what did they miss? Seems they have everything but the kitchen sink back in the file-just no date stamps. Mighty convenient from my standpoint.
This is where it gets interesting. Mr. Reaves asked for a Motion for Reconsideration from the Head Board honcho in 1993. He would have been better served to go on up to the Court but I”m betting he had DAV as his legal guys and they don’t “do” the Court. It requires a Juris Doctorate and they were fresh out (and still are). Bob submitted a new service medical record he’d come across that stated he was cleared for helicopter gunship assignments as a door gunner in 1968. That is a “service department record that has never seen the light of day” document and should have begun a whole new de novo review at the local RO again. No dice. The BVA chairman told him to go piss on a flat rock in 1996.
By now it was obvious Mr. Reaves was going to need some mighty powerful Joo-Joo to win this. All the king’s men and all the king’s shrinks couldn’t seem to get VA to budge on it. New and material evidence-the Holy Grail of reopenings- wasn’t even catching any air. So in 1997 the Reavesmeister headed off to the Army Board of Corrections for Military Records (ABCMR) to see what was amiss. He just couldn’t get it through his head that this was a moral thing over drug abuse and no amount of “good” evidence was going to get over it. After a diligent review, they determined as a real door gunner in the 101st Airborne, he was entitled to a Army Commendation Medal, an Air Medal and a RVN Civil Actions Honor Medal (First Class) unit citation. A new DD 215 was issued to confirm it. Bob had handed them those 1968 duty records showing he was on flight status as a door gunner. This would be proof that he was in combat but VA still wasn’t buying when he came back with all this in 2000. Go figure.
Bob filed to reopen in August 2000. Since they didn’t have backlogs in those days, VA was able to get the denial out by December 2001. Funny how, again, VA has all these records when they insist they had to begin with a brand new box of Legos in 1995. The denial didn’t mention drugs this time. They used the old “You didn’t bring in any new and material evidence so you lose” ploy.He appealed to the Board in late 2002 after they sent out the SOC asking him about why it was so hard to understand the meaning of “no!”
Mr. Reaves was now going to climb aboard the new Hamster wheel of justice. The Board of one now agreed he had submitted enough to sustain a finding of new and material evidence. Of course the new VCAA was in effect. Basically, all you had to do reopen something was show up with a letter from a rent-a-doctor like Dr. Bash or Dr. Ellis to accomplish this. The Veterans Law Judge promptly remanded it back to the local RO and did his Pontius Pilate imitation by washing his hands of it.
Here it was 2006 and the world had changed. Vets were now golden in this post-2001 world. If you had any combat in your jacket and a valid stressor, you were in the catbird seat. As for drug addictions past or present, the new DSM-IV actually anticipated it and you weren’t dunned for it. Guess who finally won? The only problem became an issue of why he hadn’t won sooner- like in 1982. As I mentioned, opening Pandora’s box lets out all kinds of things. VA probably thought they could control this but they never figured on running it by a former NSVLP attorney-turned CAVC judge. She was all too well acquainted with the OGC’s shenanigans and gutted this wide open.
VA’s opening gambit was 50% back to 2001. Mr. Reaves answer to that was to fetch the old flat rock in from retirement and bring it out to pee on it. VA reluctantly offered a year earlier back to 2000. Bob’s reply was to unzip again and pee some more. Finally they went up to the Court for round 1. The BVA all this time was insisting that the addition of all these new records- the confirmation of medals by the ABCMR- the 1968 proof of the SMRs clearing him for flight duty- had absolutely nothing to do with their sudden epiphany and the new rating. The win was based on what was proven in 2006, not by what was dredged up as 3.156(c) new records over the last three decades.
And here is where the sweater began to unravel. The OGC argued that the 1968 service military record showing door gunner flight status was part of the 1990 BVA decision evidence. Mr. Shears argued he didn’t submit it until 1993 to the Board Chairman at the Motion for Reconsideration. Since the whole file disappeared into thin air, VA figured they could claim anything they wanted to. That was their undoing. These jokers just don’t know their game strategy is so compromised that it is common knowledge these days. Meg Bartley has made a life calling out of defeating these rascals and she could see right through it. Here’s a good zinger:
The Board’s failure to address the 1968 service department record in the effective date decision here under consideration and to offer adequate reasons or bases regarding the date that it was first associated with Mr. Reaves’s claims file and the import of that record on the later award of service connection requires remand.
Given the heightened Board obligation [after rebuilding the file in 1995]the Court is surprised at the Secretary’s suggestion that the lack of clarity regarding whether the November 1968 record was before the  Board should be resolved against the Veteran. It is difficult to see how such resolution would be consistent with the “benefit of the doubt” standard of proof.
Oops. They accidentally let the cat out of the bag. We in the legal know around the country comprehend the true meaning of VA’s benefit of the doubt. When cornered and checkmated, VA waves the Benefit of the Doubt flag and not a moment sooner. Most often you can hear it ruffling in the wind after several decades of denial as you do here. In a desperate ploy to avoid paying Mr. Reaves mass quantities of George Washington coupons, they were willing to go to the mat on something that is unwinnable. This may die a quiet death and garner an earlier effective date for one reason. The OGC knows if it comes back to the Court that they will have a hard time trying cram Pandora back inside her prison. With two perfectly good diagnoses of PTSD on the books in 1990, it would be hard if not impossible to make a case that Mr. Reaves does not deserve another bite of the 3.156(c) apple and a much earlier effective date than that currently being foisted off on him. Add in the loss of virginity when the presumption that VA never loses their records became moot and you have a “compromised legal case”.
The prognosticators in the back room here predict a slow Fenderson uptick of 70% and then TDIU-but not 100%. Then a predictable quid pro quo that slowly retakes each earlier effective date position as VA retreats. I see it ending with 1984 because he did not appeal the 1981 decision or some other defect. This allows the VA an aura of a rump victory. One thing is certain. It will be arrived at like mating elephants. (It will occur at a very high level. It will be accomplished with a lot of bellowing and screaming and undoubtedly take at least 21 months to produce results.)
We wish Mr. Reaves the best in his new battles when the c-file returns to Cleveland. Wait a minute. Cleveland? No wonder they lost the C-file. Cleveland is home to the biggest manufacturer of commercial shredders (Binford) in America. Go figure.