VAROs–SQUANDERING SCARCE JUDICIAL RESOURCES


ernestineOften in the course of my claims and  appeals, I have run across the term above in conjunction with the term ” in the interests of judicial economy”. They are catchphrases either at the BVA kiddycourt or the august CAVC where real Judges sit.  You’ll certainly never hear it at your local VARO. And, as usual, when I impart some interesting facet of law to you, some Vet emails me back to find out more. A warm welcome to new member Floyd.

Floyd writes.

“I see a reference to a thirty day letter in your post yesterday on Form 9s. I’ve never heard of this. Is it legal? Where do I get a copy of this Statute/regulation? Where’s the .pdf download? Searched the Bing but no dice, bro.”

That thirty day letter

Well, Floyd. You won’t find it there or at the VA. The “thirty day letter” is a legal warning that puts VA on notice a shitstorm is about to ensue at the Court. It can only be effective and carry judicial weight if you have been ignored, stood up at the prom for years or have already spent most of your adult life trying to get VA to acknowledge you more frequently than once every fifteen years. A thirty day letter is the final notice like you get from the Power company that it’s lights out on December 7th, 2014 if you haven’t paid the bill. In this case, it will be a filing at the CAVC for a Writ of Mandamus to force VA to comply with something they (and I) agreed to a year and a half ago.

For some of us who have adjudicated our claims to pieces due to VA’s tendency to separate them into numerous subclaims, it is one last opportunity to put them on notice, as they do us, that there is a suspense date coming up. When I got my AMC decision back from the CAVC ‘s Joint Motion to Remand and subsequent BVA decision, it was assumed that VA would relitigate all the claims pending on January 5, 1995. Instead, they gave me the Hep. C claim only and ignored the Porphyria plus SMC S.

After calling “Bob” and explaining it, VA begin dissecting an old claim for CUE on my Porphyria. This has already been subsumed by the JMR and is dead in the water.  VA, for some reason, is stuck on this like white on rice. In order to protect my legal position, I am forced to defend it by filing a meaningless Form 9 Substantive appeal. It’s also the golden 30-day opportunity to inform them they should expect Christmas Greetings from Clerk of the Court Gregory Block in the matter of CAVC case #12-1980-remanded lo these eighteen months past.

Meanwhile, in real time, I am forced to file yet another NOD on the December 3, 2013 Appeals Management Center (AMC) decision that implemented the rating for the earlier effective date because they did not include the Porphyria decision in the language. The porphyria is secondary to the Hepatitis C  and thus is “inextricably intertwined”. In Vetspeak, it means it’s all part of the same ball of wax. Without the Hepatitis rating, there can be no Porphyria rating. If you are familiar with 38 CFR, look up §3.310.

What is a claim stream?

download (1)As much as the VA professes to be adverse to squandering scarce judicial resources, they spend an inordinate amount of time doing just that. Here, they are forcing me to pursue one claim stream (1994) but put the canoe in at two different places. Let’s look at a claim from our standpoint. To us, a claim, like a stream, has a beginning, a middle and hopefully a satisfactory ending. Much like a river, it has a natural beginning and evidence accrues as it proceeds downhill. Reaching the ocean symbolizes completion, a grant and finality.  Since rivers normally do not flow backwards, this present problem is of immense concern to the VA. If you asked a VA rater about a claim stream, chances are you’d get something like “Oh, yeah. We used to fish there when I was a kid”. They have no clue.

VA tends to view a claim as an endless succession of  denials in hopes you’ll go away. Failing that, they like to take claims and dig dead end canals that create different  claim streams and deny each in isolation. A lot of guys found this out right after DM2 was allowed for Agent Orange. They lost on Peripheral Neuropathy claims secondary to the DM2 because VA tried to subvert the filing away from DM2 and into the “sub-acute peripheral neuropathy” allowed under the AO presumptives. It takes years to get this stuff back up in the saddle. VSOs didn’t understand the difference either, but then, we would not expect them to. We hold VA raters, however, to a higher standard.

With paper files, a c-file can only exist in real time in one place judicially. If your file has not been converted over to the .pdf word searchable format for use with the new VBMS, it has to be shipped to DC with your appeal in its analog (paper) format. Any actions pending on other claims at your Regional Office are put into deep freeze or worse, shipped to DC to catch up with the rest of your c-file!  The claim stream gets interrupted and often spends years awaiting the return of the c-file. This, in essence, is what happened to me. When the c-file returned, the first new thing up in the queue was the  10/2011 CUE claim. Again, everything else comes to a halt to work on this alone. My October 2012 request to reopen my claims for two diseases are still sitting in administrative review.

When the Court intervened and ordered the BVA to give me my 1994 filing date, they started the claim stream at it’s very beginning from scratch-i.e. 1994 had just dawned again and there was no downstream “history”. This is the Delorean Time Machine moment and a concept VA cannot or will not digest. Everything downstream in the claim, including the CUE claim is moot. It didn’t happen judicially. Much like a chalkboard, everything is erased and you start over. To VA, if anything is in the claims pipeline, it gets the same treatment. No one bothers to look at it and notice it has been subsumed by an earlier revision. Trying to call attention to it is futile. downloadWhy these things have to be pointed out is interesting. Considering VA feels its VA whizbang raters to be 89% accurate,  it’s interesting they spend an inordinate amount of time on do-overs. Here, a claim stream diverged into two. The porphyria claim went south while I was in the hospital for a year and in VA’s mind no Form 9 on time was the last call on the Short Line Railroad.  Meanwhile the Hepatitis claim steamed merrily,merrily, merrily merrily- gently down the stream. The CUE filing was a natural response -the only response available as a judicial remedy to overthrow the wrong rating. When the CAVC handed down their 2013 JMR ruling, it erased this 2011 CUE claim stream. VA insists in continuing to squander their resources on it in spite of my plea to VASEC “Call me Bob” McDonald to enforce the terms of the JMR. The BVA staff attorney who drew the short straw and called me felt it was “an interesting judicial theory” and one he had never encountered before.  

The reason that my Writ will be interesting is Rule Four of the Writ Grail:

4) Moreover, when delay is alleged as the basis for a petition, the Court has held that a clear and indisputable right to the Writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.

The Court has held in numerous cases for relief that a delay of one, two and even three years by VA is defensible. In Jean Erspamer’s case, it took eleven years to raise their ire. I’ve been waiting twenty years and eight months as of this morning. That is why a thirty-day letter has more import. Being a civilized person, I will give them until the twentieth anniversary of the filing of my NOD on December 7th, 2014 to act. That’s actually more than 30 days but we’re going to do it by only counting working weekdays. Including my email to the VA Secretary, they have now been put on notice thrice of what is needed to cure the fault. wr-f2Going to the CAVC will be the Down For Double moment. In fact, here’s a great WW2 picture of my dad in his P-51 with the same moniker.

VA understands the concept of suspense dates as they saddle us with them all the time. I doubt they will pay any lip service to this but they certainly cannot claim they were unaware of it. I like to consider it as affording them “constructive possession” of the knowledge of my displeasure at being put on hold for two decades and then purposefully squandering precious judicial resources on the wrong problem. After twenty plus years, giving them another thirty days is a courtesy they do not deserve.

Following receipt of my $50 U.S. Grant coupon, the CAVC will assign a docket number, fire up the virtual e-printing presses and begin by asking the VA Secretary to explain in 250 words or less why he and his minions are having such a hard time understanding (and complying with) the judicial import of “did not become final”. The very next query will be to ask when they (the Court) can expect an answer to this twenty year old enigma. This is where it gets touchy with rule #4 above. Because of the ungodly amount of time that has transpired, there is no plausible excuse like “Your Honor, it appears the dog ate his NOD in 1994 but we’re on it.” VA is usually in the habit of rushing out and cranking out a SOC denying you in order to buy time for a proper funeral. Here, it’s more akin to finally awarding a medal that you earned twenty years ago and never got.

There really has never been such an egregious delay of several decades-a score of years- in deciding such a simple claim at the VA. Certainly, there have been CUE claims that reset the judicial clock back to the fifties as it did for Leroy Macklem but none where VA somehow came down with a rip-snorting case of ADHD and blew off a Vet for over twenty years. Moreover, when apprised of the snafu, the VA has never kept a Vet waiting another seven years and fought one foolish rearguard action after another in their retreat to stave off the inevitable award. This flies in the face of the nonadversarial nature of the VA process where every opportunity is afforded the Veteran to be heard; where every possible permutation of a claim must be examined to determine if additional eligibility under another statute might not be forthcoming.

ernestine-300x280This should be high-Kabuki theatre when it unfolds around Christmas. I promise you all a front-row seat with popcorn. I invite member Floyd and all of you to study how and why this was done. Considering Jean Erspamer had to go eleven years, I suspect that might be the minimum bar but it should never have to be. VA purposefully makes themselves inaccessible to a fault frustrating Veterans unnecessarily. We need look no further than the 800-827-1000 Make a Wish number for verification of this.

Here’s the .pdf for the NOD to cure the problem at the AMC level.

NOD 10-31-14 for EED on AMC Decision

As a post script (P.S.), I’m hoping to get this in front of Judge Greenberg or Bartley. I suspect I might actually have my Writ granted. In the intervening years since Mrs. Erspamer’s filing there have only been a handful that progressed to the point of ordering the VA Secretary to get with the program. I honestly feel my case may have more impact for the Veterans that follow in my footsteps. And no, I do not aspire to be remembered and cited for years after a win at the Court like Norm Gilbert or Joe Fenderson. I just want to grow 10-foot tall corn and watch my grandkids grow up. I’ve had enough of the VA hamster wheel.

 

 

About asknod

VA claims blogger
This entry was posted in Earlier Effective dates, SMC, Tips and Tricks, VARO Misfeasance and tagged , , , , , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to VAROs–SQUANDERING SCARCE JUDICIAL RESOURCES

  1. Vicki Foley says:

    In our experience with the writ process, the Court kept giving the VASEC different deadlines to meet, one after the other, until we finally received a decision from the AMC after an extensive delay. Almost like the Court was bending over backwards to avoid taking a stand. The petition was then declared moot, since the action we forced was finally forthcoming. I hope you receive a definitive and timely decision.

  2. Todd Totzke says:

    Asknod you might want to delete your SSN and address on the 21-0958

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s