Shades of Sesame Street. Now you’re going to have that antique ditty running through your brain for a week. Presumptions. This seems to be the new lightning rod of Veterans Law. VA has always held a royal flush in this game to our paltry three of a kind. We just didn’t know the rules of this Indian Poker. We’re learning.
I keep getting emails about presumptions. Member Del asked if there wasn’t a presumption for everything. The short answer? Yes. Most especially in VA’s favor, of course. I’ll take the Veteran’s presumptions first. We get the first big one the day we sign up. Never in your life were you ever so minutely examined as you were that day. They knew more about you than the doctor who delivered you. Every mole, smallpox scar, everything you personally endorsed (checked yes) on a Standard Form 88 or 92 at entry and separation is a permanent part of a record that will be scoured for some small speck of proof that you a) had it before service; or b) if you had it before you enlisted, then it did not get worse (wasn’t aggravated) by your service. It could have gotten worse after you got out but that was probably due to __ ______ _______(use M 21 1MR + Adobe 2 CAPRI 21-ULUZ denial form letter). This Presumption of Soundness is the foundation of most Veterans claims. It is the bedrock you build on. Make sure it’s firm ground before you call the cement wagon to pour.
If your SF-88 says you had a trick knee as a kid but it’s all better now. Okay. If it goes south in Basic, you sure can’t say it happened on that ten mile hike a week after you got there. You might argue it’s a torn meniscus this time and has nothing to do with hokey knee syndrome but you will probably lose.
The next presumption, while less known, is the most Holy Presumption of Stupidity. Since we are not accorded the right to have a real law dog at our side, we are forced to do it ourselves (pro se) or go to the VSO of our choice. It makes you feel like Sgt. Tahmooressi down in a Mexican jail. You don’t get one phone call. You don’t get a shout out. Even if you hire that VSO chucklehead, you still are the blind being led by the blind in the eyes of the Court of Vet Appeals. This is your ticket to success if used correctly. You have to iterate every possible permutation of a claim so it is never misconstrued by VA. You are not a doctor so don’t start acting like one and using internet terms like radiculopathy. Maintain that stupid act. It protects you until you get to a real lawyer and a doctor you get to choose.
Another presumption is the Presumption Credibility that all Veterans who served their country honorably and are competent to testify honestly in their own behalf without shading the truth for financial gain. This presumption holds water until VA finds out you are lying, have presented false anything, or your testimony is incredible. Again, this is one of those presumptions that is not accorded mere mortals. It is a right accorded us for service. VA will do anything in their power to find some inconsistency, some small, inconsequential fact, some piece of evidence that conflicts with your recollection and use that as the springboard to destroy your testimony. This a baby with a tub load of bathwater. You don’t want them to throw this out. You tell the truth, the whole truth and nothing but. When it comes time to do the Benefit of the Doubt Ouija reading, this weighs far more than you think. If you are proven to have stretched the truth on any one facet, everything you say will be deemed a whopper.
Brown v. Gardner The reason VASEC’s name is first is it’s one of those things where VASEC Jesse Brown, a former Marine, had his BVA decision reversed at the CAVC. He then decided to fight it up at the Fed. Circus and got his ass whupped again. Unfazed, he squandered yet even more scarce judicial resources and got certiorari at the Supreme Court where he got the final smackdown. How’s that for nonadversarial? What gets me is he was a disabled Veteran himself and he fought this to the bitter end. Keep that in mind. That’s who we’ve been dealing with all these years. The VA professes constantly to be pro-Vet 24/7. It’s not a presumption however. It’s merely their impression of themselves they see in the mirror. Running contrary and parallel to this pseudo-nonadversarial posture is the nature of Federal Statutes and regulations. We know these as 38 USC (Congress’ intent) and 38 CFR (VA Secretary’s translation of Congress’ intent). The second one with all the small print is the problem.
When we allow the VA Secretary to opine as to what Congress intended in 38 USC, we are giving his translation deference. This concept is boilerplate law in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). What it does is give the cachet of respectability to how VA reads their own regulations. The problem as Vet attorneys see it is that in this nonadversarial system where every benefit of the doubt is accorded the Vet, somehow good ol’ Johnny Vet almost always loses at VA three-card Monte. Like about 85% of the time. You get better odds in Las Vegas casinos and they buy your drinks. How can deference to an adversarial opponent’s (VA) decision that you were X% disabled on Y date not be nonadversarial in the first instance? More importantly, how do you overcome this finding of law. If we live in a sheltered legal cave with all these friendly VA folks in charge of us, why do we always roll a seven on the second throw? As always, it depends on whose dice you are using.
The Veterans Law Library widget up above in the header is a valuable tool for spotting new Fed. Circus and CAVC precedence in VA law. An article there on this Gardner/Chevron dichotomy is very piercing. We have watched VA law evolve from the COVA era of being yes-men for the VA and the BVA. The chutzpah of Brown may have engendered that. Nothing like a little conflict to raise the hackles and poison the well.
Now let’s look at the VA’s Presumptions. We don’t have to. It’s a blanket presumption that they do everything right. In order to refute that presumption on any given facet-be it a bogus C&P exam for your bad back by a ophthalmologist or proctologist, or an incorrect rating from a braindead rater- you have to prove it was clearly and unmistakably erroneous. This is not a true CUE test. You do not have to prove that the error manifestly changed the outcome. You merely have to prove that what looks irregular is irregular. If VA sends every Vet to QTC for C&P and they send you to the VAMC for a “special” C&P exam by VA’s “impartial” hired gun, that’s not regular. If it turns out they’re using a Certified Nurse’s assistant to say your bad back is fine and the range of motion was five by but fail to mention you had to stand up out of the wheel chair, that’s not regular.
If you do not contest the fact that the VA doctor/nurse is not a specialist in their field, then you have not overcome the presumption and it turns into a pumpkin and six mice at midnight after sixty days. You have to use VA’s presumptions to your advantage rather than sit in the back seat and accept them. Presumptions are just that- they are presumed correct unless questioned. If questioned and proven false, the earth opens up and swallows them whole. In their place is whatever you presented as your evidence. No do overs in this game.
The presumption of validity can come crashing down around their ears as well. When VA declares a finding, it is like a survey pin. No one is allowed to move it even if it’s in the wrong place short of another survey that indisputably (clear and unmistakable evidence) proves it’s in the wrong place. If VA pounds the pin in the wrong place to your advantage and gives you too much, it falls to them to prove they made the mistake. Only then does CUE enter in. If they wish to take it all back, they have to prove the CUE. But that’s not all. They also have to prove it with the existing evidence and further show that, but for the error, the outcome would have been manifestly different. They suffer the same sixty day presumption that if they felt the C&P examiner had shit for brains, they could get a new C&P. They can do this to their heart’s delight in a nonadversarial system until they get the results they want. Once they let a C&P stand, they are, in essence, agreeing with it the same as they hold us to. This is where you can turn their own decisions into your favor.
Member WGM did this in Texas. VA said he got his HCV, not from a jetgun but from STDs. Forget the three nexus letters from real doctors with real MDs after their names. Forget that the VA examiner has a CrackerJacks© degree from Mt. Altoona Jr. College. She opined and declared under penalty of perjury that the STDs were the guilty party and there was nothing more to talk about. Unfortunately, she didn’t close her piehole there. Instead of looking it up, she foolishly relied on the Presumption of VA Intelligence and declared getting the clap was willful misconduct. After sixty days the concrete had set up pretty good on that STD finding. Once the examiner was apprised of the fact that it was perhaps not very wise to acquire these diseases but certainly not against the UCMJ, they had to revise their decision. Without batting an eyelash, they merely erased the word “not” and were left with STD=HCV. All the evidence pointed to jetguns. The whole case was carefully constructed around it. VA thought they had out-presumptioned old WGM right up until their presumption bit them on the ass.
The Presumption of the Regularity of the mail is another new hotspot of attorney activity. VA has been caught cooking the books at VAMCs all over the nation. I’ve lost count but it’s well over two hundred and going up like a progressive Las Vegas Slot. This calls into question their ability to maintain credibility in appointment scheduling. If you had a C&P scheduled that you never heard about, they used to trot out the “We sent him a letter.” story. Vet attorneys nowadays are asking for a copy of the letter and VA is unable to produce them. VA maintained for years they were merely “electronically generated and then erased”. Form letters- but with your name on it. If VA sends you a denial, an SOC, an SSOC or anything like it, they place a copy in the c-file. Remember the litany. If it appears regular, it is regular. So if they send you a “be there or be square” letter it should rightfully be somewhere in the VBA system or over in VISTA. If it isn’t, it’s irregular. Having a huge paper or electronic c-file comes with a new set of responsibilities. VA hasn’t absorbed that legal concept of electronic constructive possession yet.
Presumptions are a vital part of every one of our decisions. They’re like those boxcars in the cartoon above. If you assemble them correctly, preserve them properly and employ them to your advantage at the right time, you paint VA into a corner they can’t escape from. In the event they play dense and ignore you, you still have them preserved for that VA rainmaker that can and will use them to win for you. The only enemy is your piehole.