Here’s a great decision by  those funny guys up at the Fed. Circus. Prost, Clevenger and Dyk (what a moniker!) got together for cocktails and one said “Hey, let’s take a page from Asknod and get on that Presumption of Everything freight train. Have your people look up some of those antique VA General Counsel Precedents and let’s see if we can give them conniption fits on this O’Bryan Vet. Let’s use their vaunted Presumptions against them and see how the pants fit.” And so they did yesterday.

And sure enough, they trotted out two daisies- VAOGCPRECs 67-90 and 82-90. Either one was lethal to the argument but in tandem, they painted a lovely argument to come down on the exact opposite side of what the OGC was arguing 38 CFR §3.303(c) was trying to preclude- i.e. defects pre-existing service.  Plagiarizing a move in Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009), which hinged on Auer v. Robbins, 519 U.S. 452, 461 (1997), Prost et al decided to clothesline the VA and by extension, the miscreants at the CAVC for subscribing to this stupidity.

Hagel got this as a simple memorandum decision and felt he could concentrate on other, far more pressing precedents. After O’Bryan lost and petitioned for panel review,  he got a three-judge panel- but of Hagel, Moorman and Davis. He might as well of drawn a 2 to his two 8s. More Hagel Hamburger Helper ensued and it finally reach a boil. Nothing less than a full blown en banc review was going to attain justice for O’Bryan. Unfortunately, even far thinkers can get a bad case of the hornswoggles. The votes weren’t there for an en banc party. Jarvi deferred to Ken Carpenter’s eloquence before the Feds and this is what Marcus won- Monty Hall’s Cookie Jar.

OBryan_14-7027 (Fed. Circus Decision)

This all began in 1977 within that magic one-year window accorded us for everything (or nothing) to go haywire after separation. In Mr. O’Bryan’s case it did. He started going blind and it was diagnosed as being a congenital defect that he would have contracted  (or already harbored within him) regardless of whether he served or not. He filed and lost but he smartly appealed ( and lost again) at the BVA. That was the end of the line back in 1980. If you lost there, you could throw down for some equitable relief but that would be a cold day in Hell if you got it. A chagrined young Marcus wisely retreated and regrouped. In the Army, they call that advancing in a different direction. In 2010, he came forth, now protected by federal judicial review (and a real law doggie) and picked up where he left off in 1980.

Jarvi rightfully theorized that this all hinged on the definition, or better yet, the choice, of characterizing Mr. O’Bryan’s malady as a “defect” rather than a “disease”. VA maintained it was a defect inasmuch as it allowed them to deny under 3.303(c).  Jarvi and O’Bryan maintained it was a disease that began in that golden one-year window and  deteriorated lickitysplit into blindness. If their theory was entertained, then he fell into the Presumption of Soundness at entry (38 USC §1110)- and thus was service connected a la 38 USC §1111.

38 CFR §3.303(c) may be ambiguous but to end the pursuit of knowledge at the base of the CFR mountain without tunneling under to the USC or some defining legal concept/interpretation proffered by the very organization tasked with its delivery defeats the whole idea of judicial review. Rubber stamp denials are never out of order if the claim boat resembles the hull of the Titanic. However, it does not preclude a rudimentary survey of the history of §3.303(c) and how we arrived here. The Feds. wisely began a thorough excavation and turned the tables on David J. Barrans, Deputy Assistant General Counsel, and his sidekick Lara K. Eilhardt, one of the OGC munchkins.

We would do well to look at the Walker v. Shinseki jurisprudence that finally got around to deciphering exactly what §3.303(b), §3.303(c)’s precedent sister clause, meant all this time. Justice in Veterans Affairs is constantly in flux for one reason and one reason alone. VA has enjoyed Senator Alan Cranston’s “splendid isolation” and its concomitant CFR deference for so long, they just assume they are right and any determination of what they mean now, meant forty years ago or at Gettysburg as enunciated by Lincoln is grandfathered in. If they suddenly recover from the vapors and realize their error of 90 years, the legal epiphany is taken in stride and considered to now be well-established and undebatable. It’s the “No flies on me” theory and VA blithely wears it in ignorance.

Each old adjudication like O’Bryan’s-ones that occurred outside the umbrella of the VJRA’s judicial review prior to 1989, is ripe for a reopening with two viable can openers these days. Certainly CUE, or clear and unmistakable error, is the first that comes to mind and what Marcus and Theodore Jarvi used. In addition, we’re beginning to see an increased use of 38 CFR §3.156(c) based on old service department records only now coming to light. Both roads lead to Rome but the former is far more arduous. Do not expect the AOJs to see this point of view at the lowest levels for decades. VA fights every outbreak vociferously like Ebola. If you doubt me, ask Leroy Macklem. CUE reversals or vacates are rare and require the perfect storm. For instance, had Mr. O’Bryan refiled to reopen for bent eyeball syndrome in the interim-say, 1985-and been denied on appeal, his 1977 CUE would be moot as the 1985 BVA appeal would have subsumed it. However, he didn’t and it lay festering like a splinter these thirty seven years.

VA is usually very anal and lists everything but the kitchen sink as diseases or defects which they will not cover. Here, in §3.303(c), they got a bad case of writer’s cramp and fell short of enumerating every foreseeable defect found in Dorland’s. To wit, they pulled up short in thinking the Courts and history would continue to grant them unlimited deference in deciding how to interpret 38 CFR. Here’s the §3.303(c) caboose:

In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

By actually listing these items, the VA’s leagle eagles committed the error of omission.  Solely relying on that “refractive error of the eye” as their catchall backstop, they veered off the road of defect and into the bailiwick of disease. Once you get into disease, and even worse, chronic disease, regardless of it’s ebb or flow, you are no longer discussing the merits or applicability of §3.303(c).  You are now discussing its drawbacks. How the CAVC could be so myopic after Jarvi did his stick drawing in the dirt for them up at 625 Wagonburner Lane NW  shows one glaring disparity in Veterans Justice-certain CAVC judges’ noted propensity to just “go along” with the BVA.  What’s more, to go along and buttress Hagel’s Memorandum affirmation via a panel to support it as precedence is unconscionable absent any cogent discussion of the history of the regulation. Wherefore art Thou, Father Justice? Why do we have to go to the Fed. Circus to clarify the butter?

O’BryanM_11-2584 (CAVC Panel Decision)

One can only wonder if a panel of Schoelen, Bartley and Greenberg might not have come to the same realization of Prost, Clevenger and Dyk.  Perhaps that was merely a rhetorical rumination on my part that answers itself. Regardless, it’s moot now.

Yesterday, another brick in the foundation of Veterans Justice was firmly cemented in to the ruination of the VA. If this continues, we may attain a level playing field in Vet jurisprudence before the 22nd Century. I’d be happy with Hickey’s promised 125-day/98% accuracy come 2015. Won’t that be a hoot.