CAVC– GROVES V MCDONALD–WE MISFILED IT. IT’S OKAY.


VetCourtAppealsPromoWe at Asknod always troll for the blood at the CAVC and Fed. Circus. On the rare occasion that we Vets have one of our own go up to the Big BIG House, of course that warrants even more attention. Reversals and Grants of Writs of Mandamus are rare as a June bug in December. When one appears, you know it will be a good read from cover to cover. Groves does not disappoint. This is a panel decision to boot. As could be expected, Judge Bruce Almighty dissents in favor of the VA’s position.

The first thing you notice on the full docket is this puppy came to life back in January 14th of this year. In terms of a Writ of Mandamus, it’s positively antique. The panel decision is the clincher. Now, to add drama, let’s sprinkle in a CAVC remand from March 2012 ordering the BVA to reinstate an improper reduction in Mr. Groves’ 100% rating for bent brain. If the plot plan still seems thin, imagine the remand going south at Fort Eskinazi and being filed in the “Affirmed” folder thus requiring no more attention.

If that were all there were to this, it really wouldn’t amount to a hill of beans. Gene Groves did all this pro se himself. It’s a piece of work. It’s a genuine legal work product commensurate with a ten year law dog’s. It’s a mite rough around the edges but is perfectly serviceable. What’s more, it shows the indifference VA thinks it can visit on us pro se claimants and for most of the rest to some degree. Gene sent in query after query and Sponge-Bob-Square-Pants-spongebob-squarepants-16769717-259-314obtained no response. Sacre Bleu! It sounds like me. Fact is, kids, I’m going to hand this to Law Bob Squarepants and he’s launching mine after New Year’s. If Mr. Groves can get this degree of umbrage with the CAVC, imagine how twenty years and then two more of the same treatment will play up at 625 Wagonburner Lane NW. I’ve sure given them and Call me Bob plenty of warning and only got the same deal-Silence or an updated 24 hour rubberstamp SOC denial of the old CUE denial.

VA is not solely the culprit. This time it happened in a bastion of respectability and decorum. Somebody at the BVA hit the wrong key… or so they say. Here’s a Whitman’s sampler of great one liners.

In response, the Secretary asserts that when mandate had issued in May 2012, “personnel at the Board mis-entered the Court’s decision with regard to the underlying appeal as an affirmance in the Veterans Appeals Control and Locator System (VACOLS) (the Board’s computerized tracking system).”

 

In an April 28, 2014, order, the Court expressed its dissatisfaction with the Secretary’s response, especially with the Secretary’s failure to explain (1) whether the claims file contains any of the eight letters that the petitioner asserts he sent VA from August 2012 to October 2013 in which he requested VA action on the Court remand; (2) whether VA received any of those eight letters; and
if so (3) what VA did after it received those letters.

 

The Court notes that copies of the letters were attached to the petition and were dated August 19, 2012; September 15, 2012; October 20, 2012; November 22, 2012; December 21, 2012; May 10, 2013; June 8, 2013; and October 24, 2013. The letters
specifically identified the General Counsel’s Professional Staff Group VII attorney involved in the underlying appeal in the litigation before this Court, the date of this Court’s decision, and the docket number of the underlying appeal (i.e., No. 09-3611), and specifically noted that this Court had set aside the Board’s determination with respect to the propriety of the rating reduction for PTSD.

The Secretary states that these letters were found either in the petitioner’s claims file or in his “temporary” folder and that
“problems VA had in handling the mail” resulted in the Board’s failure to be alerted to the need to correct the mis-entry into VACOLS by the Board’s litigation support staff concerning the nature of the Court’s holding in its March 2012 decision.

According to Brian Curry, Assistant Service Center Manager at the Waco RO, the RO does not have “a written or electronic database of mail received.” May 20, 2014

I like Fort Whacko’s defense. We put seven of them in the temp. c-file and sent one to BVA.

The RO official stated that copies of the three letters dated November 22, 2012; June 8, 2013; and October 24, 2013, which all are addressed to the “Secretary of VA,” were present in the temporary folder at the Waco RO. In addition, the June and October letters “were reviewed and placed in the claims folder which was in the possession of the Waco Regional Office at the time of receipt. The previously cited mail of November 22, 2012, was forwarded to the Board of Veterans’ Appeals as they were in possession of the claims folder at that time.”

Yeah, here at VA, we don’t actually forward the mail to the intended recipient. We put it in the c-file where everyone can find it. Or else sometimes we start a new temporary c-file -kind of like one of those appointment books down in Phoenix.  You know, kind of like a file folder and if you want to find something, it’s probably in there. But if the BVA has it, well, then we forward it to them. It’s worked well that way for over a century.

imagesWell, there you have it pilgrims. For lack of a horse shoe and a 44 ¢ stamp the claim was misplaced. For lack of  a VACOLS technician to fix it, the Vet went unpaid. When this happens VA usually says “Wow. Good thing Mr. Groves spotted this and we could correct it. Sorry about that little two year glitch. Hope losing your house and  being homeless wasn’t too big an inconvenience. But as you know, justice delayed is not justice denied so buzz off.”

The Court, with the exception of Judge Kasold, had no problem absorbing the enormity of the VA’s, and Bruce Gipe’s chutzpah. As for Kasold, we didn’t expect him to come down on Gene’s side anyway. He’s never met a Veteran he liked. What Gipe didn’t expect was for this to turn into a “Harvey v. Shinseki” moment like back in 2011. For sheer impact, we haven’t really seen anyone get their socks rolled down over at the OCG 27 corral since Jean Erspamer had her Nehmer moment back in the dawn of the 90s.

As for taking out the financial stick and whacking Call me Bob, they wisely abstain from it. It serves no useful purpose to punish McFlougle for it. He just inherited this overflowing cesspool. General Ric had pretty much already chieu hoi’d by then as well. As for what’s hiz butt Gibson- again- he was just the caretaker. If you could come down on Gipe or Laura “Rocket Docket” Eskinazi as the legitimate culprits here and wallop their paychecks, justice might be served. Could be in a short time those two will suddenly discover a need to be more family-oriented and take a breather from work’s travails.

Gene wins the 2014 Pro Se Vet of the Year Award hands down. I can’t say I’ve seen such a well-constructed spear go through a shield so cleanly and cleave into the VA OGC-Kasold notwithstanding. I guess we have to thank our lucky stars and Greg Block that Judge Davis didn’t get this assignment or we’d be seeing a Beraud-type reversal in a year. You can be sure Meg and Greenberg are silently giving Bruce the Bronx cheer in the privacy of their chambers.

Watch the CAVC website in the next few months. I think you will be pleasantly surprised to see a new tack in Veterans Appeals Jurisprudence. We’ve been “off-track” for almost ten years since Kasold showed up and it’s time to take a far less adversarial stance towards Veterans. We are accorded many niceties in law and there is no reason to be rude, crude and socially unattractive -not to mention boorish- towards those of us who are not the brightest lights on the Christmas tree. We were bright enough to serve. We were equally foolish enough to think we bargained in good faith in exchange for those services. There is absolutely no reason why Veterans law and the deference shown us for our willingness to sacrifice all cannot flow to and fro from the Federal level.

ronald_mcdonald_high_resolutionEvery salient win in this business seems to elicit a nuanced revamping of 38 CFR to fill in the holes and prevent any misinterpretations by Veterans of purported entitlements accorded us. It’s time to rise up and file, baby. This should be a wake up call to all of us. By letting the camel’s nose under the tent in 1989, VA continues to suffer one indignity after another. Call me Bob will last only as long as he doesn’t follow any evidence of VA malfeasance back to 1600 Pennsylvania Ave. SECDEF Chuck Hagel’s Christmas Present is all the warning you need in that respect.

 

About asknod

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7 Responses to CAVC– GROVES V MCDONALD–WE MISFILED IT. IT’S OKAY.

  1. How about in my case where the RO received a Remand to calculate a rating in 2001 & stuck it in the folder & forgot it for 11 years, or that a second remand received in 2004 for a copy on my SS records as well sat at the same RO for 7 years collecting dust. To add insult to injury the RO turned around & instead of determining the rating they denied the claim after it sat for 11 years, & yes they did finally get my SS records only again when the appeal was remanded back to the same RO they did the same thing – denied a claim the Board had said was Service Connected. It’s no wonder the VA’s Moto is “DENY UNTIL THEY DIE”. So as a result the 2 appeals consisting of a total of 26 issues now sits before the CAVC & being handled by Bergmann & Moore LLC. Oh did I mention the VA has failed to advise me that out of my 14 years of service they have failed in 38 years to advise me that the first 3/12 years of SMR’s are missing, just so happens to be my Combat Records from Vietnam. You can see the current situation at the CAVC case # 14-1084, Happy Reading.

    • Oh yea I forgot to mention in the Boards response they mentioned the VA RO Miss-Coded my very first claim I filed in 1977 only to have the RO deny it as well in 2013, go figure.

    • asknod says:

      Well, the good news is they have recovered all your service medical records according to the docket report I ran this morning. I think the problem with establishing service connection for PTSD is insurmountable, Mr. Lancaster. There are 14 different stressors you cite and none seems to be verifiable. Your military record shows your deployment to RVN as February 1970 to December 1970 so they do have a record of your presence there. I think part of the problem is one of the stressors you cite (attack at An Khe) occurred eight months before you arrived in country. This causes confusion and doubt on the VA’s part. The claim of having two Purple Hearts and a POW medal where none is shown in the available record also detracts from your ability to claim combat status. By rights, you should also have a CIB if you were Army. Those are awarded instantaneously in the field. In order to obtain the 38 USC 1154(b) combat enhancement, a showing of an award such as a CIB or Purple Heart is essential. Your 1988 DD 214 inexplicably shows an award of two PH and a POW medal but your two prior DD 214s (one showing your prior service in RVN) are silent for any combat awards. You can see where this might sew some confusion. I see you petitioned to have your military record corrected but they, too, were unable to substantiate your combat record.

      I think the quickest path to resolving this in your favor would be to contact your congressman as I did to research the NARA and JSCRUR records thoroughly to find the record of the grenade attack you describe that a) killed your buddies; b) wounded your buddies; or c) that you killed the child who threw the grenade. The stressor of seeing the C-130 taking off and being struck by groundfire should be a no-brainer. Any accident as you described, with babies falling out of the tail ramp of the A/C would be documented six ways to Sunday and certainly qualify as a legitimate stressor. Remember, all you have to do is obtain that combat enhancement under 1154(b) and your lay testimony will be accepted. It’s fairly easy now to obtain a DD Form 1594 Duty Officer’s Log from NARA for the dates involved. While they may not mention you by name, they will corroborate your testimony and can also be used as Official Service Dept. Records that are now associated with the c-file and give you a viable shot at obtaining an earlier effective date for your various claims. We wish you the best of luck on this one but it’s a long uphill battle to win when you have submitted so much testimony that conflicts with itself or simply does not fit ( An Khe attack) http://www.freewebs.com/jim4jet/attacks1969.htm. Quite simply, in order to take advantage of a stressor at Camp Radcliffe, you would have to be there. Listing it as one of your stressors complicates matters immensely. We will watch your case with interest and publish a post mortem when the CAVC reaches a decision.

      • Sorry you don’t have the whole story because I have tried to explain to the VA many times that the DD-214 in Question was incorrect because it is on an Air Force discharge not on my Army, I tried to explain to them it was a mistake but they continued to try to use them against me, I also supplied an updated stressor list with the date corrected to 1970 I was unaware that the original paperwork had been posted with the wrong date of 1969, in 2012 the Board sent me a decision letter, not a SOC, but a decision letter stating that they had excepted my Lay Evidence & that every issue was in fact declared to be service connected but they remanded it back to the RO for C&P exams to determine the rating for disability. I filed a formal complaint against the examiner with my Senator & the VA that the exams were not properly conducted that at no time did he properly measure painful ROM & lied on the DBQ’s as well as making a negative opinion that completely went against the instruction in the DBQ’s. I had requested new C&P exams but the RO had already processed the appeals, they had even blocked me from even seeing the DBQ’s on the internet because I had filed a formal complaint. SO I was denied my right to new C&P exams & as a result of his negative opinion even though the Board had said the issues were service connected including the CUE they discovered in 1977 the RO denied every issue against the Boards decision letter. If the Board had not remanded & did an ICE of the records they would have awarded me every issue including disability payments all the way back to 1977 but because of the RO this is why I am now before the court, also as to the records the VA has only produced the following: 1968 1 form, 1969 0 forms, 1970 1 form, 1971 a DD-214 stating to immediately reenlist, 1972 0 forms, 1973 7 forms, so you see the VA make it sound like they found the missing records but in truth they have not come forth with squat. I served with HHC 299th Engineer Bn. “Combat” from Feb 1970 to Jan 1971 the VA did not even bother to see that there was a mistake on the original stressors lists nor did they listen to me about the awards & did research with the Air Force 3 times even after I tried several times to explain to them it was an error. I was in fact at An Khe in 1970 when we were attacked & lost many lives & again even after I supplied the corrected updated lists the VA paid no attention & again researched the Air Force. I have Never Filed a claim for anything I was not entitled to & have never lied on any claim form or Appeal & yet for over 37 years the VA has denied virtually every claim stating no NEXIS fully knowing that there were 3 1/2 years of missing records & at no time in over 37 years has the VA ever Officially informed my of said missing records. The only reason I even discovered them was when I filed with the CAVC back in 2005 & that was the first time in 30 years I had ever even seen my records. You see every time I asked for or requested my records in writing I was told every excuse in the book. I was told your records are in Washington, or told that if we have to stop & copy your file now it will delay your claim for 6 months or more or the guy that does the copying is on vacation & won’t be back for several weeks, ECT…… so I never saw my records for 30 years only to open the FedEx box to discover that out of my 8 years 4 months active duty the first 3 1/2 years were missing, it was then I filed the Lay Listing & the Board in 2012 sent the decision letter, so you see every time I have been denied it has been a direct result of the RO. The Unit I served with was a front line Combat Engineering Unit, not a rear civil unit a combat engineering unit & I saw & was directly involved in combat with the NVA, VC & the Chicoms on many locations & in many campaigns, all of which are in the record. Again the VA has lied & Denied ligament claims under false pretense for over 37 years & again I have never filed a false claim or stated any false information on any claim or appeal. I joined when I was 34 days past my 17th birthday & served 8 years 4 months of Honorable service in the US Army, I have undergone 16 Orthopedic surgeries, I have had AAA surgery & 2 Stints, I had Hypertension in service & Tinnitus as well as ocular chain disruption in my right ear from a mortar round at Bon Song LZ Salem, I was wounded on several occasions & treated by SP4 David Rose our field Medic in the field there as were several of my comrades, in fact I know of several times he was submitted for the CMH. I have nothing to hide & am very proud of my military service that included US Army 1968 – 1977, United States Sinai Field Mission 1979 – 1980, Army NG 1983-1984, Air NG 1984-1989. I have several Honorable DD-214’s & I would never do anything to disgrace my service to this country. – Hope you can now see what I have gone thru because of the deception, lies, & deliberate disgraceful actions of the VA.

        • asknod says:

          Okay, let’s review this for the rest of the folks. Here’s the list of stressors:
          “In various statements and testimony submitted with his claim, he has identified the
          primary events that he considers to be the precipitating causes of his PTSD.
          Specifically, he has described:
          (1) experiencing ambushes
          (2) discovering a service member after he had committed suicide (easy to corroborate)
          (3) witnessing a GI at a rifle range shoot himself ( again-easy to corroborate)
          (4) being on base while it was attacked by mortars
          (5) watching a plane take off base when there was a sudden puff of smoke from the rear of the plane, the rear ramp flew open and little packages started to fall from the rear of the plane, he later found out these were orphan babies (see below for 4/4/75 C-5 A/C accident)
          (6) having to dig a deep hole with a bulldozer and bury the dead in a hole following a mortar attack
          (7) being attacked when a fuel tanker convoy stalled, he witnessed an MP V-100 hit by an RPG roll over and kill the driver and wound the TC(very easy to corroborate)

          (8) killing “two zappers” about to blow the NCO club which was full at the time,
          ( will be in DOL DD Form 1594 SITREP)
          (9) a convoy he was in was hit,
          (10) killing a child who was about to throw a grenade (easily verified via DD 1594 SITREP)
          (10)(sic) witnessing a prostitute slit a newborn baby’s throat and then pouring gas on herself and the baby and setting fire to herself
          (11) running over a dead VC body in revenge for the death of a MSgt who had been killed and

          (12) that there was an attack at An Khe between May 10, 1969 and June 10, 1969. (HHC 299th Eng. Bn was at Phu Tai. Co.C was at An Khe)

          See Statements in Support of Claim submitted March 2009 and August 2011″

          Each and every one of these stressors should be a cakewalk. You say you were assigned to HHC 299th Engineer Bn. from Feb 1970 to Jan 1971. They have a unit history which will confirm each and every event you describe.
          I found the baby accident you describe but it happened April 4th, 1975. Same problem-puff of smoke on rear loading ramp. 78 dead babies everywhere in the rice paddies adjacent to Runway 25 Left but it happened four years after you left and was down at TSN.
          With the name of the medic SP4 David Rose, you have your buddy letter. You can ask VA to look him up for you. If he was put in for the CMOH, chances are he received a Silver Star.

          Let’s look at An Khe. You state ” I was in fact at An Khe in 1970 when we were attacked & lost many lives”. The only major attack on Camp Radcliffe in 1970 “killed” 17 Hueys. No Americans were KHA or WHA. Here’s the updated list of attacks on Hon Cong/Radcliff in 70. Only one guy was killed in August http://www.freewebs.com/jim4jet/attacks1970.htm
          Are you starting to see the magnitude of your problem? Everything you cite comes up zip. Where was the NCO club? Phu Tai? Camp Humper?LZ North English? You have to document this stuff in order to win. JSCRUR can tell you where everyone in the HHC 299th engineering Bn was on any given day in 1970. Google it.
          http://www.299thcombatengineers.com/History05Bunting.htm

          The battalion redeployed on 20 July 1969. It moved back to Binh Dinh Province with HHC and B companies at Phu Tai near the port of Qui Nhon, Companies A and D in upland An Khe and Company C at LZ North English some 50 miles north of Qui Nhon. The Battalion continued to consolidate within the Binh Dinh Province and provided combat and operational engineer support for the 173rd and 4th Infantry Division. I cannot find any info on attacks at Phu Tai where you were stationed.
          You can find proof but it has to comport with what you evince as stressors. This is called credibility. The DD 1594 Daily Officer’s log will be the lynchpin to your winning this. Proving a claim is an arduous experience. It becomes harder when your evidence seems to show that your story keeps changing.

          I’ll let the others take a gander at this and ask them to chime in. Here’s the 2014 BVA decision.
          http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files2/1415201.txt
          Here’s the 2012 decision
          http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files3/1217503.txt
          And the original 2005 BVA decision
          http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp05/Files5/0533174.txt
          I will grant you have been fighting this a long time. It bothers me to see any Vietnam Vet get the short end of the stick but as the CAVC says “It’s a two-way street.” Absent any evidence or advice about where to look and when, they are going to drill a dry hole. I doubt they even looked up the history of the 299th. If they had, they’d see the notation about Camp Radcliff but you said you were in HHC which was deployed to Phu Tai. Unfortunately none of the rest of your story fits the known facts or you have not provided enough infor to them to discover the truth.
          I note also that you claim you were assigned to HHC. Generally, HHC, or Headquarters/Headquarters Company units are the command unit and are not engaged with the the enemy on a day to day basis. This generally falls to the other companies assigned to the Battalion. I do not wish to impugn your service but you must understand that the VA takes what you say and converts it to the known facts which are scrupulously filed and kept in the NARA archives. Every engagement with the enemy was documented. Every casualty was added to the wall. Look up some of the folks you claim died there on the Virtual Wall and it will tell you not only the date and location but the cause of the death (i.e. mortar, small arms fire, etc.)http://www.virtualwall.org/

          One thing is for certain. Going for Bergmann was wise. You don’t want to play house at the CAVC without a law dog. I also might suggest you leave a message for others you served with on the 299th message board. I’ve had great success reconnecting guys with others they served with in country. Here’s the link http://www.299thcombatengineers.com/MainMessages.htm

  2. John King says:

    How many letters and claims have I filed that were misplaced or ignored over the last 40 years? The VA gets the benefit of “regularity” and we must prove our claims and evidence arrived at the VA and was read and considered. My very first claim the VA did not read my evidence from my doctor. It was just assumed that they did, and I did not know enough to appeal because I believed they must have read the evidence. Now I know they did not, but it doesn’t matter even where the BVA admits there is not one shred of evidence that the VA ever considered my evidence. Since then the VA has misplaced and misdirected many claims, but I got them on appeal. I trusted them once and that one was on me because even though the VA admits they sent my appeal rights to the wrong address I am probably screwed. Since then I have not trusted them with anything important. People speak about winning a claim at the VA and that is what it is like in the Lotto. My VARO just looks for reasons to deny at least back in 2001 they did. They would take an IME that’s entire thrust is to demonstrate that the vet’s exam backs up 100% and then find on phrase to deny it. A buddy and I used the same IME doctor for our TDIU appeal. My IME was accepted with so much gusto that the VA just incorporated it into the decision word for word. I won. My buddy’s IME was rejected as “Doctor shopping” with no justification at all. He won 100% and “S” on another appeal just by getting another C&P exam where he scared the exam doctor so bad I think he never wanted to see my buddy again as long as he lived.

  3. WGM says:

    I don’t believe it was an accident it was labeled affirmed.
    This is SOP from years of splendid isolation, never being held accountable, and being defiant to the Court and Veteran’s. It will take many more contempt of court decisions before the lying and cheating ends. The punishment should have included all those that were involved with this injustice. Lets hope to see more sanctions in the future or there will be no meaningful change for the better going forward. Kasold should be fired and be disbarred and never again allowed to practice law.

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