CAVC– THE BIRTH OF A WRIT


VetCourtAppealsPromoHappy New Year to all and an apology is in order. I have been deeply immersed in my Opera Dei with my rainmaker. This Writ which I mentioned in December is for the whole shooting match. As some of you who “do law” have recently witnessed, Mr. Gene Groves recently handed the VA their ass on a platter- not that it required Sherlock Holmes and his bloodhounds to find the corpus delicti.

VA’s legendary ham-handed tactics leave more fingerprints on that c-file than there’s quills on a porcupine. Conversely, their inaction is equally just as evident by the dearth of documents that should  have accompanied all his (Groves’) missives. This is evident when you read some of the extensive docket in 14-269. Contrary to VA’s law for us, absence of evidence in this case was most definitely horribly and indisputably negative evidence and butresses our newest and most Holy Proscript for the new year- the dreaded Presumption Of Regularity. From here on out, we will begin abbreviating this as the POR. Remember it and keep it holy. POR is gun in a rocks/paper /scissors VA game.

VA has long waved it’s own POR flag over the centuries and with great success. In VAworld, the first cracks in POR of the mail began with Rios v. Mansfield. back in 2007. Actually, Butler v. Principi touched on the general idea in 2001 (see below) I wrote it up to illustrate how it works from both sides. However, Jurisprudence runs far deeper on this whole POR game these days. Far too often in the judicial arena,  we are given the perfect opportunity for a roundhouse left sucker punch that could put Will. E Gunn’s new protégé, Leigh Bradley. out cold on the floor. Many attorneys, pro se Vets and, of course all VSO service reps. miss this legal opportunity to knock one out of the park. Hey, it’s a free shot. VA walks right into it. To give them a bye on it is foolish. Make them look like boobs.

In the haste to cite to regulations broken or ignored, all too often two priceless areas are overlooked. The POR- check. But what of the lovely 10 commandments sitting in there front and center at the start of 38 CFR § 4 ? When you get really immersed in it, you can start roaming the VA OGC Precedents for more ammo.

Without going that far afield, we see the early beginnings of POR back in 1983 but all jurisprudence in that vein was cited by those accorded the Presumption. They didn’t have to prove “actual compliance” because they were Poohbah’s with a capital P and were trusted to do the right thing always. Somewhere along down the line in VAland, it became increasingly obvious that VA didn’t always follow their own rules. VAOIG insists they’ve been telling us this about the VHA since 2005, but we just didn’t listen. And now we have another Phoenix VAMC rising from the ashes daily.- only in Denver, Seattle and Pittsburgh. Their criticism of the 58 Fort Fumbles across the fruited plain was far more muted.

The POR doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary. United States v. Roses, Inc.,706 F.2d 1563, 1567 (Fed.Cir.1983).

download (1)Mr. Tommie P. Butler , with “Kansas Kenny” Carpenter (no relation to Karen of singing fame) as his shieldbearer, decided to disassemble this POR Rubik’s cube and see what happens when you stand on the other side of the mirror. This was the seminal case to point to and will be for a while for Vets. He lost as did Norm Gilbert and a host of others before him but an important concept began to metastasize. What appears regular is regular for VA. But this ax cuts both ways. Conversely stated, what appears irregular is irregular. If VA cannot, by the preponderance of evidence in the c-file, prove conclusively, as in Mr. Groves’ case, that they have done everything according to Hoyle, the grand POR façade crumbles.

What was left in Mr. Groves’ case was the reality that VA made absolutely no attempt to “listen” to him. You and I know this. Often we can’t get any definitive answers from the Puzzle Palace until we hire the law dog. Apparently they have all the phone numbers and email address of those we seek to inform. What? you guys and gals think Kansas Kenny calls the VA Prize Redemption Center at their toll-free 800-827-1000 hotline every time he has a question? That VSO Koolaid you’re drinking will kill you.

Mr. Groves will, very soon if he hasn’t already, be getting lots of correspondence from the Houston Regional Office which is his Agency of Jurisdiction. A lot of it should have been sent years ago, but hey, they still have Pony Express out there in Bugtussle. It’s not VA’s fault he decided to live at the ass end of nowhere. That’s the hubris the VA exhibits. You’ll be reading about VA hubris very soon in my new Writ.

tr6As for the “what appears irregular, is irregular”, this is the operable phrase for 2015. This is the smoking gun for us. If, by the sum of evidence, something essential is missing from your adjudication -say an SSOC that should by rights have been issued and wasn’t- this isn’t just a Cushman due process violation anymore. It becomes a double ticket- kind of like all those speeding while DUI I got back in the eighties when I was divorced and driving a fuel-injected TR-6 at 0201 Hrs Local. Correct. Think Cushman with Butler on top. The VA rater is no longer accorded the fig leaf of POR respectability if it can be shown he can’t adjudicate a claim correctly.

The teaching lesson today and for this glorious new year under the reign of Bob the Merciful is to look for that which doesn’t fit-i.e. irregular. If VA makes a broad, unsupported statement or grossly misinterprets a CFR, what you are really looking at is “irregular” which is synonymous with the word inept. If they are inept, the presumption that they are knowledgeable in all they do is rebutted . VA personnel, by virtue of POR, are presumed to be Superwo/men capable of leaping tall c-files at a single bound, more powerful than a Cray super-cool(ed) computer and faster mentally than a speeding VBMS word-searchable .pdf. By demolishing the foundation, little else is left standing. And here is the beauty of it. When you prove this violation, the burden shifts to the attacker (VA) to show the contrary. Boy howdy that’s a funny dance to watch.

Before the end of March this year and the twenty first anniversary of my 1994 filing, I hope to teach the finer points of POR.  Recognizing it sometimes can be as innocuous as VA just happening to inadvertently let drop that you were in Vietnam after vociferously denying the  idea for thirteen years. Or better, to accidentally grant a 10% Tinnitus claim for increase back to 1994 and think this chucklehead Vet is going to guffaw a few times like Gomer Pyle and go home.

2015 will be a banner year for VA CAVC and Fed. Circus jurisprudence. We’ve broken through the glass ceiling of VA’s respectability that has stymied us for so many decades. With almost twenty five years of VJRA-infused oversight and a more Veteran-friendly, paternalistic mindset finally being allowed to infect federal judges, we can expect to be greeted on a more even footing instead of feeling we’re climbing Mt. Everest without a Sherpa. With the 2007 revision finally allowing us real leagle beagles and not the VSO variety, our chances for a win increased astronomically on appeal. Just imagine what we could accomplish with a real attorney filing in our stead in the first instance at the VARO. They wouldn’t be forced to sweep up the broken glass caused by well-meaning service officers.

Gene Groves’ case taught me several things philosophically about the proper amount of umbrage to express but SquareBob Spongepants hit it perfectly from my perspective. His immortal words that kept me from diving off the deep end prematurely:

“You only have one chance at this to get it right Buckwheat. Think of it like this. You augered in with a dead engine. You’ve been waiting for an extraction for two days. The SAR txponder is dead (as usual). You only have one smoke grenade and you can hear that BUFF 53 pounding the jungle searching for you. You either hold up until you know you’ll get a visual when you pop smoke or you’re gonna be walkin’ home.”

Thank God ol’ Bob is going to roar in a week later waving my POA and do his Al Sharpton goes to Fenderson MO. imitation (“The Boy was dissed for twenty years, I say!). Great legal theatre is in store for all.   Act I -Poor pro se Vet shows up with Ferrari Writ from Hell authored by Clarence Darrow himself.

SquareBob Spongepants, Come on Down!

LawBob Squarepants, Come on Down!

This is the first of a multi-part series. Call it Act I. Scene one. Here’s the next scene

https://asknod.wordpress.com/2015/01/06/cavc-birth-of-a-writ-act-i-scene-2-fair-is-foul/

About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Presumption of Regularity, Veterans Law, Vietnam Disease Issues and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink.

7 Responses to CAVC– THE BIRTH OF A WRIT

  1. Vicki Foley says:

    Alex, any idea of when you plan on filing your writ petition?

    • asknod says:

      Launch is Monday 5 Jan. Am awaiting clearance for active runway and departure frequency.

      • Vicki Foley says:

        I’m an ex flight attendant, so I’ll also prepare the cabin for departure and cross check (that exit slides are armed). There’s no getting off this flight till we block in at the other end, so hopefully, you won’t have that bumpy of a ride. Keeping the window shades raised on this one, as I don’t want to miss anything. Keep us posted…

        • asknod says:

          Miz Vicky
          I promised when I started this blog in 08 that I would reveal the secret handshake and password. This Writ will simply be what some VSOs might consider foolish and never sanction-let alone file for you. I speak of staying the course and making the VA finish it. It will be fairly obvious when I publish the .pdf of the actual Writ filing that VA has fought a rearguard retreat action from house to house. The win in 2008 was merely the first crack in the wall.
          Most would go home and say Amen. Most. This fight is for every one of you. It’s to show you how and why you should do it. Giving up goes in their win column.

          Twenty years. Did they think finally paying me 5/8 would appease me? Bearding the lion in his own den can be dangerous like being an alligator dentist.They screwed up, though. I’m now 20 years protected against a sudden discovery that I appear to have more color in my cheeks and oh-oh, 60%. I would still do it. I didn’t cheat to get here. When they call you a liar politely and say your records don’t show something, they better be prepared to put their money in front of the Piehole.

          Needed an industrial stapler to go through 116 pages to make it legal. 16 copies @ 95 pages = 1,568 pages. Seven copies of the Writ plus the signed original in blue ink to CAVC; Two each to Call me Bob, USB Allison in Wonderland Hickey; the OGC and the VBASEATTLE Director (not the VSCM). 75 pages of exhibits to include IRIS, eBenefits screen shots etc. The letters to Call me Bob. 8 1/2 X 11 glossies of my green cards showing something different from what VA says. Virtually everything but the kitchen sink, little lady. Put on the popcorn next week and tune in.

  2. WGM says:

    I would like to be a wall flower when this here dance starts. Do the court’s allow spectators in to see the show? If no, then you’re summary will be more entertaining and informational anyway.
    I’m praying sanctions a-plenty are issued, long, deep, and continuously.
    Use dry ice as Will Shackspere recommends revenge is best served chilled.

  3. Karen S. says:

    Two months ago I send a NOD in with “Absence of Evidence”and it’s bells and whistles. Green paper received, but NOD not entered into my file. Strange?

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