Happy 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).
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.
As 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.