I see much written both here and over at HADIT.com about BVA hearings. For the majority of you, in the interests of getting rated as soon as possible, waiting for a Travel Board hearing face-to-face with a Veterans Law Judge is a two-year plus extravaganza you can ill afford. Most opt for the Videoconference method by their local VARO connected to the Judge sitting in DC. Few are willing to wait out a shot at the eyeball-to-eyeball poker game and fewer still are willing to fly back to DC for a one-on-one in the Judge’s conference room.
Every hearing I’ve had-all two- have been the face-to- face version. I count the first DRO hearing in October 1990 as one. This was before the term DRO existed. He was the rating officer, the senior rating officer and the DRO all rolled into one. Mr. J.F. Wallace went on to become what we now call the Veterans Service Center Manager or VSCM and actually was there when I reopened in 2007.
I missed the second one. In 1991, they didn’t tell us these things. It disappeared off to DC and then surfaced like a bobber after a strike in a year or so- denied. IN fact, old Ron Ampe, my DAV rep. never bothered to mention the CAVC option. I was so naive back then. Ouch.
A Board hearing with the judge is a disconcerting occasion for many. If you have any practice in public speaking, it’s far easier. Looking the judge in the eye when you’re talking is paramount. I’ve discussed this in my book but the crux of the matter is now that you have his undivided attention in this setting, you have to impress him/her with your intensity, your commitment to justice and your willingness to wait a long time to face him/her to communicate what no one else seems to have been able to convey- what happened, how it happened and why you’re there.
Having a VSO representative, to me, was about as effective as an umbrella in the far wall of a hurricane. He contributed nothing. In my second hearing before Judge Mark Hindin, I had a bobblehead doll who nodded and took no notes. I showed him every point, every legal turn and gave him the proper cites. It was all for naught. He skipped right over the 1994 NOD with N&ME like a stylus on a scratched record and kept on going. It was the only way to make the denial stick. Most oddly, he gave me not 45 minutes to discuss Air America but fully one hour and twenty minutes. I cannot say there was planned denial but one must admit that VA didn’t cotton to the idea of another Leroy Macklem on their doorstep asking for 200% back to 1994. It’s far easier to deny a pro se Vet on the off chance he’ll fold and never even call up NSVLP or file a NOA.
When I filed the Extraordinary Writ of Mandamus or EWOM for short, I knew it would ignite a firestorm. I submitted my letters to Call me Bob. I submitted all the IRIS messages from VA that clotheslined them with their own statements. I screenshotted eBenefits every time something changed though it rarely did over 4 years. In short, the Writ evidence exceeded 95 pages alone. It was particularly damning and gave them little cover to hide behind. As documented in The Birth of A Writ, the VA magnanimously slipped into high gear and granted almost all I asked for. Almost.
Left unfinished was the 60% for Porphyria that I asked 100% for. Also missing was the ILP Greenhouse. VA insisted I never filed a rebuttal to the SSOC issued May 5th, 2014 and therefore there was no need for an additional one in the answer to my Writ. Silly VA. Green cards are for Vets. ILP SSOC rebuttal rcv’d by SEARO 346 5-22-2014 .That’s the oldest trick in the book. And, as we all know, if you send in a rebuttal to an SSOC with New and material evidence, the de novo crew has to get to work, fabricate another Adobe 2 denial document with the wrong tense and dangling participles- and- in a separate document, reissue a new SSOC continuing the ongoing denial. Under no circumstances can you blow off a submission of new and material evidence-ever. That’s a major Bozo No-No. Here, we have the hierarchy, the crème de la crème of the Appeals team dropping the ball- or not.
Remember? We’re talking VR&E Officers trying desperately to be DROs. That’s like trying to pretend to be a pilot. Eventually it’s going to become evident you don’t have a clue what you’re doing in the left seat when you can’t even turn on the engine. Throughout the denial game over the last four years, these chowderheads have misquoted 38 CFR, denied with no reasons and bases, miscounted greenhouses and lastly issued a SSOC using brand new 2014 regulations in the M 28 R manual. Failing to rebut my answer and issuing a Form 8 certifying this is virtually impossible to comprehend. A first year law student isn’t that stupid by the third day.
While I was in San Francisco at the NOVA conference, I got a frantic call- actually three in a row- from our old friends at the VA Prize Redemption Center on Friday the 17th. The 800-827-1000 was a dead giveaway. I smiled as I answered. Sure enough, the VA travel board coordinator was eager to pencil me in Wednesday the 29th of April for 1030 hrs with VLJ Vito Clemente. I gladly accepted and waived the 30-day requirement for scheduling board hearings. I managed to also inveigle “Peggy” into relinquishing my VR&E file so Bob Walsh can defend me properly. Considering he’s my mouthpiece, seems the call should have gone to him anyway. Mostly, we want it to make sure they have my SSOC rebuttal in the file so we can hang them.
Two scenarios unfold. We could logically ask for a remand back to have the Seattle bozos redeny the greenhouse and issue the missing SSOC-or- we can overlook their stupidity and submit my rebuttal as a new document-yep- as in new and material evidence, submitted directly to the judge with a waiver of review in the first instance in Seattle. The latter seems to be the preferred choice but we get to reveal the SSOC presumption of stupidity attaches to the Seattle VR &E office.
I wish to thank Bruce McCartney for the prodigious amount of statistics he has unearthed showing the ILP is a chimera. His greenhouse appears to be the only one issued to date. Much of my evidence is his evidence. If it were not for him, I would probably still be oblivious to the ILP.
The hearing this Wednesday will be attended by my trusty rainmaker LawBob Squarepants who is flying in Tuesday from Detroit. I’ve been waiting for this do over since 1994. Now I have the moral high ground. VA has little left to use in their defense for arguments. In any case, this isn’t a Perry Mason moment. It’s more an opportunity to sweep up the broken glass and close the book on my burgeoning eleven-volume c-file. The appeals seem to have been advanced on the docket under 38 CFR 20.900 (c). Which clause they chose to employ to justify it is immaterial. A decision will in all probability, be forthcoming within two months or so. The evidence is dispositive and the case law/regs for the ILP are iron-clad.
Of course, that’s what I said after I walked out of the hearing with VLJ Hindin April 5th, 2011. It ain’t over until the Vito sings this time.