Catchy song that. I can almost see the look on Ivor R. Parsons face when he got the hearing lollipop for 0% back in 1971. He might have even said “What about that ringie thing in my left ear? It’s kinda in my right one now, too.” I’m equally sure his DAV/AL/VFW (pick only one) minder said “Ivor, you won but I’d hold up if’n I was you. You don’t want them to think you’re greedy. Best take that 0% and we’ll come back in a few years to ask for the tinnitus again. After that, maybe we’ll ask them for some money.”
Here’s the case
Meet Ivor the gullible. He came back in 1998 for a do over on the tinnitus but due to one of those “Phoenix-type scheduling snafus”, VA ascertained he had “called to withdraw the claim.” Right. That’s VAspeak for we forgot to do this one so let’s wipe the board clean. They did. They scheduled him for a C&P which he didn’t attend. I’m betting that letter went to the address of record on his DD 214. And he didn’t appeal again. Seems odd to go to all that work to refile and then cancel out with a phone call. What’s even odder is that there’s no real paper trail of that on his part. We’re simply expected to believe this faery tale of Uncle Victor’s.
Fast forward to 2009. Ivor has been to school and is back. Meet Ivor the Pro Se invincible. By now, he’s realized he’s been had. No more Mr. Nice guy. He files with good stuff- well-you know VA hearing claims. You can be deaf as a post in one ear and 40% down the road on the other before they consider it a minor impairment. Mr. Parsons had tinnitus all over his STRs and now good private records showing chronicity in the 2009 reopen. VA screws up and continues the 0% popsicle for hearing but again ignores clear and unmistakable evidence (indeed a filing for) of his tinnitus. And Ivor called them on it. I know the feeling. You carefully lay it all out at the BVA videoconference hearing in English and you get a decision back two years later couched in Japanese. I’m sure Ivor must have turned to his wife as I did numerous times and asked “Do you understand what I’m saying? I have to ask because it seems my ability to convey my thoughts is failing me. Either that or they are purposefully ignoring the thrust of the appeal.”
About now, he’s beginning to think he’s speaking Japanese because VA is preparing to play the three card monte on him. Now you see it now you don’t. Where’s the ace? Ivor quickly laid a NOD on them a month later pointing out that the tinnitus rating was still hanging. VA didn’t even blink. They handed him back a SOC six months later but it still didn’t even mention ear ring. He just as quickly submitted new evidence to rebut the SOC and reiterate the tinnitus claim all over anew. Wonder of wonders. Some AFGE wunderkind rater finally noticed it. They granted the tinnitus for 10% almost overnight. No C&P. No nothing. When that happens, you better stay in well-lit areas and move your wallet to a front pocket. Of course, Mr. Parsons was not going to get his money back to 1971. Shoo doggies. No way.
Having finally hit the Lotto for about $4500 worth of 10% tinnitus chump change, Ivor saddled up a new NOD for 1971. VA played dumb and said “We don’t see any claim for tinnitus in 71. That was a hearing loss claim. You didn’t file for the tinnitus until 2009. And this is where the teaching moment begins. I call this malfeasance. VA considers it an unfortunate misunderstanding. Were that the case, we’d have to do remedial Phonics© for all the raters to help them sound out “reopen”.
VA would have you believe, and they also managed to do an end run around the CAVC and Fed Circus on this, that ‘implied’ or ‘implicit denials’ can be discerned simply by their absence in a decision. Yeppers. We didn’t forget to adjudicate it. We just forgot to mention it. Any Vet with an ounce of deductive logic could clearly see there was no grant for tinnitus in 1971. Therefore, VA’s logic dictates that it was denied even if it wasn’t “explicitly stated”. Old decisions, especially denials before the VJRA, were brief, one sentence affairs. ‘TY4YS and we were unable to grant that stuff. If you get your shit together in the future, you come on back, hear?
Ivor wasn’t buying this hooey and filed his Form 9. He subscribed to the belief that if you file for something, you get an up or down on each element. They gave him half the cake and demurred on the other half. In Ivor’s mind, that tinnitus was still ripe for a decision in 2010. And, as most of you know in VAland, they are not about to start cutting big checks without a big fight. They called in all those 500 leagle beagle staff attorneys at the BVA to carefully craft a durable denial. But, just like a Hollywood set with fake veneers, it all came tumbling down.
Veterans Law Judge Tom O’Shay, usually a stand up judge, fell into the gravitational pull of the OGC and signed off on what is undoubtedly one of the more convoluted, piss poor stories they’ve crafted down at the corner of Delay and Deny Ave. NW. Sister Mary Schoelen must have gotten the vapors reading of the shenanigans they pulled. Fortunately for Ivor, being pro se has a silver lining. They have to treat you with kid gloves. And if they pile on with the implicit denial trick, the rules dramatically change.
Back in 2007, this whole implicit denial game went against Veterans in a line of cases beginning with Ingram v. Nicholson. It gained momentum with Adams v. Shinseki at the Fed Circus again and finally became de rigeur with Cogburn v. Shinseki at the CAVC. Ingram held:
“where an RO decision discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not ‘specifically’ deny that claim“
However, Cogburn added some necessary parameters for this Texas necktie party.
(1) The relatedness of the claims
(2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied
(3) the timing of the claims
(4) whether the claimant is represented.
Obviously, hearing loss and tinnitus travel in pairs so (1) is met. Since there was no mention whatsoever let alone any reference to tinnitus, (2) hasn’t been substantially fulfilled. Both claims were filed simultaneously in 1971 so (3) is ironclad. Both issues had to be addressed but were not. And last but not least, Ivor was not represented because the Court has rightfully acknowledged that representation by a VSO such as Mr. Parson’s American Legion representative does not constitute representation in VAland. Having 50 hours on the CLE clock with your local VSO doesn’t cut it. Lacking the magic words Juris Doctor after your name makes you little more than a janitor at the legal firm where you work. What’s more, the BVA and O’Shay knew all this and skated around it or simply ignored it.
The whole business of what constitutes deemed denial only needs one acid test-(4). Failing that, you as a Vet are defenseless. Words like adversarial begin to populate the discussion. In Ivor’s case, Sister Mary began to pepper in a few “What were you thinking?”s and “You ignored (1), (3) and (4)”.
Implied denial is a game with set rules just like CUE. All of them must be met in order to prevail. Paying lip service to them is futile when you encounter a superior judicial intellect with an open mind like Sister Mary.
Judge Schoelen also artfully disentangled Ivor from his “late in the day” claim of CUE in the 1971 adjudication. Since he didn’t bring it up until he got to the BVA, it was moot. A CUE claim must be lodged at the Agency of Jurisdiction if it was never appealed. VLJ O’Shay really stepped on his necktie by even entertaining the motion in the first instance as he had no authority to do so. This allows Ivor to preserve that option for another day and frees Judge Schoelen to give his real claim from 1971 the introspection it so richly deserved.
In this day and age, we often think justice is steeped in tradition and errors are few and far between in the hallowed halls of 810 Vermin Ave. NW. Nothing could be further from the truth. The quality of justice there is spotty at best and borders on misfeasance on any given day. The CAVC isn’t much better if you draw the short straw and get a gomer with a tee time that conflicts with your brief. I personally feel they don’t even truly read them until they get to the CAVC and instead, merely plagiarize the last SOC or SSOC for enough verbiage to construct another denial.
Implicit denial is virtually a thing of the past. VA is getting anal about constructing bulletproof appeals decisions. In Ivor’s case , they just didn’t have enough material to work with and Saint Mary did the famous knick knack paddy whack on the OGC.
A law dog’s takaway from this is elementary. Timelines once again intrude into the legitimacy of the logic. Redenying a 1971 claim in 1999 is fine but you have to use the old laws of a well-grounded claim and whether new and material evidence was introduced. Again, without a BVA decision giving the cachet of finality, and with a claim still ripe for a decision, you, as a BVA judge have to tread very lightly and make sure you’re on firm legal ground. O’Shay and his compadres went at this like bulls in a china shop with no regard for contemporary VA law of the time in 1999. They tried to cut and paste 2015 onto 1999 and it didn’t fly.
The real miracle in my book is that Ivor did this pro se. Why not? Seems like everything else he tried turned to Japanese.