It is said sarcasm is hard to detect in internet postings. So hard, in fact, that over 60% of it goes right over the head of the intended recipients. How sad. Sarcasm is my forte. It’s my raison d’etre in a boring, predictable world of VA law. Without it, we would have to suffer a mundane existence devoid of subtle attacks on those who rightfully deserve to be outed for their ignorance or lack of judicial acumen. I suppose I could lie and say I take no pleasure in it. Here, justice had to run its pedantic path to accomplish what all but the densest jurist could clearly see.
Meet Harmon NMI Carter Junior. There’s an economy of name. I’ll forego sarcasm on this. A name is a man’s talisman to take him through life. Each should be unique. Mr. Carter’s father obviously was enamoured of his own moniker and passed it on. Mr. Carter (junior) served in the Army from 1965-67 and his SMRs show a prior, pre-existing back injury that was perhaps aggravated while in service. He filed in 1989 and got the standard “Surprise, surprise, surprise, Sgt. Carter!” As most old hands at this know, you usually got a lovely personalized letter on onion skin paper ambiguously telling you that VA was unable to accommodate your request. The one I got in 1989 didn’t even mention what I was asking for but merely stated I hadn’t won the VA lotto. They did promise to keep the lights on for me in case I came back with more evidence. And yes, I used the DAV too, if you have to know.
Equitable tolling at the VA is a non sequitur. While it is amply described in law, finding it is akin to locating the Holy Grail. I, too, have found it elusive. My recent Extraordinary Writ (CAVC-15-0112) shamed them into finally granting it to my twenty one year old claims. Mr. Carter had to go much further to obtain his. Harmon refiled for his back injury in 2005 using the Disabled American Veterans VSO. That was his first mistake. Hell, he may have used them in 1989 so this could have been the second try. The record is unclear but the constant, unbroken path of denials isn’t. After he lost yet again at the Board of Veterans Appeals in 2009, it dawned on him that he wasn’t going to win using the same tired method. He was now zero for three at bat using DAV as his designated hitter. Here’s the BVA decision:
When you sign a new Form 21-22a Power of Attorney (POA), you expect VA to do what most responsible courts or legal entities do. File it and change the record to reflect your new representation. It does no good to send DAV the correspondence if they have no association with you anymore. It also deprives the new law dog (or VSO) of learning what’s up. Here, it created a bow wave of immense proportions. So high, in fact, that Mr. Carter was basically undefended for the better part of his Court-ordered Joint Motion for Remand (JMR) that could have saved his bacon at the BVA.
Heather Vanhoose, of the Jan Dils legal firm in West Virginia, was equally left in the dark about what was going on. She had already asked for his complete claims file when they first filed at the CAVC to fix what the DAV had wrecked previously. The c-file is like a Rand McNally map to lead you through the maze. It allows you to find out how venal the VA can actually be-on paper.
Vanhoose did a magnificent job of salvaging Mr. Carter’s BVA loss and extracting a JMR. That much is not in dispute. What ensued afterwards is the problem. Ms. Vanhoose, from the moment the ink was dry on the POA in March 2010 began the process of extracting the c-file from the VA. This really should not have been an issue as the BVA is routinely required to supply the attorney with it as soon as the NOA is filed. Something went wrong but this does not excuse the dereliction of duty. An attorney, by taking the Vet’s POA, promises due diligence in the prosecution of your claim. This includes obtaining the c-file in a timely manner or finding out what the delay is in an equally timely manner. As the VA likes to point out, this is a two-way street. Taking nine months to produce a document is unconscionable and most courts would view it as obstruction to discovery. Dawdling for two months before opening it up to find the 90-day letter was also not the smartest thing to do in retrospect. It was now a fait accompli and a stale 180-day letter.
So, while Ms. Vanhoose sat and waited patiently for the c-file to arrive, Mr. Carter’s remanded case arrived back at the BVA. As is the case with these things, the BVA sent out what we call the 90-day letter telling Ms. Vanhoose she needed to send in the probative evidence lickety spit so they could make a new, informed decision on his claim. Unbeknownst to Heather and Harmon, the VA sent it to the DAV. The 90-day letter sat in Harmon’s c-file until Heather decided to review it in February 2011. We won’t fault her for the fact that she didn’t dive right in to the file when she got it several months earlier. I get that. Here you are thinking you have all the time in the world to begin anew building your case at the BVA and they have already decided it. To add insult to injury, she didn’t even get a copy of the BVA decision until December 2011-almost a year after it was decided. That’s how nonadversarial and Veteran Friendly we’re talking about here.
Equitable justice would almost demand equitable tolling here. How is an attorney to develop and build a case sans the essential evidence needed when VA is playing keep away with it? By the same token, how is said attorney to defend against the injustice of not being apprised of each and every motion et cetera that is taking place when they are mailing all the documents to the DAV in East Bumfork, West Virginia?
To add insult to injury, Ms. Vanhoose, instead of pursuing the most egregious violation of keeping her under house arrest in the basement with the mushrooms and compost, decided to fight the actual denial of the second BVA necktie party over the case and controversy of Roberson v. Shinseki. Idiot’s delight. This is where someone with extensive legal acumen should have stepped in and focused on the big picture. Instead, she soldiered on up to the CAVC again with a limp legal argument. Kasold, Hagel and Moorman made short shrift of her there as they probably should have. But it doesn’t end there.
In any nuanced judicial proceeding, a good judge, or at least a majority of a panel, should do some investigative work. You would never see this degree of ineptitude had Judge Meg Bartley been aboard. If you remember, she was the one who correctly identified the same (or very similar) treatment to Mr. Buie in 2013. While the nonadversarial, give the Vet a bone ideology ostensibly ends at the CAVC, Mr. Carter was given short shrift from start to finish. Any judge with a reputable JD from a name-brand university should have spotted the incongruity of not having the c-file with which to defend Mr. Carter. Further, even the village idiot can see that sending a 90-day letter (not to mention the BVA decision) to the wrong party creates an inequity so immense that it can never be righted by saying the BVA cured the fault by giving Ms. Vanhoose a humongous ninety days to figure it out. Here’s the CAVC “Bruce Almighty” blue plate special:
WHO YOU GONNA CALL?
At this stage, there weren’t many options. Harmon Carter was luckier than most. He managed to finagle Kenneth “the Woodbutcher” Carpenter into repping him up at the Dead Circus in one last attempt to show he was hornswoggled by the VA . To give you an idea of old Kenny’s abilities, listen to him on oral arguments when you get a chance. This guy could talk the the white off of rice. Had he been born at the dawn of time, he could have talked the devil out of his virginity. He could sell Pacific Ocean beachfront property in downtown Tuscon and people would be doing it for cash on nothing more than a handshake. In court, that mellifluous voice of his can charm the pants off a judge. Add to that his able grasp of all things legal and you have the perfect attorney storm.
The Kenster marched in and laid out the equitable tolling argument Heather Vanhoose should have been hammering at down below at the second CAVC appearance. This is the meat of the argument. Having the judicial clarity to see that is what separates the ribbon clerks from the poker players in this game of VA justice. I have noticed over the last eight years that VA is fond of arguing apples while you’re still counting up the oranges and wondering what’s wrong with their evidence. When they can roll an attorney and her whole law office into fighting the wrong injustice as they did here to Heather and Jan Dils, we have to wonder if the forest escaped their attention in favor of a few well-placed trees.
In 1994, the VA promised me a de novo decision based on new and material evidence I submitted with my NOD. That never happened. In 2009, they said I never filed a Form 9 and the claim died. They were careful to say I filed no evidence after the Statement of the Case was issued. True, it was filed before. The clock thus was not started and the 60-day suspense date never began. A year later, they said they had read the new and material evidence, and, had I gotten off my dead ass and filed the Form 9, would have issued a SSOC. Because I didn’t, the claim was dead. Both arguments rested on the wrong legal premise. VA does that a lot. Here, Harmon was given the Shortline Railroad to a denial because VA failed to give Vanhoose the most basic consideration–time. In a moment of blind justice, the panel at the CAVC narrow mindedly seconded the BVA and ignored the failure to equitably toll the BVA decision. How they could rationalize the inequity of the mailing snafu will die with Hagel. Hence the polite Fed. Circus panel’s allusion to the CAVC judges having the vapors.
I guess the most egregious thing was not to approach the hierarchy of the BVA and immediately point out the gross inequity of mailing all the info to the DAV. That, in and of itself, should have provoked a Reconsideration which would have avoided the follow-on disaster. A good attorney would have pursued the MFR (Motion for Reconsideration) first instead of blindly running out to file a NOA and chasing down the Hoodoo Lane argument of narrowly interpreting a JMR versus a far wider argument on just what it did and did not encompass.
The good news is Harmon will now get a new adjudication. As with most of these, I doubt we’ll be seeing much of him in the future. The BVA will probably grant his claim using the asknod squeaky wheel theory and he’ll live happily ever after. Last but not least, look to the end of the decision. They awarded old Kenny the legal costs for defending him. To the uninitiated, this is the ultimate bitchslap to VA. It says “You were rude, crude, unattractive-not to mention boorish- in your treatment of Mr. Carter. Please make sure you don’t do that again. Veterans are a protected, endangered species and, as such, must be accorded more leeway in the misguided pursuit of their claims. What you did to him was tantamount to hooliganism and we don’t tolerate that kind of behaviour hereabouts.”