CAVC–GOPAN V SHINSEKI- LINE OF DUTY FOR DUMMIES


vetcourtappealspromoOver the last eight years I have read law. Lots of it. Line of Duty (LOD) determinations are one of those fuzzy areas where everyone can agree to the same thing for five minutes. Then along comes another LOD appeal and all the existing law flies out the window. Here’s a 2009 Single Judge decision by old Judge Greene that illustrates the propensity of the BVA boards of three back in the early days to deny for no other reason than that they could. 

In 1961, VA instituted Boards of three Veterans Law Judges (VLJs), one of whom was a dual hatter-i.e. a Juris Doctor with a Medical Doctorate as well. I often wondered if s/he was remunerated at a higher rate. If not, s/he was a chump.  These VA Boards (twenty) were entrusted with hearing Veterans claims and deciding their merits. Rather than shuffle the Judges about geographically, each Board was assigned an area of the continental United States or one of the outlying areas such as Manila, Anchorage, Hawaii or Puerto Rico. If you, Joe Veteran, lived in Seattle, you would get the same Board over the life of any claims you appealed. This didn’t change until they reshuffled the deck after the passage of the VJRA in 1988 or the judges kicked the bucket/retired.

Another disagreeable aspect of the Board of Veterans Appeals back in the days of Mr. Joel L. Gopan was the lack of  a mechanism to appeal higher. Quite simply, if you lost at the BVA, that was all she wrote. Given the fact that most Judges realized which side of the bread was buttered, they tended to rule against Veterans. Their paychecks came from the VA and it was just de rigeur that they defend their own institution.

Meet Joel L. Gopan and his amazing 1971 technicolor CUE (clear and unmistakable error). Add in a side of earlier effective date and you just know this is going to be a good read.

Gopan-3553

Also, in conjunction with Line of Duty, I include a newer one by Judge Coral Wong Pietsch on the same subject. They bring two different theories to the table on LOD claims. Mr. Gopan’s is intriguing solely for the proposition that VA refused to recognize a clear LOD determination by the Nasty Guard that his injury occurred as stated and he was subsequently discharged for medical reasons directly attributable to it. On the other hand, Mr. Raymond Alley’s decision was remarkable for VA’s refusal to recognize their own rules and regulations saying they are not bound by the military service’s determination of LOD-in certain circumstances.

AlleyRL_12-691

Early VA justice has always been considered lopsided, slipshod and poorly reasoned. The reason for this philosophy is simple. It was. This is one reason we have so much success opening up the books and getting SC for some who have lost repeatedly. Oddly and fortunately, those of us too dense to appeal to the BVA are somewhat blessed. A BVA decision subsumes a piss-poor Regional Office decision and rarely can be reversed as Mr. Gopan did here. By failing to file an appeal and allowing a decision to expire, it leaves open the possibility or overturning it later on CUE. This is not to say that a reversal of a BVA decision in 1971 based on CUE below at the Regional Office is impossible but the menu of options (read reasons) is far more restrictive.

Joel’s  1971 BVA decision was a whitewash.

Although the service department had assigned a line of duty determination to Mr. Gopan’s disability, the Board concluded that it was “patently inconsistent” with the law administered by VA to hold that Mr. Gopan’s old adhesions and regional entritis (sic) could have been aggravated during his few days of service, especially since there were no new internal injuries found.  Thus, the Board determined that Mr. Gopan had no in-service injury while on active duty for training that would entitle him to benefits.

When Joel finally won thirty years later in 2001, he filed for appeal on two separate counts. Number one was the clear and unmistakable error that 1971 was the correct effective date and two, that he was erroneously denied in 1971 due to a misreading of 38 CFR §3.1(k). The fact that the RO granted his claim in 2001 precisely because the medical evidence from his STRs in 1971 showed it occurred in service made this a no brainer. Nevertheless, the BVA was not going to okay a gazillion dollars in a Fenderson staged rating from 1971 to now without a very big fight to the CAVC.

In line of duty means an injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was the result of the veteran’s own willful misconduct. A service department finding that injury, disease or death occurred in line of duty will be binding on the [VA] unless it is patently inconsistent with the requirements of laws administered by [VA].

Mr. Gopan was on firm legal ground in 1971 and got a rotten deal. His CUE hinged on the red above. Mr. Alley’s win hinged on the second half in blue. Thus you can see there is much more to LOD than spotting the acronym in the contemporary service records.

The 1971 BVA Board, as well as the 2007 Board of One Judge, both got it wrong. Granted, VA is loathe to overturn old decisions based on CUE. We saw this phenomenon in Macklem v Shinseki play out all the way to the Fed. Circus and quietly disappear. I have often theorized that the BVA’s refusal to grant my earlier effective date back to 1994 was born of the same rationale. Deny it and force it up to the CAVC. Obviously there are two possible immediate outcomes. The Vet may not appeal and secondly, the CAVC may see it VA’s way.

Mr. Gopan’s tenacity and inherent sense of justice wouldn’t permit him to let this one go. Mr. Alley had nothing to lose. He was headed to the locker room with nothing if he lost. Granted, Alley’s circumstances were arguable to some degree but the bottom line is Chevron deference. VA clearly wrote 3.1 to encompass a benefit of the doubt as to the severity of the crime that would forbid service connection. Judge Coral’s reasoning on it was superb. The codicil of willful misconduct will always be the legal standard rather than a dry parsing of the term “Not in the Line of Duty”. Here’s how it shakes out.

The applicable VA criteria for a negative line of duty finding are different from the military criteria. Specifically, Army regulations in 1962 provided that a negative line of duty determination
required substantial evidence that an injury or disease was “[i]ncurred or contracted during a period of unauthorized absence.” AR 600-140, para. 16 (1962). Army regulations further provided that “a period of unauthorized absence” was established when a service member “voluntarily absented himself from his unit or organization or place of duty without proper authority, or was absent from a scheduled duty or restriction, at the time the injury or disease was incurred.” (emphasis in original). Applicable VA regulations, however, require a finding that the claimant was “absent without leave which materially interfered with the performance of military duty.” 38 C.F.R. § 3.1(m)(1). Thus, the VA regulations applicable in this case, unlike the 1962 military regulations, require a finding that the claimant’s absence materially interfered with the performance of his duty.

The BVA generally is far more likely to deny anything which is not in the line of duty more so than they are to approve. Seeing the word ‘not LOD’ in the STRs virtually ends the discussion as does ‘willful misconduct’. Conversely, VA is loathe to grant when they see anything they believe smacks of willful misconduct even if the military record in question iterates it was LOD. This dichotomy throws off many VA attorneys and they never question it or the possibility the logic/regulation/statute is being transmogrified.

Simply put, a Line Of Duty determination is not determinative until the CAVC has spoken to it. We pretty much know what VA’s take on it is going to be. Considering they deny 85% of all decisions-right or wrong- we would be fools not to tug on the loose thread of this Walmarket® sweater to see if it unravels. Obviously, certain acts such as AWOL (absent without official leave) are inexcusable for the most part. I’ve seen them overturned for compassionate reasons so they, too, are not definitive examples of immutable case law.

Never for a moment think a Not LOD is the last word on the subject. Allow me to show you a glaring hole in Hepatitis C jurisprudence many VA attorneys fail to pursue. Remember, this is perfectly legal.

Imagine:

Johnny Vet is in combat in Vietnam. One of his buddies says “Here, shoot/snort some of this junk. It’ll calm your nerves before the gooks come through the wire tonight. It’s gonna be ugly.” Johnbo does this a few times and decides it’s not his drug du jour. He never does it again and 30 years later he discovers his actions  have caused a raging case of Hep C that’s killing him. Willful misconduct for doing drugs? No. And here’s why.

38 CFR §3.301(c) (3):

(3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin.

Hepatitis C is an organic disease. The plethora of secondary diseases associated with Hepatitis C is extensive. An infection often takes 30 + years to manifest itself. The clear reading of this regulation can only imply that if you contracted HCV due to using drugs/sharing a needle or straw and were never addicted or a chronic user is that your HCV can legally be service connected.

The mention of paragraph (d) is as follows:

(d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects.

This was my chauffeur-driven Lexus many times. The "O" stood for obsolete. Note the pod with the marker rockets on the outboard pylon

This was my chauffeur-driven Lexus many times. The “O” stood for obsolete. Note the pod with the marker rockets on the outboard pylon

As you can see, paragraph (d) and paragraph (c)(3) seem at odds with one another unless you only focus on the phrase “organic disease” and can, in clear conscience, say you didn’t do it for it’s intoxicating effects.  Most importantly, you must reach the high ground of “I never abused drugs”. Hell, I smoked a joint fairly regularly before I took off to keep my hands from shaking and to get my courage up. Granted, I shared bongs but I doubt I got Hep C from it. I can’t say I did it for its intoxicating effects. I did it to remain sane. The very last thing I wanted to be was ‘intoxicated’ on any drug in a combat setting. You need every ounce of concentration to stay alive. And, no- rest easy, folks. I never shot up drugs. My Hep C was held to be caused by a transfusion subsequent to an errant 7.62 X 39mm projectile.

Before any of you ever just accept conventional wisdom on what a regulation or statute says, read it yourself and carefully parse the usage of each and every word/sentence to see how and why an action such as LOD or willful misconduct is, or can be, arrived at.

I have used the bolded purple above to help Veterans get service connection for hepatitis C, secondary to PTSD a few times. Again, a perfectly viable path to service connection exists if you are shaking like a leaf on a tree and decide a dose of white lady was preferable to desertion or going AWOL. I doubt any of us would have ever indulged in something we thought was going to result in a terminal disease a half century later.

The perfect cockpit seat we were never issued.

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About asknod

VA claims blogger
This entry was posted in All about Veterans, CAVC Knowledge, CAVC ruling, KP Veterans, LOD and willful misconduct, transfusions and hepatitis, Veterans Law and tagged , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

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