I do so love the new electronic world of footprints. The new Veterans Management of Benefits System (VMBS) is a wonderful tool to tell you what happened when and in near real time. One of the unexpected benefits of becoming a VA  Agent in this system is the ability to access Veterans’ records online after having filed the POA. No more trips to Fort Fumble and a proctor to monitor you to make sure you don’t tamper with the c-file. Of course, VA thinks this is Go to Jupiter rocket science when everyone else has been doing it for decades.

Wednesday last, on the morning of the visit by Seattle VA’s VR&E Independent Living Program administrators, the OGC filed the VR&E Officer’s Declaration of Facts concerning the history of the recent win. His recollections sure don’t zipper in with what all the emails say. I’ll publish them here in .jpg so you don’t have to keep jumping back and forth. From reading between the lines, it’s clear they spent almost four months from September 15th to December 16th trying to figure out if they even had to obey the stinkin’ BVA judge and his crazy decision. Seriously. They questioned why the M 28 R didn’t take precedence over a lowly BVA decision. After getting the bad news, VR&E Services (VR&E VACO or TOC) in DC told them if they could keep it under $15,000 dollars then they could administer it locally without the Company commander having to come down and personally lead the attack. The number and size of the subsequent lies is going to mount like a body count after a major assault. Watch this.

I threw the first rock and asked to see the specs for the signing of the Individual Independent Living Plan (IILP). I  freely admit the email resembled a porcupine but I wasn’t having any luck for the last nine months with them over a proposed plan, let alone a size.

Exhibit A for 16-2098 rebuttal of boyd

The next morning (July 7th), with no chatty “Looking so forward to seeing you on the 13th!”, was the attached plan.

July 7 new IILP

Just before the meeting, I discovered the boys had been busy with filing the below at the CAVC that very same morning. Earlybirds they were, yesssssssss.

Ruh oh, Rorge. Seems someone has been living in a parallel universe. I’ve been trying to talk to this guy for two years. Suddenly, when he discovers he can’t tell the BVA VLJ to go fly a kite, he contrives to provide a greenhouse of any size as long as the construction costs for it do not exceed $14,999.99 cents so he can maintain control of the situation locally. In the meantime, he lets the Veteran know he’s fighting as hard as he can to get it right and make sure the Vet gets everything he has coming to him by law.

II.(6) is priceless. “Activities included repeated consultations with Mr. Graham”.

II.(7) “request for guidance on specific size of greenhouse”.

II.(11) ” we gave him the plan but he refused to sign it.”

When I attached my Extraordinary Writ  to the blog entry here, I failed to include the list of emails between VA and myself. If you read them and link each one to dates above, you begin to see the story lines don’t match up.

31 pages of emails to and from VA VR&E 346

Nevertheless, electronic feet in the sand do leave a record and absent those VA footsteps, the Presumption of Regularity that the VR&E Officer did contact me repeatedly from January 18th to April 12th, 2016 is rebutted. You can’t go back and “recreate” the history as they baldly attempt to here. The Officer’s daily log would have to reflect a written record. You can’t just say “Yep. I called him and we talked about it.” Otherwise all my emails to them wouldn’t be filled with “When and how big?” and references to a Farmtek bid for a 24X 48 greenhouse-not a 50′ X 100″ [sic] one for $90,000. By the way, that 50 by 8’4″ size is a might expensive and skinny. I don’t recollect seeing it in the catalog.

Anyway, I told you VR&E had nothing to do most days so they were able to get their Declaration of Faery Tales out by the 13th. Here’s the response.

And zee document: Boyd declaration 16-2098

Well, I have to tell you. Wednesday was a wild and woolly encounter. After almost ten months of trying to get these fellers to spill the beans on the size of the structure, they finally cough it up about the same time they respond to the CAVC about all the VR&E Officer’s consultations with his imaginary friend Mr. Graham. That must have been a daisy of a New’ Year’s Eve hangover if the Officer had the vapors clean into May..

Knowing VA was going to pull something just like this, I wanted a witness but no one was available. My good neighbor  and fellow Vet Mark dropped in just in time to get a good whiff of what was going on. It was ugly. Adversarial was a masterpiece of understatement. His behavior was outside the box. It was alarmingly aggressive and threatening. In fact, Cupcake put her foot down and said he can’t come over and play anymore. With all this violence now at the drop of a hat, who knows what someone that arrogant is capable of?

The only teaching moment I took away from this is that if a Type A personality, African American upper level management type with the last name of Boyd says “Graham, listen. It just ain’t gonna happen”, it would be poor form to address him back without the sobriquet “Mr.” and simply state “I continue to believe it will, Boyd.” If you ever attempt this, make sure you enunciate the d very clearly.

I did have this explanation typed up for the VR&E Officer in hopes we could all do our Rodney King imitations and “Can’t we all just get along” or a near beer summit with chips and salsa. Alas, it was one of those “My way or the highway” conversations. Anticipating this attitude was a good thing. Long ago, I learned to smile when they say no. I learned to bob my head up and down eagerly while listening to the drivel and then left and right at the very end. You have no idea how much that pulls their chain. They don’t know if you’re too dumb to understand it or if you’re funnin’ them.

Exhibit C review request for greenhouse

Hi-Ho, Hi Ho-It’s Off to DC We Go!

Now that I see the Declaration of what the VR&E was really up to all this time, the Officer’s anger and angst was not mere theater. He literally is now forced to relinquish control and send it to DC for resolution. See item II. (5). No wonder he browbeat me for a solid hour. Hell, he finally even said he’d throw in four more feet and a real florescent fixture if I signed and maybe talk a little about a $39.95 one gallon hydroponic starter tank by UCAN2™ Industries. I know when I hear desperation in a voice. He sounded like a used car salesman who just blew a sure sale on a Cadillac with a cracked block.

So the last day has been spent racing to a Notary Public and the USPS to submit a prompt response to the allegations. No way am I gonna let this sit all weekend.

16-2098 Rebuttal of Boyd declaration

And here is Mark’s recollection, which, give or take a few threats, was pretty much what I heard too.

Exhibit D Tolomei aff.

And last but not least, just to dispel the stale air of remembrance in 2014, I included my old SSOC that the VR&E Officer received but never answered. This sort of puts a fork into the Presumption of Regularity. If you knew all this in advance of the BVA hearing and decision and never rebutted it in 2014, then you agreed with it. The VA 8 certified it. No more presumption.

Exhibit E 2014 SSOC

VA Presumption of Regularity

For all of you who enjoy Presumption of Regularity law and cites, here’s a real daisy-Mathis v. McDonald 2015-7094 (Fed. Cir. April 1, 2016). It’s brand new, too.

“The presumption of regularity, like the hearsay exception for business records in the Federal Rules of Evidence, has “at [its] root a showing that the [result] was the product of a consistent, reliable procedure.” Posey v. Shinseki, 23 Vet. App. 406, 410 (2010). Thus, the presumption should be predicated on evidence that gives us confidence that a particular procedure is carried out properly and yields reliable results in the ordinary course. As the Third Circuit has recognized, “[m]ost presumptions have come into existence primarily because judges have believed that proof of fact B renders the inference of the existence of fact A so probable that it is sensible and timesaving to assume the truth of fact A until the adversary disproves it.” Malack v. BDO Seidman, LLP, 617 F.3d 743, 749 (3d Cir. 2010) (quoting McCormick on Evidence § 343 (John W. Strong ed. 5th ed. 1999)).”

We’ll get back to you after we hear something else. This is more fun than doing BDAs after dropping delayed CBU– There’s just no end to the excitement and activity below. 

This is the sixth installment of the Extraordinary Writ #16-2098. To read the next installment, go here

https://asknod.org/2016/07/21/cavc-16-2098-sundays-on-the-phone-to-monday/