VetCourtAppealsPromoAfter every CAVC encounter and especially Extraordinary Writs of Mandamus, I like to dissect them to ascertain what was gained, lost or ignored. Basically, those are the only talismans to wave after the dust settles.

So, in retrospect, what did or did not happen that should have? As no one expects to prevail in an Ex Writ, the object is provoke action at a bare minimum. I actually didn’t fare too well in that regard. The VA trotted out a fabricated declaration full of lies. Interspersed with them were nuggets of essential information showing an attempt to ignore VLJ Vito Clementi’s order. I exposed that for the Judge to see and respond to. She failed to rise to the bait and pursue the perjury.

What was gained was an important recognition of The VA’s Office of General Counsel Precedent number 34 of 1997.

Prc34-97 (1)

Most importantly,  Judge Bartley went further and italicized the first phrase “all services and assistance deemed necessary on the facts of the particular case” – in addition to Veterans Law Judge Vito Clementi’s later italicized ennunciation in the next sentence. An OGC attorney would spot that instantly… or not.

The Court notes that, in granting this benefit, the September 2015 Board decision quoted VA General Counsel Precedent Opinion 34-97, to the effect that

VA has the authority, and responsibility, to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in [an IILP] to live and function independently in his or her family and community without, or with a reduced level of, the services of others. This includes the authority to approve, when appropriate, services and assistance that are in whole or part recreational in character when the services are found to be needed to enable or enhance the veteran’s ability to engage in family and community activities integral to the veteran’s achieving his or her independent living program goals.

Id., Appendix at 9 (emphasis in part in original).

Additionally, Judge Bartley takes a very dim view of VR&E bullies showing up at your doorstep with an advance agenda that you were/are a four-flusher and a scammer looking for a free greenhouse on the VA’s dime. Of all the hoped-for outcomes, this shines brightly. It shines a bright light for future Veterans who will walk this paper trail.

The Court reminds those involved in implementation that Mr. Graham has been determined to be entitled to this benefit and, thus, entitlement is not an issue in dispute. Given that fact, the purpose of the July 2016 meeting on Mr. Graham’s property was not investigation of Mr. Graham’s disabilities or his need for the approved benefit. Instead, all work on the IILP since the September 2015 grant of the benefit, including scheduling and conduct of the July 2016 meeting on Mr. Graham’s property and any decisions as to appropriate fixtures and accoutrements, should have proceeded and should in future proceed with the goal of efficient implementation of the already approved IILP. It is incomprehensible to the Court that a veteran would be questioned in that environment about his or her need for an ADA-compliant structure, or that a VA employee would put a veteran in the position of having to appeal at every step for items or services to which he or she has been already deemed entitled.

Something an astute attorney on either side of the aisle would be attentive to is redundancy. Sure enough, at the very end, Judge Bartley, although not in italics to ennunciate, repeats yet again for the hard of understanding, the above tenets of 34-97.

And the Court reminds VA employees involved in implementation that, according to the VA General Counsel, VA has the “responsibility[ ] to provide all services and assistance deemed necessary on the facts of the particular case to enable an eligible veteran participating in [an IILP] to live and function independently in his or her family and community,” including those services or benefits “found to be needed to enable or enhance the veteran’s ability to engage in family and community activities.” VA Gen. Coun. Prec. Op. 34-97. The Court expects that those involved in implementation will provide reasonable accommodations and work to complete this IILP, which has been approved for this severely disabled veteran, without further discord so that further costly and time-consuming appeals are not necessary.

When phrased like that,  accompanied with porcupine quills, VA would be wise to just call up Farmtek, give them Jack Kammerer’s VISA card number and call it it good to go.

There is no law that says you cannot mention this case in your own filing. The codicil is only that it isn’t precedence. For guidance purposes it is perfectly legitimate to point to. Much like an inadmissible, prejudicial comment that escapes the lips of a witness that indicts a murderer, or a bullet,  you cannot call it back. The dye is cast and regardless of the Judge instructing the jury to ignore the comment, or an admonition to duck, the damage is irrevocable.

My request this Monday for reconsideration based on new revelations may fall on deaf ears at 625 Native Americana Ave. NW. So what? It will become part of the record and a nugget left for future Veterans to mine. The Independent Living Program is not going to disappear. Congress enacted it for a reason. VA cannot reduce it or relegate it to the ash heap of VR&E history. Someone like Bruce or me with a wealth of wrath will always show up and say “Hold the phone, folks.  VAOP 34-97 says___________________ and Judge Bartley even said as much- quoting a VLJ to boot. Read it right here. What about my circumstances? I’m super severely disabled, too. What gives?”

Whoever said Hope Springs Eternal never filed an Ex Writ or was piss full of optimism and wearing a dry Depends© undergarment.

And that is all I’m gonna say about that.


About asknod

VA claims blogger
This entry was posted in CAVC ruling, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans, Tips and Tricks and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink.

5 Responses to CAVC– #116-2098-POST GAME WRAP AND POST MORTEM

  1. My husband said he didn’t want to participate in ILP because he doesn’t want anyone from the VA in our house or on our property, taking note of the contents of our house or what’s in our garage. He’s afraid he’s going to get to read about all that later, and possibly encounter some problems. Kind of hard to apply for it if you don’t want to undergo inspection, I guess.

  2. James says:

    …”incomprehensible” really? Nothing, and I mean nothing the VA does is incomprehensible to me anymore. Like John said, “VA has time on their side”. I would say a large number of Veterans kill themselves after being denied for benefits they deserve. Tragic. Keep kicking tail Brother!

  3. john king says:

    VA has time on their side. They drag their asses all the way at every opportunity and eventually most vets just give up because it is more trouble than it is worth it to keep fighting . They know this and it will continue until people get fired and the VA must pay huge fines for their actions. All I wanted from the quality of life program was a guitar and some lessons. It became a “federal case” and I gave up and just got the stuff myself because I did not want to wait years. People at the VA at higher levels need to be thrown in jail for disregarding the law, but we know this will not happen because it is the not so secret intent of congress to cheat and defraud us while swearing on a stack of bibles that they love veterans.

  4. Longfellow Rogoczy says:

    Bravissimo, Brother!

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