After 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.
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.