CAVC–PERCY V SHINSEKI (2009) — WHO OWNS IT?


I have an unusual case of a gentleman who filed to stop a reduction in his rating. At the same time, he had a newly denied claim at the Seattle RO. The gentleman filed his NOD and the presumption of regularity in Sikels v. Shinseki  kicked in. VA was presumed to be competent. The SEARO 346 krewe promptly (in VA time) certified this baby (sans the SOC) along with his reduction appeal with a Form 8 and called FEDEX for a pickup to DC.

Later, Johnny Vet sits for a Board hearing and discusses the whole new secondary (grand mal seizures due to 16 psychotropic drugs for PTSD arguing with each other). He had opted to quit taking them which pissed off the Brain Doctors. VBASEARO got wind of it and proposed to reduce from 100% to 70%. Reduce him they did. He appealed but the failure of the Seattle Gang who couldn’t shoot straight to issue an official SOC on the seizures, created an ownership problem.

The cat was out of the bag. The Board (three back then in 1991) had heard testimony on the seizures and its inextricably intertwined (Harris v. Derwinski)  Harris_90-240 bearing on bent brain syndrome in general and pharmaceutical toxicity in particular. By even permitting Johnbo’s testimony and agreeing to hear it, they accepted that it was properly before them. Concurrently, the Seattle krewe, by ignoring procedure and issuing the VA 8, had also declared the seizures claim ready for ‘one decision, on appeal’ as they say before your BVA hanging.

As an aside, many of you in the readership have seen your claim declared “awaiting certification”-sometimes for 16 months. Nowadays, due to the constipating backlog at the BVA, certification means 4 years. The BVA solved some of this problem by leasing more warehouses to store the paper claims. Thank goodness for the belated electronics transformation. Now they can do it in a six by nine closet. You see,  that actual act of certification could occur in about five minutes. VA rater sticks old paper file in FEDEX box. Tapes it shut. Puts label on it. Sends it to basement to await “certification” and shipping to DC to be docketed at the BVA. BVA folks don’t want to see anything until it’s time to take a gander at it. If it gets lost before the magic certification, it can’t be the BVA’s fault. When you receive a Notice of Certification, it’s more about like finding out it’s going to finally get docketed and assigned a case number. Expect a hearing in about a year or so.

No Bozos

In my Vet’s case, the BVA realized the mistake before washing their hands of it. By rights, any smart attorney would file a waiver of review in the first instance at the RO just to keep it there before the judges. Absent that, a true remand was in order to correct the SOC error. That would have added a year to the appeal but would have avoided the next bozo. So, in the interests of the Veteran, the Veterans Law  Judges semantically stepped on their collective necktie and “referred” it back to Seattle instead of remanding it and continuing to retain control of it. A denial decision  had already been made and a substantive appeal begun (NOD). The only thing amiss was the lack of a SOC and the submittal of a VA Form 1-9. VA, of course, issued the obligatory SOC but demanded a new VA 1-9 to recertify what was by now legally owned and properly certified- complete with docket number- at the BVA. My Vet’s VVA rep. suddenly evaporated for parts unknown and no one ever complained or intervened to get this back on track.

In VA law, a referral from a higher court would be if you filed for DM2 and the gomers at your RO were working the claim. Meanwhile, you have another issue with a VA 9 already signed for a bad back increase from 40% to 60%. When it gets to the BVA, they spot the DM2 claim hasn’t been decided yet and ‘refer’ it back to the RO to issue an up or down decision in the first instance. Go ahead and laugh. It’s a brand new claim with no history and needs a preliminary denial to begin the NOD process. The problem is that the Veterans Law Judge does all of this once- at the end when he announces the decision on the reduction appeal. He has held the seizure claim hostage for 9 months before “referring” it back to the RO.

On the other hand, a legal appeal to a Court in which a judicial error occurred below at the Agency level during the substantive appeals process, requires a “remand” to complete the appeal process to the BVA. Think repair order once construction has begun. Or read this one –https://asknod.org/2012/02/16/everything-you-always-wanted-to-know-about-remands/ Once the BVA hears a matter, or accepts it, and/or takes testimony at a hearing and begins to review it, they have formally accepted the claim and now exert ownership. A remand is merely to gather more info with which to use for a more informed decision, or a true remand to correct an adjudicatory deficiency below. Regardless the cause, the appeal(s) once free of defect, are properly returned to the BVA for the promised “one decision on appeal” as promised in statute. One of the oldest tricks in the book was “forgetting” to include a Vet’s SSI/SSD records in his c-file to the BVA for TDIU consideration. Bingo. Remand. One year (or more) delay.

Mr. M.C. Percy

Percy-2961

Mr. M.C. Percy, with no identifier as to what “M.C.” stands for, suffered much the same as my client. In 1970, Mr. Percy had an unfortuitous  encounter with a hand grenade in the former Republic of South Vietnam. one piece missed Winky by thaaaaaaaat much, thank his lucky stars, but it was that sensitive suprapubic area above Mr. Winky that continued to bother him. The typical rating in 1971 was 0% and Mr. Percy was afforded no different attention. In 1998, they gave him a raise to 30% with an effective date of 94. He must have been playing golf with his DAV rep. and got in good with him by buying his drinks and greens fees. VA doesn’t often cough up four year retro payments to anyone but good ol’ boys and malfeasanating VISN directors.

A year later, in 1999, within the NOD window, Mr. Percy filed a substantive appeal up to the Big House on Vermin Ave. NW. Mr. Percy was subsequently informed after his hearing that his Regional Office had screwed up and they didn’t have authority to talk about an increase because he’d failed to discuss it on the VA 9. Mr. Percy did, however, file about two more VA 9s to try to get it right on what he was appealing. Apparently, there were three other things that were in the same judicial limbo, too- one of which was his effective date for the Winky-area wound.

I have to hand it to Terry L. McElyea, his pro bono attorney, though. Terry’s a  Judge Advocate General (JAG for short) kind of guy for the most part. He’s a Prosecution whiz for the Court of Appeals for Uniformed Servicemen. This whole claim was headed for the denial pile until Terry pointed out that VA justice however imperfect and crude, still affords us a different, friendlier attitude and cannot consider a BVA Veterans Law Judge the equal of a COVA Justice approved by the US Senate. He had to point out the obvious- that Bowles v Russell  127 S. Ct. 2360 (2007) was not on point. Bowles was civil law, not VA Law. Henderson dealt, again with civil law but not at the agency level below. Henderson, thus, was not on point either. Ol’ M.C. was filing at the agency level and appealing to the upper level of the Board of Vets Appeals-still below the federal level. To say Percy’s timing on any VA 9 filings made to the BVA were beyond the suspense date and final defeats the warm, fuzzy admonition in 38 USC §7105…

The filing of a substantive appeal to the Board is not jurisdictional because 38 U.S. C. §7105 explicitly permits relief from prescribed appeal periods with the Agency and permits the Secretary to prescribe regulations to allow a claim even if the appeal period has expired (60-day period prescribed for filing formal appeal with the Board of Veterans’ Appeals “may be extended for a reasonable period on request for good cause shown”). Additionally, the Board may waive or equitably toll its filing requirements. Furthermore, Bowles and Henderson are not applicable to the Appellant’s case because those cases deal with civil cases appealed to federal courts and the Appellant’s case deals with an administrative appeal within the Agency.

38 USC §7105 has to have some built-in slack. VA screws things up so badly so frequently, they’d look bad if they really got nasty with the 60-day SOC suspense date and were dogmatic in enforcing it as being jurisdictional in everyday practice.

Not bad for a JAG, huh? This guy does US military law and he still picked up on this dichotomy between the Agency and the next step up into the Federal level. An Agency has to know its limitations in order to win. This is one more glaring example of why you don’t want your drinking buddy from VFW, who is also your service representative for VA claims, handling something like this.

I finally learned the difference between referred and remanded- even though I knew my Vet was due a remand that should have been returned to the Board after the SOC was issued. Thank you Brad. More importantly, this is a great teaching moment for Vets. Many of you may have suffered this indignity of appealing it up to the BVA and a final remembrance that it seemed something was still amiss but unsure of what. My Vet sniffed it out and asked why he’d won in 2010 with basically the same evidence. Just like any train wreck, you have to go back and reconstruct the accident scene with the c-file. Boy howdy. Can you believe a Marine in 1991 would have the intelligence to ask for a c-file? This boy sure did and it can’t be lost, stolen, accidentally shredded, suffer shrinkage or be misplaced now.

I love forensic claims. The cachet of old claim is more pungent and redolent with VA mistakes than any other. There are three ways you can get back to the past now. 38 CFR §3.156(c) is the best known. Finding Clear and Unmistakable Error (CUE) is a very hard path as many know. But, if you find an unreturned remand to the BVA in your c-file, you discover your old, dead substantive appeal is still alive  and vibrant- de novo once again. With the help of a few law dogs, I can now better understand the semantics of why they got misplaced or waylaid on the claims road. A wrong legal word spelled disaster for twenty six years. Presumption of Delay.

 

 

 

 

About asknod

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6 Responses to CAVC–PERCY V SHINSEKI (2009) — WHO OWNS IT?

  1. Crisco says:

    Alex, what if all issues are static and you are over 55yro and rated 70% or less?

  2. john king says:

    Over one year ago I asked if the VA had any of my father’s medical records since he was a disabled vet from WW11. I had asked St. Louis and they said his records were burned in the Great Fire of London 1973 or the Chicago Fire where the cow kicked over Mrs. O’Leary’s lamp etc. Anyway, St. Louis said for me to ask the VA directly if they had any records under my father’s old claim number. He died many years ago. I sent the VA a signed request for any records they might have and just a few weeks ago they sent my request back to me saying they needed a signed copy of my request. I gave them a signed request over a year ago. They are treating my records request as a claim for benefits and taking me over all the hurdles. It took them one year just to screw up my request for records. They want a signed request and I gave them a signed request over a year ago. I pity any vet who is actually making a claim for benefits these days.

    Regarding old claims that have errors in them when the errors occurred before 1990 you are in for a bumpy night. VA assumes all the evidence available to them in the vet’s file was carefully reviewed and considered in their decisions. Even when this is obvious to a two year old that they did not consider all the evidence (IMO/IMI) the VA will stick to that assumption all the way to the Court of Vet Appeals. Who do they believe the VA assumptions or their lying eyes? In my CUE of a 1973 decision it was obvious that the VARO never considered my private doctor’s IMO/IME. I did not have a C&P exam at all. They just considered my SMR’s and VA hospital records and left out my private medical records. They even admitted this and yet I still lost because the assumption was that the VA had considered my IMO in their decision. They asked me to prove a negative. They wanted me to prove that they did not consider my IMO in the 1973 decision. How can I do that when the VA policy then was that all information in your C-File was considered even if it wasn’t to any reasonable person. Now I guess if these had been SMR’s that were not considered I might have had a chance at the CUE, but they were my private medical records that the VA did have in their possession at the time of the rating. I can prove that but I cannot prove they did or did not consider them regardless of their admissions that they did not have them. It took 7 years for them to finally reject my CUE fro RO to VA Court to Federal Court which denied me a hearing. The VA all up and down the line knows they screwed a vet and yet they sleep the sleep of the just. Is the VA part of the “Deep State”? It is a hermetically sealed system designed to frustrate those who are lost in it. I am not a conspiracy nut, but I believe the top levels of the VA and congress do conspire to pay as little as possible in compensation to veterans. They run you around for years making stupid mistakes to frustrate you, and unless you have patience of Job you will just go away.
    This is the plan or maybe it became the plan since it works so well. Who besides AskNod or Berta Simmons can pursue claims for 20 years and keep their eyes on the road?

    • asknod says:

      Points well taken, John. I have a lovely denial on onion skin paper from 7/18/89 that says sorry but you lost, too. Nothing much else. We now fight with what we know will win it. Your defeat taught all of us something valuable legally. We won’t do make that mistake. I have utilized it in my latest 3.156(c) claim for a Vet. What should have happened in 1970 based on the old 1964 38 CFR VASRD part 4 on rating disabilities. You have to present your evidence to prove VA should have had it in 1970. Military records talk the talk. VA can never assault their credibility.

  3. Ron says:

    From past experience with this band of “Brothers” at the VARO anywhere is that they look for any reason to reduce ratings. According to my former DAV service officer who worked at the Jefferson Barracks VARO for a couple of years is they get points for promotions and bonuses.
    Also the lower that they can reduce one the more cash bonus they get. So it is not surprising that this vet was cut down in rating.
    This was a part of the situation back in 2012 to 14 before they got caught up with for the umpteenth time. When will it ever end? When every last one of these scumbags are figureatively hung from the bridge at midnight for being the traitors that they truly are.

    • asknod says:

      The VA computer “reads” when your claim will be reaching five years or the big one at 20. The machine cranks out a C&P or reduction notice to see if you even answer. If you don’t, you get whacked. If you don’t respond to the whack, in another two years they’ll try to whack you again. Same deal. No bitch and they’ll be back in another two. If you simply go back in and get the c&p proving you’re as bad or worse, they go away. Getting reduced requires some work. VA put in safeguards but if you ignore them, you pay. VSOs tell you to be shy and submissive. Greedy is bad. That’s why so many of you are getting screwed.

      • Ron says:

        To asknod:

        I know. Been there, got the T-shirt and the coffee mug. Thanks for the response. I went through this back a few years ago.
        Second, it is good that you give this info. The VA damn sure won’t.

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