Perhaps you have been touched by CAVC Chief Judge Robert N. Davis in your dealings with the VA. Boy howdy have I. Up until the 22nd of April, I didn’t realize it was he who had such a profound effect on Katrina Eagle a few years back. She never went into particulars when I asked. Which is what prompts this column and website… sort off. At the Spring NOVA in San Antonio, I was enervated to see Judge Davis was to be in attendance. Being a cheapskate and never having big dough to go places like Studio 54 to get big name Actors’ autographs or photos, belonging to the National Organization for Veterans Advocates is a natural for getting yourself snapped with the CAVC Judge du jour at the Friday evening après conference cocktail party/meet and greet.
I had a good spiel lined out, too. I’ve been to the CAVC four times now on various enterprises-mostly Extraordinary Writs of Mandamus to enunciate the meaning of the “e” in ‘expedite’ for the Veterans Administration. Number one went horribly awry (CAVC 10-300) when I was stuck in the Seattle VAMC and unable to timely respond. Dilaudid sort of does that to you. I had yet to get the email on equitable tolling of time based on emergent circumstances. When I came to, Judge Davis’ clerk told me it was dead in the water and returned my plea. Ah. For lack of a legal term, the Writ was amort. I began to read more CAVC decisions and became earnest in winning my 1994 date. The dye was cast now.
Number two adventure (CAVC 12-1980) was under the valuable tutelage of Robert “Squarepants” Walsh, Esquire. It was the best money move I ever invested. I learned everything there was to learn on a lot of CAVC procedure. It was assigned out to a Joint Remand when VA finally gave up and surrendered on the 1994 date for my Effective date for Hep C. Sadly, we didn’t put enough bricks in the JMPR and the BVA Judge got his temporary revenge on being overturned. Which spawned …
Number three expedition to 625 Native Americana Ave. NW Suite 900. I launched CAVC 15-112 as a pro se and then had SquareBob jump in to guide it. The requirements are far fewer in paperwork and you can feign ignorance because you’re -yep- pro se! CAVC judges treat us like obstreperous schoolchildren with poor upbringing but they do have to put on the white gloves and pretend to be deferential. You can guess who I drew. This Writ was to evict my future greenhouse from its permanent residence at the Seattle VR&E Officer’s bottom right drawer and get the VA 8 certifying it to the BVA. I’d been fighting now for eight years to also get my Porphyria rating from 10% to 100%. VA, like Judge Davis, had ignored my VAMC equitable tolling argument and declared the claim dead for lack of a timely VA 9 due to aforementioned Dilaudid intoxication. The good VR&E officer had somehow disremembered he ever got a timely VA 9 filed within the allotted 60 days and pronounced the greenhouse dead. The USPS certified mail, return receipt requested (green card) told a tale on him. Suddenly, the heretofore errant VA 9 was “found”in the mail room a year later. They still refer to it as the Miracle on 2nd Avenue to this day.
The Writ was authored by- yep- no other than Judge “Red” Davis. By now, I was beginning to think there was a mathematical formula that automatically assigned all Vets with last names between A and H to Judge Davis. I had been hoping all these years to get St. Mary Schoelen or one of her sister judges. My lot did seem to be cast with Judge Davis for life. I really have no complaint but he refused me my EAJA fees because I hadn’t “substantially prevailed.” I ‘m from Washington state and folks around here call a check for $72,000.00 “substantially prevailing” in any argument. There’s no accounting for how Judge Davis defines it. He must be reallllllllly rich.
So, naturally, I wanted to meet this Judge Davis and shake his hand. Perhaps a picture, too. How often is Joe Average Vet screwed over by VA and sufficiently motivated to a) learn the VA blame game; b) become moderately good at winning at it personally; and lastly c) decide to pursue a career in it at 66? I think Judge Davis was personally inadvertently involved in creating me. What idiot would do that to VA? Yep. If this were the Bible, I’d be the Edith that looked back and turned to a pillar of salt. Helping Vets is a Holy task. I can’t turn away now. and am inexorably drawn to it. No offense, but they need a lot more advocates. The legal field is wide open. Looking at the OGC 021’s accreditation list, you’ll find only 350 independent nonattorney practitioners listed-actually 347. Many attorneys, in the thousands, are listed but they didn’t have to make their bones on a test. Just having a Juris Doctorate is the entrance fee. They are there legitimately though. Make no mistake thinking VA law is a cakewalk. It changes faster than a chameleon and you have to keep abreast of it almost daily. Look no further than today’s latest Memorandum Offering by St. Mary Schoelen. This is going to give VA ulcers.- Leon Evans versus the Good Doctor Shulkin and his Merry Band ( CAVC 15-3178). Bob Chisholm’s patience paid off handsomely here. VA keeps getting their backside spanked over § 4.16a and those pesky references to “sheltered employment”. Bob and CCK had to wait for Cantrell (2017 WL 1382283) to be decided and VA took it on the chops yet again over this. VA doesn’t want to define “sheltered employment” because then we’d all be able to point and say “Yep. See there, Mr. Board? That there’s sheltered employment so my Vet gets TDIU back to 1996. Hell, the next thing you know the TDIU population will be off the map and out of their hands. The way the VA looks at this is to allow the Board to make that decision on a case by case basis or better yet- let the Director of C&P make the
decision -er – denial. VA would have us believe a non-defined regulation, ambiguous on its face, is actually perfectly clear to VA so let them figure it out. Move along, folks. Nothing to see here.
Adventure number 4 was filed with foreboding. I had to sit on my hands to keep from checking the CAVC ECF docket search about every hour. I was positive it would be Davis. And then the angels sang- CAVC 16-2098 and Saint Meg Bartley. I won the lottery. What’s more, I broke the Judge Davis curse. Saint Meg ordered them to be quick about this greenhouse endeavour. Sadly, the VR&E boys are still playing keepaway with the greenhouse so it’s time for foray # 5 this month. I’m just guessing it’ll be my old ( and new) friend with the red bow tie. I gave him my card when he asked for it and he took a good long gander at my name tag. He demurred a moment and then said “Asknod? Now why does that sound familiar?”
Hey, I sure don’t have any bad water with him yet. I’ll have to be careful not to roll my eyes on an oral presentation or shake my head in disgust. Granted, we have Katrina to thank for walking point for us on that one. The NOVA “ethics” gig we did Saturday morning with Ralph Bratch was a hoot. If you can get CLE for that, then we’re really getting an education. Katrina got to finally tell us what really happened and SquareBob even got to contribute his sage observations. Fortunately for both, Judge Davis was absent so what happens in San Antonio stays in San Antonio. You VA attorney folks will rue the day you passed on this NOVA conference.
Photo courtesy of Cupcake™