Next to reversals, Extraordinary Writs of Mandamus always intrigue me. When filed by VA attorneys, they are generally a good read. When constructed as a class action suit to rein in the VA’s excesses, they are generally destined for immortality akin to Gilbert v. Derwinski or Chevron USA v Natural Defense Resources Council.
The gist of this one is simple. We, as agents and attorneys, are precluded from getting a peek at a Veteran’s preliminary “confirmed rating decision” (sans signatures). However, were we VSOs, we would be accorded this courtesy in an attempt to ensure fairness and accuracy to the Veteran in question. Let that sink in.
The advocates most likely to be aware of current statute and regulation are disbarred from the process simply because we are not a Veterans Service Organization representative. The VSO rep, who invariably knows little to nothing about VA law, is given free rein to peruse the document and make suggestions on the legality, effective date and much more in spite of their virtual inability to comprehend 38 USC and 38 CFR. This fustercluck has been accepted law for aeons and the VA Secretary ardently defends his policy.
The final wrinkle in the saga occurred when they allowed a real attorney in to review a decision recently. That broke the log jam figuratively and set the stage for Mr. Doug Rosinski, admittedly one of the finest VA attorneys to enter the practice, to pounce. And pounce he did.
CAVC 17-1117 is going to be a glorious piece of work. Imagine being allowed to sashay on down to the local Fort Fumble and inveigh on how the VA rater must have been raised by wolves to arrive at such a comedy of errors before it becomes set in concrete? This single change in policy could very well portend a sea change in how we, as Veterans, are rated.
The most obvious implication is that it could take years of appeals off the table by forcing the VA to do their job correctly the first time out rather than the present hit-and-miss system of endless appeals, lowballing, lost evidence, ad nauseum.
Not to be outdone, numerous amicus curiae are lining up down Indiana Ave. NW waiting to submit their two cents as well. All in all, this minor modification could very well eliminate the backlog at the Board of Veterans Appeals in short order. If we, as advocates, were allowed into the process at this stage, a lot of grief and error would be erased. In my own case, it would have saved me over eight years of litigation.
Of course, you just know who is going to raise a hue and a cry to be heard all the way to Congress. VSOs will try to argue that they are chartered by Congress and entrusted with all Veterans welfare. Why just look at their latest remodeling of the claims process called the Fully Developed Appeal for confirmation they have their head up their collective asses and are using their belly for a porthole. My apologies to any US Navy folk who are offended with my analogy.
We’re entering a new era of Veterans law. The Fed Circus recently accorded us the right to class action suits at the CAVC level and this will be the tip of a very large iceberg of same. Senator Alan Cranston,God rest his soul, led us out of the desert when he pushed for the VJRA so vociferously in 1988. It’s been an uphill battle in the ensuing decades but the volume and quality of the justice in the interim, not to mention the judicial tenor of the newer Federal Judges sitting on the CAVC has improved remarkably.
This one’s going to be a barn burner, I assure you. Bon appétit, Veterans.
P.S. Holy Mackerel. They denied him justice. This will eventually change (we sincerely hope). It’s sooooooooooo backasswards.