Well now, campers. We have a new VASEC but is it a Hallelujah moment or one more akin to a continuing series of disappointments? History provides us an endless parade of incompetent, well-meaning Secretaries that demonstrated a pronounced proclivity to say one thing and do something entirely different. Not that I’m appalled by their actions, but it does fly in the face of their professed mantra of ‘to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. (§3.103(a)). Ahruu? Seems they got that regulation ass backwards and inserted “protects the interests of the Government” at the wrong end.
Really, folks. Let’s take a tour through recent VASEC history. Lest we forget, our dear Secretaries Principi and Peake were the progenitors of QTC via Lockheed Martin. Draining the swamp at the VA is going to require a bigger mudhog than our Mr. Wilkie. General Shinseki, in spite of that galaxy of stars on his shoulders, couldn’t sail this ship into calm harbors. I grant ‘Call me Bob’ (with Ranger Tabs)was closer to the mark and I would personally liked to have seen him stay. As for Shulkin, what can I say? Those wives will sink your career every time with side trips to Stockholm. Call it a Mermaid too far. I think he could have explained Wimbledon if he’d hung in there long enough. Tennis? VA benefits? Surely you all see the similarity of subject?
Keep in mind, all the years we’ve been breathlessly awaiting some resolution on the plethora of VA’s medical mishaps, surgical suites contaminated by cockroaches, unsterilized endoscopic gear transmitting Hepatitis C, infected VA dentists transmitting Hepatitis C via unsterile procedures, ad nauseum, we’ve been told relief is just around the corner. An endless parade of whistleblowers have come forth to expose the grief, fraud, misappropriation of narcotics and collusion between employees and their relatives. The outcome has been what? VA whistleblowers lose their jobs. Just like the Roman Colluseum-Lions 5, Christians 0. Those who come forth and try to expose the egregious excesses become the focus of VA’s ire rather than being thanked and promoted for their farsighted approach to conserving scarce resources for Veterans.
Today I read that Secretary Wilkie has promised to relegate the very employees trying to curtail or effect change at VA to the back benches. Granted, they are being referred to as Trump sycophants but remember they were the first to try to drain the VA swamp and succeed in making the law stick on firing the bad apples. Apparently that doesn’t sit well with the AFGE. Is Wilkie mad or is he trying for the world’s shortest tenure in office as Secretary? VA is rapidly approaching ridicule status among federal agencies. Some would contend it leads the parade of Government excess and waste. Anyone showing an ounce of backbone is shown the door. The President has promised change- but what? Can you imagine defending spending $16.9 billion (with a B) in an effort to build a computer compatible with the DoD’s to ensure a smooth transition of STRs from military care to Veterans Administration care? How about this? We issue everyone separating from service a thumbdrive of their medical records. The Veteran makes a copy of it (if he’s wise) and submits it with his fancy dancy Fully Developed Claim for benefits. Problem solved. VA copies and pastes the thumbdrive into VBMS. So, do I qualify for a consultant bonus of $3.5 million for this $5.59 money saving approach? Never happen, GI.
The VA’s problems are myriad and not extremely complex. VA puts an inordinate effort into making itself complex-or to appear so to Congress. Therein lies the problem. Let’s take my request for a greenhouse back on May 8th, 2011. My VA counselor ($96,850.00/year with full medical/dental) explained to me that this was never going to happen. VA did not have an ILP program for ‘avocational’ pursuits- just vocational ones. I guess he didn’t get the 1997 email from OGC in the form of VA OGC Precedent 9-1997. He claimed he’d worked there for over 24 years. The more motions I filed to attain the greenhouse, the deeper they dug their heels in. He just retired to avoid having to fall on his sword over this. Now it’s someone else’s tar baby!
In September 2015, VLJ Vito Clementi agreed with me and awarded the greenhouse. VA has done everything in their power to ignore, defeat or renege on this award. The VR&E Officer spent 4 months after the award researching how he could refuse to comply. The OGC finally had to tell him to shut up and push print. The VR&E Officer is a grand poobah and gets $114,000.00 a year with the afrementioned medical benefits. The two of them have effectively been paid $798,000.00 and $672,000.00 respectively (One million, four hundred seventy thousand dollars and some loose change combined) to deprive me of a lawful entitlement. Am I the only one who sees the problem? Fortunately no. Since I have no whistle to blow or a job to jeopardize, I can’t be suppressed or silenced.
Thanks to the far thinkers in Congress back in 1988, we were given a voice at the Federal level with the creation of the CAVC. I have partaken of their services six times now. I guess that makes me a Frequent Filer. Last Fall, I figured if I was going to be pestering them so frequently,I should ask to join the Sky Club on the ninth floor. So I did. The bigger surprise was they accepted me.
Finally, on the third try (CAVCs #16-2098, 17-1450 and 18-938), I think I may have gained traction. As most who have aspired to the lofty heights of winning an Extraordinary Writ know, it is no easy task. Climbing Mt. Everest is far easier. To date, and I could be wrong, I believe that honor has only been won by eight or nine individuals. One aspect that forebodes success or failure is the time from the last submissions of the petitioner (you) and the Respondent (the Secretary) to the time of a decision pro or con. In most cases, Extraordinary Writs are handled by single judges and are therefore not precedential in their conclusion of law. On the contrary, a protracted delay can often mean a convocation of a panel and an earth-shattering pronouncement for the ages. In sum, most Extraordinary Writs die a quiet death by dismissal or denial due to their nature. Most entail asking VA to do something they have neglected to do. The Secretary promptly “fixes” it and the Writ is declared moot. On the other hand, if what you have asked for is totally outlandish, it will be denied.
While I am only mildly optimistic in this endeavor, it would seem from the delay from my last filing to rebut the Secretary on May 29th, the ensuing silence from the Court is telling. Many of us in the Veterans Advocacy arena view this as a last stand for Veterans’ ILP benefits. VA has been chipping away at this program continuously at every turn for over two decades. The latest “revision” of the M-28 manual on March 31, 2014 inserted substantive new rules and catch 22s to further decimate the ILP. Nowhere in 38 USC §3120 can these new interpretations be interpolated nor extrapolated. The revisions are simply made up out of whole cloth and VR&E folks know it. Surely no one wants to be the whistleblower and piss on that $90,000 paycheck by calling them out on it. Worse, they are trying to pawn off these 2014 changes to the M 28-R retroactively back to my May 8th, 2011 filing. That’s a Bozo no-no at all 56 VAROs across our fruited plains.
Speaking of 56 VAROs, I had to call up Fort Fumble in Fort Harrison Montana about one of my terminally ill clients. Valerie answered the phone with a cheerful ‘Salt Lake City Regional Office. How can I direct your call?’ A week later I contacted the Sioux Falls, South Dakota Puzzle Palace and lo and behold-Valerie answered again. Seems they’re downsizing with the advent of the VBMS. Valerie was rude, crude and socually unattractive-not to mention boorish and told me I had the wrong number. I had to explain to Valerie why the VA has Change Management Agents. She tried to tell me I had to call the 800 dial a prayer line. Valerie and I will probably never become BFFs but at least she treats me with a modicum of politeness now that we understand the Veteran is of paramount importance rather than her.
Come Monday morning, the Court will have been mulling this ILP conundrum over for sixty two days-an inordinately long time for a Writ. Either they are formulating the Mother of all Denials or treating it as a matter of first impression deserving of a panel. My quandary is whether to beg Ken Carpenter to argue it for me at the Court with his mellifluous voice or do it myself. I relish the idea of eviscerating the OGC’s attorney on the matter. I’ve been preparing for this discussion for seven long years.
The argument comes down not to whether I get a greenhouse but size it will be. I have asked for a 24′ X 28′ with hydroponics and new low-energy LED lighting. I also asked for a 240-VAC composting toilet as I have “issues” that are sometimes suddenly pressing. Just to be an irritant and see how far I could push them, I also asked for several years of the Lexis Nexis VBM at about $350 a pop. Shoo doggies. They agreed-right up until they didn’t. Therein lies the problem. Why would a VR&E Officer not only agree to, but indeed formulate, an ILP for me for a 24X28 greenhouse only to renege and say “Well, we warned him we could never get it through Washington and the Central Office. He knew his request was unreasonable. No flies on us.” Yep. Under threat of perjury and 28 USC 1746 he did. Baaaaaaaaaad idea. You don’t lie to the Court. They call that “post hoc rationalizations” and frown on VA’s aftermarket excuses. It’s simply not done at the Court.
Unfortunately, my undereducated and overpaid VR&E Officers (who sit on bonus-calloused derrieres) are not acquainted with VA law and regulations. The Table of Organization shows the VR&E is under the aegis of the VBA-not a power unto itself. Thus, by extension, they have to adhere to §3.104 :
§ 3.104 Finality of decisions.
(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part.
I’m going to leave it to the Court to decide if the VR&E Officer is a ‘duly constituted appellate authority’ or even ‘a duly constituted ratings authority’. Since the Grand Poobah in DC (Jack Kammerer, VR&E Director) has neglected to call a CUE on this “finding of fact” by the VR&E Officer, it is, by rights, a binding decision. Further, §21.98(c) says he can approve or deny it. I fail to see the term “modify” or “revise”. Ruh-oh, Rorge… Yep. The Catbird seat.
The teaching moment is simple here. VA screws up everything. They are a rule unto themselves. They make regulations up as they go. It is only correct because you do not contest it. If you do, you’ll be pleasantly surprised (eventually) at the outcome. Remember, Chevron Deference can only extend to that which Congress has not addressed explicitly. In short, hunt diligently among their numerous regulations and hang them with one. There is no dearth of ammo. To add stupidity to a poor education, they put all this damning evidence in the claims file. It’s too easy.
Here’s a copy of the last filing. I love the Comer v. Peake jab. “It always goes to show it’s somethin'” in Rosanna Rosannadanna’s own words.