No, I’m not a conspiracy freak. I do not’ subscribe to Chemtrails Today or Deep State Magazine. I instead prefer light humor and get the news feed from the VAOIG Monthly “Highlights”. How about that discovery that all those VA whistleblowers (thinking they are anonymous) just discovered their bosses are the ones looking into their allegations of wrongdoing? Is that a hoot or what? That’s even richer than State’s Attorney Kim Foxx “colloquially recusing” herself from the Smollett hen house massacre. But wait. There’s more here at the VA that bears close examination.
(revised 1633 Hrs PDT; 4/24/19 @ 1001 Hrs PDT)
Having played VA poker for nigh on thirty years, I have watched the revamping of the denial process. It’s evolving like the cell phone. VA justice was crude like the old Motorola brick phones in the beginning. However, they were dual use. You could grip that rubber ducky antenna and use it like a blackjack when some chowderhead tried to steal your favorite red baseball cap. Unfortunately, you couldn’t whack a Veterans Law Judge upside the head. Unlike the old phones, now we can surreptitiously record video and conversations and bust folks doing what they insist they weren’t. We can also review a claims file and discover what we were never meant to see.
After the War of 1812, the Govt. found itself knee-deep in Veterans. Some method had to be invented to fence the malingerers and trailer trash out. This gave birth to the “acute but resolved before separation” excuse. It was lethal to claims but eventually, someone (the CAVC) spilled the beans in Caluza v Brown. Read it. From then on the acute and resolved gig declined in popularity at the VBA. Eventually, with the advent of social justice and real law, the Board of Veterans Appeals was forced to appear “equitable” and begin paying more than lip service to terms like “equipoise” and “presumption of soundness”. I actually toss in a blurb at the end of my briefs and insist on the benefit of the doubt. Of course, I use fancypants words like:
Appellant feels the appeal is in equipoise and asks for the time-honored pro-Veteran canon of statutory construction most recently espoused in Henderson v. Shinseki, 562 U.S.428, 441 (2011) (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). The pro-Veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991). The Supreme Court first articulated this canon in Boone v. Lightner to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” 319 U.S. 561, 575 (1943). This same policy underlies the entire veterans benefit scheme. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.”
Perhaps it was Bill Clinton (I’m not sure on this one) who said “If you cain’t impress them with your alleged intelligence, baffle them with bullshit and jokes about how you didn’t inhale”. My point is I use every judicial tool at my disposal like a Bullshit button to combat this mayhem at the 57 Fort Fumbles across the fruity plains. And I have amassed plenty. I have a folder for briefs with all my Killer Cites to deflate bogus VA allegations and “findings of fact”.
What concerns me most is a growing trend in adjudications. I speak of the new (relatively) National Work Queue (NWQ). I created the analogy of a giant Lotto hopper with all the VA claims numbers in it and an air jet to swirl them around for the TV cameras. It begins thusly:
- Insert claim at the EIC in Cheeseville.
- VA ‘technician” (and I use the term loosely) removes the claim from the tumbler and tries to decypher whatever it is you are claiming. After typing it up and assigning an End Product code (EP 020) in M 21-ese, s/he reinserts it back into the tumbler.
- Yet another techie removes it several weeks later and decides if you need a medical c&p exam. And then throws it back into the hopper.
- You get a notification several weeks later to report to QTC/LHI/VES or you local VAMC to be examined for these “alleged” illnesses/injuries.
- Three months later, the exam results are uploaded into your claims file. And here is where the new travesty of justice ensues. But first-back to the tumbler. Remember, I have only discussed five steps so far but more than 20 VA techies have put their fingerprints on this baby by now.
- A rater (#1) now “develops the claim”. By that, I mean they use OCR text recognition to cruise through mounds of VAMC CAPRI hospital paperwork, your VAMC files, your Service Treatment Records and anything you submitted. So, what happens if you’re like me- a Vietnam era Vet with a lot of hand-written records? Well, pilgrim, you’re plumb screwed to be honest. They haven’t taught cursive writing in 10 or more years. Worse, even if you were adroit at reading cursive, you’d need an advanced primer on reading contemporary doctors’ chicken scratch. Those VA techies blow this chapter off and proceed merrily on to getting it “Ready for Decision”.
- Finally, about the magic 125-day point, someone looks at the suspense date for cranking out a decision. Ready or not, here s/he comes with your M 21-derived rating. As we know, 85% will be denied. Often, this is the 3rd or 4th rater to begin the “promulgate decision” mode. Usually, they discover they’ve forgotten something and it has to be “reworked” to ensure it’s wrong. There’s a lot of this. The Houston rater knows it’s a shit show. S/he would rather find some minute error and stick it back in the tumbler for the VSR in Winston Salem to put out. It’s a game of ‘Not it!’.
- With the new AMA claims system, you now need either a sympathetic ear at the Higher Level of Review (HLR) venue or some most excellent new and relevant evidence to submit to the Supplemental Claims Lane. You can also go to the BVA and proceed to what we used to call a Notice of Disagreement based on the fact that the cursive handwriting was never part of the real record even though the rater said it was. I’ve given up at the Regional level other than to file the claim. In fact, I make no pretense of submitting any evidence. Why bother? Why not let them hamburger it first?
There’s another ploy to consider. If VA denies first off, then you can fulfill what you’re lacking and cure it. If they come back and deny on a different theory from the original one, why, that’s a post hoc rationalization (see Martin v. Occ. Safety and Health Council). Litigating positions are accorded no deference if they are merely post hoc rationalizations for prior Agency actions advanced for the first time on appeal.) You’ll see VA do this frequently and no one catches it. What gives?
The new VA claims technique is more subtle. The M 21 seems to have been reprogrammed to allow raters to ignore what appears to be exculpatory evidence and rely entirely on what the M 21 copier spits out into the ‘printing complete’ tray. Gone are the good old days of one rater (not 50) taking your file home with him at night and reading it after dinner. S/he would develop it from beginning to end and provide a rational answer. Yes, Virginia, there were problems with this like the Friday the 13th (July) 1973 NPRC barbecue on the sixth floor that magically burnt up records which wouldn’t be archived there for a decade or more. Worse, they sometimes float to the surface of the VBMS 40 years later when someone finally notices nobody ever actually wrote back to the NPRC and asked for the STRs back in ’73. This is becoming the frequent “oh-so-rare CUE error” we were told about in Fugo v. Brown.
Essentially, the NWQ is modeled after the Detroit auto assembly model. As the car moves down the assembly line, VA ‘installers” complete preliminary tasks like c&p exams, pseudo research via Wikipaedia™, trying to ascertain if you “stepped foot” in Vietnam, if you smoked cigarettes to defeat lung cancer presumptives, denial if your dad had Parkinson’s so you had a genetic proclivity for it, etc. Instead of one comprehensive examination of all the assembled evidence and a truly exhausting review of the potential for extending the benefit of the doubt, we now have upwards of 50 yayhoos with their fingerprints all over your file from Buffalo to San Diego-before a decision is even made. And, like Detroit, if they forgot to associate the SSD records with your TDIU claim, it goes down in flames. Advance token to Go and lose a turn for remand.
It used to be we could call up our local Puzzle Palace and ask what they were smoking when they denied our claims (or our clients’ claims). Now I have to have access to the VBMS to see who was last assigned the claim/appeal in the Notes section. I have to call up the Change Management Agent (CMA) who serves attys/agents at the offending VARO and have him ask the rater to please call me or explain how they arrived at such a flawed conclusion. I usually get a polite email answer saying ” Well, I asked for you and the rater looked it over but they are unable to grant. Fortunately for your client, he has innumerable options to seek a higher level of review ad nauseum. Please thank him/her for their service.”
There was a time we could barter over the phone or in person in the RO’s cafeteria (no recording devices permitted). They didn’t frisk you for a wire but it was almost that bad. If push came to shove, they’d deny it was them and the recording was fabricated. Those days are lost and gone forever. VA’s theme song is Paranoia Big Destroyer. So, too is the much-vaunted DRO hearing. At best, I can get a “higher level of review ” rater to call me back and almost pretend to listen to my diatribe. Pretend is the operable word here.
For all you attorneys and agents- beware the “Supplemental Claims Lane (SCL)”. As the name implies, this characterizes the old NOD in a new light. It is a new claim for all intents and VA’s purposes so newsflash-no 20% for a win. That will require a HLR or a trip to the BVA to get your baksheesh.
Now for a new scam. You have an IMO, You foolishly send it in with your shiny new claim. Well, boy howdy this ought to speed things up, right? Not. Va promptly goes out and finds a VA proctologist to opine on your TBI symptoms and you get the resultant “Unfortunately we are unable to grant your claim(s). The VA Examiner got a big bang out of your IMO but we determined ours was far more probative because we-unlike your doctor- read the claims file.” If they’d done their homework, they’d see your 3288 requesting the c-file and know that was part and parcel of the IMO data reviewed. Fat chance of that happening.
So, you think you’re smarter than the average bear and send the IMO in as a Supplemental claim. VA is now sending these to the Black Hole or the Appeals Management Center (AMC), renamed the Appeals Management Office (AMO) and now the Appeals Resource Center (ARC). Six of one and half a dozen of another. The last and newest name reflects the truth. They analyze the IMO for a weak spot and illegally shoot it down. We solved this problem initially with the ‘vague’ Mariano v. Principi argument that you cannot deny if a Vet has all three elements necessary for a grant-i.e. 1)disease/injury/presumptive in service, 2) same thing now; and 3) the golden IMO. Fortunately, the CAVC came back and clarified that in Hart v. Mansfield. Here’s my killer cite for cut and paste in the brief.
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) held that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case.” Id. (emphasis added). This single sentence, although rendered without further explanation, states a broad, general proposition, that was revisited by the Court in Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). Hart stated that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination.
For every VA denial, there’s usually a regulation or a precedental Federal case cite that will eviscerate it. Finding that sucker is the challenge. If you have Westlaw at $59 a minute, you’re loaded for bear. If not and you are a DIY pro se Vet, I’d use the BVA decisions for my cites. I did it for decades during my battles and it paid off handsomely. The repair order for an 86’d IMO is Hart supra (above). To avoid this conundrum of IMOs that are dead on arrival, I now only submit them to the BVA. There, they are received as real incontrovertible evidence and never rebutted. The BVA is constipated with a gazillion appeals. Hand a Veterans Law Judge a giftwrapped appeal w/ IMO and it’s a chicken dinner winner every time.
I find half the battle is reading the denial decision in excruciating detail. Take each sentence apart and analyze it for what it says- or more importantly-what it doesn’t say. If it sounds like bullshit, it probably is. No. Let me rephrase that advice. Most are bull shit and have no basis in VA law or congressional statute. VA is big on mission creep. The more they deny, the bolder they become.
Please do not read this as a screed against VA raters. It isn’t their fault. They are handed a file and expected to come up with a decision-more often wrong than right- in a very short time. Worse, they were not able to become acquainted with it and see incongruities that would jump out and bite a seasoned law dog’s eyeballs. The mantra seems to be “I trust everything done by my compadres before this ended up in my in-basket.” This is how the Challenger’s frozen O-rings escaped detection. This is how Apollo 13 ended up in a world of shit 200,00 miles from home. Assume nothing. How many times have you heard the plaint “I didn’t know it was loaded. It’s not my fault _____ is dead.”
I pride myself on not presuming I know everything. I recognize I’m not perfect so I review my work to the point of redundancy. I play Devil’s advocate and take the VA’s side of the claim to determine if I can find glaring flaws. This is what every Rainmaker should do. Just because you have a Juris Doctorate and the word Esquire after your name (I don’t) doesn’t give you a bye on intelligence. Remember, VA raters do not have anything close to a JD and many create denial logic out of whole cloth. They rely on you swallowing their hooey hook, line and sinker. Therein lies the fabled 98% accuracy claims they tout. You, or your VSO reps do not appeal 98% of the time-ipso facto, they (VA) are right 98% of the time.
And that’s all I’m going to say about that.