Former WH janitor overhears President saying ______to_______!
Turns out it was President Eisenhower and the guy resides in an Alzheimer’s old folks home at 1234 Yellow Brick Road in Oz, Kansas. I’m getting rather tired of it. No one got this heated up about Benghazi. That was like forgetting the air cover for the Bay of Pigs invasion in ’61. Where’s the outrage about Congress raiding the SSA Trust fund and slipping in an IOU? And now they espouse $55 trillion for free college and Medicare for all regardless of your immigration status? Helloooooooooooooooo????
The subject above has nothing to do with McWhorter. It’s just that I keep seeing articles in this same news feed from my good friends at Attig Steel and CCK with all kinds of helpful advice on how to win your claims. Granted, imitation is the dernier cri in flattery. I began teaching the Caluza/Hickson/Shedden theory in 2008 after my 28-year fight to a win and wrote the “What You Need to Succeed” book in 2012. I’ve done a bunch of shows with John and Jerrell on Hadit.com over the ensuing years on this subject-et voilà- the big guns are finally beginning to follow suit. Don’t get me wrong. Veterans need all the help they can get. That’s the primary reason I began this blog.
Every law dog or Johnny Veteran should have a list of go-to cites to insert in a brief or argument. Either you’re arguing case (law) or you’re arguing controversy (what the facts really are). You can’t just dial up Westlaw every time you need the perfect cite. That’s $60 a minute and most Veterans cannot afford this level of extravagance. I used CAVC and BVA decisions to find my perfect cites until I discovered NVLSP’s Veterans Benefits Manual. Nevertheless, I still use the BVA because the search engine on the BVA site is extremely phenomenal. The CAVC search bar is so-so in my mind.
I now collect and assemble the perfect cites as I run across them at the CAVC. When I began this journey unassisted in 2007 (the fourth time), I read every single CAVC decision written from 1989 to 1995. By the time I reached Caluza v. Brown, I finally began to “get it”. Those early, formative years of the COVA contain some killer cites which, while maybe having been relitigated by panels at a later, more recent date, still base their logic on much of this 25-30 year old precedence. Almost all these golden oldies imported Federal Circuit precedence which became the early framework for conversion by the COVA and fashioned into Veterans law with a heapin’ helpin’ of Boone v. Lightner. Always remember, VA law has a thumb firmly placed on the Veterans’ side of the scale of justice. Or at least it should.
Every law firm, as I say, including the DAV, VFW/ YOUR VSO etc. has their favorite ten or so cases that embody certain presumptions or case law that give Veterans a leg up. In this day and age of the new AMA, we are encountering gross errors and proof that haste makes waste. Either that or the old adage that Idle hands are the Devil’s Workshop is still a valid observation. Regardless, we are seeing a race to the bottom for legal ineptness now at the VA. This puts an inordinate amount of pressure on HLRs and most especially the BVA. Sadly, they are failing us. There’s a new, post-AMA stare decisis format afoot that embodies and espouses the new, endless Hamster Wheel litigation method.
I get NWQ decisions back with wild and woolly errors every month. I have to track down and call up (or email) the DRO Coach and politely ask what they were smoking in the alley during lunch break that day. If they shine me on, I cc: it to the AMO Big Guy with the initials D.M. back in DC. Miracles of miracles, the promulgated decision magically disappears from VBMS and it’s back in the EP 499 NWQ hopper for another week to remodel it. Funny, I didn’t think you could “erase” anything in VBMS-or VACOLS for that matter. Boy howdy was I ever wrong. Gene Groves put paid to that lie ten years ago when he outed the VA’s “backdoor” to VACOLS. That’s why I always screen grab it when I see it and save it as a .jpg. The evidence comes in handy later when the Secretary trots out his post hoc rationale for prior Agency action which, noticeably, doesn’t encompass his development actions.
This can be extremely valuable at the BVA when the WACO VSCM says the defective Rating Decision “never happened.” Of all precedence, I have been dragging out an Oldie to combat this notion that a rater can say “We denied you based on this”. Most recently, since 2/19/2019, if you resubmit anything new into evidence, they merely move sideways and change the logic for the denial to comport with defeating your new contention. Litigators used to combat this inane propensity with Martin v OSHC in the past. This is why McWhorter now has more “punch”. It’s been sitting in the CAVC basement almost 30 years and rarely cited.
The accepted legal essence of McWhorter generally overlooks its extra inferences. Here’s the gist. Let’s say you file a claim for Hepatitis C and claim alien abduction s/p brain transplant as one of your risk factors (in addition to the accepted HCV risk factors). The Secretary says it (the Hep C) isn’t related to jetguns, shared razors, unsafe sexual practices or shooting up with shared syringes. He says you were born between 1945 and 1965 and that’s what probably did it. However, let’s say he fails to rule out the alien abduction and artificial brain implant with unsterilized alien surgical implements as being the risk factor. On appeal you win because by not specifically denying infection of Hep C predicated on that risk factor, the Secretary essentially concedes the risk. That’s a very simplified explanation…
MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991). “Yet,[w]here [an] appellant has presented a legally plausible position . . . and the Secretary has failed to respond appropriately, the Court deems itself free to assume . . . the points raised by [the] appellant, and ignored by [VA], to be conceded.”
see also Mari v. Shinseki, No. 08-1175, 2009 U.S. App. Vet. Claims LEXIS 1545, at *4-5 (Vet. App. Aug. 31, 2009) (nonprecedential) (“[T]he Court deems conceded ‘points raised by appellant, and ignored by the [Secretary].’”).
Now, I’m not saying being abducted by aliens is a viable, credible risk. I merely use it as a off-the-wall humorous example. Look further. How about once the Secretary says your claim for bladder cancer is not related to your exposure to Camp Lejeune water contamination, you bring out the direct service connection path and say working in the motor pool with excessive benzene exposure did it. VA can’t keep changing positions. Once they fail to plug a hole (read rebut) on a reasonably filed claim for benefits, it’s fair game. If they focus on the presumptive and ignore the direct, you yell Combee v Brown and hand them an IMO. Bingo. You’re a chicken dinner winner. Hart v. Mansfield/ Mariano v. Principi/Kahana v. Shinseki and its progeny prevent them from chasing down a Hoodoo Lane in search of a pliable VA examiner willing to accept 30 pieces of silver to rewrite a viable denial. Correction. It’s probably more like 36 pieces of silver due to COLA nowadays. I love Hart:
Mariano v Principi, 17 Vet.App. at 312, states 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.” 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 (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.
Even though the presumption of regularity of VA doctors is protected by Sickels v. Shinseki, as a litigator or a DIY pro se claimant, you should be begging for Chevron deference and make the Secretary choke on his own 38 CFR. Never ignore Chevron. It can be your huckleberry in a lot of instances.
At Fall NOVA, during the Friday evening Adult Beverage Consumption Hour post-conference, I asked Judge Mary Schoelen what she considered her most famous legal contribution to Veterans Law. She confided that there were so many it was hard to pick a favorite. I get that. When you have 15 years devoted to the betterment of Veterans Law, it can be a daunting task to pick only one.
Distilled to its essence, my 10 personal favorites which I use religiously, are the ones which confer lay credibility (Layno v. Brown), sympathetic development (Moody v. Principi), inferior legal assistance (Comer v. Peake), reasonably raised claims or arguments (Robinson v. Peake), agency deference(Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) , you’re not a doctor so why would VA grant you that distinction when they don’t in Layno? (Clemons v. Shinseki), maximizing SMC (Buie v. Shinseki/Bradley v. Peake), going for the highest and best rating attainable (AB v. Brown) and lastly the correct reading of 3.303(b)-[T]he regulation, 38 CFR §3.303(b) requires continuity of symptomatology, not continuity of treatment) (Wilson v. Derwinski) . I have more but these are my go-to barn burners. And of course McWhorter.
Patricia McWhorter’s epic saga is becoming ever more useful now based on the recent proclivity of the Secretary to change or alter his decision rationale on your claim after the initial denial in the subsequent 0995 Supplemental claim denial. It’s becoming ever more difficult to keep the claim/reopening on point short of filing a VAF 10182 NOD and taking it up to the BVA. Even then, I recently hit the wall on this with VLJ Cherry Crawford. She refused to talk about tinnitus secondary to getting blown up by a 60mm Gook mortar round. The logic? Why, he didn’t file for tinnitus. He filed for perforated eardrums (bilateral). If he wanted SC for tinnitus (which he couldn’t even spell), he should have said so. No tickee-no laundry. So what if he stated at the C&P exam that “I have ringing in my right ear”. So what if they noted in the EENT exam four days later that he indeed did have tinnitus. No dice. He didn’t file for it. No sympathetic development here. Move along. Nothing to see, folks.
VA Justice should not require a VA lawyer in our nonadversarial, Veteran-friendly ex parte justice system. If your records show a clear causation for your ills in service, you should not have to engage in a 5-year battle over acute versus chronic. My greatest joy was finding Caluza v. Brown and the VA’s Rosetta Stone for winning my claims. This is why I enjoy such an incredible win/loss rate (1500-ish/2). An IMO is like an American Express card- Don’t leave home to litigate without one.
Pour votre amusement: