When I sat down for my first VA poker game, I was using a trusted mailman- a VSO. Well, trusted insofar as I had a pretty good chance of it getting there. Likewise, being fairly naive about all this in 1989, I suppose I bit hard on the precept they (VSOs et al) were going to be my trusted knight in shining armour with a Supersize me® of Sherpa, too. With many years comes greater wisdom. No, folks. I’m not plagiarizing it (or culturally appropriating it in @Leftspeak). It’s true no matter who evokes it. With that aside, let’s talk about filing integrity.
One thing we assume far too trustingly these days is the assurance that electrons will not go astray. If they do, we presume they conveniently boomerang back with “Your email to firstname.lastname@example.org did not go through. Perhaps you might oughta wanna try that again or check your address for her.” Some venues lock up and force you to make a momentous decision like “Mon Dieu! Leave this page and allow this cogent FacePlace© comment to be lost to the ages? Are you mad?” The point being is that they cover your butt for you. It’s like being in Kindergarten again and someone’s in charge of making sure you color inside the lines. Speaking of coloring inside of the lines- check out these new guns the Israelis are using. I’m gonna ask Cupcake for one for Christmas for them coyotes down in the lower pasture.
In the VA world, you gung ho, pro se do-it-yourselfers have several different venues to stick your message in a bottle. Among these paths are Ebenefit.com, efiling.com, Ihopeitgetsthere@va.gov, USPS snail mail and various VA FAX numbers which terminate at the Evidence Intake Center. We (well, at least me) frequent filers who do this for fun and very little profit generally use USPS Priority mail $7.35 (free tracking and confirmed delivery). In addition, I throw a second hand grenade electronically at 844-531-7818 EIC FAX. Others foolishly depend solely on those rascally electrons or some confirmation back saying Rog on your last txmission, over. I was taught by my mentor, fellow Vietnam Veteran Robert Walsh, who in turn was taught by his legal professor, the admonition of “belts and suspenders.” The clear meaning being to file in two venues to ensure one gets there. Similarly, in legal briefs, I have extended this epiphany to using multiple precedental cases instead of just one cite.
What I’m getting at here is preventing a suspense date disaster. In this new age of AMA, it is becoming mission critical to convert a Legacy SOC into a BVA NOD within 60 sunrises and 60 sunsets and make sure it is recorded. Woe betideth s/he who files on the 57th day before Bingo and mistakenly presumes it got there either via snail mail or electronically without some confirmation. True VA confirmation for equitable tolling purposes will generally appear in VBMS about 8-10 days later in most cases. If it doesn’t, something is amiss.
In recent months, I’ve been playing VA Forms Tennis with various VA Poohbahs as to which VA form they will accept from me to use for filing a CUE. VA now uses the National Work Queue (NWQ) which means you will get a different “technician” every time who determines this. Regardless of which I file, it’s invariably the wrong one. Instead of getting into a pissing match, I just refile it with one of the other 3 forms they “suggest”. This came full circle last week when I refiled the “right one” (a 995) and they established it as a new claim using the prior 526 document they refused last month. Maybe I’ll start messing with their minds and simultaneously file a 526 and a 995 with a cover letter saying “Take your pick and discard the wrong one.” My guess is I’d get a letter back saying “Thank you for your service. We were unable to construe what it was you were asking for. Please see the VA Form 20-0998 (attached) on how best to get in touch with us. Ta ta for now.”
We’ve all been told to have patience while the VA squirrels learn the new ropes. We’re approaching the first year anniversary of the implementation of the AMA come February 19th- a mere 24 days hence. My patience is being sorely tried. Does it really take that much intelligence to determine which form to use? Do they consult tea leaves or cast dem chicken bones? Does it involve a first born male child? I had a 526 claim rejected in August for an increase to an existing rating. Yeppers. Wrong. Use another form. They accepted it on the 995 which is a direct violation of 38 CFR §3.1(p)(1)(ii). So much for Chevron deference. Remember. A VA 20-995 is only for refiling a prior, denied claim only. Well, unless it’s on a Thursday and the NWQ sends it to Little Rock. Then it’s a 526.
To me, the smart money in VA claims filing demands belts and suspenders. One of these days fate will come back to bite you. When it does, you’re bulletproof. At DRO hearings in the past, I used to catch flak for the duplicate filings and told I was “clogging up” the VBMS. Moi? Seriously? Every Veteran’s electronic claims file has at least 30 “Where to send your correspondence” 998s, and as many “What you should do if you disagree with out decision.” blurbs per claim. Besides, what’s a few more megabytes of .pdf ? How many 98-page SOCs have any of you Vets received where they dang near cut down a tree to reprint Part III and Part IV of the CFR?
VA jurisprudence continues to evolve for the better which is good. The drag is that it’s improving at about the speed of the dinosaurs’ evolution. I have a good old fashioned Legacy Travel Board hearing coming up in Houston in May. I drew VLJ Michael E. Kilcoyne. I read about 200 of his BVA decisions on various subjects to get a feel for how he thinks. You can tell he cut his teeth on about the first 8 years of the CAVC. All his cites are from that golden era. Walsh calls the original seven COVA judges “The Magnificent Seven” and I agree. Some of the most cutting edge stuff you’ll ever cite to was probably formulated in those early years to counteract the overbearing pomposity of the first VA Secretary-Ed Derwinski. The Court had to actually teach him about judicial power, who wielded it and who most assuredly didn’t. Nowadays we understand William H.Colvin or Roger J. Schafrath but mostly in much newer cites with newer names. Hickson, Shedden and their progeny have gradually overwritten Caluza from the BVA lexicon but you’ll still see Judge Kilcoyne cite old Mario and his technicolor guerillas. He’s also fond of substituting Jovita Espiritu in place of Benito Layno. Type in Derwinski on my search bar under the medal and you’ll get a wad of golden oldies I wrote years ago. I learned all my law smarts from reading and digesting these antique gems. Judge Kilcoyne and I ought to get along like peas and carrots.
Either way sounds good to me, with a complete denial the next step is the Court sand Pro Se appellant can raise issues for the first time on appeal and also common sense says the Claims File would contain something the BVA failed to address even if the “raise for first time on appeal” fails under “determine and adjudicate all claims reasonably raised by the record”. Plus one would assume all VA “medical studies” would be fair game.
No sir, Now we can make a uturn and go back to the VARO and file a new Supplemental instead of going to the CAVC. It’s like a merrygoround. You can choose where you go to fight. The CAVC should be the Court of Last Resort when you realize they can’t read.
With your book and website I have won an appeal for improper reduction, pending claim for bent brain retroactive to 1995 and a CUE for failure to apply Swain v. McDonald so your advice is the gold standard. My thought was that a remand from the Court would be expedited thru RO and BVA, at a few months short of 75 I don’t know how many years of rope a dope at the RO and BVA I can survive.
Interesting question. Two possible answers come to mind. First one is a shot in the dark. As I have no personal cases yet which have gone through direct review, my suspicion is that they are susceptible to a remand even though the AMA characterizes this as a one-shot deal up or down based strictly on the evidence of record. Think of a BVA direct review as a quasi-HLR. If the VLJ sees an egregious error, he’d have to rule in your favor and send it back to the AOJ for a re-adjudication comporting with his instructions.
Always remember, in VA law, regardless of whether you’re at the Court or the BVA, a remand is an order to fix something that was done wrong. It might be a reverse and remand, a set aside and remand, a vacate and remand or a remand from the Board to redevelop, readjudicate and then return the remand if a denial is still their final decision. All remands come with the boilerplate proviso of Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999), that, upon remand, it permits you to “repair” your appeal by submitting new and relevant evidence that will support your contentions. VA is required to send out a 90-day letter saying “All Aboard or you’ll miss the opportunity to submit said new and relevant evidence”.
Assume you submit 10182 and opt for Direct Review by the BVA complaining about the failure to consider aggravation (which was raised in original claim) and the BA remands back to the RO can you submit additional evidence about aggravation and/or other issues and have the RO and the BVA still act on the appeal in the same lane and same expedited manner?