Boy, howdy, if you live in Houston, you’re in for a Miriam Webster revision. As of now, you no longer have a four bedroom home with a Master bath/spa. Negatory. It’s now a Primary Bed/Bathroom. I’m wondering on how that plays out if you have a Masters in French Lit. or your car has a Master cylinder or God forbid… the Masters Tournament. You almost get a glimpse of where this train wreck is headed. I’m waiting for them to decide the Statue of Liberty is passé and has to be toppled.
Every morning you’re going to have to wake up woke and ask Alexa what the latest revisions are to publicspeak. Well, fortunately it hasn’t come to that just yet in the universe of Veterans Claims… or has it? Imagine if you will… No, not Rod Serling. Imagine you’ve landed where you are in Butch Long’s shoes after 8 years of claims preparation, filings, appeals, hearings, c&p exams ad nauseum, and you finally have a soapbox from which to speak from to folks who will really listen (CAVC). Normally, I would be worried that I might draw a “hardass” Jurist who isn’t Veterancentric. But here, in the instant case, it’s a tearjerker like Queen for a Day. How could so much shit befall one Veteran? What are the chances of the Army forgetting to tuck your STRs under your leg on your Medivac stretcher? Or forgetting to award you your medals and then getting shafted by the VA for lack of the very same?
But then, like a Country and Western song, you finally get your medals. You find and submit the old STRs and get rated up the bazoo for more metal than Dorothy’s friend the Tin Man and…and… and… VA says “Negative copy. We reconsidered under §3.156(c)(1) but there was nothing there to change our minds. Oh, yeah, we did find a CUE back to 1970 for 10% on the right arm but we fixed that. Here’s $45 K. And just because we’re such swell folks, we’re also gonna toss in an extra year of tinnitus back to March 2014 for a buck 25 a month under §3.114(a). How ’bout them apples. Huh? Shit bubba. You can dine at Applebee’s© for a year with the whole damn family on that tinnitus money alone.”
Right. So, we file the VA 9 and say §3.156(c)(1),(3),(4) about a hundred times in person and on paper to the Veterans Law Judge. 13 months later (advanced on the docket no less) she opines that §3.156(c) is inapplicable as she can’t “see” any informal (or formal) claims made and everything was granted back in ’70 so no dice. Okay. Put on the law helmet, padawans. The #1 legal error is the local NWQ Fort Fumble says they reconsidered it under §3.156(c) and it didn’t change their minds on what was awarded and how much in 1970. This is a positive finding of fact. I know. It sure doesn’t sound positive but the negative outcome re reconsideration is immaterial. The local yokels decided §3.156(c) was indeed applicable but wasn’t a game changer. But, the VLJ now says “Au contraire, ma cher. §3.156(c) is not applicable”. Alarms have to go off because you cannot undo the reconsideration-assuming you believe in the tooth faery- that they ever did a recon on it in the first place. Admitting a reconsideration took place under §3.156(c) lets the camel’s nose in under the tent. There’s no backing up even if no change in the decision occurred. The BVA is where you were supposed to get a de novo look again at the reconsideration-not a denial of the whole regulation’s applicability and, hence, no decision at all.
Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) (“To the extent that that determination is favorable to the veteran, the Court will not disturb it”.)
So, now, at the Court, I am forced to reconstruct the crime scene. The Secretary is free to rebut Butch’s story but Butch is a combat Veteran now. He wasn’t one back in 1970 when they rated him because the medals were never on the DD 214. All the medrecs from the time the mortar hit until he arrived at Letterman Hospital in Frisco over a month later were still sitting in Camp Zama, Japan. With the addition of not only the medals granting presumptive exposure to concussion blast trauma, but the new (old) STRs, you can open up 1970 again. Or not, according to VA. Butch and I never figured VA would roll over like a dog and let you scratch their belly. Now that they tossed him that CUE bone for 10%, he is (was) rated at 20% in 1970. The reason they aren’t caving in on §3.156(c) is simple. Add even one more 10% and you have a 30% total. Bingo. A spouse and four children is a chunk of dough from 1970. VA wasn’t going to piss on this fire and call in the dogs until they were sure we were going to give up. Maybe they think just because I’m not an attorney that I have shit for brains. Maybe they figured the Court could never unravel it. Who knows?
We have filed our appellant’s brief and The Secretary has filed the Appellee’s brief. Ruh-oh, Rorge. Rough sailing ahead…
It’s clear they have no idea what this claim/appeal is all about nor how §3.156(c) works. Viewing the history of CAVC/Fed. Cir. precedence, we have Vigil, Mayhue, Cline, Pacheco, Blubaugh, Emerson, George and maybe Kisor to date. Each has contributed something to the interpretation of how §3.156(c) works or refused to elaborate. Virtually all of them involve using the JSCRR to locate a stressor event for a PTSD claim or a CUE. Personally, I don’t know how that applies. If you filed in 1970 for anything MDD, you’d still need an IMO-be it private or from VA shrinks- to prevail. If you didn’t have the dx of MDD until 1998, then you can’t get the EED of 1970 if you didn’t have a DX back then. I suppose you could get a IMO from a good outfit that would do a retrospective Dx. This filing was sanded and honed to a fine polish from 2012 to the present. Each filing was considered like a chess move. The object was to create a unique confluence of evidence and claim filing. The next project was to infuse it with equal parts of §§1154(b);3.156(c)(1),(3),(4). Lastly, it is presented to the Court as a fait accompli. There is nothing left to argue.
I have to be honest. Medrano protects Butch but this §3.156(c) business is an art form. I always teach folks to keep a few extra hand grenades just in case they need them late in the battle. Here. we’ve kept any Medrano arguments out of the Court stuff. If we have a panel and an Oral Briefing, we can spring it then.
Back in December 16, 2016, when I realized we were sitting on 103 pages of new §3.156(c) STRs, I went through and selected the most probative ones. I saved back about 45 of temperature charts and debridement notes, diet charts etc. VA never even went back to see if our records were legitimate. They just accepted what I submitted. No PIES requests. Nothing. Thus, we still have another hand grenade we can always use. Most importantly, though, I was planning the filing of Butch’s TBI with headaches in conjunction with when I submitted the new STRs at the upcoming formal DRO hearing with hearing transcript. That DRO gig happened on February 22, 2017- George Washington’s birthday. Butch’s TBI w/30% for headaches decision came out May 8, 2017. The effective date was, of course, December 16, but when you get to the Court, the fact that the rating came out 76 days after the new STRs hit the claims file makes it look like §3.156(c) was implicated in the rating.
The biggest error is going to hurt. The author of the Appellee’s brief colored outside the lines. She said Butch was a liar, liar, pants on fire. That’s a big Bozo No-No in Vet law. If he was guilty, it would be okay to say it politely. But, on the other hand, if you are a heavily decorated, highly disabled Combat Veteran in a wheelchair, your opponent’s exculpatory evidence must be of the highest calibre or they’re gonna be taken out behind the woodshed for some wall-to-wall counseling. §1154(b), the combat presumption accorded our Veterans, says anything that comes out of your piehole with regards to how you got f—-d up and what disabilities it caused afterwards, is golden testimony unless you start talking about the alien abduction stuff and that brain control module they inserted in your noggin. VA needs some mighty powerful mojo and good, written evidence to show you can’t be trusted to brush your teeth unsupervised. If you do not have “clear and convincing evidence” to call Butch a liar or a malingerer, then you have to shut up and sit down. The last thing you want to do is start stuffing words in his mouth he never said. VA sure can’t say that money is creating bias in your combat-protected testimony. When anybody does this, they get sanctioned. When you get sanctioned, it casts a negative pall over all your arguments. It makes you look like you’d do anything-including cheating-to prevail and get Butch denied.
In my book back in 2012, I tried to teach Vets that timing is everything. Continuity is imperative. In this case, I baited the hook to see if VA would strike. In late 2014, I mailed in Butch’s new DD 215 showing the award of a Purple Heart Medal retroactive to 1969. We heard nothing but crickets. By rights, under §3.156(c)(1), the Seattle Puzzle Palace was required to dust off the old 1970 claim:
Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.
VA ran into a roadblock in Emerson v McDonald by saying any prior claim to be reconsidered had to have been denied before §3.156(c)(1) kicked in. In this case, the VLJ said all Butch’s claims had been granted and there was nothing to reconsider-formal or informal. Again, this is the wrong legal standard of review. “At any time” means even if we find more records or medals again in 2035, we still get a reconsideration of it. The outcome of the original claim is immaterial to the point of the reconsideration. The new records automatically pull the hand grenade pin on any reconsideration. Thus, when I submitted proof of a retroactive Purple Heard Medal in 2014, VA was automatically required to pull out Butch’s claims file and take a gander at what his combat posture was in 1970 and reconsider the 1970 claim. It would be error not to. And, once again with the submission of new personnel records and another DD 215 showing the Combat Infantryman Badge with the new reopening in March 2015, VA was yet again required to reconsider 1970. And, yet again in October 2016, with the submission of the General Court Martial records, yet another §3.156(c) reconsideration was required. The big document dump at the DRO review on February 22, 2017 was to really impress these folks with the applicability of §3.156(c)(1). Not one decision from the reopening to the last in 2018 mentioned any reconsideration of the applicability of §3.156(c)(1)-let alone (c)(3) or (4). The Court is going to notice this. The Court is also going to spot that Seattle professes to have done the reconsideration. The new George v Shulkin (Wilkie) decision in March of 2020 points out the discussion in Vigil v. Peake about there needing to be evidence of a reconsideration in the record. Just saying “Yep. We reconsidered it.” without some blatant evidence of same is not sufficient to prove you did any recon in the Court’s eyes.
I’ve been watching how §3.156(c) jurisprudence has progressed for years. Each new panel decision spoke to a new facet but none have the absolute shotgun effect of four successive infusions of new STRs in short order with zero results. Most importantly, no precedential decisions to date have stirred §1154(b) into the stew to see how it cooks off. Each introduction of new §3.156(c) evidence was timed to coincide with a rating decision pertinent to what the new evidence was going to provide. Thus, showing exposure to loud, concussive explosions was needed to prove tinnitus was service-connected. But even more so, Mr. Long had to prove the tinnitus was caused by a concussion or a head injury. By the §1154(b) presumption from the CIB award, Butch’s testimony that his tinnitus was loud and constant must be granted credence now. That, in turn entitles him to a 10% rating in 1970. Combined with TBI/ headaches at 30% and the recent eye injury award of 10%, which began also in 1969, VA owes old Butch a 60% rating with spouse and four children from April 29, 1970 to about March 30, 2015, where he was granted his TDIU. That’s really why this has turned into a cat fight.
This all hinges on a good reply brief describing what the evidence really says. Forensics is everything in this business. The trick is synthesizing/condensing it down to 15 pages. Et voila:
And here’s the smoking Rosetta Stone to refer to:
The booth bitch at the OGC insists Butch never said “I have ringing in my right ear”. He did. Even worse, he said it under color of §1154(b). You can’t throw Shade v. Shinseki on that. Worse, by saying Butch should have claimed tinnitus et al by writing them all down as claims if he wanted them ignores the very evidence he did.
P.S.On a final note, I found out via our illustrious internet that Leroy MacKlem passed away in 2014. How sad. He fought for years and had finally won his CUE back to 1950. At least he won before he punched out. I’m praying for the same for Butch.
We now await the Court’s next move. If you wish to watch this develop, go to http://www.uscourts.cavc.gov/ and click on docket search in the lower left.When the ECF Docket pops up, enter 19-7301. Click on the name Long and the whole docket, including all these briefs, will appear. Single click on the little Microsoft Word Doc icons to open each document.
Life is good. Cupcake and I are taking our summer vacation at home this year due to this Kung Flu. We spent our COVID 19 rebate $ on a ce-ment pond out back for Pickles. A Labradog needs a pond to fetch properly.
P.P.S. Today ( 6/29/2020), the Court clerk assigned Judge Michael Allen to the appeal. I couldn’t be happier unless they had assigned it to Judge Greenberg. Judge Allen was the one presiding when they swore me in.