I keep getting really basic questions about law now from Vets who are filing Extraordinary Writs up at the Court or “CAV-ICK” (CAVC) as Chairman of the Board of Appeals pronounced it yesterday at the Spring NOVA conference. I liked the old, pre-1995 COVA (Court of Appeals for Veterans Claims) if you have to sound it out Phonics™-style It comes across as vaguely dismissive to address an Article I Federal Court approved by Congress this way. Especially coming from a SES approved only by the President. I won’t dwell on that. It’s not what I wanted to impart today.
Like a lot of you, I didn’t feel like, nor did I have, a lot of folding money back in the day to pay $59 a minute for Westlaw© for that killer cite for one of my pro se pleadings. For a while I got a free ride off my son who had access to it via work. But, being innovative and a Veteran, I eventually developed a great workaround. I speak of the BVA decision site which is on my Widget bar up above. It has a Booean search engine which is suboptimal but works after a fashion. https://asknod.org/38-usc-and-38-cfr-links/
If you want to get anal for a certain precedential Fed. Circus or
CAVICK COVA cite, put quotes around the name or phrase. Don’t inundate the search feature by trying to look at all 28 years. Try to keep it down to the last 2-3 years unless you want to diddle around for days. I’ve found the COVA search engine, while breaking down for panel or single judge, and chronological order of decisions, is too broad and sweeps up a lot of decisions I can’t easily copy, are not on point, or not what I need.
If I’m doing a case on Camp LeJeune cancer due to contaminated water, I type it in with quotes and it kicks out all the recent decisions I need to read to get a feel for how to fight the appeal and win. So scroll back up to the top and click on the BVA Decisions Search Site. Now, erase Hepatitis C and type in “Camp Lejeune water”. Hit the SEARCH button in the lower right. Give it a minute. Hell, you can even use VA’s abbreviation of CLCW(Camp LeJeune Contaminated Water) too. Makes you wonder if Veterans Law Judges pronounce it “CLICKWUH” claims. VA calls their senior raters DROs. Not D-R-Os. DRO like drove into town. I guess that makes VSRs Veezers or Veesirs? So much to learn. So little time. So about a 1 on my give-a-shit meter regarding VA employee pronunciation proclivities.
You get 110 hits on CLCW just in 2020. Even though we’re a good three months into 2021, they haven’t added the new year yet. It sometimes takes three months for you to see your decisions here. I use it for all kinds of things. If I draw a certain BVA VLJ for a hearing, I like to go look at his/her decisions and get a feel for who I’m going to be trying to convince. If you draw some antique like Ursula “the Unmerciful” Powell who’s been there since 1994, then you better have some most excellent Juju going for you. She will not brook an undeveloped brief or slipshod attorneys/agents/VSOs. I read a hearing transcript of a good ol’ boy Georgia Dept. Of Vet. Affairs VSO rep. where he was telling Judge Powell how-and I quote from the transcript- “f****d up the Vet’s c&p exam was”. She didn’t cotton to the expletive and said so. Sayonara to that one.
Let’s dive in to #1. Let’s say you want to see which diseases are on VA’s list. You’ll spot §3.309(f) as the regulation with the CLCW list. So you go back to my basket of widgets up at the top and click on 38USC /38CFR Links. It takes you to the link for 38 CFR (https://www.law.cornell.edu/cfr/text/38/chapter-I). Then you click on Part 3 Adjudications and it takes you Part A or B. Choose Part A. Scroll down to 3.309 and click. Scroll down to (f) and Bingo. The magic 14 diseases are listed. Now, what a VSO would never tell you is that you can get dang near any cancer tied to CLCW if you can get a nexus saying so from a reputable oncologist. I did one with a glioblastoma of the brain and won-in front of… guess who? Ursula the Unmerciful. VA threw two IMEs at me and we still won.
WHAT AM I?
Let’s sort out who you are legally while we’re at it here. At the AOJ (Agency of Jurisdiction/Veterans Service Center/VARO/Fort Fumble), you are known as the Veteran or claimant. I prefer victim or hostage. When you get your polite denial and file a request for a higher level of review (HLR), you are still a claimant/victim. You have not left the local yokel level yet. If you die while fighting them, you are still the Veteran. Your wife becomes the claimant.
If (more like when) you decide to seek real justice, you file a VAF 10182. VA folks haven’t figured out a new term for this in the AMA yet so they use the old term (Notice of Disagreement or NOD pronounced just like Nod of the head). This is where asknod comes from. Ask + NOD. I didn’t pick that. I wanted WWVD-What would a Veteran Do? Cupcake felt that VD thing might irritate the Woke folks. VA folks call this new AMA form a 10-182 as in two different numbers. There must be a lot of old Car 54 or Adam 12 TV buffs at the BVA. At the BVA (Puzzle Palace/Oracle at Delphi) you graduate to become an “Appellant” with a capital A. The VLJ is called the Board or the Trier of Fact. If you file a Notice of Appeal to the Court, you are still an Appellant. The Secretary of Veterans Affairs is the Appellee. Ditto the Fed. Circus or the Supreme Court.
If you are filing a CUE claim aka a Motion to Revise, be it of an old AOJ or BVA decision, you are legally the Movant. I’m not sure if that makes VA the Movee…
Likewise, at Court when you file an Extraordinary Writ of Mandamus (Ex. Writ), you become a Petitioner rather than an Appellant. The VA Secretary is the Respondent. You are asking the Court (petitioning it) to make the Secretary fix some gross error in order to proceed legally as a claimant or Appellant in order to get your claim/appeal problem decided. The Secretary is given 30 days to answer the Court and explain the mystery of the holdup. Most Ex. Writs are dismissed or denied but they sure force the Secretary to get his poop in a group and they almost always fix the problem-but not always necessarily in your favor.
Not ready for Primetime Commandos
Legal Cites and §
I’m sure you all have seen regulations quoted in your 45-page SOCs or your 3-page Supplemental claim denials. They have the Section symbol (§) in front of the regulation. In most cases, you will see references to regulations in Part 3 adjudications or Part 4 (medical). If you want to put a § in your brief, use ALT +Insert 21.But what about them legal cites to a precedential case? Okay follow me.
At the Court (CAVC) a cite will state the name of the Appellant versus (v.) the reigning Secretary of VA at the time. Any decision right now would be Doe v. McDonough. When I do briefs, I like to bold and italicize these for the law clerk who reads my BVA legal brief. You’re required to at the CAVC if you use them in the body of the brief but not at the BVA. Perhaps bold/italics is not required on CAVC briefs if relegating them to footnotes at the bottom but do not quote me on that one.
Not a Blonde Joke
So let’s look at a cite I use a lot. Layno v. Brown. Benito Layno was a slippery dude and lost. Nobody called him a liar outright. They’re too polite and polished to be that rude up at the Big House. Judges say things like “the records fail to show…” rather than “Layno’s full of shit it’s coming out his ears”. He lost but he did do us all a wonderful service. Now we can say we have a headache and how bad it is on a scale of 1-10 without an MD after our name. The cite will look like this:
Layno v. Brown, 6 Vet. App. 465, 470 (1994)
6 Vet App. stands for 6 Veterans Appeal. It identifies the court (CAVC or COVA back then in 1994) and Volume 6 of the Veterans Appeals, starting on page 465. The pertinent cite you choose- in this case the prime reason for citing it- is the Court’s holding on page 470:
a Veteran is competent to report on that of which he or she has personal knowledge.
The CAVC/COVA was created by Congress in 1989. Thus, 1989 is Volume 1 of the CAVC tome of Appeals. 1990 was 2 Vet. App.; 1991 was 3 Vet. App. etc.
The page number, in this case 465, is where you will find the beginning of the decision if you look it up on Westlaw. Page 470 will contain the actual phrase you are going to quote from or cite to as “held that a Veteran is competent to report on that of which he or she has personal knowledge.
A Federal Circuit Decision is written differently. Let’s look at Jandreau v. Nicholson which pretty much said the same thing as Mr. Layno’s disaster. The Court of Appeals for Federal Claims (CAFC), to which you would file a Notice of Appeal if you didn’t agree with the CAVC decision, is abbreviated thusly”
Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)
Once again, Jandreau identifies the name of the appellant which is not necessarily always the Veteran. If the VA secretary disagrees with the CAVC ‘s decision, he can appeal it up to the Federal Circuit and fight it up to the Supreme Court. In that case, the names would reverse and it would have become Nicholson v. Jandreau at the Fed. Circuit or the Supreme Court. 492 identifies the volume of the decision and F.3d identifies the location as recorded by the legal reporters who do this. Page 1372 is the beginning page of the Decision in Volume 492. Pages 1376-1377 are where you will find the desired notation to cite ((noting general competence of laypersons to testify as to symptoms but not medical diagnoses). I hear of a lot of attorneys (and probably agents too) who mis-cite. Remember, a cite has not only the starting page number to help you find it in the proper legal volume, but also the actual page(s) where the on-point cite is located. Thus Rice v. Shinseki, 22 Vet. App. 447 (2009) is incomplete and would be kicked out at the CAVC and require a do over and a resubmit for legal insufficiency. The meat you want to cite to is on page 453.
I know a lot of you are taught by various Vet’s Help websites to cite to the M 21-1MR or the M 21-5. Some teach using 38 CFR exclusively. At the Court, you want the cites. The regulations are there to be disputed or supportive. Here’s what I know from my own limited 30 years of experience. Any really contentious case-as most of mine are- never are won at the AOJ. VA fights me to the BVA and sometimes beyond. Nobody wants a CUE payout back to 2002 on their resume when it comes time for the RVSR upgrade. So, your legal argument is going to fall on deaf ears. Or is it? You have to think of this as a house. You start building the foundation long before you frame it. Your legal arguments are going to pile up and accumulate. Eventually, a person, usually a staff attorney with a JD, is going to pick it up and say “Well, duh. Layno applies.” And they grant. Those cites were wasted on a VSR or DRO who can only speak M 21. But if you go up to the BVA with a mouthful of M21, they refuse to listen. Either you explain it to the VLJ speaking of 38 CFRese or 38 USC. Take your pick. The Court case you cite for support is simply your legal authority for why you believe you are right and the Secretary is wrong. M 21 is no more than the equivalent of the assembly instructions for an IKEA® bookshelf or couch. M 21 is right out. It might fly up at a HLR but you’ll get skunked at the BVA or the Courts above.
I have a folder of go-to cites I cut and paste from to cover the major subjects I argue such as SMC or CUE. If I see a new cite I really take a shine to, I copy and paste it into my Killer Cites folder for future use. You can pull these verbatim from CAVC published decisions because they aren’t .pdfs.
Male Chauvinist Pigs
So, you find something used in a BVA decision applicable to your circumstances and cut and paste it (your CAVC/CAFC cite) into your argument. But let’s say you also see something further into the Jandreau decision on a later page and want to cite to it, too. If it’s in the same paragraph of your legal brief, and there are no interim cites in between, use Id. at 1379. That means you are referring to Jandreau above on page 1379
When you file for a batch of diseases but are only appealing two or three-say, for example IHD, prostate cancer and DM II due to Agent Orange- you might discuss it as:
On 9/23/2002, Appellant filed for, inter alia, IHD, prostate Cancer and DM II. This way, you don’t have to list pes planus, patellofemoral dislocation, a liver disorder, and a shit ton of other items they either granted or you gave up on.
Inter alia is legal for “among other things”. It’s a Latin word so I italicize them. Pro se means you’re on your own. Void ab initio means a decision, conclusion of law or finding of fact was in error and therefore it never happened. Supra is used after a legal cite name of the Appellant if you are referring back to it in an earlier cite as in:
Thus, Appellant’s testimony on his VAF 21-4138 as to the severity of his headaches is credible, admissible and was ignored by the Board. Layno supra.
I like to use legal cites. Everybody is getting lazy these days in the litigation world. If my cite fits, I find the staff attorneys up at the BVA frequently just copy and paste it right back into my grant.
Spring 2021 NOVA Conference
We had our third-and I pray last-remote ZOOM NOVA conference this last week (10-12 March). It’s just like the Public School system. We still have to pay top dollar for our Continuing Legal Education (CLE) credits to maintain our accreditation but don’t get to hobnob with our friends and fellow litigators. It’s like an ice creme cone with no ice creme. You just have to “virtually” pretend you’re there. That’s like having a virtual TNT (Tanqueray® ‘n Tonic). Sorry. No new pictures of the Three Internet Amigos (Attig/Krause/Graham). No CAVC Judges to get a photo op with. No new cities to visit and scratch off my bucket list. Basically, it’s a long list of Nos. But, blessedly that includes no Corona Virus. Cupcake and I received our second vaccinations last Saturday. Whew. Just in time for the Equinox. Wait for it… TOGA PARTY next Saturday the 20th!!! Cocktail service begins at 1800 Hrs. Pool heater is set to 88°(maillot de bain optionelle pour les femmes). BYOB. Formal Toga Dress only. Scotch Pong begins at 1900 HRS sharp. RVSP only. Valet parking.