Greetings fellow VA campers. I guess I forgot to write this one down when Jerrel called on Sunday. I was immersed in the pool without a pen and paper. Amazingly, our latest heatwave hit 104 that day and 108 Monday. We’ve never seen anything like it. The corn grew a foot and the pool heated up to 96. Pickles wasn’t very enchanted with that development. We added 1000 gallons of cold water and it only dropped to 94. Yeah, I know. You probably don’t feel any sympathy for me but the pool is an important part of Pickles’ life.
Anyway, here’s the link to the show.
https://www.blogtalkradio.com/jbasser/11965751/connect/b3f6075331bf2f087a16ebca13f1da1a322b1dd6
We’ll be talking about a lot of things. Feel free to call in and talk if you have a question. Certainly, we’ll be talking about the new Taylor v McDonough that just popped up yesterday. Ken Carpenter moved the goalposts of Vet claims forward about 30 yards with this one and it isn’t useful just for Vets with NDAs (nondisclosure agreements). This Fed Circus decision is a game changer. Read it here:
Taylor v McDonough-Eq. Estoppel
Of course, if you are out and about and wish to listen on your phone, try
(515) 605-9764
Dial 1 (one, uno, nung) to speak to the person you wish to speak to
Hope to see you folks there this evening.
asknod
brewerkelli
cspencer02
jamesaurora
kcraveiro
Laura
Veterans Claims Help 
With all due to respect to Ken Carpenter, your post on Taylor v. McDonough is not accurate. Judge Greenberg raised the issue of equitable estoppel sua sponte and it was NOT argued by Ken Carpenter. Ken Carpenter raised a due process violation and when asked why he did not argue for equity, he did not have an answer. The federal circuit adopted much of Judge Greenberg’s dissent verbatim. Judge Greenberg moved the goalposts 30 yards on this one. Please correct your post.
Ms. Ottenheimer:
While Mr. Carpenter was not on the brief or the oral at the Court (CAVC), he was instrumental in obtaining a win for Mr. Taylor. Not only that, the Fed. Cir. reversal forces the CAVC to acknowledge they do indeed have the power of equitable estoppel contrary to decades of denying they are not a Court of equity. Granted, they do not have the power of ER under §503 which is reserved solely to the Secretary.
Mr. Mark Jones argued at the oral on strict Cushman deprivation of due process. Judge Greenberg, in dissent, vocalized the remedy of Eq. Estoppel. I talked to Mr. Jones this AM and he said the reason he never broached the subject at oral or the R33 (or for that matter in his Appellant’s brief), was that the Court has refused to entertain it in the past.
The mere fact that Judge Greenberg argued Eq. Estoppel in dissent doesn’t mean Mr. Carpenter was remiss in failing to argue it at bar at the Fed. Cir. Mr. Jones was not admitted to the Fed. Cir. bar so Mr. Carpenter put in his appearance there to continue the fight. It could just as easily have been Robert Chisholm or Jeany Mark.
The fact that at the end of the day Mr. Carpenter was holding Mr. Taylor’s hat and jacket in this fight for justice is immaterial to the enormity of the win. This will become a groundbreaking tool at the Court and below for all of us Veterans. Methinks you look the gift horse in the mouth too closely.
I close by saying had I been in his shoes, and given that any form of equity was previously forbidden as relief, it would appear foolish to argue it. If you are forbidden to use napalm in an engagement, it stands to reason you will always reach for MK 82s or BLU 26s because they are pretty much the only tools you have left at your disposal legally. Ne c’est pas?
I think you need to listen to the oral argument and read the Greenberg dissent again. You are simply attributing the decision to the wrong party. There is even a footnote in the fed circ opinion chastising Mr. Carpenter for presenting the wrong argument. He was asked by the federal circuit why he WASN’T arguing equity. Thank goodness the veterans have Judge Greenberg! Your take appears simply underinformed. Kc may be the most important attorney in veterans law, but this was not him and time will show that.
Judge Greenberg is the only judge to consistently argue that the Veterans Court has equitable powers. Not just that, neither counsel for Mr. Taylor argued for equitable estoppel. Judge Greenberg sua sponte raised this issue and has now changed the power of the Veterans Court forever.
You will also note that the Board denied Mr. Taylor an earlier effective date for three reasons. The Federal Circuit adopted Judge Greenberg’s contentions of error for all 3 reasons and again, these errors were not argued by any counsel for Mr. Taylor.
In this case Mr. Carpenter filed the paperwork and the Federal Circuit and Judge Greenberg did the rest. It is factually provable that without Judge Greenberg, Mr. Taylor would not have been the first veteran to succeed on an equitable estoppel claim against the government. What a great judge! Thanks for your thoughtful reply though.
Happy to see Pickles with her paws in the pool… 104f is not to be taken lightly… after the legal mumbo jumbo it sounds like the backpay issue has taken a pro veteran turn? It always seemed to me if you contracted something in 1969 would it not stand to reason it began then? Not when you filed your claim! In the case of Hep C and agent orange and PTSD the realizations came upon the ability to diagnose?? I walked around for years trying to figure out what the hell the Army did to me??
We are playing nice with Vietnam because they are the only country in S. E. Asia that help us contain Chinese military and territorial expansion. We did nothing to clean up Vietnam for almost 50 years. It is not kind hearts and coronets. It is politics. USA government sacrificed soldiers to AO with no problem. We get tiny disability benefits for cancer, DMII and all the rest. All the criminals including Johnson, Nixon, Rumsfeld did very well for themselves. I was already 100% before I got AO disability ratings. War is war and both sides have much to answer for, but we were supposed to be the good guys.
One should note we’re cleaning up Da Nang and Bien Hoa. Maybe some other sites but the statute of limitations ran out on it years ago. I might feel more warm and fuzzy about all this if they would give me back Capt. Park Bunker’s and a few others’ remains. Silence for decades on our POW/MIA in Laos and suddenly they want to play house and ask for reparations.
John, it was far more than just RVN. Laos was sprayed far worse on the HCM Trail. We used to joke the shit was under-rated. It worked equally well on snakes, monkeys, ants, lizards etc. Fact is when you were in a recently sprayed area, it was devoid of pretty much anything living other than gooks.
PBS had a great show about agent orange being used in America decades after the Vietnam War. It was used out west on lands that had been clear cut. The loggers were told by government that they must replant clear cut areas. First they used AO to kill brush and then planted trees. Of course, AO got into water table and rivers and killed everything. A Vietnamese woman sued manufactures of AO on behalf of Vietnam people. She lost after 7 years . The thing is we dumped AO on S. Vietnam our supposed ally. AO was a war crime IMO. To spray 40 million gallons of that stuff anywhere is a crime.
We can’t ‘ex-post-facto’ this. At the time we believed, or were made to believe, that it was just a defoliant. Walking through defoliated areas just north of Song Be, I said ‘the stuff really works’, but there’s no way they’ll ever be able to defoliate enough to meaningfully deny the enemy cover. And we rationalized the cause of the death of animals. At that juncture, only the enemy claimed we were using it as antipersonnel. As it works out, all intent aside, they were right, we were wrong.