Boy howdy there’s nothing like waking up in the morning (on the left coast) and discovering an email from Chris Attig banging a gong and sounding the alarm. It’s not often we get to take the VASEC out behind the woodshed and administer some wall-to-wall counseling. We VA advocates have always contended the new AMA doesn’t dovetail quite as smoothly into the prior Legacy method as advertised and leaves many unanswered questions. Military Veterans of America (MVA) et al clears the air on a few of these inconsistencies and will force Denis the Menace to revamp not how he wrote the regs but force him to formulate them correctly going forward. 

So without any further ado, by the the numbers. Here’s the decision if you wish to read it.

19-1600.OPINION.7-30-2021_1811957

§5104C(b)/§5904(c)(i)/§14.636(c)(1)(i)

As the appeal was filed by numerous different entities (MVA/NOVA/PVA/ Carpenter Chartered/NVLSP), each signed on to different objections and some presented their own pet peeves. Of all the appealed contentions, only three of thirteen were sustained. Some might feel these errors of interpretation are inconsequential and some may not. Certainly, the biggest one affects us as litigators. 38 CFR §14.636(c)(1)(i), without boring you to death, was written as a fill-in modifier for AMA claims. Considering VA bitched about how FUBAR Legacy was, any improvements they sought should have made the system better. The Fed Circus decided to examine the whole recorded history of remuneration for VA attorneys which had been stuck at $10 per claim since 1864. Inflation kinda pissed in that well over the intervening 157 years. So, in 2007, eighteen years after the passage of the VJRA and the creation of the Court of Veterans Appeals (COVA), Congress graciously let attorneys and Agents like myself in and allowed us to charge 20% for our services… if we prevailed… but only if the Veteran had already been denied previously within the last 12 months by filing a disagreement with the VA’s regional wash and wax job. If the Veteran (or his representative) dawdled for more than 12 months, he had to start over. A win would merely result in a grant to the Vet and all the hard work to get there would be, by operation of law, gratis or pro bono. All the VSOs were in an uproar and fought our admission into paid litigation tooth and nail.

The Secretary’s take (on pg. 43) is “We always did it this way and we aren’t gonna change. Screw you and your interpretations.”

The government does not attempt to argue that
§ 5904(c)(1)’s text directly supports differential treatment
of § 5104C(a) and § 5104C(b) supplemental claims as to
paid representation. Instead, it argues that the VA’s regulation
deserves deference because the VA has an established
practice of treating motions to reopen “finally decided
claims based on new evidence” as a “separate
case[]” for the purposes of attorneys’ fees, which it purports
are analogous to § 5104C(b) supplemental claims under the
AMA, and nothing in the AMA or its statutory history indicates
that Congress intended for the VA to deviate from
this practice.

Let’s be frank here. Ostensibly, the new AMA was inaugurated (in VA’s eyes) to allow more Veterans a faster path to their denials and rid the VA of their pesky backlog. It succeeded after a fashion. The backlog just matriculated further through the VA python’s bowels and piled up at the BVA’s front door. Shit. Who would have thunk all them stupid Veterans would choose to appeal to the BVA? What part of ‘No!’ didn’t they get? VA had, for the most part, made it very difficult to understand how to appeal in the Legacy venue. The AMA was designed to make it easier by creating six new paths to resolution instead of one. VSOs were conflusticated and then along came Typhoid Covid Mary. Shoot, even the VSRs and RVSRs were flummoxed on how to read the new regs. I don’t blame any particular party for this confusion. Anything of or having to do with VA jurisprudence should help rather than hinder. Simplicity should be the guiding principle. You don’t know the government. Considering the Jokers at the Puzzle Palaces across our fruited plains can’t even agree on which form to use (526 or 995), it’s a miracle anything gets adjudicated-right or wrong. You have a 50-50 shot at using the right form to file so why is it always the wrong one? Well, wrong until someone figures it out and “corrects” the record to erase their stupidity.

So why in Heaven’s name would anyone in the hierarchy of VA (think OGC) decide that the proper interpretation of §14.636(c)(1)(i) forbids the award of fees after a win in a post-12 month supplemental AMA claim? The theoretical idea in this new AMA scheme was to make it more attractive to attorneys and agents to represent Veterans-not less. AMA embraces the idea of keeping your claim alive forever. This has to encompass the concept of eternal reopenings that might eventually result in a win. Not all Vets, or VSOs for that matter, seem to grasp the concept of  a 12-month suspense date. Considering this is a carryover from Legacy, it shouldn’t be so alien to understand. And, when viewed in the context of improving the system as  the VA and Congress mutually seem to concede, why the attempt on VA’s part to make it even more adversarial? Whazzup?

So here’s one example of VA’s adversarial methods. Johnny Vet applies for Bent Brain Syndrome after he comes home from ‘Nam in 1968. Of course he loses. VA didn’t have bent brain on the menu until 1982. Perhaps Johnny tried a few more times over the decades and kept on losing. Fast forward to 2019. Johnny contacts an attorney and says he wants to revisit his lost PTSD claim(s). Most attorneys, until last Friday, would have told him to sashay on down to the VFW or VVA and get a brand new denial so s/he (the attorney) could at least make his bones for doing the work after the inevitable denial.  So Johnny Vet trots down to the VFW, files, loses and beats feet back a year or so later. The attorney gets an IMO saying it’s at least as likely as not Johnny is mega-bugfucky in the head and he wins 70%. The attorney gets his 20% and Johnny is ticked pink until death do him part. But by now, he’s burned up five years to get there from the day he motored over to VFW to refile. So how in Sam Hill did the new AMA help him? How was this a vast improvement to speed it all up and 86 the VA’s backlog? VA would have us believe we should be glad it didn’t take ten years.

The correct reading of §14.636(c)(1)(i), by operation of law, has to follow the statute it’s predicated on. That says any time after you’ve been denied-be it an old 1968 legacy claim or a post-2019 AMA claim- and you finally prevail with your shiny new supplemental claim, that the attorney or agent is eligible to pass Go!® and collect his 20%. This is to induce more attorneys (and agents) to become involved, participate in, and give Veterans quality legal representation. The stated ideal of AMA was to repair the convoluted Legacy nonsense from 1989. Yeah. Right. When has VA ever been proactive or inferred simple entitlements without a 30,000 volt CAVC/CAFC cattle prod?

The proper interpretation of §14.636(c)(1)(i) is  a good thing. Granted, VA employees look down on VA practitioners like VA claims vultures or ambulance chasers as it is now. This will probably make us look even more greedy in their estimation. It shouldn’t. It should make them dread the idea an attorney or agent will be more prevalent in their future and recognize more Vets will be protected from their ludicrous VA bullshit. One thing I foresee instantly is a lot of practitioners becoming far more interested in that 1968 denial scenario described above that cries for justice. Mind you, we won’t get paid back to 1968-just to the day you filed the supplemental claim; so actually you get more money if we prevail earlier. You also get to hire the attorney/agent at the outset instead of having go through a VSO to get “pre-denied”. It’s a win/win situation that only the VA pukes could find offensive or unfair.

§ 5104C(a)(2)(A)/§3.2500(b)

Denis’ second misreading of what Congress created is §3.2500(b). § 3.2500(b) bars claimants from filing a supplemental claim based on new and relevant evidence while judicial review of one of their claim(s) is/are pending on appeal in federal court. Federal court refers not to the CAVC but to the Fed. Circus or the Supreme Court venues. Obviously, this is a gross violation of due process. You don’t have to be a leagle beagle to figure that one out. Granted, in the broader AMA context, §3.2500(d) and (e) make perfect sense. If you choose to file a 10182 NOD and go up to the BVA, it would sow discord into the process if you decided to jump ship from one venue to another -i.e., switch from direct review to evidence submission or decide to file a new 995 below at your local Fort Fumble (for the same thing) while your direct review NOD is still docketed at the BVA awaiting a decision.

But what if…? What if you’d been fighting a §3.156(c) claim for 6 years for an earlier effective date and finally reached the Fed Circus and were awaiting a decision there? Under the current interpretation of §3.2500(b), you would be precluded from filing a supplemental claim for, say, your Parkinson’s or b cell hairy leukemia until the §3.156(c) decision came down from the Feds. Shut the front door, GI. That’s an insane interpretation which could only be dreamed up by an adversarial Agency interpretation of what Congress intended. This somewhat mirrors what Bruce Taylor just ran into last month when a Fed Circus panel, sua sponte, decided he had been deprived of justice because he was restrained from filing based on a nondisclosure agreement of secrecy of 50 years duration. When obtaining justice  devolves down to whether or not you were born on a Tuesday before noon to qualify, there’s something wrong. Waaaaaaaaaaay wrong. VA’s take is “Piss off. We disagree with you. Besides, we’re in the process of making changes to this to fix it and we’ll get back to you when we get it fixed.” Check it out on Page 54…

The government responds that, as a threshold matter, the primary harm PVA complains of—loss of effective date—will soon be irrelevant because the “VA plans to propose a regulatory change [to § 3.2500(c), (g)] to protect the effective dates of supplemental claims” filed within one year of a decision by this court or the Supreme Court. But more to the point, the government argues, §3.2500(b)’s requirement that claimants pursue administrative review sequentially (rather than concurrently) with judicial review in the federal courts is consistent with the AMA and should be sustained because it “reasonably promotes systemic efficiency without prejudicing claimants.”

The Fed Circus notes that VA has a history of being all hat and no cowboy…

We note that it has been over a year since the government filed its brief, and we have yet to see a notice of proposed rulemaking for the regulatory changes mentioned. Instead, on March 19, 2020, the VA issued a policy letter stating that “[e]ffective immediately, claims adjudicators must consider supplemental claims . . . filed within one year of a Federal Circuit or Supreme Court decision as continuously pursued and apply the provisions of 38 C.F.R. §3.2500(h)(1) when adjudicating the claim.” See VA Policy Letter 20–01 (Mar. 19, 2020).

See? Problem fixed.  We put out an All Points Bulletin. We’ll rewrite the regulation when we see fit. Okay? Well, not exactly as they say down at Avis™ Rent-a-car…

It is unclear what effect, if any, the VA’s unfulfilled promise of forthcoming regulatory amendments and subsequent policy letter has on our analysis of § 3.2500(b)’s validity. But we ultimately need not resolve that question here. For even if the VA had amended its regulations through notice-and-comment rulemaking to extend effective date protections for supplemental claims filed within a year of a Federal Circuit or Supreme Court decision,17 we would nonetheless conclude that § 3.2500(b)’s bar on filing a supplemental claim during the pendency of a federal court appeal is invalid for contradicting the plain and ordinary meaning of § 5104C.

This is why we now enjoy judicial review above the BVA level. The VA, for over a century, enjoyed litigating adversarially in their own secluded bailiwick with no supervision. When called out, their response was, and still is, a condescending attitude and the old “yeah but that doesn’t apply to us.” Newsflash. The Fed. Circus is getting a bit miffed and is beginning to call them out.

§ 5110(a)(1),(3)/§3.155(b)(1)(i)–(iii)

The donnybrook over this regulation is simple. Johnny Vet submits a intent-to-file (ITF) on his brand new claim for bent brain in, say, 2016. Within the requisite 365 sunrises and sunsets, he dutifully files his VAF 21-526EZ to complete the process. He gets the ITF date of his filing. Nothing adversarial about that. Everything’s hunky dory and he goes on to a denial as happens 88% of the time. Let’s say he finally gets his shit together after about 2 years in 2021. He files an ITF for his supplemental claim and begins the process of getting an Independent Medical Opinion to rebut the 2016 denial. VA says Hold the phone Ramone. We don’t do ITFs on supplemental claims-just your initial claim. Okay. I’ll buy in. Where did Congress sign off on that one? Here’s the gist of the reg in footnote 15 on page 58…

The “intent-to-file” framework was implemented in September 2014 to replace the previous “informal claims” framework. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014); see also § 3.155(a) (2014). Under the “intent-to-file” framework, a claimant may signal a preliminary intent to apply for benefits by (1) saving an electronic application within a VA web-based claims application system; (2) submitting a VA standard form in either paper or electronic form; or (3) oral communication
with designated VA personnel regarding the claimant’s intent to file a claim. See § 3.155(b)(1)(i)–(iii).

VA decided to go off the reservation and write into this what Congress never spoke. VA’s repair order now that they’ve been busted? ? Why, don’t worry your pretty little Federal judiciary heads over this contradiction. We’ll fix it some day and it’ll be moot. Or, better yet, just remand it back to us so we can take another stab at it. Not so fast, Denis…

The government, for its part, does not defend the validity of §3.155’s preamble. Rather than litigate the regulation on the merits, the government asks that we dismiss and remand this challenge back to the agency. Specifically, “without conceding that [PVA’s] challenge is meritorious,” it avers that the “VA plans to propose a regulation to amend [§] 3.155 to apply the intent[-]to[-]file rule to[§] 5104C(b) supplemental claims” such that “[PVA’s] challenge will become moot.”  But if the proposed amendments to § 3.155 have not materialized by the time we render judgment in this matter, the government requests a voluntary remand for the VA to complete its rulemaking process.”

Once again, the Feds aren’t buying this line of post hoc rationalization of how to fix it. Action talks. Bullshit walks…

We decline, as a threshold matter, to grant the government’s request for voluntary remand. Much as was the case for the promised regulatory changes to § 3.2500(b), we have yet to see any indication that the VA will amend § 3.155’s preamble to include supplemental claims within the intent-to-file framework. While courts have discretion to grant a request for voluntary remand so that the agency can reconsider its previous position, see SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), the VA has already had quite some time to revise a plainly invalid regulation but failed to do so. Although the VA assured this court that it would make certain amendments to two of its regulations, several months have now passed since oral argument, and not one of these regulatory amendments has materialized. Nor has the VA provided any updates or a timeline for when such changes might occur. Under these circumstances, we are unpersuaded that a remand to the VA would be of any benefit, and we see no reason to avoid resolving the ultimate question of validity.

Seems like VA’s credibility is beginning to fray around the edges in the Fed Circus’ view. This new attitude represents a decidedly new approach to VA stupidity. Five years ago, they probably would have remanded on the expectation that VA would honor its word. I guess it’s safe to say VA’s credibility is somewhat suspect. This will be filed under the Fool us once, shame on us. Fool us twice, shame on you, Denis.

It took 63 pages to accomplish this decision. I apologize for being long-winded here but 63 pages is a lot of verbiage to dissect and disseminate. More than half of it was devoted to establishing who had a right to sit in on this poker game and make a bet. That only three regulations were ultimately sustained as being defective is actually three more than I expected to read about. Perhaps we are entering a new period where the judicial thumb will indeed be placed on the Veterans’ side of the scales of justice as we were promised aeons ago. The Feds are preparing to relitigate Mr. Bruce Taylor’s decision on equitable estoppel en banc. I can’t wait to see if this new judicial approach continues in a positive direction. We’ve been screwed for centuries; it’s difficult to remember when we had a truly independent judiciary rule with such forcefulness and call the VASEC out for his bullshit. The CAVC (or certain new members of it) seems to be in lockstep with VA on a lot of their interpretations of governing statute. A careful analysis of who is “pro-VA’ reveals most of them have a background in the Judge Advocate General (JAG) Corps. From personal experience, I have discovered military justice is to justice what military music is to music.

And that’s all I’m gonna say about that.