Cupcake and I were having coffee yesterday morning and I was scrolling down through my Google® newsfeed when I inadvertently administered (again) a coffee enema to my nose. The article described a former Marine, now a Veterans Service Officer (soon to be former), of defrauding the VA out of beaucoup de shekels for himself and his wife. Is this a Marine thing or did he just think nobody was going to pick up on the Faceplace™ posts? These cases seem to pop up periodically enough to make me wonder, too, as to whether they even bother to research the contemplated fraud and assign a probability of getting busted.
Here’s the link to the article. https://www.justice.gov/usao-sdca/pr/former-employee-sentenced-defrauding-veterans-administration
I’m sure today’s diatribe will be dissected for political correctness/awakeness and I will be found wanting (again). No sweat. I’m covered. Cupcake can, and will, insist (rightly) I suffer Tourette’s Syndrome and claim it’s par for the course. What the hey? I think it’s kinda neat when you have no idea what’s going to emanate from your pie hole next. Sometimes it’s actually hilarious. Sometimes….
Here goes nothing. When I was very young, my dad gave me some sage advice. The crux of the discussion was that cops are not exactly the sharpest tools in the shed. They mean well but the cop hierarchy doesn’t want a fleet of Sherlock Holmes-types running around ruminating on how a crime went down or who might be the perpetrator. That’s the Poohbahs’ job. Ergo, the list of suspects ends up being several pages long even though the most likely suspect appears guilty as Hell. In the cop world, Occam’s Razor is inapplicable. That’s cool. It makes for more cops on the street. He further opined that there was a certain pecking order in the military that most of us know. It rarely is talked about at the O club unless one has ETOH disease. To wit, service members who scored rock bottom on the old AFQT tests in all four categories were pretty much doomed to be cooks. Above them were cops. The ladder continues upwards through the engineering corps to include carpenters etc. The top of the pile is Intelligence. Not your IQ, per se, but the actual work of interpreting reconnaissance data, photos and the like and prognosticating on the possibility of whether all those new construction sites that look like SAM emplacements are real or well-contrived fakes. Or reviewing new post-strike RF-4 recon data showing they just repaired the Paul Doumer Bridge in downtown Hanoi (again).
In the same vein, Daddy pointed out that a large majority of Marines were gorillas- about 6 foot 4 and weighed about 235+. Their AFQT scores aside, the proclivity to be assigned an Infantryman MOS was not an incredible coincidence. Similarly, most Marine officers were lucky to make light colonel after 20 years of excellent, nay, exceptional accomplishments. No matter how many BSs, PHs and Air Medals w/ Vs they accrued, they rarely attained the higher O ratings above field grade officers. Strangely, even well-connected officers seemed to hit the wall about O-8.
By now, unless you are semantically challenged, you can see where I’m going with this. I certainly do not mean to denigrate Marines – or cops for that matter. I merely point out the fickle nature of coincidence. So, let’s take a gander here.
Fortunately, I was wrong. The Medrano in question is 42-year-old former Marine Anthony Medrano. I was mortified to think it might be the Medrano of Medrano fame in Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007) holding the Court is not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority. See 38 U.S.C. § 7261(a)(4). Here’s the skinny on Alphonso Medrano.
Alphonso filed for bent brain in August 2000. In the spring of ’01, right after passage of the new VCAA, they sent him a §5103 notice explaining the dog and pony show requirements. Good to go. They denied as expected in late July ’01. He dutifully filed his NOD. In their oh-so-inimical way( as only the VA can), they misconstrued his NOD for a brand new reopening of his recently denied bent brain claim. They denied it again in October 2002 and Alphonso enlisted professional help. The problem was simple, really. This time they forgot to “reissue” a §5301 notice. The BVA Veterans Law Judge (VLJ) rightfully affirmed the denial because having received the initial §5103 in April 2001, ol’ Alphonso had been read in on how this poker game was played. In addition, when apprised of its error (failure to send out a new §5103), VA belatedly sent him a new one in April 2004. Through counsel, he (only then) stated he had nothing else to submit. The VA had “misplaced” his Milrecs and all he could possibly provide was Layno/Jandreau lay evidence swearing under oath he had a brain-bending experience in service and it affected him permanently. From there it was off to CAVC to (re)determine what prejudicial error consists of… and in Alphonso’s case, what it most assuredly didn’t consist of.
A lot of folks just assume Medrano stands for a run of the mill §§3.344/3.105 case of an illegitimate or unsustainable reduction. No sir. While it (§3.344) certainly protects you, you can use Medrano for the proposition that once VA issues a favorable finding of fact, it usually metamorphoses into a conclusion of law. If you didn’t lie cheat or steal to get it, it’s yours. Once it’s been announced in a notification letter, the Board can’t take it away nor can the CAVC. While Medrano precedence sounds like it is only applicable to the Court, it’s not.
In VA litigation, you will see extensive development of a claim and, even once it is determined favorably, there will be a prolonged pause akin to an operating room where the surgeon calls a time out to make sure they’re cutting off the correct leg on the right patient. In medicine, this is the soul-searching Magic Marker Moment wherein they make sure they aren’t pulling a Bozo. As an aside, it’s too bad VA doesn’t invest this much time into determining if they got it wrong before issuing a denial. But I’d be out of a job if they ever changed their MO.
Once the Rating Decision and the Code sheet are complete, the issuance/mailing of the Notification letter makes it concrete. Assuming all is above board, the VLJ above on appeal can only rule on the propriety of the action (severance or reduction). S/he cannot arbitrarily reduce or sever an award or entitlement unilaterally. Ditto the CAVC. That adjudicatory function (ratings) is the providence solely of the Agency of Original Jurisdiction (AOJ) below. This clearly and convincingly demonstrates that in a vacuum of lawyers, 74% of their adjudications will be wrong. In a final Clear and Unmistakable Error (CUE) claim, you attempt to prove error. The VLJ arbitrates that strict standard only. They don’t get to say “Yeah, you’re right. I see the CUE. Here’s 70% for bent brain. Sorry the gomers in Waco were so ignorant. Thank you for your service.”. Medrano’s bright line holding is more nuanced and hinges on the tenets of due process- i.e., you won and they cannot come back and take it away. When you were a kid, you’d call someone of this ilk an Indian giver. Boy howdy is that ever one of those third rail Tourette-tinged words now, huh? Mea Culpa. Not.
Thus, it was with dread that I feared I would read Mr. Medrano (Alphonso) had become embroiled in malfeasance in his new post-appellant role as a VSO. Thankfully, my fears were assuaged when I beat feet to my office and dug it up. I do find it amazing that the VA’s Office of Inspector General (VAOIG) only took 8 years to figure out he’d been granted A&A all the while being employed full time at the VA as a VSO claims guru. I guess that speaks volumes about the prowess of the VAOIG… but then we’re talking cops again here. I vote we give OIG another Turtle award w/OLC for their dogged, relentless pursuit of VA miscreants.
False alarm. Nothing to see here, folks. Move along. Wrong Medrano. I also want to confess to being biased toward VSOs in the past due to their treatment of me before I figured out how to win VA claims. Since then I’ve met a bunch and for the most part, they’re decent folk limited by their lack of training. Just like cops, the Veterans Service Organizations don’t want proficiency, they want warm bodies to complete .pdf-ready-to-fill-in forms, lick envelopes and affix postage. If they want any shit out of you, they’ll squeeze your head.
Now, with all that said, my absolute BFF (best f—ing friend) Ed, a Silver Star recipient and LRRP, did his two years and separated to become an LA County sheriff. He retired after 20 years. To my knowledge, he isn’t exactly Mensa material -but then he’s a far, far cry from stupid. And boy howdy does he ever have Tourette’s tongue like me. Hoo doggies. We’re like peas and carrots. We’d never last more than ten minutes in a Portland, Oregon restaurant in the present political atmosphere- but then again, it would be a meal few would ever disremember.
To grasp Ed’s humor requires an open mind and a knowledge of boots on the ground. I received this gem for morning coffee. Cupcake still hasn’t grasped my humor yet… let alone Ed’s.
And that’s all I’m gonna say about Ed.