My Hepatitis C (HCV) practice model is fortunately coming to an end. Those of you who didn’t die from it have been cured (read’ in remission’). I reckon I still have about 4 waiting for a BVA sit down but outside that, pretty much all my Vets are P&T. Nevertheless, I relish reading about other attorneys’ old ones being resuscitated for earlier effective dates using one of my favorite regulations. I speak, of course, of §3.156(c) and it’s marvelous DeLorean effect to be able to return to a bygone era and recoup a former loss born of illegitimate actions on VA’s part. Quite simply, in most cases, they didn’t go back and get the STRs. Or they fell on the floor and got swept up with the day’s trash.
Anyone who comes from my era, and by that I mean the Vietnam ‘Conflict’, understands what I speak of. I cannot count the number of combat Vets with grievous wounds who returned to an indifferent populace of VA raters who more often than not handed out 0% and 10% ratings like confetti at a New York parade. This didn’t happen in WW II or the Korean Conflict. Back then, they just granted and promptly began calling you back in for c&ps and chipping away at your rating until it cast a mere shadow of the original. Six of one-half a dozen of another. The net effect was that Vietnam Veterans got the screwing up front instead of a decade of America’s munificence before being reduced.
Worse, all Vietnam Vets with HCV were tarred and feathered with the drug abuser onus and were only vindicated in 1998 when the makers of jetguns finally threw in the towel and discontinued manufacturing them for human use. The reason? Why, they’re unsanitary and transmit disease.
Don’t get me wrong. VA will still deny based on the jetgun transmission model unless you submit an IMO supporting it. Nevertheless, at the BVA they will grant if you can articulate your rebuttal with internet articles showing the history of the jetgun and it’s withdrawal from human use. They still use them for livestock inoculations.
So it warmed my heart to read about ol’ Lawyer Porter, through counsel, cleaning Denis the Menace’ clock at the CAVC with a reversal on the 18th of October, 2022. No matter how many cases come before these BVA folks, the concept of interpreting the meaning of ‘shall’ or ‘will’ (which are interchangeably used in law and identical in meaning) as written in §3.156(c)(1) escapes them. Well, that or the idea of disbursing some ungodly amount of retro loot to a Walmarket™-shopping, trailer trash Veteran sticks in their (VLJ’s) craw.
Read it. It’s not permissive. It’s compulsory that the VBA readjudicate your claim if old, pertinent STRs suddenly materialize. More recently, that has come to encompass JUSCRUR record research documents proving stressors.
(1) 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.
As you can see, I enunciated the words ‘relevant’ and ‘will’. VA will make much ado about nothing insisting that just because the new records mention them sewing you back together after the Bouncing Betty medical mishap in ’68, that doesn’t automatically make them relevant. That’s a legal determination made in the back room of the VARO with no paper record and in 99.9% of the §3.156(c) appeals I’m working, ‘relevant’ is slipperier than a county fair pig covered in Yellow 77. It shows this gives the regulation compulsory enforcement rather than a more dilatory interpretation that if VA feels the spirt move them, they ‘may’ pay it lip service and reinvestigate the matter.
I’m not sure how ol’ Lawyer got hooked up with his lawyer (Brien T. Brockway, Esq.) but I’m glad he did. From the photo here, it’s clear Brien has some OD green blood running through his veins. That’s fortunate for Veterans who seek help. It’s been my considered opinion that a Veteran is more capable of helping a fellow Veteran- especially if he has good legal training. What the hey? We’ve walked in those boots. We’ve lived that life and know what transpires in the service. Who better to learn the trade and help his fellow Vet? The VA process just becomes more convoluted and confusing as every day passes. A Veteran needs every tool available to him/her to win a claim. What better than a Vet law dog? I roamed through the ranks of NOVA recently and note there are darn few of us and only four who served in Vietnam.
Anyway, the decision is here and makes for a great read. Getting a reversal out of the CAVC-let alone one from Judge Toth- is no small feat. Thank you Brien for your one small step for Vetkind.