In this business, the legal bitchslaps Veterans endure far outweigh the beneficial attaboys at the Board, the Court and Fed Circus. While I wholeheartedly welcome the judicial overview accorded us (finally) in 1989, it was a long time coming considering Vets had never been granted judicial oversight going back to 1776. Since then, we (Veterans) have progressed in fits and spurts with long dry spells (read wars) in between. The Court (CAVC), which many of us have looked to over the last 33 years for succor, has been fickle to say the very least. Granted, we’ve been accorded many new ‘rights’-e.g., due process- but it only came about in earnest after the NVLSP began populating the Court or appearing as amicus curiae and jamming their foot in the door to insert their two cents worth. Sometimes it pays off. Sometimes not. Grab a brewski and some chips and check this one out. 

Jesus Atilano, like myself and 2.9 million others, was a participant  in the Southeast Asia War games. And, like myself and hundreds of thousands of others, he got the poopy end of the VA punji stick. Apparently, his brain box got bent in the process (as often happens in war) and caused him such severe disability as to have to be institutionalized several times in a VAMC mental ward. I’m not going to delve into that too deeply as it’s a personal issue that afflicts those of us who go to war. But here’s the Bud Lite® overview.

Jesus filed for PTSD in ’95. VA got around to giving him 50% for his bent brain syndrome in ’05. Several years later, in 2012, they granted 30% for his IHD, continued the 50% for the PTSD but denied him TDIU. Sound familiar? Of course it does. After more sparring and denials, he managed to score a 70% for the brainpan in 2014. So, in sum he was mentally ill enough to get free room and board at the VA psych ward three times but never was adjudicated as TDIU or 100%. Arruu? He finally made it up to the BVA for the 76-page decision below by VLJ Reinhart. Printed out, it looks like the Gutenberg Bible. I know. I almost printed the whole thing up when I tried to download the .pdf. Fortunately, the printer ran out of paper at page 38 and I caught it.

Atilano BVA decision

But here’s the interesting wrinkle that stretched this thing out six years. Jesus, through his most able VA rainmaker Sean Ravin Esq., requested a face-to-face hearing under the old Legacy system. Unfortunately, due to his extreme disabilities regarding his mental state, he’d failed to show up for the hearing in DC at 1425 I Street. Monsieur Ravin had scheduled a noted psychologist expert in PTSD (Dr. E.T.) to appear in DC in-person to give her expert testimony. I know Dr. T personally and use her for all my psychiatric claims/appeals. She’s red hot and I’ve never lost with her expert IMOs. Even the VA recognizes she’s no slouch in this business and accords her IMOs great credence. So, everyone was present except the belle of the ball. VLJ Reinhart  refused to allow Dr. T’s testimony, or any testimony, for that matter, because Jesus was AWOL with no viable excuse.

Attorney Ravin petitioned the Board for a 60-day delay to obtain the testimony and submit it. Sean also argued at length that 38 USC §7107 is devoid of any language that specifically demands a Veteran be present for his necktie party. His argument was to no avail. VLJ Reinhart went off on a de novo jag (no pun intended) citing to 38 CFR at great length and accorded the Secretary’s regulations far more weight than the old “Veteran friendly venue in which to adjudicate our claims in an informal ex parte setting.” Quo Vadis Justice?

Sean proceeded to the Court where he was given short shrift. Very short shrift. Secretary Wilkie and his gang who couldn’t shoot straight cajoled the Court into affirming this Chevron abomination and the fight was on (Atilano v. Wilkie (Atilano I), 31 Vet.App. 272, 279-81 (2019). But that was not the end of the matter, thank goodness. Sean proceeded to the Fed Circus and they vacated it back to the Court for clarification of why Jesus being absent was a legitimate interpretation of §7107.  The vacatur was quasi-specific in Atilano v. McDonough (Atilano II), 12 F.4th 1375, 1381-82 (Fed. Cir. 2021). The Fed Circus suggested it might be à propos for the Court to quit mincing words and their meanings, quit giving Chevron deference to every utterance of the Secretary and explain in the King’s English why the Court seems to be in lockstep with him where Veterans’ due process is at stake. Well, that’s my takeaway. Judge Toth, in his convoluted anti-concurrence, believes the Feds were trying to pin blame on the Court without reversing. Take a gander…

Alitano II

And so we see a major sea change in how they approach this. One small step for Jesus. One giant leap for Vetkind. To me, this is almost as momentous as Cushman, Clemons and a few other notable decisions all rolled into one. The most obvious is taking into account the Veteran and how his disabilities (especially mental) can become an insurmountable obstacle that works against him regarding hearings. If this process is Veteran friendly as constantly drummed into us by the VA, why is it we almost always lose on inconsequential quirks or requirements?  As the Court admitted (per curiam),

“Considering not only the letter but the spirit of the Federal Circuit’s opinion, however, we conclude that we have no practical option but to rule in favor of the veteran and to remand this matter to the Board for further proceedings.”

Really? No “practical option”? That’s like running a red light, t-boning someone and finally conceding several years later that you really can’t come up with any viable excuse for your poor driving but you’re willing to be like, ya know, suuuuper magnanimous and concede error when called out. About the only good thing that came of this is it didn’t require 76 pages of mea culpas. Think of how many trees will sleep peacefully tonight knowing about this.

This is the gist of Justices Pietsch, Meredith and Toth’s  per curiam reasoning. I consider it sour grapes to say the very least.

“There is no way to read the Federal Circuit’s analysis as anything other than a wholesale repudiation of our reasoning. The opinion makes perfectly clear that the Federal Circuit regarded the relevant statutory text, structure, and purpose as individually and collectively “supporting” Mr. Atilano’s position that a claimant too disabled to attend may still invoke the right to a Board hearing. Atilano II, 12 F.4th at 1381. Given this premise, how could any contrary regulation of the Secretary be a reasonable construction of the statute? See id. (“[I]t would seem inappropriate to construe § 7107 to deny hearings for those represented veterans unable to attend in person without clear statutory language instructing as such.”). “

Sacré Dieu. Excuse my French but it gets worse. The Court actually went so far as to almost agree with the Secretary’s piss poor excuse as to why he defended this travesty of justice. Excuses are like assholes. We all have one but how does that accord with the Court’s precedence in Evans v Shinseki, 25 Vet.App. 7, 16 (2011) (explaining that “it is the Board that is required to provide a complete statement of reasons or bases” for its decision and “the Secretary cannot make up for [the Board’s] failure to do so” by providing his own reasons or bases on appeal). Show me where VLJ Reinhart even evoked a discussion about the legality of his ruling. Granted, he isn’t allowed to make law-just misinterpret  it. I read the below as an excuse…

“Indeed, the Federal Circuit understood the Secretary to concede that § 20.700(b) could not be read as requiring a claimant’s attendance at a hearing. Id. at 1379, 1382. The Secretary now suggests that the Federal Circuit wrongly interpreted his statements at argument as a retreat from his briefing position. Regardless of whether there was a concession, it is apparent that the Federal Circuit read §20.700(b) and did not think it clearly imposed an attendance requirement. (Nor do we think the few other regulatory provisions cited by the Secretary bring the clarity that § 20.700(b) does not.)”

Boy howdy, I never expected the Court to ever resort to post hoc rationalizations for why they stepped on their collective neckties. No less that the Supreme Court has always put their thumb on the scales of Veterans justice. Which begs the question of just what are they smoking up at the Court these days? Since when are the august Justices permitted to egress the precedential reservation in a desperate effort to grant the Secretary Chevron deference?

In the VA justice game, The VLJ is the “Trier of Fact”. That means the actual decision to screw Jesus was sanctioned and approved by the Secretary and his merry band of uncouth OGC litigators before the ink hit the decision. That the Court accepted this argument and denied Jesus speaks volumes to ignoring the canon espoused in Henderson (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). How about this concept-The pro-Veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991). So why does Chevron always get the upper hand in these decisions?

This concept isn’t a new interpretation of VA law. Go back to Boone v. Lightner, 319 U.S. 561, 575 (1943)  for context-The Supreme Court first articulated this canon to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” This same policy underlies the entire veterans benefit scheme.

I’d say the Court has lost sight of the canon. How is it that the latest version of the Court with it’s newer, more recent membership could accord us anything less than what the Supreme Court spoke to in 1943? That Jesus had to petition the Feds to right this egregious wrong appalls me. Further, the mousey way in which the Court begrudgingly conceded their error smacks of a superiority complex with a side of condescension. I was laboring under the misconception, apparently, that Kisor III raised the bar on Auer/Chevron deference in such a way as to clarify its use-not to enable the Secretary and give him a roadmap to deny Veterans due process. Gerrymandering 38 USC’s meaning to support 38 CFR and its often convoluted logic must always be put under the judicial microscope and never given a bye based on one person’s (VASEC) subjective analysis. The Court’s watchwords should always be “Beware Mission Creep.” After all, isn’t that the very rationale for why Congress instituted a higher tribunal- to ensure we don’t get screwed (again) (and again)?

Given my admittance to the CAVC bar sans JD, I pray my mental ramblings here will never cast a pall on my client’s cases at bar for speaking out when I see an injustice perpetuated by those chosen to be our overseers. As a Veteran who has been given the shitty end of the punji stick so many times, I find it hard to be a silent, willing spectator without voicing my extreme displeasure. Here, Jesus finally obtained justice but why did it require such a herculean effort on Mr. Ravin’s part to get that which most of us Veterans would view as a given?

I would compare this to the ages-old argument that protesters dredge up when speaking up for the rights of dolphins caught in tuna nets. My ‘plaint will always be “Who speaks for the Tuna?” The analogy is apt. Veterans have always been paid lip service for their sacrifices but the repair order has always been fleeting or no more than a chimera. One of my favorite lines to DROs is “This isn’t about you and me. It’s about the Veteran and what we can do for him legally.”

Judge Toth’s concurring opinion is perplexing at best. I provide a snippet below. It speaks volumes about friction. The Fed Circuit’s job is to analyze whether a statute or regulation has been wrongly decided. If so, it remains the province of the lower courts to remedy their wrongfully decided appeal once apprised of the error. I think it was a narrow, face-saving measure for the Feds to remand the Court’s decision and let them decide themselves how to fashion their own remedy-if indeed they felt one was even due. After all, the VLJ is the “Trier of Fact” not the Feds. Ne c’est pas?  What ever happened to sticking to your guns? All these queshuns and no answers.

“The Federal Circuit’s remand placed this Court on the horns of a dilemma. We could either suppress our independent judgment to arrive at the conclusion the Federal Circuit all but ordered us to adopt, or we could defy the repudiation of our previous Chevron analysis and again affirm in contravention of every signal the Federal Circuit sent. In other words, it proves practically impossible to afford deference under Chevron to the Secretary’s interpretation while heeding the mandate of a higher court ruling rejecting that position as “inappropriate” and implying, albeit without holding, that deference shouldn’t apply at all.”

I guess my answer to him would have to be “When did it ever stop any of you before?”

P.S. Happy Veterans Day. And I say this sincerely to all of you who served in RVN. Thank you for being so selfless as to serve your country above self. Now, doesn’t that sound  a shit ton better than “Welcome home” considering  what ‘welcome home’ entailed in ’68?
I know there is a lot of political animosity afoot in this election cycle but Veterans should take heart in their mission profile when serving. We’re apolitical. We served at the behest off our superiors without regard to political affiliation once upon a time. Nothing has changed. My allegiance, if any, is to Veterans and their benefits entitlement. Anything is else is just noise above the squelch setting on the PRC100 of life.

And that’s all I’m going to say about that.