My good friend and fellow VA agent Eric Hughes (author of Vet Chalk) has provided the greater Veterans community with some extremely beneficial ideas to implement-but only if the CAVC and Fed. Circus are amenable to a rules change requiring honesty from all parties at all times. Currently, that moral condition is inexplicably in short supply in some quarters of what we all thought to be a nonadversarial venue.   

Think about that. You or I (Johnny Vet) are required to testify by signing a 4138 stating “I certify that the statements on this form are true and correct to the best of my knowledge and belief.” It’s tantamount to the civilian version of holding up your right hand and swearing to tell the truth, the whole truth and nothing but the truth so help you, God.

In law, Veterans tend to confuse competence and credibility. They often have their credibility called into question which infuriates them no end. Eric merely exposes  the fact that VA and their employees should be held to the same legal standard. Here’s a short explanation:

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997)

So… what happens when a BVA staff attorney or an OGC CAVC litigator presents evidence that is known to be untrue or slanted? Or uncorroborated? Or the avid pursuit of negative evidence in hopes of winning against you? Or whatever. We’d call that misfeasance. If it was a downright evil deed with purposeful knowledge the evidence was compromised, it would be malfeasance. While I’d like to believe the old VA saw of ‘grant when you can and deny if you must’, reality is far different. Thirty years of seeing the same method to deny is proof enough.

VA will deny a Veteran for years until they see the jig is up. Maybe the JSCRUR guys finally come up with the evidence showing even the cooks were issued 16s with fixed bayonets when they tried to overrun Camp English in ’68. That only validates your stressor. They grant because a shrink today-in 2023- says you have PTSD. But you don’t get your 1970 effective date grant for PTSD/anxiety because you didn’t actually have a diagnosis of PTSD/anxiety in 1970. The psychologist at Cam Ranh Bay said you were shakin’ like a leaf on a tree but his recorded diagnosis in your STRs was ‘rule out anxiety disorder’. Pretty convenient how that ‘rule out’ shit was used to deny you in ’70. Don’t even get me started on the quality of RN c&p exams nowadays.

As officers of the Court, all attorneys, be they VA employees or NOVA attorneys, are bound by a code of ethics. That code  presumes they speak the truth and will not tolerate known contamination of the judicial process by permitting lies to be promulgated into evidence. This is even more critical to Veterans because we enjoy a judicial canon that says our grateful nation should be more accommodating of us due solely to our sacrifices for their country. Cheating in the VA or, more concisely, a biased belief that all Veterans are welfare queens and trailer trash-and thus deserve to lose- should never even be permitted to flourish or be encouraged. That’s where I feel we are now.  Barrett is right on point here:

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006); see also Jaquay v Principi, 304 F.3d at 1280 (2002) (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”).

How this mates up with the Department of Veterans Affairs’ attorneys’ practice of fabricating evidence out of whole cloth, presenting it as credible proof against a Veteran without said Bozos having to hold up their right hand and saying “I promise not to lie” is the problem. It shouldn’t be. Essentially, in this petition below, Mr. Hughes asks the CAVC to institute some codicil that holds VA’s attorney folk to account when they come to Court and propagate gross mistruths or withhold exculpatory evidence they possess which might help a Veteran win his claim/appeal. Exculpatory evidence, as you can see here, can also take the shape of res judicata records of 248 years worth of Veterans’ law. It would turn Bell v Derwinski jurisprudence on its ear far earlier than  October 31, 1992.

What Eric has uncovered is essentially the extraordinary efforts  the government went to in an effort to wipe the Veterans legal precedence chalkboard clean in the lead up to the 1989 VJRA. The end product of this travesty was that the Court had to spend decades reestablishing these very same precedents all over again. Say all after ‘Veteran Friendly’, over?

I’ve noticed the proclivity of VA raters to “omit” evidence of record I submit which is essential to the claim. The folks up in Cheeseville separate it and  label it “third party correspondence” and it never is considered until I point it out later at the HLR.  They always innocently say “Oh, dear. How did we miss that? Ooops. Duty to assist error.” Five more months in Purgatory. They also have a propensity to go off on a tear in the totally wrong direction quoting the wrong regulation-or worse- purposefully misconstruing the meaning of the correct regulation- and coming up with a convenient denial based on their interpretation of what Congress intended.

An example would be insisting that you have to have a 100% or single TDIU disease/injury before you are entitled to even queue up in line for Aid and Attendance consideration. Not the actual benefit of a&a, mind you, but the right to even apply for it with the reasonable expectation you might a) be entitled to it; and b) be awarded it. Say what you will but the old days of a paper c-file ensured there was no third party anything. It was all there in black and white.

Pity Philip Cushman’s 34-year travails in the judicial desert but thank your lucky stars he had the gumption to fight (and right) his wrong. It exposes the ugly underbelly of the true day-to -day machinations of the VA. They are not above manufacturing imagined conversations about what you said or torturing the facts to support their decisions. Worse, by relying so completely on the M 21 for dictum, they avoid passing the “I promise not to cheat when I deny you” and instead allow a machine (M 21) to deny you in order to cover their asses.

Petition to Adopt Fed R Civ P 11

This petition is an excellent argument to hold us all equally accountable and hopefully the Court can see it for what it is- a basic requirement by all parties-not just the Veteran or his representative- to tell the truth and pursue justice rather than seek to always win. Wouldn’t it be nice if we never had to cite to Bell v. Derwinski ever again? Yick Wo anyone?

Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that  VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.)

I feel richly rewarded for being allowed to litigate for Veterans. But even more, I get immense satisfaction by making sure every Veteran gets justice. Winning is not the object of the game. It’s usually the inevitable product after the successful application of justice. Sadly, in most cases at bar in the Veterans arena, real justice is never attained until you escape the VA reservation. And then we all live happily ever after…except for those who die waiting. Jez, what a totally new concept this might be to Veterans law. Thanks, Eric.