I currently have a few cases I’ve shared with a Jedi Master who’s almost a household word in VA circles. Kenneth Carpenter-aka the Word Butcher of the VA litigation World. Ken can dismember a phrase uttered by a VA examiner in a New York minute and find a wealth of information about what was said, but more importantly, what wasn’t said but acknowledged by VA. You folks have to remember who you’re dealing with. You would have a far higher probability of meeting Bigfoot-and even getting a picture- as you would dealing with a VA employee with a triple-digit IQ. These people are incapable of constructing sentences in their native language. They need a computer to tell them when to use the powder room -and then require three signatures to authorize it. Okay. Maybe I exaggerate but you catch my drift.
For many reasons, I try to avoid the CAVC even though I’m admitted to practice there. Federal rules of law require a special way of presenting the case, filing it and prosecuting it. Deadlines can be sudden and unexpected. You have to drop all your clients’ cases (if you’re a one-man band like me) and focus/search Westlaw/ write, write, write to get it perfect. Even then, you can step on your necktie unless you live and breathe that level of litigation. And boy howdy up at the Court, they don’t cotton to excuses. If your shit stinks, they don’t turn on the fan. They let you baste in it.
With the inception of the AMA, we can, for all intents and purposes do away with the Court for all but the most arcane situations a Veteran (or his surviving spouse) would ever conceivably find themselves in. The Court, now, and especially the Fed. Circus, are going to become more focused on pondering perpetual motion and other paradoxes of VA foibles rarer than unicorns. And that is as it should be. I find it odd they’re adding two more Judges to bring the total to 11. I don’t see the need. How many times do you need to do a panel on a tinnitus claim?
But I digress. The subject today is the optimum utilitarian usage of a VA agent. An agent is a far cry from a Veterans Service Officer. A good Agent is like a Swiss Army Knife. We’re sharp. Or should be. We actually have to know the statutes and regulations versus how to answer a telephone or lick an envelope. We have to be able to sort the evidence and find the smoking gun. We have to be prepared to obtain a nexus IMO for our clients to win if they are too poor to afford one. Well, at least I feel that way. We have to have access to VBMS if we have a realistic chance of winning our clients’ claims or appeals. Most importantly, we have to be able to write it such that a VLJ and his staff attorneys can absorb it and come to the correct conclusion (the Veteran wins). All the laws in the world won’t help you if you can’t translate the above combo into written English.
A VA Agent is unique. S/he is in that limbo/netherworld between VSO and attorney. In spite of an Agent’s level of training requirements of VA regulations knowledge, we still lack the sheepskin of an attorney. That means we’re still sitting in the back of the bus with the VSOs legally-but VA employees don’t recognize our legal difference from attorneys. What the hey? All my correspondence when they disburse fees or discuss POAs refers to me as “Attorney Graham”. Relax. I don’t get bigheaded when that happens. Besides, I don’t want to be an attorney. You don’t have to look any further than that Trump attorney Michael Whazisbutt who paid off Stormy Daniels the $130 K and ended up in jail for three years. No thanks. So because we’re not attorneys, the Card sharks at your local Fort Fumble and the BVA Judges are supposed to give us the white glove treatment and pretend we’re legal imbeciles. Right on.
I can argue my heart out at my local Puzzle Palace and write the most awesome briefs in the world and still be given the presumption of stupidity legally. Should I venture up to the 9th Floor at the CAVC to argue, I do not get that presumption. I’m presumed to be competent at what I do. At the regional level and the BVA, the VA is required to sympathetically read my pleadings as if my client was pro se. They always blow it and look at me like an attorney. I want them to snap like an alligator at me. In fact, this is why I like to do my hearing face-to-face the old Legacy way. Bayonet distance is perfect.
Veterans probably don’t understand that they inhabit a special niche legally. We have our own separate legal system including federal review. Congress and the Supreme Court have gifted us a pro-Veteran canon that puts the thumb on our side of the scales of justice. But, even with that, if you are represented by an attorney, they are held to far higher standards. If they stepped on the pink snake and forgot to argue your bad back in the BVA brief, then they can’t dredge up the subject at the Court. The pro se Vet can though. And if I or another Agent were arguing our client’s case at the Board, s/he has to continue to sympathetically construe our arguments as the pleadings of a mentally/physically deranged Veteran with no legal acumen. They rarely do.
So where this leads to trouble for the VA is when you get to the Court you can say the BVA Veteran Law Judge held you to a higher legal standard and didn’t put on the white gloves. This is like setting up the perfect horseshoe ambush with Claymores. They sashay in there thinking they shit ice cream and walk on water. You get the Dear John letter and that’s all she wrote. Well, ‘not exactly’ as they say down at the car rental place. The CAVC looks at it in an entirely different light. Lots of weird concepts come into play like due process and a fair fight. Concepts like nonadversarial and Veteran friendly become watchwords.
Veterans justice is always under assault. Mission creep at the VA is a fact. We don’t need any more proof of that. The AMA sure sounded like the cat’s pajamas when the Big Six VSOs trotted it out. Hallelujah. No more waiting. Drive thru Veterans Service Centers. Just like the Dry Cleaners-in by 10 and out by 2. What could go wrong? Well-at the VA, a lot. Maybe they didn’t realize there’s this thing called the Internet and a Vet can figure out how to file a claim faster than s/he can figure out where the nearest Starbuck’s© is. Filing a NOD at the Board just dumped about 3 years worth of work on each Vet up there in DC. You can imagine how happy they were to find out… with no new employees to carry the water.
So, in order to help more Vets, I spend an inordinate amount of time trying to keep my Vets’ claims out of the BVA and dang sure out of the CAVC. Surely, every one of you on appeal are aware of that Corona horror story. Take my boy Chris. We filed his 10 182 on 4/19/2019 for a hearing. We’d filed a beautiful IMO from Mednick and they refused to read it at Fort Whacko (349). I’m forced to get the VLJ to do so. I got a call from my favorite BVA waiting room supervisor Thomas a month ago. I have a date with the judge face-to-face in DC on 4/19/2023-four years and a day after filing. This is a good thing. Chris had his first heart attack (IHD) a week before they called.
My advice is to ride the local merry go round (formerly referred to as the hamster wheel) at your local VARO until you hit the wall. Go out and get an addendum to your IMO and re file a supplemental. Let them deny. You’ll know you’re there when they call you up or email you and ask “What part of ‘no’ is it you don’t get?” Only then should you saddle up for DC and the Board. An addendum is great evidence to take to the Board. You can show the VLJ you tried to reason with these chuckleheads. A judge will see the steel in your words by the fact that you’re willing to do an addendum. If he denies, you can make a u turn and start over… with another addendum.
I should point out that the log jam at the Board seems to be akin to the beginnings of a spring thaw. I got another notice of a hearing date in New Mexico for mid-June just last week. A widow woman I’m helping who’s on a&a as terminally ill had her AOD done in record time-four months. It’s with the VLJ now ready for signature. Harvey down in New Mexico has been waiting since September of 2019. Considering I only have one more awaiting a hearing in San Diego, I’ll let a sigh of relief out that I don’t have to continue answering all the emails asking ‘when do I get mine’.
Now, for those of you who want to read a good yarn on how to hornswoggle the Secretary into forgetting about sympathetic readings and due deference to a pro se Vet, click on this one. Kenny takes out his light saber and makes a total mockery of a couple of Veterans Law Judges who thought they were God’s gift to VA jurisprudence.
Roberto asked me for help in 2014. He is one of my oldest Vets. He was pretty far gone from Hepatitis C and was forced to use the San Juan PR VAMC. We got the win (for 10%) and then the liver cancer hit. I’m zero for three at the BVA based on different theories of CUE and this was the last hoorah. It’s bulletproof law, and fortunately the VBMS scan program captured the evidence in living color before it could hit the shredder room floor but VA isn’t about to fall on their sword back to July 1970 for a 40% CUE.
Winning at the VA or the Court is now more a game of ‘gotcha’; of technique and exploiting your finesse at law. Pretend you’re a lawyer and they’ll make the mistake of treating you like one. After they do, get a real lawyer and hold their feet to the flame. Broadway ought to write a play on this subject- There’s no Business like Vet Business. So, if you think your claim/appeal is taking forever, think about Roberto waiting for 9 years for his day in Court…or 53 years from his September 1970 filing which we are contesting.
And that’s all I’m going to say about that.
Alex, you’ve written many times that your birthday is on April 1st, so Happy Birthday! You really help a bunch of Veterans, from different eras, and different experiences. You’re wonderful to so many of us. Your efforts relieve a lot of bad blood, soothe anger and pour cold waters on tempers. Your motto is “Get back in there and try, try again.”
Appreciate your willingness to reach down, sometimes uncomfortably and dig out “the Stuff” that some of us abide upon/in/ even retrospectively! Warning! Possible;
Boring subject matter to follow; or NOT. Re;Roberto and his 1970 Filing; mine was 1976; San Diego VA; Denied. My Next Filing was 2006 at age Sixty and at Fort Miley VA Complex; Outer Geary Blvd three blocks from Pacific Ocean/ Ocean Beach; Surfer’s Paradise, IF one like H2O in the low fifties. I was in San Frisco for a Divorce!
Fast Forward to June of 2021 when I was Ädvanced on the Docket” at age of 75 as
per VA Dictum, and felt the rush of wind as I flew over approx.;200,000 Claimants/Appellants “Waiting” like they did , especially “The Suck”; USMC as I did;
from 1966-1970. My “Hearing” (from June!) was August 7th, 2022 and my Decision;
Ninety Days Later on December 7th, 2022; Both Äuthored”by the same ölder” Woman! LMB…More to…