CAVC kangaroos as triers of fact

Ever since the inception of the Court of Appeals for Veterans Claims ( CAVC-formerly the Court of Veterans Appeals or COVA), it has been an inviolate precept that the record is closed after a Board Of Veterans Appeals (BVA) decision.  We are forbidden to submit any new evidence in our defense. Our appeal to the CAVC is merely a judicial hunt for a legal violation rather than an attempt to correct an interpretation of the evidence used to decide the claim. The Court, as they are fond of reminding us, is not a trier of fact. However, the Court, on occasion, has sent out for clarification on some obscure subject or consulted our VA favorite, Miriam Webster, for edification. Under no circumstances, however, was the record to be supplemented in any way, shape or form. Many is the Vet who has run his ship up on these rocky shores. This is a double edged sword. Many of us represent ourselves pro se in the endeavor and are oblivious to what records VA has (or doesn’t have). At the end and a denial at the BVA, they file their Notice of Appeal (NOA) at the Court and are finally provided with a roadmap of the litigation and everything the VA used to hang them with. At this point, many discover that VA has been playing fast and loose with the facts and sometimes has failed to get all our evidence in the record.

In the same vein, VA and its litigators are not permitted to add evidence at a later date either. The Record on Appeal (ROA) or Record Before the Agency (RBA) is a compendium of everything you have mailed in- your SSI/SSD records, your contemporary service medical treatment records (STRs) and anything from the Regional Office regarding the claim. Obviously, it goes without saying that if the Vet and the VA are precluded from introducing new evidence, that this applies in spades to the Court. Now, on to Mr. Arnold C. Kyhn.

Arnold was a Veteran of the Big One and had some hearing loss. He filed in 1998 and got the traditional wave-off. In his Notice of Disagreement (NOD) he asked for Tinnitus as well. He eventually prevailed on the hearing issue to the tune of 50% but was still denied the Tinnitus. He did not appeal as so many of us are wont to do.

In 2004, he opted to refile for the Tinnitus with an excellent IMO from his audiologist. Most would assume that someone who had severe hearing loss would also have some residuals such as Tinnitus. Most. Naturally, the Regional Office took the most myopic, narrow viewpoint they could on this and refused to reopen the claim.  Sound familiar?We’re talking $105 dollars a month if Arnold had prevailed. If added to his 50% hearing disability rating, it would have raised it to 60%.  The revised sum total would still not cover a normal mortgage payment.

The BVA remanded it back (reopened) and ordered a Compensation and Pension  (C&P) exam in 2006 to ascertain if there was indeed ringing in his head. This is a true dog and pony show as most know. Since Tinnitus is purely subjective and an article of faith, the VA must basically accept your word. There is no tin-o-meter to measure the racket we hear. Mr. Kyhn failed to attend his C&P because he claimed he never got the letter. The Regional Office (RO) promptly used this failure to appear to deny him and he received similar treatment at the BVA based on the same tenet. He filed his NOA to the CAVC and boarded the hamster wheel to DC.

Finally, six years later in 2010, the CAVC seconded and affirmed the BVA decision based on the Presumption of Regularity. To the uninitiated, this sounds like a Maalox moment but actually refers to the USPS. In a nutshell, the VA is presumed to be above reproach. If they say they mailed something, it is presumed they did. If they claim they put it in the mail, it is assumed the USPS delivered it to you. Vets, on the other hand are not entitled to this liberal codicil. We are held to the Common Law Mailbox Rule and must provide proof of our mailings because we are low-life, ne’er-do-wells known for our habit of defrauding the VA.

After losing, Arnold asked for a full Court hearing on this and raised several points of law. One big one was that it “seemed” unfair that VA could blatantly state they mailed him this C&P notice with nothing other than a “because we said we did”. The CAVC , in a divided decision, declined to rehear it and thus consumated lynching #2.  Initially, in the first decision, the Court had asked the VA to supplement the record with affidavits from several VA employees to illuminate how these C&P exam notices are arranged and who generates them (Kyhn v. Shinseki  2010). The VA Secretary promptly rounded up two lovely young gals and had them explain how it all works. Margaret Bunde, an RO employee, was absolutely clueless on the subject other than to be convinced it was done at the VAMC and deferred to the second affiant.  Jo Ellen Bash of the VA Medical Center in Omaha, Nebraska explained:

…stated that a scheduling clerk typically provided a veteran with notice of his VA examination by “electronically generat[ing] a letter to the veteran” from the Automated Medical Information Exchange  (AMIE) system.

The CAVC swallowed this hook, line and sinker and promptly affirmed the BVA decision. Mr. Kyhn was flummoxed but nevertheless appealed up to the 3rd Federal Circus in a vain attempt to see justice through. He finally found reason and sanity of sorts. The judges came down 2-1 with Judge Lourie dissenting. As a side note, this also occurred at the CAVC below with Judges Kasold and Hagel dissenting and favoring a full Court review of this seemingly new precedent (introduction of new evidence after the BVA decision). Of note is that the Feds disassembled Jo Ellen’s testimony above and inquired as to how an action (scheduling a C&P) could  be both generated manually by a VAMC employee while at the same time automatically generated by a machine. Moments like this are why many wish they could be flies on the walls of judicial chambers.

Rarely do you see this disparity. Remand? Yes for some arcane reason-usually where the Veterans Affairs Secretary and his minions, in their headlong rush to justice, stepped on everyone’s toes and ignored the regulations. Vacate and remand? Often because of some perceived slight or failure to mail out a VCAA notice. Here, we have a vacate and remand based entirely on something the CAVC is guilty of rather than an improper construction of the Texas necktie party at the BVA or RO. This is so rare as to be notable. The US government’s litigators rarely, if ever, find themselves defending the actions of a lower, Federal Court.

Were it not so egregious, it would hardly warrant notice. Here, in the much-vaunted, nonadversarial, Veteran-friendly environment we are constantly told we inhabit, it stands out like a lighthouse in an impenetrable Maine coastal fog. What could possibly convince the CAVC that they were permitted to saddle up and venture forth on a fact-finding mission? What could possibly convince them they had the authority to embellish the record with new evidence not previously before the BVA? This flies in the face of all known law up to this point. It shows a complete disregard for precedence in a stampede to disenfranchise one of America’s sons (and, by extension, all of us) of benefits due him.

We are often assured throughout our decades of claims adventures that we enjoy many legal niceties that are not accorded other mortals in the judicial environment. Veterans often discover that when VA assures them they are going to “get everything that’s coming to you”, it connotes sooooo much more. When an Article I Court, specifically authorized by Congress to insure equality and justice for Vets, takes an obverse tack and flies into the wind against us, we can only stare in wonder. We are powerless to change these injustices that occur frequently. It’s refreshing to see the Kyhns of the Veterans world stand up to them over something as inconsequential as a paltry Tinnitus claim.

What’s even more heartwarming is that we have attorneys willing to take on Goliath for what are unarguably pennies when they could be out making millions on billable hours. Perry A. Pirsch deserves a special accolade for his expertise in convincing the Fed. Circus of the rank injustice afforded Mr. Kyhn. Poor Arnold has been occupied with this for the last eight years in what should be his sunset years doting on his great grandchildren. Assuming he enlisted in 1945 at eighteen, he is now about eighty six years old. It speaks volumes to the tenacity of the Greatest Generation to see justice done. By the same token, it illuminates the ugly underbelly of the Veterans judicial system that would perpetrate this hoax on us.  He will go down in the pantheon of heroes which includes Norm Gilbert, Jesse Bagby, Roger Shafrath, and Adrian Fugo  to name just a few.

All over a inconsequential Tinnitus claim for ten percent. Millions of Veterans salute you  for your perseverance,  Mr. Kyhn. Being anally retentive about justice paid off.