Thought for the Day

Posted on March 13, 2012 by asknod

This from brownwater Squid member Jimbo:

I was sitting at a traffic light yesterday, minding my own business, waiting for it to turn green. A carload of young, loud Muslims shouting anti-American slogans including ‘death to all infidels’ stopped next to me. The light changed, the Muslims shook their fists, hit the accelerator and darted off ahead of me. Suddenly an 18-wheeler truck came speeding through the intersection and ran directly over their car, crushing it completely. For several minutes I sat motionless in my car thinking to myself, “That could have been me!”

So today, bright and early, I went out and applied for a job as a truck driver.

Posted in All about Veterans, General Messages, Humor | Tagged , , | Leave a comment

BVA– HCV? Well,Not Exactly.

Posted on March 13, 2012 by asknod

Veterans would do well to analyze this decision and realize the argument is specious. The BVA and it is companion RO have gone to great lengths to bandy words about in such a way as to semantically hide the truth.

Here is the unvarnished truth. The Vet has a long history of being in the military. Granted, it is not continuous but the timeline indicates he’s been associated with the system off and on over thirty years. While that in itself is not a harbinger of infection, let’s look at the facts. He has tested positive for the virus. He has it. There can be no parsing of what the meaning of “infection” is. I suppose the VA could characterize this as being a little bit pregnant, but it’s not expected to blossom into full-blown birth. This is pure conjecture and a medical conclusion on the part of the Board. That’s a Bozo no-no and has been since Mr. Colvin brought the matter up at the Court in 1991.

The fact that there is a 0% for HCV in DC 7354 shows that the VA has contemplated the need for a rating where the symptoms do not rise to the level of a compensable rating. This is for a reason. You could conceivably be “cured” of HCV via IFN treatment where your symptoms do not rise to the level of monetary compensation. Therefore logic dictates that a person who has been diagnosed as a carrier, regardless of ulterior symptoms, is infected in the truest sense of the word. It also stands to reason that the disease could manifest itself later to a compensable degree. If the Veteran did not pursue a claim now, he’d have to do it later. We have seen that the Maxson v. Gober (1999) decision weighs heavily against this approach. The longer you wait, the more inclined VA is to ascribe your problem to intercurrent causes.

This is from the decision:

  Service treatment records and a VA treatment record indicate the presence of hepatitis C in the Veteran’s blood. Service treatment records dated from the early 1990s indicate that the Veteran had tested positive for the hepatitis C antibody. Moreover, in a February 2009 VA treatment record, which also served as a letter to the Veteran, it is stated that a recent blood test was positive for the hepatitis C antibody. The letter also indicated that the Veteran had an active hepatitis C infection. 

Of more concern is the fact that the VLJ refuses to consider testing positive for HCV as being synonymous with having the disease. If the American Red Cross will not accept your blood because you test positive for the bug, it can safely be said that you can transmit it. If you can, then you have it and have the potential to suffer from it at some   time in the future. This is an important distinction that the Board member never addressed.

What may now ensue is a future claim filing when the disease suddenly goes active. Does the VA then grant SC? Does all of the prior evidence come into play or do they erect the old “new and material evidence” standard of 38 CFR §3.156(a) barrier and demand you “reprove” your contentions? This is fraught with danger and any Vet who fails to obtain the 0% now cannot then claim a secondary illness as a residual of the HCV. This may be PCT or some other disease known to be associated with hepatitis. It also may be needed in the event of the successful completion of IFN and disease processes secondary to that treatment

I find it unfortunate that VA has done this because it will incur a lot of hard work later on for this gentleman. It would cost VA absolutely nothing monetarily to grant SC. Keep this in mind if you find yourself in a similar situation. Throwing in the towel early on is not advised. It may seem like a futile 0% endeavor now but may be smart money invested in the long run.

Another analogy that should be considered is the one related to hearing. This is where VA stands tall. They are frequently in the habit of assigning a 0% rating to hearing loss rationalizing it as being less than debilitating. The fact is the hearing issue is not going to improve for the most part. Tinnitus similarly is not going to magically resolve itself. Where is there a remarkable difference as to whether you “have” a hearing disability if it’s not bad enough to warrant compensation? The important thing is to get a rating even if it is 0% to begin your baseline towards a rating in the future. Waiting to buy the fire extinguisher for the kitchen fire is foolish. For the VA to use this rationalization of a denial is disingenuous at best and criminal at worst. Don’t fall for it. It will make excellent precedence at the CAVC if you go there. You can even have your fifteen minutes of Andy Warhol fame, too.

From our prestigious Religion-challenged Regional Office in Salt Lick City, meet Mr. Brigham Young’s  ancestor:

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1144862.txt

Posted in BvA HCV decisions, Jetgun BvA Decisions, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , | 10 Comments

Dayton VAMC Malpractice problems.

Posted on March 12, 2012 by asknod

Eagle-eyed member Loyal spotted these this morning. As much as VA likes to tout the Presumption of Regularity in this and that, and Doctors can do no wrong, we still read about these glaring VA “medical misadventures” which always seem to be the confluence of coincidence and bad luck with a supersize me of being in the wrong place at the wrong time.

http://www.lancastereaglegazette.com/article/20120312/NEWS01/203120306/1002/rss01

http://blog.cleveland.com/metro/2012/03/ohio_va_clinic_paid_940000_in.html

I guess I don’t have to say anything about my Imperial entanglements. I survived by finally qualifying for Medicare and escaped.

Posted in All about Veterans, General Messages, HCV Health, Medical News, vA news | Tagged , , , , , , , , , | 3 Comments

BVA– SUGARDADDY?

Posted on March 11, 2012 by asknod

Here’s another one of those Nashville Cats who won. I couldn’t believe this. It’s enough to make you want to move to Nashville and file there. I had to look and see which VLJ had written a perfectly phrased Benefit of the Doubt argument that came down on the Vet’s side. This just doesn’t happen. Apparently, Acting Veterans Law Judge Tara L. Reynolds hasn’t gotten the briefing on how this works. In time, with plenty of good coaching, she’ll see the light and get with the program. Until then, I hope every one of you who has to go up on appeal gets this fine lady for a judge.

Listen to this prose. It’s like milk and honey without a tuba blaring at the end.

In order to resolve if his hepatitis C is related to service, the Veteran was afforded a VA examination in September 2009. Such an assessment is complex in nature and required a professional medical opinion. The VA examiner reviewed the claims file and the Veteran’s risk factors. His drug use (during service), tattoos (after service), sexual history (during service), and claimed exposure to blood (during service) were considered. The examiner stated that combat activity producing minor abrasions in the presence of a blood environment increases the Veteran’s chances of exposure (to hepatitis C). In addition, other factors, such as an unprotected sexual encounter, intranasal cocaine use, and tattoos can each serve as factors in transition. The examiner stated that the military combat exercise and the other aforementioned potential causes of exposure increase a probability of exposure. 

The Board notes that the VA examiner basically included all reported risk factors as causes of the Veteran’s hepatitis C. Since the examiner did not indicate that one cause was the sole etiology of the Veteran’s diagnosis, the Board must accept that they all played a role. In addition, the Veteran must be afforded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hepatitis C is warranted. 

In my mind, a military “combat exercise” is not combat with its attendant exposure to blood. This judge is cognizant of all the facts and carefully avoids stepping over the Colvin ditch and making a decision medical in nature. The VA examiner(Rater +Coach) signed off on their version of all the possible etiologies but left the conclusion column blank. Yes. You read that right. They listed all the risks without quantifying them and then stated equivocally that any one of them (or all of them) might be responsible. What’s going on here? Is this guy some Senator’s son? Who does he know that will get him a bye from this Judge?

Most VLJs would remand the thing for an explanation instead of an RO shrug of the shoulders. There is no nexus, or to be more exact, there are four with no rationale. I notice she wasn’t as forgiving on the other claims when she denied them. With the large number of risks and some after service (tattoos), the VA examiner is somehow avoiding what normally involves 3 trees worth of paper- a long winded explanation of why the drug usage in service cannot be remunerated due to willful misconduct. Miraculously there is no discussion of it and cites to § 3.301. Now why is that? If you hold this decision up to the light there is so much right with it that it stinks. VA doesn’t operate like this. Neither does the BVA.

There’s more afoot here but I don’t have the C-file to figure it out. It’s one of the few times I’ve been stumped when reading a decision. Veterans occasionally get a screw up like this. Let’s call it an aberration rather than a mistake. I’m glad Johnny Nashville won. I wish we all could or that we at least get a fair shake. It so rare to see the BVA playing fair that it takes your breath away and you have to look for some ulterior motive. I say either the Vet is the VLJ’s sugar daddy boyfriend or he’s her father. Anyone have a better idea?

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1146730.txt

Posted in BvA HCV decisions, Nexus Information | Tagged , , , , , , , , , , | 2 Comments

COVA– JOLLEY v. DERWINSKI–DUE PROCESS

Posted on March 11, 2012 by asknod

Jolley v. Derwinski is one of the early COVA decisions where the Court was appalled to find out the vicarious manner in which the VA treated its Veterans. This may have come as a surprise to the newly constituted Court, but I’m sure contemporary Veterans of that era were not shocked.

Franklin L. Jolly, a Veteran of the big WW2, had the misfortune to have his strep throat advance into Scarlet Fever when he was stationed at Chanute Airpatch in Ohio in 1941.

In July of 88, Frank decided to file a claim for residuals of the fever and secondaries like rheumatic fever and heart disease. VA gave him the wave off and said they probably weren’t going to be able to find his SMRs. Sure enough, a month later the VA said no dice. We can’t find them. Mr. Jolley promptly gave them everything they could imagine to help locate them to no avail.

Moving along at a blinding pace compared to current delays, the RO denied in September of 88. So, in a short period of two months, Frank filed, was told it was going to be a bitch to get his records and was then denied. He opted to appeal to the BVA and told them at this juncture that he had read a newspaper article (included in his appeal) that stated the NPRC had discovered a wealth of new personnel files on WW2 Vets.

The BVA moved into high gear and ignored his submission. Making no attempt to verify his evidence, they proceeded to denial nine months later based on the existing evidence of record.

BVA’s logic for not searching through the new SMRs in St. Louis was that it would be a hassle. They had not been “indexed” or properly arranged in such a way as to facilitate the BVA’s search. Therefore, Mr. Jolley’s request could not be honored, the BVA was not going to be bothered and that was that.

Old Frank might have never gotten his fame or a footnote in the history of Veterans jurisprudence except for one niggling little oversight on the General Counsel’s part. The GC knew the records had been collated and indexed two months before oral arguments commenced at Indiana Ave. NW and neglected to do anything about it let alone mention it to the Court, Frank and his mouthpiece. I’m sure Frank and his pseudo-lawdog weren’t surprised by this treatment but the Court was nonplussed to say the very least.

But for a rather startling revelation made by counsel for appellee in argument, this Court would address the process undertaken by the VA in responding to the statutory mandate requiring him to “assist . . . in developing the facts pertinent to the claim.” 38 U.S.C. § 3007(a). In argument, counsel for appellee informed the Court that the recently discovered records which might contain hospital records directly relevant to appellant’s case, and which he had requested, had been available for two months prior to the hearing date in this Court. This Court views with concern appellee’s failure to notify the Court or appellant of the availability of the newly discovered records. Counsel for appellee indicated that within “the last two months” the recently discovered medical records have been “analyzed and [are] available” and identified by service number.  Appellant seeks remand in order that the newly available documents may be searched. Jolley v. Derwinski (1990)

 

The Judges didn’t think very much of this kind of shenanigan.

This Court cannot agree with appellee that “. . . 38 U.S.C. § 3007(a) and 38 C.F.R. § 3.103(a)are merely statements of VA policy and provide no basis whatsoever for Appellant’s argument that VA failed to follow its ‘procedural rules’. . . .” Br. at 12. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” Morton v. Ruiz, 415 U.S. 199, 235 (1974). In enacting 38 U.S.C. § 3007(a), Congress was codifying the DVA’s obligation to assist claimants which existed in 38 C.F.R. § 3.103(a). The Senate Committee, in discussing 38 U.S.C. § 3007(a), stated that “the VA should be responsible for providing the material — or seeing that it is provided — needed to make the determination on eligibility.” S. Rep. No. 418, 100th Cong., 2nd Sess. 33-34 (1988). While this Court has not yet had the occasion to define the Secretary’s duty to assist, it is clear that this statutory duty encompasses responding to appellant’s request for a search of records already in appellant’s files.

Because the analysis and indexing of the newly discovered records occurred prior to argument before this Court and because the Court was not advised of the existence of such records, thus possibly mooting the case, this Court retains jurisdiction and remands as authorized by 38 U.S.C. § 4052(a) (1988). Appellee is instructed, within 30 days, to search the recently indexed records to determine whether appellant’s medical records can be found. Appellee is further instructed to report promptly to this Court and to appellant the results of its finding. In the event new evidence is produced the BVA shall take appropriate action consistent with this opinion. It is not necessary to discuss other issues raised by either side at this time.

 It is so Ordered.  Jolley supra

Thus we see the Court’s hackles raised due to the arrogance of the GC and their cavalier attitude towards Vets. Nothing has changed in the twenty-two intervening years. The VA and its minions are far more nuanced in their approach to dissing Vets in 2012 however. They use flowering terms of endearment to mask their disdain for us. We are nothing more than a minor inconvenience and a whining bunch at that. If we would just shut up and move to the back of the bus, justice would be better served and they could move on to weightier subjects like what kind of martini to have at lunch ( gin or vodka-shaken or stirred).

The audacity of the VA to give us short shrift in 1990 has not abated. They will always consider us to be the fly in the ointment. I have had discussions with VA raters and the consensus is that the VA is far too liberal in its approach to Vets. They (the raters) feel it would be more appropriate to shrink the opportunities for appeal and limit the evidence that can be presented. In short, the agency created to assist and minister to us feels we are annoying and pampered. If they had their druthers we’d be given a brief opportunity to file and present our side. After denial, no more evidence would be admitted. The record would be sealed and our fate decided at the RO. If denied, a BVA appeal would be predicated on the same facts.  Game, set and match. Next?

Once you understand this philosophy, it may give you pause. Many is the Vet who approaches the process with the misguided understanding that they (VA) are veteran friendly as they profess to be. The VA had long been given free rein to run itself. It wasn’t until the advent of the VJRA of 1988 that Mr. Jolly was afforded a venue to fight this intransigence. Prior to that, he would have been disenfranchised and gone home with his tail between his legs. The VA had been engaged in this so long that they simply didn’t “get it”. The treatment Mr. Jolley received was mild compared to what others got in that era.

Something I always like to point out is the absence of Mr. Jolley at any future Court appearances following this remand. Could it be that he meekly submitted to the process and was denied? That his case had no merit and he gave up? There are many things that lead me to believe otherwise. VA will never be forthcoming on the outcome of these things. One can only look at the records of the CAVC and note that very few of them reappear for a do over. The same VA raters I mentioned above would have me believe that the Jolleys of the world realized the error of their ways, folded up their tents and went home empty-handed. For some reason I can’t buy that. Vets are a breed apart from their cousins (civilians). They are a hard-nosed lot. Denial breeds an insatiable desire for justice. Granted, many who are unfamiliar with the system will shrug and give up. Many more will be dissuaded by conniving VSOs into giving up the good fight. What is apparent to me is that the 5 percent who doggedly appeal these matters to the Court and beyond are never heard from again.

Can it be that the VA is the party that gives up? Can we assume that they realize the futility of more judicial development and adjudication? I suspect that once they have irritated the CAVC with their imbecilic attempts at disenfranchising us, they are too embarrassed to show their faces again. Sometimes it’s easier to give up on one when VA considers the millions waiting in the wings to be denied. With this sure prospect of a win in store, a failure to appeal is almost a crime.

Mr. Jolley did this with a non-attorney practitioner which is legal speak for someone with no J.D. after their name who has qualified to represent Veterans before the VA. While we rarely see his name anymore, it still pops up on occasion when due process is violated and VA becomes too arrogant. We owe Franklin a big thank you for standing up and blowing an ass gasket in 1990. His plight draws attention to the excesses VA is renowned for.

Jolley_89-161

Posted in Important CAVC/COVA Ruling, Veterans Law | Tagged , , , , | Leave a comment

VA’s WHEEL OF FORTUNE

Posted on March 10, 2012 by asknod

I logged on to Ebenefits last night to look for progress on my appeal. Lo and behold, someone has been busy. The date of current progress has jumped from January 25th, 2012 to the current one below showing they were up to something yesterday. There are many theories as to what they will do with this.

Date of Current Progress Current Progress Progress Description Date Received by BVA
03/09/2012 Phase 4
With VLJ		 Your case has been received at BVA and is currently with a Veterans Law Judge for appropriate action. 05/04/2011
03/09/2012 Phase 4
With VLJ		 Your case has been received at BVA and is currently with a Veterans Law Judge for appropriate action. 05/04/2011

Several members have expressed the empty popsicle stick theory. Member Loyal calls this the lollipop stick with no lolly on it. I remember hot summer days in 1959 Virginia when the Good Humor man came by. I was extremely young and  inexperienced in the ways of the world. Trying to enjoy a popsicle by savoring it was a recipe for disaster. They tend to part company with the stick and end up in the dirt.

VA has improved on this and is in the habit of handing out empty sticks from the get go. Many is the decision I have read where the Vet is finally given a “win” for a long-sought claim or a CUE revision. VA magnanimously announces the ol’ boy has prevailed and then pole axes him with a long diatribe about how he has no evidence to support this previous effective date. Some spend their dying last days trying to dig up supporting medical info in the quest for the back pay. As the error is the fault of the VA, the courts are now holding that SSI/SSD reports of your  wages over the years are a pretty good barometer of what your earning abilities were way back when.

My SSI records fortunately support this. VA is going to have a tough time squirming their way out. I even had the foresight to submit all this with the original claim including a detailed description by my wife of my health travails. Nevertheless, I’m betting the lowball technique will be employed initially in an effort to dampen the largesse. The only thing VA hates more than losing is having to part company with large sums of 30 year-old inflated dollars interest-free. I don’t understand their logic. It’s not their money but they certainly treat it as such. They can and do get down in the trenches with you and fight tooth and nail over a 0% hearing rating for years. The same occurs regularly over a Tinnitus claim for $125/month (10%).  You can imagine how they treat an 18 year old claim with 50-60+% that they now have to address. The urge is to find any way short of dishonesty to curtail it.

In 2007 we were introduced to the now outlawed practice of the Extraordinary Awards program (EAP). The Secretary improbably decided he needed a new limo with a bar and heated massage seats. About that time he also noticed the office was looking a little shabby and a new, larger desk with fresh carpet were in order. The VLJs piled on and pointed out that their quarters were cramped and it interfered with the quality and quantity of justice being dispensed. They instituted the EAP and started giving haircuts where possible (read invariably) to retro awards in excess of $25,000.00.

I expect some of you still consider $25K  to be an important financial tool after years of deprivation. VA considered it to be foolish money being given to foolish Vets who would in all probability go out and squander it on foolish pursuits. Rather than try to hold it hostage in some form of trust or fiduciary which they control, they opted to simply “appropriate” it  in a back room trial without you and the jury present. Well, this is against the law in the lower 48 states and it wasn’t long before a VSO caught wind of it and blew the whistle. VA has a much more circumspect method that is sotto voce now.  It’s unwritten, but there is suddenly a new signature line on the forms that requires more than the ranking GS-13 DRO’s John Hancock.

Thus it may come to pass that a rump decision will ensue from all this. Since I actually worked-even for just 3-4 K a year in the eighties, this will become incontrovertible proof  that I could have  worked more but was just gaming the system and preparing for the  eventual filing of my VA comp. claim. Logic will thus dictate that any comp. monies should be miniscule so as not to reward my dishonesty. I can’t wait to hear their tortured rendition of the Star Spangled Banner. It may surpass Roseanne Barr’s and Stephen Tyler’s efforts.

Whatever VA chooses, it is axiomatic that it will be their rosy impression from their high perch in D.C. and not based on their equivocating for decades at my expense.  They’ve had it for a year now come April 5th, and it appears they’re not finished with the scissors yet. What always sticks in my throat is the “Let them eat cake” moment when they announce the immortal “Justice delayed is not justice denied” mantra. What they seem to miss is that the 1994 dollars do not buy what the 2012 dollars attempt to nowadays. Absent any interest on the underlying principal, any Vet’s award is woefully inappropriate.

A win is a win-unless it’s a win at the VA. There it’s merely a concession that they did nothing wrong that is actionable. Since it is just an unfortunate mistake that anyone could have made, no one will be punished for their stupidity. All is well that ends well and the Vet lives happily ever after.  The minor fact that this happens fairly regularly (in 60% of all cases appealed) is merely a coincidence and no inference should be drawn as to VA claims in general.

I strongly suspect VA employs a Wheel of Fortune in the Rater’s back room at ROs. Their version is predominately 10%ers, lose a turn, and Bankrupt. There are a few 20 and 40%ers with the miniscule silver $5K wedges that are there for shits and grins. By and large, the outcome is predicable.

What’s behind door #3?

Zonk!

Posted in All about Veterans, BvA and VARO CUE DECISIONS, BvA HCV decisions, CUE | Tagged , , , , , , | 1 Comment

VA WEIGHS IN ON GUN OWNERSHIP

Posted on March 9, 2012 by asknod

As if VA didn’t have enough on their plate trying to adjudicate claims in an timely manner, they now have embarked into the field of gun safety and what it constitutes. As some know, I am a benefactor member of the NRA and hold the organization in high esteem. I am my own fellow and owe my vote to no one. This article caught me off guard. While they are vociferous about bringing weapons onto VAMCs and VAROs, I had no idea they are trying to reach into the home. Read this for an example of how the government will do anything to influence us.

http://www.nraila.org/news-issues/articles/2012/veterans-administration-overdoses-on-anti-gun-prescription.aspx

Spooky stuff, huh?

Posted in All about Veterans, General Messages, PTSD, vA news | Tagged , , , , | 3 Comments

Good News On VERTEX Studies

Posted on March 9, 2012 by asknod

I just received this from member Randy N. Thank you for finding this and contributing. I’m glad they have finally found something that kicks ass on the 1a and 1b flavors.

http://www.zacks.com/stock/news/70549/Positive+Data+on+VRTX

Posted in General Messages, HCV Health, Medical News, Uncategorized | Tagged , , , , | 1 Comment

JOINT MOTIONS FOR REMAND–WHAT ARE THEY?

Posted on March 9, 2012 by asknod

On the offbeat chance you have to fight your way up to the CAVC for justice, you will probably be offered the JMR by the VASEC’s henchmen. Judging by their track record, this appears to be the most likely scenario.

Let’s say you patiently argued with good Internet information, pertinent articles and a strong, well-reasoned nexus but still lost at the BVA. Hey, it happens and all it takes is one bozo judge who is myopic. You’ve filed your NOA and paid the $50.00. You’ve waited your turn patiently and they finally call your number. You’ve filed your informal brief stating your contentions on how they ignored your evidence and the medrecs. You’ve laid it all out in black and white with yellow high lighter. A blind man could follow this trail of evidence and see your entitlement. In short, you make your case.

The General Counsel team of crackerjack law dogs rolls out their contention that it’s plausible about the guns and besides, you have no proof in the SMRs showing they used jetguns. Suddenly, right when its time to shit or get off the pot, the GC crew throw up their hands and say “Hold the phone, your Honor(s).  Mr. Nod is correct. We forgot to consider that he’s capable of testifying that they used jetguns because that doesn’t require any medical knowledge.  We’d like a Joint Motion for Remand to delay this for about a year or two and rule on it all over again. Our Bad. How about you, Mr. Nod? That okay for the ol’ JMR and another five years on the claim train?”

If you have a law dog and your case is air tight, he may ask for reversal. I would. Screw this JMR crap. It happens every time they have an arcane interpretation of old law. Hell, it can be said it happens every time period.They struggle to twist it around into an unrecognizable image of it’s former self. When the Court removes the lipstick, the pig emerges. Once unmasked, the General Counsel go into JMR mode as if you’ll be overjoyed at the prospect of old age and yet another crack at “meaningful” justice. They have purposefully played you for a year just to ask  you and the Court for a do over at the Vermont Ave. House of Mirrors. This is no accident and you should incorporate it into your informal appeal because the odds of it occurring are huge. I’d be tempted to insert some paragraph that says ” Since it’s anticipated that the VASEC, through his GC, will be asking for  JMR, we politely decline their invitation and ask the Judge(s) to rule on our case here and now. Endless litigation is not in our interests even if the GC finds it entertaining. I’m getting older and need closure, not more obfuscation.”

Making the JMR a sine qua non in every adjudication seems to be a normal function on appeal and it shouldn’t. Remands should be due to a judicial error in a prior adjudication that is caught and rectified. Taking a stubborn, indefensible stance in opposition to everyVeteran’s claim all the way to the Court and then readily admitting fault should be dealt with severely. Wasting judicial resources should be grounds for punishment. When it becomes so blatant and frequent as it is now, reversal may be the way to “open a dialogue” with the General Counsel. After a year or two of that, they might decide to revamp and reorder their litigation posture.

JMRs seem to be the default setting about five minutes into the GC’s rebuttal at oral argument.  The problem goes back to the inception of the VJRA of 88. The idea of ex parte justice is an informal setting in which the Veteran feels comfortable and isn’t “put on trial”. In a more perfect VA world, a true ex parte  process would entail all parties coming to the table and having an orderly discussion on the merits, evidence, testimony and a legal briefing. All parties could reconvene with anything lacking in a fortnight to rebut prior contentions. A modus vivendi might be arrived at without so much as a  beer summit. At any rate, the operable action would be the interaction and openness of the process and the elimination of misconceptions or errors of judgement. Appeals would almost become unnecessary. With everything resolved to everyone’s satisfaction in a meaningful “impromtu trial”, little would be left to argue but the effective date and trading phone numbers with the cute 38 year old DRO who was winking at you.

Since we do not live in this faerytale world of make believe, we are condemned to the true VA ex parte world. That is the one where you patiently assemble everything  and label it all very carefully as Exhibit A,B,C etc. VA thereupon unstaples everything and mixes it up with God only knows who else’s C file. Any semblance of continuity evaporates and your claim is effectively compromised. You can scream at the top of your lungs, send it all in reassembled, and cry foul. You will get no response. It’s like yodeling and hearing yourself echo off the canyons. Ex parte is a one way street until you receive the decision. You won’t even know these guys received anything until you hear about it three years later. No discussion, no interaction, no notification of something minor amiss. In a word, no communication. Sometimes a remand from the AMC goes out and you are clueless. Your claim can lie fallow for years and you would not be the wiser.

Come oral argument day up at Indiana Ave., all of a sudden they determine what they should have done in 2008;  they’re absolutely apoplectic at their error and all they want to do is make it right with the ol’ MFR. The problem never seems to resolve. Each case that comes up is dealt with identically. The interaction that would avoid this is nonexistent.  Most Veterans will tell you that if they lost on appeal, the same exact argument used to deny at the RO was re-employed at the BVA with few variations. A total disconnect exists unless and until they are standing in front of the CAVC. Suddenly the EPIPHANY shines through the room and the GC “gets it”.

A MFR is not always the panacea you hold it out to be. This can be a Come to Jesus moment for the VA and you may get all you claim. Other times it’s rank subterfuge to reconstruct a better denial that passes judicial muster. Often it boils down to the phraseology of the decision. Obviously, a viable decision vacated and remanded for 3rd grade legal errors is a poor candidate for a necktie party. The JMR is useful where the Vet’s claim looks like it has encountered a spike strip to each wheel.  Most are the product of a smoke ring-blowing exercise gone awry.

A JMR is couched as a mutual decision between appellant (you) and appellee (VASEC). The Court is not always amenable to this unless you truly are a willing participant. Ofttimes, the Court will ignore this request and remand for totally different reasons which are always Veteran friendly ones. On the rare occasion, they will reveal their displeasure with the VASEC’s arrogance and go further. VA can see which way the wind is blowing and rarely comes back with an unhappy Veteran at the podium. If you’re running a 60% error rate, it’s bad form to keep coming back with yet more mistakes on the do over. Best to take it on the chin and start anew with another Vet and another request for JMR.

Posted in All about Veterans, Important CAVC/COVA Ruling, Tips and Tricks, Veterans Law | Tagged , , , , , , | 1 Comment

World War II & ½

Posted on March 9, 2012 by asknod

Back in 1949, the Tacoma VFW petitioned the U.S Army to gift or loan them a  cannon   for the yard ornament in downtown Tacoma. In 2012 parlance, this is called bric-a-brac or yard furniture.  The Army obliged with a Model of 1931, 1o5MM mobile Howitzer. A veteran of the Big One, it stood guard with pride until the VFW ran into some tax problems early in the 90’s. They gave up the property to pay taxes and a new owner took over the premises (and the gun) in 1998. The VFW came  and said they’d like their gun back, pretty please. The new outfit said no dice. We bought it with the property. The VFW was polite to a fault and finally, after a score of years,  showed up one Saturday morning late in February, appropriated the gun and moved it down to Parkland, Washington on the side of their building there. The owners of the Tacoma property promptly filed theft charges and pointed to the culprits who weren’t making any attempt at hiding it.

A judge has now interjected herself into the fray and ordered the VFW to produce ownership, stewardship or trusteeship to said Howitzer and paperwork stipulating as much in 10 days or less. In the event of failure to produce this, the gun will be returned to the Tacoma owners who live in California and enjoy all the press they’re receiving over this. The VFW has intimated that the gun will not be heading north-ever. It will be interesting to see if they can get ammo for it. I’ll keep you posted.

Posted in All about Veterans, vA news | Tagged , , , , , , | Leave a comment