Well, well, well. March 31st will mark the quarter of the year and the CAVC has eleven adjudications under its belt. These adjudications are almost equally divided in nature. The score is nine to two in favor of Vets. For those of you from St. Petersburg, that means Vets are ahead. In arithmetic terminology, that is 81% in favor of Vetkind.
One exception was a Vet trying to get a MFR or a panel hearing on his case. He lost on both attempts. Apparently his arguments were not as persuasive as the Secretary’s. The second one, Kyhn v. Shinseki should be filed in the Boldly Going Nowhere file. The Vet failed to show up for his C&P exam and then tried to lie his way out of it.
Of the nine decisions in favor of Vets, five of these decisions were procedural mishaps and four were statutory misinterpretations. Statutory rulings, quite simply, are cases where our illustrious leader misinterprets the meaning of the law and introduces smoke, mirrors and snake charmers in a belated attempt to justify and vindicate his argument. This might work with his wife or the plumber. Trying this up on Indiana Ave. would require a lot of liquor and women of questionable morals. Unfortunately, they are in short supply in that neck of the woods.
Procedural rulings in favor of Vets usually fall into a narrow band of stupidity. In the early years there were 20 BVA Boards made up of three judges each, one of whom was an M.D. After enactment of the VJRA in 1988, this practice continued until late 1995. The Board then switched to a single judge for adjudications and abandoned the medical member completely. Some theorize this was a cost–cutting maneuvre, but in reality it was based on the VJRA and the new Court. Board members making decisions medical in nature was outlawed early on in Murphy v. Derwinski, confirmed in Littke and enunciated again in no uncertain terms in Colvin v. Derwinski. Nevertheless, this procedural defect plagued many a BVA decision for years to come. Failing to adequately explain their decision in the Reasons and Bases section was the other bozo no-no that haunted the BVA for years. Nowadays, the majority of procedural failures are more mundane and involve nuanced readings of 38 CFR. TDIU has gone through quite a few reinterpretations as have the reasons for not granting it. The BVA is loathe to give away money unless it is to each other in the form of Christmas bonuses. It’s true. They often get bonuses. That’s about as asinine as giving the traffic cop who wrote the most tickets a raise. I’m sure they have a well-reasoned excuse for it like the Judge had perfect attendance that year, was never tardy and used ecofriendly light bulbs in his office. The decision in Harvey was extremely harsh. The Secretary held up justice for absolutely no reason for almost a decade before being sanctioned and fined for his misfeasance. He, too, will receive a bonus if for no other reason than to pay his fine.
Whatever the reason, be it failure to read and understand the rules or just blatantly ignoring their substance, there is no excuse for sloppy jurisprudence. In a small, Veteran friendly judicial system tailored exclusively to Vets by “Vets” (and I surely use that term lightly), one would think this is a slam dunk. We are already afforded many rights denied to normal folk. The benefit of the doubt is the most well known, but there are many others. With those added protections in mind, it never ceases to amaze us to witness the audacious behaviour accorded Vets by their own Administrators. The Court, since 1989, has seated us front and center, allowed us to observe how poorly we were treated prior to their inception and how it persists as an ongoing affair with no end in sight even today.
Either the BVA is not attracting the requisite talent, judicially speaking, or the quality of the law school graduates drawn to this discipline is dismally sub par. The number of CUE claims surfacing over old decisions is rising as is their success rate. The reason? Failure of the Board to explain their denial clearly in the Reasons and Bases section. Yes, there are procedural defects galore, but this wins hands down. Another salient reason is we are all getting older and have time to dust off those old denials and recognize the injustices.
I expect we will see a flurry of panel decisions right before the 31st in an effort to make the Court look more productive. In contrast, 1991 yielded 118 panel dispositions, some of which are still cited today. EF, Hatlestad, Karnas, Littke, Manio, and Wilson are just a few notable ones. Most well known and cited in virtually every Veteran’s appeal is the right accorded us in Gilbert vs. Derwinski –the benefit of the doubt. If the Court could do that in its infancy, pray tell what prevents it from being faster than a speeding bullet? More powerful than a locomotive? Able to leap tall buildings with a single bound? I hesitate to venture an opinion. It’s above my pay grade.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
