CAVC–George v. Shinseki (2011) SJD–Telling Fibs at the Big House

Posted on September 27, 2011 by asknod

This is an illuminating case for several different reasons.  Veterans with HCV have been availing themselves of our limited resources now for three years and we have never illustrated what happens when you get caught stretching the truth up at the “Big House”. This is a wonderful example even though it is a single judge ruling. Gentle Veterans with real morals would not need to search this decision for useable info anyway. 

     Neatly summarized here is the case of one Robert J. George versus his nemesis, Gen. Shinseki.  Old Bob, here, is attempting to pull the wool over Judge Lawrence B. Hagel’s eyes. Don’t ever try this at the CAVC and most especially, don’t even try it on any judge with the name LAW in his first name. 

     Bob filed for six items in April of 06, among them Hepatitis. He didn’t submit much more than the Risk Factors Questionnaire. Yep. No nexus or any other supporting records. Just that dogged male determination we are so well acquainted with-Onward through the mental Fog! Full speed ahead! VA denied that November and he filed his NOD. Subsequently, in March of 07, he was sent a letter setting up a C&P exam. He claims he never got his 2007 notice from the VA to report.  Nevertheless, he didn’t complain of this in his NOD. When the SOC was issued stating the same thing, he still never murmured any disagreement with their assessment of the posture of the denial. In fact, he never even raised the subject in his Form 9. The BVA made short work of this and put a fork in it. He dutifully filed his NOA and marched on up to D.C.

 

   0 hour was 9 A.M. Thursday, February 24th. Judge Hagel properly deduced that if old Bob had never received that scheduling letter and missed his Dog and Pony show, he sure would have pissed blood to prove it before he ever got up to the Court. He had ample opportunity at the AOJ and again at the Board. He politely let Bob off the hook on whether he was lying about it or not. An impolitic judge might not have, but the President always appoints judges with more than just strong credentials. Fortunately for Bob, this saved him a lot of face. Now he can blame his law dog, Jeany C. Mark, Esquire, for the inconvenient, incongruous facts. Such is life.

 

     At any rate, here’s what happens when you “disremember”:

 GeorgeRJ_09-3294

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COVA– Littke v. Derwinski (1990)–Original Duty to Assist

Posted on September 27, 2011 by asknod

In our continuing series on Oldies But Goldies, we were researching where a completely new concept of VA law originated on evidence and remembered this gem.

Mr. Harold E. Littke, although the decision doesn’t mention it, was probably a Veteran of the War to End All Wars.At 57 years of age, he put in a claim for IU due to a lot of aches and pains. He was already rated at 20%, but hadn’t worked for 5 years. At his D&P (that would be the Dog and Pony show)exam before the VA, he was miraculously pronounced good to go for employment that didn’t entail sitting or standing for long periods of time. Yes. That’s pretty much what they said.

The veteran also informed the BVA that his recent X-rays taken revealed marked deterioration in his condition and that he had requested an examination by the VA.

In affirming the rating board’s decision, the BVA found that although the veteran’s disabilities did limit his occupational opportunities, they did not preclude him from engaging in ordinary work which did not entail extensive physical exertion. The veteran now appeals to this Court, seeking a reversal of the BVA’s decision. Under 38 U.S.C. § 4052 (1988), this Court has jurisdiction to hear this appeal. (Littke v. Derwinski )

Now, for the newcomers to VA law, this is the scenario. For as long as time can be remembered up until 1988, the BVA was THE final arbiter of the law. The VJRA Act of 1988 created an Article 1 court to hear Veterans appeals from the BVA and allow them to be reviewed by the Federal Circuit. The VA and the BVA did not take kindly to this trespass on what had traditionally been their turf. They blithely continued to make the same errors and the Court of Veterans Appeals (COVA) began their new job cleaning house and rearranging the legal furniture. Mr. Littke had the pleasure of being one of the first new guests the Court entertained.

The Court discovered numerous errors regarding the proper collection of evidence and instances where the BVA ignored the Veteran and never sought highly probative documents which supported his contentions for IU. His D&P show was a complete failure and violated several important tenets of VA medical evidence collection. The Court expressed their displeasure at the cavalier attitude the BVA accorded Mr. Littke and the poor legal reasoning behind their flawed decision. They were sent packing and told in no uncertain terms to try again- correctly this time.

We can assume Mr. Littke was granted that for which he asked because one does not see his name arise in the legal calender   anywhere after this:

Here I might add that we are starting to see this same attitude surface anew. It’s an ugly development and doesn’t bode well for Vetkind. The VASEC must always remember he represents the Vets first, not his government. Apparently he has dyslexia or misread the Mission Statement issued byLincoln: “To care for him who shall have borne the battle, his widow and his orphan child.”

Littke is attached here:

Littke_89-68

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CAVC–Clemons v. Shinseki (2009)–Not an M.D.

Posted on September 27, 2011 by asknod

VetCourtAppealsPromoClemons v. Shinseki is a marvelous piece of work. I’m sure Eric the clueless wasn’t entirely enthralled with the outcome, but that is neither here nor there. Bill Clemons simply reinforces Espiritu v. Derwinski from our point of reference.

Mr. William N. Clemons was a Squid and a participant in the Korean “Misunderstanding”. He served aboard the USS Rochester from 2/52 to 9/ 53.  They stored some cadaver popsicles in the ice box on board and this had a deleterious effect on poor Mr. Clemons’ brainbox.  In 2002, nearly two score and ten years later, he filed for PTSD reasoning that that was probably what he suffered from. He didn’t much care what the name of it was. He knew he had a problem and asked VA for help with it. Utilizing their four dimensional Ouija Board techniques, the VA fiddled with it for 4 years and finally came to the conclusion it was not PTSD. Silly Billy had filed for PTSD and they had determined he had a schizoid personality disorder. Because he had not claimed this, he was not entitled to it. VA’s theory was simple. “Start over with a new claim, Bill”. Mr. Clemons wasn’t going to be rolled that easily. He dutifully filed his NOA and set about remodeling the kitchen patiently for three years.

2000px-Rubik's_cube.svgIt should never have had to have been appealed that high and when it arrived, the Justices started examining it like a Rubik cube. The General immediately went into full pit bull mode and said Mr. Clemons didn’t deserve to be there as he didn’t suffer the claim he was appealing (PTSD), and the illness he did have hadn’t even been decided yet ( schizoid personality). Therefore, absent a claim to appeal, the Court had no jurisdiction to hear it.

Mr. Clemons, on the other hand, patiently explained there was, and had been, only one claim. It certainly wasn’t his fault that he wasn’t a licensed headshrinker capable of diagnosing his problem. He had come to VA, hat in hand, and intimated that his head wasn’t too tightly attached anymore. In spite of his thoughts on the subject, he was putting himself in VA’s able hands and letting them figure it out.

The Court had to decide first whether they had the right to hear it. If there were two separate claims, then it was Goodbye Mr. Clemons.  Displaying remarkable insight, the Judges rightfully reasoned that Mr. Clemons had one claim and one only. Perhaps it was multifaceted, but it was still basically one claim.

About this time the General had a pow wow with his people. They realized the futility in continuing to blow smoke up the Justices’ asses. He then approached Mr. Clemons and allowed as how they probably might oughta ask the Court to issue a Joint Motion for Remand (JMR). The VA would call this a reasonable accommodation on their part. Mr. Clemons wanted a rapid resolution to this, smelled victory and agreed wholeheartedly.  Unfortunately for the General and Mr. Clemons, the Justices now had a death grip on this doggy bone and were loathe to relinquish it.

After much examination, they decided to clarify the claim for the General on the off   chance he still didn’t get it. Instead of a simple JMR, they explained that what Mr. Clemons had was unarguably one claim only, not several inextricably intertwined ones. As such, the VA was instructed to send it all the way back down to the RO and basically start over with a new adjudication based on the premise that the mental trauma Mr. Clemons experienced in 1953 was either an anxiety order or a schizoid personality disorder. He had been diagnosed with both by VA’s finest and they had made the added mistake of saying that it was directly related to the popsicles on board the USS Rochester.

In 1993 Espiritu v. Derwinski was decided. It held that a Veteran, absent any formal medical training, was not capable of making decisions medical in nature. This was certainly a valid holding and no one found fault with it. Layno v. Brown (1995) expanded on this by saying a Vet was capable of testifying as to those symptoms he could ascertain via his five senses. Decisions following this were similar and expanded only the circumstances but not the underlying jurisprudence.

When Mr. Clemons entered the arena, the General granted him medical authority to determine his disease and then held him accountable for his own misdiagnosis. In the General’s mind, VA had accepted Mr. Clemons’  explanation for his ills at face value. They could hardly be held to account for this unexpected turn of events. And being the stand up guys they were, well shoot, they were more than willing to start a new claim for these other, recently discovered disorders. Of course, there would be no discussion of an effective date earlier than 2009.

The Clemons Court was not entirely finished with the General, however. They reasoned that just as a Veteran is ill-equipped to make decisions medical in nature, the blade cuts both ways so that a lay claimant cannot be held to a narrowly claimed diagnosis – one he is incompetent to render when determining what his actual claim may be in the first place. This is Layno and Espiritu 180 degrees out of phase.

I’m sure the General wasn’t expecting this.  He thought he had arrived with an airtight case. When faced with Pandora-like reality, he tried desperately to retreat with a JMR.  What ensued were seven additional pages of decision that created more favorable jurisprudence for Veterans in their fight for justice:

Rather, the Board denied the claim because the appellant’s hypothesized diagnosis–one he is incompetent to render–proved incorrect, instead of confronting the difficult questions of what current mental condition actually existed and whether it was incurred in or aggravated by service. The Board made no affirmative finding as to the nature of the appellant’s condition, it only observed that the appellant was not diagnosed with PTSD.  However, because the appellant was reasonably requesting benefits for symptoms of a mental condition he was not competent to medically identify, the adjudication of his claim does not end in the face of currently diagnosed mental conditions that are different from his lay hypothesis in his claim form. It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant.  The Board should not limit its consideration of the claim based on the appellant’s  belief that he suffered from PTSD, something he generally is not competent  to render in the first place.  (Clemons v. Shinseki)

This always brings to mind the old saw “Be careful what you ask for”. Ladies and Gentlemen Vets, I give you Mr. William N. Clemons N.M.D. (Not a Medical Doctor):

http://www.uscourts.cavc.gov/documents/Clemons-5581.pdf

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COVA–Cartwright v. Derwinski(1991)–In the beginning…

Posted on September 27, 2011 by asknod

      This is a post about the early days of the COVA. The decision is still quoted and cited so I decided to put it in to illustrate where our unique law came from.  

In our dissertation on  Gilbert v. Derwinski (1990), we discussed the ramifications of early law and the Court’s need to create as much precedence vis-a-vis VA law in as short a time as possible to adequately resolve Veterans’ claims in the new court. Following on the heels of that decision was Cartwright. In terms of precedence, it would prove to be earth shattering for Veterans’ claims in years to come. To prove its enduring ramifications, look no further than current decisions to see it cited again and again. Certainly, there have been follow on decisions that reiterated the same principle, but Cartwright continues to be the lighthouse on the hill.

ClydeA. Cartwright, Jr.  first applied for benefits a month after discharge in April of 1946. Unsurprisingly, he was denied. Keep in mind that there was no superior tribunal (court) to the BVA at that time and any denial was the end of the road. Following creation of the COVA in 1988, he returned to reopen his claim. Again he was thwarted with a denial. However, this time, by law, the BVA (and by extension the VARO) was required to explain why he was denied and discuss the evidence pro and con that led them to this decision. This denial illuminated a bad habit the BVA had engaged in for years and years. That is, the habit of discounting any lay testimony by Veterans as having little or no evidentiary value if unsupported by military or medical records, had been the modus operandi for so long, that the BVA was disinclined to change their ways. The VA went so far as to routinely characterize it as a Veteran’s “contentions” as if they were motivated by greed and dishonesty.

The new Court, in an effort to curb this propensity, decided to use Mr. Cartwright’s appeal as a vehicle to right this wrong:

     In its decision, the Board wrote, “[t]he veteran’s contention that he was treated continuously for asthma from 1946 to 1962 is not sufficient to establish that which has not been clinically  documented.” We surmise from this statement that the Board believes that lay evidence alone cannot prove service connection, but that service connection can only be established through medical records. This constitutes error. Nowhere do VA regulations provide that a veteran must establish service connection through medical records alone. Cartwright, supra.

Actually, the Court also said that absent this egregious error, they would still have remanded Mr. Cartwright’s appeal because the BVA had failed to  provide an adequate statement of reasons or bases to support its factual findings. This became a tripwire to the BVA’s continual attempts to give short shrift and even shorter explanations for denying claims. Prior to this, Veterans were left scratching their collective heads, as were their lawyers, every time the BVA announced its findings. Finally, they were being taken to task for their habit of  denying without explaining cogently what the reason for the denial was.

Andy Warhol, the iconic painter of 70s fame, once opined that every person would attain fame for 15 minutes of their life at some point. Mr. Cartwright has exceeded that by several decades of jurisprudence. The reason is simple. The BVA apparently still can’t get it through their thick skulls that in order to deny a Veteran’s claim, they have to give a reasoned, well thought out rationale for their decision based on all the evidence, both positive and negative. Focusing on just the negative, or failing to address the positive frustrates judicial review by higher courts. This is so embedded in law, and VA law in particular, that one would think it it would have become a rare occurrence. One would be fatally mistaken to assume this. Quite the contrary, it is one of the most cited reasons, even in today’s legal arena, for Clear and Unmistakable Error (CUE) claims. The continuing prevalence of this error is disturbing for any number of reasons. Can it be that they do not teach this precept to lawyers in law school? We won’t burden ourselves with that concept today. We are just delighted that Mr. Cartwright appealed his decision and the Court righted what was unarguably a slippery slope for Veterans prior to his entering the legal arena.

Of note, we would like to point out that when a Vet submits a nexus letter in support of his claim, the VA is fond of holding it up to the very same legal standards they are so frequently indicted on. How many times have Veterans read that their nexus wasn’t probative because the doctor had not offered a “reasoned, cogent argument” to explain why the Veteran was entitled to service connection for his injury/disease? It’s always satisfying to read about a Judge getting a DUI. It proves we are all human and should be held to the same legal standard.

Clyde A. Cartwright, Jr., a grateful nation of Veterans thanks you profusely for your perspicacity in the face of what must have appeared to be insurmountable odds…

Cartwright,  at three pages, is one of the shortest opinions ever written . However, it is unarguably well reasoned and well written despite its brevity. A finer, more probative decision has rarely been written in so few words.

Attached below is the PDF.

Cartright_90-28

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CAVC–Harvey v. Shinseki- ORDER (And Be Quick About It)

Posted on September 27, 2011 by asknod

    

While we here at Asknod rarely involve ourselves in VA Policy, we are starting to observe a sentiment emanating down from the Court to the BVA, and, by extension, its minion, the AOJ.

The Court is a deliberative body and weighs the law in its determination of our claims. Very simply, if the Board has met its legal obligations, the ruling is affirmed. When the Secretary’s position is predicated on defective reasoning and improper legal interpretations, he is overruled and the claim is remanded down for a proper decision based on the Court’s identification of the discrepancy. Occasionally the Court will discover a whole new vein of rights that apply to the Vet that have been overlooked for decades. This is cutting edge precedence. If the Secretary’s position is too far off base, the Court will reverse the offending decision and issue a decision to the contrary in no uncertain terms. This is usually reserved for cases where precedence has existed for a decade or more and the Secretary boldly goes where no VASEC has gone before.

And then there is the power of the Court to order certain things to happen. A remand is a form of a Court order to the BVA to reconsider, remand to the AOJ or write a new decision dictated by the Court. One does not diss the Court. That’s simply bad form. One ignores the dictates of the Court at his own peril. Similarly, reinterpreting the Court’s order to expeditiously accomplish something with a “I’ll get to it when I get to it” attitude will create ill will between one and the Court.

The Court order we are examining here sets no legal precedence. What it does do is extraordinary, though. The Court, in a panel order, has just announced that it is fed up with the continuing shenanigans of our current Secretary and his two immediate predecessors. Finding him in contempt of court for not one, but three egregious errors, they have chosen to sanction him with a monetary fine. That will, of course, simply be deducted from the next claimant’s compensation package. No physical or financial opprobrium will befall the VASEC, but the ignominy of  the action will sting for quite some time. It’s akin to Willie Clinton’s impeachment. No more cigars and blue dresses.  More importantly, its the Court’s way of recognizing a pattern of misbehavior and finally putting their collective foot down.

The Court awarded $11,715.49 to the petitioner, Cleveland D. Harvey in costs and attorney fees. Additionally, they hired some of their Law Dog friends in to observe the proceedings and boo at the proper moment. This  group is called  the Amicus Curiae or the “Friends of the Court” in our stilted Dick and Jane speak. They were awarded $7,879.31 because, hey, they showed up every day and everyone knows Tanqueray martinis and lunch in downtown D.C. are not cheap.

So, everyone got what they wanted except Gen. Revered Leader (USA, retired). Mr. Harvey got closure, but no extra dollars. Mr. Harvey’s attorney got way less than he asked for, but gets to bask in the glory of 15 minutes or more of Warholian fame in the legal world.  The Veteran we cannot introduce you to, as we know not his name, is the one who will end up screwed out of time and money due to his claim being put on hold to clean up this foreseeable mess.

Meet one very upset pissed off Panel of Judges (per curiam):

http://www.uscourts.cavc.gov/documents/Harvey_10-1284_published_opinion_1-25-2011.pdf

Funny thing was, VA didn’t owe him any more money. They just strung him out and didn’t tell him that. Well, they do now.

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CAVC–Mayhue v. Shinseki (2011) Attempted Horsetrading

Posted on September 27, 2011 by asknod

 This decision came out several days ago and caught our eye here at the Nod site. The findings aren’t earth shattering, but do illuminate a regulation that is now starting to get more attention.

      Vets may remember that we started talking about how hard it was to reopen an old claim that was not appealed several years ago. We illustrated the traditional arduous route via the CUE path, but also discussed the less traveled road of 38 CFR § 3.156(c). This regulation permitted the Vet to recoup his earlier effective date for service connection with the submission of existing service dept. records which had never been associated with his VA C-File or his military records. If the records were relevant and instrumental in winning his claim, then the date of his original claim became the date of entitlement. This precept has always been in the regs. but was rarely employed. Shortly after this epiphany Vigil v. Peake was decided in 2008. We had no hand in this as the case was already in the CAVC pipeline when we started mentioning it. Nevertheless, it did vindicate our musings on the viability of this defense.

      The VA has sought to narrow the scope of the regulation by emphasizing whether the records were “relevant” to a new decision and if the case could have been decided without their benefit. VA has even gone so far, in some cases, as to question the bona fides of the new evidence, implying it was manufactured to help the claimant prevail. With new regulations concerning PTSD and the added capabilities of the internet, finding old evidence to support one’s claim is becoming markedly easier. This doesn’t bode well for VA’s pocketbooks.

     Considering the history of the Veterans Administration and their supposedly pro veteran stance to grant us that which we are entitled to by law, they certainly spend an inordinate amount of time denying the same. This dichotomy is even more aggravating to those of us who have filed honestly and in good faith only to be denied again and again. Often this is caused by poor record keeping or worse- no record keeping. 

       Mr. Samuel L. Mayhue served honorably in combat in Vietnam during his tenure with the US Army. He filed his claim for PTSD in 1994 and was (gasp) denied. He had failed to report for a exam to confirm his claim. He finally did so later in 1995, but was denied yet again. This denial was based on the fact that VA couldn’t verify his stressors, ergo no dough. Dreambucks. Wishwampum. Mr. Mayhue was very disheartened and did not appeal his adverse decision. We’re almost all guilty of that stupidity if we’re 60-ish.

     In 2000, the combat veteran attempted to reopen his old claim and submitted some new lay testimony. VA denied his request saying he hadn’t submitted new and material evidence that would permit this and that he hadn’t returned his stressor questionnaire. He dutifully did so shortly thereafter and was greeted with yet another denial in late 2002. This time the rationale was that his statements and the info he supplied couldn’t be corroborated. In November of 2003  Mr. Mayhue opted to fight and filed an NOD. I suspect he had had it up to here with this highhandedness. After all, these jokers hold all the cards and researching stressor claims is virtually impossible for the Vet to accomplish.

     Finally in March of 2005 the USACRUR found enough info to support his claim and he was given a 50% rating the following month. Well, think about this. You’ve been screwed for 11 years and then VA finally gives you some bread and a glass of water. No. Make that half of a glass of water. Sam filed another NOD and said back the boat back up to the dock, Gilligan. He wanted his earlier effective date of 1994 (rightfully so) and a TDIU or a 100% schedular rating. VA disagreed and he lost on appeal to the BVA. Which brings us up to 2011. Imagine, gentle reader, investing 16 years into this project off and on only to be handed $609/mo. (or $669/mo. if there was a Mrs. Mayhue) from a grateful nation. Quite the insult in my mind. 

     Enter the Court. The VA was once again taken to task for their arcane habit of  misinterpreting the regulations and misconstruing the legal filings of Mr. Mayhue. The BVA had decided that lay testimony supplied by Mr. Mayhue was not relevant as envisaged by §3.156(c) and therefore his argument  for an earlier effective date  was moot. Further, his request for TDIU was treated as a separate claim rather than a disagreement with his initial rating. That alone is a Bozo no-no in VAland and the BVA should have seen that one coming. Oddly enough, the VA DRO had met with Mr. Mayhue and his lawyer and tried to buy him off  in some heavy-handed horsetrading back in 2006 (after the 50% insult)by handing him a 70% rating and the TDIU. However, VA  just couldn’t bring themselves to parting with all that dough all the way back to 94. One would think it was coming out of their own pockets if he/she didn’t know any better. I have heard ex-VA examiners hold forth on the idea that raters are not so vindictive and that they never even look at what the amount of the claim might entail. Right. They don’t. Their bosses do. How soon we forget the ill-conceived Extraordinary Awards Procedure (EAP) of 2007.

      The sequel to this story is anticlimactic. The Court analyzed the evidence and noted that the VA already had everything they needed in their records to rate Mr. Mayhue for his PTSD claim in 1994. Why they denied him will probably remain a mystery to everyone employed at the VARO. It doesn’t strike us as all that mysterious though. It seems to be a pattern that never deviates except for the individual’s details. Vet files claim. Vet get denied. Vet fails to appeal. Vet comes back at a later date and files again. Vet gets denied again. Vet decides to appeal because he’s smarter(and older) this time out. Vet loses appeal. Vet goes to CAVC. CAVC discovers VA has been blowing smoke up his ass for 15 years and overturns the injustice. VA continues to fight to prevent an expensive settlement going back a number of years. Vet gets grey hair waiting. Vet finally wins just before he dies (sometimes).  

     Without further ado, gather around and listen to the Gospel according to Saints Hagel, Moorman and Lance. It’s very inspiring and the legal reasoning is impeccable, as usual.

http://www.uscourts.cavc.gov/documents/Mayhue_09-14_published_opinion_1-18-2011.pdf                                                                                                                                                                                                                                                                                                                     A grateful Nation will now bestow that which  should have given in 1994. I would excuse him if he fails to summons up a heartfelt thank you to the VASEC.
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CAVC–Buckzynski v. Shinseki (2011)–New Interpretations of 38 CFR

Posted on September 27, 2011 by asknod

 1/11/11

Hot off the presses, this was released yesterday. It is interesting and a good read , but doesn’t set any earth-shattering precedents like Groves and Vigil did.

What it does do is spank the VASEC  once again for his annoying habit of bending the regulations into yielding meanings they were never meant to evoke. To wit, the following:

In addition to looking at the text of DC 7806, the Court looks to the overall structure of the regulation for guidance in determining the plain meaning of the regulation.  See Sharp v. Shinseki, 23 Vet.App. 267, 271 (2009).  The fact that there are other, similar sections of the regulation that do specify that a disability must be limited to the head, face, and neck–such as DC 7800 itself–indicates that if the Secretary had intended to limit DC 7806 in a similar manner, he would have included such language in the regulation.  Meeks v. West, 12 Vet.App. 352, 354 (1999) (“‘[E]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole.'”) (quoting 2A N. Singer, Sutherland on Statutory Construction § 46.05 (5th ed. 1992)); cf. Russello v.United States, 464U.S.16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (internal quotation marks omitted).

This pattern of rereading 38 USC and 38 CFR and magically finding meanings like this seem to be the VASEC’s stock in trade. Like some of the new age authors finding hidden phrases in the Old Testament, he conjures up interpretations of The Gospel According to St. Victor Alpha that would make his forebears proud. The CAVC has increasingly been forced to take him to task and try to abbreviate his enthusiasm for finding that which simply isn’t there.

While we know the VASEC doesn’t involve himself in every facet of adjudication, we do know that he is responsible for deciding which Board decisions he wants to vociferously defend and which ones to retreat from. As a fellow Veteran, one would expect him to be somewhat understanding and sympathetic to our claims. We see no evidence of this to date. Quite the contrary, in fact. One would hope he would take some of this good advice being proffered by the Court and disseminate it among his legal beagles. Alas, it seems all this discourse is migrating no further than the circular file next to his desk.

Veterans are already tasked with trying to navigate a labyrinthine maze of rules and if…, then…’s as it is. Compounding this with new and innovative interpretations of existing law such that it devolves down to the Thursday rule is not only unfair, but burdensome. For all of you unfamiliar with the Thursday rule, allow me to elaborate. Once upon a war, in a country we were never in, we were required to get permission from the U.S. Ambassador in Vientiane to drop napalm. Every time. These were called Romeos- a nickname for ROEs or Rules of Engagement. This evoked many a joke at the bar regarding micromanagement of the war. One of which was the observation that he generally only permitted it on Thursdays to avoid negative press publicity in case the pilot missed the intended objective and hit friendly Hmong forces. This allowed a cooling off period through Monday for the next news cycle. The meaning of the Thursday rule has evolved over the years. It now has connotations of a rule that is eternally metamorphosing with mostly  negative consequences for those affected.

The correlation here is fairly obvious. The VASEC keeps rearranging the goalposts to suit his needs at the expense of the Vet. No sooner has he been rebuffed on one front than another is erected. This serves no one. Vets need a uniform set of rules to abide by in the prosecution of their claims. Suddenly invoking the Thursday rule to the detriment of our claims simply puts off justice to a later day. That is what this decision is all about.

Without further ado, meet Mr. Frank N. Buczynski, a proud Veteran who served ably during the War to end all Wars:

http://www.uscourts.cavc.gov/documents/Buczynski_08-3000_published_opinion_1-6-2011.pdf

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CAVC–Savage v. Shinseki 1/04/11–Post Hoc Rationalizations

Posted on September 27, 2011 by asknod

God,  I just love it when the Court tells the VASEC that reinterpreting the rules is not a defense for screwing Vets, nor is coming up with a new excuse after getting caught cheating:

The Secretary is, of course, free to amend his regulations to accord with his desired interpretation, in accordance with proper notice and comment procedures, see 5 U.S.C. § 553, and to the extent the amended regulations do not conflict with the statutory mandate of section 5103A, but he has not done so.  He may not attempt to subvert the plain language of his regulation simply by taking a litigating position that the regulation means something other than what it says.  See Auer v. Robbins, 519 U.S. 452, 462 (1997) (holding that agency positions adopted in response to litigation, or those adopted as a “‘post hoc rationalization’ advanced by an agency seeking to defend past agency action against attack” are not entitled to deference from the Court (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988))); Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action, advanced for the first time in the reviewing court.” (citing Bowen, 488U.S.at 212)).

This seems to be the legacy that Shinseki will leave the VA; not one of a fellow Vet trying to defend his brothers, but rather one who tries at every turn to obfuscate the rules or simply bend them into a new meaning adverse to the Vet. So much for our sighs of relief when he was appointed. This just emphasizes the Good Ol’ Boy club ethos. We get our money (and lots of it) no matter what and if you’re lucky and nice, we may give you peasants some.

It appears Mr. James E. Savage will see another day in court thanks to the Court.

http://www.uscourts.cavc.gov/documents/Savage_09-4406_published_opinion_1-4-2011.pdf

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CAVC–Harris v. Shinseki (2010)–No Evidence is Negative Evidence?

Posted on September 27, 2011 by asknod

This was a single judge decision handed down on the 17th- barely 2 weeks ago. It illustrates just how The VA can run roughshod over your “purported” evidence, ignore that which it pleases and then take a non nexus from a VA examiner and turn it into probative evidence against the Vet. This seems to be the most recent hallmark of our latest VASEC. Each of his predecessors had their own particular foibles they were fond of of foisting onto the Court. Fortunately for us the Court does not consist of sub par intellects. The CAVC has been able to see through the ruses of VA Secretaries over the years as they attempted to arrogate more power for themselves and engaged in mission creep. Secretary Shinseki’s dominant ploy seems to be the art of taking a defective nexus argument against a Vet and making it an affirmation of the evidence against a claim. If you feel there is an abundance of negative evidence regarding a claim, but no one with an M.D. will put their imprimatur on it, then it is non-evidence. It neither supports or refutes the claim, but rather clouds the issue. It therefore should not even be introduced, let alone be given any weight. Our Exalted Leader feels differently. This is precisely why we have the Court as our last legal line of defense. They restore calm to the process and let light in where personal feelings have shaded the outcome.

      Vets do have an excellent judicial forum with more safeguards built in than their counterparts in the civilian sector. Nevertheless the VA seems to go to extraordinary lengths to disprove claims or destroy the credibility and character of litigants before it.  Turning a “might’ve, could’ve, probably, possibly” or “it’s in the realm of belief” into a damning, concrete fact to deny a claim does not befit someone as august as the VASEC and his coterie (The BVA). As they hold themselves out to be attorneys of some repute,  it is all the more appalling to see them subscribe to this deceptive practice. They resemble that troglodyte who always made Perry Mason’s job a chore.


     Meet Mr. Ronnie Harris, a man with perhaps a few moral shortcomings in the eyes of his peers, but a moral reprobate in the eyes of the VA judiciary with no redeeming social mores. In short, someone undeserving of any help to prove his claim and thus vindicate himself. As you can see, the Court feels otherwise and made their point very clear. Mr. Harris will live to see another day in court and be able to introduce more evidence. Perhaps his new medical examination will be more supportive of his claim. 

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CAVC–Erikson v. West (2000)–Extra Bennies Bozo

Posted on September 27, 2011 by asknod

    This decision is a perfect illustrator of what occurs (or should) when the VA steps on its collective pink snake. In its rush to judgement, the AOJ and then the BVA ruled against this poor  Vet who was laid up in a nursing home. He had applied for some benefits he felt he was due through his VSO, the Paralyzed Veterans of America. The RO obliged him by loading him up with all kinds of ratings associated with SMC, Aid and Attendance,etc.


     After a while, someone noted that he was in a nursing home and the Great Takeaway began. This was followed by the “Jez, Dude. You owe us a lot of money back.” The poor Vet was so ill he probably had no idea what was going on and really couldn’t care less. He sure wasn’t spending it on a new Porsche. His VSO finally appealed this up to the CAVC and they finally rebuked the experts in the lower court. Pray this doesn’t happen to you. Better yet, keep track of what VA gives you and bank it if it looks suspicious. When they come back looking for it, they can be rather vindictive as this case illustrates. You can always throw yourself on the mercy of the court and ask for forgiveness of the debt. VA often grants this if you have the IQ of a fruit fly. If you invested it in the stock market and made thousands off it, they won’t be so understanding. With that said, allow me to introduce Mr.Gerald L. Erickson…

 
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