Veterans Claims Help

April Fool’s day at the Court?

     Before Hagel, Moorman and Schoelen, a certain appellant named William H. Heino, Sr. pleaded an extraordinary case pro se. It was decided April 11^th, 2011, just ten days after my favorite day of the year. It might have been more appropriate to issue it on the first as it is the most bizarre I have read in years. Not for what the august judges decided, but for the sheer madness that was decided by a panel of judges rather than a single judge.

     When a novel situation arises in VA law and a Vet appeals up to the Court, a panel is convened. But a run of the mill decision is usually handled by a single judge. Judges are busy people. They have to listen a lot, read a lot and occasionally dictate a long, reasoned decision for their secretary to type up. They are so busy handing out justice to Veterans that only very important law changing justice demands a panel decision.

     Mr. Heino contends he has to cough up $7.00 every month to get his high blood pressure medication. To add insult to injury, they only manufacture the tablets in 25 mg. dosage and Mr. Heino’s prescribed dose is 12.5 mg./day. This necessitates Mr. Heino take one of those pill cutter doomoflotchies and whack all his tablets in half. Mr. Heino contends he should get a break on his $7.00 a month co-pay because he has to cut the pills in half. He further argues that he should perhaps get 30 25 mg. tablets a month if they insist on charging this exorbitant amount for 15 tablets. Finally Mr. Heino argues that the $7.00 copay exceeds the actual cost of the prescription and is therefore against the law. Not that this has any bearing on the subject, but Mr. Heino is not service-connected for anything. He merely uses the VA as his pharmacy, and, for all we know, his medical plan. He is entitled to do that. He is also entitled to clog up the Court’s busy schedule to appeal for justice.

     Justice in the VA system is slow but inexorable. There are many cases that require extensive development and time consuming legal research to make sure justice is dispensed correctly. With some of these decisions, time is of the essence for medical or financial reasons. Therefore I find it difficult to believe the Court would accord a decision of this minor magnitude a 60-piece orchestra and a top slot on the New York Times Bestseller list. It will consume two sizable pulp trees for publishing the decision and the reams of copies that were preliminary drafts.  Mr. Heino will be directed to pay any withheld monies to the VA for past prescriptions. The VA Police at his VAMC will be issued a picture of Mr. Heino as a potential “probable mental deficiency”/ agitator.  All this for about $42.00 a year?  Hello? McFly? What is going on?

     I searched but there is simply no intelligent life in this thing. Judge Hagel went so far as to actually file a separate opinion concurring in part and dissenting in part.  Please sir. May I have more pulp for paper? 

http://www.uscourts.cavc.gov/documents/Heino-09-112-published-opinion-April-11.pdf 

     17 pages of decision. Did you know that Gilbert v. Derwinski (1990) which was positively earthshaking for Veterans jurisprudence, took only 19 and addressed multiple, seminal issues that will affect Veterans for many years to come, if not forever? We here believe this is a collective judicial attempt at tardy humor around April Fools day. We certainly needed something to raise our spirits and this is a good beginning.

Allow me to introduce you to one Ruth Hill Frederick. She is not the lady you would want to attempt to assault. Snatching her purse might be akin to overcoming the Gordian knot with no sword. I wouldn’t doubt she packs a ,25 calibre belly gun, perhaps a FN “Baby”.

Mr. Hill punched out on May 28^th, 1970. That date resonates with me as this FNG had just arrived in country thirteen days earlier. Mrs. Hill, Ruth, if you will, applied for DIC and was promptly granted it. In December, 1986, shortly after she turned 57, she remarried. Being an honest person like you and me, she timely reported this to the VARO. They discontinued her DIC at that point as that was how the law was written back then. So far so good. No harm, no foul.

The next seminal date was December 16^th, 2003. Congress decided to change the law to allow a surviving spouse to continue to collect DIC even in the event of remarriage as long as he/she did it after age 57.  I say he/she as I’m sure there must be the odd man or two who married a WASP or WAC. It was further promulgated that spouses who desired to obtain this DIC (who had married after age 57) had one year from the above date to register for it. That gave an end date of December 16^th, 2004. Before we venture any further, I want the reader to understand something. Receipt of DIC is predicated on the spouse having a permanent and total rating (i.e. 100%). Therefore the number of eligible spouses seeking DIC was finite in number, probably on the order of less than 20,000 by 2003. Conversely, by 2010 the number was probably less than 8,000. DIC pays about $1200/mo. or so currently.

Ruth, being a sharp woman of keen intellect, heard about this change in the law and filed for it in November, 2007.  I’m going to go out on a limb here and bet she also clipped Tuesday coupons for weekly specials at the local Safeway. At this point, I guess the gentle reader has already figured out that Secretary Grinch couldn’t leave well enough alone and had to steal her Christmas. His odds would have been better trying to take down a Brinks warehouse with $9 million inside and two drunken guards.

The Board, at his direction, turned her down on the request by reasoning that she hadn’t filed for this “in the window” before 12/16/04. But the Board made its decision on shaky ground-on the part of the law that was not codified.  They had not parsed the statute to perceive its true implications. You see, Ruth wasn’t applying for the DIC. She was asking to be reinstated as she had already technically “applied “for it in 1970 and been granted it.  Fearless Leader Erik the 1^st disagreed and refused to budge. He read the regulations, cast the chicken bones and brought in the tea leaf readers. As he signed their paycheck, they all concurred that there was only one way to read the statute.  They also reasoned that an uneducated dolt like Ruth couldn’t fathom these highfalutin’ laws and tried to blow smoke up her ass. Say this like a sheep: “Baaaaa-aaaad idea.” Ruth probably went out right about then and purchased the services of a nice young lawyer named Paul M. Shoenhard using all that money she had saved up clipping coupons. They filed a NOA and scampered on up to the Court for a date with the General in November of ought 10.

I think of the Beatles song about now: Now Erik it seems, had been smoking his greens, and proceeded to fabricate bull$hit.  Verily so. The Secretary stuck to his guns much like  Slick Willy when they brought out Monica’s blue dress with that pesky stain on the front.. He must have known at some point he was doomed. The statute was never intended to disenfranchise spouses who had qualified prior to its enactment, nor did it go to lengths to do so. Imagine the pit bull who has latched onto a teddy bear and has no intention of letting go. That’s how tenacious this debate became:

“The Secretary suggests that the universe of persons affected by this Public Law provision includes only those who previously applied for benefits.  He further reasons that if the universe of persons affected by this portion of the Public Law is only those who previously applied for DIC, then all such persons would have met the end date for submission of an application, rendering any such interpretation of the uncodified provision of the Public Law meaningless.  The Secretary’s universe of persons, however, is ill defined.  Specifically, it ignores the fact that there likely are surviving spouses who remarried after the age of 57 and prior to enactment of the Public Law who never applied for DIC prior to enactment of the Public Law.  Under the plain wording of the statute –which sets an end date for application –  these individuals clearly would have to submit an application no later than December 15, 2004, or forever lose their benefits.  Thus, the plain language interpretation is not rendered meaningless and is not absurd, as the Secretary suggests.” Frederick v. Shinseki (2011)

Without digging too deeply, it might be safe to assume the VASEC was a charter member of the Flat Earth Society. Mensa membership, however, is going to forever elude the Erikmeister, I’m afraid.

What is sad and oddly missing from all this is one simple test. Read the statute. Examine the meaning of it. Examine the congressional intent in enacting this and who stood to benefit. Using 8^th grade logic skills, one can see Congress was trying to sweeten life for old ladies whose husbands (or the obverse I mentioned above) had been injured in war. This is whatLincoln set out to do and the boys in Foggy Bottom were simply continuing in the same vein.

The Secretary, on the other hand, is trying his damnedest to reduce the number of eligible spouses. Had he succeeded, he might have saved the VA several hundred thousands of dollars until the Ruths of  America succumbed to old age and disease. Hell, it might not have even amounted to that much. Veterans of the big WW2 andKorea are the only beneficiaries and they are falling like flies unless the Secretary hadn’t noticed. Of all the hills to choose to die on, the General seems doomed to follow in the footsteps of Brevet Major General (Colonel) George Armstrong Custer .  The General Counsel the Secretary has at the Board (027) is either woefully uneducated or is having a communications snafu with him.  Third year legal students with any acumen whatsoever should be able to ferret out the thrust of this statute. The only other possibility is that the Secretary does not serve Veterans’ best interests. How can that be?  I can almost hear Tim Allen doing his trademark “Aeugh?”

I’ll let you be the judge on this one. Is the enemy of my enemy my friend? Not if he’s a former General, apparently. I apologize for that. It was uncalled for. I am inured to believing VA justice is imperfect justice unless or until it arrives at the Court. JOVO

http://www.uscourts.cavc.gov/documents/Frederick_09-433_published_opinion_March_11_2011.pdf

P.S. Apparently, the Secretary is unhappy with the response of the Court as I just spotted this being heard at oral argument on March 9th, 2012. Bozo Boy  isn’t finished with Ruth yet, which is sad.

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

      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