Veterans Claims Help

 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.

 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

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

    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.

     Here’s a brand new one that has some interesting facets to it. Veterans who take their appeals up to the Court should realize that they have to have something unique to present; some theory of entitlement that has a new wrinkle to it. Simply arriving with a laundry list of  perceived slights and very little of substance won’t even get your foot in the door. Fortunately for Mr. Cogburn, he had much more. This means it provoked a panel decision rather than a single judge decision. To make a long story short, Mr. Cogburn had some verifiable issues that the Court recognized as having been overlooked by the Board of Appeals. Therefore they have vacated his denial decision and are ordering the BVA to readjudicate his claim on appeal with remand instructions on how to do it right.

Every once in a blue moon, the CAVC has to rebuke the VA Secretary and his gang of BVA and VARO lackeys for getting too aggressive in their rules interpretations. Like an Attention Deficit Disordered child, the CAVC panel is forced to make them take a time out. The Court rarely reverses decisions, preferring to set aside questionable rulings and remand them for a new decision. A decision reversed on Appeal is a declaration of gross judicial incompetence on the lower court’s ruling. Keeping in mind the Good Ol’ Boy nature of this network, a reversal is akin to your best buddy lying to you and then having his best friend, the VA Secretary, trying to help cover it up.

Mr. William (NMI) Shade has appealed a BVA ruling that was decidedly not in his favor to the CAVC (the Court). He attempted to reopen an old claim, as many of us do, and only had two of the three requirements needed to prove his claim. When he first filed in 2002, he had even less- just the proof that he had a disease in service and his testimony that he currently had it. VA gave him the wave off. In 06, he returns with two of the three, lacking only that all important nexus letter or some kind of proof to tie the claim to service. Keep in mind, Mr. Shade is simply trying to reopen the claim at this point. The VARO shoots him down based on the 38 C.F.R. § 3. 156(a) interpretation of “new and material “evidence. They claim he hasn’t presented any. He appeals this up the ladder to the BVA and they side with the VARO.

Mr. Shade wisely and timely appeals this to the Court and, lo and behold, he discovers to his joy, that the VA has not only screwed him, but potentially hundreds, perhaps thousands of other Vets in exactly the same manner for the last nine years.

To understand the magnitude of this decision, we’ll break it down into Dick and Jane Speak which is so much easier to read than Latin and a bunch of italics followed by numbers.

First of all, § 3.156(a) has been around since 1991, and perhaps earlier, in spirit if not in name. The Court was created in 1989 but had no precedent cases to refer back to other than civilian precedent. So the VA had to create a large body of VA rulings in as short a time as possible to cite for law purposes. Enter Colvin versus Derwinski in 1991. This cleared the air as to what was necessary to open a claim, reopen a claim and established baseline rules on what VA would permit and what they would deny re evidence. The Colvin test became a much used catch phrase as well as the “Bright line” rule. This is a throwback to the necessity to have some precedent when the Court was first inaugurated in 89. The Bright Line rule refers to a Federal Circuit Court decision in Chisolm v. Secretary of Human Health Services. In a nutshell, it posited that any new evidence introduced needed to produce the possibility that it would change the outcome. The Chisom decision was cited in Colvin and thus became an integral part of the Colvin Test. Therefore, if you wished to reopen a claim previously denied by the VARO or the BVA, you needed to produce 2 tangible things- evidence that was both new (never before submitted) and material to the claim (that bears directly on the claim and will aid in making a decision). The bright line rule created a third hurdle in addition to the first two:

The Court reasoned that this test was appropriate because, without its qualification, it would be possible for evidence to satisfy the criteria articulated in the regulation yet be of limited weight and insufficient probative value to warrant reopening and readjudication. Colvin thus created a test whereby newly submitted evidence must be determined to be new and material but also present a reasonable possibility of changing the outcome. (This from Mr. Shade’s decision).

Seven years later the Fed. Circuit shot down Colvin and instituted the Hodge ruling which is what we had until  2001:

The Hodge court stated that nothing more than the language of the regulation should be applied when determining whether new and material evidence has been submitted. The Federal Circuit noted that the regulation imposed a lower burden to reopen than the Colvin test, and specifically described the Colvin test as having “imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans’ benefits,” which is “strongly and uniquely pro-claimant.”  The Hodge decision thus invalidated the Colvin test while acknowledging that the application of the appropriate standard is the responsibility of the Board or this Court in the first instance. (from Mr. Shade’s decision)

Everything settled down for a while. Vets were still required to present a well grounded claim (determined, of course, by VA) until the enactment of the Veterans Claims Assistance Act (VCAA):

The VCAA was intended to “reaffirm and clarify the duty of the [Secretary] to assist a claimant for benefits under laws administered by the Secretary, and for other purposes.” One of the specifically stated purposes of the act was to remove the requirement that a claimant submit a well-grounded claim before the Secretary’s duty to assist would attach. Following passage of the VCAA, VA proposed to amend § 3.156(a) to its present form. 66 Fed. Reg. 17834-01 (April 4, 2001) (stating that the purpose of the amendment to VA regulations was to “implement the provisions of the [VCAA]”).

The VCAA did move the goal posts forward for the Vet, but the Vet was still required to provide the three Caluza elements (current disease, disease in service, and a nexus letter to tie the two together.)

VA promptly revised  § 3.156(a) to comply (in the VA Secretary’s mind anyway) with the tenets of the New VCAA:

One stated purpose of the VCAA was to lower the bar for claimants attempting to avail themselves of the Secretary’s duty to assist. During VA’s rulemaking, the Secretary responded to several commenters who expressed concern over use of the words “must raise a reasonable possibility of substantiating the claim.” There, the Secretary responded: “With respect to other claims for benefits, the VCAA provides that VA assistance is required unless there is no reasonable possibility that this assistance would aid in substantiating the claim. We believe it is fair and reasonable to apply the same standard–thatthere be a reasonable possibility that VA assistance would help substantiate the claim–in determining whether a claim is to be reopened, triggering VA’s full duty to assist by providing a VA examination or obtaining a medical opinion.” 66 Fed. Reg. at 45629 (emphasis added). Thus, VA expressed its intent to use words substantially similar to those found in the VCAA as the “same standard” for the words found in the revision to § 3.156(a). However, it is clear to the Court that VA’s use of the language in § 3.156(a) to further define “new and material evidence” is capable of being interpreted in a manner that had the opposite of the pro-veteran result that the use of the similar language has in the VCAA. As previously noted, the purpose of this regulation is to explain what kind of evidence will qualify as “new and material.” There are three operative sentences in the current version of § 3.156(a). One sentence discusses only new evidence and another sentence discusses only material evidence. The regulation then concludes with a third sentence discussing new and material evidence that uses the phrase “reasonable possibility of substantiating the claim.” This language can be read to suggest that the evidence must affect the merits outcome of the claim. The language of the regulation indicates that newly submitted evidence must meet the new and material requirements as well as the general explanation laid out in the last sentence before a claim would be reopened. This language, however, must be read in light of 38 U.S.C. § 5108, which states that, in order to reopen a claim, submitted evidence must simply be new and material. Therefore, the words “raise a reasonable possibility of substantiating the claim” cannot impose some new requirement beyond that required by the statute without invoking an analysis of whether the Secretary had exceeded his rulemaking authority. However, such an analysis is not required in this case because the Secretary has, as noted above, provided an explanation of the language in the Federal Register. That explanation is not inconsistent with the underlying statute. However, it is necessary for the Court to emphasize that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence. Rather, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.7 In particular, the immediately prior sentence discussing material evidence provides that, to be considered material, newly submitted evidence must pertain to “an unestablished fact necessary to substantiate the claim.” (from Mr. Shade’s decision)’

Which brings us to November 2^nd, 2010 and this decision. The Court has decided that the VA Secretary is guilty of “mission creep” as they call it in the military. VA decided that they knew better what the rules should be and how they should be interpreted. Kind of like Congress deciding what kind of Health Care Bill we needed and then voting it in without even reading it. This Court said, in its conclusion, that the VA Secretary was wrong, wrong, wrong:

                                                     IV. CONCLUSION 

The Court having considered the parties’ briefs and the record on appeal, that portion of the Board’s September 9, 2008, decision finding that the private doctor’s report, which provided a current diagnosis of a skin condition, “does not relate to an unestablished fact necessary to substantiate this claim” is REVERSED. Further, the Board’s decision denying the appellant’s claim to reopen his claim for service connection for a skin disorder is REVERSED and the matter REMANDED for consideration on the merits.

What this means for us Vet munchkins is simple. We no longer have to arrive with a doctor’s nexus in our hands to open or reopen a claim with “new and material” evidence. A caveat is in order here. This also means that when you arrive without said nexus, that VA is free to supply their own “medical opinion” as they so often have in the past. To say VA’s medical opinions are probative, fair and balanced, and completely free of bias requires a stretching of the truth and an active imagination. Remember, VA examiners have linked alcoholism to HCV as a risk factor, too. Do yourself a favor and get a nexus before the party starts.

Nevertheless, this is good news for lazy VSOs everywhere. Now they won’t have to help you get a nexus. In fact, they can continue to fail to mention to you that you even need one and finally be in compliance with law. I’m sure they are all breathing a collective sigh of relief in between beers.

Ladies and gentlemen Vets, meet Mr. Shade…

http://www.uscourts.cavc.gov/documents/Shade_08-3548_published_opinion_11-2-2010.pdf