CAVC–SJD– Hep. Ruling

Posted on September 27, 2011 by asknod

Here’s an interesting decision by a single judge(Greene) on the propriety of Mr. Curtis Scott’s  BVA decision denying SC for Hep. It seems the VARO, in its haste to deny him, overlooked two thirds of his claimed risk factors and instead glommed onto his jetgun assertions. When you fill out the risk factors questionnaire, it clearly lists high risk sexual activity and tattoos as presumptive risks. What, then, to make of the examiner’s apparent glossing over of these important facts and the ensuing denial? Thank God for the Court and their ability to analyze ALL the facts clearly. With out them, this Vet would have met the fate of thousands before him. Most Vets with claims before the Court are too young to remember or unaware that prior to the creation of the Court in 1989, an adverse BVA decision was the end of the road. With the declining quality and flawed jurisprudence being handed down there now, it is even more important that Vets properly appeal their cases to the Court to ensure they get justice.

     Mr. Scott also has been thrown a life ring by the Court. His remand allows him to submit more evidence to the Board in the first instance and sign a waiver  absolving the RO of another review. This might be an excellent time to seek a nexus to rebut the VA’s. He is being repped by one who is unarguably the best in the business-Virginia Girard-Brady.                                                                                                                                                                             At the risk of employing scatological humor (which I abhor), Ms. Virginia Girard-Brady poops ice cream and walks on water where Vets are concerned. She is a one-woman cyclone in the Court. Her win/loss record is phenomenal. Whether this is due to cherrypicking easy decisions is debatable.  I’m not a big fan of that hyphenated name business, but what the hey? Whatever it takes to win is okay with me. We see her name pop up frequently where hep. claims are concerned.
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CAVC– Shade v. Shinseki–New and material evidence

Posted on September 27, 2011 by asknod

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 2nd, 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

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CAVC–Rios v. Mansfield (2007)–Presumption of Regularity

Posted on September 27, 2011 by asknod

For years we have been telling Vets to mail important correspondence to the VA by Certified Mail, Return Receipt Requested (CM3R). There is a reason for this. I have personally had more than one service officer tell me this is a waste of time as VA can contest what you mailed to them. Not so. If you have recently received your SOC and are now filing a Form 9 Substantive Appeal and representing yourself pro se, this is an excellent method. The CAVC recognizes that you would not go to great lengths to mail the RO an 8 ½ X 11 glossy photo of your grandchild via CM3R at about the same time. It is far more likely that you blew the $6.45 on mailing the F-9. 

     That the VA received it is called the common law mailbox rule. This is an adjunct of its close relative, the presumption of regularity of the mail. If you can prove you mailed something via the USPS and you either have a witness who was with you when you mailed it, or you are really good friends (or even having an affair) with your local postmaster/mistress and they will testify in your behalf, then you can prove the common law method. If VA mails something to you (they almost never mail it CM3R) and they have your address correct, then it is assumed that you received it. So, basically Vets have to prove via receipt or testimony that they aren’t lying and VA doesn’t. Interesting concept, huh? We won’t go into why that law sucks today.

 

     Enter one Rafael G. Rios with a Notice of Appeal (NOA) to the CAVC who also mailed a copy of it to the Office of the VA General Counsel just to be safe.  He did all this through the Puerto Rico Public Advocate for Veterans Affairs (PRPAVA) who duly recorded the transactions in their books. Turns out this was a very smart move on Rafael’s part. The CAVC rules he didn’t send it, the VA Secretary jumps in and starts harping about how the PRPAVA once mailed an NOA to the wrong address in the past and that this is proof against Rafael’s assertion. Well, ladies and gentlemen, the CAVC promptly takes Mr. Mansfield aside and points out how he has the facts so confused that he should just shut up, sit down and start taking notes on what the Court is getting ready to tell him. Which he does. Smart move on Mr. Mansfield’s part.  He didn’t lose as much face this way. 

    All in all, this is a lovely decision that goes in the Veteran’s favor because Rafael was probably a Boy Scout and was prepared.  As we also mentioned, this is a perfect illustration of CYA. You, as the Vet, no matter how many times you hear the phrase “Veteran friendly environment”, should keep your wallet in your front pocket and sit in a corner so no one can get behind you. This is why this author and most of his moderator friends won their claims before the VA. We trusted no one to do it for us; we CM3Red everything we sent VA or hand delivered it and got a receipt; and we represented ourselves.  Which is certainly not to say that there aren’t some really super VSOs out there. Just because we haven’t met any yet doesn’t mean they don’t exist. Y’all believe in God, don’t you? I rest my case.

 

     So, without further ado, we present Rafael’s tete a tete with Mr. Mansfield…

 

http://www.uscourts.cavc.gov/documents/Rios_04-0354.pdf


     The part I like best is when Judge Kasold freely admits they actually lose things in the hallowed halls of the CAVC. Perish the thought! That stupidity should never happen at any level of the VA system-ever. With that admission of fact in mind, it is all the more reason to have proof of mailing to any VA entity. Forewarned is forearmed in this business. Trust us.

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CAVC– Bouton v. Peake (2008) Re: CUE

Posted on September 27, 2011 by asknod

    Here’s a decision that illustrates how CUE works. Keeping in mind that there are three ingredients needed to produce CUE, and that a manifestly different outcome would have ensued, read about Mr. John P. Bouton’s travails with VA Secretary James B. Peake.

http://www.uscourts.cavc.gov/documents/bouton-1494.pdf 

     Isn’t it entertaining how the Judges are polite as pie ,but manage to make the BVA judge look like a complete boob and the RO “ratings expert” appear about as intelligent as a sunflower?  This is a primary example of how flawed the lower echelons of VA justice are (or can be) and why it is imperative to see your claim through to the end. Oftimes, justice is delayed, but not denied in this system. If your facts and the record support it, you will win. Assuming, of course, there are no intercurrent causes that precipitated the injury/disease.

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CAVC–Fagre v.Peake (2008)–Appeal each and every claim

Posted on September 27, 2011 by asknod

 Here’s a wonderful type of decision that the Veteran will only see cited once or twice in a lifetime. Larry D. Fagre has appealed an adverse decision of the BVA. He asks for a “reconsideration” of his case and this is often done by the BVA in a panel format as opposed to a single judge decision. This also has to occur and be mailed to the proper address in D.C. within 120 sunrises and sunsets. Not one day more unless you can prove you were comatose in an ICU somewhere. The VA term for a Vet requesting an extension is referred to as equitable tolling. 

     What Mr. Fagre does not know is that the VA is preparing to pull a really neat hat trick on him. They interpret the rules and regulations a lot differently from you and me. My wife and the owner of this website will probably put a price on my head, but I go to sleep every night thankful that the VASEC isn’t a woman. Actually, that’s politically incorrect and a cheap shot. I apologize in advance. This time the VA Secretary chose to interpret the “reconsideration” clause as meaning you had to enumerate each and every item you were denied for that you wished to have the BVA Panel “reconsider”.  BVA is taking their lead from an old rule or decision (I’m too lazy to go look for it- trust me) where precedence dictated if you appealed an RO decision, you had to enumerate each issue you wished to appeal. And, God forbid, if they failed to rule on it and you didn’t catch it and file an NOD contesting it, they would claim it was dead because you didn’t complain. So, if the Vet is not savvy, legally speaking, then tough luck. You shoulda read the fine print, chump. 

     What Justices Kasold, Hagel, and Lance pronounce here  is a repudiation of the VA’s inherent propensity to promise the Vet they will make sure he is amply rewarded for his service. With a few prerequisites, qualifiers, and “except”s of course.  So our law school lesson today is list everything, every time, on every form and then VA cannot say “Yeah, well your Honor, we’re trying to give the poor Vet everything he’s entitled to, but he didn’t ASK for it specifically. The NOA (or NOD, Form 9, Answer to an SOC or SSOC) was SILENT for that subject so we interpreted that to mean he didn’t wish to appeal it. Therefore that issue is final. However, because we’re such swell guys and feel sorry for the chump, ahem, Veteran, we’ll reopen his case and take another look. Of course the effective date for financial compensation will be 2010, not 2001 when the Veteran failed to appeal the earlier decision.” 

     Get used to it. Be a Boy Scout and be prepared for this kind of treatment.  VA screws up 60% of what it does the first time and when the Court catches it, they sometimes make VA go back in time and “retrospectively” medically evaluate a Vet. Kind of like a CSI cold case reconstruction. But that is another fairy tale and not for discussion today. 

    Ladies and Gentlemen, please allow me to introduce you to poor Mr. Fagre, a true David against the behemoth VA Goliath. What you are about to read is in the nature of an ORDER from the CAVC, not a simple ruling, remand or vacatur.  In exalted legalspeak, this is akin to “Do not pass Go!. Do not collect $200. Comply with this or we’ll huff, and we’ll puff, and we’ll blow your house down.” 

http://www.uscourts.cavc.gov/documents/Fagre_07-1000_Panel_Final_.pdf

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CAVC–Barton v. Shinseki (2010)– SJD on Hep.

Posted on September 27, 2011 by asknod

This is one of those interesting reads that we love to post for you. In spite of the fact that it is a single judge ruling and has no precedence, it still is refreshing to see the judge lambaste the VLJ and the RO for their inherent stupidity regarding their adjudication skills.

Another thing the reader will find refreshing is the final realization by someone in authority that there were no tests available in 1972 to ascertain if one had Hep C. A CAVC judge has to explain this to a “ratings expert” trained in this art form. Additionally the judge has to finally ask the burning question we’ve all been waiting years to have answered. To wit, if a Vet smokes some left handed tobacco, or, perhaps has a “history” of a love affair with Jack Danials, that he somehow is more “at risk” of contracting HCV. The judge goes so far as to get in the examiner’s face and ask: “Where does it say that a Vet with a “racy lifestyle” that includes a few indiscretions without a raincoat on, is automatically at risk for HCV and therefore it is not service-connected?”.  This line of reasoning is circular. Remember, VA can say on Monday that sexual promiscuity has a very low risk percentage of transmitting HCV when you claim that as a risk factor, but on Tuesday the Vet probably contracted it from a wild, unprotected sexual lifestyle as evidenced by his venereal warts. And naturally, this all occurred after his time in service. How? Why it’s elementary VA logic, my dear reader. There was no report of venereal warts in his service medical records ergo he must have incurred them after service.

The Vet does have his work cut out for him. He is going to have to get off his duff and go farther afield to gather better internet articles in defense of his claim. The judge states as much, too. A decision on this will be interesting. I’m almost positive the VA Secretary will send this out for an IMO from the very best deniers at QTC. It will require the semantic policing by an expert English scholar as well as to get all the “not”s in the right places. When it is returned to the Court, the Vet very well may lose. If he does, I pray he asks for reconsideration by a panel and it breaks new legal ground.  Mr. Wayne R. Barton may become our new poster child if he pulls this one off. We certainly wish him all the luck in the world. He’s going to need it.

http://search.uscourts.cavc.gov/isysquery/372478c4-9864-41d5-b3a8-03021ef6e2a6/1/doc/

Ruh-oh, Rorge. Trouble in paradise. Pretty nice piece of work though, huh? Now, why can’t we get this cutting edge analysis at the BVA or RO level? Why does it always have to get to the Supreme frigging Court before someone acknowledges that the Emperor is naked and has been had by the tailor? Hello? McFly??

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CAVC–Mattern v. West (1999)–Holy Grail of Hepatitis Precedent

Posted on September 27, 2011 by asknod

This decision, decided in 1999, is something we have been searching for at AskNOD for quite some time. To wit, a decision on Hepatitis (and by extension, Hepatocellular Carcinoma) that set precedent. As you are aware, to set a precedent (or to sit a president for all of you from Chicago) requires a panel or en banc decision of the CAVC. A panel decision consists of 3 judges. An en banc decision is one decided by the whole Court- i.e. all seven judges.

While this decision is 11 years old, it in no way is out of date for judicial purposes. The meat of this decision is that the mere presence of the Vet in Southeast Asia was conducive to his contracting liver cancer (from Hepatitis). He had no seminal moment of infection, no medical records pointing to hospitalization, and nothing untoward that would set off alarms with his doctors. He simply fell ill about 40 or so years after service and subsequently died.  His wife filed for DIC and appealed all the way to the Court. She also did a very credible job of backing up her claims not only with nexus opinions from the Vet’s treating physicians, but with coherent, well posited theses on the prevalence of Hepatitis infections and HCC in indigenous SEA populations. This avenue of attack has never been used by Vets since except in unsubstantiated claims to that effect. This lady did her homework or else her attorney did. I suspect the former.

In any case, I feel it behooves the reader or any Vet considering filing to investigate this disease vector. Obviously, if the Court is willing to recognize it as a viable risk factor, then Vets should be utilizing it in their defense and citing the decision as established precedent. Any evidence you can submit in favor of your claim has to be rebutted or addressed by the RO and the BVA. If they consider this information and still deny you, you have even more ammunition with which to build your case. VA is not permitted to ignore CAVC precedent-setting cases such as this. Of further note, remember that the CAVC is NOT a division of the VA. They are a completely separate entity and often at odds with the VA Secretary and his minions. Witness this case and the ensuing favorable decision:

http://search.uscourts.cavc.gov/isysquery/3574ef27-1230-470c-bd11-19ff6e2dffbb/8/doc/

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CAVC & Fed. Cir.–Roberts v. Shinseki (2009) –Dumb and Greedy

Posted on September 27, 2011 by asknod

Imagine you’re very poor or horribly lazy (or both). Then spread a lot of time on your hands very liberally. What do you come up with? A Vet with a half-baked tale of PTSD. Meet Mr. Keith A. Roberts, a Veteran with entirely too much time on his hands and a typewriter.  This gentleman concocted a story with just enough truth in it to give it wings (no pun intended). All would have been well and he would have lived happily ever after, but he had a serious character flaw-he was also greedy.

Mr. Roberts filed for a personality disorder that metamorphosed into a PTSD claim in 1993. By 1997 he had been pursuing this for 6 years. Finally, in 1998, his claim was approved as an acquaintance (whom he claimed as a best friend) had been killed by a collapsing aircraft-thus artificially validating his stressor. The RO awarded 50% effective the date of his claim in 93. He appealed and they gave him 100% with the same date of claim.

Mr. Roberts must have had some pressing financial needs because he came back again in 2002, hat in hand, asking for an earlier date for his PTSD prior to his claim in Dec. 1993. Believe it or not, the RO took the bait and they gave him July 1992 as an effective date. Most prudent Vets (honest or dishonest) might have walked away satisfied that they weren’t going to milk this cow any further. Not so, Mr. Roberts. He appealed this date and claimed several more mental problems secondary to the PTSD and an earlier effective date again and was denied.

Mr. Roberts decided to throw Napalm on the fire and contacted the VA Office of the Inspector General (VAOIG). He complained that the RO had mishandled his claim. After thoroughly examining the circumstances, the IG determined that something was not as it seemed. They decided to spend some money and find all the witnesses to this “stressor” that Mr. Roberts claimed. You have to wonder what was going through this bubblehead’s brain. More money. Yahoo! This is way too easy. Too bad I didn’t start this sucker up back in 1970. These guys at VA are way naive.

In 2004 the jig was up. The IG (at great expense) interviewed everyone associated with the accident and nobody had seen Mr. Roberts at the scene, let alone witness him direct the rescue operation.  Apparently Mr. Roberts was telling a fib or simply “disremembered” the facts. To his credit, he didn’t claim he had been awarded the Medal of Honor.

Finally, in August, 2005, they had a Texas Necktie Party and strung him up. They took away his rating for PTSD and the house of cards collapsed. His claims for VA benefits for tobacco use, alcohol abuse, a digestive disorder, erectile dysfunction, an eye disorder, obesity, chronic fatigue syndrome, a personality disorder, a cardiovascular disorder, pulmonary disorder, and arthritis of the right knee which were secondary to the PTSD, evaporated with his lost rating. Well, come on. If he was lying about the PTSD, chances are he was lying about these other ailments, too. And besides, if the other claims were caused by PTSD and now he didn’t have it (and never did), then the other claims are dead. Mr. Roberts filed this appeal to the CAVC and felt he’d get a better shake from them. NOT. Read on and watch a master conniver at work. One has to shake his head over this. The guy had it made in the shade, but couldn’t leave well enough alone.

http://www.uscourts.cavc.gov/documents/Roberts_05-2425_published_opinion_4-23-2010.pdf

Incidentally, Mr. Roberts has several different theories on why he should be allowed to keep the shekels ($320,000.00). The Court disabuses Mr. Roberts of these notions. In addition, our grateful Nation now seeks return of those very same ill-gotten shekels.

So, kids, what can we learn from this show and tell? Steal from your friends or relatives. Never, ever steal from the government. And if you do, don’t keep coming back for more.

A sequel to this tale is in order. Mr. Roberts decided to pursue this up to the Federal Circuit Court, obviously not satisfied with what the Court had to say. He lost and is now a guest on an extended staycation at a Federal prison for a few years. When he gets out, he can start repaying Uncle Sam some of those samoles he absconded with. I’m sure they went after his assets and plucked him clean.

http://www.veteranslawlibrary.com/files/Fed_Cir_Cases/2011/Roberts_10-7104.pdf

Sometimes it just doesn’t pay to get out of bed to steal anything.

As a Post Script to this, I have added a new update that supercedes it. Please make sure you read it:

https://asknod.wordpress.com/2012/01/18/roberts-v-shinseki-a-miscarriage-of-justice/

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CAVC–Young v. Shinseki –Hold the phone- we’re not finished here.

Posted on September 27, 2011 by asknod

Last year while I was in the VA hospital lying around  watching myself die (for a whole year), I missed out on many decisions handed down by the Court. This particular one is very interesting for a number of reasons. In Vigil v. Peake (2008) we introduced you to the concept of 38 CFR § 3.156(c) as a vehicle to obtain review of prior unappealed decisions. As we mentioned, the only other path was via a CUE filing which is very arduous and fraught with legal requirements.

In Young v. Shinseki, another facet has come to light. It’s always been there, but rarely cited. Assume you filed a claim in the past and it was denied. Let’s say you filed an NOD and also submitted new and material evidence that rebutted the denial and would prove your case. If VA failed to make a determination on the new evidence (either for or against) as contemplated in 38 CFR §  3.156(b), then your claim has never been  fully adjudicated and still remains open. The only codicil to this is that the new evidence would have to prove your claim for SC.

We here at ASKNOD admire the jurisprudence exhibited by the CAVC. They continue to introduce the camel’s nose under the tent. The VA Secretary, in frustration, races from one decision to another trying to evict the camel. Between, Vigil,Grovesand Young, our esteemed Judges at the Court have provided us with precedence to help win our cases. We always enjoy reading these types of decisions as they so rarely come down in the Vet’s favor.

http://www.uscourts.cavc.gov/documents/Young-2310.pdf

One has to love this paragraph:

Generally, an NOD must be filed within one year from the date of the underlying ROdecision, and if no NOD is filed within the one-year appeal period following the RO decision, the decision will become final. See 38 U.S.C. §§ 7105(b)(1), (c). However, 38 C.F.R. § 3.156 provides a potential exception to this general rule. Pursuant to § 3.156(b), VA must consider any new and material evidence received during the one-year appeal period following an RO decision “as having been filed in connection with the claim which was pending at the beginning of the appeal period.” 38 C.F.R. § 3.156(b) (2008). When VA fails to consider new and material evidence submitted within the one-year appeal period pursuant to § 3.156(b), and that evidence establishes entitlement to the benefit sought, the underlying RO decision does not become final. See Muehl v. West, 13 Vet.App. 159, 161-62 (1999).

This, however, is the clincher (emphasis is ours)

Section 3.156(b) is intended to be a veteran-friendly provision that allows for the assignment of an effective date of the date of the original claim when certain requirements are met. 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 “provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires”). To accept the Secretary’s position that the Board correctly determined that the September 1996 RO decision was final would be to allow VA to ignore this claimant-friendly provision. It would also create the possibility that VA, by not considering evidence submitted during the one-year appeal period following the RO decision and simply waiting for the RO decision to become final, deprived the appellant of the earlier effective date associated with his December 1995 claim. This would be antithetical to the nonadversarial, claimant-friendly nature of VA proceedings.

This is also another example of the Court curbing its collective tongue and refraining from telling the VA Secretary that he must have been raised by wolves if he continues to come up with these arcane legal arguments that don’t stand up in Court. Ah. How sweet the sound of justice for Vets. Onwards through the fog, gentlemen. Vote for Oat Willie.

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CAVC– Macklem v. Shinseki– Leroy Macklem, Come on down!

Posted on September 27, 2011 by asknod

downloadImagine having a horrible legal argument, losing it before the CAVC and still winning all the marbles. I mean ALL the marbles.That’s what we have here. Mr. Leroy Macklem doesn’t have a legal leg to stand on in his CUE claim and his attorney knows he’s holding a three-day old fish. Nevertheless, because the VA is wont to cheat, misrepresent and generally try to screw you out of what is your due, they lose this one and the Vet gets what’s behind Door #3. Which happens to be Monty’s cookie jar this time and its full of VA comp. money for Leroy.

This tale involves a particularly poor piece of law (the Extraordinary Awards Program or EAP)the VA created one day out of whole cloth. Basically they woke up one Monday and decided any Vet who got lucky on an old claim that entailed mass quantities of cash needed to have a secret review to see if they (VA) could somehow overrule or shrink the size of the judgment.  Fellow Veterans can understand this. Judges and other worthy individuals who make 3 times as much as us lowly Vets on compensation deserve bonuses for saving the government so much money. In this case, in their haste to bushwhack the Vet, they ran afoul of the CAVC and end up having to pay Leroy all the way back to 1950. You read that right. 1950. Yep. That’s 60 years of back payments. You see, some chucklehead “rating expert” accidentally mailed Leroy a “preliminary” judgment rating without running it by his boss.  The CAVC says they have to honor their screwup.  We at AskNod say “Crack open the Dom Perignon, Leroy. You didn’t earn it but boy howdy that’s beside the point. You won.”

Leroy served for nine months as a groundpounder and did the Sicily Invasion/Occupation during WW 2. He had an injury to his hip from Christmas Eve several years earlier that compromised his abilities as an infantryman and this caused a premature end to his promising military career. He freely admitted it was not in the Line of Duty and all his military records stated as much. Nevertheless, he was awarded 20% for arthritis secondary to the bum hip. Leroy had surgery afterwards in 1944 and VA upped his rating to 70% in 1946, recharacterizing his injury as osteochondritis. Regardless of what they diagnosed, it was considered secondary to the 1941 NSC injury but increased in severity during service. As such, it was a “clean” rating devoid of fraud or misrepresentation.

In 1949, VA began sniffing around and looking for an out. They called him in for a C&P to determine if it had experienced Immaculate Remission as most VA-compensated injuries do. Deciding that a great injustice had been done to both Leroy and the government,  the VA opted to strip away the rating. This they did in March of 1950.

After reviewing the medical evidence from 1944 to 1949, the rating board concluded that there was “no evidence during service of any abrupt or sudden patholo[gic] developments or trauma which could be considered a positive factor [of] aggravation of the condition which was incurred prior to service”.
 

We can assume Basic Training in 1943 was a tea and crumpets affair with real creme being at a premium due to the exigencies of war. Occupying Sicily was no more than being put ashore and having to haggle with Sicilians over the exorbitant cost of  tomatoes and pasta.  Since VA doesn’t get out much and investigate what we do in the field, certain misconceptions are bound to crop up. Leroy was simply another casualty of the VA’s interpretation of what the definition of “aggravation” consisted of. Like most of us, Mr. Macklem neglected to pursue an appeal up to a higher tribunal-not that it would have resulted in any changes. Back in those days, a denial was final when the ink dried unless you were a Senator’s son.

Fast forward to 2006 and Leroy’s filing of  a CUE stating that the 1950 decision was arbitrary and a difference of opinion which did not rise to the level of a valid reason for a reduction-let alone a complete revision and retraction. Detroit’s finest quickly denied yet again and the NOD was hung by the chimney with care in hopes that the BVA would soon be there. However, the Detroit dolts took another gander at it and decided he was right.

What to Leroy’s wondering eyes appeared shortly thereafter but a mea culpa complete with a detailed proposal including all his back comp. This beat the pants off a little man in a red suit with eight tiny reindeer in Leroy’s view.

The appellant thereafter received an undated letter from the Detroit RO indicating that it had “made a decision on your appeal received on January 20, 2007.”  The letter included a schedule detailing the past-due payments to which the appellant would be entitled. R. This undated letter apparently referred to a decision review officer (DRO) decision, dated June 1, 2007, indicating that the appellant’s “[b]enefits sought on appeal are granted . . . [and] reinstated April 1, 1950.”  That decision states that “the severance of service [connection] is held to be a clear and unmistakable error.”   Macklem v. Shinseki 2010

Leroy was smokin’  Cubans up at the Big House for all of about a month before they pulled the plug. In August, they changed their tune and said the original 1950 decision was correct-sorry Leroy, we made a mistake. What Leroy didn’t know was that they had sent this back to DC for a secret cabal to formulate a way to avoid paying out. Leroy dutifully appealed.

Bad, bad Leroy M. was on firm legal ground. He pointed out he had a winner’s ticket in his hand. You can’t change the Lottery rules after you win. VA disagreed and said “Yo. You got justice. We had a BVA judge review it and he said we’re right. You lost. You had a DRO review, a DRO hearing and a BVA decision. What’dya want? Egg in your beer?”

Leroy didn’t have a legal fire hydrant to piss on. You cannot go back and relitigate what happened in 1950. All you can do is look for some egregious error of which there was none. Any CUE argument based on an interpretation of the facts is doomed. What is forbidden is screwing a Vet out of a CUE revision by using legal means that have already been determined to be illegal (the EAP).

The operative issue in this appeal is whether VA’s reliance on the extraordinary award procedure (EAP), which has now been invalidated by the Federal Circuit, renders the August 2007 SOC void and, if so, how that affects the status of the appellant’s claim. To be clear, VA committed two errors during its processing of the appellant’s claim. First, it mistakenly sent him a proposed decision. Second, in attempting to correct the first error, VA used the EAP, which has now been declared invalid. Although the first error did not prejudice the appellant, the Court concludes that the second error is dispositive in that VA’s use of the now-invalid EAP renders all VA action taken thereafter void.

In a nutshell, but for a premature letter, Leroy would never be in high cotton. The VA DRO that pulled this bonehead maneuvre was probably promoted and is now head of the Fort Harrison, Montana VARO.

Postscript:

I’m gonna go out on a limb and predict ol’ Leroy is going to live happily ever after with what little time he has left. There is a sequel to this as the VA Secretary refused to accept defeat. However, since nothing has been forthcoming from the BVA following the Fed. Circus remand, I strongly suspect Leroy is counting his shekels as we speak.

Posted in CUE, Important CAVC/COVA Ruling | Tagged , , | 2 Comments