19 Years, 7 Months and 21 Days – What Backlog?
In what appears to be the slip showing below the hem of the dress, my latest foray into the maw of the Veterans Administration reveals a disturbing attitude at the appellate level. In what most would consider to be a Veteran-friendly venue in which to adjudicate our claims, where every courtesy is extended the Veteran, I received what can only be considered a decision dripping with disdain, disbelief, unbridled anger and unwarranted opprobrium yesterday.
Allow me to elucidate. I filed a claim for Hepatitis, Tinnitus and Agent Orange in 1994. To my utter shock and dismay, I joined the swelling ranks of 85% of my compatriots. I dutifully assembled that which I should have submitted in the beginning and sat back to allow justice to right itself. Cue up the Alex Trebek music for twelve, long years please. Assuming something was amiss, I refiled in 2007. I was immediately rewarded with a rating retroactive to 1994 for my tinnitus and a $15 K check for the long overdue funds. Absolutely no explanation for the delay was forthcoming. The Hepatitis and AO disease (Porphyria Cutanea Tarda) were subsequently granted a year later with an odd quirk. The VA was disinclined to show their earlier largesse and refused to entertain the same date for these. The arguments were specious and one would think the rationale would be identical for both claims they refused to grant with a similar date to the Tinnitus. One would be wrong.
In a series of adjudications, the VA employed their ‘divide and conquer’ methodology and divorced my two claims from one another. The Hepatitis claim proceeded apace to appeal. As for the PCT, I was granted an increase in rating percentage but again, no earlier date for the Agent Orange disease. Being in the VA hospital at the time, I was unable to timely file a Form 9. Apparently that is no excuse. Tardy is as tardy does and that claim was dead on arrival at the Board of Veterans Appeals. All arguments in defense were met with the nonadversarial boilerplate “You had sixty days and you stepped on your necktie. Too late now.” Apparently equitable tolling is no longer available for inpatients. My arguments were unavailing.
Yesterday, after five years and some change on appeal, the Board of Veterans Appeals announced a decision that reflects the Veterans Law Judge, Mark Hindin, was ‘constrained’ by a Joint Motion for Remand, authored by the Office of General Counsel’s very own Emily Purcell. In it, she freely conceded the VA had been horribly wrong all these years. In a brokered exchange for giving up several other contentions, she was amenable to a complete resolution of my claims for the Hepatitis et cetera. However, semantics are the forte of the VA. No mention was made of the Porphyria even though it was part and parcel of the 1994 claim and presumably of the Joint Motion for Remand as well. Presumably is the absent operable word here.
Taking umbrage with the Office of General Counsel, VLJ Hindin sat and contemplated this Joint Motion for months trying to find the chink in the armor. He finally was reduced to semantics and I commend him for his adroit judicial acumen. Vocabulary defines the man. In his best jack-booted thuggery, he crafted what may be the most convoluted ruling in the history of the BVA . The Hepatitis claim was granted to 1994. No one could overturn that brokered agreement. However, to show his displeasure with being ordered at gunpoint to revise what he felt was an undeserved reward, he promulgated what many will view in coming years as a ’back to the future’ decision whereby a failure in 2010 to appeal properly must be carted back in time and enforced in 1994. Consider what he has fashioned. The OGC freely admitted perfidy and begged for a remand on this due to the fact that the claims were never completed. No one disputes that.
Manio versus Derwinski (1990) addressed the new Court’s authority to review old claims of this sort that were inadvertently interrupted or left to molder. In legal circles, it is called the Doctrine of Laches. Here’s an interesting take on it http://asknod.wordpress.com/2012/02/21/cova-manio-v-derwinski-doctrine-of-latches/ . Judge Hindin is of the opinion that said doctrine requires a haircut for the twenty first century. Towards that end, he artfully fenced off the Agent Orange claim from the Hepatitis claim by differentiating between the two. The hepatitis claim was legitimate because I had met all the suspense dates. The AO claim, on the other hand was judicially deficient because of my failure to file a timely VA 9. In order for this to work, it required some legalistic legerdemain.
Hindin’s legal epiphany looks good until one walks around it and views it from several different aspects. A failure to adjudicate a claim in 1994 to its natural conclusion leaves it in limbo. A decision on one facet of it in 2011 prior to a decision in 2013 that rends all of it asunder does not grant that part of it the cachet of legality nor finality. The 2013 Joint Motion, by its very terms, makes his earlier decision void ab initio. The revelation was lost on Judge Hindin. In his vindictive mind, the chicken was going to come before the egg and he intended to make sure it was legally ensconced in the decision with his imprimatur before it’s inevitable departure back to the Regional Office for a compensable rating. This will give the Rating Officer ‘guidelines’ he personally feels were res judicata.
The Veterans Administration, in its current iteration, is a paternalistic Agency with the Veterans’ best interests at heart. The sobriquet ” We want to make sure you get everything that’s coming to you” should be benign and ambivalent. Here, Judge Hindin departed from the DVA’s party line and evinced his true sentiments. Perhaps I’m naive but I look back and see nothing I said or did which would provoke this animosity.
“Although the parties [OGC and counsel for the appellant] left it to the Board to determine whether the Statement of the Case was sufficiently complete, the parties agreed that the Statement of the Case was sufficiently confusing and they could not see how the Statement of the Case would have permitted the Veteran to provide an appropriate response. The Board is bound by the stipulations and instructions contained in the Joint Motion.
As such, the Board is constrained to find that the January 1995 Statement of the Case did not comport with 38 CFR § 19.29, and therefore that the November 1994 rating decision did not become final. The appropriate effective date for the grant of service connection for Hepatitis C is March 31, 1994, when the Veteran filed his initial claim and by which time entitlement had arisen.”
Constrained, as defined in Merriam Webster’s seminal tome:
transitive verb \kən-ˈstrān\
: to limit or restrict (something or someone)
: to use pressure to force (someone) to do something
Pity poor Judge Hindin. But for the confounded Office of General Counsel (OGC) and some liberal chick with the vapors willing to cut and run at any sign of trouble, the proper edict of the Board was thwarted. Our overworked Judge has been pressured to alter his prior decision because the evidence contradicts his pet theory. This is not unique. Since the inception of the Court in 1989, a running battle has ensued over what the meaning of “is” is. As soon as the Court sets precedence, and thus guidance, the VA immediately reverts back to form with the high-handed attitude that they are not bound by these newfangled interpretations. Witness the fact that the Board still engages in the habit of making decisions medical in nature in spite of the holding in Colvin v. Derwinski lo these twenty odd years past.
By setting an exasperated tone and a resignation that he is “constrained” by his superiors’ edict, Judge Hindin exhibits the hubris of the old boy network-that entitlement thing. As he, himself, has been there since the dawn of time (originally as a lowly staff attorney), his longevity has bred contempt for the laws he is tasked with enforcing equitably. The term ‘nonadversarial’ is window dressing for ‘we’ll do as we damn well please’. A “Veteran friendly environment in which to present our claims in an informal, ex parte setting” is a pseudonym for “Precedence? We don’t observe no stinkin’ precedence!” in the twisted world of VA jurisprudence. Until they get caught and face the opprobrium.
VA complains of their backlog and blames it variously on any number of causes which include a rush to the trough by Vietnam Veterans after VA Secretary Shinseki approved new Agent Orange diseases as being presumptive. Alternately, the backlog has been attributed to a large number of Vets who are overly litigious and prone to file for everything but the kitchen sink. What is ignored is the intransigence, clearly demonstrated in my case, that arrays 500 VA lawyers against any one of us in an attempt to quash legitimate, high value claims. Nowhere is this high-handed attitude of denial of entitlement more obvious than in what transpired over nineteen years, seven months and twenty one days to one soul-me. The VA has undoubtedly expended more financially in an abortive attempt to disenfranchise me that they will ever pay out to me in compensation benefits. I’m Stage 4 with liver cirrhosis and the shelf life sticker is flashing Bingo with 500 watt lighbulbs. Nevertheless, in this new, enlightened, nonadversarial venue in which we present our claims, no stone will remain unturned in an effort to defend the indefensible. This merely substantiates the oft-heard Veterans’ plaint ” Dissemble and deny until they die”. It should probably supplant their current motto.
The 2012 decision authored by Judge Hindin purposefully ignored the evidence of record. It was never denied that I had submitted new and material evidence with my December 7th, 1994 Notice of Disagreement. It was simply ignored. Not once in that original BVA denial was it addressed. The 1994 error was due to the loquacious author of my Statement of the Case. He inadvertently included the phrase “We are reviewing the new evidence you submitted with your appeal and will notify you of our decision as soon as it is reached.” VA went so far afield in a post hoc rationalization as to imply that in order to receive this new denial, I had to complete my VA 9 before they would issue it in the form of a Supplemental Statement of the Case (SSOC). This is akin to creating a new regulation out of whole cloth. Welcome to the VA. If you cannot deny based on the evidence, baffle them with legal language. Who cares if it’s real? If the Veteran fails to appeal, VA wins and it becomes de facto law in their minds.
No one can accuse Judge Hindin of not having a fanciful imagination where jurisprudence is concerned. Void ab initio is not part of his vocabulary when an enigma of this magnitude arises. Simply put, he has ruled on this pesky problem of failing to timely appeal and complete the substantive appeal. Case closed. But, much like a CUE, or clear and unmistakable error claim, that is resolved in the Veteran’s favor, he is unable to comprehend that the goal posts, judicially speaking, have to move back to 1994. Thus the claim I reopened in 2007 is, in essence, granted on the prior filing date. This includes all the other claims- lock, stock and barrel. He would choose to penalize all Veterans, including me, ostensibly, for a retroactive decision that conflicts with his prior ruling. The concept of retroactive jurisprudence is apparently alien to him in addition to being unwarranted.
Had VA erroneously not given me my 1994 date for Tinnitus and let the cat out of the bag, we wouldn’t be having this conversation. Inasmuch as they hand-crafted one reason after another in a desperate, post hoc rationalization frenzy to artfully cover their tracks, they ultimately failed. The sour taste in my mouth now is the nonadversarial pablum they have been feeding me since 1994. Getting justice in this system is apparently impossible or highly doubtful unless or until you are prepared to appeal to a Court of Law. Your evidence is considered speculative and purely subjective until put under the microscope of true judicial review. Once the truth is revealed, VA is prone to immediately beg for a do over to refashion the noose. That this transpired in my case was inevitable. What was unexpected was the condescending, obtuse attitude of Judge Hindin that, had they given him another shot at it, he could have fashioned a better VA necktie party for me. Well, that and one last jab at trying to cement his earlier decision that my PCT claim was dead on arrival-forever.
Therein lies the VA backlog. They are simply unwilling to relent under any circumstances and they have unlimited judicial resources at their disposal to do so. Once they accept that they are required by law to be nonadversarial in fact , as well as in name,, a new compact will emerge and the antagonistic, backbiting course of adjudication we now suffer may become a thing of the past. No one can tell me that 85% of my fellow Veterans’ claims are unwarranted, unjustified or blatantly fraudulent, yet that is the current VA denial rate on all claims-be they for DIC, accrued benefits, burial flags or diseases/injuries incurred in the line of duty. I would lose credibility if I implied or insinuated VA is anything less than honorable or upright in their dealings with America’s Veterans so I won’t step on that third rail. I have been vindicated but remain an avowed skeptic. Justice was not accomplished. It was arrived at with a handshake, raised eyebrows and a nod at 625 Indiana Ave. NW on March 3rd, 2013. Judge Hindin takes umbrage with this because he wasn’t allowed any ‘nonadversarial’ input of his own. In their eyes, we are untermenschen. Get used to it.
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Posted by Alex Graham on Nov 26 2013, With 0 Reads, Filed under Agent Orange, Vet News, Veterans Affairs, Vietnam War. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.