CAVC– PACHECO v. SHINSEKI- I FORGOT WHAT IT WAS I WAS ARGUING

Rarely, in my limited five years roaming the legal galleries, have I ever heard  stark fear and an an almost constricted throat flailing for words.  Deborah A. Hoet, Appellate Attorney for the VA Secretary via the Office of General Counsel (027), reaches this uncomfortable position when Judge Davis calls her a liar and says Massie v. Shinseki (2011 F.3d) says nothing about the phrase she is claiming it does. BUSTED blowing smoke up their asses. Tape @ 29:00. Judge Davis doesn’t let this pass unnoticed. No sirreee. He then asks  her to explain in clear words why 38 CFR §3.157(b)(1) should not be read as normal folks read it, but instead, should give deference to the VA Secretary’s misshapen pretzel logic where “or” here on November 6th, in the year of Our Saviour can mean “and” (conjunctively) but the rest of the time, in any other like phrase anywhere else in the WHOLE 38 CFR, “or” will revert back to the normal disjunctive meaning we all normally associate it with. At that point, to gain time, she pauses with the vapors, claims she’s lost her place and benignly asks ” I’ve lost my train of thought. Would you please repeat the question?” 

38 CFR § 3.157(b)(1):

The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized; but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established…….. or……….. when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.

Paul N. Schoenhard of Ropes and Grey LLC in DC, finally leapt into the breech for Antonio Pacheco of Las Vegas, New Mexico on July 30th, 2013. Antonio probably got the royal treatment by the local VSOs until it came time to go up to the big house at 625 Native Americana Ave. NW. There, he unexpectedly encountered the vast difference between a National Service Officer and a Juris Doctorate. He also pleasantly discovered Ropes and Grey answers their phone and he was able to have long, meaningful chats with Paul. This is what you get when you have an attorney.

Antonio has been filing and losing since 1974 because VA has been playing him like a fish on. New and material evidence to Antonio’a mind,  is a new doctor’s report that says the reason his right leg goes numb and he falls down a lot  is because of the injury he had in the war in 1943. VA disagrees and says “Mr. Pacheco, all your records were very conveniently destroyed in the July 13th, 1973 conflagration at the NPRC in St. Louis. We need something from 1943, not 1995. Unless and until you can come up with some of those charcoaled records, you’re plumb outta luck.” Except they don’t say it that way. They merely tell him it isn’t N&ME and therefore insufficient to reopen his claim with. They also take about 8 years to say it each time. Remember, VA can play the semantics game all day long and fake out simpleminded Vets from Las Vegas, New Mexico. On the other hand, when the legally challenged among us finally armor up and arrive with a shield bearer, VA’s arguments suddenly turn on what the meaning of “is” is. On November 6th, it turned on what the meaning of “or” is. VA wanted to have it both ways and no ways-and assuredly not Mr. Pacheco’s way. Ms. Hoet even politely told the Judges not to worry their pretty little heads because everybody has a hard time understanding all these silly rules and to just listen to her explanation of what “or” means in 3.157(b)(1).

Mr. Pacheco’s claim actually is more a discussion, also, of the definitions of §3.156(c)(i) as in “Service records that are related to a claimed in-service event, injury, or disease.” Here’s a great informal plea for help. Antonio’s pro se plea In 1974, the majority of the present day construct for this was housed over in §3.400(q)(1)(ii) and certainly didn’t comprehend the Joint Services Uniformed Records Research facilities. In 1978, 1988 and again in 2008, the NPRC reconstructed and  associated enough records to substantiate Mr. Pacheco’s claim. As such, these are 3.156(c)(i) records- pertinent even if they don’t mention him by name. This case reaches a tipping point when it can’t (or won’t) be determined which records precipitated the win. VA is adamant that it sure as hell doesn’t permit getting into the DeLorean and firing up the flux capacitor back to 1974.

Mr. Schoenhard makes an excellent case for § 3.156(c)(i) as well as the definition of “medical records” in § 3.157 (b)(1). You see the pension wrinkle in there where the VA raters refused his claim in 1974 for compensation but gave him a pension. Murphy’s first Law is immutable. No good deed goes unpunished. VA should have never given him the pension if they wanted to maintain the high ground. What they should have done legally, was to stand pat like they normally do and refuse to give you anything whatsoever.

The whole enchilada synthesizes finally on the tape at 35:15 when Ms. Hoet actually has the gall to interrupt the Judge.  Then Judge Davis says Huh? Okay- “So why shouldn’t we look at this and say gee, if  the Secretary means what he says, he says it in plain English, then why shouldn’t we imply it?” Ol’ Debbie goes into Freeze Frame. Will Gunn didn’t tell her she’d have to defend 3.157(b)(1). A long pregnant pause of about 10 seconds goes by while she does the 1000 yard stare and she finally comes up with “Ah, ah. Can you give me an example of something I can use to defeat your logic with? I’m sinking here. Throw me a life preserver.”Judge Davis readily complies (with Henderson v. Shinseki (US)) and then asks again. Ms. Hoet takes another 45 seconds to reread (b)(1) and finally goes into stuck on stupid. ” Your honors, the Secretary disagrees with your construction and interpretation…” It’s pretty obvious she’s using the Appellee’s brief to crib from and has nothing to answer with.

With a few minutes of rebuttal left at the end, Judge Davis turns to Mr. Schoenhard and asks him, based on the fact that Debbie has now put all six rounds of her service revolver through the bottom of the Secretary’s response boat, if he actually thinks he can improve on Mr. Pacheco’s oral briefing before she disappears below the waves. Paul dutifully steps up to the podium and cements his argument even though he’s already won. Great sotto voce theatre.

This is also a lovely example of the nonadversarial Fenderson ratings dance where they fight with you until you finally go on to your just reward while waiting for little, inconsequential things like effective dates, Aid and Attendance and some of the other mundane things like SMC M. A word to the wise. Begin early. Antonio’s 93. He started forty years ago.

The link is to the Veterans law Library widget above. Go down to the Nov. 6th, 2013 CAVC oral arguments item labeled Pachecho v. Shinseki. We’ll probably see a decision out of Judges Davis, Bartley and Greenberg very soon. I look forward to this. I am inordinately fond of  §3.156(c) precedential decisions. It is one of the last bastions of VA’s intransigence toward Vets. With the inception years ago of JCURR’s forebears, we’ve come a long way. Jurisprudence on this had been virtually nonexistent until the inception of the Court of Veteran Appeals in 1989. It’s turning into a gully washer. And a warm thank you to Ms. Deborah Hoet for moving the VA’s goalposts back about 40 yards. Should you look up tongue-tied in the dictionary, there will inevitably be a picture of Debbie there soon.

As a postscript, I must add that poor Debbie was like a happy smiling guppy in a aquarium full of grinning pirhanna. It reminds me of The Walrus and the Carpenter by Lewis Carroll. Judge Davis and Judge Greenberg being the prime actors.

“It seems a shame,” the Walrus said,
“To play them such a trick,
After we’ve brought them out so far,
And made them trot so quick!”
The Carpenter said nothing but
“The butter’s spread too thick!”