CAVC– GROVES V MCDONALD–WE MISFILED IT. IT’S OKAY.

We at Asknod always troll for the blood at the CAVC and Fed. Circus. On the rare occasion that we Vets have one of our own go up to the Big BIG House, of course that warrants even more attention. Reversals and Grants of Writs of Mandamus are rare as a June bug in December. When one appears, you know it will be a good read from cover to cover. Groves does not disappoint. This is a panel decision to boot. As could be expected, Judge Bruce Almighty dissents in favor of the VA’s position.

The first thing you notice on the full docket is this puppy came to life back in January 14th of this year. In terms of a Writ of Mandamus, it’s positively antique. The panel decision is the clincher. Now, to add drama, let’s sprinkle in a CAVC remand from March 2012 ordering the BVA to reinstate an improper reduction in Mr. Groves’ 100% rating for bent brain. If the plot plan still seems thin, imagine the remand going south at Fort Eskinazi and being filed in the “Affirmed” folder thus requiring no more attention.

If that were all there were to this, it really wouldn’t amount to a hill of beans. Gene Groves did all this pro se himself. It’s a piece of work. It’s a genuine legal work product commensurate with a ten year law dog’s. It’s a mite rough around the edges but is perfectly serviceable. What’s more, it shows the indifference VA thinks it can visit on us pro se claimants and for most of the rest to some degree. Gene sent in query after query and obtained no response. Sacre Bleu! It sounds like me. Fact is, kids, I’m going to hand this to Law Bob Squarepants and he’s launching mine after New Year’s. If Mr. Groves can get this degree of umbrage with the CAVC, imagine how twenty years and then two more of the same treatment will play up at 625 Wagonburner Lane NW. I’ve sure given them and Call me Bob plenty of warning and only got the same deal-Silence or an updated 24 hour rubberstamp SOC denial of the old CUE denial.

VA is not solely the culprit. This time it happened in a bastion of respectability and decorum. Somebody at the BVA hit the wrong key… or so they say. Here’s a Whitman’s sampler of great one liners.

In response, the Secretary asserts that when mandate had issued in May 2012, “personnel at the Board mis-entered the Court’s decision with regard to the underlying appeal as an affirmance in the Veterans Appeals Control and Locator System (VACOLS) (the Board’s computerized tracking system).”

 

In an April 28, 2014, order, the Court expressed its dissatisfaction with the Secretary’s response, especially with the Secretary’s failure to explain (1) whether the claims file contains any of the eight letters that the petitioner asserts he sent VA from August 2012 to October 2013 in which he requested VA action on the Court remand; (2) whether VA received any of those eight letters; and
if so (3) what VA did after it received those letters.

 

The Court notes that copies of the letters were attached to the petition and were dated August 19, 2012; September 15, 2012; October 20, 2012; November 22, 2012; December 21, 2012; May 10, 2013; June 8, 2013; and October 24, 2013. The letters
specifically identified the General Counsel’s Professional Staff Group VII attorney involved in the underlying appeal in the litigation before this Court, the date of this Court’s decision, and the docket number of the underlying appeal (i.e., No. 09-3611), and specifically noted that this Court had set aside the Board’s determination with respect to the propriety of the rating reduction for PTSD.

The Secretary states that these letters were found either in the petitioner’s claims file or in his “temporary” folder and that
“problems VA had in handling the mail” resulted in the Board’s failure to be alerted to the need to correct the mis-entry into VACOLS by the Board’s litigation support staff concerning the nature of the Court’s holding in its March 2012 decision.

According to Brian Curry, Assistant Service Center Manager at the Waco RO, the RO does not have “a written or electronic database of mail received.” May 20, 2014

I like Fort Whacko’s defense. We put seven of them in the temp. c-file and sent one to BVA.

The RO official stated that copies of the three letters dated November 22, 2012; June 8, 2013; and October 24, 2013, which all are addressed to the “Secretary of VA,” were present in the temporary folder at the Waco RO. In addition, the June and October letters “were reviewed and placed in the claims folder which was in the possession of the Waco Regional Office at the time of receipt. The previously cited mail of November 22, 2012, was forwarded to the Board of Veterans’ Appeals as they were in possession of the claims folder at that time.”

Yeah, here at VA, we don’t actually forward the mail to the intended recipient. We put it in the c-file where everyone can find it. Or else sometimes we start a new temporary c-file -kind of like one of those appointment books down in Phoenix.  You know, kind of like a file folder and if you want to find something, it’s probably in there. But if the BVA has it, well, then we forward it to them. It’s worked well that way for over a century.

Well, there you have it pilgrims. For lack of a horse shoe and a 44 ¢ stamp the claim was misplaced. For lack of  a VACOLS technician to fix it, the Vet went unpaid. When this happens VA usually says “Wow. Good thing Mr. Groves spotted this and we could correct it. Sorry about that little two year glitch. Hope losing your house and  being homeless wasn’t too big an inconvenience. But as you know, justice delayed is not justice denied so buzz off.”

The Court, with the exception of Judge Kasold, had no problem absorbing the enormity of the VA’s, and Bruce Gipe’s chutzpah. As for Kasold, we didn’t expect him to come down on Gene’s side anyway. He’s never met a Veteran he liked. What Gipe didn’t expect was for this to turn into a “Harvey v. Shinseki” moment like back in 2011. For sheer impact, we haven’t really seen anyone get their socks rolled down over at the OCG 27 corral since Jean Erspamer had her Nehmer moment back in the dawn of the 90s.

As for taking out the financial stick and whacking Call me Bob, they wisely abstain from it. It serves no useful purpose to punish McFlougle for it. He just inherited this overflowing cesspool. General Ric had pretty much already chieu hoi’d by then as well. As for what’s hiz butt Gibson- again- he was just the caretaker. If you could come down on Gipe or Laura “Rocket Docket” Eskinazi as the legitimate culprits here and wallop their paychecks, justice might be served. Could be in a short time those two will suddenly discover a need to be more family-oriented and take a breather from work’s travails.

Gene wins the 2014 Pro Se Vet of the Year Award hands down. I can’t say I’ve seen such a well-constructed spear go through a shield so cleanly and cleave into the VA OGC-Kasold notwithstanding. I guess we have to thank our lucky stars and Greg Block that Judge Davis didn’t get this assignment or we’d be seeing a Beraud-type reversal in a year. You can be sure Meg and Greenberg are silently giving Bruce the Bronx cheer in the privacy of their chambers.

Watch the CAVC website in the next few months. I think you will be pleasantly surprised to see a new tack in Veterans Appeals Jurisprudence. We’ve been “off-track” for almost ten years since Kasold showed up and it’s time to take a far less adversarial stance towards Veterans. We are accorded many niceties in law and there is no reason to be rude, crude and socially unattractive -not to mention boorish- towards those of us who are not the brightest lights on the Christmas tree. We were bright enough to serve. We were equally foolish enough to think we bargained in good faith in exchange for those services. There is absolutely no reason why Veterans law and the deference shown us for our willingness to sacrifice all cannot flow to and fro from the Federal level.

Every salient win in this business seems to elicit a nuanced revamping of 38 CFR to fill in the holes and prevent any misinterpretations by Veterans of purported entitlements accorded us. It’s time to rise up and file, baby. This should be a wake up call to all of us. By letting the camel’s nose under the tent in 1989, VA continues to suffer one indignity after another. Call me Bob will last only as long as he doesn’t follow any evidence of VA malfeasance back to 1600 Pennsylvania Ave. SECDEF Chuck Hagel’s Christmas Present is all the warning you need in that respect.