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THE KABUKI DANCE WITH FILING A VA CLAIM

 
 

KABUKI DANCE!


T

.  The Hamster Wheel
For many years now, those who regularly represent disabled veterans before the BVA and CAVC have been using an 
wo and one half million women have served our miitary services.

 Military assault survivors often experience re trauma when they go through the government system of denials and what Diane calls the "Kabuki dance" of the veterans administration. Seeking to be restored to some semblance of what they were before, many find due to the lack of services provided at the time, they were left with lifelong problems,  scars, and symptoms. They can never be restored to how they were before they served. When they turn to the VA for help they are treated with more abuse and hurt. They join the "hamster Wheel"

As Diane says in her book " How sweet, It has a name!"


BARTON F. STICHMAN,
JOINT EXECUTIVE DIRECTOR
OF THE
NATIONAL VETERANS LEGAL SERVICES PROGRAM

BEFORE THE U.S. SENATE COMMITTEE ON
VETERANS' AFFAIRS

FEBRUARY 3, 2009 spoke of

unflattering phrase to describe the system of justice these veterans too often face:  "the Hamster Wheel".  This phrase refers to the following common phenomenon:

multiple decisions are made on the veteran's claim over a period of years as a result of the claim being transferred back and forth between the CAVC and the BVA, and the BVA and a VA regional office for the purpose of creating yet another decision.  The net result is that frustrated veterans have to wait many years before receiving a final decision on their claims.

There are at least three aspects of the BVA's and CAVC's decision-making process that contribute to the Hamster Wheel phenomenon: (1) the high error rate that exists in BVA decision-making, which delays the decision-making process by requiring disabled veterans to appeal to the CAVC to correct these errors, which, in turn, leads to further VA proceedings on remand; (2) the policy adopted by the CAVC in 2001 in Best v. Principi, 15 Vet.App. 18, 19-20 (2001) and Mahl v. Principi, 15 Vet.App. 37 (2001); and (3) the CAVC's reluctance to reverse erroneous findings of fact made by the Board of Veterans' Appeals.

A.  Contributor #1 to the Hamster Wheel: the High Error Rate at Board of Veterans' Appeals

 The most prominent fact in assessing the performance of the Board of Veterans' Appeals is the track record that Board decisions have experienced when an independent authority has examined the soundness of these decisions. 

 Congress created an independent authority that regularly performs this function - the U.S. Court of Appeals for Veterans Claims.  Each year, the Court issues a report card on BVA decision-making.  This annual report card comes in the form of between 1,000 and 2,800 separate final judgments issued by the Court.  Each separate final judgment incorporates an individualized judicial assessment of the quality of a particular one of the 35,000 to 40,000 decisions that the Board issues on an annual basis.


 For more than a two decades, the Court's annual report card of the BVA's performance has been remarkably consistent.  The 14 annual report cards issued over the last 14 years yields the following startling fact: of the 23,173 Board decisions that the Court individually assessed over that period (that is, from FY 1995 to FY 2008), the Court set aside a whopping 76.4% of them (that is, 17,698 individual Board decisions).  In each of these 17,698 cases, the Court set aside the Board decision and either remanded the claim to the Board for further proceedings or ordered the Board to award the benefits it had previously denied.  In the overwhelming majority of these 17,698 cases, the Court took this action because it concluded that the Board decision contained one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision.
 
By any reasonable measure, the Court's annual report card on the Board's performance has consistently been an "F".  But an equally startling fact is that despite a consistent grade of "F" for each of the last 14 years, no effective action has ever been taken by the management of the BVA to improve the Board's poor performance.  Year after year, the Court's report card on the Board has reflected the same failing grade. 

This tells Diane it is deliberate!!!!!!! Most complex first claims are automatically denied Diane believes because the first reviewers are real subjective and lazy!

 

 To formulate an effective plan to reform the Board and significantly improve its performance requires an understanding of the underlying reasons that the Board has consistently failed in its primary mission (i.e., to issue decisions on claims for benefits that comply with the law).  Over the last 15 years, NVLSP has reviewed over 10,000 individual Board decisions and thousands of Court assessments of these decisions.  Based on this review, NVLSP has reached three major conclusions, which are set forth below. 
1.  The Board Keeps Making the Same Types of Errors Over and Over Again

 The decisions of the Board and the final judgments of the Court reflect that the Board keeps making the same types of errors over time.  For example, one common error involves the type of explanation the Board is required to provide in its written decisions.  When Congress enacted the Veterans' Judicial Review Act of 1988, it expanded the type of detail that must be included in a Board decision to enable veterans and the Court of Appeals for Veterans Claims to understand the basis for the Board's decision and to facilitate judicial review.  See 38 U.S.C. 7104(d).

The Board has consistently been called to task by the Court for faulty explanations that violate 38 U.S.C. 7104(d).  These violations fall into several common patterns.  One pattern is that the Board often does not assess or explain why it did not credit positive medical evidence submitted by the claimant from a private physician, while at the same time expressly relying on a negative opinion provided by a VA-employed physician opinion in the first place. 

They are working on this slowly! VERY SLOWLY

Another common pattern involves lay testimony submitted by the claimant and other witnesses.  Despite the statutory and regulatory obligation (38 U.S.C. 5107(b) and 38 C.F.R. 3.102) to give the veteran the benefit of the doubt in adjudicating a claim for benefits, in many of the Board decisions that have been set aside by the Court, the Veterans Law Judge has refused in his or her written decision to assess, no less credit, this lay testimony.  The decisions of the Federal Circuit and the Court of Appeals for Veterans Claims in Buchanan v. Nicholson,  451 F.3d 1331, 1336-37 (Fed. Cir. 2006), and Kowalski v. Nicholson 19 Vet. App. 171, 178 (2005)  chronicle this refusal to analyze the validity of lay testimony. 

Sometimes the lay testimony that the Board refuses to analyze involves what happened during the period of military service.  The underlying philosophy in these Board's decisions appears to be: "If the event is not specifically reflected in the existing service medical or personnel records, we don't need to assess the lay testimony" - no matter what lay testimony has been submitted.     

Sometimes this lay testimony involves the symptoms of disability that the veteran experienced following military service.  Despite the legal obligation to consider lay evidence attesting to the fact that veteran continuously experienced symptoms of disability from the date of discharge to the present, the Board often denies the claim on the unlawful ground that the evidence in the record does not show that the veteran was continuously provided medical treatment for the disability, without assessing the lay evidence of continuity of symptomatology.      

They refuse to read this!!Ignore!!! deaf dumb and blind!

Another common Board error is to prematurely deny the claim without ensuring that the record includes the evidence that the agency was required to obtain to fulfill its obligation to assist the claimant in developing the evidence necessary to substantiate the claim.  The statutory duty placed by Congress on the VA to provide such assistance is a fundamental cornerstone of the nonadversarial pro-claimant adjudicatory process. Unfortunately, the Board often fails to honor this very important obligation.   

Common ploy!!!!

2.  Board Management Does Not Downgrade the Performance
of a Veterans Law Judge for Making These Types of Errors

 One method of eliminating repetitive types of Board errors would be if Board management downgraded the performance of Veterans Law Judges for repeatedly violating deeply embedded legal principles.  This has not been done. STILLLLLLLLLLLLLLLLLL!

Angels? Hardly!
 
The problem is not that Board management fails to assess the performance of the Board's Veterans Law Judges.  Board management does conduct such assessments.  The problem lies in Board management's definition of poor performance.  As the Chairman of the Board stated in his FY 2006 Report, Board management assesses the accuracy of Board decision-making and its assessment is that Board decisions are 93% accurate.

There obviously is a major disconnect between the annual report card prepared by the Court of Appeals for Veterans Claims and the annual report card prepared by Board management.   How can it be that year in and year out the Court consistently concludes that well over 50% of the Board decisions contain one or more specific legal errors that prejudiced the rights of the VA claimant to a proper decision, while at the same time Board management concludes that only 7% of Board decision-making is inaccurate?

Wake up someone in Congress wake up!!!!! IT ISN'T GETTING BETTER NO MATTER WHAT REFORMS OR HOW MANY MEETINGS CONGRESS KABUKI DOES OR HOW MANY HIRES LEAD THE VA!

NVLSP understands that there is a simple answer to this question. Board management simply does not count as "inaccurate" many of the types of prejudicial legal errors that have forced the Court to set aside the Board decision and place the veteran on the well-known "hamster wheel" of remands and further administrative proceedings.  In this way, Board management actually promotes, rather than discourages, these errors of law.   

Bingo! Bingo! Bingo! That's the name of the game! delay, deny, remand!
 

B.  Contributor #2 to the Hamster Wheel: Best and Mahl
In Best and Mahl, the Court of Appeals for Veterans Claims held that when it concludes that an error in a Board of Veterans' Appeals decision requires a remand, the Court generally matter of policy, the Court would "generally decide 
will not address other alleged errors raised by the veteran.  The CAVC agreed that it had the power to resolve the other allegations of error, but announced that as a matter of policy it would decide cases on the narrowest possible grounds."

The following typical scenario illustrates how the piecemeal adjudication policy adopted by the CAVC in Best and Mahl contributes to the Hamster Wheel phenomenon:  

  • after prosecuting a VA claim for benefits for three years, the veteran receives a decision from the Board of Veterans' Appeals denying his claim;
  • the veteran appeals the Board's decision within 120 days to the CAVC, and files a legal brief contending that the Board made a number of different legal errors in denying the claim. In response, the VA files a legal brief arguing that each of the VA actions about which the veteran complains are perfectly legal;
  • then, four and a half years after the claim was filed, the Central Legal Staff of the Court completes a screening memorandum and sends the appeal to a single judge of the CAVC. Five years after the claim was filed, the single judge issues a decision resolving only one of the many different alleged errors briefed by the parties. The single judge issues a written decision that states that: (a) the Board erred in one of the respects discussed in the veteran's legal briefs; (b) the Board's decision is vacated and remanded for the Board to correct the one error and issue a new decision; (c) there is no need for the Court to resolve the other alleged legal errors that have been fully briefed by the parties because the veteran can continue to raise these alleged errors before the VA on remand.
  • on remand, the Board ensures that the one legal error identified by the CAVC is corrected, perhaps after a further remand to the regional office. But not surprisingly, the Board does not change the position it previously took and rejects for a second time the allegations of Board error that the CAVC refused to resolve when the case was before the CAVC. Six years after the claim was filed, the Board denies the claim again;
  • 120 days after the new Board denial, the veteran appeals the Board's new decision to the CAVC, raising the same unresolved legal errors he previously briefed to the CAVC.

 the Hamster Wheel keeps churning . . .

 same verse same as the first.....!

The piecemeal adjudication policy adopted in Best and Mahl may benefit the Court in the short term.  By resolving only one of the issues briefed by the parties, a judge can finish an appeal in less time than would be required if he or she had to resolve all of the other disputed issues, thereby allowing the judge to turn his or her attention at an earlier time to other appeals.  But the policy is myopic.  Both disabled veterans and the VA are seriously harmed by how Best and Mahl contribute to the Hamster Wheel.  Moreover, the CAVC may not be saving time in the long run.  Each time a veteran appeals a case that was previously remanded by the CAVC due to Best and Mahl, the Central Legal Staff and at least one judge of the Court will have to duplicate the time they expended on the case the first time around by taking the time to analyze the case for a second time.  Congress should amend Chapter 72 of Title 38 to correct this obstacle to justice.
 
C.  Contributor #3 to the Hamster Wheel: the Court's Reluctance to Reverse Erroneous BVA Findings of Fact
Over the years, NVLSP has reviewed many Board decisions in which the evidence on a critical point is in conflict.  The Board is obligated to weigh the conflicting evidence and make a finding of fact that resolves all reasonable doubt in favor of the veteran.  In some of these cases, the Board's decision resolves the factual issue against the veteran even though the evidence favorable to the veteran appears to strongly outweigh the unfavorable evidence. 

If such a Board decision is appealed to the CAVC, Congress has authorized the Court to decide if the Board's weighing of the evidence was "clearly erroneous."   But the Court interprets the phrase "clearly erroneous" very narrowly.  The Court will reverse the Board's finding on the ground that it is "clearly erroneous" and order the VA to grant benefits in only the most extreme of circumstances.  As the CAVC stated in one of its precedential decisions: "[t]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish. . . . To be clearly erroneous, then, the [decision being appealed] must be dead wrong . . . ."  Booton v. Brown, 8 Vet.App. 368, 372 (1995) (quoting Parts & Electric Motors, Inc. v. Sterling Electric, Inc.,  866 F.2d 228, 233 (7th Cir. 1988)).

The net result of the Court's extreme deference to the findings of fact made by the Board is that even if it believes the Board's weighing of evidence is wrong, it will not reverse the Board's finding and order the grant of benefits; instead, it will typically vacate the Board decision and remand the case for a better explanation from the Board as to why it decided what it did - thereby placing the veteran on the Hamster Wheel again. 


The official treatment and inequity that exists for women reveals a pattern of the "fox guarding the hen house" despite endless studies, newspaper reports, and congressional hearings. This is a human rights issue that should not have to be argued after so many years.

This book was not written to  degrade the military, but to address a problem that has developed a culture that perpetuates and minimizes the behavior. This has caused a breakdown of those military values those WWII men fought for, and a loss of honor to those who perpetuate it and cover it up. There is now a disconnection from the militaries mission, and it is a cancer that is bringing shame on our country, and all those who would serve honorably. When heinous crimes are tolerated, unity and the very integrity of the services suffer.
 

 

 





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