Out with Denis, in with Douglas. What a year this has been. It seems like just last week we were still exploding over Mat Gaetz being nominated for AG. I have done this work under different presidents. One thing that is consistent about the VA is how inconsistent it is, and can it screw up anything, regardless of who occupies the White House. My only regret from McDonough’s tenure is that he departed while a final lesson I had was pending. Oh well, I still got to do some pickin’ and grinnin’, recently with the best VA advocates in the Nation. We still have the same consensus: The VA is still the VA, and that isn’t changing anytime soon.

The Final Lesson

I should probably start with Denis’ final lesson that he, unfortunately, missed. He departed just in the nick of time before Chief Judge Allen gave the VA the business. “David” is a Vietnam Veteran. He served in the Army as a fire controlman from 1968 until 1990. You think he has tinnitus and hearing loss? His DD-214 has all the bells and whistles, Vietnam Gallantry Cross, Vietnam Service Medal with 2 stars, Meritorious Service Medal, to name a few.

For years, David had been telling the VA something was up with his heart. He never could pin down what was wrong with it. Hey, he’s no doctor, but an artillery man! At first, he told the VA it was all those damn salt tablets they handed out like M&M’s during Vietnam. I bet you could have cut the humidity with a knife. Like most Veterans, David got a denial and let it go. Life moves on. Fast forward to 2008, he decided to take a second bite at it. The VA said nah-ah, your heart is pumping at full speed! In typical VA fashion, a few years later, they did a “special review” of David’s file, saying “whoopsie, we were getting a lot of these claims wrong, so please pull the lever again for another run at the slot machine”. So, finally, David is getting somewhere. The VA admitted he finally has some heart problems going on—no duh. But, of course, this isn’t the end of things. The VA said well sure, you’ve got some heart problems. Sure you filed a claim for that, but you don’t specifically have ischemic heart disease, so you won’t be buying that brand new Dodge Charger on our dime.

Over the next couple of years, the VA kept teasing David with another pull of the slot machine. At least 4 more times, they did a “special review” of his file, but David kept coming up short. I should probably note that David never said “I have Ischemic Heart Disease”. That is a pure creation from the VA. He does, however, have about three or four other heart diagnoses to his name, just not the golden ticket of Ischemic Heart Disease. I started representing David in late 2023. We filed a supplemental that the regional office chewed on for nearly a year. Finally, we got another no dice letter. David had finally turned 75, which means he gets automatically advanced, at least for now, on the Board’s docket. The Rocket Docket. To the Board we go. Finally, we will get some recognition! Fat chance.

I put up a good argument to the Board. This entire time, David had not once claimed he had Ischemic Heart Disease. This was an entire creation of the VA. He had, however, for decades, insisted that he had several heart problems, an issue which the VA finally no longer disputes. The VA had denied something David had never claimed. I attempted to explain to the Board that David had never claimed such, and that instead they should grant service-connection for his numerous other heart conditions. I guess the writing was on the wall for David. When I say Rocket Docket, I mean it. I filed the Notice of Disagreement on July 27, 2024. The Board said “not happening” on August 19, 2024. Is that a record for a Board decision? Anyone? I was puzzled. I thought I had forgotten to upload my brief with the Notice of Disagreement. Nope, it was all right there in black and white. The Board did not even address my argument on the scope of David’s claim.

Chief Judge Allen’s Decision Setting Aside the Board’s Non-Sense.

I figured that OGC would fold up during the Rule 33 Conference, but I guess someone had marching orders to defend. Oh well. I love writing a good brief. Thankfully, Chief Judge Allen wasn’t having it:

“Additionally, appellant's representative submitted a letter to VA with his Notice of Disagreement in which he explained that VA's consideration of only ischemic heart disease was "too strict a reading of his pleadings."”…“The parties dispute whether the holdings in Clemons or Murphy apply in defining the scope of appellant's claim. However, the Board cites neither case in its decision. The Board's rather terse discussion focuses only on ischemic heart disease and concludes that any other diagnosis is not sufficient to establish service connection. That the Board determined it was only concerned with ischemic heart disease is certainly clear enough. What is obscure is why that is the appropriate stance”.

We’ll see if this is the end of Denis’ missed lesson. The case is back with the Board now. I hate he departed from the VA before he got to receive the lesson. Perhaps in the future we should make being a Veteran a prerequisite to being the Secretary of the Department of Veterans affairs?

*Pickin’ and Grinnin’*

As some of you may know, the VA landscape changes, sometimes daily. The VA has a wonderful ability to halfway fix one issue, and totally break another, unrelated issue, all at the same time. So, they may fix that fact that you haven’t been getting letters from them, and then turn around and take 3 months to process mail. Because of that, the best advocates among us gather twice a year to get updated on these changes, talk about new Court cases, remind us of old ones, and play drinking games to see who has the most convoluted denial. (Think ‘we have denied your claim for aid and attendance…Favorable Findings: You require aid and attendance due to your service-connected disabilities’ level of convoluted.) I’m trying to remember who one this time.

So, we gathered this Spring in Minneapolis for three days to sharpen our minds and learn to better battle the VA. This was our first conference since the big I word—the inauguration. Questions swirled on the future of the VA. Will there even be a VA? Or will it be privatized? Thankfully, we all came to the same conclusion. Yes, the VA will be around for decades to come. Yes, they will continue to screw up things. Some things they will always screw up, and they always find a way to find new things to screw up, so don’t worry.