Larry Bruce injured his foot in basic training. The VA denied his compensation claim under 38 CFR § 3.12(d)(1). The US Court of Appeals for Veterans Claims determined the VA was wrong.
Larry Bruce served on active duty in the US Army from January 1972 to January 1975 and from December 1976 to December 1980, receiving an honorable discharge from each enlistment. Intending to make the Army his career, he reenlisted in March 1988. Because of the over seven year gap between his second enlistment and the third Larry was required to go through basic training again, this time at Ft. Dix, New Jersey. Early-thirties old Larry injured his left foot while running on the crushed stone physical training track at Ft. Dix.
Larry did not know it at the time, but he had broken both a toe and the joint connecting the toe to his foot. Military medics misdiagnosed the injury as a sprain and prescribed aspirin, Ace bandages, and crutches. The swelling and pain made it impossible to meet the physical training requirements of basic training but sympathetic drill sergeants who admired his effort graduated Larry and passed him along to his military occupational specialty (MOS) school at Ft. Eustis, Virginia. His inability to make progress in the physical portion of his MOS training created the perception among his MOS instructors, chain of command, and chaplain that he was malingering. Larry found himself in constant pain, punished for lack of progress by restriction to barracks when not in training or at meals, not authorized to wear civilian clothes at any time, and with no liberty. Larry requested reassignment to duty in the MOS he had performed so well (Letters of Appreciation, above average performance evaluations) during his first and second enlistments but the request was denied. After exhausting the resources of his chain of command, medical staff, and the chaplain, Larry considered his situation hopeless. He made the mistake of leaving his unit without approval (absent without leave) in pursuit of civilian medical care.
Larry recognized he had made a mistake. Forty two days later he voluntarily turned himself in to Army authorities at the closest military base to his home, Fort Benjamin Harrison near Indianapolis. He was transferred to the transient personnel company barracks, Fort Knox, Kentucky to await disposition.
On July 26, 1988, six days after he turned himself in, Larry was issued a preferred charge sheet with an allegation of unauthorized absence. He was told by a senior non-commissioned officer that he had the option of being discharged “for the Good of the Service” without going through any other proceedings and that the entire matter would be over. The sergeant major did not want to hear about Larry’s injury or about why Larry had felt he had to leave to obtain treatment. It was clear to Larry that nothing would change the Army’s perception that he was a malingerer not worth training.
Larry agreed to the other than honorable discharge and it was executed in October 1988. The statement on the separation form was “in lieu of court-martial”. He was never told his unauthorized absence violation had been referred to any disciplinary forum, whether non-judicial punishment, summary court-martial, special court-martial or general court-martial – because it had not been referred for any disciplinary action. There is no evidence or record suggesting any convening authority referred Larry’s 42-day unauthorized absence offense to an Article 32 investigation or a court-martial of any kind.
The damage done to Larry’s foot was permanent. Civilian doctors advised that neither the bones nor the medical conditions that had ensued from the untreated injury could be fully repaired. Orthopedic surgeon Matthew Parmenter surgically repaired and/or replaced the broken bones in Larry’s foot as much as possible in 2000, twelve years after the injury. The medical record of that procedure describes removing bone fragments and other damaged tissue.
During the 1990s Larry found employment as a custodian for Indiana University, Bloomington, Indiana in spite of his Other Than Honorable discharge. His employer provided health insurance enabled Dr. Parmenter’s surgery. (Larry and I both believe his limping while performing his custodial tasks for years because of his left foot harmed his back – but that’s another story: service connection rated by the VA as secondary to an established service connected disability.)
Compensation Claim Filed with the Department of Veterans Affairs
February 2005: Monroe County Veterans Service Officer John W. Tilford assisted Larry in filing a claim for service connected disability compensation for his foot injury incurred at Ft. Dix in the spring of 1988. Larry’s official Army medical records documented the injury (description of symptoms, date, time, location, and erroneous sprain diagnosis) and the Army’s “treatment” (crutches, Ace bandages, and aspirin). An MRI would have clearly shown the internal damage. Evidently a crippled Private First Class did not merit an MRI scan, even though MRIs were available in the 1980s. An X-ray would have shown the bone break. Evidently a crippled Private First Class did not merit a common X-ray.
The Series of VA Denials Begins
December 2005: The first Indianapolis VA Regional Office denial, via official correspondence as a response to his application for compensation, was based on Larry’s character of service for his last enlistment being a bar to VA benefits (other than his VA medical benefits, which are based on his earlier enlistments from which he received fully honorable discharges). The only authority ever cited by the Indianapolis VA Regional Office for considering Larry’s most recent character of service a bar is 38 Code of Federal Regulations § 3.12(d)(1) which states “Acceptance of an undesirable discharge to escape trial by general court-martial” [emphasis added]. Tilford thought, “Well, this is obviously an error. Somebody was in too much of a hurry to close a case and did not take time to do their research.” Maybe the VA employee had no military experience and did not realize how expensive, difficult to justify and convene, therefore requiring a full-fledged Article 32 investigation or approved waiver of the Article 32, and rare are general courts-martial. A general court-martial can sentence a commissioned officer, up to and including a full general, to death. More pertinent to Larry’s situation, a general court-martial can order a dishonorable discharge whereas a special court-martial can order a bad conduct discharge. It is now and was in 1988 extremely unlikely a 42 day AWOL violation during peace time, from a student status assignment with no assigned mission responsibilities, by a Private First Class, who had already served two honorable enlistments, who voluntarily turned himself in, mitigated by a clearly service connected disability, could support convening or even consideration of a general court-martial – especially if the Army’s objective was to separate a perceived malingerer as quickly and simply as feasible. A bad conduct discharge would have been ‘over kill’ and Larry actually was separated with an ‘other than honorable’ discharge. The plain language of the regulation is clear and unambiguous. All the other bars in 38 CFR § 3.12(d) are felony-equivalent and/or harm national security, such as aggravated homosexual rape (aggravation by abuse of rank example from the regulation text: a male drill sergeant raping a male recruit), mutiny, or spying. Larry’s AWOL didn’t hurt anyone other than himself and did not harm the United States in any way. Tilford, “This seems like an almost clerical error. I’ll advise Larry to appeal, but to appeal to the lowest level possible – the DRO. We should be able to get this settled quickly.” In retrospect, to say I was wrong would be putting it mildly.
February 2007: Indianapolis VA Regional Office decision review officer (DRO) denial. Confirmed same VA application of 38 CFR § 3.12(d)(1). Used the same words. This followed two (2) personal hearings in Indianapolis. Two because the DRO “used the wrong format” for the first and asked us to travel again at our own expense to appear a second time. Larry and I cooperated, joking on the way up to Indianapolis that the first hearing was practice and we’d do better this time. We were confident because the plain language of the regulation clearly did not apply to Larry’s situation. Almost in shock upon receipt of the DRO denial, Tilford and Larry resolved to take the appeal to the Board of Veterans Appeals (BVA) requesting a hearing with a traveling BVA veterans’ law judge to be conducted in Indianapolis.
August 2008: First BVA hearing. Veterans’ law judges always preface hearings by explaining that the BVA is not part of the Veterans Benefits Administration portion of the Department of Veterans Affairs. The BVA has its own leased building in Washington, DC physically separated by several miles from the VA Central Office complex, but the BVA still works for the Secretary of Veterans Affairs. Until 1988, the BVA was the final step, the highest level, in the VA appeals process. As we discovered later, the BVA now represents the Department of Veterans Affairs when dealing with United States Court of Veterans Claims.
Coincidentally, a few weeks before the August 2008 BVA hearing an Army Times cover story described the mild disciplinary measures – if any – resulting from AWOL violations, e.g., “Oh, you’re back now? OK, please get back to work.” General courts-martial were not even mentioned in the article. Tilford provided this issue of Army Times to the BVA veterans’ law judge who conducted the hearing. The judge carefully copied the pertinent pages of the Army Times and introduced the article into the official case record.
March 2009: First BVA denial. Confirmed same VA application of 38 CFR § 3.12(d)(1). Used the same words. The BVA hearing judge had seemed to understand what we were saying, but BVA decisions are rendered by the Board of Veterans Appeals Washington, DC office. There is only one level of appeal higher the United States Court of Appeals for Veterans Claims (USCAVC). The Court is equivalent to a United States District Court. Unlike decision review officers, regional office traditional appeals boards, and the Board of Veterans Appeals in DC, the USCAVC is under the Department of Justice and totally independent from the Department of Veterans Affairs.
The First Filing with the United States Court of Appeals for Veterans Claims
May 2009: Tilford assisted Larry in filing his case with the United States Court of Appeals for Veterans Claims, obtaining docket number 09-1659. The Court waived Larry’s filing fees because of his low income and net worth.
Unable to afford or obtain pro-bono legal representation (Tilford asked for an explanation from the rejecting pro bono case assignment officer. Answer was, in short, ‘We think his is a loser case.’) Larry self-represented his case using a “fill in the blanks” form sent to him by the Court. Tilford, not an attorney, pleaded to be allowed input and was authorized by the Court to submit an intervenor’s brief. Bloomington attorney Angela Parker (now of Carmin Parker, P.C.) provided the format for the intervenor’s brief. Both Larry and Tilford argued the Board of Veterans Appeals March 2009 denial should be reversed because, first among other grounds, the Board misapplied 38 C.F.R. § 3.12(d)(1). Despite the lack of any evidence that the allegation of unauthorized absence was ever referred to any court-martial, the VA continued to argue the Court should affirm the 2009 Board decision because it had provided an adequate statement of reasons or basis for its determination that Larry had accepted his discharge to escape a trial by a general court-martial.
The VA Office of General Counsel Asks a Favor
September 2009 (An aside, but nevertheless interesting.): After Larry’s case was docketed by the USCAVC, the VA mailed a copy of Larry’s entire veteran’s claim folder to Tilford, including Larry’s GI Bill school documents, marriage certificate, and other personal information subject to the protection under the Privacy Act. (The VA was legally required to provide to the “Appellant’s side” [at this point in time, to Larry and to me] matching copies of everything it provided to the Court. This is intended to assure that all parties involved have the same evidence.) Shortly after receipt of the entire contents of Larry’s VA claim folder, Tilford received a telephone call from an anxious employee of the VA Office of General Counsel. The year before the VA had lost an official laptop computer and compromised the privacy of more than two hundred thousand veterans. There had recently been other VA privacy act violations in the news. Ms. Deborah A. Howet sounded worried.
“Mr. Tilford? Did you receive . . ?”
“Yes, I did.”
“Would you please provide us an authorization signed by Mr. Larry Bruce for the Department of Veterans Affairs to release any and all information from his claim folder to you as his representative? Post-dating it to earlier than you received the claim folder documents?”
I thought for a moment. These are either the people who I want to decide in Larry’s favor or they are close to those people who I want to decide in Larry’s favor. I don’t want to antagonize them in either case. What would I gain by refusing? The basis for Larry to sue them? A whole ‘nother can of worms, court case, legal expenses, etc. And what might he gain? Not much. Whereas his potential disability compensation was at stake.
“Yes, I can do that.” So I composed a sham release authorization for the protection of the VA, post-dated it to before I received the VA documents about Larry which I had no need or right to see, Larry signed it, and we mailed it to the Office of General Counsel, ATTN: Deborah A. Howet, 125 Indiana Avenue NW, Suite 600, Washington, DC 20004. She had repeated the address a couple of times.
Larry “Wins” at the USCAVC, the BVA Denial is Vacated
November 2010: First USCAVC decision. The Court disagreed with the VA, vacated the March 2009 BVA denial, and remanded the case back to the BVA. The USCAVC judge, William A. Moorman found that there was insufficient information on the record for the Court to determine the basis for the Board’s decision that Larry’s acceptance of a discharge ‘in lieu of court-martial’ was the constructively the same as ‘to escape trial by general court-martial’, as required by the plain language of 38 C.F.R. § 3.12(d)(1). The Court found:
“[h]owever, the Board failed to give any statement of reasons or bases for its conclusion that the Appellant’s discharge was to avoid trial by general court-martial.” (emphasis in the original)
The Court also found that Larry’s discharge form (DD-214) did not identify which type of court-martial, if any, he faced, nor was there a charge sheet available for review. In its remand, the Court directed that, should the Board again determine that his discharge ‘in lieu of court-martial’ equated to ‘escape trial by general court-martial,’ the Board must provide the reasons or bases for its determination.
Larry and I, turned down for legal representation before the USCAVC by the pro-bono attorney organization, had “won” his case on our own. [citation: Bruce v. Shinseki, 2010 WL 4879165 (Vet.App.,2010)] “Won”, however, only to have the case remanded to the BVA to take another shot. In essence, USCAVC judge Moorman agreed with us that the BVA had not proven their denial on the basis of 38 C.F.R. § 3.12(d)(1). However, that did not mean that the VA could not 1) try harder and find some evidence which would prove Larry had agreed to his OTH discharge ‘to escape trial by general court-martial’ or 2) find some other rationale for denial. Of course, we hoped for another outcome, 3) the VA could just go ahead and consider Larry’s claim for compensation. That’s all we had requested in our case before the Court, before the DRO, and by his application.
April 2011: Second BVA denial, states Larry was (possibly, maybe, could have been, however unlikely) subject to a dishonorable discharge which could only be ordered by a general court-martial.
Second Filing with the USCAVC
May 2011: Second filing with the USCAVC. This time the pro bono organization wanted to help Larry. He and I had already “won” the first time around, as mentioned above. John Garaffa, a distinguished full partner in a national law firm, graciously accepted Larry’s case before the USCAVC on a pro bono basis. USCAVC docketed Larry’s new case, number 11-1429. John Garaffa submitted a thirty-four page brief. One of the many citations was Larry’s self-represented USCAVC case: Bruce v. Shinseki, 2010 WL 4879165 (Vet.App.,2010) .
Second USCAVC Decision
May 2012: Second USCAVC decision [citation Bruce v. Shinseki, 2012 WL 1825213 at (Vet. App. 5/21/2012)] issued to the BVA vacating the second BVA denial, more bluntly stated, with a six month deadline for VA action, i.e., November 2012.
Judge Moorman: “The Court is cognizant of the repeated remands in this case and of the fact that the Secretary has been unable to provide any indication as to whether the appellant’s charge sheet (or other documents pertaining to the particular type of court-martial the appellant faced) can actually be obtained. Thus, to ensure that additional time and judicial resources are not misspent, VA is required to conduct an expedited record request within 6 months of the date of this filing, to include adding appropriate documentation of the search effort to the appellant’s file. See 38 U.S.C. § 7112.”
August 2012: BVA remanded Larry’s case back to the Indianapolis VARO. Tilford surmised, “You (BVA to Indianapolis VARO) made this mess, clean it up!”
The VA Sits on the Case
November 2013: In light of the year beyond the USCAVC’s six month deadline for the VA to act, Garaffa petitioned the USCAVC for extraordinary relief in the nature of a writ of mandamus seeking the Court to enforce its own order.
February 2014: USCAVC judge Moorman agreed and issued a writ of enforcement to the VA. Moorman’s directive language was even more blunt than that in his second decision: “In light of the Court’s prior specific directive to the Secretary for expedited action and the passage of more than18 months since the Court’s May 2012 decision, the Court directed the Secretary to respond to the petition. Specifically, the Court directed that the response to the petition (1) address the current status of the petitioner’s claim and (2) describe VA’s actions on the claim since May 2012, including VA’s efforts to obtain the relevant records from the service department or other sources.”
On January 22, 2014, counsel for the Secretary responded that she contacted the Indianapolis, Indiana, VA regional office (RO) and was informed that all documents from the service department were received, including the charge sheet pertaining to the petitioner, and that a Supplemental Statement of the Case (SSOC) was issued on January 15, 2014.
Judge Moorman: “The Court notes that the SSOC is silent as to when the service department records were requested and received, and the Secretary fails to explain why the extended period of time prior to issuance of the recent SSOC was needed in a case where this Court specifically directed that VA take action within 6 months of its May 2012 remand decision. In any event, the Court expects that the Secretary will proceed with the administrative appeal process without further delays. The Court also notes its expectation that counsel for the Secretary will keep apprised of the progress in VA’s adjudication of the claim, including certification of the matter to the Board and ultimate resolution by the Board.”
Another Denial from the Indianapolis VA Regional Office
January 2014: Second (Or was it the third? I lost count.) Indianapolis VARO denial. In response to Moorman’s writ, Indianapolis VARO issued another denial in the form of a supplemental statement of the case (SSOC). The Indianapolis VARO had obtained a copy of a charge sheet against Larry. The SSOC was the first VA document to mention this evidence. It was not included in the packages of documents served on Tilford, Larry, or Garaffa. The charge sheet had been signed by an Army Captain, pay grade O-3, probably the commander of the transient personnel company, Fort Knox, Kentucky. The charge sheet had also been signed as received by a Major, O-4. That’s it. Charge sheet prepared, signed, submitted to higher authority, and received. There was no indication that disciplinary action of any kind had been initiated, not even a preliminary investigation requested. No court-martial. Certainly no general court-martial. The charge sheet was part of an assembly-line standard package documenting the separation of each soldier discharged from confinement in the transient personnel company barracks, Fort Knox, Kentucky. This VARO denial was more creative than previous VA denials in that it stated [paraphrased] “Any military disciplinary action is part of a system which includes general courts-martial, therefore any military offense is constructively subject to a general court-martial”.
March 2014: Tilford assisted Larry in filing an appeal of the statement of the case denial directly with the BVA, again requesting a personal hearing with a traveling BVA veterans’ law judge in Indianapolis.
Larry Files for his Lumbar Back Disability Secondary to his Foot
During one of our meetings or telephone calls Larry mentioned that he was on Social Security Disability. He was found to be totally disabled, i.e., unemployable, because of a severe lumbar back disability. His Social Security Disability benefits had started in 2006. Larry had not seen any reason to tell me this before. The light bulb immediately lighted in my head. During the decades of reading VA rating decisions I had seen several wherein veterans had disabled their backs, usually their lower (lumbar) backs, because of favoring foot or leg disabilities. Larry had limped on his left foot/leg for years working first as a custodian for Indiana University and later as a custodial inspector. He had carried buckets of water/cleaner up and down stairs, operated cleaning equipment such as buffer machines, and even as an inspector had spent his entire shift every day on his feet performing manual labor. I wrote the letter for Larry’s signature to claim his back disability as service connected secondary to (caused by) his foot disability. The letter specifically stated:
I realize this claim must be held in abeyance and cannot be processed until my current appeal is resolved. This filing will protect the effective date of compensation for my back condition.
Naturally, the VA went ahead and considered his back claim without the foot claim being resolved, therefore denying the back as “no record of such injury while on active duty”. This set in motion a series of appeal hearings at all levels up to and including the BVA just to keep his back claim alive, waiting on the foot claim to be adjudicated. (Currently [October 2017] the back and foot claims are consolidated and waiting to be processed by the Indianapolis VA Regional Office. “Waiting” is the key word.)
Pro Bono Attorney Assists with the new BVA Appeal Hearing
April 2014: Second BVA hearing. Larry submitted a signed and notarized twelve page personal statement (prepared by John Garaffa with input from Tilford) to the BVA veterans law judge. The statement made and legally supported many points, including a devastating critique of the ‘any military discipline is constructively a general court-martial’ rationale for supporting the VA denials of Larry’s compensation claim on the basis of 38 C.F.R. § 3.12(d)(1). Among Garaffa’s other negative observations regarding this VA rationale, he pointed out there would be no need for the present plain language of 38 C.F.R. § 3.12(d)(1) specifying general court-martial if the VA considered all levels of military discipline the same.
Garaffa (written in the first person for Larry’s signature): “The fact remains that the very language of 38 C.F.R. § 3.12(d)(1) presumes that service members do accept discharges in lieu of both summary and special courts-martial. They may do so to avoid a conviction, to avoid confinement, or merely to effect a speedy return to civilian life. The Board’s new presumption would allow the VA to bar their claims as well because there would now be a presumption that 38 C.F.R. § 3.12(d)(1) applies based solely upon the offense rather than the type of court actually convened by military authorities.”
“There is no indication from the plain language of the regulation that it was ever intended to bar benefits for former service members based solely upon the potential maximum punishment for their offense rather than the type of court-martial they were going to when they accepted their discharge in lieu of trial by court-martial. Nor does the regulation make any provision for a factual presumption regarding the type of court-martial a former service member was going to when they accepted their discharge in lieu of trial by court-martial based solely upon the potential maximum punishment for their offense. Under the circumstances, the Board’s assertion that it is entitled to the factual presumption that I accepted my discharge ‘to escape trial by general court-martial’ based solely upon whether my 42-day unauthorized absence was ‘subject to trial by general court-martial’ or because the maximum punishment contains some measure of punishment that could only be administered at a general court-martial is inconsistent with the plain language of 38 C.F.R. § 3.12(d)(1) and the Manual for Courts-martial.”
Garaffa had multiple reasons for recommending submission of a personal statement during the BVA hearing. Not the least was to put the BVA on notice that Larry’s representatives knew the VA had – pardon the expression – screwed up and that if the BVA denied him yet again without a legitimate rationale and evidence to support it we would definitely file for the third time with the USCAVC. The BVA should have been aware by this time that USCAVC judge Moorman would not be pleased to see this case again.
The VA Self-Contradicts
Sometime during 2014: Tilford stumbled onto an internal VA adjudication reference document which provided clear guidance regarding application of ‘bars to eligibility’: http://www.benefits.va.gov/WARMS/M21_1MR3.asp . At that time, this site contained the VA “Web Automated Reference Material System M21-1MR, Part III, at Subpart V (General Authorization issues and Claimant Notifications) Chapter 1” which specifically stated “The evidence must show that the service member accepted the undesirable discharge to escape a general court-martial, not a summary court-martial or a special court-martial . . indicate the service member agreed to accept an undesirable discharge . . in order to escape trial by GCM” (general court-martial) under 38 Code of Federal Regulations § 3.12(d)(1), the regulation cited as a bar for Larry Bruce. This ‘must have evidence of GCM’ language was annotated as being placed or revised in 2012. Restated: during the same times the Indianapolis VA Regional Office and Board of Veterans Appeals decisions were declaring Larry Bruce barred from veterans compensation because of 38 Code of Federal Regulations § 3.12(d)(1) without the VA having any evidence at all that he accepted his discharge to escape trial by general court-martial, the official VA internal reference material on application of 38 Code of Federal Regulations § 3.12(d)(1) stated evidence of a general court-martial was required. Tilford forwarded this information to Garaffa who included it in his documents submitted to the US Court of Appeals for Veterans Claims. None of the Court decisions made specific reference to this contradiction but one would assume it might have had some influence on the Court’s more recent thinking and decisions. If you try the above link today [10 January 2017], you will discover only a secondary link which takes you to “Welcome to the KnowVA Knowledge Base” followed by “VA Claim information is not available from this website.” The BVA was served all documents filed with the Court by Garaffa, with one brief including a description of the VA contradiction, just as Garaffa received all documents filed by the BVA. Jumping to a conclusion is tempting, but all we know is that the ‘must have evidence of a general court-martial to deny under 38 CFR § 3.12(d)(1)’ VA adjudication guidance continued to be available for a time after 2012 and now it is not.
The VA Wastes More Time
June 2014: The BVA remanded the case back to the Indianapolis VARO under the impression another hearing might be required. Tilford advised the BVA that no further hearing should be required, two were sufficient, and to please consider the case based on the evidence of record – especially the personal statement.
Late 2014: After dropping Larry and his wife off at Community South Hospital for her chemotherapy, Tilford drove over to the Indianapolis VARO. He discovered that Larry’s case had, in fact, been returned to the BVA in Washington, DC earlier in 2014. The BVA had then forwarded the file to the VA Central Office with no notice to Tilford, Larry, or Garaffa. The Indianapolis VARO representative had no idea what was going on with Larry’s case between the Central Office and the BVA.
The VA eBenefits Premium Account
Early 2015: Garaffa encouraged Tilford to help Larry obtain an “eBenefits Premium Account” to enable checking on his perpetually difficult to establish current BVA appeal status. Tilford researched the VA online guidance regarding how to obtain, including all documentation to be provided, called the Indianapolis VARO to make the required personal appointment for Larry, and drove Larry to the appointment at 575 North Pennsylvania Street, Indianapolis, Indiana. (Bear in mind that it is an act of physical courage for Larry to travel.) After waiting a reasonable time, we were greeted by the ‘authorized to establish eBenefits Premium Account’ VA representative. After showing her all of the required documentation, she asked us for Larry’s DEERS account information, stating having a DEERS account was a prerequisite. Nothing in any online guidance mentioned the requestor needed to establish a DEERS account, nor was this mentioned over the telephone when making the appointment. Tilford used his smartphone to obtain the DEERS number and helped Larry establish his DEERS account in ten minutes. The ‘authorized to establish eBenefits Premium Accounts’ lady had left to for a meeting at the VA medical center and would be gone the remainder of the day. Another VA representative met with us after we waited considerably longer than the first wait. This one was not authorized to establish eBenefits Premium Accounts. I drove Larry back to his mobile home north of Spencer, then returned to my home a few miles northeast of Bloomington. Nothing was accomplished.
“What are they doing? Waiting on me to die?”
February 2015: Still no action by the BVA since June of 2014. Larry’s fully documented disability claim had been pending with the VA for ten years. Three thousand, six hundred, fifty-two days. To paraphrase from Alexander Solzhenitsyn’s One Day in the Life of Ivan Denisovich, the two extra days were for the leap years. Larry, as so many veterans have asked when waiting on the VA, said, “What are they doing? Waiting on me to die?”
22 April 2015: ‘Got through to the VA on their 800 number. “Bob” said he saw no record of a BVA remand to Indianapolis VARO formal decision, per se, but he did see a notice to the veteran (which I don’t think either Larry or I received) from the BVA that they had sent his case to the Indianapolis VARO for more information, and that they (the BVA) would notify Larry when they received the information and made their decision. This notice must have been in late 2014, although the VA toll free representative “Bob” could not establish the actual date.
Another BVA Denial
20 August 2015: BVA denied Larry again, again stating that his violation could have been considered by a general court-martial, therefore his signing the ‘in lieu of court-martial’ annotation on his other than honorable discharge was constructively the same as signing ‘to escape trial by general court-martial.’ The BVA interpreted Larry’s charge sheet never having been processed for judgement/punishment of any kind as ‘not eliminating the possibility’ of Larry facing a general court-martial. The BVA stated specific evidence that Larry was facing a summary or special court-martial would have eliminated the possibility of his facing a general court. Creative, but a two-edged argument.
Third Filing with the USCAVC
September 2015: Larry and Tilford file with the US Court of Veterans Appeals for Veterans Claims, new docket number 15-3237. Garaffa used his electronic filing process for us to expedite.
8 February 2016: Garaffa, who had waited months for the BVA to file their brief with the US Court of Appeals for Veterans Claims, files the Appellant’s Brief with the Court, demolishig the “logic” of the BVA denial.
Conclusive USCAVC Decision
5 January 2017: Judge Moorman (called back to the Court from retirement, Larry’s case transferred to him) issued the USCAVC decision [Bruce vs McDonald, docket no. 15-3237]. Moorman’s main point is that – and here Moorman turned the BVA’s own words against them – whereas it might have been possible the Army could have convened a general court-martial (as if the Army would spend that kind of high ranking officers’ time, salary costs, and legal resources on a low grade enlisted soldier who went AWOL due to injury, turned himself in, and had not hurt anyone or his country.), it was also possible the Army could have conducted a special court-martial or summary court-martial. Since there was absolutely no evidence of any of these being specifically selected or pursued (the reverse side of the charge sheet was never processed) they were equally likely. By VA’s own regulations, and supported by extensive case law, in cases where the evidence against the veteran and the evidence for the veteran are equal, the VA will decide in favor of the veteran.
Excerpt from Moorman’s decision: “Although the record supports the Board’s determination that the appellant was facing the possibility of a general court-martial, the very same evidence demonstrates that the appellant was also facing the possibility of a special court-martial. See 10 U.S.C. §§ 818, 819 (A general court-martial has the authority to impose a bad conduct or a dishonorable discharge, while a special court-martial has the authority to impose a bad conduct discharge but not a dishonorable discharge.) Nothing in the Board’s decision or in the record on appeal demonstrates or suggests that it was more likely that the appellant would have faced a general court-martial.”
Another excerpt from Moorman’s decision: “Accordingly, the Board’s determination that the appellant accepted a discharge to escape trial by general court-martial must be reversed. See 38 U.S.C. § 7261(a)(4) (Court must ‘reverse or set aside’ clearly erroneous finding of material fact); see also Ortiz, 274 F.3d at 1365 (‘[T]he benefit of the doubt rule may be viewed as shifting the ‘risk of nonpersuasion’ onto the VA to prove that the veteran is not entitled to benefits.’). As the appellant has met his burden of establishing his status as a veteran by an ‘approximate balance of positive and negative evidence,’ the Court will remand the matter for the VA to adjudicate the merits of his claim for entitlement to service connection for a left foot injury.”
The same basis on which John W. Tilford and Larry L. S. Bruce based his initial appeal over eleven years ago – miss-application of 38 Code of Federal Regulations § 3.12(d)(1) – was the basis for the January 2017 United States Court of Appeals for Veterans Claims decision ordering the VA to grant Larry’s request to consider Larry’s compensation claim for his 1988 left foot injury.
On 29 March 2017 the USCAVC issued a “mandate letter” (signed by the Clerk of the Court) to the BVA. Basically a one-liner, the concise letter said the time allowed for any appeal of the 5 January 2017 USCAVC decision had expired and the Department was required to implement the decision. VA representatives accessed via the VA toll-free telephone service in April disclosed the receipt of both the USCAVC decision and mandate letter.
The BVA Issues a Decision
On 15 June 2017 the BVA issued a decision – a remand – summarizing the lengthy course of Mr. Bruce’s case and requiring the Agency of Original Jurisdiction (AOJ) – in Larry’s case the Indianapolis VA Regional Office – to adjudicate Larry’s claim for compensation for both his foot disability (injury occurred on active duty) and his back disability (claimed as secondary to his foot disability). The 15 June BVA decision text is specific in what steps the regional office was required to take including what documents to obtain and what specialties those rendering medical opinions should hold. Upon receipt of the veteran’s and representative’s copies of the BVA decision, Larry and Tilford obtained, copied, and submitted all the documents specified. A visit to the Indianapolis regional office in late July confirmed that offices receipt of the documents.
As of 10 August 2017 Larry had still not received notice of his anticipated compensation examination appointments. VA representatives advised Tilford that Larry’s case was now in routine processing along with other “current” cases, in spite of the twelve year and six months since it was originally filed – the extra twelve years directly caused by the now USCAVC-confirmed VA misapplication of 38 CFR § 3.12(d)(1). The only two rationales for expedited processing cited were imminent death or extreme poverty. Tilford submitted a letter to the Secretary, Department of Veterans Affairs calling attention to the inequity of “placing Mr. Bruce’s case yet again at the ‘bottom of the stack’ of pending compensation claims”. The letter showed “cc” copies to Senators Donnelly and Young and Representative Bucshon.
A Telephone Call!
On 7 October 2017 Larry received a telephone call from the VA C&P (Compensation and Pension) physical examination scheduling office in the VA Medical Center, Indianapolis, Indiana. The call was confirmed by a letter he received a few days letter. Larry L. S. Bruce has a C&P examination scheduled for 0900 on 16 November 2017 at the VA Outpatient Clinic in Bloomington, Indiana. Evidently, the Indianapolis VA Regional Office has actually started to adjudicate his claim (consolidated foot and back) as directed on 15 June by the Board of Veterans Appeals.
Larry has hope.
Summary, Overview, and Hope
Larry L. S. Bruce and John W. Tilford have become old men waiting on the VA to consider Larry’s claim for service connected disability. Larry could still walk without a cane in 2005. His normal weight was 190 pounds. He lived in Tulip Tree Apartments near Indiana University. Larry had an old but good pickup truck. His wife was healthy. Tilford was 58 years old, still the Monroe County Veterans Service Officer and still actively participating in the Army Reserve.
Social Security determined Larry totally disabled in 2006, providing his only current income. The basis for the Social Security disability was his bad back, a condition Tilford believes was caused by Larry limping on the disabled foot for years as a custodian for Indiana University. Larry barely survived surgery for stomach tumors in August 2009. He weighed 160 pounds after his surgery and months of a liquid diet. He can now only walk slowly and painfully with a cane. Larry and his wife Carol moved to mobile home on his sister’s land north of Spencer in December 2012. He wrecked his decades old truck due to slippery pavement on a rural Owen County road in October 2013 and had to spend the small amount of insurance money on living expenses. His wife retired from Indiana University in January 2013, was diagnosed with cancer in October 2014, had a malignant mass removed surgically, had chemotherapy, but passed away in 2015. Tilford is now seventy years old, has had several surgeries himself, and retired from regular employment and from the Army Reserve. In forty two years of assisting veterans with claims and appeals, Tilford has never had another case take as long as that of Larry Bruce.
Larry L. S. Bruce served in the United States Army to the absolute best of his ability during three voluntary enlistments. The Army gladly accepted Larry’s service for two and acknowledged his service with an honorable discharge for each. They took him back a third time, crippled him for life, put him in an impossible situation, and gave him an other than honorable discharge as a result of his trying to obtain medical care. The Department of Veterans Affairs, charged with administering the compensation of service connected disabled veterans, continued his abuse – until the US Court of Appeals for Veterans Claims ordered the Department of Veterans Affairs to adjudicate Larry’s claim for compensation.
How many other veterans has the Department of Veterans Affairs denied on the same basis? This might be an indication: a Lawrence County veteran requested assistance from Tilford in 2014. He had been denied by the exact same VA miss-application of 38 CFR § 3.12(d)(1). A veteran from an adjacent county, at the same time Larry’s appeals were being considered, exactly the same basis for denial? Suspicious – and echoes Larry’s guess from several years ago, “Maybe the reason the VA is digging in its heels so much on my case is that they’ve used this same denial basis on many other veterans.” “Maybe” indeed, Larry. I hope those veterans or their representatives discover your 5 January 2017 US Court of Appeals for Veterans Claims decision.
The plastic toe joint surgery performed in 2000 failed. A VA Medical Center podiatrist told Larry the joint had “crumbled”. A secondary surgery was required to save the adjacent toe. Larry can, with care, maneuver within his mobile home and to his automobile. The sensory nerves in his legs continue to deteriorate due to his lumbar stenosis. He cannot “feel” the surface on which he walks, which has caused some nasty falls.
It took yet another appeal, but Larry’s claim for individual unemployability was approved by the VA. He is now being paid at the 100% service connected disabled rate because his service connected disabilities prevent gainful employment – as established by the Social Security Administration in 2006.
A Freedom of Information Act request to the VA asking how many other veterans had been denied benefits under 38 CFR § 3.12(d)(1) met with a “We don’t know and cannot feasibly find out” response. During the back-and-forth of the resulting FOIA appeal, Tilford suggested even an estimate would suffice as a basis for a Nehmer-like decision requiring the VA to apply Bruce v. McDonald to all other 38 CFR § 3.12(d)(1) based denials made without evidence of impending general courts-martial. Tilford proposed a random sample of a few hundred from the over eighteen thousand character of service denial cases could establish a proportion denied under 38 CFR § 3.12(d)(1). VA refused. The senior Veterans Affairs Department FOIA specialist convinced Tilford continuing to pursue the matter via FOIA would 1) require many hundreds of dollars up front with no guarantee of a meaningful response, and 2) since the VA case record keeping system does not include “legal basis for denial” data, there never would be a meaningful response. Tilford cannot keep the second promise he made to Carol, Larry Bruce’s wife, as she lay in her nursing home bed. The first promise: “We will win Larry’s case and he will get the compensation.” The second: “There must be hundreds of other veterans who were denied by the VA on the same basis who will benefit from what you and Larry have gone through.”