Welcome to the CAVC. Meet Saint Coral Wong Pietsch (pronounced peach) or abbreviated to St. Coral. She’s a member of the Holy Order of the Sisters of 625 Native American Ave. NW APO 20004 (Ninth Floor- Women’s Lingerie/Sundries). With the large number of vacancies (five), and a President endeavoring to look more presidential and less like a skirtchaser, I’m guessing we’re going to see some more lady juris doctors ascend to the throne.
I’d personally like to see Amy Odom or Jeanny Mark up there. Of course, true justice would be served up with a reverse bitchslap if the Donbo selected Katrina Eagle. Her memories of Judge Davis’ obnoxious behavior will be a long time in fading for all of us. I disremember who said it but “Stupid is as stupid does” always comes to mind. No offense, Katrina, but I had to have my 15 minutes of Warholian fame…
Meanwhile back to James W. Bell. Jimbo signed up at the cusp of the end of the Southeast Asian Olympics and Indochinese Boundary disagreement in 1972. He signed up for three years and served honorably. In May 1973, however, he contracted what appeared to be Hepatitis (not otherwise specified) and it is presumed it was acute and resolved. Being ignorant of Hepatitis C, they presumed wrong. I’d like to interject a side note here. Using the Metavir Scale to rate the progression of Hepatitis C, the age of the disease is easily determined by the stage of progression. Mr. Bell had a liver biopsy in August 2001 that revealed Stage 4, Grade IV (4) with cirrhosis-meaning he’d had it for a very, very long time. Most gastroenterologists , if interested in the etiology of such things, would determine the genotype and Metavir Scale and look back 30-40 years for an event that might presage it. Et Voilà! May 1973 jumps out and bites your eyeball if you were a nonadversarial, cutting edge VA examiner.
After mulling it over for nine years, Mr. Bell filed for Hep C and blamed the jetguns from Basic Training. Fortunately for him, two things can be said. He did not have any legal help (VSOs don’t count) and he’s not a doctor. He cannot say what bit him and gave him the virus. You can actually point to Groves v. Peake (2008) as a good precedential Fed Circus decision to lean on. Walker v. Shinseki might have obliterated §3.303(b) but §3.303(a) is still intact. In that sense, Groves is on point.
This case should never have reached the Court for any number of reasons. But then we’d be unemployed and idle hands are the Devil’s workshop. Fortunately for all of us leagle beagles, the VA will never get it right. We have job security for as long as they remain paralyzed from the neck up. Besides, think of all the cirrhosis Attorneys and Agents avoid because they have no time to hang out in bars. It’s a win-win combo for all of us.
Mr. Bell’s problems began in September 2010. His VA examiner (gosh that sounds so exalted a title for a R.N.) got conflusticated with the vapors and declared she simply could not “offer any opinion” about whether the appellant’s disorder is related to his active service “because any opinion would be speculation”. She might well have added that the terms of her contract ensured she’d lose her job and that 2010 Christmas bonus if she did say it was related to service.
From here on, it was the same old comedy of errors. Obviously Mr. Bell had not brushed up on what the VBA considers unacceptable verbiage for a valid nexus. Dr. Belur S. Sreenath (probably his VA doctor in that golden era before they had been forbidden to opine on etiology) opined that the “appellant’s disorder is probably related to the airgun injections that he received during his active service”.
Well boy howdy is that right out. Probably, possibly, mighta, coulda, shoulda looked in the mirror, my Uncle Earl died of that and other “equivocal” definitions won’t put you on Bucks Boulevard. To get to Dollar Drive, your doctora have to use those “unequivocal” statements like “at least as likely as not” or “more likely that less likely” etc. In addition, you can’t just spout like a whale. You have to explain why it is that you have come to that conclusion. VA would like to think they came up with the perfect foil for telling the truth by simply declaring it to be “too speculative to venture a guess. When we were kids, that was the equivalent of yelling “Not it!”
St. Coral has to gently explain to Veterans Law Judge U.R. Powell some of the finer points of law as she seems to have glossed over the subject in law school. Fortunately for Veterans, Congress, in its munificence, recognized in 1988 that some BVA folks with law degrees slept through some of their lessons. Not wishing to denigrate them directly by insinuating they were raised by wolves, Congress wisely set up an Article I court of review which some legal scholars say has more the reach of of an Article III court if they so chose it.
A conceptual misapprehension pervades the Board’s analysis. The September 2010 examiner’s opinion “provides neither positive nor negative support for service connection.” Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). “Therefore, it is not pertinent evidence, one way or the other, regarding service connection.” Id. The Board, however, labeled the September 2010 examiner’s opinion a “negative nexus opinion.” R. at 9. The Board later stated that the examiner opined that “it would be speculative to medically attribute the [appellant’s] current hepatitis C to the in-service injections via air gun.” It should have stated that the examiner opined that she could not answer the medical question presented to her without resorting to speculation, a subtle but important difference. In general, the Board chose to view neutral medical evidence as medical evidence against the appellant’s claim. That erroneous view of the evidence colored the Board’s ultimate conclusion. The Board found that the “most probative evidence of record does not show that it is at least as likely as not that the [appellant’s] current hepatitis C is etiologically related to his active service.” R. at 12. For that reason, it concluded that “the preponderance of the evidence is against the claim.”
St. Coral offers one lovely last parting shot.
The Board made two important findings: (1) the nexus question must be answered by a person with medical expertise (Colvin); and (2) it can never be answered by a person with medical expertise without resort to speculation. R. at 5 (finding that the September 2010 examiner’s report is adequate and that VA need not make any additional efforts to assist the appellant).
Always remember, when VA makes a finding of fact, it cannot overturn it without first declaring it a clear and unmistakable error (or CUE). Since VA hates to contradict itself or admit error (or appear stupid), they will cling to this finding and go down with all hands before admitting they goofed. That’s why this is at the CAVC-because some asshat Appeals Coach in St. Petersburg was too lazy or terrified to grant SC to Jimbo when it was clearly due. The Hepatitis in service was a dead giveaway. The hepatitis now meets the chronic clause. What’s the problem? Sadly, the problem is a denial mentality. It is not expected that VA will win every time. A few minnows always get through the net. Here, St. Coral had to cut a hole in the net to perform the necessary VA catch and release. Boy, howdy do I love reversals. Make it so, Numba One! And see that you’re quick about it or I’ll box you about the ears.
You have to pick your fights carefully. VLJ U.R. Powell’s staff attorneys prepping Mr. Bell’s Texas Necktie Party should have rethought this one for any number of reasons. I reckon the last thing you can throw at this one is…
You can’t fix stupid.
P.S. A big thank you and an immense attaboy to Danial G. Curry, Esq. and his firm for his legal acumen on this one. Excellent work, sir.