Once upon a time in the Land of nod (September 27th, 2011), on the second day of my new website, I published a CAVC decision about one Malcolm H. Melancon. It was the beginning of a long story much like my five-year odyssey with Butch Long.
Along about my birthday on April Fools in 2013, who should show up? Why none other than Malcolm in the Middle. He even introduced himself as the same. By September, we were like peas and carrots. It’s amazing to me, frankly, seeing who shows up here sometimes following my ramblings. Cupcake isn’t a major fan of asknod after that little têt-à-têt with Wounded Wallet Project a piece back. She now just shakes her head and mumbles Tourette’s but I’d like to think I’m part idiot savant, too. And besides, being politically incorrect is such a nebulous concept these days. Who’s to say? Look at the White House.
Malcolm and I tried, via appeals with a very good attorney but it was ineffectual. I’ve always held, for the last six years, that the error in 1991 had to be resolved via a CUE claim (or a Motion to Revise in VAspeak) first before trying to unravel this fustercluck. No one wanted to take it on and quite frankly, even though Malcolm had stumbled all the way to the Fed. Circus pro se, this needed a keen legal mind to dissect the claims file looking for that smoking gun of error. I never thought it would land on my desk.
It didn’t pan out with St. Mary as you can see.
In VA law , and probably US law in general, as far as I know- which isn’t much- we have what is called the standard of review. In DickandJanespeak, it translates into if A=B, then C happens. In anal legal terms, it means a statute and its counterpart at Agency (VA) level requires X conditions exist as evidence of record, and, if met, all resultant entitlements that can be awarded legally, will be. However, if the pertinent statute or regulation was ignored and some arbitrary new set of metrics were used to adjudge it which were unsupported by statute and regulation, that would be the wrong standard of review. Here, it occurred in a medical conclusion back in 1991. Mr. M-in-the-M failed to object within a year. Undoubtedly his DAV rep. encouraged him to take the two 0% ratings and beat feet. I had one do it to me in 1992.
Here’s the document that began this whole shenanigan. Malcolm has given me permission, in writing, to do this so as to not endanger my VA accreditation. Before achieving Agent status, I could discuss these things at length. With accreditation, absent that written permission, I would be endangering his privacy and God only knows what other sins. Most of what I draw on is in the public domain at the CAVC or the BVA. Some documents, as I illustrate here, are from Malcolm’s claims files and are suitably redacted to protect his private info. This is a contemporaneous 1991 standard Combined Rating Decision from which his award was promulgated. Highlighted in yellow is the hepatitis decision and the reason. Herein lies an incorrect standard of review.
The rater was partially right. The Hepatitis B was acute and was gradually resolving-but it would take several years. Unfortunately, the Hepatitis C was not acute and severely disabled Mr. Melancon over the next decade. And here is the glaring standard of review error staring us right in the face. Diagnostic code (DC) 7345 (1991) clearly and unequivocally grants service connection for infectious hepatitis at the 0% compensation rate for Healed; nonsymptomatic. Page 2 above boldly declares DC 7345 Hepatitis (cured) aka resolved, aka nonsymptomatic. I feel like donating my Roget’s Thesaurus to the Houston raters.
After you have arrived at this juncture, the next standard of review is to refer to the pertinent regulation in 38 CFR §4.114 Diagnistic Code 7345 and discern which rating he would be entitled to… and lo, there is one that fits him to a ‘T’. His symptoms are healed and non symptomatic (aka acute and resolved) ergo the obvious choice is 0%.
38 CFRs §§ 3.1(l), 3.4(b)(1) and 3.303(a) are the proper standard of review. If the disease was acute and resolved, that would be the second step of review in determining what ratings percentage was due. Obviously the hepatitis B is service connected because the preponderance of the evidence says so. That is not in dispute. His DD 214 shows an honorable discharge. He filed within a year of separation. Bingo. Service connected. Healed and asymptomatic? Cha-ching! $0.00 dollars per month but you get free gastrointestinal medical visits for life at the VAMC nearest you.
As a side note here, Malcolm also was granted two other 0% ratings which were identical which requires a 10% rating under §3.324! Gee, two CUEs for the price of one.
What is a screaming hoot is what has transpired in the interim since 1991. Remember, old Malcolm was not Clarence Darrow and was not expected to be. What he is, however, is doggedly determined and undeterred by “What part of ‘No!’ don’t you understand?” VA has conceded over the last two decades or so that:
Just for shits and grins, I had him tested for HB Surface Ab and HC Core Ab in 2015. Both came back positive showing exposure or resolved Hep. B. Maybe those VA blood testing components on 2004 were expired. Watch Carmen Mascarenhas, MD moonwalk right over this HBV enigma.
Well, actually Carmen, you never lose the surface antibody. You have that one confused with the surface antigen. Time to fly back down to the University of Grenada for an MD refresher course in gastroenterology.
Or- this is where you earn your money doing this forensic research- you notice a lab test that says henceforth after 5/19/2004, all Hep B testing will include the antibodies test and not just the testing for ACTIVE Hep b (HB Sag HB SAB). The problem is that the specimen was collected on 02/02/2004– three months plus before the new test came on line. Et Voilà! No hep. B! Malcolm got lucky on this one. He got a copy of his c-file way back when with this “work copy only” in it. The recent 2013 one is MIA. But I get it. It was just a work copy and not a permanent, incriminating record. I guess that means VA isn’t required to “keep it”.
So, we have the hepatitis B that wasn’t service connected in 1991 still isn’t. However, the evidence has gradually evaporated into thin air anyway and there really is no proof now one way or the other. But there is proof of Hep C and he had tattoos so it’s SC but it’s only SC for 0%. But the HCV test in 91 was negative. But the Hep B in 1991 during active service aboard the USS Reasoner out on the Bounding Main of the Pacific Ocean wasn’t SC because -and I get lost here-why? Two different hepatitis viruses (virae?) with two different Diagnostic Codes, both of which provide for healed, asymptomatic disease at 0%, and he is now SC for HCV in 2004 but not to HBV in 1991 but freely acknowledged in 2004 as being contracted in service. Is it just me or is this a speshul kind of VA stupid? Do these people even read the file or make it up as they go?
Here we are in 2005
But wait. We’re not going to see your Hep B and raise you to 0% for Hep C and call.
So, what’s a poor ex-squid in the middle supposed to do? Why, wait four years for his friend to get his accreditation and ask for representation. What else? Herewith, we dropped this conundrum on Houston. I think they have a problem.
All these years it was denied based on the wrong standard of review. The error continued all the way up to the CAVC and even Saint Mary Schoelen’s staff attorneys missed it. Veterans Law Judge Keith Allen missed it. Everyone missed it until I thought to myself last week “Shit. Look at all the guys who got (and still get) the double ought of 0% for hearing loss and 0% for tinnitus ( or hemorrhoids, or flat feet or hammertoe or…). I looked through our current VA Schedule of Rating Disabilities (2017) and found 156 instances of 0% ratings from head to toe inside and out. If that isn’t enough. 38 CFR §4.31 allows you to fashion one out of whole cloth for any Diagnostic Code.
Here is Mr. Melancon’s new pièce de résistance through counsel. I have lived, breathed and slept Malcolm’s claims file for five years and it never bit me on the ass about the “acute and resolved” being the wrong standard of review. I’m pretty dense, huh?
The NOVA lawdogs agree. It’s going to go off at 6-1 odds at the VBAHOUS 362, 2-1 at the BVA and 5/9 at the CAVC. I’d hate to see it go to the Court but as I said, this one is a speshul kind of stupid even I have rarely seen. I guess I’ll be having to apply for privileges at the CAVC if it goes up there. I can recite this in my sleep now but you just know it would sound sweet with Ken Carpenter doing the oral presentation or the Rule 33 meeting.
And after all these years, Cupcake and I finally had the most excellent pleasure of meeting Malcolm in San Antonio this April at Spring NOVA. Welcome Home, Malcolm.
Our Southeastern Coast Office checked in today with this latest Hollywood release of high-interest to military movie afficianados. While not quite John Wayne calibre, it certainly will resonate with many -both pro and anti-military. We live in troubled times and a small dose of reality set in a fictional but persuasive medical context will enthrall many a cinema fan. Very moving tale. Bring a hankie. Coming soon to an IMAX near you. We give it a solid ΘΘΘ ¼.
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, if the Donbo selected Katrina Eagle, it would be interesting to say the least. For the record, I redact my earlier observation as it was not phrased as concisely as I had planned it. When making observations, they should always be one’s own observations and not presuppose (or imply) what others are, or might be, thinking. I stand corrected and apologize. I certainly meant no disrespect to either Ms. Eagle or Judge Davis. I did, however, shake his hand and thank him for the $70,000 readjustment to my 1994 ratings.
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.
Bell CAVC decision:
Here’s VLJ U.R. Powell’s take on it:
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 was 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 doctors 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 choose it.
St. Coral offers one lovely last parting shot.
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…
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.
If confirmed, Michael P. Allen of Florida will serve as a Judge on the United States Court of Appeals for Veterans Claims. Michael P. Allen serves as a Professor of Law and Director of the Veterans Law Institute at Stetson University College of Law in Gulfport, Florida, where he teaches courses in civil and constitutional law, as well as veterans’ benefits law. Professor Allen is a recognized expert on the law of veterans’ benefits and has testified before Congress and published widely in the field. Before joining the Stetson law faculty sixteen years ago, Professor Allen spent nine years as a civil trial attorney at the law firm Ropes & Gray in Boston, Massachusetts. Professor Allen received his B.A. in American history and political science, summa cum laude, from the University of Rochester, where he was elected to Phi Beta Kappa, and his J.D. from the Columbia University School of Law, where he was a Harlan Fiske Stone Scholar.
If confirmed, Amanda L. Meredith of Virginia will serve as a Judge on the United States Court of Appeals for Veterans Claims. Amanda L. Meredith serves as the deputy staff director and general counsel of the U.S. Senate Committee on Veterans’ Affairs, chaired by Senator Johnny Isakson of Georgia. She previously served as general counsel to the Senate Committee on Veterans’ Affairs and as benefits counsel to Ranking Member Richard Burr of North Carolina and Ranking Member Larry Craig of Idaho. Prior to her service on the Committee, Ms. Meredith served as director of the Task Force for Backlog Reduction for the United States Court of Appeals for Veterans Claims and as a law clerk and executive attorney to Chief Judge Kenneth Kramer, United States Court of Appeals for Veterans Claims. Ms. Meredith received her B.S. from the State University of New York at Buffalo, summa cum laude, and her J.D. from the State University of New York at Buffalo, magna cum laude, where she was a member of the Buffalo Law Review.
If confirmed, Joseph L. Toth of Wisconsin will serve as a Judge on the United States Court of Appeals for Veterans Claims. Joseph L. Toth is a veteran of the Judge Advocate General Corps of the United States Navy. In 2011, he served as a field officer in the Rule of Law Field Force Afghanistan (ROLFF-A), where he was stationed with the U.S. Army’s 10th Mountain Division in the Zhari District of Afghanistan. In Zhari, Mr. Toth partnered with Afghan prosecutors to establish the rule of law in the district where the Taliban was formed, and he was awarded the Joint Service Commendation Medal for his service. He also served as Senior Defense Counsel in Pearl Harbor, Hawaii, where he defended Sailors, Marines, and Coast Guard personnel at courts-martial. Following his military service, Mr. Toth clerked for Judge Daniel A. Manion on the United States Court of Appeals for the Seventh Circuit and Judge Robert J. Conrad of the United States District Court for the Western District of North Carolina. Most recently, he served as an associate Federal public defender in Milwaukee, Wisconsin. Mr. Toth received his B.A. from the University of Chicago and his J.D. from the Ave Maria School of Law.
One slot left….
Jerrel caught me shoveling horse apples in the bottom pasture when he called the other afternoon about doing a show. It (shoveling manure) reminds me of my dealings with the VA in many respects. But that’s another story we’ll talk about some other day. I think it gives me time away from the office and a chance to let my mind wander and sort out some of the intricacies of VA law. Poop-scooping is one of those pastimes where men can actually accomplish two disparate jobs simultaneously. Women call it “multi-tasking” as though it comes naturally to their sex. I’ll buy that.
I’ve been doing a case for an §1151 claim for old friends and really never have toyed with this entitlement to service connection before. Think of the myriad rules in a CUE (clear and unmistakable error) claim and you’ll find many similarities. About the only major difference is that you don’t have to prove that the error manifestly changed the outcome. It’s pretty obvious your liver just bit the dust when your eyes look like they were marinated in FD&C #2 Yellow food coloring for a week..
We’ll discuss that facet of VA law this afternoon at 1600 Hrs on the left coast and 1900 Hrs back east. We’ll also discuss §1151 claims versus a Federal Tort Claims Act (FTCA) filing for malpractice. They are two pathways to the same basic thing but the FTCA claim is a finite, one-shot deal versus an §1151 monthly VA check until you kick the bucket. I’d compare it to a winning Lotto ticket. You can take all the money now in one fell swoop with about a 50% loss (FTCA) or make them keep paying it out over your lifetime (§1151 claim).
At any rate, we’ll probably talk your ear off so come on down and sit as spell this afternoon. Put your feet up and pour yourself an iced tea or one of those Long Island versions that make you feel fuzzy. Here’s the web link http://www.blogtalkradio.com/haditcom
To call in and talk
Hopefully, all you meatheads have survived Quatro de Julyo and still have all your digits attached-either by God or surgery. We fired off our share and I noticed you can actually get a crick in the neck from looking up at mortar rounds going off. As most also know, Cupcake adopted something only a six-month baby can ride. I can saddle him up and both feet touch the ground when I’m in the cockpit. What’s that all about? The only thing I’ve seen ride him are the birds in the pasture. Enough. On to the CAVC’s version of “Justice delayed is not Justice denied.”
Meet Buckshot. Check out those cute blonde eyelashes. Buckshot’s going on a diet before the Ischemic Heart Disease gits him.
As most know, I launched another AIM-54 several months ago to prepare for Seattle’s VR&E request for a financial disclosure report of I and my Cupcake’s net worth. You can see Tim Allen in Home Improvement facing the camera and silently mouthing the word “Arruuuuh?” with his eyebrows raised. That’s what it appears it’s come down to. Since I discovered asknod.org is well-read at the Seattle Regional Office now, I can telegraph my intentions to give them time to gather their wits about them and assemble a new war plan. Remember, in this game of VA hide-and-seek, you want them to view you as a hand grenade with a straightened cotter pin- synonymous with an omnipresent danger.
Here’s the report. VA Lions–5, Asknod– 0. This wasn’t a well-reasoned or well-received Ex. Writ. It was a plea to get things moving-or better yet- convene a Panel and ask themselves once and for all, “How much delay can VA drum up while telling him to cool his heels in the waiting room for several years while they fiddle about, fiddle about, fiddle about?”
Any good legal gripe needs a long, slow simmer to bring it to fruition. Once won, VA usually complies. What the hey? They lost. Time to Pony up, boys. VR&E, on the other hand, is that unique office where they march to the beat of their drummer- not VA’s. St. Margaret’s staff attorneys want to see much more of an “arbitrary refusal to act” before they set loose the dogs of war on Shulkin.
Thus, you can understand Saint Margaret Bartley’s apparent ‘shortness’ with me in this decision. What the hey? I thought it was worth $50 to see what cards they were holding. Patience, Alex. If they delay building the greenhouse until next spring, I’ll have more time to get rid of my backlog of claims. Jez. Now I sound like the VA.
Onward through the Fog.
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