CAVC–Clemons v. Shinseki (2009)–Not an M.D.


VetCourtAppealsPromoClemons v. Shinseki is a marvelous piece of work. I’m sure Eric the clueless wasn’t entirely enthralled with the outcome, but that is neither here nor there. Bill Clemons simply reinforces Espiritu v. Derwinski from our point of reference.

Mr. William N. Clemons was a Squid and a participant in the Korean “Misunderstanding”. He served aboard the USS Rochester from 2/52 to 9/ 53.  They stored some cadaver popsicles in the ice box on board and this had a deleterious effect on poor Mr. Clemons’ brainbox.  In 2002, nearly two score and ten years later, he filed for PTSD reasoning that that was probably what he suffered from. He didn’t much care what the name of it was. He knew he had a problem and asked VA for help with it. Utilizing their four dimensional Ouija Board techniques, the VA fiddled with it for 4 years and finally came to the conclusion it was not PTSD. Silly Billy had filed for PTSD and they had determined he had a schizoid personality disorder. Because he had not claimed this, he was not entitled to it. VA’s theory was simple. “Start over with a new claim, Bill”. Mr. Clemons wasn’t going to be rolled that easily. He dutifully filed his NOA and set about remodeling the kitchen patiently for three years.

2000px-Rubik's_cube.svgIt should never have had to have been appealed that high and when it arrived, the Justices started examining it like a Rubik cube. The General immediately went into full pit bull mode and said Mr. Clemons didn’t deserve to be there as he didn’t suffer the claim he was appealing (PTSD), and the illness he did have hadn’t even been decided yet ( schizoid personality). Therefore, absent a claim to appeal, the Court had no jurisdiction to hear it.

Mr. Clemons, on the other hand, patiently explained there was, and had been, only one claim. It certainly wasn’t his fault that he wasn’t a licensed headshrinker capable of diagnosing his problem. He had come to VA, hat in hand, and intimated that his head wasn’t too tightly attached anymore. In spite of his thoughts on the subject, he was putting himself in VA’s able hands and letting them figure it out.

The Court had to decide first whether they had the right to hear it. If there were two separate claims, then it was Goodbye Mr. Clemons.  Displaying remarkable insight, the Judges rightfully reasoned that Mr. Clemons had one claim and one only. Perhaps it was multifaceted, but it was still basically one claim.

About this time the General had a pow wow with his people. They realized the futility in continuing to blow smoke up the Justices’ asses. He then approached Mr. Clemons and allowed as how they probably might oughta ask the Court to issue a Joint Motion for Remand (JMR). The VA would call this a reasonable accommodation on their part. Mr. Clemons wanted a rapid resolution to this, smelled victory and agreed wholeheartedly.  Unfortunately for the General and Mr. Clemons, the Justices now had a death grip on this doggy bone and were loathe to relinquish it.

After much examination, they decided to clarify the claim for the General on the off   chance he still didn’t get it. Instead of a simple JMR, they explained that what Mr. Clemons had was unarguably one claim only, not several inextricably intertwined ones. As such, the VA was instructed to send it all the way back down to the RO and basically start over with a new adjudication based on the premise that the mental trauma Mr. Clemons experienced in 1953 was either an anxiety order or a schizoid personality disorder. He had been diagnosed with both by VA’s finest and they had made the added mistake of saying that it was directly related to the popsicles on board the USS Rochester.

In 1993 Espiritu v. Derwinski was decided. It held that a Veteran, absent any formal medical training, was not capable of making decisions medical in nature. This was certainly a valid holding and no one found fault with it. Layno v. Brown (1995) expanded on this by saying a Vet was capable of testifying as to those symptoms he could ascertain via his five senses. Decisions following this were similar and expanded only the circumstances but not the underlying jurisprudence.

When Mr. Clemons entered the arena, the General granted him medical authority to determine his disease and then held him accountable for his own misdiagnosis. In the General’s mind, VA had accepted Mr. Clemons’  explanation for his ills at face value. They could hardly be held to account for this unexpected turn of events. And being the stand up guys they were, well shoot, they were more than willing to start a new claim for these other, recently discovered disorders. Of course, there would be no discussion of an effective date earlier than 2009.

The Clemons Court was not entirely finished with the General, however. They reasoned that just as a Veteran is ill-equipped to make decisions medical in nature, the blade cuts both ways so that a lay claimant cannot be held to a narrowly claimed diagnosis – one he is incompetent to render when determining what his actual claim may be in the first place. This is Layno and Espiritu 180 degrees out of phase.

I’m sure the General wasn’t expecting this.  He thought he had arrived with an airtight case. When faced with Pandora-like reality, he tried desperately to retreat with a JMR.  What ensued were seven additional pages of decision that created more favorable jurisprudence for Veterans in their fight for justice:

Rather, the Board denied the claim because the appellant’s hypothesized diagnosis–one he is incompetent to render–proved incorrect, instead of confronting the difficult questions of what current mental condition actually existed and whether it was incurred in or aggravated by service. The Board made no affirmative finding as to the nature of the appellant’s condition, it only observed that the appellant was not diagnosed with PTSD.  However, because the appellant was reasonably requesting benefits for symptoms of a mental condition he was not competent to medically identify, the adjudication of his claim does not end in the face of currently diagnosed mental conditions that are different from his lay hypothesis in his claim form. It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant.  The Board should not limit its consideration of the claim based on the appellant’s  belief that he suffered from PTSD, something he generally is not competent  to render in the first place.  (Clemons v. Shinseki)

This always brings to mind the old saw “Be careful what you ask for”. Ladies and Gentlemen Vets, I give you Mr. William N. Clemons N.M.D. (Not a Medical Doctor):

http://www.uscourts.cavc.gov/documents/Clemons-5581.pdf

About asknod

VA claims blogger
This entry was posted in Important CAVC/COVA Ruling, PTSD, Veterans Law and tagged , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

One Response to CAVC–Clemons v. Shinseki (2009)–Not an M.D.

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