CAVC–Kahana v. Shinseki (2011)–Another Faceplant


In keeping with a long tradition of screwing up Veterans’ claims, our exalted Leader has once again stepped on his  necktie and  had another unproductive tête-a-tête  with the CAVC. This one is so predictable I’m surprised they didn’t just give it a single judge disposition and be done with it.

Rick K. Kahana comes before the Court to plead for justice. He has an airtight, open and shut case and the Secretary simply refuses to acknowledge it. He (the Secretary) therefore instructs all his horses and men to fight with all they have to obfuscate, temporize and prevent justice from reaching fruition. If they spent this much time on our claims in the first instance we wouldn’t have these problems. As it is, they have spent hundreds of thousands of dollars wrongfully denying this poor boy what is rightfully his. The Court agreed and vacated the Board’s findings. This is the bitchslap. A remand is the Court’s method of telling the VA to shut up, sit down and take notes on what is going to be said. The Court will order the VA to give Rick a new review and to be quick about it. Chances are you are not going to see Rick back at Indiana Ave. NW on appeal again for this issue.

Rick hurt his left knee in service and no one disputes that. VA gave him SC for that in 1980 shortly after his discharge. Although the Court transcript is unclear, Rick was afforded a Board hearing in 2007 so he must have filed for the right knee prior to that and gotten the bum’s rush from the RO. Knowing it takes a while to get that  hearing, you can interpolate backwards and figure he filed in 02 or thereabouts. The Board made a litany of errors so basic that one wonders who was behind the wheel-if anyone. In another of our CAVC postings, we brought you Colvin v. Derwinski- Nobody here but us Doctors. This case parallels Mr. Colvin’s dilemma- namely the Board putting on their Ben Casey outfits and playing doctor. This is why we feel this should never have been assigned to a panel. Perhaps it was a “teaching moment” for the Court to enunciate the Colvin holding. Who knows? The important thing is the Court felt obligated to reacquaint  the Secretary with how business is conducted and the consequences of violating the protocols. Remands based on 1991 decisions are few and far between and are necessarily rare-as they should be. With that said, we are seeing more and more of them every year. This is disturbing for any number of reasons, the least of which is that had Rick not appealed, he would have been sucking the hind teat.

Consider this. VA regulations summed up in 38 CFR are not that onerous or confusing. They are rather static and change very rarely, if at all. Being cognizant of these regulations is all VA is required to be versed in. That is a relatively narrow field of law with unique rules applicable to only Vets. The process is well-defined and requires less law training than a comparable attorney would encounter in the real world. So why are they clueless and confused?  Patience, Gentle Reader. Therein lies the enigma.  VA is predisposed to deny any and all claims. They generally decide to deny and then craft the reasons to fit the facts. In the event that evidence supporting the claim is present, the approved method is to simply ignore it. If they get caught with their pants down later, they can simply apologize and cough up the bucks. No harm. No foul (or at least not an irrevocable one)

This is what happened to the Rickster. There was mention in his SMRs of an injury to his right knee, but nothing glaring or definitive. Bingo. VAthink kicks in and sayonara to that rating. The Court had this to say about the Board’s disingenuous  attempt to gloss over the SMRs:

The Secretary further argues that since the SMRs show no right knee injury during service, “there was no bias or impartiality in the addendum request.”  Secretary’ 16.  The Court does not agree.  As noted above, there appears to be one notation in the SMRs as to a right knee injury. R. at 634.  In any event, the lack of medical evidence in service does not constitute substantive negative evidence.  McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006).  The examiner could have potentially determined,  based on  other evidence  of  record including lay statements and  private medical opinions, that, regardless of the lack of documentation in the appellant’s SMRs, the appellant injured his right knee in service.  The statement in the request that there was no right knee injury in service indicated to the examiner that all of the evidence had already been analyzed and a conclusion reached, and thus impeded her impartialityKahana v. Shinseki (2006)

This bears out my contention that VA will deny in spite of evidence supporting a contrary or plausible conclusion. The fact that they decided to play dress-up doctor compounded the error with interest. I have always held that this is their modus operandi. It works like a charm unless or until a Veteran appeals to the Court. The house of cards disintegrates when subjected to a closer examination. We at Ask Nod do not arbitrarily assign fault to the Veterans Law Judge who hears this. Remember, he is ably (ha!) served by no less than 12 young eager wannabe VLJs who sometimes do sloppy research just as the ROs do with their flawed examiner’s logic predicated on the M21 manual. The difference is that once the decision is set in stone at the BVA,  the Secretary is loathe to upset the scales of justice and correct the error. Whether this is due to embarrassment or to assuage the feelings of the VLJ is immaterial. Letting a flawed decision stand is wrong. Rigorously defending it to the tune of untold dollars and delay to the Vet is unconscionable. Yet it happens so frequently that it has become the norm rather than the exception.

Where does this leave you? Well, without insulting your intelligence, it’s apparent that a failure to appeal makes as much sense as screen doors in submarines. You have a lot of time invested into your claim when you finally get the wave off from the VLJ. If your claim truly has merit and the facts have been  obscured or ignored, a trip up to Indiana imperative. Veterans may not be aware of this, but the Court is not part of the VA. It has been set up as a watchdog to restrain the excesses of the VA. The mere fact that Congress felt a need in 1988 to enact the Veterans Judicial Reform Act is very telling.  The old adage that “If it ain’t broke, don’t fix it” says it all. Congress, it would seem, saw a broken process and decided to remedy it. VA has never been the same since. The Secretary considers his authority has been abridged and has had his proverbial heels in the dirt since. This is why we find ourselves denied virtually automatically at the RO. The same process follows almost invariably at the Board absent any new evidence.

Rick’s predicament was salvaged by errors discovered by a process VA has consistently held to be arbitrary and redundant (the Court). Our rejoinder at Ask Nod is “Who’s the fool, fool?” Read all about Rick’s exciting adventures in D.C. below.                                                            3525_published_opinion_June_15_2011.pdf

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One Response to CAVC–Kahana v. Shinseki (2011)–Another Faceplant

  1. Always appreciate your generosity in verbiage; esp. related to the CAVC! Was referred this a.m. from VAClaims-Case, Controversy and the Violin! Have been reading daily every intricacy I’ve seen;
    as I “wait” for my 2nd and Final BVA Decision; which I calculate is somewhere between one week and three years; give or take a year. Although the AMC slowed us down for a period short of one year, it was a dividend and not a debit as our :New Evidence” became part of our RBA! Yay!!
    IF we end up back at the Court; and we will if another Denial, then I am fully confident that we have the elements that may have either been missing and/or had not been able to convey to the court for whatever reason in Tour #1; albeit we did get that Jt.Remand for two issues that have not been addressed by the lower body v/s the BVA (to come as indicated above).

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