We at Ask Nod are always searching for ways to overturn prior decisions, be it by collateral attacks (CUE) or by finding old service department records bearing on the claim. Towards that end we spent many months, indeed years, researching the early days of the Court of Veterans Appeals (COVA) now known as the CAVC.
When attacking a final, unappealed decision of the RO or BVA, the Vet has to search for some procedural error that was so egregious, indeed so glaring, as to sandbag everything that followed in its wake. Prior to the Russell decision in 1992 (en banc), the new standard for CUE before the Court was any procedural error that was prejudicial to the Veteran’s claim. Russell narrowed that down to say that the error had to have manifestly changed the outcome of the decision. It also removed benefit of the doubt from the equation.
This decision was before Russell and has its roots in another area-that of the BVA and the RO leaping to medical conclusions or making them without independent medical analysis. Prior to the inception of the Court in 1989, there were 20 sections of three judges each at the BVA. Each of these sections included a medical doctor as evidenced by the M.D. after his name. As medical experts on the Board section, they were required to inveigh and provide all decisions with needed clarification if necessary. They also sat as judicial members and thus wore two hats.
When the VJRA was passed by Congress in 1988, all this changed. The VA, nevertheless, continued to do things as they always had. They retained the medical Board member and ignored the new paradigm. After several years of this misbehavior, the Court finally put its collective foot down in Murphy v. Derwinski (Nov. 8th, 1990):
Although the Secretary appears to argue to the contrary in this appeal, Br. of Appellee at 11, the fact that a BVA panel may include a physician is not by itself sufficient for the purposes of the statute, the veteran or this Court. BVA decisions must include the “reasons or bases” for medical conclusions, even those opined by a BVA physician; a mere statement of an opinion, without more, does not provide an opportunity for the veteran to explore a basis for reconsideration or for this Court to review the BVA decision “on the record” as required by 38 U.S.C. § 4052(b) (1988). Murphy supra.
This precept apparently didn’t sink into their thick, dense skulls. The Secretary blithely ignored this and proceeded on his merry way as if nothing untoward had occurred. The Court was not amused and waited patiently for another Veteran similarly situated to arrive. Almost four months to the day from the Murphy holding, the Court filed its decision in Hattlestad v. Derwinski (March 6th, 1991):
While the Board is not required to accept the medical authority supporting a claim, it must provide its reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision. Hattlestad supra
Just in case the Secretary had not absorbed the enormity of this precept in Murphy or Hattlestad, the Court followed it two days later with the Colvin decision. I don’t know exactly why, but some decisions are more memorable and cited in subsequent years at the expense of the cases they were predicated on. So, too, with Murphy and Hattlestad. In all jurisprudence for a decade after, Colvin was cited exclusively with only sidebars acknowledging the other two. An interesting fact that some legal scholars fail to note is the action the Court takes to enunciate their displeasure at being dissed. Murphy was vacated and remanded to be reaccomplished with assistance to the appellant and a better description in the Reasons and Bases section of why she should be denied. Hattlestad was remanded for reconsideration and disposition with 6 enumerated reasons why it was judicially insufficient. Colvin was an entirely different proposition. The Court reversed the BVA decision and remanded it to be accomplished the way the Court said it should have been done in the first place. What this means is the decision-making and fact-finding authority invested in the BVA was rudely suspended and the imprimatur of the Court was superimposed over theirs. This is the ultimate bitchslap only the Court can inflict. Reversal is rarely used, but when it occurs, it is not done gently. Mr. Derwinski and his minions finally sat up and took notice. While it was several more years before the VA relinquished the requirement of an M.D. on the Board section, the error continued to perpetuate itself because old, bad habits die hard. The most obvious reason was to let the M.D. judges either retire or seek employment elsewhere in a truly medical environment. Veterans think this error is an anomaly. We disagree because we see it as a well-defined denial ploy that has been utilized repeatedly by the VA for over half a century since their modern inception in 1946. This decision signaled the death knell for the practice and IMOs have finally supplanted the ugly habit.
William H. Colvin is one of our generation. He was seeking SC for Multiple Sclerosis. We can readily identify with his plight in a more modern setting. I don’t wish to demean the accomplishments of WW2 and Korean War Vets, but I identify with Mr. Colvin and Vietnam as I spent two years over there. I get ahead of myself here. A little history is in order. It personalizes the man I am about to describe.
Mr. Colvin was drafted and served two years in the Army from 3/66 to 2/68. While in Vietnam, he was wounded three separate times: shrapnel wounds to the head and right arm on February 26, 1967; shrapnel wounds to the right leg on March 26, 1967; and shrapnel wounds to the left forearm on May 10, 1967. For those of you who have no military background, that means he got three Purple Hearts. One military historian summed it up by saying a Purple Heart proves three things;
1) You were smart enough to come up with a plan
2) Stupid enough to try it and;
3) Lucky enough to survive it.
On April 27, 1967, he was treated for a urinary problem that was diagnosed as a kidney stone. Medical evidence in the record indicates that urinary problems are a possible precursor of multiple sclerosis.
In 1982, Mr. Colvin was diagnosed with Multiple Sclerosis. The VA held that he had to come down with this within the presumptive period of 7 years or less after service absent a medical nexus. The BVA decision of 1986 denied his claim (in spite of his nexus) and that was all she wrote because there was no judicial review available to Vets then.
In March of 87, Mr. Colvin was seen at a VAMC for his knee issues and the neurologist stated the MS began in Vietnam. One would think that would be the end of it. Nevertheless the RO denied again and he didn’t appeal it up to the BVA this time.
Once again, in August of 88, Mr. Colvin reopened his claim. Being slightly more educated in the process, he arrived with a doctor’s nexus predicated on the doctor having read all his medical records. The doctor even went so far as to say that extreme stress could be a aggravating factor in inducing MS. I think we can safely say that shrapnel wounds from exploding ordnance on three different occasions would qualify as stress. Once again, the RO said “No dice”. The BVA decision announced in December of 1989 concurred with the RO and continued the pattern of denial. The BVA went further and implied that the reopening of the old claim, while introducing new evidence, failed to bring material evidence to the table.
I won’t bore you to death with the Board’s findings verbatim. Suffice it to say that they put on their Dr. Kildare outfits and played doctor. That’s a Bozo no-no in 50 states and the Court didn’t view it any differently. In fact, they were so incensed with the Secretary’s intransigence on this subject that they took it one step further and reversed in favor of Mr. Colvin:
The BVA decision does not cite medical evidence of record in this case or recognized medical treatises to support these medical conclusions. The BVA, in finding that the new evidence did not provide a new factual basis for a claim was, in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions. BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See 38 U.S.C. § 4009 (1988);Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 4 (Nov. 8, 1990).This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before this Court.
Lest we be misunderstood, we are not saying that the BVA was compelled to accept the opinions of Drs. Cohen and Kassirer. We merely state that having reached a contrary conclusion, it was necessary for the panel to state its reasons for doing so and, more importantly, point to a medical basis other than the panel’s own unsubstantiated opinion which supported the decision. Colvin supra
Mr. Colvin, via the Court, has left us this judicial gem. He could have given up and walked away. His decision to pursue justice before the COVA was a novel experiment in that they were newly incarnated. As I pointed out, this wasn’t the end of the Board playing Ben Casey, M.D. They made this mistake numerous times afterwards, but were always on the losing end of the stick. It became commonplace for the Court to simply delegate it to a single judge and treat it like a speeding ticket. The Secretary gradually realized that avenue to deny Vets was a dead end and promptly instituted newer ways to accomplish his agenda. The Court continues to uncover these new ploys when presented with them and gradually eliminates them. The Secretary is very prolific in his denials of Veterans’ claims. We liken his actions to the Hepatitis C virus that forever mutates to avoid eradication. As quickly as the Court identifies and invalidates a disingenuous “holding” of the VA regulations, they are hard at it constructing a new iteration of the same thing under different auspices.
When you lie down and go to sleep at night, say a prayer for the Court and their continued good health. They are all that stands between you and an overzealous VA intent on denying you that which invariably is your due.
Attached below is the Colvin PDF. At 5 pages, the brevity of the Court is displayed in its entire shining splendor. Murphy accomplished it with six pages and Hattlestad 10. I guess you don’t have to keep shooting the horse after its dead to make your point. The Court certainly didn’t think so.