Here’s an interesting decision that will provoke much discussion for years to come. This comes to us from Shreddergate, the Cleveland, Ohio VARO with a unique filing system for round records that don’t fit into square holes. Their motto is tried and true- When in doubt, do without (shred it) .
I review many legal decisions here. Many are not precedent-setting but nevertheless provide us with valuable insight on how the VA works. This case is very unique for any number of reasons. First, it fills the bill for a case having to do with HCV. Secondly, it is sufficiently unique to pique my attention. Lastly, it shows you, the Veteran the perfidy of the VA examiner in seeking to cover his ass after making what he and his superiors considered to be a gross error in judgment. They are your nemesis- treat them as such.
You will come to discover that when VA makes a decision and arrives at a finding, they are stuck with it. They can’t shout “Do Over” or “Not It!” No sir. Once they announce it, it’s Holy Writ just as much as a bullet that cannot be coaxed back into a fired gun.
This is also what is called a Merged Appeal. It encompasses two different decisions simultaneously. Here are the particulars. Sgt. Cleveland applied for HCV in February 2002 and was granted SC in October, albeit at 0% from February to August and thence 100% onwards. Our Sgt. contested this in a NOD and finally completed a Form 9 and certification of appeal in 2003. While waiting for a Court docket in D.C., the VARO decided to cut him off based on a Clearly and Unmistakably Erroneous decision rendered that sunny October day back in 2002.
This came to pass in a February 2006 VARO decision which was effective June 1, 2006. So what he had now was a decision on an original appeal remanded down for development in April 2005 being 86’ed . No development. No claim. No 100%. No dice. By this time the good Sgt. had filed to block the severance to no avail. Perhaps that idea of holding out for an earlier effective date was starting to sour in his mouth.
The BVA took mercy on the boy and threw him a life preserver in the form of another remand to get his feces co-located and obtain a personal hearing to clear all this up in a mano a mano before the VLJ. This he declined to do, and in August 2007 asked for the claim to be returned to DC for adjudication. I will say he was confident. I certainly wouldn’t have been under these circumstances. As you will see, he lucked out.
This VLJ, F. Judge Flowers, is another of a long line of judges who have been there a while. As such, he is tenured and knows his jurisprudence is above reproach. He will not face opprobrium from the General Counsel for this decision because it was correct. They might have gotten purple-faced and apoplectic, but there was nothing defective about his reasoning.
CUE as a judicial tool is most often employed by the Veteran to disturb an otherwise final decision of the VA. The saw cuts both ways though. If VA finds the reasons for your grant are defective, they can elect to disenfranchise you and take it away. Unlike your CUE options and requirements, they can rely on subsequent medical evidence obtained after the rating to do this. You cannot. You are limited to the record as it sat when the decision was rendered.
What VA forgets all too often in their rush to judgment is elementary- the record. This is cast in stone. VA frequently attempts to rearrange the verbal furniture in a vain attempt to disguise their motives. Here is one of those classical “post hoc rationalizations” they are so fond of. The problem arises when VLJ Flowers calls bullshit on their technique…
The RO has alleged an error of fact, VA’s failure to recognize that the veteran’s service medical records did not indicate he had a blood transfusion in service, as its basis for severing service connection. The Board notes that the veteran’s service medical records were on file at the time of the October 2002 rating decision. A November 1976 record reflects the veteran’s scalp laceration was cleansed and sutured, but no mention is made of a blood transfusion.
It is unclear, however, that the veteran was granted service connection in October 2002 based on the assumption that he had received a blood transfusion in service. No mention of a blood transfusion is made in the October 2002 rating decision. This inconsistency was specifically pointed out to the RO in the October 2002 VA examination report. It therefore appears that considering severance on this basis amounts to little more than a reconsideration of how the evidence was originally weighed. Mere disagreement as to how the facts were weighed or evaluated cannot form the basis of a claim of clear and unmistakable error. Luallen v. Brown, 8 Vet. App. 92 (1995). Therefore, the Board does not believe that the alleged error of fact is a legitimate basis for clear and unmistakable error.
And lastly, the piece de resistance:
Even assuming that the veteran was a habitual user of intravenous drugs prior to contracting Hepatitis C, however, the veteran’s remaining risk factors render the Board incapable of concluding that the veteran “undebatably” contracted Hepatitis C from intravenous drug use. Specifically, the Board notes that the veteran admitted having sex with a prostitute while in Germany, and the October 2002 VA examination report indicates the veteran was promiscuous while in service. As noted above, the residuals of venereal disease are not considered to be due to willful misconduct. See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301. From the competent evidence of record, it does not appear indisputable that the veteran contracted Hepatitis C through drug use and not through unprotected sex.
So you see fellow Vets, once the Oracle of Delphi at Drew Carey’s VARO has opened his piehole and opined in a decision that our illustrious European traveler could have obtained this HCV hitchhiker from a Madame du noir in Germany, he was stuck with it. Remember when you were young and your parents asked you how the bookcase with the candy bars on top tipped over on Halloween morning? The story changed each time with the telling. No longer was Frisbee the dog the guilty party. It was the lost hamster you were rescuing. Then it was an Act of God or an earthquake. Eventually you broke down and admitted your crime. The only difference here being the VA examiner was never going to cop to his underhandedness.
What this all goes to prove is to be careful of what you say. The VA examiner who dropped the ball on this in 02 must have thought he had won the Lotto. Here came the Vet back on remand which allowed them to reexamine the original decision and fix that which they screwed up (in their own minds). The obvious error was trying to pull the post hoc rationalization switch- scratch the transfusion and substitute the IVDU. You can do this hat trick if the prostitutes are not waiting off stage in the wings.
Our lucky Sergeant escapes with his grant restored and an initial rating of 40% followed by the subsequent 100% he had originally. He should probably thank his lucky stars for getting Judge Flowers to adjudicate this. I commend him for hiring an attorney and not relying strictly on a VSO for judicial guidance. The moral? If they hand you the deed to the gold mine, don’t ask them to pay the electric light bill, too.