This decision was just released yesterday or I just found it. Both are possible with my addled brain. The decision is important for only one reason- that it clarifies and in some ways redefines the presumption of regularity.
VA pushed this concept further and further the moment they got a win on it in Woods v. Gober, 14 Vet.App. 214, 218 (2000). This hinged on a Supreme Court decision when God was young in 1926 (cf. United States v. Chemical Foundation, Inc., 272 U.S. 1). In VA law however, every case is decided “de novo” which is lawspeak for brand new. That concept is a win-win for Vets because the BVA has a spotty track record for being able to figure out the law.
I discussed the concept of the presumption of regularity as it applies to the mailings of VA to claimants in Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007).
The VA has taken this to put the presumption onto everything it does as evidenced after Woods v. Gober, 14 Vet.App. 214, 218 (2000);. The problem, as we all know, is that the VA is horribly inefficient and one could, in good faith, assign the “presumption” clause to mean it can be presumed that if VA can screw it up, they will. I guess I don’t need to re-illustrate the old “construe” argument when it comes to their ability to figure out what it is you are trying to claim.
Andrea M. McNair had some issues with her “upper endowment”. It seems Mother Nature was very generous to her. She had one reduction surgery in 1989 before service and another post service nine years later at a VAMC in 1998. Apparently, things didn’t go as planned and there was much pain described as neuralgia following the latter surgery. Andrea filed an §1151 claim alleging that the doctors didn’t discuss all the possibilities of complications that might occur post-surgery. The VASEC has chosen, among other arguments, that the presumption applies to everything- including a doctor presumably telling her about what might happen. He added, inter alia, that even if the doctor didn’t tell her, it could be inferred. I think “inferred” may be one of those buzz words for construe or interpret that VA is so fond of bandying about on appeal.
Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) held that the presumption of regularity applied to the competence of VA examiners. I don’t know how that one got by. I think we as Vets can say that isn’t the case 100% of the time, but it’s too late to change Rizzo now. VASEC has simply used McNair to open the umbrella a little wider and bring doctors under it. The Court put their foot down and told him to quit using those impossibly large umbrellas soccer moms employ. Some doctors can be expected to step on their neckties at some point in their careers. This is why we have malpractice insurance, right? That the VA gets a “bye” and is judgement-proof in a lawsuit in no way excuses dumb doctors or their mistakes. This is why we have the §1151 claims mechanism in the first place. Some of us don’t discover VA has screwed up surgically for several years and this prevents a Federal tort action (statute of limitations-two years).
Andrea’s case has been remanded for a de novo decision again at the Board. What happens there will be of interest to all of us who got the short end of the scalpel. It will probably be narrowly interpreted to be a case where the outcome was a foreseeable eventuality, but it shouldn’t be. The consent to surgery should be a well-informed one with a detailed discussion of all the possibilities for catastrophe. VA gave me two surgeries that had “unintended consequences” (e.g. peritonitis/septicemia/short bowel syndrome). Their theory is forewarned was forearmed. It missed one tenet- medical misadventure at the hands of an incompetent surgeon(s). The following paragraph is a synopsis of what is wrong with McNair :
Here, the Board essentially found that the preponderance of the evidence was against Ms. McNair’s assertion that she was not informed that she might suffer from neuralgia as a result of the surgery, but the Board’s statement of reasons or bases in support of its determination is inadequate. Its only stated basis for this finding is the bald statement that “based upon the evidence in this case a reasonable person could assume that the surgeon’s detailed discussion addressing possible residual scarring includes associated neuralgic pain.” No rationale is provided for concluding what a reasonable person could assume, frustrating judicial review. Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that the Board’s statement “must be adequate to enable a claimant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court”) McNair v. Shinseki (2011)
I wager this will appear here again like a red and white fishing bobber resurfacing after a strike. I don’t see Shinseki backing down on such a big finding as this. Hundreds of VA malpractice attorneys will be all over this like white on rice if she prevails. The costs to VA are incalculable because they make mistakes-big ones with attendantly large consequences I might add.
I promise to keep you apprised of any developments on this one. No, not the inbred cat.