CAVC– Hubbard v. Shinseki–Implicit Consideration

vetcourtappealspromoWell, we’ve certainly heard about implicit denial. You know, the ace up the sleeve trick where VA tries to use the “We forgot to include that back claim when we were rating you for the hammer toe and the hemorrhoids, but it was implicitly denied. Besides, you didn’t mention it when you appealed so it’s dead”. A lot of Vets heard that one for a while until the Courts finally said “Hold on there, hoss. The Vet has to understand what it is you are doing to him when you ask him to bend over. This is a claimant friendly environment where the Vet is accorded every courtesy, including a blindfold when he is paraded into the courtyard for his firing squad.”

Those funny guys who work up in D.C. must think we have the collective IQ of Dumbo the flying elephant. This came out of the mouths of the guys of the General Counsel (GC). They are the creme of the legal creme at the BVA. To march into court and recite this babble to an educated  CAVC Judge (Mary Schoelen) almost defies the imagination. Old Tommy TwoTones Hubbard is dead in the water on this claim and his attorney, Perry A. Pirsch, Esq. is wearing a paper bag on his head or begged off on oral arguments before Mary with a bad head cold. It does appear as though Tommy might have done the brief for the appellant judging by what he contends on appeal. This is a train wreck.

The one possible reason for continuing this charade with a remand evaporates in the air when the evidence reveals that our injured party actually admitted to doing heavy duty drugs in 2001, six years before he remembered to change his story and “come clean”  or perhaps “become clean”. My daddy taught me one thing about lying. Don’t. Or, if you do, do not involve anyone else in it who can rat you out. No matter how drunk or high you get, do not get diarrhea of the mouth. Come to Jesus meetings will bite you on the ass every time as you see here. This does not mean I advocate lying as a means to SC. Strict honesty in this endeavor will make it easier six years from now. Remarkably, the story will still be the same.

This decision reveals a fatal flaw and an attempted coverup- a post hoc rationalization for failing to do something correctly. The GC would have us believe that it is not prejudicial error. And for anyone who still doubts their word, a bald statement that even though the RO and the BVA didn’t actually mouth the words “shared razors as a risk factor”, they were thinking it and it was right on the tip of their tongues. So razors were “implicitly considered” even though they weren’t specifically mentioned. Hey. Shit happens. Maybe somebody forgot to write it down, but the fact remains we say we looked at it and we did. Surely, you don’t think we’d lie over something this inconsequential? Besides, the guy is an incorrigible liar and we proved that, didn’t we?

Here’s the actual footage:


The Board acknowledged that the March 2009 examiner did not specifically address “all theories of exposure . . . elicited by the Veteran,” but reasoned that all such theories were “implicitly considered” because the examination report was based on a complete physical examination, a review of the diagnostic test results, and a review of the appellant’s self-reported history. R. at 12. The Board’s analysis on this issue is flawed. The March 2009 examiner ignored the RO’s explicit instruction to comment upon the sharing of razors as a theory of exposure, and continued his silence in an addendum to his original examination report. R. at 32, 37-38. The examiner’s silence on the appellant’s sharing of razors as a theory of exposure cannot permit, contrary to the Board’s reasoning, the finding that the theory was “implicitly considered” and therefore adequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) (finding an examination inadequate where the examiner did not indicate whether he considered the veteran’s assertions of continued symptomatology); R. at 12. Such silence as to an identified theory of exposure cannot yield a fully informed evaluation by the Board. See Barr, 21 Vet.App. at 311;Ardison v. Brown, 6 Vet.App. 405, 407 (1994). The March 2009 examination is inadequate. 

Nonetheless, the Board’s reliance on an inadequate examination does not doom its decision. See 38 U.S.C. § 7261(b)(2) (the Court is required to “take due account of the rule of prejudicial error”). The Board separately, and adequately, found the appellant to be an incredible historian because he provided inconsistent and apparently self-serving accounts of his history of drug use:

A review of the service treatment records, however, specifically indicates that he was found to have a history of drug abuse within eight months of having been diagnosed with hepatitis A in April 1974, and was found to be in the possession of hashish. He also told a VA clinician in May 2007, during the pendency of his
claim, that he again knew of no possible risk factors for hepatitis C. However, as discussed, he admitted in October 2001 to having used IV drugs on at least one occasion in 1973. At that time, the treating practioner found that he had multiple risk factors for hepatitis C, including a history of illegal drug use and multiple sex
partners. Hubbard v Shinseki 2011

Tommy is perhaps “memory-challenged” as new age progressives like to say. This was his undoing more than anything else. But it must be said that, had he kept the story line consistent, he would have had his moment on remand to go through this hopeless Dog and Pony show all over again.

Along with the implicit consideration, I would like to add this morsel of legalese. Mr. Hubbard’s legal cupboard is bare. He finally  alleges, here at the Court for the first time, that it’s all the Board’s fault:

First, the appellant argues that the Board erroneously failed to find that his in-service hepatitis A caused his current hepatitis C and that the Board erected an insurmountable burden to proving such a connection. Appellant’s Brief (Br.) at 5-7. Hubbard v. Shinseki supra

I don’t know if it’s worth it, but you may want to write that excuse down for the record books. Let’s summarize: I didn’t present any evidence or a nexus letter that would help in my claim. I lied about the drug risk. The VLJ ruled against me because he didn’t believe my theory on how I got it and made it impossible for me to win. They dissed me and then they blew me off on the shared razors thing. And what about that benefit of the doubt thingie? I rest my case, your Honor.

I expect we haven’t heard the last of implicit consideration. Anything this new is bound to be around for 5-10 more years before a “clean” Vet arrives at the bar with a viable case. A panel will probably laugh, look the GC right in the eye and say “Are ya kiddin’ me? Really? Are ya kiddin’ me? You want to die on that hill with Gen. Custer?”

Mr. Hubbard has definitely won this month’s “What? Me worry?” award hands down.

About asknod

VA claims blogger
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