Sometimes you can catch a break. A good example in Vetsworld is when you arrive at the Court. I capitalize Court because it’s our Supreme Court of sorts. The BVA is not a court. It is a more erudite appellate form of the cave man Regional Office venue. You will be accorded an appeal, but unless you’ve radically improved your case via new evidence or the RO was stuck on stupid, the BVA will merely reverbalize what they are handed like a DRO review.
Most who travel there to plead their case will be complaining that the prior two venues were dumber than goats. As most know, your first and possibly only intercourse will be as a single judge decision such we are going to examine here. If it involves a totally new concept of law never before decided, you will be accorded a panel opinion of 3 judges. If it threatens the foundations of Vetkind, it will be heard en banc which is currently 7 judges. Actually they only have 6, but one of the retired ones would be called in. When the president and Congress see fit, they will vote to approve 3 more and we’ll have a full house. They cancelled the hearing scheduled for tomorrow regarding this. I expect it would play havoc on their shopping plans. Such are the vagaries of Vet’s justice.
Meridyth Dwyer has arrived, after much delay, before the Honorable Judge Lawrence B. Hagel who was appointed by W in 2003. She seeks DIC for the death of her beloved, William S. Dwyer. He departed for new adventures in 1995. She filed at that time and has been chopping down trees to make paper ever since. Hell, on page three it says they didn’t do much of anything from 1997 to 2004. That must have just frosted Mrs. Dwyer no end. The battle of the nexus and interminable remands have been her nemesis lo these 17 years. What always pulls my string is when the VASEC arrives in court, after ample preparation, filings and counterfilings, and says something like this:
The Secretary agrees that the Board erred in relying on inadequate medical opinions and failing to properly explain its finding that VA satisfied its duty to assist. Additionally, the Secretary asserts that the Board erred in summarily dismissing Mr. Dwyer’s lay statements as incompetent and of no probative value merely because he was not a medical professional. However, the Secretary argues that each of these errors necessitates remand, not reversal. Dwyer v. Shinseki (2011)
I’m sure Meridyth is okay with this assessment, but why is Gomer just now bringing this in? Why not a joint remand for development about a year ago? The reason is simple. Once in Court, the General Counsel boys lick their collective finger and hold it up to see which way the legal wind is blowing. Since it always blows towards legitimacy, they are constantly taken aback that the direction never changes in their favor. Search 100 decisions, be they single Judge or panel, and I wager that of the remanded ones, VASEC will have uttered something to the effect that he acknowledges the need for a remand in 75 of them. The courts tell us repeatedly that justice needs to be husbanded to prevent piecemeal litigation, yet they almost always pull this stunt at oral argument. Hello? McFly?
Old Bill had undisputed evidence of NANB in the records in 1962, and the Board managed to just stare at one thing-the VA doctor’s nexus. They discounted two favorable opinions from his treating physician and a Nurse in arriving at this decision. Judge Hagel’s boys field stripped this decision and looked at this “VA nexus” in minute detail. Here’s Lance’s take on it:
The Court agrees that the Board erred by relying on these medical opinions without further discussion. As explained above, the Board sought clarification from Dr. Aytaman regarding his April 2004 opinion because that opinion failed to comply with the Board’s instructions. Specifically, the key portions of Dr. Aytaman’s April 2004 opinion stated that “we cannot say that the acquisition of [hepatitis C virus] in [Mr. Dwyer] is more likely than not related to [in-service] vaccinations,” and that “we cannot say it is more likely than not that the patient died as a complication of illness acquired during military service.” R. at 305 (emphasis added). However, the Board had instructed Dr. Aytaman to address “whether it [was] at least as likely as not that [Mr. Dwyer’s] [h]epatitis C, or any other disease or injury suffered during service, caused or contributed to [his] death.” R. at 311 (emphasis added). In response, Dr. Aytaman issued a second opinion in May 2005, but still did not address the question specifically posed by the Board. Rather, Dr. Aytaman concluded that, with the information available to him at that time, it was “not very likely” that Mr. Dwyer was infected with hepatitis C virus during his service. R. at 273 (emphasis added). If anything, this opinion ventured further from answering the question posed by the Board than did Dr. Aytaman’s initial opinion. Dwyer supra (emphasis mine)
The CAVC doesn’t have it in for the Vet. They are consumed with the fine point of the law. I think they may go so far as to compare themselves with King Solomon the wise. I bet they feel left out if their grandkids have a disagreement and they are not called in for arbitration. They are stand up guys even if they’re stuffed shirt types. When they find judicial misfeasance, they are anal about telling you in as many words as possible. What ever happened to en banc opinions from the early 90’s that summed it up in four or five pages? Puffed shirtery, I guess.
The VASEC always has one trick up his sleeve- the mea culpa argument:
The Secretary, on the other hand, concedes that the Board erred in relying on Dr. Aytaman’s opinions, but contends that the appropriate remedy is to vacate the Board’s decision and remand the matter for further development and readjudication. The Court agrees with the Secretary.
Additionally, the Secretary contends that the Board did not properly consider the competency of Mr. Dwyer’s lay statements that he believed he was infected by the hepatitis C virus while in
service. The Court agrees that the Board clearly erred in this respect.
So here we go again. The VASEC has donned sackcloth and ashes, conned Hagel into letting the BVA go on another fishing expedition to fix this and deny poor Mrs. Dwyer properly. Dr. Aytamen will be taken aside and told “Listen Habib. Read the letter and do it like it says. Write ‘not at least as likely as not’ and don’t embellish it. You made the boss look like a boob, you dolt. Another one of these ass backwards nexus attempts and we’re gonna have to take a look at your long term VA employment prospects. Are we clear on that?”
Out of respect, I will stay neutral on this one. To me it’s definitely a BOTD situation, but VA has failed to follow the rules. When do they ever? Giving them another chance to bushwhack her legally is counterproductive. Habib should be given the benefit of the vacation and another truly “independent” source from outside the system do the nexus without benefit of anyone else’s opinion. I would call that the true Joe Friday “just the fax, ma’m. Just the fax.” I don’t know what’s up back east, but we on the left Coast have been given the QTC system of C&P exams (see VA dictionary). Some Vets benefit from this where HCV is concerned. At least QTC knows that the NANB test arrived in 1988 and the term HCV wasn’t invented until 1992. Sadly, I can’t say that about VA examiners.
Last but not least, Judge Hagel admonishes VASEC to make sure he actually gets Dr. Habib to say whether he did or did not contract this disease in service. This is a vicious verbal jab you usually hear a haughty woman offer another in a soft, silky voice with a deadpan expression. It’s akin to broken up glass hidden in ground beef, but couched in innocent verbiage:
The Court is compelled to comment on one other issue that may arise on remand. Namely, the Court notes that, in relevant part, the instructions the Board provided to Dr. Aytaman in March 2004 asked him to comment only on “whether it is at least as likely as not that [Mr. Dwyer’s] [h]epatitis C . . . caused or contributed to [his] death.” R. at 311. Thus, the Board did not ask Dr. Aytaman to comment on what appears to be the other critical question in this case; namely, whether it is at least as likely as not that Mr. Dwyer was infected with the hepatitis C virus during his service. Although it appears Dr. Aytaman attempted to offer such an opinion, the terms of his opinion were deficient, as outlined above. On remand, the Board should carefully phrase any future inquiries to VA medical personnel so as to include this question. Dwyer supra.
Smart money could go either way on this. DIC isn’t that much and Mrs. Dwyer isn’t going to collect it for very long. Wild Bill probably enlisted for Korea in 1952 at 18. She’s every bit of 80, nearabouts. She’d pull in $220 K in back pay, too. VA may just let it slide and give it to her. Knowing the Man, for $220 K he won’t let it go. She’ll be back in two years. Mark my words.
This was the first HCV case in 2011 so she’s already got a year of knitting piled up on her needles. Our prayers are with you, Meridyth.
Just for shits and grins I googled her attorney-Sean A. Ravin and look what I found:
The internet is an amazing device. So is a woman.