CAVC–HORBOL v SHINSEKI– Medical Opinions from Fortune Cookies

Veteran Steve A. Horbol served from 1972 to 1975. He was service connected for HCV before he arrived here. He’s trying to connect the dots between sleep apnea and his hep. I commend him for trying. I think it would have been a good idea to get his own nexus for that, as well as the toenail fungus he’s claiming. He’s doing this pro se so the Court has it’s “special handling” gloves on. He gets the royal treatment from the Judge, but they still require every t crossed and every i dotted. Steve missed a few of them and doesn’t get a star after his name. Fortunately for him though, he gets another bite of the apple because once again, VA has tried to cheat. In order to ameliorate this, the VASEC vainly attempts the role of  the hero and defends the Vet from the excesses of his inept underlings.

What is it about the VA that lets them think there are two sets of criteria for evidence to be probative and credible? The Court has held that the Board is entitled to assume the competence of a VA examiner.”[ Cox v. Nicholson, 20 Vet.App. 563, 569 (2007)]. I don’t. I have too much evidence accumulated in just the last 3 years that argues for a different assessment. Much of it has been presented on this site.

VA examiners are VA personnel charged with assessing all the evidence, inputting it into the M-21 computer and reading the result. They are then supposed to send it to their supervisor for a signature and thence to Quality Control. After everyone has placed their imprimatur on it, off she goes to the Steno pool for typing and mailing. The room for error is vast. After Quality Control, one would assume it was half-vast. With all the technology, a simple voltage spike during this process can vomit out an incorrect “holding” from the M-21 device. A slip of the finger on the keyboard will induce an incorrect conclusion. Mostly, relying on a medical doctor’s finding in his last sentence-as in “not at least as likely as not” -without determining whether the bozo even perused the Vet’s medrecs can result in a denial with the evidence pointing to the exact opposite.

If this were a rare event, we’d all chalk it up to an aberration and move on. When it’s the norm and VA continues to profess its rarity, we need to reassess the way they conduct business. This is a single judge decision, but it illustrates what is becoming distressingly familiar. Doctors who perform C&Ps, IMEs and IMOs need to be mighty precise in their findings. When Joe Vet arrives at the RO with nexus in hand, VA routinely discounts, discredits and generally trashes his efforts. The reasons usually fall in a narrow confine. Either the opinion is not well-reasoned, is devoid of probative cites or fails to review his SMRs. In the event the good doctor accomplished all these requirements and he has no specialized training in the field, his opinion will be denigrated as less than perfect. Here Mr. Horbol contests the VA’s “expert” as being unknowledgeable  in the art of sleep apnea. The Court gives VA a pass on this, but jerks the choke collar abruptly on the matter of the review of the the medical records. It’s painfully obvious the good doctor hasn’t and the VASEC is forced to concede this. I find it interesting that the record on appeal leads us to believe the VASEC showed up here pleading for remand because he felt the poor Vet had been denied a probative C&P:

Second, however, the Court agrees with the Secretary that the March 2009 VA examination is inadequate because the examiner misstated facts from the claims file and failed to provide supporting rationale for his conclusions. In this regard, the examiner stated that Mr. Horbol had seen several physicians at a VA medical center and none had concluded that his joint pain was related to his hepatitis C. However, in a September 2008 treatment note, a staff physician clearly stated that “[Mr. Horbol’s] joint pain is more likely than not related to hep[atitis] C.” R. at 110. As noted by the Secretary in his brief, because the examiner made an incorrect statement in his opinion, the portions of his opinion that relate to sleep apnea could also be problematic. Horbol v. Shinseki

So here we have an enigma. How is it this case is before the Court when the VASEC is begging for a remand at the last minute? It’s almost as if they (General Counsel) decided to read the whole thing while sitting in Court and came to the shocking conclusion that they had screwed up.

Lastly, the Court holds the rationale for the opinion up to the light and sees defects:

Finally, the Court also concludes that the VA examiner failed to provide sufficient rationale for the medical opinion he offered. See Nieves-Rodriguez v. Peake, 22 Vet.Ap. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”); Stefl, 21 Vet.App. at 124 (stating that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Here, the VA medical examiner stated that his opinion was based on a review of medical literature and the claims file; however, he did not specifically cite to or describe any relevant portions of the medical literature nor any specific evidence in the claims file to support his conclusory opinion that Mr. Horbol’s sleep apnea was not related to his active service or his service-connected hepatitis C.

Horbol supra

This is fortunate for the Vet. What is unfortunate is that, absent an appeal, this would have become final. The decision is grossly unjust as I pointed out at the beginning because VA is aspiring to a lower judicial standard than they hold us to. With a judicial process slanted steeper than the deck of the sinking Titanic, we have little recourse other than to question any decision that emanates  from the BVA or their lackeys at the RO.

One of our members has recently pointed out that the VA takes a position substantially at odds with the Veteran in over 60% of its decisions that is indefensible. This results in reversed and vacated decisions at the Court and squanders precious judicial resources. We as Veterans deserve a system that is truly blind and level. We are accorded the benefit of the doubt in word but not in action. We should be entitled to prompt service rather than endless years of legal warfare. The VA sees it otherwise, though how they can escapes me. I expect the Ninth Circuit is going to disabuse them of this misconception shortly when they hand down the Veterans For Common Sense ruling. That, fellow Veterans, is a day I look forward to.

Of note, from the reading of this, it implies that the “VA examiner” was the very doctor tasked with the C&P. Au contraire, ma cherie. The VA doctor was the one who failed in his duties. The VA examiner sits at the RO and makes all these mistakes. He is the one collating the evidence and performing the BOTD dance. He is a ratings expert aka a VA examiner. There is a marked difference in the two. While it may be said that the VA employs doctors as ratings experts, it cannot be said legally that VA employs raters as doctors. We all know better. Who else could misconstrue so frequently that which an erudite 12 year old with average inductive capacity could sound out without the benefit of phonics?

Meet pro se Veteran Steve A. Horbol.



Above is my one and only experience of taking off and not landing (on a runway). And Jack didn’t “just” hit a tree. He stalled the aircraft and hit about 10 trees.  You can see the aircraft didn’t magically alight among all those deciduous items above.

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, From the footlocker and tagged , , , , , , , , , , , , . Bookmark the permalink.

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