Richard P. Kath filed for hep in 1978. As with most of us, he didn’t know the program and received a denial slip. He didn’t appeal, but it appears he refiled in 1980. He got the same treatment from what little the record reveals. His 1980 C&P exam concentrated on his eye and heel complaints and didn’t address the liver issue.
Fast forward to 2000 and a new reopening of the hep claim. VA prevaricated for several more years and finally denied yet again. As luck would have it, a VA examiner in an October 2002 review of the evidence finally “got it ” and they granted him SC. We talk of the empty lollipop stick or the ice cream cone with two scoops of air frequently here. That’s exactly what Richard got- 40% from the date of his filing in August 2000. That’s more than most, but still doesn’t reflect the severity of his symptoms or address his earlier filings with basically the same evidence.
Richard, over the years, had reported credible symptoms of RUQP, gastrointestinal abnormalities and occasional jaundice. These are all symptoms that we are competent to observe and report on (Layno). VA. as is their wont, ignored him and said it was not supported by the medical evidence of record. He continued his quest for a higher rating and an earlier compensable date to no avail. In 2008 the BVA put a fork in it and said no way. They granted SC to 1977 at 0% and that was that. Hence the analogy to the empty lollipop stick.
Mr. Kath promptly filed his NOA like a smart fellow should and off to Indiana Ave. NW they went. VA immediately sought to take this away from the Court and bury it back down at Vermont Ave. NW. They succeeded. In 2010, it floated back up to the Court following another denial. What the Board had done was use the old “no evidence is negative evidence” ploy to deny a compensable rating. With this logic, Mr. Kath magically became very ill on the day he filed and not one minute before. This contradicts most medical theories on HCV but there you have it. If this were one isolated incident, it might be notable. Mr. Kath was probably the 120,001st recipient of VA’s ULUZ award.
Mr. Kath argued at the Board that he deserved a retrospective medical evaluation based on numerous factors, to include his lay statements. This was a reasonable request but VA, in an attempt to husband their financial resources, politely declined and spent it on souvenir coffee cups and ballpoint pens with the “for he who shall have borne the battle” logo. All those meet and greet performances cost money and Mr. Kath was simply being unreasonable.
Mr. Kath lost his argument that the October 2002 medical exam was not adequate. It failed because the exam was to determine if the hep was related to service and nothing more. Having solved the conundrum of the etiology, VA was not remiss in failing to discover the onset date. That’s analogous to the mechanic repairing and replacing a blown head gasket and not changing the oil. When you’re in the doctor’s office why not kill two birds with one stone? That concept is a hard one for VA to grasp, but they won it here nevertheless.
We finally see Mr. Kath get some traction when it comes to a discussion of his lay testimony. The Board’s decision was silent on this probative testimony. They use one of those circular arguments that says “Gee. Rich. You were healthy in 2000 because your LFTs were normal. Therefore we don’t have to go back any further even if it might show you were ill, right? We have all we need to make our decision here in front of us”. The VASEC’s minions do this frequently. What they are also fond of is explaining later, here at the Court, why they did what they did and that they simply forgot to put it in the BVA decision. No harm. No foul. If you’re interested, we’ll explain it here and now…
First, the Secretary highlights that none of the evidence cited by the appellant predates August 2000. Secretary’s Br. at 16. The Board, however, apparently based its determination that VA was not required to provide a medical examination in this case in part on a July 2002 VA document noting that the appellant’s liver function tests were normal. R. at 11-12. Therefore, because the Board determined that evidence postdating August 2000 could be used to determine whether a retrospective medical examination is necessary, an assertion that it need not discuss other evidence because it did not predate August 2000 or that such evidence cannot be relevant is not convincing. Moreover, since the Board chose to apply the July 2002 document against the appellant’s claim, in order for its statement of reasons or bases to be adequate, it should have discussed record materials that are potentially favorable. Caluza, 7 Vet.App. at 506.
Next, the Secretary attempts to mitigate the Board’s silence on the evidence cited by the appellant by explaining why that evidence is not sufficient to support the appellant’s arguments. Secretary’s Br. at 16-21. The Court, however, will not accept the Secretary’s attempt to provide a statement of reasons or bases on behalf of a silent Board decision. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for agency action,
advanced for the first time in the reviewing court.”). Kath v. Shinseki (2012)
Mr. Kath will get another bite of the apple and the VA will undoubtedly try to give him the bum’s rush yet again. Once again, our illustrious VASEC, through the shenanigans of his General Counsel, has attempted to mitigate VA’s less than perfect adjudication system. Coming into Court and trying to explain what your lawyers did and how they arrived at their decision is still not kosher. The time for that was 2010 and wallpapering over it won’t fly.
Once again, valuable judicial resources, which we are told are in short supply, will be expended righting another wrong. This will delay justice for another Vet patiently waiting his turn. It doesn’t seem to require a lot of intelligence to see why our claims system is mired in hopeless backlog. A cursory examination of this case shows the deficiencies. VA has one job in this respect-to develop and decide Veterans’ claims. They’ve been employed in this undertaking for over a century yet continue to make the same mistakes again and again. This wouldn’t seem so horrific if they just acknowledged the error and fixed it. By fighting tooth and nail all the way to the halls of the Court defending stupidity, they delay justice for all of us.
We all make errors in our everyday life. When identified, most freely admit them. Granted, there are the adherents of the Flat Earth Society and nothing will convince them otherwise. I suspect we would have no difficulty changing their beliefs if we were to launch them into space. VA, on the other hand, seems to think they have cornered the market on logic. Their abiding hope is that one day the Court will agree with them on this post hoc rationalization technique. Converting souls to your cause at the Court must be predicated on law-not excuses and tortured explanations.
Meet Rich Kath- a smart cookie with the bug.
Knowing the intractible nature of the BVA, my money is riding on another denial based on a new review and exam. Richard will have more grey hair before he sees a paycheck. He’s asking for a glorified Fenderson rating (with compensation) from 1977 forward and VA wants to commence the financial clock in 2002.
Fast forward to January 2015. And sure enough, here comes Rich Kath again with the typical VA Bum’s rush. Now that they have given him his 1977 date they are forced to abide by the VA’s Schedule of Rating Disabilities or VASRD in effect in 1977. DC 7354 didn’t exist until July 2001 and the old DC 7345 was far more liberal back in those the days. I, too was rated under it when they granted my EED to 1994. Detroit’s VA raters refuse to go back that far nor does the M21 computer seem to want to comply.
One thing his VA agent may have overlooked in this retrospective C&P examination would be to send Mr. Kath out for a Fibroscan to determine exactly what stage of Hepatitis he’s in between Stage 0 and stage 4 as of today. This will definitively determine the age and the severity of his debility retrospectively. Hepatitis advances in stages of ten years when using the common Metavir scale. Thus, if he contracted it in 1975, he would ostensibly be stage 1 in 1985, 2 in 1995 and in 3 by 2005. By now, he’s pushing the far side of 3 like me which is technically 100% assuming he’s not good at describing his symptoms. Hey, he’s not a doctor. Why should he be held to the standard? Because VA has screwed this up, the best thing is to waive review in Detroit and give it to the AMC for a rating. They’ll do the Pontius Pilate hand washing and give him 100% from 1990 and be done with it simply to get it off the books.
Nevertheless, the Detroit RO continues to step on their neckties and use the new DBQs reflecting all the newer DC 7354 percentages. Twice now the Acting VLJ, William Yates, has sent it back with a stern remand. This time it’s couched in either/or format so even the village idiot can digest it…maybe. Old Rich is going to be due for a Writ to beg the Court to effect his remand if Yates can’t get this back on track.
We are all condemned to this hamster wheel unless or until intelligent life forms begin to populate the Veterans “Service” Centers across the fruited plain. Until then…
Lord help us.