From the  Honorable Gen. William

Tecumseh Sherman RO in Atlanta

(ATRO)

In what United States judicial forum is it permissible to make broad, sweeping conclusions with nary a supporting argument to buttress the statement? Correct, Padewans. None. Well, “not exactly” as they say down at Avis® Rentacar. At Regional Offices and the Board of Veterans Appeals in Washington this is considered de rigeur-   prescribed by etiquette or custom.  I look at an inordinately large number of cases that readers send in and also while doing research on a particular subject or quandary. One thing that jumps out is the miscarriage of justice that regularly occurs and then is compounded with interest measured in years when it arrives at the BVA.

Every case that is remanded from DC, whether it goes directly back to the RO or to the black hole of the 57th RO (the AMC), is deficient in some respect. That’s the primary reason for the remand in the first place. What is less apparent is the most frequent reason for the remand. I speak of cases denied based on the one-legged approach. A VA examiner and his/her crew deny the claim for the most specious of reasons and give no supporting rationale for the action. Hence, it cannot stand on its own two legs. Many feel that this is just a delaying ploy to deflect justice and allow ROs more breathing room in this backlog we are currently experiencing. Yes and no. I certainly think the idea has plenty of evidence to support it but I also am loathe to go down the conspiracy path. Suffice it to say that this has become an ingrained, de facto method of gladly paying next Thursday for a defective decision today.  Call it the Wimpy option in honor of Popeye’s erstwhile, penniless hamburger aficionado.

Here’s a case in point. http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files3/1126175.txt

With regard to erectile dysfunction, the examiner who conducted the March 2008 VA genitourinary examination provided the following impression: “erectile dysfunction – secondary to normal aging process, not due to any physical/mental disability. No residuals.” The examiner further opined, “I find no association/correlation between [the Veteran’s] hepatitis C, physical/mental disability. His erectile dysfunction is not due to his service connected Hepatitis C. His conditions of erectile dysfunction and BPH are due to normal aging process and not any physical or mental disability.” In the Joint Motion, the parties pointed out that the examiner provided no rationale for his conclusion that erectile dysfunction was due to aging rather than hepatitis C. Therefore, a remand is required so that the examiner can provide a basis for his conclusion. 

This has become another way of pawning off the decision on the BVA or the Court only to be fought another day. We are by now more familiar with the “speculatory” conclusion as in ” It would be pure speculation to associate the disease with his SC HCV as there is no evidence to connect the two.” That’s the latest default VAspeak for “We’re too lazy to go out and see if there’s a correlation so we’ll just make no decision at all”. This usually results in the remand to the AMC for an”independent” VHA opinion from an OB/GYN wearing a gastroenterologist’s hat.

In the same remand, the VLJ has to remind the RO folks that an incomplete record has always been and will continue to be an incorrect record:

The RO should also obtain and associate with the claims file all outstanding VA treatment records. The claims file includes VA outpatient treatment records from the Atlanta VA Medical Center (VAMC) dated through April 2004. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain any records of treatment for the Veteran from the Atlanta VAMC since April 2004, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

Veterans can arrive at two conclusion from this and the plethora of similar decisions that regularly crop up at the BVA and the Court. Either the quality control firewall function  has been turned off or the ROs are incredibly undereducated in the art form of claims adjudication. That the BVA is continually tasked with reminding these bozos on how to do their jobs shows that something isn’t being memorized.

vA uses the M-21 manual at the RO level. They do not speak Bell v. Derwinski or its ilk. They need a M-21 to CFR dictionary, much like an French to English one, to translate the M-21 concepts into denial language that the Veteran and higher judicial forums can comprehend. This is how you end up with such off the wall denials. A noted computer guru once summarized it as ‘Garbage in-garbage out”. If you hamburger the known facts as you enter them into this Orwellian device, or worse, slant them in such a way as to denigrate the Veteran’s claim from the outset, the outcome is almost a given. The VA examiner is free to shrug his or her shoulders and say that the regulations are such that they preclude granting benefits. He is simply at the mercy of whatever the M-21 computer regurgitates.

This is the inherent flaw in any mechanical device constructed to magically discern truth and fiction. There is no human logic in the process that would weed out  patently ridiculous outcomes. Thus a Vietnam Veteran with DM2 can be denied all the way up to the BVA repeatedly until it dawns on someone that he gets the presumptive on it without having to prove he incurred it in service.  The M-21 is supposed to catch these things but they rarely do. We hear from former VA ratings personnel on other sites similar to this that there is a three step quality control procedure that prevents these things from happening. In the alternative, they say it does happen rarely but that the error, more often than not, is in favor of the Vet. Perhaps this occurs in RO faeryland. We in the real world seem to be subject to the “less often than not” side of the coin.

The unfortunate repercussions of these errors is that the RO personnel don the mantle of Pontius Pilate. Once the decision is arrived at, the ceremonial washing of the hands ensues and there is no more talk of error. Error, should there be any, will have to be determined by a higher Court or, God forbid, the Decision Review Officer sitting as a “new” judge.   In a DRO review, all the evidence used to arrive at the first defective decision is now rehashed and the M-21 is trotted out as the final arbiter again. How can there be a different outcome? The definition of insanity has been described as performing the same function repeatedly and expecting a different outcome.

vA lives by “findings”. Once a finding is arrived at, nothing short of a Presidential pardon at the RO level is going to change the outcome. Often, even going to the Court can be an arduous undertaking if the VASEC vociferously defends it. Witness this tasty morsel from our real world analog version of M-21 (The CAVC). This from Gilbert v. Derwinski:

A “[m]aterial fact is one upon which [the] outcome of litigation depends.” Black’s Law Dictionary, 881 (5th ed. 1979). Under § 4061(a)(4), in order for a finding of material fact made by the BVA to be set aside, this Court must conclude that the finding is “clearly erroneous.” The Supreme Court has defined the “clearly erroneous” standard as follows: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

The above in red is why you and I are almost forced to go to the BVA and beyond to obtain rudimentary justice. Clearly erroneous  findings are almost a given at the RO. It’s their hallmark as evidenced by the horrific number of remands and vacated decisions that emanate from higher Courts back to the RO. Oddly, no one is chastised. There is no collective chorus of mea culpas. No one “mans up” and shoulders the responsibility for the error. It’s nobody’s fault. The “system” caused it.

One must then question the premise of spending untold millions training raters for three or more years only to have results with a 65% error rate. Do we blame the rater or the rating machine? If the M-21 yields such an inordinately high error rate, might it not be advisable to retreat to the “analog” mode of yore and involve cognitive brain functions such as “If…, then…”?

Until vA learns their trade through and through, the current situation will continue. This has been a thorn in our side since the War of Northern Aggression ended in 1865. The vA , and its predecessors have always been afflicted with a disease akin to myopia. They cannot see that which is right before them. On the off chance they do, they quite purposefully misconstrue it to your detriment. They do this with little or no inductive logic processes and even less in their conclusory deductive methods. This has always been the case even before the inception of the gargantuan automated M-21 claim destroyer.

We are blessed with this method to “speed things up”. vA’s playbook is filled with phrases like “claims adjudication procedures to streamline and accurize the process and provide to the veteran any benefits deserved.” vA’s “paybook” is rife, on the other hand, with phrases like ” Unfortunately, the veteran has not provided evidence sufficient to invoke the benefit of the doubt and therefore the claim must fail. However, the claimant is free to submit new evidence at any time and the vA will be more than accommodating in trying to find a path to service connection”.

Who said “No good deed  goes unpunished”? Perhaps they never ran afoul of the vA adjudications procedure. vA is convinced their methods are flawless and until that misconception is unmasked, we will be subject to conclusory statements, rank speculation (or the fear of it), incomplete records and evidence and post hoc reinterpretations of the existing evidence years after the original decision.

Poor Johnny Reb. He began this quest in 2003.  Nine years later he finds himself in the remand jungle for the fourth time. Will this one be the proverbial charm? If vA jurisprudence of old is any harbinger, he’s going to die before he gets any satisfaction. He enlisted in 1961. I make him out to be about 69 or 70 now. Somehow I don’t see this ending in the mandated 125 day window.  Maybe I’m just a little pessimistic. What the Hell? I’ve only been waiting since 1994 so I’m somewhat of a FNG.