Very few Vets get to have their names up in lights in perpetuity. Norman Gilbert is one and there are many more over the last twenty three years. Wayne Gardin’s decision here is an example of what sets the stage for the Gilberts in VA jurisprudence.

Wayne’s decision hinged on poor legal reasoning all the way up to the  Fed. Circus. They poked a hole in the balloon and off it went to the cleaners for a do over. It seems that in the rush to disenfranchise poor old Wayne, the Court forgot what they’d held in the Nieves-Rodriquez holding. That was the precept that there is absolutely nothing in any statute that says in order for a nexus to be probative, that the doctor absolutely-positively must have read the SMRs before he opines. I know that I advocate constantly that Vets should have their doctors read and acknowledge that they have done so when writing the letter. I also know now that VA will seize on anything they can to deny, too. Let’s look at WaynesWorld from the vA perspective and see what went wrong. If one believed in Astrology, he would ascribe this to being born under a bad sign. I suspect Wayne was a pragmatist and assumed VA was set up to do that which most of us assume it was- to minister to our needs.

Mr. Gardin served in the Air Force from 59 to 63. He had a few medical problems that indicated he was headed down the road to eventual diabetes, but like most non-medically inclined, he failed to mention this at discharge. So, for lack of medical training, he could not opine as to his incipient disease. When he finally got around to filing for it in 1994 he discovered what we all do when we use a VSO. You need a nexus letter. They fail to tell you this even after denial. It was all a big mystery to them (and us) back then unless you asked about it. Most of us didn’t. We trusted our VSO Bozos.

Fast forward to 2003. Wayne refiled and this time got three nexus letters not to mention statements from friends, family, his postman and the local dog catcher. He was armed and dangerous this time out. Or not. As we all know, vA has a way to demolish even the best laid defense. By artfully cutting and pasting different comments and using “divide and conquer”, they can make your whole sand castle disintegrate. Add the failure to ensure continuity and you have the recipe for the perfect storm of denial. I’m sure Wayne was as dumbfounded as I was when they gave him the 86.

The CAVC gave him an opportunity to go back to the Board in a JMR due to poor English construction in their denial. The Board obliged him by brushing up their pronoun usage and denied once more. The Court this time approved of their new found command of the English language. However, they neglected to read what we call  setting a precedent. For all of you in St. Petersburg, that does sound a lot like setting a president but the two have nothing in common.  Regardless, the Court knows the difference.  Mr. Gardin promptly motored on up to the Federal Circus for a do over.

The Feds carefully disassembled this and spotted the error immediately.

We address first Mr. Gardin’s argument that the Veterans Court created a new rule of law that permits the Board to discount medical evidence solely because the physician providing the medical evidence did not review the veteran’s service medical records. The Veterans Court approvingly noted that the Board discounted Dr. Sexton’s medical report because he did not review the claims file when reaching his determination that Mr. Gardin had had diabetes during service.” Gardin,2009 WL 1006160, at *1. The Veterans Court’s analysis is contrary to law and statute.

Congress expressly permits veterans seeking service-connected disability benefits to submit reports from private physicians:

For purposes of establishing any claim for benefits …, a report of a medical examination administered by a private physician … may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.

38 U.S.C. § 5125. In addition, the Secretary has defined “competent medical evidence” to mean, among other things, “evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.” 38 C.F.R. § 3.159(a)(1) (2009). Accordingly, neither the statute nor the regulation requires that a private physician review the veteran’s medical service record before his or her opinion may qualify as competent medical evidence.

This is what sets the stage for the next big brouhaha that I base this post on. Congress, not Sir Eric the Great, is empowered to tell us who can write and provide a nexus letter on our medical conditions, be they diseases of the mind or body. With the arbitrary decision in 2010 to limit all PTSD decisions to doctors from vA, they have abrogated the right that Congress had husbanded to themselves. This cannot stand. Congress, not vA, decides what is permissible.

In the future, one of America’s finest will  arrive with a properly constructed bent brain nexus that vA will denigrate as being substandard. The rationale will be simple . Our doctors at the VBA did not write it and we categorically do not recognize it as being legal. Many trees will be sacrificed to make the pulp for the denials. Many legal hours will be clocked and childrens’ college accounts will be fattened accordingly in the process of determining what we all know. Eventually this new warrior will prevail with his private nexus and the VBA will have to go back to the old archaic, and horribly inefficient, method of letting fraudulent brain doctors opine for their conniving Vet patients who are faking it.

What is perhaps sad is that Shinseki knows this is contrary to the wishes of Congress. Anything that engages in mission creep in this compensation business always is. The Court occasionally will catch it; and if not the Feds do. We shouldn’t have to constantly correct the vA for trying to reinvent the regulations. They know how to read. What they simply couldn’t abide by was the fact that this decision making was out of their hands. That tasked them mightily. So much so that they felt compelled to rewrite the rules and regulations to reflect what “should” have been enacted. This is what happens in the M-21 unofficially. Raters are instructed to revamp what and how its done. Along comes a Wayne Gardin and upsets their carefully laid plans. Now we see a gradual retreat from the Nieves-Rodriguez holding. Either that or the CAVC is getting Alzheimer’s.

The law is written. We are admonished from birth that America is great and a land of laws. If we are dissatisfied with how they are written, there is an orderly method for changing them. I speak, of course, of the vote. Apparently some of the boys up at the vA missed that chapter in history class or they feel they are above the process. Regardless of the reason, the law has been broken. It was knowingly ignored, bent and twisted to comport with what the vA felt was more “functional”. Perhaps their intentions were well-meaning. I, for one, don’t buy that. If this were a rare event I would stand on the ramparts and defend them. Since it is just one in a long litany of disrespect, ignorance, indifference to our plight, and a genuine desire to stand between us and what is rightfully promised us at induction, I see it as a crime.

Our famous new Vet is still anonymous and somewhere on the ladder of denial or will be soon. Who will he be? There are no dearth of candidates for this honor. The military and the vA have ensured that by giving them all “personality” disorders.