FROM THE PAUL R. REVERE

MEMORIAL  REGIONAL OFFICE

How many things could go wrong with a claim? How many things could the Regional Office, tasked with the proper, professional development of your claim, possibly mishandle to the point that the remand is a virtual laundry list of all the things they are supposed to have been done prior to putting pen to paper to write the denial?

This case is so underdeveloped that the raters don’t have the bare minimum to base their decision on. The Veteran is on SSD and freely contributed this information, yet the RO never made any effort to retrieve these highly probative records. This alone should be the penultimate reason not to go forward and push send (to DC).

Medical evidence that is a prerequisite to any fair and balanced decision has only now been made a part of the record. A claim for depression or mental disability not otherwise specified has been expressed yet the claim sailed off the DC absent any development. Furthermore,  the C&P evidence (or the severe lack of) precludes any meaningful adjudication on the nose or back claim. My nine year old grandson could assemble this in his sleep.

The last missing piece is truly phenomenal. The gentle reader will note that this devoted Veteran had two separate periods of service. After separating in 1978 after a three year enlistment, he returned again in 1981 for a second three year stint. The vA, in their haste to put this poor boy down, has neglected to obtain his service  records from his first period of service. It is rather vague as to what is present and what is missing but the claim was never ripe for appeal until all the records were obtained.

In the remand, Veterans Law Judge U.R. Powell offers this polite request in Note #3 to help facilitate review so another remand won’t be forthcoming or necessary:

It would be helpful if the examiner would use the following language, as may be appropriate: “more likely than not” (meaning likelihood greater than 50%), “at least as likely as not” (meaning likelihood of at least 50%), or “less likely than not” or “unlikely” (meaning that there is a less than 50% likelihood).

In other words, the VLJ is asking the examiner to express the nexus in terms required by the M-21 1MR currently employed by vA for this purpose. In fact, the good judge goes further and admonishes this future examiner thusly:

The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

This is boilerplate remand language. What is not is the repetitive use of the exact same admonition in Notes #4 and #5. This implies the vA’s examiner has a short memory span or ADHD. Regardless of why VLJ Powell chose to reiterate it no less than three times. its disturbing that it might even be necessary once. Are those RO folks so dense that they need instructions on how to go to the bathroom, too? We always wondered about the 60% error rate making it all the way to the Court. It’s now apparent why.

Our judge also included this one three times. Considering we are required to have private or vA doctors review our contemporaneous records prior to performing the nexus dance around the chicken entrails, it would appear that the RO needs reminding of this fact as well- only thrice over. Perhaps like a spell, recitation three times is the lucky charm?

The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report.

What exactly are they teaching our new breed of rater? This is from Boston. People from Boston are well-educated and erudite. They are polished and dress appropriately. In a word, they are our kind, dear. How can this come about amidst good breeding in the best of circumstances?

Holy shirt and shoes, Batman! here’s another right underneath it. Different Judge but same modus operandi on the remand language.