Saint Mary Schoelen sends us this bit of a Judicial Hanky Panky remand. All I see it doing is teaching the BVA and the raters to be honest when passing out their thirty pieces of silver. “Honest” meaning thorough and tightening the knot on the noose better the second time.
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Michael V. Thomas, a groundpounder during the Peacetime Army from 82-86 , is appealing his denial from the BVA. This started 14 years ago in 1998. VA insists it’s taking so long because of a time difference between his RO and D.C. Well, that and all the Congressional inquiries slowing the process down these days. Mike showed some savvy even back then. He had a February 2000 nexus letter from a private doctor (Dr. Stormont, who later became a VA doctor) that was credible. It did actually ruminate on all the potential risks both during and after service. These included a few negative events as well. Apparently, this did not sufficiently impress VA so in May 2000 they brought in the the truth finder-VA examiner Dr. Rose Lehman. She carefully parsed Dr. Stormont’s “synopsis” and added her own concurrence that it was “at least as likely as not” that it was service connected. Mike was in high cotton. Here were two pair and only one card left to draw.
Two long years of inactivity went by and suddenly Dr. Stormont is now a VA Doctor. Surprise. Surprise. Surprise. And, to make it even more of a coincidence, Dr. Stormont decided to re-examine Mikey and changed his assessment of the Mikester’s contraction of the disease. He now theorized (October 2002) that it had to have happened in 1989, three years after Mikey got out. As an aside, I have never met any doctor wearing binoculars that was willing to go out on the shaky limb and declare a specific year-let alone a month. I suppose I could say that my doctor did it but he pointed to some mighty risky business- a GSW with transfusion followed 89 days later by HBV. Dr. Stormont took this one step further and pointed to a 1989 “illness” as the infection moment. Apparently ol’ Mikey had been up to some hanky panky with Peru’s major export and perhaps had been in high testosterone gear doing the cherchez la femmes mode about that time. Thus his risks post-service were larger in Dr. Stormont’s eyes. The good doctor also got down in the weeds and came up with the novel theory that Mike would have had to evince HCV “symptoms” within six months of exposure and he didn’t until three years later. Not it. Denied. Next?
Move the timeline forward another four years. Again, no activity on resolving Mikey’s claim. Another thirty pieces of silver was requisitioned from the VA Treasury and a new VA examiner was induced to play “Spin the Ouija Board” December 2006. I guess someone noticed that they now had two dueling nexi and needed a tiebreaker. She was flummoxed and honest. If she read this right in her capacity as a gynecologist, she was unable to opine without speculating but she now had the thirty pieces of silver so she said she was inclined to go with Dr. Stormont’s prognosis. After about a year’s prodding, she came out with an “advisory” opinion that coalesced the vagueness into a firm denial logic.-as if to prove Time heals all nexus defects.
Mikey and the Beach Boys finally arrived up at the Court in August 2009. A Joint Motion for Remand (JMR) to find out exactly how many risks and which were greater than others was requested. This is where it becomes humorously tragic. VA, in their haste to assassinate Mikey, jumped the gun big time. They ran back to the Treasury for more silver and grabbed a new proctologist to opine. Three months later (December 2009)the BVA put it in the AMC Pony Express pouch and sent it out.
In December 2009, the Board remanded the appellant’s claim for the RO to provide a medical examination opining “whether it is more likely, less likely, or at least as likely as not that the Veteran’s hepatitis C arose during service or is related to a risk factor occurring during service versus pre- or post-service risk factors.”
Seems pretty simple. List ’em and assign a risk percentage of each one. Add ’em up. Make a decision based on this. Here we get into that “construe” problem all VARO personnel seem afflicted with. They just had to read more into it. I’m sure the actual IMO went back and forth like a Badminton shuttlecock until it landed on the right side of the net. Too bad they didn’t follow the instructions. What followed was predictable.
Eight (8) (octo) (huit) (batt) months later in August 2009, the requested “re-re-re-reexamination” was completed. HCV, it was now concluded, always manifested in 2-26 weeks and it was apparent Mikey’s major risk factor in 1989 was IV drug abuse. Just to be sure, VA doubled down again with another IMO to be safe. This was IMO number eight. And VA wonders why they have a backlog…
An additional March 2011 medical opinion was commissioned by the Board. Here, the examiner concluded that “[w]ithout further evidence for a common identifiable source and/or strong risk factors for hepatitis C . . . during service, it is less likely that the hepatitis C arose during service.” The examiner further stated that “the most likely source for [the hepatitis C] is the reported [IV] drug use following service” with an “odds ratio” of “49.6.” Thomas v. Shinseki 2011
Good to go? Not exactly, as they say over at Avis. St. Mary, who is fond of playing Devil’s advocate, poked a hole in the VASEC’s pinata. Out poured the carefully constructed nexus they had spent so much time on. And not only that, Schoelen said their data in essence proved Mikey’s contentions. You have to love this touché.
To its credit, the March 2011 medical opinion appears to confront every identified hepatitis C risk factor, but its analysis of the risk factors produces confusion. The medical opinion states that IV drug use is “the most common and strongest risk factor,” and assigns it an “odds ratio” of 49.6.
Having done so, the medical opinion failed to explain the significance of such a quantity, although it is acknowledged that the parties agree that the “odds ratio” represents a percentage value– 49.6%. On this interpretation, the medical opinion thus implies that IV drug use is, by itself, less likely than not (i.e. less than 50%) to have caused the appellant’s hepatitis C condition. Yet, the medical opinion does not assign a percentage probability to any other risk factor, and instead identifies them as “less likely.” (Thomas v. Shinseki supra)
You can just hear Will Gunn saying “Dammit. What does it take? She purposefully misconstrued that. It’s not fair.”
By not, in turn, assigning probabilities to the remaining risk factors, the March 2011 medical opinion provokes a host of questions that throw its conclusions into doubt: If IV drug use is not more likely than not to have caused the appellant’s hepatitis C, then might other, in-service factors, considered in aggregate, be more likely than not to have caused the appellant’s hepatitis C? If the March 2011 medical opinion failed to consider the in-service risk factors in aggregate, then what does it mean when it concludes that “it is less likely” that the appellant’s hepatitis C arose during service? Does the March 2011 medical opinion arrive at such conclusion only after comparing IV drug use against each in-service factor individually? These questions are a product of the March 2011 medical opinion’s disjointed analysis, and the resulting confusion cannot be alleviated by reference to its ultimate conclusion. Thomas supra
She does have a way with words. So what does this mean for the Mikemeister? If I were him, I’d be shopping in Dr. Bash’s store for one of those guaranteed to win $6,000.00 wundernexi. Anything less and they are going to blow him out of the water. A marvelous piece of work this. I love it. Rarely do you see this arcane style of obfuscation practiced at the Court. Women are so adroit at this. They even smile coyly and bat their eylashes. Then again, where do you get to see Veterans lose out so frequently time and time again with only the flimsy appearance of justice being dispensed at the lower levels?
For that reason, we at Asknod sense this is a strong candidate for a Alfie Award for persistence in the face of overwhelming odds.
One can only pray that Meg and Coral bring that same open mindedness to the bench in the future. This would really shake up the status quo for us.