I suspected this was going to hit the books in record time and I was right. Barely a week later following Walker, we are seeing it being cited. Seriously. A week? When my BVA decision was announced in 1992, no one mentioned Wilson, Shafrath, Bagby and a host of other Vets whose jurisprudence bore a striking  resemblance to mine. Yet here mandate ink is barely dry and decisions that were months in the offing suddenly are sporting this new law. Seriously. Mr. Walker still has an opportunity to appeal this to the Supreme Court so I find it odd that this is now dyed in the wool  precedence.

You heard it here. You will remember for years following this post that we said here the implications of Walker are going to rock the Vets world. This is a single-judge decision but is just the sound of a juggernaut warming up.

Mr. McMillan also argues that where, as here, the record lacks evidence of a nexus, a veteran may be entitled to disability benefits if he establishes continuity of symptomatology between the present condition and in-service injury or disease. 38 C.F.R. § 3.303(b) (2012). However, the U.S.Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) “restricts itself to chronic diseases” found in 38C.F.R. § 3.309(a). Walker v.Shinseki, No. 2011-7184, 2013 WL 628429, at *7-9, 13-15 (Fed. Cir. Feb. 21, 2013) (“Nothing in§ 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases.”). As neither vitiligo nor ringworm is a chronic disease under § 3.309(a), the Court finds as a matter of law that Mr. McMillan may not establish continuity of symptomatology in lieu of medical nexus. Accordingly, his arguments regarding the credibility of his lay evidence are moot.

One thing is apparent. The landlines of the good Drs Bash and Ellis will be ringing off the hook. I have an idea. Let’s get some venture capital together and set up a corporation like unto QTC Medical Services Inc. Our service will provide low-cost medical nexus letters from a stable of participating doctors schooled in the appropriate sciences. If we wished to be political about it, we could do a means test and charge rich guys enough to make them  blow Starbucks® through their nose. They, in turn, could finance pro bono cases with the exorbitant fees. The client (Veteran) signs an agreement wherein he agrees to pay the amount  due upon the grant of the claim. The doctor will be available to rebut anything VA uses to deny. The nexus will be ironclad and warrantied based on the truthfulness of the claimant. If the Veteran submits a fraudulent claim, his nexus bill would still be due and owing to said corporation.

I vote for Legalnexus.com

YOU REPORT

Legalnexus.com warranties this nexus as viable for all 56 VAROs and the AMC with certain restrictions. Dealer Prep and destination fees not included. Does not include energy surcharge or travel time to and fro from (your VARO here) to Washington, DC. legalnexus.com reserves the right to refuse service to those with no shoes or shirts.

WE OPINE

To view Mr. McMillan’s unhappy visit to Indiana Ave. click here  and then click on number 17 which is Mr McMillan- case number 11-3003. Walker was decided February 21st. Mr McMillan suffered this ignominious treatment on the 28th- a mere seven days later. Which means either justice is incredibly speedy at the CAVC or they cut and pasted a new ending to the story. Considering he would have prevailed sans Walker, can anyone see a different outcome other than a win? 

This is, as I have pointed out, merely the beginning of an avalanche of denials. What concerns us all is how many of you will be divested of your ratings for prior adjudications based on 38 CFR § 3.303(b). I shudder to think how many of you are on the cusp of VA CUEing themselves. If it only affected one hundred of you, I wouldn’t sound the alarm quite so stridently. Since I know VA better than most, I fully expect them to fire up the computers and begin searching for the .pdfs with 3.303(b). Keep in mind, too, that VA is now in the process of scanning millions of records into the system for the new VBMS.

Backlog? you don’t know the half of it. 2015 and 125 day adjudications just flew out the window. Whole TIGER teams of Challenge -trained RVSRs fresh out of the Academy with Lean Six Sigma black belts and Kaizen training are going to be on this like white on rice, Grasshopper. The savings from this could potentially fund the next five HR conferences on the French Riviera with bonus money left over. Karaoke en Français anyone?