CAVC–SHEPARD V. SHINSEKI–UNDERSTANDING 3.156(C) FOR FUN AND PROFIT


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When looking for good cases to read these days, one looks for the word reversal.Even then it isn’t always the shiny nugget in the bottom of the pan. In the absence of the dreaded “remanded  for the matter for proper application of 38 C.F.R. §…”, a reversal can be innocuous and simply direct the BVA to form a better noose because the original one the RO  fashioned was amateurish. The single judge case of Mr. Robert A.  Shepard is one of the former.

The only thing more exciting than reversals are CUE claims like Leroy Macklem’s. What the hey. If the ol’ boy is named Leroy, right off the bat you know it’s going to be a good yarn. The Robertmeister served honorably aboard the USS Guardfish, a submarine, from 1972 to 74. In April 73, they had what the Navy would probably characterize as a “fuel spill”. Just for the record, on a nuclear-powered submarine, there isn’t a gas tank. Thus “fuel spill” connotes the spilling of some atoms. How many was never mentioned but that isn’t the crux of the matter.

The repair order was to lock everyone up in a forward compartment for a day and scare the bejesus out of them. They succeeded. Bob was never the same again and eventually was discharged for claustrophobia. Truth be told, if you put me in a paper towel roll and took me underwater in it, I might not be too tightly wrapped afterwards even if they didn’t spill any atoms.

Mr. Shepard realized he had a problem but had no specific name for it. Alas, PTSD wouldn’t be invented for several more years. His VARO gave it the Rubik’s cube treatment but they couldn’t grant. In essence they “couldn’t weave a web” between 1973 and 1980. Basically, Bob lost because he didn’t have a nexus. This was 14 years before Mario began his epic journey to Indiana Ave. NW and judicial fame and posterity. Like most of us, the Bobster didn’t appeal and the claim was put to rest.

In 1999, armed with the sure knowledge that he had been damaged during service, Mr. Shepard correctly filed for PTSD this time. After four-plus years of fighting, he was awarded service connection. As usual, just to be vindictive, VA gave him an effective date of 1999. No effort was made to investigate the manner and content of the new evidence that carried the day. Had they bothered to read the recent Cline precedent, this would never have happened. Hogwash. Of course it would have. VA is not going to sandbag their 2013 Karaoke fund by paying out oodles of money to every Tom, Dick and Harry who got screwed in 1980. When caught, they crank up the post-hoc rationalization generator and fashion a credible smokescreen.

 At some point, three documents at issue in this appeal were added to the claims file: (1) a June 29, 2001, record from the Department of the Army, U.S. Armed Services Center for Research of Unit Records, confirming the incident aboard the U.S.S. Guardfish, and stating that command histories could not be provided due to the U.S.S. Guardfish being a nuclear submarine (see R. at490); (2) a May 18, 2001, letter from the Department of the Navy, confirming the incident aboard the U.S.S. Guardfish; and (3) a 1973 “Record of Occupational Exposure to Ionizing Radiation” recording the amount of radiation detected on Mr. Shepard . VA granted the claim in 2004, effective as of December 1999, on the basis that the “evidence establishe[d] that [Mr. Shepard had] been diagnosed with [PTSD] which is shown to have resulted from a stressful event aboard a submarine in April 1973 which has been confirmed by the service department. . . . Service connection for [PTSD] has been established as directly related to military service.”

This was pre-§ 3.156(c) when the regulation was buried over in § 3.400(q). I doubt that would have made any difference. Bob figured (rightly) that he had filed for this in 1980. The records used to confirm his version were “service department records that have only now been associated with the file and are instrumental in proving the case”.

This arrived at the Court in 2009. The VASEC realized he had a hole in the USS Vermont Ave. and begged for a Joint Motion to Remand it back to the Board. The Court admonished him to make sure they gave § 3.156(c) the hairy eyeball when they did so. Nevertheless, after losing again, Mr. Bob showed up with another denial on his earlier effective date. This time out he missed the boat because he didn’t have the bent brain diagnosis in 1981. Nobody made an effort to ascertain just exactly what was wrong back then other than to say they couldn’t “weave that web”. Sure, the sub had a fuel spill as he said. And yes, everyone got a case of the Willies. Radiation badges were checked but brains weren’t. And that’s why Mr. Shepard was never going to see 1980 on his ratings sheet.

The Board reasoned that “[t]he evidence lacking in 1981 was not evidence that a stressor occurred, but, rather, was evidence that the Veteran had a current psychiatric disorder linked to his service. The Veteran’s account of a stressful incident in service was of record as of 1981, and was not in dispute at that time.” The Board determined that the radiation exposure log was of record in 1981 and that the information provided by the Department of the Army and Navy did not provide the basis for the grant of service connection because in 1981, “the element which was missing was a diagnosis of PTSD or medical opinion that the Veteran had a psychiatric disorder related to his service.”  

The Court is more than aware of the propensity of the VASEC and his honchos at OGC to answer a question with another question or simply just answer another question that was never asked. They are good at it. In my BVA decision, they said “appellant never submitted any new evidence after the SOC was issued therefore the claim was closed.” What they failed to mention is that I supplied this new evidence at the time I filed my NOD a month prior. It was in the record and they knew it. This VA art form allows all manner of lying to occur because they manipulate the calendar to fit their facts. Here, it backfired. The Court has seen this so many times it’s more passé than the homework consumed by Fido.

Here, the Court concludes that, as previously conceded by the Secretary, and as noted by the Court, the 2004 grant of service connection was based, at least in part, on the additional service department records. Even assuming that the Board was free to ignore the Court and Secretary’s prior determinations, for several reasons, the Board’s determination that the 2004 grant of service connection was not based in whole or in part on service department records cannot withstand scrutiny. First, although the Board took great pains to assert that in 1981, the RO conceded that Mr. Shepard’s stressor was confirmed, the 1981 RO decision made no such concession. Even if it had, § 3.156(c) is not predicated on the bases of the previous denial in 1981; rather, its application hinges on whether service department records formed the basis for the ultimate grant of service connection in 2004.

Have you ever watched an old Western where the fancy gambler dude is spinning three cards around like walnuts and saying “keep you eye on the magic card”? You never win this Monte game. When the VASEC deals it up you never do either… unless you have a good attorney or the Court knows of your prior tendencies to strrreeeetchhh the truth.

VA has built the perfect defense around their circled wagons. The only problem is the wagons aren’t circled so much as they are squared up-and poorly at that. VASEC’s krewe  is busy building an elaborate case of §3.156(c) being considered in the context of 1981 when it should be the focus in 2004. PTSD, much like Hepatitis C virus, did not exist in 1973 or 1980, so that avenue of service connection is closed. If you cannot “weave the web” in 1981, how is it that you claim you did in 2004?

To that extent, by 2000, the RO clearly had its doubts as to whether Mr. Shepard’s claimed stressor had occurred. In the 2000 rating decision, the RO expressly stated that the claim was being denied because Mr. Shepard’s stressor could not be confirmed based on the available evidence.  Moreover, the author of a 2001 deferred rating decision hand wrote: “Vet. needs to submit documentation of the alleged in service stressor.”  A March 2001 VA letter to Mr.Shepard provided in accordance with the Veterans Claims Assistance Act of 2000, in a section titled,”What Information or Evidence Do We Still Need From You?” expressly stated: “Need to submit documentation of the alleged in service stressor.” And once service department records were associated with the claims file, the RO decision ultimately granted service connection, stating that the “stressful event aboard a submarine . . . has been confirmed by the service department.”

I think what the new VBMS computer will need to have is a truth scanner to spot these problems before they go to the Court. Think how much money could be saved. The one thing VA is good at is post-hoc rationalization. Because they were (and are) such poor records keepers, they really don’t know exactly what happened in 1981. What they do  have is the sure knowledge of how they would approach it in 2013. They then extrapolate backwards and theorize what should have happened and merrily write it down. This is the new, improved, “will pass the smell test” denial technique. It works every time like a charm unless you appeal. Then, like a cheap WalMart sweater, it unravels and is revealed for what it is- a poorly reasoned untruth. Sadly, you do not need 30 years of jurisprudence to see through this thinly-veiled mistruth. A twenty-something mother of three could figure this out while cooking breakfast and sorting the laundry. What I wouldn’t give to be a fly on the wall up at the Big House.

Alan: Eric just showed up with another one of his faery tales on 3.156(c).

Bruce:  Is that guy dense or what? I thought we had that all sorted out with Cline and Mayhue.

Mary: We did, but he’s in denial. He refuses to take “no” for what it means.

What makes Mr. Shepard’s case noteworthy was his first JMR in 2009. At that point the VA law dogs would have been money ahead to pull the curtain handle above their heads and punch out. Instead, they invited the Veterans law Judge back and had a barbecue and good old-fashioned Texas necktie party all over again. What were they smoking? Eric promised the judges he’d do right by old Bob and he screwed him all over again.  I think what would have been amazing would have been if they tolerated this behavior and merely vacated and remanded it. This has all the hallmarks of “Shut up. Sit down and listen. Read your regulations and quit wasting our time.”

Occasionally these guys find a hole in the fence and escape off the reservation. When that happens all manner of legal shenanigans are liable to ensue. It’s like Greek night at a big University in October-lots of soap suds in the fountain and a toga sheet wrapped around the statue in front of Administration. The urge to go back and “fix” the record to fit the circumstances is almost stronger than Man’s biological urge.

 With regard to the only document at issue that clearly was in existence at the time of the 1981 decision (i.e., the 1973 radiation log), there appears to be some dispute as to when it was associated with the claims file. The Board stated that it was in the record at the time of the 1981 decision, but the Secretary previously stated that it was not. 

OMG! This is exactly not what you want to happen when you get to Court. If it were you, me or our leagle beagle, we’d be in mega-deep doo doo.  Here, the Court coolly makes the observation that it might behoove the actors in this tragi-comedy to start reading from the same script because it spoils the play for the paying audience.

The smart money says Mr. Shepard is going to be driving a really, really nice new car about this time next year. The Las Vegas line on Eric is 70/1 on a no show this summer followed closely by Hickey in place or show.

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Sheppard reversal.

About asknod

VA claims blogger
This entry was posted in CAVC ruling, CAVC/COVA Decision and tagged , , , , , , , , , , . Bookmark the permalink.

One Response to CAVC–SHEPARD V. SHINSEKI–UNDERSTANDING 3.156(C) FOR FUN AND PROFIT

  1. robert shepard says:

    This is good ol bob did not get a new car but did help out the family

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