For years we Vietnam Vets have been spanked on different cancers that were not on the list of approved Agent Orange diseases [38 CFR § 3.309(e)]. You could come down with it but somehow it always wasn’t on the magic list. Here, Gerald D. Green has come down with cancers of the upper throat and tonsil region. If you were inhaling AO into your lungs, this would be the first mucus lining to be struck. Next, the esophagus , the lungs ad nauseum. Apparently, according to VA, it only lodges in the lungs (if you were a non-smoker).

VA has “the List” and if you aren’t on it, you don’t get a seat in this restaurant. Period. Vets have fought this presumption for years with mixed success. Depending on which way the wind was blowing, you might win- but only on appeal with a dynamite nexus or two. No one has ever won where there was a clear finding that the National Academy of Sciences has stated there is a “negative correlation” meaning, of course that clinical data  (measured) had found no relationship. This is a medical “finding” and one that would be nigh on to impossible to overcome with just a simple nexus letter. Likewise, failing a favorable nod from the Institutes of Medicine that agrees with the disease as being listed, you claim is doomed.

I try to impress on you, as Vets, what a “holding” or “finding” is legally with the VA. It is a determination, pro or con, on any given piece of evidence and the conclusion arrived at by taking all the assembled evidence and recreating it like a plane crash. You’ve seen the TV shows about Pan Am’s Flight 800 where they reconstructed it, piece by piece in the empty hanger? Imagine your claim from Vietnam being built like this. If you don’t have enough pieces of airplane, you aren’t going to get the answer. Apparently, this happens to about 85% of you unlucky Vets. Once a finding or holding is arrived at, nothing short of  another legal expedition proving it is clearly and unmistakably erroneous will dislodge it. Nothing. Ever. Period. Forever. This is why you have to be so anally perfect in how you construct a claim.  There can’t be any “Oh, don’t worry about that. I’ll come back and fix it up later if they call me on it.” Bingo. You’re done.

As with any decision by the VARO or the BVA, you have to take the component pieces and view them independently as the Court did here. If the rear aileron is mounted on the  wing  and it is painfully obvious it doesn’t belong there, VA will nevertheless take the position that you are unqualified to make that assessment or “it cannot be said that it does or does not  belong there. Any conjecture would be speculative”. What the Court discovered  on close inspection was what  Mr, Green’s new mouthpiece was now parroting for the Jerrymeister. The NAS study the BVA cited to rebut and refute four nexuses by two doctors (treating) did not come to the conclusion they insisted it did.

Initially, the Secretary retorts that “such misstatements were the product of a benign misuse of terminology.”  Yet, these misstatements are not equivalent to inattentive spelling errors or misplaced adverbs as the Secretary’s argument seems to suggest. The Board clearly was under the impression, as it stated  twice, that the NAS reported that there is “no relationship” and that tonsil cancer is “not associated with” herbicide exposure. This impression is clearly erroneous because the  NAS actually determined there was not enough evidence to determine whether an  association existed, as explained in Appellant’s brief.

Appellant’s brief by Bryan Anderson. You have to love the ascerbic, dripping humor of “misplaced adverbs”.

According to the Board decision, Update 2008 “specifically opined that there is no relationship between a veteran’s exposure to herbicides, including Agent Orange, in the Republic of Vietnam and that veteran’s later developing, cancers of the tonsils.” R. at 16. However, as the Secretary concedes, the NAS actually found that cancers of the pharynx should be placed in the “Inadequate or Insufficient Evidence to Determine an Association” category because “available epidemiologic studies are of insufficient quality, consistency, or statistical power to permit a conclusion regarding the presence or absence of an association.” Update 2008, at 7;  see also Update 2008, at 211 (explaining that tonsil cancer is “grouped in the more general category of oral, nasal, and pharyngeal cancers” because of “the small number of [tonsil-cancer] cases diagnosed in the general population,” and noting that the three studies separately providing for tonsil-cancer cases “did not provide sufficient evidence to determine whether an association existed between exposure to the chemicals of interest and tonsil cancer”). Update 2008 also “strongly reiterate[d]” that VA “develop a strategy for evaluating tonsil cancer in Vietnam-era veterans” due to evidence that “suggests a potential association between the exposures in Vietnam and tonsil cancer.” Update 2008,  Accordingly, the Court finds that the Board clearly erred in finding that Update 2008 “specifically opined” that no nexus exists between tonsil cancer and exposure to Agent Orange

Judge Davis‘ brief- the one that counts. Now, I want you all to read the next sentence below. It sums up the essence of VA OGC jurisprudence. This is what purports to pass for cogent, reasoned thinking followed by putting the  legal mouth in gear and letting out the clutch in one smooth move like Exlax®:

The Secretary argues that this error is inconsequential because the Board used the report only to undermine the foundation of the doctors’s opinions–and thus their credibility–and did not use the report to outweigh the probative value of their conclusions.

Appellee’s brief

Out of the mouths of babes. As this happened at the Court and not down at Vermin Avenue NW, one has to wonder if someone forgot to proofread it. Perhaps Adobe 1.5 wasn’t up to the task. Allow me to paraphrase the above in case it’s meaning is camouflaged to any of you. I’ll write it in OGCspeak.

“I don’t see a problem here. So what if the Board and the RO purposefully misread the NAS article? He (the VLJ) was under orders to deny. We do whatever is necessary to denigrate perfectly good nexuses. Here, there were four and we were clearly in trouble. We tried to suborn a VA doctor into saying it was ‘less likely as not’ but we couldn’t get anyone to bite. Therefore we inflated the “finding” in the NAS gizmo and told the judge to run with it. He wasn’t trying to destroy the good doctors’ standing in the medical community- just their bogus, unfounded AO assertions. It’s not like he said they were wife-beaters or drunks. No harm, no foul. Right?”

Ronen Morris (appellee attorney for the OGC holding this bag)

Yep. That pretty much sums it up. I had a long talk this morning with our Maple syrup-swilling member Frank. He is utterly taken aback at the idea that VA would induce him into not filing in 2005 saying he was ineligible. He belatedly found out at a VA Anonymous meeting . You know. The one where each Vet stands up and says “Hi. I’m _____. I’ve been filing and losing now for 19 years (sober) with the DAV.” He was even more consumed with the perfidy of one of his physicians who actually opined for all of posterity to read that he (the doctor) was alarmed that old Frank might file against VA for wrongdoing and that he wasn’t going to say nuthin’ to nobody. Open mouth. Shoot foot. And it’s in writing in his VISTA records, no less.

Gerald got a good shake from Judge Davis here. He reversed rather than remanded because once again the VA couldn’t play fair. If they were so dead set against giving Mr. Greenski any boulevard bucks they should have found someone for thirty pieces of silver. Surely there was some down-on-his-luck proctologist willing to become an instant otolaryngologist with a minor in toxicology? Considering they had spent untold quantities of taxpayer dollars defending the VA’s good name up to this point, it was a given they were going to need a fallback position if things went south. It did and they didn’t. The rest will be history.

Let this be a lesson every time they tout their 86% accuracy rating in claims. This wasn’t just a “misplaced adverb”  as Jerry’s rainmaker Bryan Anderson put it. This was some serious misconstruing. I see with interest that Judge Davis chose Caluza to enunciate the Golden Triangle rather than Shedden or Hickson. Good form.

Because this is a new decision, you can reach it now by going here. Click on the last little blue doomoflotchie at the bottom where it says Memorandum decision. Great reading.

In the future, after this is archived, you will only be able to reach it by going to search for decisions and enter 11-2053. It will be Green (Gerald D.)v. Shinseki 2011

Da Judge.

Reversals are so much fun to read and you know the ending without having to watch the movie.