As many times as I write about VA law, I get the biggest bang out of reversals. Which Judge is often interesting in an effort to see who might have become more liberal towards our cause. We have come to expect a rather anti-Veterans response from Kasold, Davis and Moorman. Kasold is military and JAG. That’s a negative for a Veteran. Davis has liberal leanings politically but is not Veteran friendly on a rational, continued basis. Moorman is JAG times ten having maxed out at the Air Force as Head Poohbah in that MOS. He, too, has a singular affinity to “go with the flow”. Hagel came up through ranks at the PVA VSO but still has little legal patience for stupid Vets. Lance is JAG too and has yet to find any affinity for Vets in my mind. The latest woman, Coral Wong Pietsch, is treading an exploratory path that hews close to conservative roots. She’s not trying to make waves yet and certainly isn’t splashing much in the new duck pond.
Judge Greenberg is the FNG on the block but judging by his background, I’m inclined to say he’ll tilt more towards Veterans in the future based on his diligent work at Walter Reed for the severely disabled there in 2006-07.
But now let’s focus on the firebrands. Our latest is the former NVLSP (National Veterans Legal Services Program) lawyer Margaret Bartley. Just as you’d expect, she’s peas and carrots with Veterans. If there is any way St. Marge can see some daylight under the door, you’re going to get a remand and another bite of the apple. If, God forbid, the VA wronged you, child, why, you can expect a reversal and a Return to Sender, no such Law.
St. Mary Schoelen, whom we all also pray to have our claim before, is the daughter of a Navy Officer and has a deep respect for those of us who have served. She’s seen, I suspect, the rougher side of the enlisted core by being raised in the vicinity. I certainly did. This bodes well for all of us. Coupled with her legal background of representing Veterans before the BVA, she regularly speaks in a reasoned voice and produces a predictable product. When those country bumpkin BVA Veterans Law Judges below send her bogus law, her first inclination is to politely send it back and remind them of why she is paid more due to her accumulated legal acumen. When they become more rambunctious and return the remand evincing even worse mentally deranged theories for their prior convoluted, bi-polar legal logic, St. Mary feels compelled to punctuate her legal repertoire with a stern reversal. which brings us to Mr. Christopher A. Mekus.
Back in 1988, when Mr. Mekus left the Air Force, he had a nasty booger on his left hip. they cut it out and left him on those nasty half-crutches like a lot of the old polio victims used in the fifties. He was in a lot of pain so the VA gave him 100% for a year to let the surgery mellow out. In 1990, they called him back in and he was no better but actually getting worse. Again, they confirmed the 100% nature of the disability and scheduled him back for a standard two-year follow up and a Permanent and Total (P&T) rating following a confirmatory C&P exam. In May of 1992, the final exam confirmed he was, indeed, deteriorating and they granted his P&T. There matters stood for ten years.
Considering the backlog, you would think there was no time for raters to doodle around in old files and spot what appear to be errors in ratings. Think about a “cold case files” rater assigned to ferret out corruption and Clear and Unmistakably Erroneous (CUE) VA decisions that unfairly enriched the Veteran at the expense of the American Taxpayer (and other Veterans). Dastardly people, those Veterans. Considering the volume of work backing up, they still manage to make time for Veterans like Chris Mekus. That’s your VA Benefits Administration hard at work.
In June of 2002, out of the clear blue, along comes Mr. Uncle Sam rater and decides Mr. Mekus was a cheat. The VA had done it all wrong and he was not entitled to P&T status (which confers Chapter 35 DEA Benefits) but rather a 60% rating under another diagnostic code (DC). They chose a strange one that was actually different from what they maintained he should have had for the last decade. Again, no explanation other than the one they used in 1988 was by God wrong, wrong, wrong. What is important is that he was simultaneously awarded Total Disability due to Individual Unemployment or TDIU. Mr. Mekus was now no longer P&T which is a much higher VA medical standard than TDIU that could, upon examination for improvement, result in yet a further, future reduction in his rating. Mind you, all of this occurred without so much as a medical examination to determine just exactly what condition his condition was in.
Chris wasn’t any man’s dummy and could recognize incoming ordnance with the prospect of more, immediately and wisely dug a hole, put on his brain bucket and filed his NOD. Off it went into the machine and the SSOC ensued using some strange, tortured logic for this legal expedition. No one yet had explained that this was basically marching in circles for Mr. Mekus. Not once did anyone say “Hold the phone. Is this the guy that’s still on those funny crutches and having a lot of pain like back in 92? If so, let’s change the rating diagnostic code to one that fits what he actually has and move on. He’s toast and isn’t going to improve with age like a good Cab Sauv.” But nooooooo.
Chris finally got it up in front of the Board in 2004 but the VLJ immediately remanded for some “additional development” (read forgot the Social Security Records) and it returned four years later from the Black Hole. They then confirmed the CUE error. Chris appealed to the Court. They vacated and remanded on the oldest defect in the Board’s repertoire- failure to do a good Reasons and Bases argument supporting their Texas Necktie Party.
When you call CUE, as the VA essentially did on itself, even you, the VA, have to prove the same set of parameters and fulfill all the requirements. This is dicey, thin ice and VA often manages to lose these just as we do. They tend to think that if the diagnostic codes do not mention something or exclude something, that this queers the whole choice of the code and sends it into CUEland. It doesn’t. Not by a long shot:
Contrary to the Board’s conclusion, its reasons for finding DC 5012 an inappropriate analogous rating code do not establish clear error in the RO’s decision. In fact, the reasons provided by the Board support the RO’s selection of DC 5012, or at the very least show that reasonable minds can differ on whether DC 5012 is a closely analogous code for the appellant’s PVS. When a disability is rated under an analogous rating code, the disability is not expected to show all the objective criteria of the analogous rating. Stankevich v. Nicholson, 19 Vet.App. 470, 472 (2006) (finding error in Board decision that required objective criteria of rating code be met where disability was rated by analogy). Rather, § 4.20 contemplates selection of a DC for a related disease in which the “functions affected . . . anatomical localization[,] and symptomatology are closely analogous.” 38 C.F.R. § 4.20
Mekus v. Shinseki
This is a useful precedent for DM2 cases when they start getting anal with the “restricted diet” argument, too. But we must keep asking ourselves how we arrived here on December 27th, 2013 at 625 Native American Ave. NW. What insane computer program spit this thing out and made Mr. Mekus’ life pure hell out of the blue? What kind of nonadversarial judicial process was this born of? What kind of vindictive VA employee could dream this up, engineer it and then present it as a fait accompli without calling up Chris and asking for a Beer Summit or a Kumbaya Huddle complete with 30 minute breaks for hugs?
But wait. There’s more. Chris’ CAVC remand came back to the BVA and they set to, sharpening punji sticks and building new pits. This one was going to be airtight with multiple theories that all led back to the same barbe-CUE pit. I’ve pointed this VA proclivity out in my book. VA constructs the final chapter of the denial saga first- then works backwards with brick and mortar and joins it to the prior facts and the prior defective premise. Rule Number One: Deny Claims. Rule Number Two: If Claim is Valid, Refer Back to Rule Number One.
Like any plate dropped and broken, glue alone will not conceal the damage. The VLJ and his merry band had dutifully sewn this up but still couldn’t alter the underlying mistake-or, more appropriately, the lack thereof. This was simply a classic example of the Mountain being erected from a molehill – much ado about nothing. Chris had a bum hip. He had it in 1988. He had it worse in 1990. He really was having it worse in 1992. In 2002, VA began demolition proceedings and continued for eleven years building the train tracks in the wrong direction. They refused good advice from a noted engineer and continued apace until given the bitchslap and a stiff rebuke. What’s wrong with this kind of thing? Well, for beginners it keeps happening in spite of repeated vacates, set asides and reversals is what.
That Chris Mekus’ case was dredged up is the interesting story-not the reversal. Its one thing for a VA examiner or other concerned RVSR to become appalled at Chris’ cheeky effrontery for attempting fraud on the VA with a bogus P&T rating based on the wrong DC. But it’s an entirely different matter when s/he had to go get a few signatures to make this stick. That means s/he had to convince the others of the enormity of the crime and get them to agree in simpatico. Then they all had to sign it to make it a legal finding. That’s a whole lot of wrong “had to’s” to collect at any outfit. Unless there is no “non” before the word “adversarial” at the VA.
The perfidy didn’t end there. Twice they tried to huff and puff and blow Chris’ rating down. Each time required more subtle and nuanced BVA legal misinterpretation. The decision was in and they just had to sell the judge on the idea. St. Mary wasn’t buying. Perhaps Davis or Kasold might have bitten and given in to Willie Gunn, but the luck of clerk Greg Block’s draw gave them St. Mary.
What did Mr. Eastwood say? A good man knows his limitations? Seems if you draw the short straw like Mr. Gunn did, the smart money says engage in “a tactical advance in a new direction” (read retreat).
I don’t think you can more clearly illuminate the high-handed attitude of the VA than via Mr. Mekus’ treatment. I have witnessed this “arranging the crime scene” technique firsthand in my own case and the VA’s concerted effort to ignore or deny the truth until virtually on the verge of exposure. I can also say that I may find myself back at the CAVC soon if the VA decides to renege on their bargain. The enormity of this whole thing which, incidentally, resulted in no monetary reduction one way or another, simply muddied up old water for no appreciable gain to either party. Whither nonadversarial? Why logic didn’t insert itself into the equation before they pushed Print is ample proof of why it takes so long to accomplish anything at the VA. They’re too busy looking for crimes in all the wrong places. It must be an OCD/OIG kind of problem.