CAVC–MEKUS V. SHINSEKI–IDLE HANDS ARE THE DEVIL’S WORKSHOP


downloadGiven that there’s a backlog that would reach from Seattle to Honolulu if all the Vets lined up, you would wonder how on earth anyone would have to time to pick and dig and come up with this idiotic CUE. We often hear about how VA, if they feel jilted or slighted by you, will come after you like a scorned woman. It is rarely true but when it happens, we often find out it was the cold case files team. Rarely do they run amok off the reservation like they did to Keith Roberts.

Considering it takes 16 months to to get your dependents added to your claim, we here at Asknod ask the burning question. “Who had time to excavate Christopher A. Mekus’ file and start parsing Diagnostic Codes to knock down what appeared to be a firmly established Permanent and Total rating?” DRO reviews out of Oakland are running 585 days. That’s after 16 months waiting for an initial denial to generate a Notice of Disagreement. Quite simply put, what outfit in the VARO had the time to excavate paper files and peruse them minutely for error? This is all pre-VBMS. They had to go to the basement and dig this one up. And for the record, there is no Cold Case Files to my knowledge. which means they have an alarm clock for old claims…

So what happened? Here’s the case and I’ll tell you  in case your’re too lazy to read it.

Mekus v. Shinseki

imagesChris was a zoomie from 1985 to 88. He filed a claim for some weird stuff growing on his left hip that turned into a nasty surgery. It didn’t get better. He got the standard temporary prestabilization rating of 100% that we all get after a debilitating surgery in January of 1989. At his exam, he was on those skanky Canadian crutches we associate with Forest Gump or a polio victim in the 50s. At any rate, he had some mega issues with mobility which normally gets you a rating for it. By February of 1989  he was hors d’combat and not walking at all.

Following Chris’ April 1989 routine exam, the VA continued his 100% under a weird (read wrong) Diagnostic Code of 5012 instead of 5020. This was VA’s conception of CUE and what he would be fighting years to overcome in the distant future. The 100% was legitimate. As usual, a year later they gave him the progress exam and it revealed even more problems with pain, mobility and being able to stand for any period of time. Driving was getting difficult due to leg immobility. The Raters gave him a continued 100% and scheduled him for another show and tell in two years. This is VAspeak for a future Permanent and Total rating. When you come back two years later and are either the same or worse, they issue the Full Meal Deal. $10,000.00 in free VGLI whole life policy, college for the whole fandamily, and shopping at the commissary /PX nearest you. Oh, and “free” medical at the VAMC.

Sure enough, March 1992 dawned and Chis was still in the same boat or slightly worse. In June, VA issued a confirmed rating decision of Permanent and Total (P&T) and told him he didn’t need to ever come back for no more C&Ps. Now for the misfeasance.

At the end of ten years of Permanent and Total, a milestone occurs. To wit: your spouse, assuming you’ve been married over a year, is eligible to be awarded DIC or Dependents Indemnity Compensation of about $1500 a month for life. This happens when you become room temperature. Since you’re dead, there is no compensation check for $3K coming into the autodeposit. Widows of P&T Vets are the only ones who get this. It’s tax free which means she also gets the SSI.

Suddenly, in June 2002, VA was  industriously sniffing around Chris’ P&T claim from June 1992. Sure enough, the dang rating was CUE and fortunately for everyone involved, the VA had discovered it and had to set things right legally. Everyone but Chris was going to be happy with this discovery. They whacked his 100% P&T back to 60% but pasted on TDIU. On paper, this does not change the autodeposit of $3K every month.  The only problem was that Mrs. Mekus just got screwed.

In order to appear munificent, VA had reduced Chris’ ten year old rating, mind you, with no medical examination, and changed it to what they considered the proper 60%. The munificence was the concurance that he could not work and the Total Disability for Individual Employment (TDIU) was thrown in as the appeaser. Where the problem arose was that Mrs. Mekus’ DIC clock was reset From June 4, 1992 to June 4, 2002. Chris would now have to live another ten years in order for the Missus to be back in the DIC saddle.

Mr. Mekus dutifully appealed and they buried it in an endless four-year remand which resulted in a new denial from the Veterans Law Judge in 2008. Surprise! Wrong Diagnostic Code! Nobody bothered to drop by Chris’ place for a beer summit and a game of horseshoes or they might have noticed Chris was and had been legitimately disabled since all this began.  And he didn’t have a horseshoe pit. Nobody. Hell, not even the Keystone Kops from the OIG peeked in the window. All this over what ultimately resulted in resetting a DIC clock! Lord. How many man hours do you think this ate up just to arrive at the CUE-let alone another twelve years of litigation?

Mr. and Mrs. Mekus’ claim finally was heard at the Court in April 2010 and remanded for a wealth of stupidity on the part of the BVA. The CAVC judge clearly threw them the lifeline to get out of this  but the Veterans Law Judge wasn’t biting. He continued the denial based on a wealth of poor law. Again, no one disagreed with how disabled Chris was. They just disagreed on the Diagnostic Code rating chosen. For shits and grins, let’s go with the original, proper one of DC 5020. It would change nothing. It’s a number. VA said no, he had to be initially rated under metastases of cancer/recent surgery and  then should have been assigned a new DC after it stabilized. First of all, 100% is 100% regardless of what DC you choose. Then, having announced CUE,  they changed it to DC 5255- again the wrong one, in 2002. Here on appeal, they are arguing about analogous ratings and the appropriateness of that. The argument is specious at best and the judge hangs them on it. If DC 5012 was inappropriate and rose to the level of CUE in 1989, then why would rating him under the incorrect DC 5255 in 2002, rather than the correct DC 5020 NOT be CUE yet again? The VA Secretary tried to moonwalk backwards out of that one but never got traction on the tenny runners. Here’s the Mobius Loop Logic.

 The Secretary argues that the Board correctly determined that the June 1989 RO decision was the product of CUE because it should not have rated the appellant’s PVS by analogy (DC 5012).

Assuming, as the Board did, that rating by analogy under DC 5012 was appropriate, the Secretary also argues that it was error to continue the appellant’s rating more than one year after the October 1987 surgery because there was no evidence that the appellant had undergone any additional surgical intervention, chemotherapy, or other therapeutic procedure, and no evidence of local recurrence or metastases.

True… but if you compound the CUE with a new one, the Court gets the impression you really don’t know what you’re doing anyway.

In his reply brief, the appellant reiterates his assertions that PVS and synovitis are not the same conditions, and asserts that the Board’s decision was arbitrary and capricious because the Board contradicted itself when it found that the appellant’s condition is “listed” under DC 5020, but proceeded to rate him under DC 5255 after it affirmed discontinuance of the rating under DC 5012.

When we assay to prove CUE in a VA decision, we encounter the normal obstacles most Vets are essentially apprised of. Again, think of it as a recipe of ingredients with some substitution allowed. First and foremost, the meat.

1) the correct facts contained in the record were not before the adjudicator,   OR

2) the statutory or regulatory provisions in effect at the time were misapplied.

AND

Phase two, if either one of the prior conditions is met, engages the second  measurement:

3) the alleged error must be “undebatable,” not merely “a disagreement as to how the facts were weighed or evaluated.”

The third prong is what is unarguably the hardest for Vets to prove and the one that most fail to make.

4) the error must have “manifestly changed the outcome” of the decision being attacked on the basis of CUE at the time that decision was rendered.

What many overlook is in the preface and is almost another set of rules unto itself.

1)”Previous determinations which are final and binding, including decisions of . . . degree of disability . . . will be accepted as correct in the absence of [CUE].

2) When the Secretary initiates revision of a prior final decision, the burden is on the Government to establish that the prior decision was the product of CUE.

And last but not least…

It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.”

images (1)

Judge Mary Schoelen
(who else?)

VA was so hell bent to hand Mr. Mekus a CUE that they failed to make their case. I find it interesting here that this one finding below would be enough to overthrow the CUE motion by VA. The Judge keeps on going like the Energizer Bunny and identifies each and every error in minute detail. Reversals are very messy and leave a lot of blood on the floor. This one was no different.

In June 2002, the RO determined that the rating by analogy to DC 5012 amounted to clear error because there was “no malignancy,” and the Board affirmed that finding in the decision on appeal. The Board stated “[a]lthough 38 C.F.R. § 4.20 permits an evaluation of an unlisted condition under the [DC] for a closely related disease or injury, synovitis is a listed condition.” The Board, however, did not cite any medical evidence in the record to support its determination that synovitis and PVS are the same medical condition, and the Secretary makes the same omission when he argues for affirmance of the Board’s determination.   Without independent medical evidence to support its decision, the Board impermissibly made a medical determination that cannot provide the bases for finding the 1989 final RO decision, which is presumed correct, clearly and undebatably erroneous. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)

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.

Given the evidence of record in 1989 and the Board’s recognition that the appellant’s PVS can recur and have malignant symptoms, the Court finds the Board’s determination that there was CUE in the selection of DC 5012 “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law.”

The Board’s finding that there was “absolutely no evidence . . . functionally or anatomically analogous to ‘local recurrence or metastases’ of a malignant tumor” but only evidence of residuals of the surgery amounts to nothing more than a disagreement with how the RO weighed the evidence in 1990 and 1992, which cannot constitute CUE.

Mr. Mekus’ counsel has aptly made his case but he should never have had to. Now the Government is on the hook for all those EAJA fees. CUE is interesting. When it is stirred into a reversal, it makes for a good yarn. When shaken by Judge Mary Schoelen, it’s bound to be a classic.

About asknod

VA claims blogger
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