CAVC–FRADKIN v. SHINSEKI–IMPLICIT DENIAL IS STILL A NO-NO


Reversed and remanded!

Reversed and remanded!

Meet Robert Fradkin. An  American eager to serve his country in 1967 and who ended up with bent brain syndrome. VA fought him tooth and nail over this from his discharge in 1971 right up to 2002 when they relented and granted his claim back to his 1995 filing. This case is his fourth trip to the CAVC-some kind of remand record. Apparently, the BVA was not going to admit to what the common meaning of “is” was in 1971. I liken it to a child who is still cussing after he’s had his mouth washed out with soap four times. Our patron Saint of Veterans, Saint Mary Schoelen of the Holy Shrine of 625 Native Americana Ave. NW, has had enough and raises the “you’re outta here” thumb. 

Fradkin reversal pro se

I think what most of you will find amazing is that Mr. Fradkin did this all by himself. Winning a claim is no small feat in this VA Hall of Mirrors. Winning a CUE claim back to 1971 is like batting a .1000.

As usual, this one boils down to semantics. This is VA’s forte when they are controlling the Kangaroo Kourt. It even succeeds at the BVA where they carefully search for any legal justification for a denial. This time, they run afoul of time, too many frivolous technicalities and a pronounced propensity to lump a wealth of  personality disorders and compensable claims in one pile and blend them into puréed confusion. Mr. Fradkin wasn’t buying. He knew he had a brain owie. VA was willing to concede it as well. What they were not going to discuss was whether anything he had might be compensable. Viewed narrowly, his in-service complaint of schizoid personality was noncompensable. But that was not what he complained of. He was talking anxiety disorder and nervous condition.

I liken this technique to how they phrase your claim. You walk in and fill out the 21-526 and say I’m not a doctor but there is something amiss upstairs. VA will run with it and say okay, which one? There’s a pretty long list with a lot that begin with Schizo-. If you pick the wrong one, you lose.  Mr. Clemmons (v. Shinseki) had this very same problem, too. And like Mr. Clemmons, VA felt compelled to pick a mental disease Bob was not suffering from so as to deny it.

The appellant seeks reversal of the Board’s decision, arguing that the Board clearly erred when it determined that his claims for chronic anxiety and depressive neurosis were implicitly denied in the November 22, 1971, rating decision. He argues that he was not put on notice that VA was denying entitlement to service connection for chronic anxiety or depressive neurosis because there is nothing in the rating decision or notice of disallowance that refers or alludes to either diagnosis.

Bingo. Four trips to the CAVC to discover that implicit denial is still illegal in the lower 48? What’s worse, Willy Gunn finally has to fall on his sword and admit it. But four trips to the Big House to get them to admit they were “interpreting it wrong”? Saint Mary decides this is over the top-hence the reversal. You see this a bit more with the newer breed of judges at the Court- especially the more knowledgeable women like Schoelen and Bartley. I  think the jury is still out on Coral W-P but Hagel is even beginning to get fed up with some of this judicial ineptitude. VA should, by rights, only be allowed to commit adultery X number of times before they get charged with patronizing a prostitute.

Here, you get a feel for that laissez faire VA attitude. VA has screwed this up at the RO (1) the BVA (4) and now we are at the Court for the fourth attempt at determining what the truth is. Willy wants to export it back for one more lather, rinse and repeat at the BVA. Shoo-doggies. Like St. Mary is going to fall for that again?

The Secretary concedes that the appellant’s 1971 claims for chronic anxiety and depressive neurosis were not implicitly denied in the November 1971 rating decision and that the Board clearly erred in its application of the factors identified in Cogburn. Accordingly, the Secretary asserts that “remand of [the a]ppellant’s earlier effective date claim is warranted for readjudication and any necessary development.”

Clearly, the marijuana being smoked at the OGC is of a much higher quality than what is being sold in Washington and Colorado. You can almost see the paraphrasing in the brief:   “Well, Miz Schoelen. We gotta apologize. Seems you have it all figured out so just hand it back to us and we’ll sashay on over to Vermont Ave. and “fix” it.”

Schoelen isn’t that naive. She likes to do summaries and list all those mistakes where the Veterans Law Judge “got the vapors”.

 Upon review, the Court will accept the Secretary’s concession of Board error. The Court agrees that nothing in the language of the November 1971 rating decision nor in the December 1971 notice letter provided sufficient information for a reasonable claimant to know that a claim for any nervous condition, including chronic anxiety or depressive neurosis, was denied…

The Court further agrees that the Board erred when it determined that the first and fourth Cogburn factors also weighed in favor of finding an implicit denial…

Finally, with regard to the fourth factor, the Court agrees with the appellant and the Secretary,that the record does not show that he was represented by an attorney when the November 22, 1971,
rating decision issued. See Cogburn, 24 Vet.App. at 217 (finding that whether a claimant is represented by an attorney is relevant to determining “what disability was initially claimed and how
any decision based on the implicit denial doctrine is interpreted“)

Based on the foregoing, the Court holds that the Board clearly erred in determining that the appellant’s claims for chronic anxiety and depressive neurosis were implicitly denied in the
November 22, 1971, rating decision. Gilbert v. Derwinski  (“‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”  As a result, the appellant’s claims remained pending from October 1971 to March 2002 when the Board awarded entitlement to disability compensation for major depression. R. at 1271-80; see Adams v. Shinseki, 568 F.3d at 960 (“If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by [VA], in which case the effective date for any award of benefits will be the effective date applicable to the original claim.”)

Accordingly, the Court will reverse the Board’s decision that the appellant is not entitled to an effective date earlier than April 28, 1995, for the award of disability compensation benefits for major depression and remand the matter for (1) assignment of an effective date applicable to the appellant’s original claim filed in October 1971, which was within one year following his discharge from military service, and (2) a determination of the appropriate disability rating or ratings.

If VA continues to shoot themselves in the same foot again and again, I suppose they shouldn’t be surprised to get this treatment.

Here’s another by Judge Hagel. Same problem. This time the semantic slip up was blamed on the Vet-one Victor Ortiz-Alvarado- for using the word “revise” instead of “reconsider”. Pretty cheeky, huh?

Ortiz-Alvarado reversal on MFR or CUE

Once the misunderstanding was firmly ensconced, VA proceeded to do what Alvarado most definitely did not ask for- a motion to revise. Remember when your older sisters used to play dumb and try to misconstrue what it was you wanted-like maybe to get into the bathroom before you peed your pants? VA is no different. They’ve just taken it a step beyond to an art form. Unfortunately, CAVC judges usually can see through the ruse unless they are pro-VA jerks like Davis and Kasold are rumored to be.

FradkinAs I point out on these Cliff Notes® forays into reversals, VA usually has done something egregious and repeatedly, or the error is so prejudicial and a deprivation of all that is judicially holy as to warrant the ultimate sanction. Reversals are a repudiation of any redeeming judicial mores in a decision. It is the complete refusal to read into the VLJ’s aspirations any glimmer of nonadversarial justice. In Fradkin’s case the Court gave them three opportunities to do the right thing. When they couldn’t (or wouldn’t), the wrath of Khan was foreseeable.

About asknod

VA claims blogger
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One Response to CAVC–FRADKIN v. SHINSEKI–IMPLICIT DENIAL IS STILL A NO-NO

  1. hepper74 says:

    Now you can see why the VA is back in the handout line for additional funding. With that many GS-14’s doing the books they might get a better eye on a years budget if those pesky Vets would just stop asking for money. Darn it anyhow! The files wither and collect dust but at some point perhaps someone will pull their head out and realize it is not cost effective to hold claims back for so many years. I would imagine that it would be much cheaper and less confrontational if they would grant and then use the medical information in front of them, along with the service records, to determine if Bubba is a malcontent or worthy of the payment.

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