The following case illustrates what a lot of you who file for HCV are encountering. It also exhibits a large amount of chutzpah on the VA’s and the BVA’s part about what they think constitutes justice.

Many of us wait years for an appeal to reach the docket and then are subjected to a remand for what would, on paper, appear to be a shot at some kind of impartiality. Many is the Vet who has has written me and said “Gez. I got it remanded for a gastrodoc to take a gander and they sent it out to a proctologist (or substitute who you got here). One even got a specialist in OB/Gyn. He lucked out. His law dog spotted it within 60 days of the bait and switch and they blew an ass gasket. VA suddenly decided another specialist in the affected field might be more appropriate and he won.

Here’s the .pdf  MaughanSA_12-2832

Dr. Speculative

Steve Maughan wasn’t so lucky. Initially, the Board sent it out for another Dog and Pony exam but the VA examiner did the 4th and long and punted based on having the vapors and feeling the whole thing was too speculative to even consider. The CAVC considers that the same as no decision at all. This has conflusticated the VA in the past. To remedy it when it happens, they withdraw 30 pieces of silver from the bank and go shopping for a negative medical opinion. Since they have a gazillion doctors working for them, they “doctor-shop” it until they find a willing subject. The reason this is evident is a Vet at the Winston Salem, N.C.  VARO lost. He appealed and the BVA sent it out to a “impartial gastroenterologist” at the Portland, Oregon VAMC. I reckon they were fresh out of gastrodocs in Pennsylvania, Delaware, Maryland, Virginia or any other VAMC within 2500 miles based on this. I’m guessing our reknowned Dr. Ben Cecil would have done it for free and he’s in Louisville.

Steve’s nemesis turned out to be a urologist. VA reasoned that was close enough. The problem was that the Appeals Management Center (AMC), that 57th Regional Office on 1722 Eye Street NW 20421-1111 around the corner from 810 Yellowbrick Road, specifically asked for a hepatologist or gastrodoc to take a gander at this complicated liver problem.

If you can believe it, VA was unable to find a single one that wasn’t booked out six months or up to his ass in livers. Hence the downgrade to a urologist. God, I hate that when that happens. Judge Coral is having none of this. While I have no love for the AMC, they did specify on the remand the second time that it specifically be a liver doc. The BVA’s answer to Coral was the usual bitchslap.

A specialist, albeit not the specific specialist the Board had in mind, performed the examination. Further, the Board left open the possibility for this scenario as well as for the scenario of a general physician rather than a specialist performing the examination. Use of the phrase “if at all possible” indeed conveys acknowledgment by the Board that a hepatologist or gastroenterologist might not be able to perform the examination.

Whoo, doggies. That doesn’t cut it at Indiana Ave. NW these days unless you get Judge Bruce “I affirm” Kasold. With the advent of the new bevvy of  judges recently, they are performing due diligence in Court. That does not permit vacuous rationale on the BVA judge’s part. Here’s the rules according to Carol:

The Board’s reasoning is problematic for a few reasons. First, the Board insinuated that so long as the Secretary obtained an opinion from a specialist, any specialist at all, then he substantially complied with its instructions. By requesting an opinion from a hepatologist or gastroenterologist, the Board indicated that it believed the controversy in this case could not be resolved without placing it before a medical examiner with specialized knowledge about the liver. Applying the Board’s present logic, an opinion from a podiatrist, or an ophthalmologist, or a dermatologist would have been acceptable because those examiners are specialists in something, even though their knowledge of liver disease might be restricted to what they learned years ago in their general medical school courses.

This is the stuff we dream of. For years, we’ve been saddled with the old saw that “if you were unhappy or had some misgivings about the IME the BVA sent out for, you had ample time (sixty days) to voice your concerns. Coming to the Court with your dissatisfaction at this late date is unavailing.” Here. Judge Carol politely points out that isn’t according to Hoyle.

Chances are we’re not going to see Steve back at 625 Native American Ave. NW again. Unfortunately, this isn’t the end of VA podiatrists and dermatologists opining on your L5-S1 DDD.