CAVC–PEOPLES V. SHINSEKI–“DEXEDRINE? SORRY, WE DON’T SEE IT”


thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Once again we venture into reversal land at the CAVC. This is my pet subject. It allows us to minutely examine BVA jurisprudence and see where they saddled up the horse called Illogical and rode out onto the fruited plain in search of a satisfying rationale.

Walter M. Peoples was a Veteran of that interim period between Korea and Vietnam. This in no way should marginalize him for compensation purposes. Nevertheless the VA’s Office of General Counsel seemed Hell-bent on just that. Walter had filed for this in the past and been denied. Just when he did is unclear from the record but he had reopened the claim and had his teeth rearranged a second time. Being older and wiser, he opted to take it to it’s logical conclusion and find out if he had been screwed illegally. Well, duh. Where did you park the squad car, Dick Tracy? We’re talking VA here.

Meet Walter M. Peoples… CAVC Walter M. Peoples

The VA says this all turns on a subjective reading of a Service Treatment Record (STR or SMR) in October 1957 regarding a prescription for dexedrine. That’s the trade name for dexamphetamine or good old-fashioned speed. It was widely prescribed in that era for narcolepsy which Mr. Peoples suffered from. VA took the position that the notes were illegible to their highly trained VA Examiner who perused it. The BVA went further and had a forensic podiatrist schooled in adducing chicken (foot) bones do an “Independent Medical Opinion” wherein he could find absolutely nothing that resembled the word “dexedrine”.  Other doctors, however, seemed to have no problem deciphering it. Mr. Peoples’ decision is also germane and important because it clearly redefines the term “benefit of the doubt” on the off chance VA misplaced their copy of 38 CFR.

VA has long held (narrowly) that all the evidence and testimony must be assessed, weighed, measured, and minutely examined in an effort to determine whether it is a plus or a minus. Only after this weighing on the VA scales of justice can a benefit of the doubt decision be arrived at. Quite simply, if the pluses outweigh the negatives, then you win. If they are equally balanced for and against, the benefit of the doubt is awarded the Vet. It rarely works that way-if ever. I’ve read thousands of decisions and the one commonality in all that were unarguably indisputable was the decision by VA to say the benefit of the doubt was for application. Ten of your buddies could testify they watched you step on a mine and lose your legs. Each one of them could say the reason your legs evaporated was due to the Betty. You would not win until a doctor opined and said the reason the legs were no longer present was due to trauma while in the service. At that point the benefit of the doubt would kick in and you’d win. But not before. Ever.

In Mr. Peoples’ case, a doctor prescribed him some speed for narcolepsy. It’s in the record. VA swore up and down that it wasn’t, or, if it was, that it had nothing to do with narcolepsy. What they forgot to do was read 38 CFR §3.102 to its conclusion as well as 38 USC §5107. Had they done so, Walt wouldn’t have wasted 20 years of his life on this project.

“The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary” and, “when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b) (emphasis added); see Douglas v. Shinseki, 23 Vet.App. 19, 23 (2009) (holding that the benefit-of-the-doubt rule applies after careful consideration of all procurable data); 38 C.F.R. § 3.102 (2013) (stating that when, “after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant”) (emphasis added).

Here, the Board did not merely decide whether the October 1957 SMR is favorable, but rather evaluated multiple other pieces of evidence to make a determination as to what the October 1957
evidence actually shows. As reflected by the Secretary’s concession that this case “largely turn[s]” on the determination of whether the appellant was prescribed Dexedrine in October 1957, this is exactly the kind of “issue material to the determination of a matter” or “any other point” that is contemplated by the benefit-of-the-doubt doctrine articulated in section 5107(b) and § 3.102

downloadSomehow, the RO, the BVA and all the King’s men could not see the word dexedrine. Remember when you were a kid and some cookie monster entered the kitchen and ate up all the cookies? You probably testified that you had no idea how or who was involved but then got diarrhea of the piehole and allowed as you had personally witnessed a one-eyed, one armed flying purple cookie eater circling the house that morning. Mommy would intercede and point out that you couldn’t say you knew nothing but were aware of unidentified, ocularly-challenged flying objects in the immediate vicinity of the cookie jar. Judge Lance sadly had to explain this dichotomy to the OGC folks. Lying is an art form. Ambiguity is your best friend. Someone needs to explain that to the VA on a fairly regular basis, apparently. I’ve seen more situations where they just kept coming back in succeeding denials with new rationale for the decision which was not part of the original denial. Like any whopper fish tale, eventually something doesn’t fit.

The Board’s analysis of the October 1957 SMR is simply untenable. Initially, the Board is inconsistent in its own findings of fact. Although it first found that “the exact names of . . . [the medications prescribed] are not immediately clear to the Board’s review,” and “the October 1957 treatment notation’s list of medications is illegible,” it went on to determine that “nothing written there otherwise appears like ‘Dexedrine’ either,” The Board cannot have it both ways: either it can decipher the notation or it cannot. Moreover, to the extent that the Board believes it is competent to determine in the first instance what the notation says, it does not explain why it found the appellant not competent to do so or otherwise not credible in his report of what he was prescribed or what treatment he received.

The reader or law scholar should note right here that the BVA judge was skating out onto mighty thin ice and a Colvin violation as well. VA is prone to be disingenuous. In their effort to prove they are overwhelmingly correct and the evidence can only be interpreted as being in their favor, they tend to spread the butter too thickly. Here, they simply went so far overboard that they appeared amateurish in their attempts to pull the wool over the judge’s eyes. This will often cause the judge to increase his scrutiny-exactly opposite the desired effect. And rather than assuaging his curiosity, this brought it roaring back.

Likewise, the other medical opinions that the Board found “constit[uted] the decisive and determinative medical evidence in this case” did not actually comment on the October 1957 notation.

I suspect this is what put the fork in the reversal.

In contrast, four separate medical professionals reviewed the SMR from October 2, 1957, and concluded that the appellant was prescribed Dexedrine.

> A July 1990 opinion from Dr. Mary Hamilton states “I have read his military records” and “[h]e was given Dexedrine [in October 1957].”

> In a May 1996 report, Dr. Jimmie McAdams indicates that “I cannot decipher the [doctor’s] handwriting in regards to his impressions, but it appears one of his prescriptions was Dexidrine  (#2).”

> Additionally, a June 2002 report form Dr. Wayne Mosier states that, “[a]ccording to the medical records available to me, Mr. Peoples was prescribed Dexidrine on October 2, 1957.”

>Finally, Dr. D.L. Trent, in a June 2002 report, states, “[b]y careful examination of the medical records that we have available, both of the V.A. and the private physicians that [the appellant] has seen over the years, it is noted that on the dates of October 02, 1957, at which time he was in active service, he was prescribed Dexidrine (an amphetamine) which was a common treatment modality of the time for narcolepsy” and “[d]ue to the poor manuscript of the prescribing physician it was unclear as to his impressions and reasoning for the use of this medication.”

It strikes me that the fire in St. Louis on Friday, July 13th, 1973 was woefully incomplete. These records, by rights, should have been declared forgeries and never been a part of the Record Before the Agency (RBA). Most disturbing is that this is all a matter of record and anyone with an ounce of sense could have simply read through the file and seen it. My case was identical in that respect. The Bozo RVSR clearly stated “We received your new evidence and we’ll get back to you after we make a new decision.” It took them six years, a DRO, a complete re-review before certification and the Form 8, a BVA denial  and last but not least-six months of motions at the CAVC before the OGC flunky said “uh-oh.”

As I like to point out, reversals are much like Clear and Unmistakable Error (CUE). They rarely occur and Judges are loathe to use the reversal option to express their dismay with how the BVA conducted it’s fact-finding expedition. Unfortunately, when you leave this much evidence on the table, the Veteran or his law dog is prone to find it. When the sum is this damning, reversal is the only option. In VA jurisprudence, if you lie, cheat and are unmasked, they reverse. No ifs ands or buts.

About asknod

VA claims blogger
This entry was posted in C-Files and RBAs, CAVC ruling, Important CAVC/COVA Ruling, Veterans Law and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

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