CAVC-SHELTON V. SHINSEKI–THE GOSPEL ACCORDING TO ST. BARTLEY


110I have crowed long and loud about Meg Bartley’s ascension to the CAVC throne with good cause. Her prior record working on the Veterans Benefits Manual ( Lexis Nexis VBM), as well as her staunch support of Veterans before the Court, was reason enough to crow. Her sense of fairness and the ability to actually look for reasons to find fault with the roughshod railroad justice that passes for same at the BVA makes her unique at the Court. This technique can’t be better expressed than in  Mr. Lloyd Shelton’s recent case before her this last February. 

Shelton reversal

Lloyd was a zoomie during the latter part of the Vietnam Boundary Misunderstanding and did not actually participate. He still got his “Battle for Lackland AFB ” National Defense Service Medal (NDSM) as did all of us who served in time of war. He had a mishap on his motorcycle in April 1974 that caused a lot of damage-most of it not immediately apparent to him. As with most young men his age, he was Joe Tough guy and signed off on his SF 88 exit physical as being 5-by on the health meter when he and the Air Force parted company in late 1975.

And, just like all of us formerly Joe Tough guys, by 1999 it was apparent he was not quite as bulletproof as he thought he was. Since he (and all of us) were taught the repair order was ‘Go see VA’, he knocked on their front door. I’m sure a large number of you are going to see some similarity in Mr. Shelton’s follow-on legal travails and your own. The reason is that they have one setting, default if you will, that permits only one interpretation of the evidence. This can be accomplished in many ways but the most common, which eludes your pro se ability to ascertain, is the most prevalent and utilized the most frequently. Coupled with a lackadaisical approach to “claims-solving”, the failure to fetch important documents you identify as crucial to your defense is the single most damaging aspect of ex parte justice. Well, that, semantics and a propensity to shade the truth or ignore it outright.

I wrote about this in Beraud v. Shinseki recently in Veterans Today and the same scenario unfolded there. The repercussions were horrendous to Mr. Beraud’s case. There, too, Judge Bartley demonstrated her deep knowledge of VA Statute and regulations such as 38 CFR 3.156(b) and forced a recall of that judgement due to the other members of her panel not being as well versed in the law. This is yet another example of why she should be considered for canonization as a Saint. Mr. Beraud suffered the same ignominious treatment when VA blew him off and made a decision fully well knowing that the evidence needed, and indeed requested or identified in queries, was never retrieved. Whether it was purposeful or an oversight, it nevertheless transpired and VA studiously attempted to mask the intransigence all the way up to the CAVC. They just didn’t anticipate the dogged determination of St. Meg to disassemble the decision and analyze each item in the Record Before the Agency. Baaaaaad idea.

Lloyd filed in March 1999 for “fluid and swelling in major joints” and authorized VA, via his filing of his 21-4142, to fetch certain records which would show continuity and chronicity of the injury over the years. He maintained that some of the records were in private hands and gave VA the GPS info. They, in turn, wrote said facility and got back a reply that the dates Mr. Shelton indicated were not correct “but that he had been treated there”. Well, shucks. In VAspeak, that’s all she wrote. If his dates didn’t comport with the hospital’s, then the evidence probably wasn’t material and there was not going to be any more discussion about it. No tickee-no laundry. Case denied. Next?

Fortunately for the Lloydmeister, he used the term ‘joints’ as in ‘other joints’ or ‘major joints’. This may have been his saving grace when combined with the failure of the duty to assist in fetching his medrecs. Here’s good ol’ Part 4  §4.45(f)of VA’s very own regulations that discusses what the meaning of “is” is and also happens to get into the subject of major and minor joints.

For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints;

It’s too bad VA isn’t as up to speed as St. Meg on these things. This is just page two of the seventeen page reversal. They’ve already exhibited their total ignorance of their own regulations semantically and Lloyd’s legal snowball hasn’t even begun it’s inexorable downward path to comport with gravity’s dictates.

Over the next several years, Mr. Shelton got inveigled into sub-arguments of which ankle and which knee were actually being appealed. VA artfully played him like a largemouth bass and took him out into deep water away from the legal snags. Each argument he put forth in defense in his NODs and Form 9s was dismembered and made to look unsupported. I have pointed this technique out to in my book. It’s the ‘divide and conquer” method. Here’s what it looked like to Lloyd.

In November 2001, Mr. Shelton underwent a VA joints examination that appears to have addressed both knees, including measuring the extension and flexion of his left and right knees. However, the examiner provided a diagnosis and opinion only as to the left knee…

VA effectively ignored anything of or having to do with the rest of his body and myopically focused on one joint. So much for sympathetically developing the claim a la Moody v. Principi. He suffered the same treatment later on in 2005 at another C&P exam. They annotated a annular bulge but only mentioned it in passing as if everyone has these little defects in or on them. No harm. No foul. And importantly no nexus either connecting or disputing it’s being service connected. You could be missing an arm due to an IED these days and VA would merely mention it as “rt. arm enucleated-not service connected” if you were there for COPD.

The next big error VA is so accustomed to employing is to “misconstrue” what it is you are actually attempting to obtain. Considering they are in charge of deciphering our mish mash and sorting it out to maximize our contentions and give us all we are entitled to, they manage to get it wrong perennially. Mr. Shelton’s case was no different. He all but used a yellow hi-lighter pen to illuminate his contentions and VA goes off the reservation thinking he’s pursuing a wholly new issue. Of course, in the meantime they were vociferously denying he ever filed for his right knee, then his elbows ad nauseum.

Please respond on the enclosed VA Form 21-4138, Statement in Support of Claim, and tell us if you are claiming any new conditions for service connected compensation or if there are additional benefits that you are seeking. If you wish to claim new conditions for compensation, please clearly identify each issue so that we can better assist you.

Any dolt with a modicum of English comprehension would understand this to be a request to clarify the filing of additional claims for as-yet unannounced ailments. Since Mr. Shelton most obviously was not a dolt and had nothing new to claim, he properly ignored the request. He had all his claims in. Getting VA to actually address them seemed to be the issue.

Six years later, VA belatedly granted SC for his right knee and the battle began. I have not mentioned VA’s propensity to lowball us but it is endemic to the system. I rightfully consider it to be a post-claim issue after the initial fight has been won. Here, it became the focal point in conjunction with when he should be granted an effective date.

Beraud stands for obeying the de novo dictates of 38 CFR § 3.156(b) but in close conjunction with it, when VA sends you out something that purports to be shopping for more info (or new, informal claims) on something already in the adjudications mill, you and I would ignore it because it isn’t pertinent. Most Vets think that Part Three of 38 CFR is the begin all and end all of what we need to assemble our case. Au contraire, ma cher. Part 19 deals with the BVA’s responsibility once this gets into the preliminary venue of the appeals arena. A whole new chapter of requirements, some beneficial, some arrogant, rear their head and force VA adjudicators to make sure the knot on the hangman’s noose is constructed properly to ensure a quick claims death. My favorite is 38 CFR § 19.29 which instructs the hangman to make sure the poor, education-challenged Veteran can understand that which he needs to know to mount a suitable defense. Perusing this section is like a Whitman’s box of chocolates. There’s something for all of us to use in our defense. The reason is simple. VA is in such a rush to deny that they inadvertently step on their collective neckties in their haste. This provokes poor justice. It is also the seminal reason for my success in winning my claim back to 1994.

Remember the ‘major joints’ as defined in §4.45(f) above? Remember that Mr. Shelton also mentioned his lower back and other areas of his body (ankles, elbows etc.)?  VA interminably glossed over these until they had their feet held to the fire. They then begrudingly went back and looked at the contentions with no more inclination to grant than a blithe, woefully defective nexus from a hireling.

 The examiner opined: “[T]his man’s lower back examination at the time of discharge from the service was entirely normal. It is my opinion that the veteran’s current back disorder is not likely to be a result of his motorcycle accident in 1974.”

As you can see, the problems with his denials were piling up like a 10-foot snowdrift outside the BVA’s door. And here is where Mr. Shelton’s and my cases converge. VA raters at the local Regional Office level often come to unsupported conclusions and could care less. If the M21 1MR doesn’t cover the denial contingency, they simply craft one out of whole cloth. Unless you have a law dog to eviscerate their clumsy, unsupported rationale, it proceeds to the BVA as it did to both of us. There, absent any profound reassessment, it basically becomes a rubber stamp court and affirms the errors below.

Veterans can’t comprehend how this can be. We are supposed to get a de novo review but what we get is a rehash of the same reasons from the original RO denial replete with identical language and mistakes. The phalanx of BVA staff attorneys are adroit at refashioning the argument to comport with Part 19 but more often than not they fail the most important test. They simply don’t read the c-file. They are content to ‘top sheet’ it, look for the denial reasons and expound on them more fully without performing due diligence to ascertain that the evidence of record (EOR) actually supports the denial logic. This is why we have such a horrendous backlog now encroaching on the BVA. Quite simply, if all you as an adjudicator do is to assemble all the negatives and construct a denial platform devoid of the positives, you can only come to one conclusion. Handing it off to the next higher court doesn’t necessarily mean the defect will be discovered.

Veterans never get this in-depth review until they get to the CAVC. Sometimes, they still get the short end of the punji stick because, depending on who they draw as a judge at the CAVC, the same exact scenario of lethargy in reading the record can ensue. Beraud was a classic example and, by simply examining the timeline, it was glaringly evident that VA waited a mere 19 days before reissuing a denial. I guess I don’t need to point out that VA can’t blow their collective nose in nineteen days without the threat of a Writ of Mandamus hanging over their head. Absent the Writ, when this happens you can almost guarantee railroad justice is afoot.

Bartley looked at this and did the timeline test, the regulations test and lastly, the semantics test. VA came up short on all three. Not only that, they didn’t have a leg to stand on for their egregious behaviour. Without going into each item in detail, they plaintively decried that Lloyd never mentioned his right knee. After having that argument tossed, they grasped at straws to say that even if he did, he didn’t appeal it. After that was disproved, they said there was no substantial evidence that would lead them to this. Well, Boy Howdy did they ever walk into that one backwards. If you are asked to go fetch, only make noises like a labrador retriever and then don’t come back with the bird, it can be said that you failed in your duty to assist. Just because the ‘dates” as remembered by Mr. Shelton didn’t comport with the actual dates of treatment, one doesn’t throw up their hands and say “Well, there you go. It’s probably not probative evidence to the claim and we are under no obligation to proceed further.” You, being pro se, will never be apprised of this until you get your copy of the RBA and notice the defect. Since we as pro se idiots are not accustomed to encountering this adversarial form of evidence collection, we find ourselves at a decided disadvantage. We are not permitted to add more evidence to the claim after the BVA so our appeal is defective on arrival. VA is insulated against any defect because we didn’t complain before the last dance. Game , set and match.

I guess I'm not seeing any ankles or elbows here.

I guess I’m not seeing any ankles or elbows here.

VA bases a large part of their jurisprudence at the RO and the BVA on our ignorance-both that of pro se folks and the VSOs that ostensibly represent us in this endeavour. They fully well expect they can produce a sloppy, defective product with not a word of dissent. On appeal, the BVA can affirm the same errors and we are no wiser. When we finally arrive at the Court, we discover we got screwed. VA counts on this. They are so accustomed to operating in this venue illegally that when someone like Lloyd Shelton or me comes along and accidentally brings a pot to piss in and purchases a house with a window to throw the piss out of, that they are speechless and unsure of how to proceed.

After regaining their power of speech, they trot out post hoc rationalizations, each of which, in succeeding order, are more preposterous and far-fetched than the one before. Here. Judge Bartley wasn’t having any of it. Mr. Shelton asked for reversal on all counts and a rightful award of his claims. Bartley complied but not out of revenge or acrimonious feelings toward the VA. Her legal logic was unassailable. VA screwed this up on a massive scale that dwarfs what is afoot in Phoenix. Moreover, they then attempted to apply the lipstick and conceal the sheer volume of the evidence that mitigated for his contentions.

It’s one thing to fail in the duty to assist and get caught. That’s a vacate and remandable as an oversight. It’s okay to ‘disremember’ the regulations in § 4.45(f) and have a brain fart. That warrants a ‘set aside and remand’. It’s okay to mail out things that purport to ask a Veteran if he is perhaps seeking to apply for ‘informal’ or otherwise nebulous claims they are unable to parse. The line is drawn by any astute judge when they see a misogynistic pattern of purposefully misunderstanding the facts or just blatantly lying and saying the Veteran never mentioned the ailment(s). When as here, the evidence of record becomes so voluminous and resembles an original printing of the Gutenberg Bible on an offset press, the VA would be advised to fold up the circus tent and go home. That they didn’t and ventured up to 625 Wagon Burner Lane NW with such a defective denial defies the imagination. I guess they figured Judge Bruce “Hang ’em high” Kasold might get it and they’d win.

Mr. Shelton got not one but three reversals and a ”set aside and remand’ for a correct reading on his back and all the other two thousand body parts. This time we can assume that with the CAVC looking over their shoulder, the decision will entail a more nuanced reading of Part 4 and an informative C&P with supporting rationale. At least we would hope so.

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About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Implicit denial, Informal Claims and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to CAVC-SHELTON V. SHINSEKI–THE GOSPEL ACCORDING TO ST. BARTLEY

  1. david j murphy says:

    Amen to kiedove. Something to be said for win or die.

  2. Kiedove says:

    A clear calm and beautifully written decision in response to sloppy denials that run “afoul” of the law. There’s a lot to be learned in these pages.

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