Ah, reversals. What could be more fun? I’m just guessing Alexandra Lio, Esquire is walking on air over this one. It’s a fine feather in Chisolm, Chisolm and Kilpatrick LLP’s hat, too. It illustrates perfectly the urge of VA to spend every waking moment disassembling ratings as quickly as they are granted. Good Lord. Is it any wonder we have a backlog? These jokers are out of control.

Wells v. shinseki– Rating Reduction

Let us take Mr. Stephen D. Wells, a gyrine from the Vietnam Geopolitical Misunderstanding of the late sixties. Seems he became ill presumptively due to the Orange-flavored fertilizer we sprayed over there. Since VA has to hold their noses and grant these things, it’s understandable they might want to come back a year later and make sure you weren’t faking it all. Apparently, in the Steverino’s case they suspected just that. So get this. August 2007-VA heart exam shows 100% disability. Only sixteen months later in December 2007, they’re back like a bad habit and want a new heart test. This guy has had a Myocardial infarct and his METS level is in the basement. He’s just getting his second wind of sorts and VA is there with the meters and a stethoscope.

Considering Steve was on beta blockers, he started doing better. Recognizing (Hell, anticipating would be a better word) this, the far-seeing VA examiner immediately calls 30% with just the bare minimum of legality (6 month setback to September 2008). Mr. Wells didn’t cotton to the haircut and mailed in a very loud protest on the merits of the proposed reduction. Nevertheless, in less than two months, the overwhelmed, backlog-challenged raters managed to somehow crank out the reduction. Isn’t that amazing? They couldn’t do a normal claim in less than sixteen months but somehow, in their spare time, managed to schedule an exam, retrieve same, evaluate him and cogently decide he was on the road to recovery. They probably got a bonus for it, too.

Meanwhile, Mr. Wells wasn’t cutting bait. He sashayed on over to the CCK ranch and talked up Miz Lio with an eye towards overturning this injustice. A wise choice. Can you imagine going up to the Big House with a pro bono bozo? Lio isn’t some dizzy blonde.

The VA is rife with idiots. This we know. Anyone who would be focusing on dragging in the newly rated and occupying all their time consumed with the thought of reducing ratings is not all there. The line of Veterans waiting for a  first time shot at this in 2008 was already growing sizable. I think it was up in the 900,000ish region filing annually. VA knew this, too. So what we had was a couple of RVSRs who dropped everything else at a cost of hundreds of thousands of dollars (wages for several RVSRs) and a cast of thousands of extras helping them to get what? A reduction in Mr. Well’s bottom line from $2,850.00 a month down to $405.00. That’s a savings of about $26,000.00± a year. It would take eight or ten years to amortize that back even if the Stevemeister didn’t appeal it. Since he did, it was going to cost a shit ton more than that.

Reducing ratings at the VA is about as dicey as winning a CUE claim. VA has a storied history of cutting corners and bending suspense dates to get there. They have an equally dismal record on appeal up at 625 Wagonburner Lane NW, too. If you set out to reduce a fellow, you have to observe a host of regulations. After that, you have to be bulletproof medically for the rationale and have at least two medical examinations confirming this newfound improvement in health. And, to the OGC’s surprise, you also need one other little item they all overlooked when they began this Texas Necktie Party. That is, the reasonable expectation that he was going to maintain this newfound health for the near future.

An important thing to take away from this is the VA litigating posture that permits them to think eating pills to improve your health equates to reducing your rating. No way, Jose. Your health, and thus your rating, unless otherwise specified in the applicable rating under Part 4, must be measured by your physical condition unaltered. VA continues to misinterpret this and go for the jugular. As long as you know the law, you can thwart this but how many Vets would think VA raters and Examiners would cheat? How many would think the BVA and the VLJ would purposefully disremember 38 CFR §4.10?

In the military, we were taught how to survive and win. We depended on our superiors to be honest, forthright and frank with us. The VA purports to be our Protector and watch out for us. There’s simply no place for this intransigent behaviour -whether it be at the hands of the VHA or the VBA. Nevertheless, one common thread seems to weave all these adversarial practices together. The common denominator is a systemic indifference bordering on disgust with us Veterans. In order to inflict an injustice on someone, you have to have an intrinsic dislike or a feeling of moral superiority over them.

VA chose to go off the reservation here and ended up with egg on their face. Unfortunately, they are fond of egg as makeup or else it doesn’t bother them. Mr. Wells and his able shield bearer Alexandra Lio certainly didn’t cut precedential inroads at the CAVC but they further illustrated the perfidy Veterans endure day in and day out. That it continues unabated is what disturbs me.