CAVC–MOYE V. SHINSEKI-THE PRESUMPTION ACCORDING TO ST. BAGBY


thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9My eye, as most know, is drawn to Court reversals as they offer the most cutting -edge jurisprudence and the best read for the money. Leroy Macklem is a recent, classic example of this and Mr. Moye’s win will be back to the same era (the 70’s). The two cases bear little resemblance other than they share the Clear and Unmistakable Error (CUE) theorem. Leroy’s was pure hot air and probably will hold the BVA record as the biggest brain fart in five decades on the part of the RVSR who stepped on his necktie. Mr. Moye’s Motion to Revise, however revolves around our old friend Mr. Jesse E. Bagby.

The Presumption of Everything Worth being Presumed Upon at the VA reigns supreme. So much so that it becomes an albatross around Will E. Gunn’s neck on occasion. downloadHe will have to worry no more. I noticed he wisely connected his chin strap on his brain bucket and hooked into the Static Line this morning. Gunn was gone with the Green Light along with the principal assistant Under Secretary for Veterans Health (an oxymoron). I’m sure there will be a rush to the exits in good time. These far thinkers simply had the foresight to avoid the inevitable tar and feather treatment visible on the horizon.

Mr. Richard L. Moye got a surprising decision from, of all judges, Bruce “Almighty” Kasold. We would have been quailing in our shoes had we been at his mercy. Some have recalled his first word was “affirmed” before he even learned how to say Moma. A reversal would be the only reasonable outcome of this in any normal Courtroom, but it is remarkable for him so I merely mention it here.

Moy reversal

Let’s review this in DickandJane Vetspeak. We variously hear of the presumption of regularity in the mail- i.e. if we mailed it, it’s presumed you got it because the USPS is extremely trustworthy. Mail carriers are not prone to rent storage lockers and stash their letters there. We are assuaged that administrative procedures of VA are always followed to a T such as scheduling appointments (Presumption of Validity). Since VAMCs are infallible, the presumption that every medical procedure ever performed anywhere, anytime by VA doctors was correct and free of malpractice is in force. We are consoled by the Presumption of “We followed the law” that everything was above board back in 1979 when Mr. Moye filed his first claim for flat feet and that all the evidence was considered in spite of the fact that the VA and BVA were somehow exempt from having to actually get anally specific on why you were denied. I’m not kidding you. Until about 1990, the VA was sending out SOCs that simply said “Sorry we can’t grant your request. Thank you for your Service.”

The Dickmeister wins this for one reason. He, the Veteran, gets his one ace card to deploy which is the Presumption of Soundness. When you enter the service, you get the hairy eyeball. Every mole is annotated. Even if you say you had “foot problems” before service, if they accept you without declaring it medically on the SF 88, it is because they do not see it. Once in service, if something goes haywire, as here, absent a noting of the infirmity or defect at entry, you get the “whole enchilada” presumption.  Rebutting that is usually a tall order. Well, not in Jesse’s case so much. All they did was call up his old doctor and ask him if Jess had any ulcers before he joined up. Busted! In Mr. Moye’s case, they resorted to presuming that the collection of evidence and the rationale for the decisions was the same over in the military.

Richard got the same initial presumption as Jesse at entry but then developed his mega-pes planus problems after he’d been in a while. Only then did they do the military Medical Evaluation Board (MEB) on him and sent him packing. Herein lies the problem. The BVA Veterans Law Judge was “judicially challenged” because he foolishly relied on the MEB and Richard’s own tacit admission of unspecified “foot problems” before service to constitute sufficient evidence to rebut the Presumption of Soundness. In order to rebut something, the legal standard requires that you prove it was clearly and unmistakably erroneous. Once we go down that road, a whole new set of rules applies-even to VA. Our old friend Mr. Russell immediately becomes paramount. All things CUE have CUE rules. Mr. Moye set out to prove CUE and did because VA made that false presumption that they had rebutted his soundness. Always remember, all these claims hinge on the evidence of record at the time of the decision. That much is usually still in the C-file unless you filed in Dayton or Detroit where the thin air causes files to evaporate.

Here’s a copy of Mr. Russell’s and Miz Collin’s dust up with the Court back in 1992. It became the CUE Bible with a few additions later (Fugo, Caffrey etc.)

russell_90-396

Fugo

Caffrey

Russell enunciated the pure concept that there can only be one correct decision. You can’t have it both ways. Either you’re a little bit pregnant or you’re not at all. When you aspire to go back and re-argue it, you cannot disagree with how the evidence was evaluated. You can, however, attack the law if they do not follow it or misinterpret it. Once you prove they broke or ignored the law, you have to prove it manifestly changed the outcome. I don’t think that matter is in dispute here.

The Board’s analysis is faulty. Certainly, the 1979 RO is presumed to have considered the evidence, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), and, although not stated by the Board, it is presumed that the RO applied the law correctly, Pierce v. Principi, 240 F.3d 1340, 1355 (Fed. Cir. 2001) (“Final RO decisions are entitled to a presumption of validity.”); see also Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004) (1945 RO’s failure to cite to presumption of soundness and aggravation does not mean that those statutes were not correctly applied). But presumptions are rebuttable, and the law in 1979 (as well as today) required evidence of pre-existence and no aggravation to rise to the level of “clear and unmistakable” in order to overcome the presumption of soundness that attaches to disabilities that manifested in service and were not noted upon entry into service. See Vanerson v. West, 12 Vet.App. 254, 261 (1999) (“[T]he standard of proof for rebutting the presumption of soundness is . . . evidence that is clear and unmistakable, i.e., undebatable.”); see also Waltzer v. Nicholson, 447 F.3d 1378, 1380 (Fed. Cir. 2006) (“Our precedent is clear that whether the evidence regarding [the veteran’s]  preexisting condition rises to the level of clear and unmistakable evidence is simply the application of the facts to the legal standard established by section 1111.”  Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) (“[A] question as to the legal sufficiency of the evidence is a question of law.”); Gilbert v. Shinseki, 26 Vet.App. 48, 52 (2012) (“The presumption of soundness serves as a shield against any assertion by the Secretary that a veteran’s in-service disability that was not noted upon entry to service preexisted service.”).

Will Gunn and his OGC crew were so caught up in the BVA argument about Mr. Moye’s apparent disagreement with the way the facts were decided that they lost sight of the bigger picture. The law is fairly dispositive that if the glove don’t fit, you ain’t gonna convict. The OGC folks had put all their apples in the wrong basket and depended on the military’s MEB and Richard’s own admission that he had a problem. So blinded were they by this ” clear and unmistakable rightness” that they overlooked the fact that it was not the VA that had made the finding but the military. Apples in the oranges basket doesn’t work.

With regard to the evidence cited by the Board, the MEB findings are evidence that Mr. Moye’s pes planus pre-existed service and was not aggravated by service. But there is no indication that the MEB findings were predicated on a review of the totality of the evidence, or used the standard of “clear and unmistakable” evidence, and the Secretary has not submitted any evidence that such was a regular practice of the military services. Moreover, absent any discussion supporting the MEB findings, they are rendered suspect by other contemporaneous record facts, to wit: Mr. Moye

(1) entered service and was physically evaluated upon entry, with no indication that he had pes planus,

(2) was medically examined for foot problems on many occasions while in service, with no diagnosis of pes planus until more than six months after he entered service and no indication on that report that pes planus existed before service, and

(3) was not present to provide evidence or argument at the MEB proceedings.

NVLSP_Amy_136_203_70

Amy F. Odum, Esquire

The amazing part of this is that there is no available record to peruse so as to ascertain just exactly what the thinking of the rater was. Mighty convenient, too. It’s better than having a fire at the NPRC (with no sprinklers or smoke detectors) on Friday the 13th of July, 1973 after everyone has gone home for the day.  Nevertheless, Mr. Moye, assisted by his shield bearer and esquire Amy F. Odom, has prevailed because VA was, is and presumably always will be, sloppy, uninformed and prone to error. The reason is elementary- they are untrained in the school of law just as much as you or I. It only becomes apparent when you arrive at a real Court where they read the statutes and regulations instead of making them up as they go along to fit the facts.

0916-corvette_full_600Mr. Moye will soon be down at the Chevrolet dealership making those painfully hard choices on which color of Corvette he and the wife can agree on. The mortgage, if they refinanced in the early 2000s, will probably be retired or substantially reduced. Rest assured that he also faces the very real prospect of the 0% empty popsicle stick from 1979 in an adversarial Fenderson staged ratings reenactment. But what the hey? That’s why he hired Amy. I bet her phone is going to be ringing off the hook pretty soon. For your information, she works at the National Veterans Legal Services Program (NVLSP). No coincidence there. That’s the stable from whence Meg Bartley emerged before her ascension to Sainthood at the Court.

About asknod

VA claims blogger
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2 Responses to CAVC–MOYE V. SHINSEKI-THE PRESUMPTION ACCORDING TO ST. BAGBY

  1. John King says:

    That presumption of regularity for the VA mailing out ratings to the veteran is fantastic as in a fantasy. In my own case headed for federal court the VA sent my original rating to the wrong address, and it was returned to sender ” addressee unknown”. The VA insists that even if they got it wrong that is under “duty to assist” and can’t be part of a CUE. They also insist that I had a year to file a NOD because that is what the rules say. Just because I was not informed of my appeal rights means nothing. Since my decision was before 1990 they also assume that all the facts of the claim were considered when it is clear that they were not considered. The CAVC just falls back on these tired assumptions and upholds my denial even as the BVA admits all the major facts in my original claim were not considered. They put it this way: ” There is no evidence that the vet’s doctor’s report was ever considered in this case” . The CAVC says that there is no evidence that is was not considered because prior to 1990 the VA did not have to list or mention any particular evidence in the case except what they want to consider. So a vet cannot prove or show that his evidence was considered or not considered but the VA assumes it was regardless. If you did not file a NOD within one year you are out of luck regardless of the facts.

    • asknod says:

      John introduces a valid point. If your denial is mailed to the wrong address then the Presumption of Regularity of the mail is void ab initio. If the c-file reflects that the mailing was returned to VA, the Presumption has been rebutted. How this can ever fall into the ”duty to assist” basket vis-a-vis CUE is an enigma. It will make a grand argument at the Fed. Circus. Due process involves being able to timely respond to a denial once informed. Absent a notification, there can be no viable path to appeal.

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