CAVC–PROFFER V. McDONALD–TAILORING THE PRESUMPTION


VetCourtAppealsPromoI have written of reversals about all manner of cases. I have written of the Presumption of Regularity and it’s increasing importance in jurisprudence where the VA is fond of telling the truth partially but fudging on the “and they lived happily ever after.” It seems VA feels a compulsion to tell the truth just enough to satisfy themselves and anyone willing to listen and then go off the reservation to come up with a wild, incredible ending whereby Johnny Vet missed it by thaaaaaat much.  We at asknod call these folks Agent 86 VA examiners.

 Meet Ronald L. Proffer.

Proffer reversal by Coral Wong

Ron served at the same time I did and suffered much the same issues I did. Amazing coincidence. The AF, when I returned from two years in Laos/Vietnam/Thailand, was a far different place. The war was winding down and the number of slots available to make a career there were disappearing. A certain amount of weeding out and triage was afoot. One method was to ride your ass on personal appearance. I lost a stripe over it just prior to my untimely separation. Mr. Proffer was heading down the same road and they separated him after only two years.

The Presumption of Soundness

Ronald was declared fit for service and thus accorded the Presumption of Soundness. He was declared fit for duty and inducted. He served faithfully until the day when they began to ride him over Air Force Manual 35-10 (personal appearance). From then on out, he had a target painted on his back. I’d bet that if he arrived a minute late for an assignment, it was characterized as chronic and ongoing.

download (3)When he and the Military Order of the Purple Heart applied for a bent brain claim in 2008, he cited to his contemporary service medical records as we all do for proof. They showed his gradual descent into the mental maelstrom and eventual discharge. An easy win? Not exactly. In the course of a hospital admission for slicing himself up with a knife, he admitted that he had some “minor anger issues” before service. VA latched onto that as proof positive to rebut the presumption of soundness. But. And there is always that niggling “but”. In an attempt to rebut this as not being service connected, they tried to cherry pick some of the SMRs showing this proclivity to mental aberration and then characterize it as sub-brain disfunction-aka personality disorder- which is, of course, not compensable. Since they have only one setting on personality disorders, they reverted back to Adobe 2 and the M21 opined that all personality disorders are presumed to have been pre-existing automatically and therefore non service connected:

38 CFR §3.303(c)

…In the field of mental disorders, personality disorders which are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior, chronic psychoneurosis of long duration or other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis, will be accepted as showing preservice origin. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation.

In addition, they declared this occurred increasingly more frequently and manifested itself repeatedly up to discharge. Wait until you see how this comes back to bite them on the ass.

Creating a plausible fish story

animals-the_strange_world_of_mr-fish-fish_story-fishermen-angler-wstn79_lowWhat the VA did here was to shoot themselves in the foot. They made a determination via the Holy VA examiner, that the Ronster had unequivocal proof of a problem in service. On top of that, he had admitted he had a “slight” problem with anger before but nothing near to approaching what manifested later in service. As with any fish story, this snowballed downhill into an account of how  all this anger surfaced “in early childhood” and somehow appended itself to a personality disorder as a secondary condition. I’m sure you’ve read how VA does this on HCV claims. Everything risky you did in the service (gonorrhea, drugs, tattoos) could not be the culprit. But boy howdy look at the fact that you had sixteen girlfriends and 3 tattoos in the intervening 20 years and there is where you got it. Ron got the same treatment. The problem for VA developed years ago  when a competent medical examiner, in this case the induction center doctor, declared him fit for duty. In order to overcome that, you have to prove CUE. That’s like trying to leap over tall buildings when you lack Superman’s attributes. This protected Mr. Proffer but it didn’t slow down VA’s theory on service connection one whit.

The Caluza Triangle

Mario Caluza pulled a boner in 1994. His memory was too good. His case set the bright line rule, heretofore unwritten by VA, of what was needed to prevail. Disease or injury in service; same thing now and a doctor’s nexus letter that ties the two together.  Collect all three and you get what’s behind door number 3.

VA went on to acknowledge all the Caluza elements including nexus. He had it in service. He has it now. The defect  in their logic was to say he had it before service. Now they have a stool with three legs but if fails to support their suppositions. Judge Coral Wong-Pietsch (wow is that a mouthful) opined as much. She pointed out that personality disorders under 38 CFR §4.127 are not compensable as an illness. However, a secondary mental illness to the personality disorder is. VA had by now shot themselves in the foot and admitted he suffered this in service. That was the first Caluza element. They freely admitted he had the second element-i.e. a current disability. But they attempted to glue this onto his admission that he had a few angry moments before service. This effectively rebutted the presumption of soundness and thus he lost in their minds.

The Ronmeister’s shield bearer  promptly turns the tables against VA’s examiner and says “Au contraire, ma cher. The presumption of validity attaches to all VA examiners’ nexus findings. We can rebut some and leave others intact. Therefore, we claim the presumption of soundness at entry has not been rebutted by clear and unmistakable evidence and the other finding of explosive anger, secondary to a personality disorder is hunky dory with us What do we need a JMR for?”.

Please, sir. May I have another JMR?

 

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Read my neck. No do overs.

As usual, when the dichotomy is revealed and VA’s souffle logic falls flat, they immediately retreat and ask for a do over to “get it right” the second time. We know that is nothing more than a request to find a stronger limb to throw the noose over and a fresh horse to sit on. Sure enough, The OGC begged for exactly that.  They wanted to keep the hardest thing to prove (the rebuttal of the presumption of soundness)They also begged leave  to “rebuttress” the other findings in place (i.e. query the VA examiner and beg her to rewrite the ‘less likely’ more clearly). That’s where they sawed off the branch they were standing on.  They were  admitting they’d stepped all over their neckties and were moonwalking backwards to save face.

Judge Coral administered the coup d’ grace without fanfare or acrimony. She simply pointed out that VA had done a piss poor job of rebutting the presumption of soundness. When you set out to prove clear and unmistakable error, you set before yourself an immense task. It makes no difference if it is the Veteran or the VA. The bar is extremely high. By going down the “personality disorder is not a disability” road, they were committed. The whole case hung on an assumption of a noncompensable preservice disability. Unfortunately, that is not where the matter ends. Once Judge Coral reinstated the presumption, Ronbo suddenly had all three legs of his Caluza triangle needed to win. By admitting he started manifesting this in service, they had inadvertently given him the nexus on a silver platter. At this point, it’s too late to retract the findings. They would have to have proven they were in error and CUE themselves on them as well.

The Aftermath 

p10773532_b_h6_abMr. Proffer’s claim will now be returned to Veterans Law Judge Barbara B. Copeland. She, in turn will have to write a detailed, new decision explaining why she has shit for brains and allowed her underlings to sway her thinking. Surely it cannot be that she came to this misguided decision on her own? VLJs are infallible. Following that mea culpa, it will reverse-matriculate back to the Saint Louis Regional Office from whence it arose and they will have the unenviable task of doing a Fenderson rating awarding Mr. Proffer that which they have withheld since his June 2008 filing. We can assume the initial rating will be for 10% and a new battle will ensue over a proper award. I can almost predict they’ll give him a brand new C&P next month and proclaim him (gasp!) 30% disabled —but not before this new C&P proving it. By 2019 he’ll be up to 70%.

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One smart cookie

You will notice that Mr. Proffer had none other than the esteemed Amy F. Odum of the NVLSP as his shield bearer.  You may remember her from her recent Beraud route up at the Fed. Circus last month.  If it seems the Military Order of the Purple Nurple has no lawyers on its staff who are accepted at the Court of Veterans Appeals, you are not the first to notice. Ah, Padawan. That’s one of the shortcomings of having one of the Big Six represent you. Their CEOs and upper management are pulling down $350,000 dollar a year salaries and there simply is no financial room for a law dog on the staff. Thus, when you lose, you’re on your own, cousin.

 

About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC ruling, Presumption of Regularity, Tips and Tricks and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

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