Rarely do you see Judge Lance in this good form. Enjoy it. It’s rare. He can’t get past the middle of page three before tooting his own horn on the Kahana v. Shinseki (Lance, J. concurring) cite. Some egos are born early in life and others are carefully nurtured and continue to grow enormous along with the narcissistic dolts who manifest them. A proper education at a good private school would have cured that proclivity. Let’s be glad Monsieur Juge Lance reversed here and examine where the BVA stepped on their necktie. It’s a memorandum decision but it is a lovely teaching moment.
Justice at the VA is an intriguing enterprise. The model most often cited is presenting a claim to GEICO for a fender bender right on up to a total loss. GEICO adjusters are no different from VA raters other than being honest and forthright. Their word is usually the last word and the check is in the mail. Drag that out for a decade or two, add three signatures for a totaled body and you have the exact same duplicate VA process.
GEICO has an M-21 1MR as well but their version has the “customer is usually right” widget installed. Small things like a bumper or left front quarter panel are no brainers. VA does this too-throwaways like tinnitus but only after a four year quest to the BVA to move from 0% to 10%. Thus when you arrive with some cock and bull story about being in Vietnam and coming down with prostate cancer, you better have some damn fine evidence or a doctor willing to opine as much. Oddly, Mr. James B. Walker had just that. All of it. To no avail, unfortunately, until he arrived at the Court. Once again, Danny Krasnegor argues what really doesn’t need repeating.
Great name by the way. I wonder if he had any Confederate Army on his daddy’s side? Anyway, Jimbo Walker filed way back in October of aught six for the weenie problem. VA didn’t give him much grief and in March of aught seven he got the rating. He mulled this over for a while and filed a NOD for an earlier effective date in December of that year. Obviously the Jimster had been reading up on 38 CFR §3.114(a)(3) and began a conversation with his treating physician Dr. Tinetti. Dr. Tinetti obligingly wrote him a beautiful letter that incorporated the magic quantifiable phrase
Our belief is that it was most likely that the prostate cancer was present in the 1995-96 time frame but masked somewhat by inflammation and prostatitis.
This was penned in late August of 2009 and submitted to the VA/BVA.
Since the dawn of judicial VA review time there have been several panel COVA decisions that have set the tone for how the Board shall conduct itself. A very early one was enshrined in Wilson v. Derwinski 1991 (COVA 90-673). The paint on the COVA sign out front wasn’t even dry. The Panel opined that the regulation [§ 3.303(b)] requires continuity of symptomatology, not continuity of treatment. This little Late July reminder was underlined by the seminal Colvin reversal which arrived barely seven months later. In concert, it put the BVA chucklehead Judges on notice that the old habit of “Denied” had to be more substantive. Federal Judicial review now demanded all Texas Necktie Parties performed over at Vermin Ave. NW actually provide a reason for the denial. Not only that, the VLJs were admonished to quit watching reruns of Ben Casey and Dr. Kildare. General Hospital was declared right out.
To this day this propensity of VLJs to do the Voodoo “read dem bones” still seems to cause much confusion as it apparently did here. Mr. Walker has stepped forward and desperately tried to fill the gap with a well-reasoned nexus letter to supplement any ambiguities in prior ones. Dr. Tinetti did a bang up job with a confirmed belief buttressed by sound reasoning. Since they are doing a look back, they and only they (doctors) can be the objective observers. BVA judges do not have the required expertise to opine on matters medical ever since Colvin but somehow find it irresistible to inveigh on these things. And yes, the Court has handed down some newer Colvinesque decisions that enunciate the same bright line rule. Perhaps if Secretary McDonald actually enunciated it in to 38 CFR § 19.15…
Veterans Law Judges as well as Acting Veterans Law Judges will refrain from the practice of pretending they have a MD after their names. Closer inspection will reveal it says “JD”.
Mr. Walker is legitimately entitled to an earlier effective date of one year and one year only from his filing date for SC for his prostatitis under AO-friendly 38 CFR §3.114(a) (3). No one in their right minds can argue otherwise,,, but why would they? We’re talking financial peanuts but the OGC is manning the ramparts as if this was in danger of upsetting the whole benefits applecart. Shoot, they pissed that away in 3 seconds at the last Superbowl game on the advertisements no one bothered to watch.
The whole enchilada finally boils down to the Jandreau test :
Moreover, in Jandreau v. Nicholson, the U.S. Court of Appeals for the Federal Circuit noted that identifying a form of cancer was an example of when a lay person—in this case, the Board—would not be competent to identify a condition. 492 F.3d 1372, 1377 fn 4 (Fed. Cir. 2007). Therefore, the only competent opinion as to the onset of the appellant’s prostate cancer is Dr. Tinetti’s August 31, 2009, letter, which dates the onset of the appellant’s prostate cancer in 1995-96. Cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“[T]he Board may not consider the absenceof evidence as substantive negative evidence.)
It seems insulting on it’s face that after the December 1990 Colvin bitchslap reversal, Mr. Jandreau had to endure the same thing seventeen years later. Compounding that with interest, here we are in September 2014 with a wet-behind-the-ears Acting VLJ (K. Millikan) blowing bubbles about when Mr. Walker took to his bed. At what point is a critical review of the evidence instituted with an eye towards the benefit of the doubt? It seems so easy to lay all this out on a table in analog form and use yellow highlighter on the important parts. Winnow it down, chuck the extraneous stuff and do the GEICO customer -friendly test. Why waste valuable judicial resources on these defective defensive pleadings?
As a postscript, Acting Judge Millikan can’t even cite to the proper CFR. His decision is limited narrowly to looking at 38 CFR §3.114(a)
§ 3.114 Change of law or Department of Veterans Affairs issue. (a)Effective date of award. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran or child of a veteran with covered service in Korea is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.
Unfortunately, 38 CFR §3.114(a) does not end there and also has a codicil in (a)(3)
(3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request.
Who let this Milliken gomer off the reservation without a minder? And why weren’t Tammy Kennedy’s vaunted OGC watchdogs all over this thing like white on rice after Gunn
retired departed moved on? Eskinazi should have pulled this back out of the Rocket Docket pile and given it to somebody who can read the CFRs. Could of, Would of and Should of. That’s the sign over the entrance to the 027 Bat Cave.