I’ve been waiting for a good decision-not necessarily a precedential one- that illustrates the concept of implicit denial. Judge Kasold, not my favorite Judge at the CAVC, defends this concept in his affirmation of Mr. James E. Bond’s (no relation to the more famous 007) BVA denial decision. The problem here is elementary. Mr. Bond is not a doctor nor was his exalted VSO who constructed this claim.
To begin with, you can see the fingerprints of the VSO all over this thing at the VARO. Filing a claim should be lined out in no uncertain terms so as to avoid the confusion Mr. Clemmons went through back in 2009. As LawBob Squarepants opines every morning- Belts and Suspenders, gentlemen. Quite simply. Mr. Bond was and is not a doctor or psychiatrist. It is not in his power medically to diagnose himself regardless of what the VA feels. The second problem is the semantics the ROs impose when they get the claim. They automatically feel emboldened to recharacterize what it is, specifically, that you are asking for. There is no defining period where they write back and ask for clarification. No sirree, Bob. They magically “construe” what it is you asked for even if it is diametrically opposite what you actually filed. I experienced this phenomenon in 1994. In explicitly and excruciatingly clear Anglais, I asked for “Porphyria Cutanea Tarda (PCT), secondary to hepatitis in service and/or exposure to herbicides.” VA immediately donned their tortured thinking caps and extrapolated what I really sought was 1) entitlement to Hepatitis and 2) entitlement to PCT due to herbicide exposure. Note that this reinterpretation wiped out the “direct” service connection path evoked in the “and/or” and categorized it strictly as a presumptive exposure issue. VA does that a lot in hopes you won’t notice. It’s easier to deny it based on one facet. See my post on this in Fradkin v. Shinseki, too.
In the instant case, Mr. Bond was so caught up in the belief he had filed two separate claims for bent brain that he did what many do and misconstrued the denial as being solely for PTSD, leaving the other unadjudicated. VA can be remarkably vague, and without a copy of his denial, it’s probably useless to speculate here as to what it said and did not say. VA insists it was very clear and stated (from the BVA decision):
While the Veteran now attempts to tie his reference to “anxiety” with the September 2004 diagnosis of adjustment disorder, in fact, he never mentioned an adjustment disorder in the claim. The Board finds that it was entirely reasonable for the RO to have interpreted his assertions as raising a single claim of entitlement to service connection for any psychiatric disorder stemming from his in-service stressors.
What’s missing from this BVA decision is any mention of Moody v. Principi Fed. Circus (2004). Implied or inferred claims must be considered. The Vet is an imperfect diagnostician of his own ailments. If he applies for bent brain as Mr. Clemons did, he should have a complete workup to determine what, exactly, he does or doesn’t suffer. Rather than a mad dash to the steno pool to type up the denial, a measured response would be the norm. In our nonadversarial niche in the VA universe of litigation, we are given many gifts. One important one is that we are basically idiots at this process and Comer v. Peake clearly stated having a VSO as a legal rep. was and is about as useless as screen doors in submarines. In addition, Layno v. Brown said we are limited to our five senses in confirming our boo-boos. Last time I checked, you couldn’t smell, taste, hear, feel or see bent brain. Much like tinnitus, you knew you had it. Trying to convince a VA examiner is a whole new project but should not have to be. Sensing the “gottcha” VA technique they used on Mr. Clemons, Mr. Bond appears to have tried to cover that base via a dual filing to encompass both possibilities. No dice.
Pursuing the “idiot” scenario, it should be clear that Mr. Bond was going to want to see a clearcut denial for both claims filed in order to be more knowledgeable when constructing his NOD and subsequent argument. 38 CFR § 19.29 was the trip wire I ended up with when VA was caught fudging the evidence at the CAVC in #12-1980. I said it fell into 3.156(b) as evidence submitted in the course of the one year appeal period following denial. It’s immaterial which regulation was violated. The salient point is absent a real lawyer with a real American Juris Doctorate from a real law school, anything Mr. Bond did legally was automatically deficient and required far more introspection before calling in the dogs and pissing on the fire. Before I point out Judge Kasold’s flawed introspection of Mr. Bond’s plight, lets look at the recognized hallmarks that define an implicit denial.
First, for legal grounding, the salient precedential decisions of Cogburn and Locklear which form the predicate for implicit denial
Judge Kasold cites to these to outline the four conditions that form the basis to ascertain how and whether a finding of implicit denial should be determined:
In making its finding, the Board considered four factors:
(1) specificity and relatedness of the claims
As to the first factor, the Board noted that Mr. Bond sought benefits for a generalized set of symptoms (anxiety) and a specifically diagnosed disorder (PTSD), and further noted that both are mental disorders that are commonly associated with each other, with PTSD recognized as an anxiety disorder
(2) whether the adjudication alludes to the matter in a manner such that a person could reasonably infer that benefits were denied,
(3) timing of the matters, and
As to the second and third factors, the Board noted that Mr. Bond set forth his claim for benefits for anxiety and PTSD in a single, March 11, 2005, filing, and further noted that, although the August 2005 RO decision denied benefits for PTSD, it also specifically referred to his March 11, 2005, claim.
(4) whether the veteran was represented.
With regard to the fourth factor, the Board noted that Mr. Bond was represented by an accredited service organization throughout the relevant period of his claim, and the representative agreed that Mr. Bond’s intent was to seek benefits for his PTSD, which caused him anxiety and related issues. Although Mr. Bond gives great weight in his argument to the fact that he was represented below by an accredited service organization and not an attorney, this is only one factor for consideration. Moreover, there is no requirement that representation by an accredited service organization be considered, per se, inadequate;
The logic defending the fourth factor flies in the face of Comer. No one can state that having a VSO repping you is tantamount to true, viable legal help. Lordy, don’t I know that multiplied by three VSOs and fifteen years. Additionally, the underlined and bolded portion above lets you know who your VSO’s true employer is. The guy is busy sandbagging his claimant by telling VA their guy was really just seeking one and only one claim for bent brain. Best friends forever, dude. Remember that.
Mr. Bond falls afoul of several false premises which he should appeal to the Fed. Circus. The least of which is factor #4. The defense of his co-filing two bent brain etiologies in no way, shape or form allows VA to combine them in the ratings blender and come out with a thin purée of one denial for both without concisely explaining the rationale for each. Kasold implies he should have filed them as two disparate claims at two different times in order to get two decisions. Furthermore, it frustrates judicial review. It creates an ambiguity for a Vet- let alone his legally challenged VSO rep. By not addressing one claim, it creates the perception that the adjudication was incomplete. How can anyone come to an alternate conclusion (other than our esteemed jurist) above? Moreover, considering the BVA often suffers diarrhea of the mouth to their detriment, why now the sudden paucity of words and abbreviated decision that failed to address it at the RO? On it’s face, the whole thing looks and smells like VA, and Judge Kasold, trying to rationalize the indefensible with the old saw ” Well, the Veteran should have been able to sound it out like Phonics, right? Besides, he had a service officer that had been trained in the arts.”
§19.29 is as clear as it can be. You have to understand the overarching concept of a bitchslap in order to understand you just got bitchslapped twice. This is what Mary Anne Royle Esq. was trying to enunciate and it somehow was lost in the subsequent arguments at the BVA and thence the CAVC. Granted, had Meg Bartley been assigned this, I suspect we’d be reading about the vacate and remand in order for poor Mr. Bond and Mary Anne to rephrase what it was they sought more clearly.
§ 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;
(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and
(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.
(Authority: 38 U.S.C. 7105(d)(1))
Seems pretty clear to me. File for PTSD and/or anxiety disorder as two separate etiologies and get two separate decisions- one of which will hopefully get it right. One might note that Mr. Bond wasn’t trying to obtain SC for both. He clearly filed using the preferred VSO technique of shotgun/ spaghetti. One or the other usually hits or sticks. With VA, it’s almost imperative to winning anything considering they stymie our attempts based almost entirely on our inability to vocalize that which we desire. This is what prompts them to “reconstruct” the claim in a new context that artfully creates the corral around SC with no gate to enter.
So many of you get these implicit denials at the early stages and try to fight it in the wrong context legally. Sadly, I don’t see where Ms. Royle could ever have gotten any traction with Kasold. She was doomed the moment Greg Block assigned it to him. The luck of the draw at the Court can doom you to imperfect justice. I’ve drawn Davis twice and I’m batting .000 with him.