I love reversals. Where Meg Bartley is concerned, they are delicious and well-thought out. So, too, is this vignette of Mr. Santiago Paz and his incredible bad luck with VA. In my next incarnation I shall write a book for Vets entitled Semantics Are Everything. It will educate Veterans on the old adage of “Lord, keep Your arm around my shoulders at all times and Your hand over my mouth. Amen”
We as Veterans tend to be loquacious and honest. We tend to downplay missing a few things like hands, arms, legs and the like. In fact, sometimes when in pain, we grin and tough it out. This is not the thing to be doing at a C&P exam. If you normally wear a back brace, keep wearing it-even to a C&P exam so they know.
I would never ask anyone to fake their symptoms or exaggerate them. I would point out there are certain disease processes that have natural high points or exacerbations that do not always coincide with the timing of the C&P exam. The only thing I have ever suggested is to not take the beta blockers before a heart exam. It makes no sense to measure METS when you’re at the top of your form medically. What in hell caused you to get there in the first place? Likewise, if you have a bad back like Mr. Paz, it would not be inconceivable to go out and rake the leaves in your yard and clean up even if it meant aggravating the back muscles shortly before the exam. If anything, it would clearly and unmistakably illustrate the shortcomings and the limits of motion/pain associated with the injury. Nothing says you must sit in the recliner for a week relaxing the lower back musculature prior to an in-depth investigation. That’s a medical non sequitur.
I have heard of packing your pockets with lead tire weights and then going in for the follow on VAMC visit and weighing in without them. It’ll raise a few eyebrows. Nurses will ask you if you feel well. So too will putting FD&C #2 yellow food coloring in your eyes for a HCV C&P exam. The only problem with that is that the blood test for bilirubin may not show much elevation and then VA wonders what caused that bodacious sclera ictera. Maybelline eye shadow is another good one as long as you don’t overdue it or smear it. No, seriously. A C&P is an excellent way to demonstrate, in most cases, your disability. You may be at a disadvantage with eczema or PCT at the right time. Whatever you do, keep your piehole shut and your eyes and ears open. Never diagnose yourself.
Mr. Paz has paid his dues. Hell, he’s almost sixty. Few will recognize it but please note Mr. Paz’ first term of enlistment that found him in Vietnam mentioned in the decision under Facts:. It was a term of two years-in other words, Mr. Paz was drafted. That he continued in a Nasty Guard, Weekend Warrior gig until injuring his back in 1985 shows he decided the military was a good fit- even if part time.
Mr. Paz found himself in macho land when he applied for an increase in 2006. He didn’t want to sound toooooooo disabled and be perceived as a goldbrick. The difference between 20% and 40% in 2006 was about $200 dollars or less or a jump from $180 to $360. His wife would get a pittance of $109 and an even smaller amount for the chillluns. This was about enough to cover half the rent or his food bill every month. And, as with most back injuries, they rarely improve with age. Mr. Paz was getting ready to get quite an education in that regard.
Let us take an aside and examine some of the most overlooked bedrock principles of rating-the Holy Commandments of such ensconced at the beginning of Part 4. Most Vets or their attorneys are in such a rush to get to diagnostic codes and actual ratings language that they skip over Ratings 101 to their own regret. St. Margaret will lead us through the bedrock, core principles of clawbacks- the Dos and the Don’ts.
Many have come to me in recent years and tell of horrible “You have sixty days to pitch a bitch about your reduction or we’ll institute it in six months”. Some of you get the ax with no examination whatsoever. Some get the paddywhack with over five years of protection. Whatever the case, there are a gazillion rules that govern when and how VA can do this. Most fail to appeal and it becomes set in concrete. Most clawbacks, too, are wrong. Few are the Vets who pursue this to the Court foolishly thinking that VA is right.
Mr. Paz fought back because he knew he was right. It sure wasn’t for the bucks. I mean, sure, the money would come in handy but the core principle is that he was entitled to it.
This illustrates the reach of 38 CFR § 3.344(c) but it also reveals the shortcomings of VA using it solely as the determining metric and the last word on ratings protocol. For that we rely on Part 4’s Introduction on the destruction protocol. 38 CFR § 3.105 has the far more descriptive path for rending it asunder.
The OGC really tried to reach new ground on this using the descriptive adverb “implicitly”. Sorry, Will. That dog don’t hunt.
The Secretary responds that, although VA did not expressly find that Mr. Paz’s low back strain had improved under the ordinary conditions of life and work, it implicitly made that finding by assigning a lower evaluation, which was necessarily based on VA’s assessment of his ability to function under the conditions of daily life, including employment. Secretary’s Br. at 11-14 (citing 38 C.F.R. § 4.10 (2014)) Paz supra
You notice how they just try to slide that in like an Aluminum siding salesman in Kansas’ tornado alley? “We decided to lower it because our guys found he was improved and the way we did it was based on our super secret assessment protocols which were implicitly considered. We don’t have to discuss it with the VSO or the Vet. Suffice it to say we know what we’re about here so butt out.
The absolute crux of the holding is quintessential Bartley. I know. She’s only been here for the blink of an eye but boy howdy can she make the OGC ‘s eyes water.
The Secretary’s attempt to circumvent the Court’s holding in Brown is unavailing. If, as the Secretary contends (Secretary’s Br. at 13), VA’s assignment of a lower evaluation necessarily [implicitly] establishes that a veteran’s service-connected disability has improved under the ordinary conditions of life and work, then there would have been no reason for the Court to identify and discuss that requirement in Brown (and its progeny) because every reduction decision would, by definition,satisfy that [implicit] requirement. That is not a tenable reading of Brown. Thus, the Secretary’s argument must fail.
Mr. Paz’ decision is the first where the VA has tried to subtly insinuate that the reason for the reduction is what Mr. Paz said and the evidence showed-but only up to a point. The cuttoff came before a showing of his unemployment picture which is a prerequisite for TDIU. Hellooooooo?
One thing that concerns me is the sudden chill in reversals from 625 Native American Ave. NW. Can it be that justice has been clarified like butter and there is no further need for messy, obstreperous reversals? Hath the Secretary promised never to darken the door of the CAVC with further judicial abortions henceforth? This is the first recent reversal I have seen that irrevocably gutted a complete decision and left nothing for affirmation or vacation since the NOVA convention. Seems Judge Bruce Almighty dropped the hammer on the FNGs and told them to quit gerrymandering justice to the benefit of Veterans. Trust St. Meg to ignore his counsel. Mr. Paz’ reduction was void ab initio six ways to Sunday and needn’t have taken years. Perhaps this is why we have such an interminable backlog? Poor judicial training below seems to result in more nuanced law reading above. At least if you get a farthinker like St. Meg.
P.S. We are in for an indeterminate period of flux until Kasold punches out. That much we know. What ensues in the interim is of paramount importance. We shouldn’t have to put Veterans law (or reversals) on hold while waiting for his Eminence to Emigrate to greener pastures.