We’ve been watching for a long time to see which way our esteemed new CAVC Judge, Coral Wong Pietsch, would tilt. New judges anywhere in a panel or en banc Court environment tend to rule vaguely and somewhat neutrally, all the while observing which way the wind blows. Once ascertained, a willow switch is cut and justice is henceforth dispensed in their own image.
When she was enthroned, Courtwatchers wondered if she would be a narrowcentric, extremely conservative, ‘Vets are trailer trash and I have to do this for a living.” approach or… a more nuanced, legally sound footing where, [if the] ‘DVA really feels they are paternalistic and nonadversarial, then that must be the intent of Congress and I’ll abide by it’ philosophy. You have to remember that she’s a groundpounder that came up the JAG ladder.
Any observer of the Court knows full well we’d streak butt naked down
Indiana Native Americana Ave. NW at high noon at the merest prospect that it might ensure our case be heard by Sisters Mary or Meg. Friar Greenberg would also suffice. A panel would be made in Heaven of that Trifecta. Maybe after Greg Block retires. Now, it appears we may confidently say that Sister Coral ( a Veteran herself and married to one) evinces the same philosophy that, just because the VA hires you to be a VA Examiner or a Veterans Law Judge, it does not impart implied intelligence to you or infer you have a vast, cogent grip of Black’s Law. Look no further than my appeal and Judge Hindin’s abortion that passed for a well-reasoned opinion in 2012. Sadly, you will see VLJ Deborah Singleton similarly succumb to her leagle beagle staff and affix her signature to what was extremely flawed justice. Lazy is as Lazy does. Perhaps this is a byproduct of Laura Eskinazi’s Rocket Docket program and merely an aberration. Were that so, they could get rid of several judges at the CAVC and save a lot of money. We don’t dare and the amount saved is miniscule.
Sleuthing by the likes of Sisters Mary, Meg and Brother William are all you need as a primer. Many is the time she (Schoelen) has looked more deeply into the facts with her law clerks and ferreted out inconsistencies that were hard to discern or were artfully camouflaged by VA. Timelines will always bedevil even the OGC because they have no inductive logic. More about this later.
It shouldn’t require 5-7 years to get to the CAVC only to have the whole premise demolished by the sorting out of what was said, when, by whom, and under what circumstances. You could hire Homer Simpson’s monkey Mojo and teach him this trick for a lifetime supply of beer and bananas. What’s more, you could breed him and his offspring would undoubtedly pick it up in a free OJT program-again for bananas. It sure doesn’t require a closed-minded GS-13 DRO @ $115,000 a year to screw it up 70% of the time.
Meet Mr. Daniel G. Savage who served as a Squid from 1967-1971. I like the BVA decisions as they often tell you if the Vet served in Vietnam. I identify with them. Fortunately, I just happen to have his BVA decision right here and you can read it. No Vietnam but that may be an oversight.
While we’re at it, here’s the Gospel according to Sister Carol:
Mr. Savage managed to squish his right hand and screw up his ring finger royally. So bad, in fact, they had to do some surgery and then still more. It was an injury, albeit minor, but these things go south later. He claimed his did and filed for it along with a few other issues that became the focal point of this case.
I’ve always admonished Vets who opt in for a VARO hearing, a DRO hearing or any of the different venues of the BVA hearings, to be careful of diarrhea of the mouth. More successful claims that I can count have run aground here. The same can be said about lay testimony or something told to a doctor. VSOs aren’t the sharpest tools in the shed so don’t defer to them assuming they have an IQ anywhere over 75. Many criticize me unmercifully about my VSO comments but what the hey? Go to the BVA decisions and read the litany of denials for lack of a nexus letter/IMO. It’s been boilerplate law for over a century and finally recognized on paper at the CAVC in Caluza in 1994. Even if you want to argue for arguments sake just from 1994, the matter is well-documented by the trail of tears leading away from the corner of Delay Street and Deny Avenue NW 20420. In fact, about the only thing all the decisions have in common is that all VSOs, in equal numbers, from all the Organizations never mention the need for this probative document-all the while fully well knowing the VA examiner is going to provide a damning one gratis anyway.
Danny boy stepped right into it according to VA but let’s see what he stepped into, how he stepped into it, and how, exactly, everyone deciding this came to the wrong conclusion and used the wrong evidence to judge him. Watch how this is constructed. Often, what isn’t said or remarked upon, is the most probative information-but only if you have possession of all the facts. Daniel’s problems developed more along the lines of what the ADHD-affected VA examiner thought he heard and read.
In October 1969, the appellant sought treatment for “giving way and pain in the right knee of approximately three years duration. The patient stated that he had injured his knee while wrestling during High School, at which time he had been hit from the lateral aspect of the knee.” The appellant reported that “he had been unable to fully extend the knee for two days prior to admission.” Id. He “denied any history of locking within the knee.” Id. Surgeons discovered that his meniscus was torn, and they removed it.
Note that this was in service. In October 1969. In the Navy. To Daniel G. Savage. And it was in his service treatment records. From the U.S. Navy. As in Service -connected:
In December 1988, the appellant filed a claim for entitlement to disability benefits for the residual effects of his right hand and right knee injuries. The appellant asserted that he injured his knee when a military boat he was riding on during his service “changed directions (sharp). Knee was twisted cartilage torn.”
You can see the subterfuge building in how this was reported and decided. If you fail to insert one probative fact (injured in the line of duty) as can be lawfully attested to (and proven here) in lay testimony (Layno v. Brown), you can use the three-card Monte trick and the rube will never figure it out. Daniel didn’t. VA granted on the hand but with their standard ice creme cone with zero scoops of ice creme. They denied the right knee and I’m sure Daniel’s VSO convinced him it was a waste of time to even consider an appeal. He didn’t.
Fast forward to 2009. Daniel’s hand hurts and he decides to revisit 1989 again for some ice creme. While he’s at it, he gets the “all in” briefing from the VSO and they say “Yo. We can do this” but little more. No nexus letter. No medical examinations. No researching the c-file to find the obvious. By now, he’s added a back condition and a left knee condition because once you hit the curb and blow the front end alignment out on a knee, it has repercussions on the other joints. This is medical fact. Danny wasn’t trying to go for the Safeway Slip on the Floor Sweepstakes. He was legit. Nobody but the honest fight this hard for their due. I know. I’m a member of that club.
As per usual, Danny got the wave off. The VA Examiner calling the ball gave him the red light and he headed for the BVA. Judge Deborah Singleton prolonged the misjustice and stepped on the hem of her dress doing a faceplant. She failed the due diligence test and allowed the hired help to sound it out without the benefit of Phonics®.
Enter Judge Coral and her first true Sherlock Holmes Reversal. You’re gonna like this. Getting caught in the wrong legal standard is one thing and eminently excusable. Getting caught purposefully misconstruing the evidence and flagrantly leaving out entire phrases or paragraphs that imply an entirely different scenario is against the law in 38 states- and at 58 VAROs too. Most certainly it is at the Board. A critical assessment of the whole enchilada is in order. This is why they say the VLJ gives you a de novo review and ignores any prior miscarriage (assuming there was one) at the VARO. How then to explain the conundrum of what appears to be a rubber stamp of the New Jersy AOJ? Ruh-oh, Rorge.
Here’s some of Sister Carol’s observations on the way to a Conclusion. So subtle. So under vocalized. No drama. More akin to Dragnet- just the facts, ma’m.
The Board did not discuss the appellant’s neurologic symptomatology. Its position on the question at issue here is unknown.
The Secretary does not dispute these facts. He instead essentially asserts that the appellant’s sensation loss could not possibly be related to the residual effects of his right hand surgeries. He cites medical treatises that apparently were not in the record when the Board issued its decision, and he asserts that “science” supports his position
The Court notes that the Secretary routinely assails appellants who attempt to include treatise information in their briefs and raise medical arguments not considered below. More pertinently, his position is clearly an impermissible post hoc rationalization for the Board’s failure to discuss potentially relevant medical evidence.
Note the underlined ‘assails’ above. This is the dead giveaway that Carol is appalled at the OGC’s brazen introduction of evidence without permission to do so. Baaaad OGC. The post hoc rationalization branding iron is also an indicator of how peeved she is.
Neither the Secretary nor the Court has the expertise required to explore complex medical questions in the first instance. The Court, at this point, knows only that the appellant’s in-service injury to his right hand caused nerve damage and that he lost sensation in his right third finger sometime between November 2009 and October 2010. It does not know the Board’s view about the etiology of that symptom and its compensability.
The Board did not discuss whether the appellant should be compensated for his neurologic symptom. It did not determine whether the appellant’s neurologic symptom is related to his service connected disorder. The Court cannot resolve those matters in the first instance.
That was just the right ring finger. Here comes the Mac Truck. After a long, boring recital of the Savagemeister’s knee woes, the rater inserts this boner like no one’s going to notice on appeal:
[D]enied service connection for right knee injury since it existed prior to service and was not aggravated in service. Operation of the right knee in service was only a remedial measure.
Well, yeah. Operations are usually for chronic injuries that refuse to heal but your honor, this one was just a remedial measure- kind of like cutting out an ingrown toenail. You know. Remedial. In by ten- out by two. Just like the Chinese dry cleaners.
Next, the Board found that medical evidence submitted after the RO’s April 1989 decision suggests that the appellant’s “condition resulted from injuries working as a police officer in the 1980’s and do[es] not make reference to [his] military service as onset.”
This is more convoluted than trying to predict which way a jumping bean is going to go. First it’s a pre-induction injury, then a police injury. Couldn’t have been that invasive surgery where they 86’d the meniscus. Nooooo way, Jose. Sister Carol then digs the punji pit and carefully installs the sharpest stakes covered in the OGC’s illogical doo-doo.
The Board focused on the appellant’s present assertion that he did not have a knee injury before he began his military service. The Board found that the appellant’s statement is not new and material evidence because “this assertion was already made in [his] original December 1988 claim, in which he indicated that onset was in service and did not raise a theory of aggravation.”
Now the placing of the palm fronds over the pit to complete the trap…
The statement to which the Board refers was a handwritten response to a prompt on a claims form asking the appellant to state the “nature of sickness, disease or injuries for which this claim is made and date each began.” It reads as follows: “[K]nee injury–Oct of 1969–On PT Boat which changed directions (sharp) knee was twisted cartilage torn.”
And finally the OGC blunders in with a FNG as the point man.
The Board asks this 17-word handwritten statement to carry a lot of evidentiary weight. It is not up to the task. As the Board’s finding obliquely reveals, the appellant never said that he did not have a knee injury prior to his service. He said only that the knee injury “for which this claim is made” began in October 1969. The Board extrapolated an implication from the appellant’s statement that a faithful reading does not support and then cast it as an “assertion.”
Here’s what just happened. If you ask some one “Would you tell me what your Christian name is ?” they would assume you wanted to know their first name. That is deductive logic and most would presume that you desire to know the name. In fact, most would promptly proffer it. Were the person an inductive thinker, he would presume you were asking a yes or no question and the appropriate answer, were you inclined to share your good Christian name would be “Yes. Of course I ‘ll tell you.” Whereupon the person would be forced to ask yet again “What is it?”
And finally a boilerplate, drill down for all those VA adjudicators too dense to utilize inductive logic or mentally limited to strangling an interpretation out of thin air.
Once again, nothing in the appellant’s statement indicates that he argued at the time that he never had a knee injury prior to his service. All that he said was that he injured the cartilage in his knee during his service and that he wanted compensation for that injury. The RO decided the case by determining that his in-service knee operation repaired a previously existing disorder that never properly healed and not an in-service injury that either aggravated a pre existing knee disorder or caused a new knee disorder to develop. The appellant now states that the RO’s conclusion that he had a pre-existing knee injury was wrong. The appellant has never before been so explicit, and the Court cannot support the Board’s attempt to squeeze an implied version of that statement out of a few words on a claims form. As the Board acknowledged, the appellant did not raise a theory for entitlement to benefits based on aggravation in his claims form. He stated that he wanted disability benefits for a discreet injury that he suffered during service. He did not say anything that even remotely hints that he was arguing that his in-service injury exacerbated a pre-existing condition. The RO, on its own, discussed aggravation and decided his case on that basis. He responds to the RO’s findings now.
Not bad, Judge. As to why and how that escaped 500 of the BVA’s finest staff attorneys and those word sleuths up at the OGC is anybody’s guess. The disturbing thing is that it was not that complicated. The rater plugged in the much vaunted M 21 computer and asked it to kick out a denial-any denial- something old, something new, something cribbed to make you blue. It worked right up until it didn’t. Even last minute lipstick and wings couldn’t get it airborne.
Perhaps this is a good teaching moment for Vets. Always read the fine print. Words hurt as they say in the GEICO commercial. In this case they hurt for twenty seven years and Lord knows how soon they’ll have a do over to fix it. It’s a reversal so Judge Deborah is going to have a dour countenance and carry on like it’s that time of the month. I hope she washes all her little peoples’ mouths out with soap for lying to her. Sadly, Daniel didn’t appeal that 1988 denial and there was no panacea at the Court quite yet. For lack of a VCAA, the claim was lost. I don’t think we’re gonna see Danbo back at the CAVC. Chances are he’s gonna hire that firecracker Daniel Krasnegor who bore his shield up at the Court and won this. I would.