CAVC–HAVILAND v McDONALD–BACK TO THE FUTURE


back-to-the-future-delorean-for-sale-lightsDon’t you wish you owned one of those cute little stainless steel DeLoreans -you know- the ones with those 1.2 Gigawatt flux capacitor time bangers and a 4 speed with reverse? Fortunately, VA has one and employs it on a fairly regular basis to do forensic sleuthing on reductions. In fact, Timothy S. Haviland had the misfortune to discover the St. Louis, Missouri VARO had one on loan from VACO in their parking garage. Use it they did, yessssssssssssssss. Reduced him they did, hmmmm. 

Meet Mr. Timothy S. Haviland, one unlucky Vet of the First Gulf War.

Haviland reversal

He had a mixed bag of problems and a very vindictive rater who was adamant that he would not let this one go over 5 years without an intense reduction review. What is interesting, as Judge Greenberg’s little people ferreted out, was that the original proposal to reduce his PTSD rating from 70% to 30%arrived in the mail in August 2009 after a cut and paste C&P. The problem is that you must always make a decision on the evidence based on that moment in time. Any further ruminations or post C&P postulations must cease and only look at where he was at the August 2009 C&P. You are not permitted to continue this witch hunt all the way up to a week before pushing print at the BVA. This, in essence, is what VLJ David S. Wight did by signing off on it. Here’s his mysoginistic attempt at Veteran friendly, nonadversarial justice where every benefit of the doubt is accorded the Vet.

Haviland BVA hanging

Make no mistake about it. This reductions charade is somewhat like CUE in that the record must stand solely based on what  the VA examiner discovered in August 2009. Bringing in newer evidence conflusticates the old and you have no starting point to ascertain what ‘white’ truly is (or was) compared to ‘grey’… or ‘black’.  VA is famous for this and astute leagle beagles would be smart to learn their trick early on.

Timbo also filed for a connection between his PTSD and his obstructive sleep apnea (OSA). This one’s priceless. You can almost see the Rater stuck in a quandary. He types up a grandiose statement that

In that regard,the examiner explained nightmares and sleeplessness as a result of the appellant’s PTSD  “may work in conjunction with sleep disturbance associated with sleep apnea to produce more fatigue but it does not worsen the severity of his sleep apnea.”

Then Einstein rereads it and is too lazy to revamp it so it doesn’t actually say that it is secondary to the bent brain. Here’ he further muddied the water with:

“[I]n that sense, one could make a case that there is an aggravation of the sleep apnea.”

Which, of course he  surreptitiously proceeds not to make a case of. Instead, he’ retreats to the subjective ” I can’t decide” corner. When in doubt, punt on fourth and long. Somebody else can fix it.

If I was a FNG to this, I’d remark on the relative rarity of reversals at the CAVC. What noted legal scholars and anyone with a penchant for graphing these statistics is aware of is the same Judges reversing day in and day out-to wit, Bartley, Schoelen and Greenberg. Wong seems to be headed down that road but more slowly. I give her a B+ because she’s actually from the JAG side of the sheets and they are notorious for coming down religiously anti-Vet in most cases. Schoelen and Bartley are from the NVLSP stable and thus impervious to  CAVC illogical hogwash. This is why they always find themselves in the minority writing a dissent on panels with the deconstructionists like Kasold and Davis.

John S. Berry, Esq.

John S. Berry, Esq.

John S.Berry gets to burnish his image and his cell phone minutes will soon have to be increased to compensate for his new popularity. Not many can notch a reversal on their gun butt at the CAVC. That is a rare honor- or used to be. With the new VBMS comes an interesting real-time scenario where information populates the c-file during a claim instead of magically surfacing about a month after the denial. I know that’s an alien concept for many to digest. VBMS, as yet, is not time sensitive. Inasmuch as it is word-searchable, by not putting in a time-sensitive parameter, it contaminates the file causing word-searchable .pdf engines to regurgitate newer evidence which is inadmissible. In the rough and tumble world of overworked raters on overtime forced to produce two cogent decisions a day,  it is beginning to provoke a new type of error unforeseen heretofore.

This is the inherent beauty of creating a time line of events and how you can eliminate false and misleading evidence from insinuating itself into the file. Remember, evidence is always going to trump argument. What is, or sometimes more importantly, what isn’t in the c-file before January 10th, 2010 can be crucial to obtaining justice. It was for Mr. Haviland and it’s fortunate he hired a law dog who could sound it out. Here’s Mr. Berry’s name, rank and airspeed. Hell, He’s even an 11 Bravo according to his bio.

 

 

About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC ruling, IMOs/IMEs, Lawyering Up, PTSD and tagged , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

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