CAVC–SCHWARTZ v McDONALD–HORS DE COMBAT REQUIRED?


news_vetbeneVeteran spouse Shirley L. Schwartz has the fire in her belly. Husband David fought the VA delay/deny until you die machine from 2003 to 2012- to the death. Mrs. Schwartz took his place and trusted VA to do the right thing with a Joint Motion for Partial Remand (JPMR). After discovering she’d been hornswoggled, she got a good law dog and a sympathetic ear at the Court in the person of St. Mary Schoelen. Herein lies a tale of “and for his widow and his orphan child…”

David Schwartz was a peacetimer in 1956-57. I’m just guessing but I’ll bet they had him loaded up with that 60 lb. backpack and an old Garand when he ate it in the foxhole on maneuvers. You can imagine falling into a void unexpectedly. That sinking sensation is like no other.  It’s like that feeling when the chopper ceases pulling pitch.  Try to imagine it running full tilt with a 80 lb. bag of beet pulp. The miracle would be if you didn’t injure something. Apparently, David did. He suffered silently for years until one of his buds clued him in. I’d bet it was his wife. They have quite the network on these things.

In 2003, he finally put in his marker based on being unable to make a living. From the get go you can see the legitimacy of the claim. Unless old David was a prime time huckster, he had immense foresight to begin building a disability folder all the way back to 1994 in preparation for a VA claim filed in ought three. He did it by the book with excellent evidence and VA still denied. He had all the Caluza ingredients for the recipe. He had a doctor opining that it was very disabling. An actual nexus/IMO was perhaps vague but nonetheless conclusive that the injury in service, the four month recuperation in the hospital and subsequent medical discharge were pretty compelling evidence in his favor.

The Portland RO  held the Schwartzenmeister  hostage from  November 2003 to June 2009 before they gave him his service connection. With no less than three doctors attesting to this, a wealth of medical evidence in his court and a nexus, VA still stonewalled him for six long years- and then they screwed him by only giving him 40% for thoracic syrinx. Note that David had medical records clearly showing he was driving the morphine bus and hopelessly addicted to Demerol in 1994. Hell, he even “retired” to get SSI early to put food on the table. Note also that VA was careful not to let David anywhere near TDIU.

Here’s the December 2014 BVA folly with VLJ Larkin behind the wheel.

schwartz BVA

As most know this is an incremental “Mother, may I? ” game. Each succeeding paltry grant came with narrow parameters and surprisingly, the wrong effective date that took much time to correct. Not just once or twice either. Whoever was handling this claim had Max ADHD. First, a reaffirmation that the original date and rating were correct, then an additional 10% (to 50%) from the 2010 DRO review effective in 2010. Then another 10% each for each lower extremity but still not within striking distance of the 70% and TDIU. All the while, Mr. Schwartz was gradually going down to the tubes. The race was on for TDIU back to 2003 and a hopeful Dependents Indemnity Compensation (DIC) of about $1200 a month. VA staunchly refused. In the interim David became room temperature and this pissing contest began in earnest.

VA finally sent it up to Tom Murphy’s Comp. and Pen. office in late 2012 and Mrs. Schwartz got a late Christmas present in January 2013. TDIU from 2009 but the April Fool’s joke was that it wouldn’t help one whit with the DIC. For that she needed the IU back to Novenber 2003. VA was well aware of that and played innocent. Using an impossible standard of being “totally incapacitated”, the BVA affirmed the RO’s bogus logic and off to the races Shirley went.

The CAVC could see the problem instantly and remanded it back to correct the TDIU from 2003 as a viable claim rather than just consider it from 2009. Shirley and her shield bearer Mary Anne Royale signed off on the JMPR and probably breathed a collective sigh of relief-far too soon, it turned out.  Veterans Law Judge M.E. Larkin wasn’t going to go down without a valiant effort to save VA $150-250 K. This is where he reiterated his utter lack of comprehensive knowledge about the very laws and regulations he is foresworn to uphold. He didn’t create the new ” totally incapacitated ” standard that the RO demanded but he reiterated it in his December 2014 affirmation on the second JPMR. Most would get the subtle hint that there was a problem with this or reread 38 CFR 4.16 for guidance.

VA is fond of their ‘credibility ‘ talisman. If you so much as contradict yourself on which way you parted your hair in 1959, you are not credible. If you cannot remember who the Secretary of State was under President Roosevelt, you are not credible. And if your doctor cannot say with certainty what year he began treating you, then he is unreliable too. It makes no difference if you introduce medical records clearly showing him as your treating physician  dating back to 1994. The doctor’s testimony, and hence his IMO, are held to be worthless and some inane statement by a Veteran taken out of context,  while drugged out of his mind on Oxycontin, is substituted as being the only probative statement of record concerning this  disability. Fentanyl wins out over a medical degree for probity. That’s what this all boils down to.

This is why St. Mary reversed. As held in Gilbert v. Derwinski, if the facts just don’t line up with the argument, then you have CUE. The repair order for CUE is the grant of the claim to its inception and then a reasoned Fenderson approach. Since it was clear to everyone except VA, St, Mary sounded it in Dick and Jane speak just for them. Mary Anne Royale is a member of NOVA so she didn’t need it explained in pidgin English.

Schwartz reversal

Mary Anne Royale , Esq.

Mary Anne Royale , Esq.

Veterans Law Judge Larkin gets to fall on his sword and rewrite his decision incorporating the TDIU grant to 2003. The Portland, Oregon Regional office gets to rewrite the awards sheet on ratings to incorporate the newer effective date and contact the US Treasury to cut Miz Shirley about a $250 K retro check of which Mary Anne will get her walk about money for faithful services. Henceforth, Mrs. Schwartz will collect her DIC check monthly and live happily ever after.

But why the delay? Why did Mr. Schwartz hit the wall for all those years with the evidence right in front of them? It is a teaching moment of great import. VA doesn’t look at the evidence. They get a “feel” for it by topsheeting it. In this case, the rater glommed onto the fact that David had retired at or near 65. That derailed the train for seven long years. Even after service connection was granted, they still were not willing to give Mrs. Schwartz her due. This vindictiveness is the very heart of the problem. Until VA can engage in a truly honest adjudication based on real, on-the-ground facts, we are condemned to this insane loony tunes justice. My apologies for dragging the cartoon outfit through the mud, too.

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About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC/COVA Decision, CUE, Earlier Effective dates, TDIU and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to CAVC–SCHWARTZ v McDONALD–HORS DE COMBAT REQUIRED?

  1. According to the Chief Justice of the Supreme Court, Roberts, VA takes a position against the Veteran that is “substantially unjustifed” 70% of the time. There is financial incentive for the VA to do just that. The VA could loan that same 250k to a Veteran using his home as collateral and collect ANOTHER 250 grand from that Veteran (home owner) in interest. This assumes a 6% interest rate, and while that may be high by todays standards, this is exactly what it was in 2009, reminding you this is a “fixed rate, 30 year loan”. This is still another example of VA’s “heads I win, tails you lose.”
    Using the “rule of 72” you can calculate the time it takes to double, if you know the interest rate. By dividing 6% into 72, that means in 12 years, it will double. So, the VA can pay back the original 250k loan to the Veteran and his widow, and still keep 250 grand as interest. Its just way to profitable for VA not to do this. Further, this was the best possible outcome for the widow, and many of the times the VEt gets much, much less.

  2. Kiedove says:

    His records were lost in the infamous fire. How many are going to be lost in the future in the cloud’s servers in the future?

  3. John King says:

    Totally incapacitated does not equal TDIU. Totally incapacitated probably equals 100% scheduler disability for a mental condition. TDIU means you can’t work solely due to your SC disability. My doctor said I was totally incapacitated due to my Vietnam experience and due to PTSD but the VA said I was just 10% disabled in 1972. They did not even ask if I was working. They just didn’t like the fact I checked out of the VA’s rubber room AMA and made them look bad as if they were not doing their job. If I had stuck around for a few months maybe I would have got my 100% way back then for some mental disorder, not PTSD because it had not been invented the diagnosis I mean. The personality disorder dx had been invented and heavily used by the Army and the VA. Very handy when you want to get rid of someone.

  4. david j murphy says:

    A wonderful example of the need for productivity-based pay. LMAO, like that will ever happen with civil service and those wonderful regulations that protect the lazy and stupid.

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