As in years past when I first began this blog as a teaching tool, I still love to use BVA decisions to illustrate what can go wrong. They comprise approximately 70% of all published so there’s no dearth of them to pick from. Hepatitis ones always come up on the asknod radar as that’s what we do here. Here’s one that will roll your socks down. Twenty years invested in the drilling of this hole and it comes up dry.
Consider Mr. Johnny Vet from Detroit or thereabouts. We all know the Detroit RO has the rudest, most intractable personnel in the 56 universes comprising AOJs. Jez. Just ask Keith Roberts. Paralyzed Veterans of America (PVA) is repping our Mr. Vet in this. In fact, unless I miss my guess, they’ve been repping him since he filed all this in….early 1995? Ruh-oh, Rorge. Read on.
You can see he was drafted as he served two years from 1970 to 1972. If he’d enlisted, he’d have been in for three. Chances are he served in SEA in the Army. See how easy this is? Now watch what happens on the hamster wheel. Down below in analysis, you see the third paragraph.
The evidence shows that the Veteran is currently service connected for residuals of a left fibula fracture (rated as 20 percent disabling from August 28, 2008 and as 10 percent disabling prior to that date) and hepatitis C (rated as 10 percent disabling from October 10, 2000); his combined rating is 10 percent prior to October 10, 2000, 20 percent from October 10, 2000, and 30 percent from August 28, 2008. Hence, at no point relevant to this appeal has the Veteran met the criteria for schedular TDIU as per 38 C.F.R. § 4.16(a).
That’s odd. VSO Service Officers would never file a Form 21-8940 and ask for TDIU if the Vet wasn’t eligible… or would they? So, the score appears to be 10% for a fibula fracture in 1995-1996 and then 20% five years later in 2000. In addition, he picked up SC for his Hepatitis C in 2000 as well. That’s 30% which is woefully short of what he needs to be awarded the IU. All this time he should have been seeing the doctor and upping his rating for his hep as his disability increased. Instead, we read he’s pursuing a host of minor increases as well as a bunch of new claims. At this rate, he may get at least one 40% disability before he reaches room temperature at 90%. He’s the same age as me- about 64-65.
The Board also remanded the matters of entitlement to a rating in excess of 20 percent for residuals of a fracture of the left fibula as well as applications to reopen the claims for service connection for low back, lip hip, and left knee disabilities for issuance of a Statement of the Case, consistent with Manlicon v. West, 12 Vet. App. 238 (1999). In December 2013, the AOJ issued the Statement of the Case pertaining to these issues, and they were addressed again in a June 2014 Supplemental Statement of the Case. However, a VA Form 9, Substantive Appeal, is not of record. Accordingly, these matters are not before the Board.
Oh shit, oh dear. The Service Officer forgot to file a timely VA 9. Here we go again. You can’t get this all rolled into one appeal without it. Seems that would dawn on someone at PVA before it left Detroit. They were wasting their time filing rebuttals to the SOC and not paying attention to the big picture. Knowing it’s the Detroit RO, PVA should have trailered this hoss up and shipped it to DC if for no other reason than to get it the hell out of Detroit. The AMC might have been the better choice with a waiver of review in the first instance. This c-file already has more miles on it than Voyager 1.
This claim came before the Board in July 1997, February 2000, August 2003, June 2006 and September 2007. The September 2007 Board decision denied the Veteran’s claims of entitlement to service connection for a low back disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left hip disability, to include as secondary to a service-connected left ankle disability; entitlement to service connection for a left knee disability, to include as secondary to a service-connected left ankle disability; and entitlement to TDIU. The Veteran subsequently submitted a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim for TDIU. The Court issued a December 2008 Order vacating, in part, the September 2007 Board decision and remanding the appeal for readjudication consistent with the parties’ Joint Motion for Remand. In August 2009, the Board, and in conjunction with the parties’ Joint Motion for Remand and the Court’s Order, remanded the TDIU claim for additional development. In May 2012, the Board again remanded the matter of entitlement to a TDIU for additional development. The case has since returned to the Board for the purposes of appellate disposition. For the reasons stated below, the Agency of Original Jurisdiction (AOJ) complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998).
Whoooo, doggies. That’s seven more claims if you throw in the TDIU. And go figure- 0/7. I would never start filing claims secondary to every bone from the ankle up. What the hey. Go for SMC L and say the whole shebang is shot. Loss of use. This is a recipe to entertain a whole ‘nother generation of PVA service reps. You just have to know Johnboy here has already gone through at least one. They retire after 20 years too, you know.
Next up? Attack the credibility of the Vet. I’m not suggesting one way or the other that he’s a goldbrick or the genuine article but I read this so often, I have to assume it’s predictable. If we were talking about the Hep C, it would be “Someone at the VAMC penciled in a note in the computerized VISTA records that he snorted cocaine a lot, but we couldn’t find out who wrote it in so we were unable to substantiate it.” Remember Phil Cushman?
A November 1996 VA examination report reflects that, as far as the fibula injury was concerned, there was no residual at that time and the functional loss as complained by the Veteran was subjective. The examiner noted that the movements seemed to be voluntarily resisted.
The examiner noted that the Veteran used a brace for left foot drop, and he also used a cane for balance. The examiner indicated that she could find no evidence to substantiate that the cane was required and prescribed for locomotion and functional mobility.
I’d be inclined to say the examiner’s comments were pretty subjective too considering Johnboy’s already rated for it now. That is a vicious attack that is immaterial and uncalled for- not to mention unsubstantiated.
Next we move on to the bait and switch. Remember, all the possible rating he needed to build to get to 70% and a potential TDIU weren’t before the Board because the Einstein PVA rep. didn’t get them certified for appeal simultaneously. That means this whole charade was a milk run absent those other disabilities. The VLJ sums it up thusly:
Rather, the record reflects that the Veteran stopped working due to physical disability related to his ankle, left foot, lumbar spine and other musculoskeletal complaints.
Why, exactly. In fact, he’s collecting SSD or SSI for just those disabilities. Twenty years of litigation to get here and the PVA somehow disremembered to make sure Johnny had a nexus letter or letters to cover this contingency. You cannot depend on your SSA records or the VA Examiners to give you glowing medical diagnoses that confirm your ailments. It’s antithetical to their motto
For He Who Hath Borne The Battle
…If He Can Prove it™
There. You have a wonderful teaching moment. Johnny leaned heavily on free VSOleaglezoom.com for his leagle beagle help. He got little or nothing and is still faced with another assault on Hamburger Hill as soon as he can snag a VA 8 and a docket number. The waiting line outside 810 Varmint Lane NW currently stretches to about ten miles west of Louisville. As I said, Ruh-oh Rorge.
We expect to see him back there shortly in 2019. According to the 2014 BVA Year in Review, he’ll only have a short 235 days after that … if they can keep it out of the VSOs’ death grip. I hate to be the bearer of bad tidings but if the Johnmeister expects to prevail in this lifetime, he may want to transfer his flag to another legal entity-preferably one with a Juris Doctorate who does this for a living rather than a hobby. Twenty years with only 30% to show for it is like batting .080. I’d be embarrassed to go out in public with my PVA campaign hat on. File this one under Missing In Action.