During the course of the last two years, most of you know we have been helping Butch Long in his quest for his medals and a truly compensable rating commensurate with his disability picture. It hasn’t been easy. Between the Army asking him to prove he was really in combat and the VA sending C&P exam reminders to an address he lived at over 40 years ago, he has finally prevailed. The true magnitude of the insult is only now becoming apparent.
My mentor, Robert P. Walsh Esquire, told me long ago to read a legal decision (Beyrle 94-688) which would illustrate what the Court holds as the proper legal way to approach penetrating wounds-be they gun shot wounds (GSW) or shell fragment wounds (SFW). Mr. Beyrle’s injury concerned a through and through GSW that entered and exited rather than lodging in the flesh. It also revolved around whether it penetrated muscle tissue or merely went through skin like a superficial GSW might. VA lost. What was of interest is that Mr. Beyrle’s 1996 CAVC decision leaned heavily on one adjudicated in 1991- Mr. Brian L. Myler (COVA 90-1098).
Most importantly, both of these decisions concern older Veterans and the laws in effect at the time. Oddly they have not changed in the least. This saved me a lot of time in looking up what the regulations were in Part 4 concerning the law on penetrating wounds. Mr. Beyrle was a guest of the Germans in a POW status when he was shot through the upper right chest. Mr. Myler served in Korea and was shot through the upper thigh. While both these decisions involved through and through GSWs, they give us an excellent education on how VA is obligated to adjudicate a penetrating wound claim. More importantly, from Mr Butch Long’s experience, the decisions teach us how the VA is required to view shell fragment wounds -and most especially SFWs with retained metal (foreign) bodies (shell fragments).
First, let’s get the semantic verbiage out of the way. A SFW can include grenade fragments or even a bullet that disintegrates upon impact with the body. This also happens if it (the projectile) is damaged just before entry by something or the parts of the missile ricochet off the air frame of your aircraft and then penetrate. It’s immaterial what the actual projectile consisted of. The residuals after they finish trying to glue Pvt. Humpty Dumpty back together again are the pertinent discussion. Obviously, if you have large chunks of a 60mm gook mortar hanging out of you, the surgeons will try to remove the most obvious or large ones they see visually or identify via x rays. Small, insignificant ones are often left in situ and ignored if they will have no deleterious effect long term. This is what I sought to investigate in Butch’s claim. To say I’m dumbfounded over what the regulations state is a masterpiece of understatement. But first, let’s take a gander at Mr. Myler. We owe him quite a bit for fighting for his (and our) rights.
Brian L. Myler enlisted in 1949 before the onset of the Korean Boundary Misunderstanding but that isn’t pertinent to the discussion. On November 5th, 1950, Murphy’s fifteenth law stating being in the wrong place at the wrong time doing a good deed will never go unpunished occurred. The bullet traveled through two different muscle groups in his upper thigh and exited for parts unknown. No retained foreign bodies remained. For the newbies, the VA divides us up like a Beef chart to show where filet mignon and top round come from. We have twenty three different muscle groups. down each side of our bodies. Each arm and leg is the same muscle group but defined as right or left and dominant based on whether you are right or left handed.
Brian contended he should have been rated higher for each muscle group the bullet traversed (2). He won that on appeal but then began the larger argument as to why he was not given the 30% when he filed in 1952. Thus you can see this appeal is a Clear and Unmistakable Error (CUE) claim-the absolute hardest to win of all.
Mr. Mylar attended his C&P exam where they discovered the following. I will bold in blue the typical way VA downplays the significance of our injuries. Remember we did not have the COVA or CAVC at this time. They didn’t arrive until 1989. Brian didn’t have much choice on this one. There was no true appellate process of any sort until the advent of the BVA in 1961.
Penetrating GSW, right thigh. . . . [R]ight leg with residuals of penetrating GSW, right mid thigh, without atrophy, nerve, or vessel injury. . . . Apparently entered at the lower border of the right hamstring group, coursed anteriorly thru the lateral border of the quadraceps [sic] group at mid rt. thigh. No depression, no evidence of muscle atrophy, no evidence of nerve or vessel injury, no deformity. . . . Small coin sized scar, lateral posterior, mid 1/3 part of right thigh. Also a coin sized scar at anterior mid third of right thigh at lateral ball border of the quadraceps [sic]. No fixation,depression in either area. No tenderness. No depression. Function,right thigh muscle not impaired by GSW. No nerve or vessel injury.
Good to go. Here’s a 10% doggy bone, Brian. See you later. At some point either the guys were comparing scars down at the VFW over their brewskies or someone said “Dude, you got totally screwed.” Either way, the Brianmeister reopened his claim in late 1987 and suddenly (on appeal to the BVA of course) they decided the very same scars and muscle damage were worth 30% rather than 10%. This tells us two things. One is that the RO didn’t have a clue how to rate penetrating wounds; and two that it required an appeal to get the rating right but they still screwed him on his effective date.
The clinical evidence, in particular, the most recent examination of
January 1988, persuades us that the veteran’s gunshot wound resulted in injury to two muscle groups, XIII and XIV. The scars, as noted on recent examination, indicate a through and through wound. Consistent with the clinical findings and the provisions of 38 C.F.R. § 4.55 and 4.72 [now 4.56 and 4.73] regarding principles of combined ratings, we conclude the injuries to muscle groups XIII and XIV were moderate and should be combined to one rating for a moderately severe injury. This warrants a rating of 30 percent.
They did manage to get that much right. What they studiously avoided was why it was not annotated as two muscle groups in 1953 and whether that did or did not constitute a Clear and unmistakable error in the first instance. Fortunately for Brian and Vetkind, the Court of Veterans Appeals was being constructed by Congress about then.
I’ll give credit to the RO director. He knew VA was wrong and wrote a note to the Director of Comp. and Pen, and said “We erred. We owe him 30% to 1953. Four months later, Mr. DC&P wrote back and said “Shut your fat yap up and sit down or I’ll ship your ass to Manila.” Brian’s VSO rep promptly sent in his NOD on March 28, 1989 contending CUE.
Back to the BVA where they concluded that the Presumption of Regularity covered what the doctors observed in 1953. If they had seen obvious damage to Muscle Groups (MG) XVIII (13) and XVIV (14), they would have said so. They didn’t so the argument fell flat based on 38 CFR §20.1403(d)(3) that a dispute over how the evidence was evaluated could never rise to the level of CUE. Brian wasn’t buying and filed a NOA with the brand new Court. Mind you, this was all prior to Russell (and Rosie Sampson) v. Derwinski which many consider to be the last word in CUE jurisprudence.
The point is that how much injury occurs to a muscle group is a matter
of judgment. It was not patent and demonstrable error to have found as the agency of original jurisdiction did in 1953 that there was not disability consistent with more than moderate injury to one muscle group based on the evidence then of record.
So, we now get down to palpable justice. This is where we find out who’s been naughty and who’s been nice. As we all know, VA takes vast leeway with what the meaning of “is” is. Brian’s contention was no exception to the rule. The fact of the matter is that they made the exact same type of error seventeen years later in 1970 when Butch showed up and didn’t start doing it right until Mr. Beyrle showed up with similar circumstances in 1996.
George Santayana dialed it correctly when he said those who forget the past are doomed to repeat it. Butch Long’s raters blew through his wounds in 1970 which were far worse. He, too, got the 10% Knick Knack, Paddywhack give the Vet a bone. When he refiled in March 2015 as Mr. Myler did in 1988, we would assume the Seattle rater, a certain Mr. Frank J. Idzikowski, (GS-11 $80,427/yr.) would be expected (by now) to be trained in the arts of penetrating wounds.
Or not. Frank gave him two 20%s and a 10% for scars and a dose of DeLuca pain.. I’ll discuss that later. Back to Brian’s dilemma.
In Brian’s case, the Court clearly saw and pointed out that the 1953 evidence was unequivocal-that the bullet traversed two MGs -13 and 14. But what was worse was they ignored almost all of what is still summarized in §4.56 then and today. Any penetrating wound was (and is) to be rated as “moderate”. 38 CFR §4.56 lists the different degrees of damage and instruct as to how to rate the wound(s). Depending on the criteria, they can be slight, moderate, moderately severe or severe. This ultimately determines the rating expressed as a percentage to assign to the wound(s). This facet is covered in 38 CFR §4.73. Additionally, if the injury occurs to the dominant side of the body (i.e. the right if you are right-handed) there are additional considerations (see §4.69).
To add more insult to error, the BVA also did the face plant of ignoring the trigger of adjoining MGs. If the missile traversed two adjoining muscle groups, the rating had to escalate to one of moderately severe injury rather than just moderate.
By failing to even consider this in 1953, it was clear and unmistakably erroneous to only offer Mr. Myler the 10%. The BVA judges in 1988 got it correct at 30%. They were just thirty five years off on their calculation of the correct effective date. Which brings us to Butch.
Boy howdy did I get an education. Butch doesn’t suffer from deep penetrating SFW or through and through gunshot wounds. What he does suffer is an abnormally large amount of shrapnel of minute size along with a few larger ones in his right temple, right forearm (above), right hand, pelvis and thigh that they never removed. Let’s drift back to §4.56 and the nuanced discussion about what kind of wound deserves what kind of classification. As I discussed in Myler, any wound of this nature make it”moderate”. When the muscle groups affected are adjacent to one another, it acts as a force multiplier and advances the wound higher to “moderately severe”. In all of these categories, we see the term “without explosive effect”. See 4.56(d)(2)(i):
(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection.
This prompted me to search for what the degree of severity would be for a wound or wounds involving an actual explosive effect. Lo and behold, there it is down at the bottom hidden under severe injuries §4.56(d)(4)(iii)(A):
If present, the following are also signs of severe muscle disability:
(A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile.
Please note it doesn’t say “deep” or “requiring proof of muscle debility”. All that is required is what Butch survived- a very intense explosive event in close proximity that left him with thousands of small retained foreign bodies. And in 1970 they gave him 10% for scars to the right forearm ( DC 5308-moderate) as well as 0% for “scars, pepper spots” rt. arm, rt. leg and rt. pelvis (DC 7805 scarring). All these injuries are to the dominant side (right). When reapprised of these injuries in 2015, the rater (remember good ol’ boy GS-11 Frank Idiotzakowski above) decided to be slightly more munificent than the 1970 rater but ignored the explosive effects codicil. With Myler/Beyrle guidance from above, how could this happen in 2015? Gee, I give up. A vast right wing conspiracy in Seattle? Can we blame it on Bush?
The sum of the errors is stupendous. Because the injuries to the right forearm and hand are the dominant side, the force multiplier is employed. Add in the interconnected MGs of the head, neck, back, shoulder, forearm, pelvis and the hand and they are moderately severe. Add in the explosive effect causing the presence of numerous minute fragments (pepper spots) dispositively documented and the rating is required to be severe in any MG exhibiting the pepper spots. This is how VA does the bait and switch. Pepper spots? So what? It just looks like you didn’t take a bath, Butch but that doesn’t rise to the level of compensation. Even if it isn’t dirt, they didn’t leave any scars and they aren’t painful. 0%, 0%,0%, 0%, 0% and 0%. Did we miss any? If we did, they are also a 0%. This is the wrong metric to analyze the injuries with. VA knows it. This isn’t so much about pain as in DeLuca vs. Brown (1995) -or scars for that matter- except in the two areas Butch identified in 1970. Yes, pain on motion has spread and they remunerated him for that (barely). They are purposefully whistling past the graveyard and hoping Butch will forget the pepper spots. I guess I could go Shakespeare here (“Out, Out Damned Pepper Spots!”). They gave him TDIU which is Butchslap # 26 in a series of them. And then they told him to get lost…and he’s in a wheelchair. Read ’em and weep.
I can almost hear Fred Rogers asking “Can you say Butchslap? Sure. I bet you can. Go ahead. Butchslap is what all your friends in the VA neighborhood like to do to show their appreciation for your honorable service to America. Isn’t that special? Welcome Home, Butch. We have your six. Nexxxxxt?”
You can bullshit Butch but you can never bullshit the retained foreign bodies out of him. I see a slightly better financial picture here akin to Mr. Myler’s argument only far more remunerative. The Director of Comp. and Pen. is having acid reflux wondering if Butch will figure it out. Happy New Year to all of you-and most especially to the Long family. We have not reached closure but we’re a dang sight closer.