As I love to point out, some of the best VA law is found in reversals. What better place to look than CAVC Judge (Saint) Mary Schoelen’s rulings. She seems impervious to the stares and consternation of her fellow jurists who tilt like windmills towards the VA far too often. Mr. Phillip M. Dobbins here is a classic example. Watch as St. Mary decimates the VA’s nuanced argument and leaves it in tatters.
Phil joined the Marines in 67 and soon found himself “Way down yonder in Vietnam” as Country Joe liked to sing of it. It wasn’t any picnic for a combat Marine and we are finally coming to appreciate that PTSD has some long-lasting effects after it is correctly identified. Since they didn’t have Bent Brain Syndrome in 1968, he got the “schizophrenia” Diagnosis and a 30% doggie bone. Standard issue for that time and still is today. The feeling being ” We can’t give him a zero because he was in combat so let’s just do the least possible and see if he blows it off. He didn’t.
Phil couldn’t be rolled that easily and filed what no one on earth can call anything less than a Notice of Disagreement. Granted, it was on a Form 21-4138 generic “Statement in Support of Claim” obviously submitted by a dingbat VSO service Officer. Maybe this was the beginning of the misconception that VA might “reconsider” claims and this was a valid attempt to seek a de novo review. VA failed to discern his nuanced plea. So did Phil-for the moment. But remember, too, that VA did not have a specific NOD form as they do now (Form 21-0958) so this was a legitimate cry for a notice of a desire to constest the decision.
38 years go by and finally Old Phil gets the idea that maybe VA lost his self-styled NOD. Doing what I did in similar circumstances, he filed to reopen for an increase of the 30%. VA, realizing they had done a face plant on the diagnosis in 1968 (not to mention blowing off the SOC) promptly waved the magic wand and declared his schizophrenia in “complete remission”. Of course, in the meantime, he had become extremely disabled by true PTSD and thus was “rediagnosed” with that instead.
The examiner noted that the appellant’s schizophrenia was in “full remission.” The examiner opined that “it is likely that the behaviors seen in the hospitals in Vietnam, Japan, Oakland[,] and Waco were the beginnings of PTSD, although that disorder was not well-documented and defined at that time.” During a mental health evaluation in March 2008, the examiner stated that the appellant had been experiencing PTSD symptoms since his time in Vietnam and reiterated that the in-service diagnosis of schizophrenia “is not a current thought as to what the true diagnosis was.” (referring to December 2007 examination report).
Hmm. Here comes the fix. Since this was a reopen, they had to repair the failure of the AOJ to issue that SOC. That spelt remand and VA was not going to go back to 1968 if they could do a three-card Monte bait and switch. They promptly gave him 100% (TDIU) and an effective date back to his latest “reopening” of what was unarguably a pending claim. They just tried to fake him out on what the effective date was. Unless I miss my guess, the Philmeister had gotten in touch with Bob Chisholm and Company and they had a death grip on this doggy bone. From here on out the VA was walking on tenterhooks and was trying their damnedest to come away clean from this tar baby.
In September 2008, the RO awarded the appellant service-connected benefits for “[PTSD] with depressive disorder and history of schizophrenia.” The RO stated that the appellant’s service-connected PTSD was “combined” with his service-connected schizophrenia. The combined condition was rated 70% disabling, effective October 25, 2007, the date of the appellant’s claim for an increased rating for his service-connected schizophrenia.
Legally, you cannot suffer two different MDDs and be remunerated for both. You have to rate on the dominant one. Who cares. VA sure doesn’t. They make this up as they go along and use post hoc rationalizations praying they won’t be caught.
After a long, drawn out battle involving endless rhetoric and DRO reviews that went absolutely nowhere (2008-2013), Mr. Dobbins submitted his VA 9 recognizing that the boyz in the RO ‘hood were never going to revisit their fustercluck back in 1968. Sure, you could go through the motions of pretending to do so with a dog and pony remand for a “de novo” SOC that was 38 years stale. Remember old Leroy MacKlem? Better yet, remember MacKlem II at the Fed. Circus? VA honestly thought they were going to get another shot at denying his CUE after cheating the first time out. Notice we never heard another word about Leroy? He’s driving a Lamborghini about now unless I miss my guess. 100% from 1951 buys a lot of car, dude.
Same thing here. The VARO pukes laughed their asses off, purposefully ignored AB v. Brown where a Vet is seeking the highest and best rating he/she can and the best possible outcome. Reminds me of the Gong show. The OGC almost thought it was a legitimate denial. VA tried to put a straight face on it and make it look as though they were bending over backwards to be nice. They weren’t.
As noted above, whether a document is a valid Substantive Appeal is a question of law that the Court reviews de novo. Gibson v Peake (2007), 22 Vet.App. at 15. Accordingly, the Secretary’s assertions that the appellant has not met his burden are entirely without merit. Moreover, the Court agrees with the appellant that the only plausible interpretation of the appellant’s Form 9, particularly in light of the Board’s obligation to construe a Substantive Appeal liberally, is that it was his intention to appeal the issue of “‘an earlier effective date’ for his 100 percent rating.”
Drat. Foiled again by a constructive reading of the evidence and that damned nonadversarial hogwash.
It’s funny in retrospect when St. Mary goes back and dissects the Board’s minutiae and discovers they clearly state what’s up in one sentence and promptly claim ignorance of what it was poor Phil was desperately trying to enunciate in the next. Once cast in semantic stone, it’s difficult to argue to the contrary. Check this sleuthing out:
Beyond the Board’s faulty analysis, a review of the record further supports the appellant’s assertion that his Form 9 demonstrated his intent to seek an earlier effective date of his 100% disability rating. After the Board determined that the appellant had filed a valid NOD with the March 1969 rating decision, the Board remanded the appellant’s claim for the RO to issue an SOC “with respect to his claim for increased ratings for his service-connected variously diagnosed psychiatric disabilities.” The only issue identified in the SOC issued thereafter was “[e]valuation of schizophrenic reaction, undifferentiated type evaluated as 30 percent disabling from October 1, 1968.” Accordingly, it was unreasonable for the Board to conclude that the Form 9 the appellant submitted in response to that SOC was intended to limit his appeal to the assignment of an effective date for the appellant’s PTSD award. Rivera v. Shinseki, 654 F.3d 1377, 1381 (Fed. Cir. 2011) (where the SOC identified only one issue on appeal, all that is required to perfect an appeal to the Board is that the veteran make clear that he disagrees with the RO’s conclusion) After the Board determined that the appellant had filed a valid NOD with the March 1969 rating decision, the Board remanded the appellant’s claim for the RO to issue an SOC “with respect to his claim for increased ratings for his service-connected variously diagnosed psychiatric disabilities.” The only issue identified in the SOC issued thereafter was “[e]valuation of schizophrenic reaction, undifferentiated type evaluated as 30 percent disabling from October 1, 1968.” ; see also Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (“The VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him.”).
Gee, you don’t think the bozos at the OGC didn’t take that into consideration when they set out to deflate the tires on Phil’s 1968 NOD? Come on. The only folks who could be that naive are VSOs in Colorado and Washington who smoke whacky tabaccy and wear rose-colored glasses.
Phil did well to get Bob Chisholm in on this. Even more, he drew the lucky long straw with St. Mary for a Judge. I doubt it would have turned out differently with Meg Bartley or Brother Greenberg but conversely, I doubt Mr. Dobbins would have prevailed at the CAVC before some other jurists who will remain nameless. My mother always used to say that if you can’t say something nice about someone, to come on over and sit beside her.
Good luck on the big $1.5 Billion Dollar Lotto tonight. Please waste your money. I already bought the winning number. Of course, I said that last Saturday.