It’s always fun to have old, seasoned former CAVC Judges come back to help out with the backlog. Considering President Trump is going to be tasked with filling three slots currently vacant at the Court, we hope he gives the legal beagles over at the NVLSP or NOVA a gander. There’s a wealth of talent there you won’t find on Wall Street or Harvard Law school. Saint Meg is living proof what a good education in VA law can do for Vetkind.
Here’s the BVA denial: bva-oyola
And the CAVC Reversal oyola-reversal
Luis Rivera-Oyola has been engaged in the old Badminton game with VA since he got out in 1993. He did about fifteen years before he separated. Then he did 23 more on VA claims. He filed for a hearing loss and ulcers a month after discharge but slipped up for a few months and then filed for his back/neck problems in Sept. 1994. VA forgot about him and he complained again in 1998. They sent him out for their antique VA x ray machine which couldn’t see retained metal fragments if they were 30 millimeters across. As we all know, only the most sensitive machines can show arthritis which is a newer phenomenon in radiology. Typical VA. X ray everything but what the C&P asks for… or the obverse-don’t x ray anything and put the idiotic Alfred E. Newman expression on your face and ask “What? We were supposed to x ray him back in 93? Why?”
In March 1998, Mr. Rivera-Oyola underwent the first VA joint examination of record, nearly four years after the regional office directed an”at-once” examination to evaluate his degenerative joint disease. This examination, however, was focused on Mr. Rivera-Oyola’s shoulders, elbows, hips, knees, and ankles, and did not evaluate his spine. The examiner noted that x-rays taken earlier in the month revealed “minimal” degenerative joint disease of the lumbar spine. (Otoya)
The VA is doing the fake out here. You’re so engrossed in watching the Monte dealer whiz those cards around and about that you fail to notice the most salient evidence of record. The Luismeister was complaining about this at his C&P a month after discharge during that glorious one-year presumptive period. VA is pointedly ignoring this to turn it into a disease that suddenly manifested in 1998 when it was diagnosed. Then they present the ultimate bitchslap. It’s your fault. You didn’t provide x rays in 1993, Luis. And danged if we didn’t forget too. We can’t go back now and do the x rays so tough luck.
Although service connection may be presumed for degenerative joint disease if this condition is manifested to a compensable degree within a certain period after military discharge, service connection on this basis cannot be favorably considered since x-ray evidence of degenerative arthritis warranting a compensable disability rating is not shown within one year following discharge from active military service.
Hershel Gober ran a good one by the Fed Circus called Maxson v. Gober and got some rotten precedence on the books for decades. On the half shell, it was summed up as “if you’re old and get a bad back then it’s cumulative and we all get bad backs eventually. You can’t blame it exclusively on your military service unless it’s documented in the STRs.”
There are numerous exceptions to this but VA clings to the basic tenet and tries to use it as the universal VA legal denial band aid. A few examples of where it blows up in their faces is Hepatitis C law. As the disease is cryptogenic and only identified and diagnosed 30 or so years after contraction, you can’t drag Maxson out and say the Hep was brand new and reached cirrhosis in 6 years. Trust me. VA has tried it and won at the appellate level many times on this, too. If you don’t appeal, they win.
Luis’ saving grace is that he had this DJD written down in that golden presumptive time of less than one year after service. But also note the proclivity of VA C&P doctors to under-report, inspect everything BUT the affected part or disremember to take some really good x rays as the VASRD suggests in 38 CFR §4.41 and 4.42 (1945-1964).
VA’s downfall was remanding Luis to death and purposefully giving him C&P after C&P for no good reason when the object of the C&P was being ignored all along with his contemporaneous c-file diagnosis of this two months after he got out. Insisting you’ve perused the records when there simply is no evidence of this looks stupid- especially when Hagel and his clerks are looking right at it. A Record Before the Agency (RBA) cuts both ways. The CAVC uses the “reasonable minds can agree” technique. VA prefers the 20,000 foot flyover test.
This is the same type of CUE that Butch Long is currently undergoing. VA’s take is “We see the diagnosis but there’s no proof of the diagnosis. It’s just a doctor’s ruminations with no identification of the epicenter. We can’t pay for that nebulous a diagnosis- and certainly not without probative x rays- in 93. Tough luck, Luis.
Judge Hagel seems to have toned down and mellowed as a Judge in his old age. He slammed this with a reversal and remand to Make It So, Numbah One down at the BVA. Veterans Law Judge Keith W. Allen will be tasked with the do over and a mea culpa of his stupidity. Even Hagel must see the futility in trying to speak English to the dolts down at the RO level. It’s like attempting to converse with amoebas. Let Allen explain it in pidgin English.
This is something I run across more and more frequently. You file for X and VA recharacterizes it as Y. They give you 0% for Y and never touch the underlying claim for X behind door #3 where Monty’s Cookie Jar is. Luis’ problem is similar inasmuch as he keeps trying to get to DJD of the spine and VA pointedly looked everywhere futilely- at least until Maxson could kick in. By now, it’s 23 years old but the best industrial shredder in Puerto Rico’s Regional Office still missed the 1993 C&P finding.
Congratulations, Luis. You’re pretty close to being a brand new millionaire. Spend it wisely. CUE is rare- and very costly when finally resolved. Even a tsunami of remands can’t put these fires out. PVA must have handed this one off to Jill Mitchel-Thein Esq. or Luis was smart enough to call her for representation. The Paralyzed Vets of America POA sure wasn’t catching any air. Face it. If you have 23 years wrapped up in fighting with an unblemished run of losses, it’s time to seek real legal help. Congratulations, Jill. You won the CAVC senior Judge Lotto sweepstakes.
So, if any of you are looking for some red hot legal talent, here’s Jill’s website.