CAVC–BELL V McDONALD–NEUTRAL EVIDENCE IS NOT NEGATIVE EVIDENCE


Welcome to the CAVC. Meet Saint Coral Wong Pietsch (pronounced peach) or abbreviated to St. Coral. She’s a member of the Holy Order of the Sisters of 625 Native American Ave. NW APO 20004 (Ninth Floor- Women’s Lingerie/Sundries). With the large number of vacancies (five), and a President endeavoring to look more presidential and less like a skirtchaser, I’m guessing we’re going to see some more lady juris doctors ascend to the throne.

I’d personally like to see Amy Odom or Jeanny Mark up there. Of course, if  the Donbo selected Katrina Eagle, it would be interesting to say the least. For the record, I redact my earlier observation as it was not phrased as concisely as I had planned it. When making observations, they should always be one’s own observations and not presuppose (or imply) what others are, or might be, thinking. I stand corrected and apologize. I certainly meant no disrespect to either Ms. Eagle or Judge Davis.  I did, however, shake his hand and thank him for the $70,000 readjustment to my 1994 ratings.

Chief Justice of the Court of Appeals for Veterans Claims Davis

Meanwhile back to James W. Bell. Jimbo signed up at the cusp of the end of the Southeast Asian Olympics and Indochinese Boundary disagreement in 1972. He signed up for three years and served honorably. In May 1973, however, he contracted what appeared to be Hepatitis (not otherwise specified) and it is presumed it was acute and resolved. Being ignorant of Hepatitis C, they presumed wrong. I’d like to interject a side note here. Using the Metavir Scale to rate the progression of Hepatitis C, the age of the disease is easily determined by the stage of progression. Mr. Bell had a liver biopsy in  August 2001 that revealed Stage 4, Grade IV (4) with cirrhosis-meaning he’d had it for a very, very long time. Most gastroenterologists , if interested in the etiology of such things, would determine the genotype and Metavir Scale and look back 30-40 years for an event that might presage it. Et Voilà! May 1973 jumps out and bites your eyeball if you were a nonadversarial, cutting edge VA examiner.

Bell CAVC decision:

BellJW_15-1793 Hep C -jetgun.

Here’s VLJ U.R. Powell’s take on it:

Bell BVA

After mulling it over for nine years, Mr. Bell filed for Hep C and blamed the jetguns from Basic Training. Fortunately for him, two things can be said. He did not have any legal help (VSOs don’t count) and he’s not a doctor. He cannot say what bit him and gave him the virus. You can actually point to Groves v. Peake (2008)    as a good precedential Fed Circus decision to lean on. Walker v. Shinseki might have obliterated §3.303(b) but §3.303(a) is still intact. In that sense, Groves is on point.

This case should never have reached the Court for any number of reasons.  But then we’d be unemployed and idle hands are the Devil’s workshop. Fortunately for all of us leagle beagles, the VA will never get it right. We have job security for as long as they remain paralyzed from the neck up. Besides, think of all the cirrhosis Attorneys and Agents avoid because they have no time to hang out in bars. It’s a win-win combo for all of us.

Mr. Bell’s problems began in September 2010. His VA examiner (gosh that sounds so exalted a title for a R.N.) got conflusticated with the vapors and declared she simply could not “offer any opinion” about whether the appellant’s disorder was related to his active service “because any opinion would be  speculation”. She might  well have added that the terms of her contract ensured she’d lose her job and that 2010 Christmas bonus if she did say it was related to service.

From here on, it was the same old comedy of errors. Obviously Mr. Bell had not brushed up on what the VBA considers unacceptable verbiage for a valid nexus. Dr. Belur S. Sreenath (probably his VA doctor in that golden era before they had been forbidden to opine on etiology) opined that the “appellant’s disorder is probably related to the airgun injections that he received during his active service”.

Well boy howdy is that right out. Probably, possibly, mighta, coulda, shoulda looked in the mirror, my Uncle Earl died of that and other “equivocal” definitions won’t put you on Bucks Boulevard. To get to Dollar Drive, your doctors have to use those “unequivocal” statements like “at least as likely as not” or “more likely that less likely” etc.  In addition, you can’t just spout like a whale. You have to explain why it is that you have come to that conclusion. VA would like to think they came up with the perfect foil for telling the truth by simply declaring it to be “too speculative to venture a guess. When we were kids, that was the equivalent of yelling “Not it!”

St. Coral

St. Coral has to gently explain to Veterans Law Judge U.R. Powell some of the finer points of law as she seems to have glossed over the subject in law school. Fortunately for Veterans, Congress, in its munificence, recognized in 1988 that some BVA folks with law degrees slept through some of their lessons. Not wishing to denigrate them directly by insinuating they were raised by wolves, Congress wisely set up an Article I court of review which some legal scholars say has more the reach of of  an Article III court if they so choose it.

A conceptual misapprehension pervades the Board’s analysis. The September 2010 examiner’s opinion “provides neither positive nor negative support for service connection.” Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). “Therefore, it is not pertinent evidence, one way or the other, regarding service connection.” Id. The Board, however, labeled the September 2010 examiner’s opinion a “negative nexus opinion.” R. at 9. The Board later stated that the examiner opined that “it would be speculative to medically attribute the [appellant’s] current hepatitis C to the in-service injections via air gun.” It should have stated that the examiner opined that she could not answer the medical question presented to her without resorting to speculation, a subtle but important difference. In general, the Board chose to view neutral medical evidence as medical evidence against the appellant’s claim. That erroneous view of the evidence colored the Board’s ultimate conclusion. The Board found that the “most probative evidence of record does not show that it is at least as likely as not that the [appellant’s] current hepatitis C is etiologically related to his active service.” R. at 12. For that reason, it concluded that “the preponderance of the evidence is against the claim.”

St. Coral offers one lovely last parting shot.

The Board made two important findings: (1) the nexus question must be answered by a person with medical expertise (Colvin); and (2) it can never be answered by a person with medical expertise without resort to speculation. R. at 5 (finding that the September 2010 examiner’s report is adequate and that VA need not make any additional efforts to assist the appellant).

Always remember, when VA makes a finding of fact, it cannot overturn it without first declaring it a clear and unmistakable error (or CUE). Since  VA hates to contradict itself or admit error (or appear stupid), they will cling to this finding and go down with all hands before admitting they goofed. That’s why this is at the CAVC-because some asshat Appeals Coach in St. Petersburg was too lazy or terrified to grant SC to Jimbo when it was clearly due. The Hepatitis in service was a dead giveaway. The hepatitis now meets the chronic clause. What’s the problem? Sadly, the problem is a denial mentality. It is not expected that VA will win every time. A few minnows always get through the net. Here, St. Coral had to cut a hole in the net to perform the necessary VA catch and release. Boy, howdy do I love reversals. Make it so, Numba One! And see that you’re quick about it or I’ll box you about the ears.

You have to pick your fights carefully. VLJ U.R. Powell’s  staff attorneys prepping Mr. Bell’s Texas Necktie Party should have rethought this one for any number of reasons. I reckon the last thing you can throw at this one is…

You can’t fix stupid.

At the VA, they promote you.

Dan Curry

P.S. A big thank you and an immense attaboy to Danial G. Curry, Esq. and his firm for his legal acumen on this one. Excellent work, sir.

P.S. Just spotted this in the news feed from a reader:

Trump also nominated Michael Allen, Amanda Meredith and Joseph Toth to the U.S. Court of Appeals for Veterans Claims, which hears cases from veterans who think their claims for VA benefits were denied unjustly.

If confirmed, Michael P. Allen of Florida will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Michael P. Allen serves as a Professor of Law and Director of the Veterans Law Institute at Stetson University College of Law in Gulfport, Florida, where he teaches courses in civil and constitutional law, as well as veterans’ benefits law. Professor Allen is a recognized expert on the law of veterans’ benefits and has testified before Congress and published widely in the field. Before joining the Stetson law faculty sixteen years ago, Professor Allen spent nine years as a civil trial attorney at the law firm Ropes & Gray in Boston, Massachusetts. Professor Allen received his B.A. in American history and political science, summa cum laude, from the University of Rochester, where he was elected to Phi Beta Kappa, and his J.D. from the Columbia University School of Law, where he was a Harlan Fiske Stone Scholar.

If confirmed, Amanda L. Meredith of Virginia will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Amanda L. Meredith serves as the deputy staff director and general counsel of the U.S. Senate Committee on Veterans’ Affairs, chaired by Senator Johnny Isakson of Georgia. She previously served as general counsel to the Senate Committee on Veterans’ Affairs and as benefits counsel to Ranking Member Richard Burr of North Carolina and Ranking Member Larry Craig of Idaho. Prior to her service on the Committee, Ms. Meredith served as director of the Task Force for Backlog Reduction for the United States Court of Appeals for Veterans Claims and as a law clerk and executive attorney to Chief Judge Kenneth Kramer, United States Court of Appeals for Veterans Claims. Ms. Meredith received her B.S. from the State University of New York at Buffalo, summa cum laude, and her J.D. from the State University of New York at Buffalo, magna cum laude, where she was a member of the Buffalo Law Review.

If confirmed, Joseph L. Toth of Wisconsin will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Joseph L. Toth is a veteran of the Judge Advocate General Corps of the United States Navy. In 2011, he served as a field officer in the Rule of Law Field Force Afghanistan (ROLFF-A), where he was stationed with the U.S. Army’s 10th Mountain Division in the Zhari District of Afghanistan. In Zhari, Mr. Toth partnered with Afghan prosecutors to establish the rule of law in the district where the Taliban was formed, and he was awarded the Joint Service Commendation Medal for his service. He also served as Senior Defense Counsel in Pearl Harbor, Hawaii, where he defended Sailors, Marines, and Coast Guard personnel at courts-martial. Following his military service, Mr. Toth clerked for Judge Daniel A. Manion on the United States Court of Appeals for the Seventh Circuit and Judge Robert J. Conrad of the United States District Court for the Western District of North Carolina. Most recently, he served as an associate Federal public defender in Milwaukee, Wisconsin. Mr. Toth received his B.A. from the University of Chicago and his J.D. from the Ave Maria School of Law.

One slot left….

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, HCV Epidemiology, HCV Risks (documented), Jetgun Claims evidence, KP Veterans, Medical News, VA Medical Mysteries Explained and tagged , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to CAVC–BELL V McDONALD–NEUTRAL EVIDENCE IS NOT NEGATIVE EVIDENCE

  1. Katrina Eagle, Esq. says:

    Alex, for the record, I NEVER called Judge Davis’ behavior “obnoxious.” Nor would I ever. He is Chief Judge of the US Court of Appeals for Veterans Claims, and as such, has my utmost respect. Frankly, you are not privy to my memories and recollections, and you should not fool others into thinking you are. In the future, please do NOT use my name in any of your writings without my explicit written permission. Your apology for any confusion you may have caused with this blog post is accepted. Thank you.

    • asknod says:

      I stand corrected and removed the objectionable passage. You would still, in my mind, make an outstanding Jurist in any event. I offer my profuse apology if it appears I insinuated you were upset, at odds with anything Judge Davis may have said to you, or implied you had lost respect for him professionally or his authority. That was not my intent. To prevent further problems, I’ll studiously avoid any mention of the incident ever again. You have every right to be upset. No one likes having their name dragged through the mud.

  2. Vicki Foley says:

    Is Davis gone, Alex? We’re headed back there again. Writ in progress. Money paid, even the attorney got fed up and suggested it. Awaiting the brief…

    • asknod says:

      Actually, no. He’s now the Chief Judge. They are down to five of the allotted nine judges- Davis, Schoelen, Bartley, Pietsch and Greenberg. The good news is your current odds of drawing a sympathetic ear are 80%.

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