I read a lot of claims and appeals to better understand and absorb VA law. I often ascribe an apt analogy to a VA claim- it’s a recipe- just like baking cookies. You would never go off the reservation and cut a new legal trail to win a VA claim by ignoring the necessary ingredients (Caluza, Shedden, Hickson requirements) because that would be futile. The same holds true for baking a cake. If it calls for baking powder and you’re out, you don’t substitute baking soda solely because they sound the same. I speak from experience. You could have broken windows with my cake. I had to bake a new one correctly to get my Bear Badge for Cub Scouts. That was in 1958 and a lesson that sunk in.
In VA law, similarly, you are tasked with “building” a claim. I’ve taught thousands of you how to do this since the recipe light bulb went on over my head in 2007. It’s a sobering moment when you realize you’ve been beating a dead horse for nineteen years and it suddenly dawns on you why others doing this have won with little fanfare and even less effort.
One of my cohorts in the biz sent me several decisions recently. In each, the Vet showed up on his doorstep after expending some extensive frequent flyer miles on the VA Hamster wheel. What both the decisions pointed to was a lack of case or controversy and a strong helping of violin music-aka how long the Vet had persevered in pursuit of his benefits and everything but pointing to egregious violations of VA regulations (case) or misconstrual of evidentiary fact (controversy). Case and/or controversy are the bookends that hold a claim or appeal together legally. In fact, they are also the meat and potatoes of Clear and Unmistakable Error (CUE) claims. We live or die by these standards of legal review.
The Yoda Technique
Nevertheless, in VA jurisprudence, failure to assert error appropriately or to dispute material findings of fact with sustainable rebuttal will result in ultimate failure. As Yoda said on Dagobah one day (in a galaxy far away) “Do. Or do not. To try implies inevitable failure.” Oh what the hey. Maybe he didn’t say it. He should have. It would certainly seem (and sound) more profound emanating from his pie hole. Similarly, if you have no legal or factual leg to stand on, getting the sympathy violin out and trying to evoke tears of compassion from a DRO or a Veterans Law Judge is equally as futile as a halfhearted try at jacking an X-wing fighter out of the soup. Ditto the CAVC or Fed. Circus. If you ain’t got no ammo, it makes for a pretty silent machine gun. Sympathy, as a legal defense, is a dry hole.
We all know the proper recipe- or should by now. I will grant that a majority of the 146 Veterans Service Organizations chartered by Congress might not have received that email yet but it has been disseminated. Granted the 2001 VCAA wasn’t grossly explicit in discussing the minutiae of the Hickson elements but enough Veterans blogs, including this one, have pounded on the drum of requirements to the point of redundancy. That the importance of the requirements still eludes some explains why Congress finally let attorneys and Agents in to help out.
SYMPATHY AS A LEGAL PLOY
Sympathy at the VA is not in short supply. No siree, Bob. Read any denial letter and you’ll see VA is très careful to let you down gently. Boy howdy they sure don’t want you to depart post haste from your mailbox to the VAMC/Veterans “Service Center” or Community Based Outpatient Clinic(CBOC) nearest you and develop a bad case of self-inflicted lead poisoning due to sucking on a .45 calibre lollipop after you receive the ULUZ letter. Sadly, this is increasingly common.
Those Dear John letters now are replete with an upbeat “Thank you for your uncompromising effort to keep America free by your military service. Without you, America would be in a world of shit. While we’re on that subject, we’d like to take the time to point out that your claim is, too. We tried like the devil to make this pig fly but we were simply unable to. The DAV putting lipstick on the pig didn’t improve things. The fact is, John, your evidence just didn’t cut it. Fortunately for you, the law permits us to take another gander at it-but only if and when you refile to reopen it. Our door is always open. Y’all come back now. Hear?” Sympathy and $5.50 will get you a killer cup of coffee at Starducks©. However, it cannot be a substitute for probative evidence and a bulletproof nexus letter/IMO.
I was called in just before Christmas to put out a BVA appeals fire. A gal had lost her husband to a nasty cancer with their claim on the cusp of a decision in D.C. She performed admirably before the VLJ at the Travel Board Hearing considering she was essentially pro se with no magic paper or viable argument. Worse, Glioblastomas are not on the list of CJCW (Camp LeJeune Contaminated Water) diseases. Perhaps you folks don’t know this but representation by a VSO is not considered “legal representation” any more than dressing up as a cop on Halloween makes you one. DAV was busy that day or I suppose they would have trotted out a minder to argue for the Benefit of the Doubt in her defense. Shoot. Maybe they did. I disremember. Oddly, the VLJ in question, her honor Ursula R. Powell, took pity on this woman and gave her some breathing room by deferring the inevitable “No way in Hell”” and asking for an Independent Medical Evaluation (IME). This is one of those rare occasions when the sympathy violin worked like a charm. It bought her enough time to call me and prepare a counterattack. And counterattack we did. Yessssssssssssssss.
As King Canute discovered to his dismay, you cannot hold the tide or justice back from its inevitable course. As promised, that new BVA-requested IME arrived back licketyspit December 26th and was negative. It did not support her and her now-deceased husband’s contentions that his glioblastoma was service connected on a presumptive basis due to all those Camp LeJeune additives they enhanced the water with to help build strong Marines’ bodies twelve different ways. I guess there was no Gomer Pyle surprise there, huh? Calling any VA IMO or IME “independent” is as defective semantically as describing MREs as Meals, Ready to Eat. In the latter instance, it amounts to three lies in one sentence. A VA IMO usually runs to at least two pages.
Fortunately for us, VBA often can’t even communicate to their personnel the proper way to write a nexus letter or IME that passes muster. VA’s first attempt with a lady doctor at the Agency level was a daisy. She used Wikipedia™ for some of her cites. In addition, in violation of Norris, Moody, Roberson and Hodges, she cited only to risk factors regarding Camp LeJeune’s Aqua Vitae and ignored any discussion on direct service connection (a la Combee v. Brown). To add insult to injury, when you get the vapors in the heat of writing an IMO, you might try to avoid referring to vinyl chloride as “polyvinyl chloride”. When that happens it makes you look like an ignorant boob. This is not a sexist comment. In my day, no gender association or demeaning allusion (other than stupidity) attached to the comment. Our parents also called the TV a “boob tube”. Little did they know that misnomer would metastasize into HD boob reality in the present day. In any event, it reduced the credibility and probative value of the “independency” of her IMO. VA likes to employ the term ‘speculative” as in ‘farfetched’ when we do it. It’s satisfying to see the shoe on the other foot.
True to Judge Powell’s word, a Judas VA doctor was standing in the wings awaiting his 34 pieces of silver (COLA increase). In this case it was a doctor named Mohammad Khalil of Oke City fame. He gets $240 K a year for doing this in his spare time in addition to his regular duties as a VA doctor. Now, you’d think anybody such as this famous Amos would have a list of MD², FACS and about sixty other initials after his name to signify he was sooooooome kind of IME Wunderdoc. Negatory. He was so humble he even tried to obscure the fact he was employed by the VA by subtly referring to himself as
“Hematology and Oncology Physician
Medical Service, Oklahoma VAHCS
Clinical Assistant Professor, Univ. of Oklahoma Health Sciences Center”
Sure sounds like humble pie to me except for the rooster crowing at the end. I looked it up on the Google map and it’s hard to discern where the UO Health Sciences Center grounds end and the Ok City VAMC begins. Independent my ass. His nexus was as equally flawed as VA’s first attempt. He plagiarized heavily off the other gal’s original one. He evoked the “rabbit out of the hat” trick of ‘absence of evidence is therefore negative evidence’. It didn’t fly at the Fed Circus in McLendon and I doubt it will here. Simply running on to two or three pages reciting that there is no proof that chemical X causes Cancer Y is not demonstrable proof it never occurs. Worse, failing to even squander a sentence or two on peer-reviewed articles that mention it in passing makes the IME as probative as
tits boobs on a boar hog. I wrote this up in a great blog to get this legalism across back in 2011. Check out Kahana v. Shinseki.
Fortunately for this gal, I have a fairly new resource on my rolodex. I would loosely call it “Dial-a-Nexus”. I pushed the pronto button to Adam and had a killer IMO in my hands in less than two weeks. As most know, there are a few Nexus Letter writers out there who will do this for $6-10,000. I won’t mention any names. You probably know who I’m referring to. Adam’s stable of IMO writers do this for a guaranteed $2 K as fast as you can say Jack Robinson-by legitimate doctors who do have a gazillion letters after the MD². We shall see what transpires. I’ll get back to you with an after action write up on the KHA/WHA.
As the appeal was advanced on the Board’s docket prior to the Veteran’s passing, it will continue that way and be heard soon. Better yet, as it is at the Board, we asked them to nail it down there with a Waiver of Review in the First Instance in order to prevent a War of the IMEs back and forth and a one year remand back to the Regional level. The score is currently two private doctors in favor without any supporting rationale, one IMO from a Wikipaedia Doctor, VA’s rebuttal IME by a proctologist(?) cum oncologist-for-a-day and our newest IMO from our whizbang oncologist. Sometimes the beauty of the Ex Parte form of Justice is that it can be transposed. This is one of those times when we get the last word in edgewise and VA cannot rebut it with another bogus IME that desperately tries to cast aspersions on ours.
Here’s our take on the subject.
Today’s teaching moment was brought to you by the true makers and shakers of VA justice. And that’s all I’m gonna say about that.
P.S. We won on 3/18/2018. https://www.va.gov/vetapp18/files3/1815897.txt