CAVC–HARVEY v SHULKIN–LIPSTICK ON THE COLLAR


Over the years of my involvement in VA law, I have occasionally (rarely, mind you) heard of Medical Doctor cum Juris Doctorate hired guns. No names here. You all know who you are. In the same vein, I have encountered psychologists who assume the mantle of a psychiatrist in order to make their IMO more probative. That’s mighty thin ice to tread successfully yet some do.

A psychiatrist, as we know, is both a medical doctor in addition to  possessing a PhD in bent brains. In this capacity, he is expertly suited to opine on the probability a given mental disorder (PTSD in the instant case) might induce an organic disorder such as sleep apnea. In any event, absent a medical degree in psychology, his hypothesis would require extensive peer-reviewed psychiatric/medical cites to defend it. Now imagine combining a law dog with an M.D and have him try to repaint the oral as well as the written argument. Ruh-oh, Rorge. This enigma was what Chief  Judge Davis, St. Mary and St. Bartley were  presented with. If you’re defending the client, where is the fine line in Court briefs where you transform yourself from an officer of the Court, segue into Ben Casey attire and don a stethoscope?  That’s a ‘mighty fer stretch’ as Jed Clampett was fond of saying.  Too fer a stretch from what I read. Apparently, now you have to pause, take a surgical time out and announce the change. And, to be sure, you have to do this at the Board of Veterans Appeals level-not when you arrive at the CAVC and maintain a straight face while telling them reasonable minds would infer you just slid sideways from attorney into medical specialist.

Harvey_16-1515

Let’s ignore the absence of any bent brain specialties and just focus on the Leagle Beagle/ Medical Doctor anomaly. I thought all those VLJ guys died and went to Heaven after Colvin v. Derwinski. Apparently a few were reincarnated as VA law dogs. If you intend to pull off this stunt with any aplomb, it now will require a ‘magic moment’ where you, switching from lawyer to doctor, announce it succinctly and clearly. You would almost have had to draw a panel with three excruciating hangovers at the oral to win this one on appeal. Even then, it would additionally require hoodwinking their sober clerks as well.

I have always admired the Court’s exceptional ability to discern post hoc rationalizations by our illustrious Secretary presented for the first time in their Appellee’s Brief. However, it would appear, that talent came around full circle and has bit the appellant on the buttocks and cost them the appeal. This was sad but avoidable and a valuable lesson learned for the very few who inhabit this unique niche. Trying to post hoc it and write it off as immaterial to the crux of the appeal will not avail you. This is Varsity Law. No quarter given.

On December 4, 2014, Mr. Harvey’s representative, Mr. David Anaise, submitted what he categorized as an “appeal brief” to the St. Petersburg RO and asserted that “we appeal the rating decision of April 17, 2013.”  Mr. Anaise is a licensed medical doctor, licensed attorney, and accredited VA representative. The letterhead of this submission stated “David Anaise, MD, JD,” and included an email address for “anaisedavid.office,” and he began the submission by identifying himself as an accredited attorney representing Mr. Harvey “in his claim for VA benefits.” R. at 82.3 The signature block of the submission identified “David Anaise, MD JD Attorney at Law” as the author. 

The next page of Mr. Anaise’s December 2014 submission is entitled “Obstructive Sleep Apnea” and the header stated “Appeal Brief” and “Page 5 of 8.” (emphasis in original). Mr. Anaise commenced this section of the document as follows:

Veteran has been diagnosed with obstructive sleep apnea, treated by CPAP [Continuous Positive Airway Pressure]. The veteran’s sleep apnea is more likely than not secondary to his service-connected MDD/PTSD.

Mr. Anaise at his recent oral briefing to the Court in Harvey v. Shulkin 0n 8/29/2017

Right there in purple, our JD put on the stethoscope in the minds of the Court. He insists, however, it was patently evident to all present he was opining as a doctor (as opposed to a JD) when he espoused this epiphany. The Court intuited it as an Independent Medical Opinion (IMO) written, not by a doctor, but by his alter ego the law dog. That post hoc rationalization gig must really pull their chain because they weren’t buying any part of it. No way, doggies.

Without a doubt, no one in the VA legal community wishes any VA attorney ill will, least of all me. I merely report and you decide. To me, it’s a wonderful teaching moment on boundaries. Arguendo, how many of you have multiple degrees of this magnitude who can opine one way and the other? To my knowledge, only one other practices VA law with a medical degree. There’s a fine line in this business when assuming the mantle of respectability in any given field – be it legal or medical. Equally important now is the clear instruction on separation of powers. According to St. Meg et al., one has to henceforth make a very clear distinction when doffing one mantle (JD) and donning the latter (MD). Here, the ROA put the lipstick on the collar and told a tale on him. That’s called pushing the judicial envelope. That’s also a Bozo No-No at 625 Native Americana Ave. NW.

And that’s all I’m going to say about that.

No Bozos

 

About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, KP Veterans, Lawyering Up, Medical News, NOVA Attorneys, Tips and Tricks, Veterans Law and tagged , , , , , , , , , , , , , . Bookmark the permalink.

6 Responses to CAVC–HARVEY v SHULKIN–LIPSTICK ON THE COLLAR

  1. Ray says:

    I still haven’t got my claim settled. Hired a Law Dog and I day I got a phone call from the MD about my Hep-C and sleep disorder. 10 min of Q&A and done. Next day I get a call from bent brain doc. Don’t know if he was a psychiatrist or psycholigist….(sp) it’s now been 4 years and just got in to the BVA. About ready to throw in the towel

    • Gary Butler says:

      DO NOT give up, as Sir NOD points out in his book only 22% are approved at the BVA, however 60% are either overturned for a win or remanded at CAVC. As pointed out in this post the Court can be acerbic to ill-prepared lawyers. You posted here so I assume you read “Veterans Administration Claims” by ASKNOD and are taking an active part in your claim. I’d have some one review your claim after you take a look at pages 85/86 about new evidence de novo adjudication, assuming your 90 notice has not expired. I will end where I began don’t give up!

      • asknod says:

        Gary, please refrain from calling me “Sir” NOD. I have never, and do not anticipate, being honored by the Queen of England for anything nor was I an Officer. I’m just plain old Alex or Buckwheat if you insist. Hell, I don’t even have a Juris Doctorate which makes me slightly higher than whaleshit at the bottom of the legal ocean. What I do have is permission to practice before the CAVC and the VA which is like fishing with M-26 DuPont Spinners in a bucket. I guess my technical position would be “nonattorney practitioner”-slightly higher than my current “VA Agent” now. Nevertheless, it’s a valid hunting license.

        • Gary Butler says:

          I will acquiesce, however, there are reasons other than the queen or obtaining the rank of “O-sir-fer to confer the moniker of sir. Your book and assistance prior to becoming VA Agent leading to a successful appeal deserves some respect. In the alternative at our age we both are called sir all the time anyway…

  2. Gary Butler says:

    I guess I should add: who among us have not been out over our skis at one time or another?

  3. Gary Butler says:

    A few months ago I bought the gentleman’s book (co-authored) “Medical Evidence In Veterans’ Disability Rating and enjoyed it greatly! I highly recommend it to all…

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