Today marks the first time I’ve woken up to a yellowish, smoky overcast with no sun since Vietnam. It finally made an anemic showing this PM. The only thing missing was the oily petroleum-like aroma of burnt nape, CS and some cordite. Of more import this morning was discovering the wholesale evisceration of the English language and the ‘woke’ reinvention of timeworn analogies while I slept.
ox·y·mo·ron /ˌäksəˈmôrˌän/ n. A moron wasting valuable oxygen to make a vapid argument he can’t possibly substantiate?
No shit. I read a comment made by someone that concluded with ” God. What an oxymoron. He doesn’t even know what he’s talking about..” Hmmm. I never thought about using oxy as an intensifier…
And the analogy that raped my eyeballs…
He treated me like a piece of cattle.
Singular? Plural? No. I won’t go there.
But I digress from my title. I almost always defer to Cupcake on who we accept as clients. We have a coffee klatch every morning with Widget, Pickles and my wingman/parrot (Buddy) and make these life-changing decisions together. She’d probably invite the horses in, too if she thought the floor could support their weight. After much discussion, she informs us (dogs, parrot et moi) why one particular case is more deserving of our efforts than another. As I/we fund most all of our independent medical opinions out of our own pocket, this can be a mighty weighty decision if it is unwinnable. I have observed, over the years, the proclivity of some litigators to cherry pick their claims to fight based on how much they stand to gain. I suspect that extends to the claim’s viability and whether it can be substantiated. I have never been forced to make that unpleasant choice to date. The metric is more often one of who’s going to die the soonest. I’ll admit repping Steve for Hep C with self-admitted cocaine use was the longest shot yet but MST with nothing to ante with was going to be a challenge. Or was it?
I enjoy working with my local neighbors and shirttail relatives for many reasons. I like to take a man’s (or woman’s) measure of personality face to face. Obviously that isn’t possible in all cases but I find it a valuable tool to gauge the intensity of his/her mettle- the Veteran’s speech and mannerisms foremost. These affectations often speak volumes about the person. And then along comes Mary (not her real name).
Mary lives near us (20 miles as the F-15 flies) and, like a lot of you, needed help. As most know, Bent Brain claims are my least- favorite venue. By extension, PTSD with a side of Major Sexual Trauma (MST) is also emotionally difficult for me as a male to discuss with a female Veteran. I’m learning. I find any man who would abuse a lady to be somewhere lower than whale shit and it’s pretty hard to get any lower than the bottom of the ocean.
Mary has been through the mental wringer on this. She was drugged and gang-raped shortly after AIT in the summer of 1986 following arrival at her new duty assignment in Germany. Like many, she was embarrassed to be so naively taken in by a fellow soldier she trusted. She didn’t report it and let it slide. Two missed periods later, she was still in denial about it but did report to Sick Call. She opted to have the baby after she discovered she was preggers. If I were a psychiatrist, my hair would already be standing on end thinking about the downstream consequences of all this decades later. Well, perhaps everyone but a VA psych.
Finally, thirty one years later in 2017, Mary found me via Cupcake and we decided to file for it with the newer, relaxed requirements in §3.304(f)(5) and that missing IMO.
(f) Posttraumatic stress disorder. Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. The following provisions apply to claims for service connection of posttraumatic stress disorder diagnosed during service or based on the specified type of claimed stressor:
(5) If a posttraumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran‘s service records may corroborate the veteran‘s account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a posttraumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran‘s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
So, with that in mind, after listening to Mary’s spiel, we (Cupcake) decided we had to take this claim regardless of the outcome. In retrospect, the dogs, parrot and I all agreed. It will always be the right thing to do regardless of the outcome. Win or Die. Mind you, this was before I even got access to her VBMS efile. After reading it, Mary’s predicament merely resembled all of the others I’ve ever done. The absence of an IMO was the primary defect. However, VA had previously strongly discounted the pregnancy test as any kind of MST “marker”. Baaaaaaaad idea.
§3.304(f)(5) is explicit. It’s a nonexclusive list of possible markers but the mere presence of a pregnancy test gives the claim the cachet of truth. You can’t climb into the old DeLorean with one of them ginormous flux capacitors, set the time for Fall 1986 and go back to insert the pregnancy test on November 4th. This is what gives a claim legs. VA can pop smoke and obscure the claim with the old boilerplate lack of diagnosis of MST but they cannot ignore or recharacterize the demise of that rabbit. That’s what will win this case.
Right. I went out and obtained a killer IMO from a noted Psychologist who specializes in bent brains. Here’s where the claim went sideways. The 2017 denial discussed the pregnancy test in brief detail and discounted it because Mary said the Sick Call on November 4th was for diarrhea and stomach upset related to her “as-yet undisclosed pregnancy”. Ah how soon we forget Layno v. Brown and Clemons v Shinseki and the holding that a Veteran cannot diagnose themselves with complex medical issues- most especially mental ones. You can see this denial disintegrating before your eyes on appeal.
I didn’t feel I needed to point bright red arrows at the STR showing the dead rabbit and VA studiously avoided any mention in this newest rating. Poof. There went any discussion of a positive finding of an MST stressor. Most of you might not know it legally, but VA is not permitted to go on a safari and search for negative evidence with which to deny your claim. The whole proposition about the much vaunted Benefit of the Doubt in §3.102 is inviolate. Once the evidence is in equipoise, the claim is granted. Moreover, if you present a proper IMO to rebut a prior denial, it puts the claim in equipoise assuming the IMO doesn’t involve alien abduction and the implantation of an alien embryo.
§3.304(c) is also implicated. Remember our old friend Mr. Caluza whose CAVC decision revealed the three magic beans needed to grow the claim beanstalk? In the instant case here, you need a stressor in service precipitating the bent brain and some evidence it happened; the mental condition now, and; medical diagnosis tying the two together which rebuts the VA’s examiner.
§3.304(c) Development. The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination. In initially rating disability of record at the time of discharge, the records of the service department, including the reports of examination at enlistment and the clinical records during service, will ordinarily suffice. Rating of combat injuries or other conditions which obviously had their inception in service may be accomplished pending receipt of copy of the examination at enlistment and all other service records.
In 2017, Mary had presented with a recognized stressor of a pregnancy test relatively recently after the alleged rape stressor. The missing link was a diagnosis of PTSD/MST. This we provided in our most recent VAF 20-0995 supplemental filing with our IMO. Essentially, at this point, VA would be forced to concede service connection. The next step would have been to send it out for a ratings percentage c&p. VA decided to send her out for an entirely new c&p to “redecide” whether she had PTSD. This is forbidden at 56 regional offices scattered across our fruited plains. The concept was first addressed in Mariano v Principi and then pounded home even more forcefully in Kahana v Shinseki.
Undoubtedly, further medical inquiry can be undertaken with a view towards further developing the claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the sole purpose was to obtain evidence against an appellant’s claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). See also Kahana v. Shinseki, 24 Vet. App. 428 (2011); McLendon v. Nicholson, 20 Vet.App. 79, 85 (2006) (In any event, the lack of medical evidence in service does not constitute substantive negative evidence).
During this Kung Flu season, we have been treated to some of the most horrendous miscarriages of VA justice conceivable. Imagine, if you will, an optometrist overruling a ophthalmologist with surgical credentials. Imagine denying HCV with cirrhosis because you didn’t manifest the cirrhosis within one year of separation under §3.309(a). I could go on but the dye is cast on the water. Telecommuting for VA raters is going to create an indigestible lump in the BVA python for years to come.
Here’s the 2017 rating denial. redact Mary 10-2017
Now, here’s the new denial. redact 8-31-2020 RD
Amazing. Evaporation of evidence favorable to the Veteran under the new AMA is only mentioned at the end. Poof. Benefit of the Doubt? We don’t need no stinkin’ benefit of the doubt to deny.
Last but not least, and on another subject entirely, I mention this in passing. There has been much said in the news that we need to service connect the troops on Anderson AFB (Guam), larger swaths of the Korean DMZ and Okinawa in the presumptive for herbicides. Nowhere to be found in these discussions is there any mention of granting this presumption to the brave men and women who served with me in Thailand and points north. The VA currently grants exposure in Thailand to military policemen with appropriate MOS/AFSC who served on the perimeter unless you can prove you, too, served on this magic strip of infested land. Obviously, these VA poohbahs are unaware that we all had to do 30 days of “Augmentation Duty” in full battle rattle. There weren’t enough MPs to cover the perimeter.
This is insane on another level as well. Udorn RTAFB, like all the other bases we were assigned to, is a representative example of the size of a base over there. The main concern was to appropriate enough land for a 10,000 ft. runway and revetments for the fighters. Space above and beyond that was minimal. Your hootch was often within 50 feet of the perimeter. VA has conceded “tactical herbicides” were used and grants SC for this but you still need the magic IMO. This concession is far more than what they’ll even concede on Anderson or Okinawa but if you still need an IMO, then it isn’t a presumptive grant. I’ve won two for two on this subject and both required an IMO -or the threat of obtaining one- to obtain the concession of exposure. With the grant to the Blue Water Navy folks, it would seem all the more obvious that this presumptive herbicide exposure granted to all these folks should extend without restrictions to MOS for all of us-period. This is insane- not to mention illogical and grossly unfair. But then, when did VA ever use logic to decide anything?
I have my work cut out for me on Mary. Sadly, it will require a trip to the BVA to argue this on direct review. I do hope that jackwagon GS -11 had the time of his life writing Mary’s denial. He’ll be in good company with the rest of the GS-14s in the third ring of Hell some day. And don’t even go there on an HLR. I was schooled early-on to relieve myself downwind rather than up. I wouldn’t even trust an HLR rater to recognize the import of Mariano/ Kahana on this matter-let alone the illegality of fetching endless c&ps to keep denying the claim. As for the M 21 cites? They’re immaterial when argued at the BVA. As to whether you can provide your own IMO for a psychiatric condition to rebut a VA examiner’s-why, of course you can. What have they been smoking whilst telecommuting? Mantanuska Funderthuck?
Here’s why getting old is fun
And the inevitable blonde joke.
And Karma (or lack thereof)