Last summer, I had a lot of irons in the fire. Funerals to attend and briefs to prepare for fifty year-old §3.156(c) claims. One thing I regret is when I cannot write for the blog as in days of old. The timeworn image of a one-legged man in an asskicking contest is the first to bloom in a male’s mind. Being happily married, I won’t offer conjecture about what the fairer sex (all 46 of them at last count) might conjure up as an image. Suffice it to say, it was a terribly busy time in my life. Thus, with great remorse, I wish to apologize for not writing this one up to digest over Brie (Ex. sharp Vermont cheddar for men) and a Brewski ( pinot noir for women).
At the recent NOVA conferences in Scottsdale, I had been assigned to a Friday lunch at Robert Chisholm’s table. I wanted to thank him once again for the wealth of legal precedence on higher SMC he has left in the BVA decisions search site. He turned me loose on it down in San Antonio at the Spring 2016 NOVA when he mentioned getting SMC L twice for two totally different disease processes was actually simple. I think he used the term ” SMC is the art of the possible. So little of it has ever been held up to the light.”
Anyway, he had a death in the family and was unable to attend. Thus, I ended up at Mr. James Ridgeway’s table instead. Funny thing. When I was a youngster of about 13-14, my dad was stationed at Langley AFB in Hampton Virginia. When he held cocktail parties, he invited all the fighter pilots. I was drafted to take orders and deliver the drinks from the kitchen being made by our aides. A Major ( or LtCol) Ridgeway attended and I recall being introduced vaguely. Mostly, the name stuck in my mind. Well, that and he was tall for a fighter pilot. It’s a bitch trying to cram yourself into an F-4 or a Thud if you’re 6’4/245. You have to sort of fold up like a Swiss Arm knife and your helmet is still scraping the plexiglas overhead.
So, the first thing Mr. Ridgeway asked me was with my heavy blog emphasis on all things Hepatitis C, why it was that I was remiss in writing up Andrews v. McDonough CAVC # 19-0352 Decided June 22, 2021. Well, truth be told, I had no excuse and said as much in my apology. Today I correct that error. After downloading it, I understand Mr. Ridgeway’s dissatisfaction. He was first chair on this with Glenn Bergmann of Bergmann and Moore on the brief. As such, it’s his opus dei at the CAVC working on the side of Veterans rather than the obverse. By that, I do not mean to imply he was adversarial or “anti-Veteran ” as I have seen some VLJs. The BVA, by and large, has a far more openminded view of Veterans’ justice than their counterparts below at the AOJ. That’s why they call them the Triers of Fact. Nevertheless, staff attorneys develop an appeal. The VLJ is handed a fait accompli for the most part and concurs or send it back to be repaired.
Anyway, Mr. Ridgeway now not only advocates for Veterans but proves he’s extremely adept at the business. Andrews, to me, just redefines Gilbert v. Derwinski in 2022 terms rather than 1991 terms. Additionally, it puts an exclamation mark after §3.304 because of the infernal new AMA method of sending you out for another c&p even after you’ve submitted a dynamite IMO from a subject matter expert MD. To add insult to injury, some c&ps come back from Nurseynurse Jane who holds an RN degree and often denies what an MD opines on. This used to be a fair process in the Legacy arena. Now it’s nothing more than a pissing contest with the VA’s ARNP prevailing over board-certified experts 30 years her senior. Idiots’ delight.
Andrews focuses on the benefit of the doubt with a side of CUE semantics stirred in:
“Per Mr. Andrews, this is the most natural reading of 38 U.S.C. § 7261(b)(1), which expressly incorporates the “benefit of the doubt” (or “approximate balance”) standard into the Court’s scope of review, instructing us to “take due account of the Secretary’s application of section 5107(b).” Thus, he contends that reversal is appropriate because the “only permissible view of the evidence is that it weighs in favor of granting the claim regardless of whether it is possible to decide which of the three in-service risk factors”—dental work, inoculations, or STD—”was the cause of the infection.”
The bolded portion above illustrates the new VA technique of the poor clinician overwhelmed with the possibility that multiple etiologies could be the culprit and thus, it would be too speculative to figure out which was the causative factor. This ignores that any one is viable rather than having to pick more than one.
Mr. Andrews would have won this on remand had the Secretary had his way and obtained a new IMO/ IME from QTC. Coming down with the clap in service was and is not willful misconduct under §3.301. I’ve won many Hep C claims on that facet alone. The problem VA thought they could get away with was that Mr. Andrews didn’t have an official IMO written by a medical specialist. It’s long been known that citing to Wikipedia articles or almost anything else on the internet is about a useful as nursing utensils on boar hogs when attempting to win your claim. The gold standard has, and always will be, obtaining the magic paper. However, in Mr. Andrew’s case, he had a pretty tall pile of paper and all of it was sound medical theory.
From past experience, we know he would have, in the normal course of events, been given a VA c&p and then granted SC for the hep but the date would be this year not the date of claim. They’d just pull the ages-old trick of pointing out he didn’t have an ‘official’ finding of fact made by their ARPN until now which unfortunately precludes an earlier effective date. Par for the course.
Tucker v. West, 11 Vet.App. 369, 374 (1998) is considered the yardstick on whether to reverse or set aside and remand to determine the truth. Here, the Court (and Toth of all Judges) appear to jointly concur in this opinion. That’s a good thing. I think they need to reverse more frequently-a lot more frequently. §3.304 needs to be dusted off and placed front and center when VA attempts to conduct just one more c&p when the evidence is 5 miles past equipoise. The Court should call them out and ask what (or why) in Sam Hill they are wasting the taxpayer’s bucks on these unguided ARPN denial safaris.
Andrews doesn’t break any new ice for Veterans but it at least points out the inequity of endless c&ps and permitting one more stab at a denial when the evidence is overwhelmingly in the Veteran’s favor. Ask yourself at what point a VA examiner should be held to the crime of misfeasance for continuing to bring out fresh horses and new rope to hang Veterans with. Think back on the Leroy MacKlem fiasco for relevance here.
The M 21 undergoes 135 changes in a slow year-more in a rapidly changing precedential year. Any document that flawed on its face should undergo a intense review to rid it of the inherent adversarial nature it is imbued with. Yeah, right. I hear VA pukes who are quick to say “Show us the adversarial language.” I’ll concede it isn’t in the language so much as in the application of the manual. If 88% lose the first time out and later win, it’s flawed. If 22% more prevail at the BVA, it’s flawed. And by God if 74% are overturned at the Court as defective and returned for readjudication, then somebody is screwing the pooch.
Lady Justice wears a blindfold everywhere but the VA in my myopic estimation. But then I’ve only been a bystander for 33 years. What do I know? Shooo doggies. I don’t even have a JD.
P.S. This is a good one. Looks like something I’d do…