It seems Veterans are assailed from every quarter when they file a claim. Denials in this process are endemic and almost guaranteed the first time out. To add insult to injury, the new “Provisional Rating” procedure espoused as the panacea to sweeping out the thicket of old, mouldy claims and cleaning up is nothing more than a wholesale miscarriage of justice to appease Congress. “We’re trying to comply” is VA’s plaint. Unfortunately “trying” implies ultimate defeat or an untoward outcome.

Now comes Ask Nod with a new concept. Most look at a problem like a coin face up on the pavement. I tend to pick it up and look at the obverse side. I accept nothing VA says at face value. For years I have read of the Presumption of Regularity.  I always conceived of it as having to do with the mail which is where I first encountered it in Rios v. Mansfield. See https://asknod.wordpress.com/2011/09/27/cavc-rios-v-mansfield-2007-presumption-of-regularity/

However, I ran across it again and again in numerous mentions regarding medical procedures, IMOs, indeed, everything that VA did. The “presumption” holds that VA is an altruistic outfit with Veterans’ best interests foremost in their endeavours. If you are drinking coffee (or were) I apologize for the brown liquid that just exited your nose and now populates your screen as you read this.

Rios was the prime example of Presumption of Regularity in the mail as was Woods v. Gober (Woods v. Gober, 14 Vet. App. 214, 220  2000). To go back in the anals of  VA history, look at Ashley v. Derwinski, 2 Vet. App. at 308-09 (1993) for inspiration.

VA is asking for a bye on anything it does judicially because, what the hey, they get to ride on the coattails of  the Presumption clause. With this in mind, a glorious hole appears in the fabric of jurisprudence. Overturning or rebutting findings that result in denials is difficult at the VA. Once they make their pronouncement, it is a fact that becomes incontrovertible. Veterans who attempt a Clear and Unmistakable Error (CUE) defense, discover this to their dismay. It looks good on paper but is never realized in Court. Call it Pay-per-view. You pay $50 to get in front of the CAVC to be struck down.

What would happen if you turned the tables on them and used their Presumptions of Regularity in their ratings procedures against them? This is what I am examining. I find it interesting that this blanket exoneration for mistakes seems to gloss over the wealth of errors that VA regularly commits. Driving a wedge in to disrupt a rating decision is the Holy Grail to a win. It should be easier rather than harder to accomplish in a self-admitted “nonadversarial, Veteran-friendly  environment in which to present our claims”.

If constant mention of this presumption is reiterated over and over throughout an argument and demolished by rebutting it, at some point the presumption becomes a fig leaf for VA intransigence and obfuscation- or worse- perfidy, misfeasance and (gasp) malfeasance.

The inception of the Provisional Rating process is showing us the 78 RPM form of pathetic, sloppy jurisprudence VA was renowned for in its former 33 1/3 rpm versions.  I don’t cast aspersions on all the hard workers down in the trenches at Regional Offices. They are constrained by the M21- 1MR denial Bible. Simply inputting the parameters of a claim into the gigantic maw regurgitates a denial 85% of the time. With the marvelous disconnect employed now, a RVSR can be oblivious to the outcome of a case once it has been uploaded and passes from his hands. This 85% denial phenomenon happens, oddly enough, to all claims. All claims encompasses burial benefits, Dependents Indemnity Compensation (DIC), Dependents Educational Assistance (DEA) ad nauseum. From this, all a statistician can ascertain is that 85% of all claims are either insufficient, fraudulent or otherwise do not meet the stringent requirements of the claims process. So much for non adversarial and Veteran-friendly and so much for an honest, provisional panacea for ridding themselves of pesky two-year-old or more claims.

A veteran down in Texas writes me to ask if I have ever heard of a “ten day letter” He received it June 26th. In it VA says they are preparing to push “print” in ten days and asks if he has anything else to submit. The letter evinces an understanding that, after 600 days,  it is obvious they do not have all the evidence he has submitted with his Notice of Disagreement. The mad scramble ensues to get it there with an intervening National holiday in between. Thank goodness for FEDEX Purple Label. Is this the much-vaunted Presumption of Regularity- i.e. that it is presumed VA will lose or misplace our evidence and thus produce a flawed decision?

Since the famous Caluza decision in 1995, VA has held Veterans to the standard of three items to win a claim. To wit, a disease, condition or risk in service, a current diagnosis, and a medical opinion tying the two together cogently. The presumption of regularity should attach to a VA doctor writing a nexus letter on your behalf. It rarely does. On the other hand, a VA examiner’s bumbling, misogynistic attempt to deny you almost always has flaws or crevasses wide enough to fall into. This, however, passes the Presumption test. Similarly, private letters from genuine medical doctors drawing a clear relationship between the two are regularly rent asunder by an ARNP or PA-C posing as a VA examiner. This becomes comical when they get out onto the little branches that won’t support them. Unfortunately this doesn’t occur for ten or more years until appealed to the CAVC or the Fed. Circuit.  Whereupon the presumption of intelligence is  finally rebutted.

The Presumption of Regularity is said to attach to all manner of VA processes and procedures according to Woods (supra). Would that it were true. Reality is a far harsher taskmaster and you will find no solace in the presumption that VA is going to adjudicate your claim correctly, let alone in a timely manner. The Provisional Ratings procedure is fraught with pitfalls. In their rush to decide, VA makes no effort to ascertain if the facts, as they are known, are before the adjudicator. In fact, they go so far as to clearly insert a codicil that says “We’re adjudicating this on what we have.” They also assure you that by its very provisional nature, you have a year to disagree but if you so choose, you may proceed immediately to GO! and begin the appeal process. As an aside, VA knows full well that if you are on Social Security, they are required to fetch the records. The Presumption of Reality dictates that they won’t until it arrives at the BVA. Whereupon it will be remanded back to the RO for same.

Haste makes waste seems to have been overlooked in the New VA World Order of claims. Wielding the Presumption of Regularity like a club, they demolish anything that stands in the way of the backlog. Utilizing this presumption against them must be  fine-tuned like a musical instrument. It must be constantly referred to as a Holy Writ that is assumed to be infallible. It must also be shown to be nothing more that a hollow, artful phrase devoid of any regularity. Each facet of your Notice of Disagreement NOD) must assail the precept that there is everything but the presumption of regularity. In this manner, you can make a mockery of their presumption by showing nothing could be further from the truth. This creates a record from which to appeal that will not go unnoticed.

Another Vet, Robert, noticed a Cushman violation of his records. Someone had inartfully handwritten a notation on his VAMC VISTA medical record  and it appeared to obfuscate the clear meaning of what the VA doctor was trying to convey on the nexus. Ruh-oh, Rorge. He presented it as a CUE. I guess you all know where the Presumption of Regularity led to on that one. The BVA VLJ’s Presumption was that it was entered as a postscript by the very doctor who wrote it. This begs an explanation as to why he didn’t just put in an addendum on the VISTA records for posterity and to avoid misunderstanding. The silver lining was that the BVA  VLJ”saw the light” and granted his claim to shut him up.

Never assume that the Presumption of Regularity is a guarantee of a 5 years/100,000 mile bumper to bumper warranty of the correctness of a VA claim. Nothing they do will truly have any legitimacy unless, or until, they become a truly independent trier of fact akin to the Administrative Law Judge (ALJ) model employed by the Social Security Administration. Face it. How can you expect the Presumption of Regularity to mean much of anything if the VA Secretary and his henchmen control the Veterans Law Judges’ purse strings? They serve at his whim as do the hirelings below at VA Regional Offices. Offend him and his agenda at your own peril.

Aside from the scatological humor of the phrase, the only Presumption of Regularity at the VA is that if you go against the grain, it is presumed you will not be employed there for long.

Attached here is a magnificent BVA decision that illustrates my point about the Presumption. I love this phrase:

The May 2011 VA medical examination report contains no indication that the VA examiner performed an improper examination

As if the VA examiner was going to preface the C&P exam report with the codicil ” This exam is not to be used for anything probative concerning the claimant. If a real C&P is needed for evidentiary purposes, it will require a do over in order to meet the Presumption of Plausibility.” Just because someone tells you the earth is flat, you are under no obligation to swallow it hook, line and sinker.