Here’s another of those Tiger Moms in later life who take up the pro se broom and head to the Court for a clean sweep. Janette has done her homework. In fact, she worked overtime to get all the T’s crossed and the I’s dotted. No stone was left unturned.

Few realize that an appeal to the Court (and above) is not a new “trial” but a survey of what happened, what didn’t, and why it was right or wrong. The judge (or judges) do not look at new evidence. That is prohibited from being introduced for the most part. There are exceptions to every rule, but rarely is “new” evidence allowed in by either party (you or the VASEC).

The judges have several options to choose from. If the decison of the Board was grossly unjust and horribly flawed, they may reverse and rule in your favor. At that stage, all that’s left to do is send it back to the RO for a rating. They may send it back to the Board (remand) for a new trial because the VLJ erred and failed to consider something. This is, of course, the vacate and remand option. Lastly, they can conclude that small errors were made but that the end result was still basically sound and the Vet was not judicially short-sheeted. This is called affirming the decision. The CAVC has a 10% ( ± 3%) habit of reversal-especially if they get pissed. They have a 50% habit of vacate and remand and 40% habit of affirmation. It is not enough to prove they made a mistake. You have to prove the statutes and regulations were violated enough that it resulted in you being denied justice. The Court doesn’t often get down in the weeds and parse the evidence pro and con if all the judicial canons are observed. In fact, the more closely the BVA hews to the law, the less inclined the Court is to disturb the decision.

A lot of this flies out the window when a pro se appellant arrives at the door. Without implying that women have more sympathy for other women, I observe that the judge in this case is none other than Judge Mary Schoelen, the daughter of a Veteran. She is probably the closest thing we have to a kindred spirit up at Indiana Ave. With the addition of Mesdames Bartley and Pietsch, we hope to see more.

Back to Janette. Her husband Carl died of what could be best described as cryptogenic Hepatitis. In my book it’s always cryptogenic. Anything that sneaks up on you and fellow medical sleuths undetected could be considered little else. Anyone who reads the Court Memorandum with a modicum of intelligence concerning Hepatitis C will find themselves nodding their heads in agreement. Three weeks of “flu-like” symptoms? A fellow soldier with yellow jaundice? They burned his possessions to prevent cross-contamination? A long parade of doctors who surmised it was some form of hepatitis? Helloooooooooooooooooooo?

Nevertheless, the BVA dragged her through the mud, dawdled, went out and spent untold sums of money desperately trying  to prove the opposite. Janette filed for this in March 2003. The RO gave her a steady drum roll of denial for several years. The BVA began the same game and started sending out for nexus letters to refute her long list. This culminated in 2011 with a last one categorically sewing it up in vA’s favor. I always find it amusing what you can buy with 30 pieces of silver. However, I find it pathetic that some down on his luck proctologist would be willing to opine on gastroenterological issues. Doing it to a Veteran simply compounds the crime with interest.

The crux of the Board error is simple. They bought a bogus medical opinion and forgot to a) include it in the Record; and b) didn’t give Janette a copy and sixty days to rebut it. But is it that simple?  April 20th was a Wednesday. June 29th was a Wednesday. Memorial Day was Monday May 2nd. vA is going to have us believe they accomplished this in 48 working days? At the BVA? In 2011? Using their AMC?  Really? Why the backlog then? It’s hard enough to win if they don’t cheat. Veterans are accorded(on paper) some measure of respect in that their lay testimony is considered above reproach and believed-right up until a critical assessment that denigrates it. So, too, was Carl’s and Janette’s. Everything carefully accumulated was thrown out as being hearsay, second-hand, or beyond the capability of a person untrained in the medical arts to opine on. This is the last fig leaf many have in their defense before the vA. That it is regularly laughed at as being inconsequential and biased in hopes of scamming the bucks, lay testimony is a joke for benefit of the doubt arguments. Its one of the first casualties in the adjudication. Get used to it. Janette got the same treatment:

The Board has made a number of errors in its analysis of the veteran’s lay statements. First, the veteran reported that he suffered from flu-like symptoms in service, and then later received multiple diagnoses of cirrhosis secondary to hepatitis. R. at 1972. The appellant essentially argues that the veteran’s in-service complaints constitute a description of symptoms later supported by multiple diagnoses of cirrhosis related to hepatitis. Appellant’s Br. at 4. The Board found that, as a lay person, the veteran is “not competent to offer an opinion on a matter clearly requiring medical expertise, such as establishing an in-service diagnosis based on a service treatment record showing that the [v]eteran was treated for flu-like symptoms.” R. at 21. The Board, however, failed to address the appellant’s argument. It should have discussed whether the veteran’s statement constitutes a description of symptoms supporting a later diagnosis. See Jandreau, supra.

 Next, the veteran stated that when he was in service, “a man in our group was diagnosed as having [h]epatitis.” R. at 1972. The Board found that the veteran was not identifying a contemporaneous medical diagnosis. R. at 22. That appears to be exactly what the veteran is doing.  The Board also found that it is “unclear whether the [v]eteran even heard this diagnosis from the fellow soldier or if such a diagnosis was the subject of rumor or speculation.” Id. The Board’s statement is not a reason to reject the veteran’s lay statements based on competency. The veteran is competent to repeat a medical diagnosis. Jandreau, supra. The Board’s statement is instead a challenge to the probative value of the veteran’s statement, and should have been considered
accordingly. Hughes v. Shinseki 2011

Janette made another big boo-boo. She attempted to introduce new evidence into the Court’s file when she arrived. As I mentioned above, this is a Bozo No-No. Everything in the case must be put on the table before the fat lady sings. Fortunately, because vA stepped on their necktie, she’ll be able to reintroduce this on remand. I doubt we’ll see her up at the Big House on this again. The evidence for completely outweighs that against. Add to that the Board’s die-hard habit of trying to play Dr. Kildare and they now have a lot of egg on their face. I’m sure many Vets deserve to lose. Not all, but some. When the process sweeps up those rightfully entitled to some kind of benefit of the doubt along with the riff raff, the independent observer can only come to one jaded conclusion. Yep. Justice delayed and Justice denied- business as usual.

The Secretary concedes that remand is warranted in this case because the Board failed to comply with 38 C.F.R. § 20.903(a). Secretary’s Br. at 8-9. Pursuant to § 20.903(a) (2012), when the Board receives a medical opinion that it has requested,  it will furnish a copy of the opinion to the appellant . . . . A period of 60 days from  the date the Board furnishes a copy of the opinion will be allowed for response, which may include the submission of relevant evidence or argument. The Secretary notes that the appellant asserted in her Notice of Appeal that she was never provided a copy of the examiner’s report and never given an opportunity to respond. Secretary’s Br. at 2. The Secretary asserts that there is no evidence that the Board ever contacted the appellant as required by § 20.903(a). Id. at 7-9.
The Board stated that the April 2011 medical opinion is “associated with the claims file.” R. at 5. It is not in the record, however, and the Secretary asserts that he reviewed the claims file and that the medical opinion is not included. Secretary’s Br. at 7 n.1. The Board does not discuss § 20.903(a), and it is not clear whether the Board acted in accordance with the regulation. The Court, therefore, agrees with the Secretary that remand is warranted for the Board to address its obligations under § 20.903(a) and to ensure that a copy of the April 2011 medical opinion is inserted into the claims file. Hughes supra

vA would probably have us believe this error was not a due process violation. Maybe a minor oversight with no appreciable consequences but one that would not undermine the integrity of the decision. And then there’s that Dr. Kildare wannabe problem they haven’t managed to shake since they started doing it back in 1961…

Next, in its statement of reasons or bases explaining its decision to assign reduced probative value to Dr. Moore’s statement, the Board stated that the veteran’s “service treatment records do not reflect complaints or findings that are consistent with hepatitis.” R. at 20. Throughout its decision, the Board acknowledges, but does not thoroughly address, the appellant’s argument that the flu-like symptoms recorded in the veteran’s service treatment records may be related to hepatitis. Here, the Board essentially makes the medical determination that the veteran’s flu-like symptoms are not consistent with hepatitis without citing to any proper medical authority.  When the Board reaches a medical determination, it must base its conclusion on “independent medical evidence” rather than “provide [its] own medical judgment in the guise of a Board opinion.” Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991); see also Kahana v. Shinseki, 24 Vet.App. 428, 434 (2011).  Hughes supra

1961 was the year the vA instituted the Board concept of three members. One of these judges wore two hats- one as a Judge and another of an M.D. They were legally allowed to opine on all matters medical. This continued until the VJRA was passed by Congress in 1988. Sadly, the Board is stuck on stupid and continues to make this error twenty three years later. Not just occasionally but again and again- so much so that the Court is getting laryngitis reminding them as here.

Janette will live to argue anew at the Board. She will be allowed to introduce N&M evidence that may support her contentions. The Board has some fancy explaining to do if they hope to sustain this denial up at the Court again. My guess is the Quid Pro Quo game will ensue. Janette will be given some form of recompense within the power of the VASEC. She will go quietly into the night with her DIC and her dignity intact. Will Gunn and the OGC gang  have been weighed and their brand of justice found wanting. Unfortunately life will go on for us and we will be condemned to the same injustices tomorrow, next month, and next year.

It’s always Groundhog Day at the BVA. Colvin violations will be springing up tomorrow morning like dandelions in your front lawn. Everyone can see them. It’s certainly not a secret.  Things rarely change when the appellants give up and go home. The BVA knows this and depends on it. By denying justice unfairly, they test your mettle. When called on it, they relent, apologize as if it were some unique flaw they were unaware of, and would be happy to repair. Welcome to the nonadversarial  vA form of justice.

WE CELEBRATE

GROUNDHOG DAY

EVERY DAY

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