This is one of those rare cases where you can see the CAVC ruling that started this ball rolling back to Dollar Drive for a judicial “adjustment”. We see many decisions headed up the ladder, but rarely see them descend for their remand action, and in this case, a quick “we’re on it, sir!” via VLJ Jacqueline Monroe. At first glance, when brought to my attention, it looked for all the world like a Christmas present from Jackie. Once you read the whole story and realize the 42 year history of this, you suddenly get that gut-wrenching sensation that VA does this-frequently. This isn’t some new technique or recent ploy to make sure we don’t prevail from the get go. It even has the same style of fingerprint on it as mine but was perpetrated in St. Petersburg, not Seattle. It’s really irrelevant. They both operate with the same set of crooked rules-the M-21 Gutenberg that says whatever they say it says.
Richard W. Schoenweiss v. Shinseki, while not a panel precedence, is still a hair raiser. Let’s see just how bad it was. Right out the door, we see the tenor of what is about to come down. Reversal as a judicial tool is rarely wielded. Most times the action is to vacate and remand for a new decision. While this new decision could theoretically go either way, most are in the Vet’s favor. We know this because we don’t see them again. Here, the BVA decision clearly tells us where to find the recent Court decision by it’s date. Enter a few identifiers in the search bar with the date and out pops Schoenweiss.
Mr. Schoenweiss was in the Air Force. While serving from 1966-69, he incurred a little hemorrhoid issue and had a minor operation. He filed for it in September 1969 and was granted a 0% rating for it in December 1970. VA seems to think the backlog in 2012 is a new phenomenon. This 0%er took 15 months in 1970. Doesn’t seem like much has changed, huh?
Fast forward to 1978 and his request for an increase. He stepped on his necktie and forgot to go to the Dog and Pony show. VA obliged him by denying because it is standard procedure. He dissed them and this was their little way of expressing their displeasure with the middle finger up. This took three months and they also said his private medical records didn’t support the hemorrhoid increase. Richard didn’t appeal. Welcome to the club, Richard.
Deja vu began in 1981 with identical results. He contended he was rated for Ulcerative Colitis (UC) and VA said hemorrhoids. Again, he walked away frustrated.
Ditto for his 1986 filing. Once again, VA ignored the fact that his large bowel was rotting and focused entirely on the hemorrhoids. 0% increase and thank you for your service to America, sir.
Finally in April 2005, he reopened his old hemorrhoid claim calling it hemorrhagic proctitis this time. He wasn’t a doctor. He simply parroted what he’d been hearing the doctors say all these years. To him his hemorrhoids had simply gotten worse. He arrived in smart form-wearing a colostomy bag. He had an excellent nexus from his private doctor and nailed it. The VA examiner simply said he “could have had it” in 69 because no one gave him a colonoscopy until 1972. That exam clearly showed the UC in his large intestines. this of course sails right over all the times he tried to claim UC from 1978 to 2005.
You have to almost laugh. Here we see what I just described yesterday in my write up of Squidly’s rating. The man is clearly not healthy and they hand him a whopping 10% and only back to the most recent filing in April 05. No insurance company would ever attempt this. VA does it all the time.
The holidays began and Mr. Schoenweiss filed his NOD explaining what was needed under the tree and in the stocking. He carefully paraphrased the history and explained the earliest date back in 1970 when he filed for all this. With the UC diagnosed in 1972, there was very little the VA could say in their defense, but then, you don’t know these guys.
VA reasoned that the very first mention of UC was in 1986 when he asked for SC for it and an increase in the hemorrhoids. That was easy to see and they granted the 86 date using the rubric of 3.156(c). The other claims before it were “silent” for any complaints of UC and therefore 1986 was the magic moment. Now, most Vets would just shut up and be glad they got a rump settlement. Not so Mr. Schoenweiss. He was adamant that his effective date should be the date of surgery in 1968 and a rating effective from discharge. This will blow you away. He’s pro se on this and he’s no dummy. He’s got AMLEG repping him but they didn’t dream all this up. Without Richard, they’d still be looking for a Form 9 and filing it late.
So, with the BVA refusing to budge, Richard filed the NOA and packed his bags for his future hearing before Judge Moorman. I’m sure VLJ Jackie Monroe was convinced this was wasted paper. Perhaps she’s new and hasn’t had much truck with Court. Even though she has a staff of 12 or so leagle beagles in waiting doing the rough work, she still has to sign the bottom line on the decisions. Perhaps she’ll be more careful next time.
I like CAVC decisions. They use much nicer print and finer vellum paper. BVA decisions always look like they were hammered out on an Olivetti-Underwood typewriter circa 1970. They also are much more concise in their language.
Here’s one of the best parts of CAVC decisions where everyone lays down their cards and we finally get to see why VA acted the way they did. They don’t tell you much in BVA decisions so you continue to wonder what happened even when you get here. My personal theory is the VA doesn’t even begin to get their shit together until they arrive at this point. Post hoc rationalizations are often quickly assembled and run up the flagpole for the first time. Tortured rationalizations never before mentioned suddenly appear here. I refer to the Appellee (VASEC), not the Appellant (Mr. Schoenweiss).
B. The Parties’ Arguments
On appeal, the appellant first argues that his first claim in December 1968 was for stomach pains since the 1968 operation and that VA mistakenly categorized this as a claim for hemorrhoids. Appellant’s (App.) Informal Brief (Br.) at 1-3. The appellant also argues that he submitted a claim for ulcerative colitis in March 1978 and again in November 1981. App. Informal Br. at 2. The appellant next argues that VA failed to assist him by not gathering all available medical records and by providing an inadequate medical examination. App. Informal Br. at 3-4. Moreover, the appellant alleges that VA failed to notify him of a diagnosis of hemorrhagic proctitis following surgery in September 1968 and believes that if this diagnosis had been properly recorded, he would have received more timely medical treatment. App. Informal Br. at 6. Finally, the appellant believes that the Board failed to account for medical evidence in the record, namely the opinions of private physicians. App. Informal Br. at 6.
The Secretary argues first that the appellant has not demonstrated that he filed a claim for entitlement to service connection for ulcerative colitis before July 15, 1986. Secretary’s (Sec’y) Br. at 3-10. Next, with regard to the appellant’s arguments that VA did not satisfy its duty to assist, the Secretary argues that this is not relevant because the effective date would nevertheless be the date on which the appellant filed the claim. Sec’y Br. at 10-11. Finally, the Secretary argues that the appellant is barred from asserting at the Court that an earlier rating decision contains clear and unmistakable error (CUE). Sec’y Br. at 11.
The judge did a long take on all the different aspects of 38 CFR §3.156(c) and concluded this.
In this case, the appellant, a “non-expert, self-represented claimant,” described his claim’s procedural posture inaccurately in his filing, but clearly and expressly indicated an intention to apply for benefits for his ulcerative colitis. Id. at 5. Instead, the RO and the Board construed this submission as a claim for an increased rating for service-connected hemorrhoids. The RO’s interpretation of the appellant’s claim may have been reasonable in the absence of other evidence. However, the record shows that the RO possessed or, at the appellant’s request, had access to records showing that the appellant suffered from ulcerative colitis. Medical records submitted to the RO dated May 30, 1979, revealed that the appellant had been diagnosed as having ulcerative colitis, noting that the appellant’s “[g]eneral physical examination was negative but a sigmoidoscopy reveals the presence of a mucous colitis with small area of ulceration of the descending and sigmoid colon.” R. at 217 (emphasis added). Also, as the Board notes, “[a] report of hospitalization at the Gainesville VA Medical Center (VAMC) from November 1981 reflects that a colonoscopy revealed ulcerative colitis.” R. at 10. Thus, the combination of the appellant’s stated claim and medical records submitted at the time clearly show that the appellant claimed entitlement to service connection for ulcerative colitis in November, which the RO failed to properly adjudicate. Accordingly, the Court will reverse the Board’s decision and direct assignment of an effective date in November 1981.
You will notice in the decision if you read it, that the judge is leaving open an avenue for the BVA judge to fix this properly and grant back to 1970, but he can only rule initially on it and make the VA grant SC back to 81 from 86. Since the issue of who knew what when hasn’t really been adjudicated yet, we have to pack up the cameras and book a hotel closer down near Vermont Ave. NW. That’s the end of this so I’ll leave the actual CAVC decision here:
Due to CAVC’s propensity to assign links on single judge decisions for about 30 minutes, the only way to bring this up every time is thus:
Go to http://search.uscourts.cavc.gov/
Enter 09-0484 in the search bar and hit search
click on download in the upper left for easier viewing
Now we go remanding at Vermont Ave.,VLJ J.E. Monroe presiding. Jackie doesn’t want any part of this tar baby. She quickly does the whole summary of the history of the claim and then blames the RO. I would.
The Court has held that VA has a special obligation to read pro se filings in a liberal manner. See Ingram v. Nicholson, 21 Vet. App. 232, 238 (2007) (stating that VA has a duty to sympathetically read a pro se veteran’s filings to determine whether a claim has been raised). See also Robinson v. Shinseki, 557 F.3d 1355, 1358-59 (Fed. Cir. 2009), citing, e.g., Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). Additionally, consideration should be given to the fact that most veteran-claimants lack medical expertise. Therefore, any claim for benefits should be construed based on the reasonable expectations of the non-expert, self-represented claimant as well as the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In other words, VA should focus on the claimant’s description of history and symptomatology when evaluating the breadth and scope of a claim. See id. at 4-5.
So there’s the excuse. It’s not her fault and she is going to wash this claim right out of her hair. She rightfully goes back to the date of claim (1969) giving Mr. Schoenweiss more benefit of the doubt than I believe I’ve ever seen. She pulls up short of rating him with a specific percentage and Fenderson staging. That is rightfully the domain of the munchkins down at the RO.
Mr. Schoenweiss has no clue what’s next, or maybe he does considering all that he’s been through over the last 42 years. For the uninitiated reader, he is getting ready to play the Fenderson staged ratings game. VA is going to take every bit of evidence in the file and any they can rustle up elsewhere and try to create a fluid rating that will gradually culminate in a 100% disability in 2005. The will use every bit of subterfuge and deceit imaginable to declare that he was only marginally ill since his discharge. The smart money says the hemorrhoids are going to be like Squidly’s Rheumatoid Arthritis and stay at 0%. It was a mistake and they’re going to leave it there. The UC will be paid from 72 only because that’s the first time it’s mentioned in the records. VA will stick with the lowest number they can get away with.
7323 Ulcerative Colitis
Pronounced; resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess–100%
Severe; with numerous attacks a year and malnutrition, the health only fair during remissions—60%
Moderately severe; with frequent exacerbations–30%
Moderate; with infrequent exacerbations–10%
Now, VA may not have had this Diagnostic Code in 1969, so by law they will have to rate by analogy if not. One thing we can bet on is that they will start out with 10% just like Squidly. After another NOD, they will begrudgingly go to 30% and stay there until 2005 and the 100%. Richard will file for reconsiderations about three more times with new and material explanations and even earnings reports from the SSI to establish a higher rating. This will go on for several years until and unless VA just throws the towel in and gives him something substantial.
Even when admonished by the Court and the VLJ, they just cannot bring themselves to give a rating that is commensurate with the degree of illness exhibited by the records and the claimant. This claim is a wonderful example of “Gee, what else could go wrong?” With the VA? Fasten your seatbelt, Kimosabe.
Richard’s 1969 Fenderson-ready rating
Somehow, I doubt we’ll see this in front of Moorman or Monroe again. Rest assured that it will be a long, drawn out Fenderson. These 40 year old ones are always a donnybrook.
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