TAKE YOUR PROTEIN PILL

AND PUT YOUR HELMET ON

The National Organization of Veterans Advocates et al versus Secretary of Veterans Affairs was issued yesterday. It went up on the rocks just as the Costa Concordia last week . I don’t think its a case of NOVA failing to present it well, either. There’s more at work here and I believe its politically driven.

The new regulation, or revision of the old one, was to 38 CFR § 3.304(f)(3). It all sounded so good on paper when first proposed. From now on, PTSD stressor requirements would be relaxed and it would be easier to prove one. Delving further into the proposed changes was like looking at the inner workings of Obamacare. The difference was that opponents were voicing concerns before it was passed rather than after.  One onerous proposal of paramount importance was the new requirement that all these PTSD determinations would henceforth be conducted by the VA! That would be the same VA that is hopelessly years behind in every department, be it medical or benefits related.

After much commentary, conjecture and consternation, the VA elected to leave the new regulation as proposed and ignored the pleas of interested parties such as the plethora who joined this action. VA decided not to extend the rule to encompass private psychologists and psychiatrists because PTSD diagnoses are “particularly complex”. These same soothsayers would be required to adduce further by reading chicken entrails to divine the “forensic” determination as to whether the Vet actually had PTSD as measured by the claimed stressor. No more searching for a stressor and providing the “aha!” moment. No siree. Doctors would now determine this and then employ Ouija board techniques to confirm their findings.

One of the bedrock principles of our claims process where combat Vets are concerned, has always revolved around 38 USC § 1154(b) which gives great credence to lay testimony by same. If the testimony isn’t inherently incredible and is not rebutted by evidence, then it is considered admissible without further ado.  It appears that statute is headed for the burnpile.

VA claims they have enlightened reasoning for this rules change. Please keep your rude outbursts to yourself until I’m finished. Low, guttural laughter will be permitted unless it distracts. VA contends that their personnel are better suited to this endeavour because:

1) VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process.

2) VA reviews the quality of its practitioners’ examinations, including taking steps to address identifiable problems with feedback and training.

3) VA provides VA associated practitioners with the veterans’ claims folders in connection with all mental-disorder examinations, including PTSD examinations

4)  VA noted that limiting the rule to VA associated practitioners would “ensure standardization and consistency.”

The above reasons were followed up with this paraphrased statement-presumably delivered with a straight face:

The consistency would be a product of both the large number of PTSD examinations performed by VA practitioners and the review of those examinations by the
VA. Because the VA does not control the quality of private practitioners’ examinations, it could not ensure, manage, or develop the same level of quality and consistency. For these reasons, the VA opted to leave the rule as proposed.

Without delving an inch deeper into this, let’s survey what we already know. A certification process? Isn’t that what doctors go through for 8+ years? Are we to assume VA is now going to hire the “best of the best” for McDonalds wages? At present, we are already subject to the Doogie Howser syndrome.  I might point out as an aside that they better plan on hiring a shit ton of new doctors (which they can ill afford) because, by  commandeering this responsibility, they are going to create lines right out the front door like your worst Day-after-Thanksgiving sales nightmare. As for guidance materials, I have a suspicion it will be a thesaurus for all the synonyms  of “less likely than more likely” or “not as least as likely as not”. VA denials were always a semantic art form. I can’t wait to see the new ones enhanced by “guidance materials”.

The second reason reeks of Human Resources and gobbledygook to make the enumerated reasons look more impressive and protective of Vets. “Address problems of feedback and training”? When has there ever been feedback? X rays of my back in 1990 for a claim showed the inexorable march of the onset of Crohns disease. VA “feedback” failed to alert me to this. Perhaps the new training regimen and the feedback loop will remedy this shortcoming. I rightfully assign this the $600 toilet seat award. If VA has the correct equipment and tools, they can better perform the task. Naturally, only they have the insight as to what this might be to the utter exclusion of us untermenschen.

Item three was vociferously objected to by all parties to this because Vets have access to their C-files, and thus their SMRs. Implying that only VA can access these “highly probative” documents and come to reasoned conclusions insults Veterans and their treating physicians alike. Talk about the proverbial bitchslap. Of all the reasons enumerated, this was the weakest in my mind.

VA saves the most damaging (for Vets) theory for their arrogation of the nexus for last. Think about this for a moment.  Do any of you think that bringing this process under one umbrella at the VA will  “ensure standardization and consistency”? Apropos standardization, I would say there will be a standardized denial process consistently to the detriment of the Veteran. Parsed another way, I’d say PTSD, as a mental disorder, will soon become the least diagnosed mental defect to come out of the Afghan Olympics.

Remember the phrase that those who forget history are doomed to relive it?  Are we that far removed from the Vietnam “misunderstanding” that consumed 58K+ of my brothers and sisters?  For those with short brains stems, look back and recall the “See no PTSD, Hear no PTSD and Speak no PTSD.” that followed. How many of us came home with bent brain syndrome? What was the diagnosis? I venture I could find 10,000 of you in 10 minutes with a diagnosis of a “personality disorder”  who never attained SC for your inability to adjust to the World when you came back. Regrettably, I have to count myself as one, too.

What I take away from this is something far more sinister than most of you will. By usurping the right to diagnose this particular form of illness, the VA has the camel’s nose under the tent. How long, pray tell, will it be before the VA proposes the next sweeping rules change that will bring the WHOLE nexus process into the VA? Certainly,  if we can’t trust private doctors to be prudent, impartial and make cogent, informed decisions as to the etiology of something as complex as brainf*ck, how on earth can we entrust them to inveigh on complicated subjects like TBI, HCV and back injuries to name just a few?

The slippery slope of the VA ratings process is on display here. As for a fair and balanced rendering of SC, we have never been witness to it. Now it appears we are going to be further disenfranchised with the rubber stamp of the Federal Circuit. If this stands you can mark my words. Within a decade you will see the nexus letter, first envisioned in Caluza v. Brown, become a hollow holding devoid of meaning.  Allowing the VA fox into the realm of the doctor’s nexus henhouse will be the beginning of the end of what many currently construe as a veteran friendly environment where benefit of the doubt resides in the Veteran’s pocket.

Many may recall the gradual erosion of our right to disturb an otherwise final decision via the CUE path. Following Akins and Bentley, the Court agreed with VASEC in the en banc Russell holding. Hard on its heels were Fugo and Caffrey. Caffrey is unarguably the most egregious holding for Vets in our lifetime. To commit grave procedural due process by failure in the duty to assist is unconscionable. To then say an ensuing record is “incomplete rather than incorrect” but nevertheless legal is the worst form of chicanery ever foisted on us.

Hayre and Cook both tried to rectify this injustice, but the Courts continually come down in favor of VASEC and the Government. How can that be in this wonderful judicial environment we have been blessed with?  Can it be with the War(s) winding down in Southwest Asia that we will be relegated to the back of the bus yet again? By controlling who dispenses the diagnoses, we will soon see a marked drop in mental ratings. That will soon be followed by decreases in virtually any and all ratings until VA has accomplished what no other agency in D.C. ever has. I speak, of course, of the legendary balanced budget with adequate funding for all- well, all except  disabled Vets.

Soon, the rationale will evolve that if not for the stupidity and inattentiveness of Vets, they would never hit the IEDs and provoke these injuries.  Therefore, any injuries sustained are not intrinsically the fault of the Government. What these chowderheads fail to realize is that they will be robbing Peter to pay Paul. Follow the  vacuum cleaner cord to the electrical outlet- SSD, n’est pas?

Post Script

Looking further afield, I noted Nieves-Rodrigez v. Peake (2008) for the proposition that  Veterans need not show that a doctor has reviewed the medical records for the nexus to be probative. I subsequently stumbled across  Gardin v, Shinseki  2010 which is recent Federal Circuit precedence.  Proposing these new rules in the Federal Register is all well and fine, but any regulation promulgated by the VA Secretary still has to pass muster vis a vis 38 USC. Any regulation in direct conflict with this cannot stand absent Congressional action to revise the controlling Statute. Which brings us to 38 USC §5125…

Acceptance of reports of private physician examinations

For purposes of establishing any claim for benefits under chapter 11 or 15 of this title, a report of a medical examination administered by a private physician that is provided by a claimant in support of a claim for benefits under that chapter may be accepted without a requirement for confirmation by an examination by a physician employed by the Veterans Health Administration if the report is sufficiently complete to be adequate for the purpose of adjudicating such claim.

Old growth trees are going to take another hit from this. The amount of pulp needed to straighten the argument out and restore §5125, not to mention 38 CFR § 3.159(a)(1), to their rightful place in the scheme of jurisprudence will be stupendous. It makes no sense to allow an Agency to arbitrarily change law with no supporting statute by default or inaction. By not contesting the proposed changes in the Federal Register,  Congress allows them to become law. While we accept that Congress is dysfunctional and the two houses are at each others’ throats, allowing this to transpire either through disagreement or inaction is unconscionable. Irrespective of  tree populations, this flies in the face of  the law. The creation of a regulation unsupported by the statute it is predicated on cannot stand for long, so why try? We have heard Federal Circuit Judges opine that Congress would never have enacted legislation that produces such absurd results. To my dismay, they have yet to announce a holding on how absurd Congress has become.