Veterans Claims Help

Here’s another one of those cases where you hear the term and wonder who or what it refers to and what it means where you are concerned. Before I start, look at the claim structure VA employs. There are new (original) claims never presented before, reopening an old claim, claims for increase of an existing SC disease or injury and lastly a collateral attack on a prior final decision based on clear and unmistakable error. VA does not consider a claim for dependency to be different from a claim for increase. 

     At the Regional Office (RO or VARO) level in your state, the process begins and here is where most claims seem to suffer from what at best can be politely described as misinterpretation. This is what happened to Mr. Joseph A. Fenderson. He was “represented” by the American Legion. They are normally a stand up outfit with the same spotty record as most VSOs. Unfamiliarity with the law is the reason for all VSOs’ ineffectiveness. They mean well, but that says it all. Murphy’s first law says no good deed goes unpunished. All VSOs aspire to greatness and a good result for their clients but the absence of any legal training leaves them in an awkward posture when it is needed. I digress and apologize.

     Mr. Fenderson was actively engaged in his claims process while still being represented by AmLeg. This can and does cause confusion as to who is driving the car. This confusion caused Mr. Fenderson to miss filing for some issues he wished to appeal (varicose veins). That’s unfortunate but when you have this haphazard representation and start doing things yourself, you can guarantee things will go haywire.

     The VA got terribly confused on this, too. They tried to interpret it with their Ouija Board and tea leaf readers. They came to the conclusion that old Joe was simply asking for an increase on claims that they had only recently granted when what he was asking for was an increase on the initial ratings. There is a distinct difference. An example is in order. You file for a hangnail and VA grants you 0%. You file your NOD and ask for 10% but they refuse. Finally on appeal five years later, you win and get the 10% you were fighting for. However, in the interim your hangnail became ingrown, infected and they had to hacksaw your finger off. You deserve more-you want more. You have to go back to the RO for that and you lose. Back to the BVA for more and finally you arrive 5 years later at the Court. Let’s say by now the finger beside it got infected and they amputated that too?  You would be entitled to more and it would have to commence on the day the hangnail first started, not the day you got around to filing for it as an increase of the original claim.

     The VA has an odd habit of examining correspondence you send in through binoculars backwards. This causes problems. They have a whole section devoted to trying to understand just exactly what it is you meant to say or claim. Because they want to make sure you get what’s coming to you, they will perform what is known as prognostication. You will read it later when the appeal says “it appeared the Veteran was filing for…” or “VA interpreted this to be a claim for.. .” My personal favorite is “It was construed to be…”. God, are we all that illiterate and word challenged?

     Joe had only recently been service connected for varicose veins, plantar fasciitis, migraine headaches and problems after testicular surgery. Naturally when he sent in the disagreement with the ratings they assigned, this enlightened group of prognosticators ignored his file and “construed”   it be a NEW claim for increase. And off they went on their merry way. You cannot get the VA to put the horses back in the barn when this happens. You have to go to appeal to straighten it out which buys time for the VA to come up with an excuse for screwing it up. Oddly, nobody gets a nasty letter in their personnel file for these inadvertent slip ups.

     Joe had to go all the way to the Court to unravel this one. The big boys had no problem dissecting this and agreed with him on almost all of it except for his verbally challenged attempt on the varicose veins. For that he had to go back and start a new increase claim. What they also did is what will give Mr. Fenderson his name in lights for years to come. AB v. Brown (1993) held that a Veteran is seeking the maximum benefit available to him when he files a claim. He shouldn’t have to beg again and again for morsels from the VA’s table. VA should give him that to which he is entitled when he is entitled rather than piecemeal. I guess the M-21 manual hasn’t been updated with that provision yet. It certainly wasn’t in there in 1999.  

     The Court decided that a rating is flexible and if, during the course of your appeal, the injury or disease gets worse (or better), then the rating percentage must follow that development. This principle is called a staged rating or a Fenderson rating. This is a very important distinction. If you win and do not disagree with what they hand out, you agree that it is correct. If you come back several years later and say “Hold the phone! I should have been given 20% back then. You screwed me.”, you are too late. The time to disagree is when the rating is granted. You can file a NOD as Joe did to accomplish this as long as it is done in the traditional one year grace period for objecting. Just make sure that you use single syllable words and make it crystal clear what it is you are trying to “construe”.

     In 1994 I filed for “PCT as a residual of Hepatitis or as a residual of Agent Orange exposure”. VA’s crackerjack sleuths interpreted this to mean I wanted to file for a) residuals of Hepatitis and b) PCT due to AO. This allowed them to a) declare I wasn’t currently suffering from Hep. and b) I was never in Vietnam and therefore I was never exposed to AO. Pretty tricky, huh? Get used to this practice. It happened to me in 94, it happened to Joe in 97 and you can be damn sure it will happen to you if it hasn’t already. It buys them time to come up with more creative ways to deny you as the claim progresses. One of their personal favorites used to say that you claimed Hep. C but you had Hep. B in service. Bingo. Wrong. Go back to Go. Do not collect $200.00 and please refile. If you are not allowed to make medical diagnoses about your illness when submitting lay testimony, how is it that they can hold you to this when you file? Welcome to the VA Hall Of Mirrors Funhouse.

     At any rate, Mr. Fenderson provided us with one more tool in the pursuit of our claims. It is a very important one and prevents the VA from depriving you of a rating % when it is legitimately due. The mere fact that Veterans have to negotiate this legal minefield to obtain that which is their due speaks volumes about the process and the people hired to administer the system. Never lie down and take it. Never rationalize it and say “Oh, there are so many other Vets that are more deserving.” VA is counting on you doing this. It’s factored in that a certain percentage of us will give up and go home. A very large percentage, I might add.

     Below is Mr. Fenderson’s rematch with Goliath.                                                                                                                                                                                                                                        Fenderson_96-947

We at Ask Nod are always searching for ways to overturn prior decisions, be it by collateral attacks (CUE) or by finding old service department records bearing on the claim. Towards that end we spent many months, indeed years, researching the early days of the Court of Veterans Appeals (COVA) now known as the CAVC. 

     When attacking a final, unappealed decision of the RO or BVA, the Vet has to search for some procedural error that was so egregious, indeed so glaring, as to sandbag everything that followed in its wake. Prior to the Russell decision in 1992 (en banc), the new standard for CUE before the Court was any procedural error that was prejudicial to the Veteran’s claim. Russell narrowed that down to say that the error had to have manifestly changed the outcome of the decision. It also removed benefit of the doubt from the equation. 

     This decision was before Russell and has its roots in another area-that of the BVA and the RO leaping to medical conclusions or making them without independent medical analysis. Prior to the inception of the Court in 1989, there were 20 sections of three judges each at the BVA. Each of these sections included a medical doctor as evidenced by the M.D. after his name. As medical experts on the Board section, they were required to inveigh and provide all decisions with needed clarification if necessary. They also sat as  judicial members and thus wore two hats. 

     When the VJRA was passed by Congress in 1988, all this changed. The VA, nevertheless, continued to do things as they always had. They retained the medical Board member and ignored the new paradigm. After several years of this misbehavior, the Court finally put its collective foot down in Murphy v. Derwinski (Nov. 8^th, 1990): 

Although the Secretary appears to argue to the contrary in this appeal, Br. of Appellee at 11, the fact that a BVA panel may include a physician is not by itself sufficient for the purposes of the statute, the veteran or this Court. BVA decisions must include the “reasons or bases” for medical conclusions, even those opined by a BVA physician; a mere statement of an opinion, without more, does not provide an opportunity for the veteran to explore a basis for reconsideration or for this Court to review the  BVA decision “on the record” as required by 38 U.S.C. § 4052(b) (1988).  Murphy supra. 

This precept apparently didn’t sink into their thick, dense skulls. The Secretary blithely ignored this and proceeded on his merry way as if nothing untoward had occurred. The Court was not amused and waited patiently for another Veteran similarly situated to arrive. Almost four months to the day from the Murphy holding, the Court filed its decision in Hattlestad v. Derwinski (March 6^th, 1991):

While the Board is not required to accept the medical authority supporting a claim, it must provide its reasons for rejecting such evidence and, more importantly, must provide a medical basis other than its own unsubstantiated conclusions to support its ultimate decision.  Hattlestad supra 

Just in case the Secretary had not absorbed the enormity of this precept in Murphy or Hattlestad, the Court followed it two days later with the Colvin decision. I don’t know exactly why, but some decisions are more memorable and cited in subsequent years at the expense of the cases they were predicated on. So, too, with Murphy and Hattlestad. In all jurisprudence for a decade after, Colvin was cited exclusively with only sidebars acknowledging the other two. An interesting fact that some legal scholars fail to note is the action the Court takes to enunciate their displeasure at being dissed. Murphy was vacated and remanded to be reaccomplished with assistance to the appellant and a better description in the Reasons and Bases section of why she should be denied. Hattlestad was remanded for reconsideration and disposition with 6 enumerated reasons why it was judicially insufficient. Colvin was an entirely different proposition. The Court reversed the BVA decision and remanded it to be accomplished the way the Court said it should have been done in the first place. What this means is the decision-making and fact-finding authority invested in the BVA was rudely suspended and the imprimatur of the Court was superimposed over theirs. This is the ultimate bitchslap only the Court can inflict. Reversal is rarely used, but when it occurs, it is not done gently. Mr. Derwinski and his minions finally sat up and took notice. While it was several more years before the VA relinquished the requirement of an M.D. on the Board section, the error continued to perpetuate itself because old, bad habits die hard. The most obvious reason was to let the M.D. judges either retire or seek employment elsewhere in a truly medical environment. Veterans think this error is an anomaly. We disagree because we see it as a well-defined denial ploy that has been utilized repeatedly by the VA for over half a century since their modern inception in 1946. This decision signaled the death knell for the practice and IMOs have finally supplanted the ugly habit.

     William H. Colvin is one of our generation.  He was seeking SC for Multiple Sclerosis. We can readily identify with his plight in a more modern setting. I don’t wish to demean the accomplishments of WW2 and Korean War Vets, but I identify with Mr. Colvin and Vietnam as I spent two years over there. I get ahead of myself here. A little history is in order. It personalizes the man I am about to describe. 

     Mr. Colvin was drafted and served two years in the Army from 3/66 to 2/68. While in Vietnam, he was wounded three separate times: shrapnel wounds to the head and right arm on February 26, 1967; shrapnel wounds to the right leg on March 26, 1967; and shrapnel wounds to the left forearm on May 10, 1967. For those of you who have no military background, that means he got three Purple Hearts. One military historian summed it up by saying a Purple Heart proves three things;

1) You were smart enough to come up with a plan

2) Stupid enough to try it and;

3) Lucky enough to survive it.

     On April 27, 1967, he was treated for a urinary problem that was diagnosed as a kidney stone. Medical evidence in the record indicates that urinary problems are a possible precursor of multiple sclerosis.  

     In 1982, Mr. Colvin was diagnosed with Multiple Sclerosis. The VA held that he had to come down with this within the presumptive period of 7 years or less after service absent a medical nexus. The BVA decision of 1986 denied his claim (in spite of his nexus) and that was all she wrote because there was no judicial review available to Vets then. 

     In March of 87, Mr. Colvin was seen at a VAMC for his knee issues and the neurologist stated the MS began in Vietnam. One would think that would be the end of it. Nevertheless the RO denied again and he didn’t appeal it up to the BVA this time. 

     Once again, in August of 88, Mr. Colvin reopened his claim. Being slightly more educated in the process, he arrived with a doctor’s nexus predicated on the doctor having read all his medical records. The doctor even went so far as to say that extreme stress could be a aggravating factor in inducing MS. I think we can safely say that shrapnel wounds from exploding ordnance on three different occasions would qualify as stress. Once again, the RO said “No dice”. The BVA decision announced in December of 1989 concurred with the RO and continued the pattern of denial. The BVA went further and implied that the reopening of the old claim, while introducing new evidence, failed to bring material evidence to the table. 

     I won’t bore you to death with the Board’s findings verbatim. Suffice it to say that they put on their Dr. Kildare outfits and played doctor. That’s a Bozo no-no in 50 states and the Court didn’t view it any differently. In fact, they were so incensed with the Secretary’s intransigence on this subject that they took it one step further and reversed in favor of Mr. Colvin:

The BVA decision does not cite medical evidence of record in this case or recognized medical treatises to support these medical conclusions. The BVA, in finding that the new evidence did not provide a new factual basis for a claim was, in effect, refuting the expert medical conclusions in the record with its own unsubstantiated medical conclusions. BVA panels may consider only independent medical evidence to support their findings. If the medical evidence of record is insufficient, or, in the opinion of the BVA, of doubtful weight or credibility, the BVA is always free to supplement the record by seeking an advisory opinion, ordering a medical examination or citing recognized medical treatises in its decisions that clearly support its ultimate conclusions. See 38 U.S.C. § 4009 (1988);Murphy v. Derwinski, U.S. Vet. App. No. 90-107, slip op. at 4 (Nov. 8, 1990).This procedure ensures that all medical evidence contrary to the veteran’s claim will be made known to him and be a part of the record before this Court. 

     Lest we be misunderstood, we are not saying that the BVA was compelled to accept the opinions of Drs. Cohen and Kassirer. We merely state that having reached a contrary conclusion, it was necessary for the panel to state its reasons for doing so and, more importantly, point to a medical basis other than the panel’s own unsubstantiated opinion which supported the decision. Colvin supra 

     Mr. Colvin, via the Court, has left us this judicial gem. He could have given up and walked away. His decision to pursue justice before the COVA was a novel experiment in that they were newly incarnated. As I pointed out, this wasn’t the end of the Board playing Ben Casey, M.D.  They made this mistake numerous times afterwards, but were always on the losing end of the stick. It became commonplace for the Court to simply delegate it to a single judge and treat it like a speeding ticket. The Secretary gradually realized that avenue to deny Vets was a dead end and promptly instituted newer ways to accomplish his agenda. The Court continues to uncover these new ploys when presented with them and gradually eliminates them. The Secretary is very prolific in his denials of Veterans’ claims.  We liken his actions to the Hepatitis C virus that forever mutates to avoid eradication. As quickly as the Court identifies and invalidates a disingenuous “holding” of the VA regulations, they are hard at it constructing a new iteration of the same thing under different auspices. 

     When you lie down and go to sleep at night, say a prayer for the Court and their continued good health. They are all that stands between you and an overzealous VA intent on denying you that which invariably is your due. 

     Attached below is the Colvin PDF. At 5 pages, the brevity of the Court is displayed in its entire shining splendor.  Murphy accomplished it with six pages and Hattlestad 10. I guess you don’t have to keep shooting the horse after its dead to make your point.  The Court certainly didn’t think so.                                                                                                                    

Colvin_90-196                                                                                                                                                                

Let us embark in the DeLorean and turn the clock back to April 22, 1991. A former Governor from Arkansas was putting down his marker for the 1992 Presidential primaries and the new Court of Veterans Appeals (COVA) was busy creating jurisprudence that later Courts would come to see as wise precedence. The Court was being forced to cite Social Security law decisions, Federal Circuit and even Supreme Court law to buttress their new Article One Court status. A legal note here. Courts tend to cite precedence laterally within their own specialty. They reach higher to the Fed. Circuit for more momentous cites when altering the existing way law is interpreted. They cite the Supreme Court when they strike down existing laws as being unconstitutional. Courts normally convene in panels of three. Simple decisions are dispensed with by single judges. When a finding of law or new precedent is affirmed, it is often done en banc– the whole Court sitting together. The Supreme Court is the only body that sits en banc all the time.

The decision we look at today is unique. It enunciates a holding- a finding- that proclaims a right for Veterans. Forget for a moment that Mr. Bagby was trying to hoodwink the VA and the Court. Yes, he lost, but that is immaterial. He should have lost. He was a bald-faced liar and he got caught. The Court was polite enough to overlook this egregious lack of upbringing and stick to the facts. Nowhere will you find an attack on his character.  It’s a hallmark of this style of jurisprudence. We need more of that in government these days

Jesse E. Bagby signed up to fight in the Big War in February of 1943. While in training and still in the United States, it was determined that he probably wasn’t going to be Rambo. He had a bodacious duodenal ulcer which required hospitalization. After recovering slightly and being discharged from the hospital, he was given his walking papers September 1, 1943. He was awarded his National Defense Service Medal for serving in a time of war and he promptly filed a claim for bingo! – a duodenal ulcer , but was denied in 1944. And that is where matters stood until 1984. His second attempt fell as flat as the first and he failed to appeal it as well.

Jesse filed yet again in 1988. This time he brought medical records and testimony from his doctor, but once again came away empty-handed. I’m betting this dude was being repped by a VSO with their own bar this time. He had to have been sitting around getting sudsed and heard another Vet running on about how easy it was to pull down some comp. pay from VA. He was unceremoniously denied at the BVA in 1989, but the big difference now was that he could appeal this all the way up to the new Court. Which is exactly what his non-attorney practitioner (read liberally as a very high ranking member of his VSO with no legal training) promptly did.

Mr. Bagby now found himself in a court where they frequently discussed what the correct meaning of “is” is. Doing his shuck and jive dance special wasn’t going to convince these folks. He had to do some quick thinking, but he didn’t have any material to work with. His own doctor admitted that he’d been treating Jesse since 1939 for ulcers. The man was out of his element here and in way over his head. He must not have thought the VA was smart enough to have a chat with his M.D. This illustrates the difference between having a free, non-attorney practitioner rather than a full-blown law dog as your mouthpiece.

The teaching moment , as we said, was what the Court held, not Mr. Bagby’s loss. The Court held that a Veteran was deemed to be of sound mind and body at the time of his enlistment or commissioning unless otherwise noted on the induction physical. That is what Mr. Bagby tried to hang his hat on. As the duodenal ulcer was not noted on his induction physical, he assumed that he was in scot-free. The regulation has some other stipulations that somehow got overlooked when they were formulating this defense. The beer bottle must have been covering up the small print that said “unless the finding of soundness can be rebutted”. As we discussed above, the gentleman’s doctor admitted freely that he had this problem prior to enlistment.

A finding of presumption of soundness as described in 38 CFR § 3.304(b), is more than just a finding. It is a positive finding and as such, a significant counterweight when it gets down to a benefit of the doubt argument. The VA is obligated to prove that you were not of sound body (or mind) when you entered service. Veterans don’t realize how closely they were examined when they enlisted. The M.D.s were required to discover any infirmity at the beginning of service to avoid exactly what Mr. Bagby was trying to get away with.  When you file a claim, you attempt to prove your ailment is related to service. The fact that you arrived without it and later began to suffer from it in service is a pretty strong indicator of where it originated. Well, perhaps to everyone except VA raters. In the same paragraph in § 3.304(b), the last sentence ends with:

Only such conditions as are recorded in examination reports are to be considered as noted.

This is very important, too. It clearly states that in order to rebut the presumption, the VA is required to rely only on medical records. They are not permitted to contact your neighbor next door who hates you (and your dog that shits on his lawn every morning) and get a statement from him that you play tennis daily with your so-called “back injury.” Binoculars are right out, too.  No, the regulation stipulates that VA obtain this damning evidence through medical channels only. Incidentally, this also protects your constitutional right to let FI-Fi out at 0 dark thirty to defecate wherever  she chooses.

With all this in mind, when you are planning out your legal defense (I prefer to think of it as an offense, or attack), this is an important element in your arsenal. I exhort you to exploit it at every turn. VA is nothing, if not anal, in their denials using a litany of excuses and phrases. I had the opportunity to observe this at a recent V,R&E examination. I watched the clerk (technician?expert?) type in my acceptance letter using a potpourri of other letters and phrases from a pull down Adobe Acrobat program. That’s undoubtedly  why some of the letters you receive from VA have flawless English until it gets to a discussion of your individual circumstances. All of a sudden the Spell-checker craps out  and  run on sentences, dangling participles and double negatives abound.  By now most of you are probably more than aware of how they hamburger the facts.

If you put VA on notice that you are well-versed in some of these legal precepts, it doesn’t guarantee a win. What is most important is that it gets entered into the record and the next higher Court will note the discrepancy and correct it.  You can assume a 70% error rate at the VARO on your claim. That sounds outrageous on its face, but the records bear it out. Remand and reversal are endemic at the BVA and the Court.  Veterans are long overdue for a revamping of the legal process at the local level.

     Gaze now on the wisdom of the ages. Justices Kramer, Mankin and Holdaway, as a panel, managed to keep this down to a three page ruling, thus unwittingly helping in our future battle to prevent Global warming and reduce our dirty little carbon footprints. Click on the Bagby PDF file below to view this gem.

Bagby_89-31