I don’t know how many times I get emails from guys asking what will happen if they file for the DM2 they’ve had since the first Interferon merrygoround. The universal worry seems to be an ominous feeling of instant retribution and the prospect of losing or suffering reductions of ratings they have already attained. This Vet must have felt the same sense of foreboding.
While VA is known to do this, the more frequent technique is to dole it out like salt water taffy to kids-one piece at a time. Mr. Jeffrey D. Walthers, appellant, Walthers wisely through counsel now, approaches the bench and calls Foul. Suddenly, the Secretary (in the guise of Willy Gunn 027 Office of General Counsel) has to accede that there seems to be a word missing in the informal request for withdrawal of his continuing Fenderson staged claims. Not just any word. The actual “word” word as in “I wish/seek/desire/ have formally decided to withdraw my claims for my spine and my bilateral feet that I have been fighting for nigh on to two years.“
Jeffrey D. Veteran served a whopping 24 years from 1983 to 2007. That’s a lot of ground pounding. When he retired, he marched smartly over to VA. Somehow, in that short walk/drive over he got gout that was not service -connected. Now watch the blue dates of two different claims come to a confluence and disrupt one another (in VA’s mind). Watch the Purple claim for back/feet proceed to May 2012 and suddenly evaporate into thin air. Watch the red claim for gout appear in May 2009. Finally witness the green culmination where one claim engulfs the other. Remember always through this. When you file a claim with VA, it is an “original claim”. Anything afterwards is a continuation of that original claim and is merely another disease/ injury added to the pile. There can only be one claim. However, there can be more than one claim stream as we are going to observe. Unfortunately, the VA cannot seem to assimilate this concept.
This tale of woe begins upon discharge in January 2007. Jeff filed for his back and his feet. He got 10% right out of the gate for his back and a goose egg on the feet. The feet had numerous problems including Achilles tendonitis named after a great Greek Veteran, I might add. Sgt. Walthers wasn’t impressed and filed a NOD for higher initial ratings. Note that closely- for higher initial ratings. As was as predictable as the tides, VA denied and sent him his first SOC April 2008 and an admonition to file his Form 9. He dutifully filed in time and sat down on the Group W(ait) bench for his two year nap in the outbasket.
Again, as usual, in an attempt to buy Mr. Walthers off at the last minute and test his mettle, they met him half way and issued a Supplemental SOC in late November 2008. They munificently upped his spine from 10% to 40%. The doggy bone that was going to seal the deal was a 10% biscuit for the bilateral feet. In VAspeak, bilateral means you get paid once for two of something- such as tinnitus in both ears. Call it what it is- a Onefertwo- usually found at the VA. He probably was entitled to 10% individually for each foot, but more about that in a moment. In a sleight of hand trick, the DROs only gave Jeffrey these higher ratings as of right now. Right now was October of 2008-sixteen months after he filed in 2007. So, to take stock of his legal standing at this point, he is poised to do one of two things in order to keep the ball rolling. He could ignore the SSOC and let the appeal move to DC for the Board of Vet Appeals or he could submit new evidence or argument why he should not be granted higher initial ratings for these two items back to his February 2007 filing date. He chose Option #2 and fired off a VA Form 21-4138 Statement of Claim on January 2009 saying:
“[t]he rating decision dated November 20, 2008 granted me ratings appropriate for my disabilities however the effective [date] should have been the day after my discharge from military service.”
In their timeworn old trick of See Who Blinks First, they let his claim fester. In February 2010, thirteen months later, VA sent out another SOC which should actually have been a Supplemental Supplemental SOC confirming and continuing the denial of his request for the higher effective ratings date of January 2007. In May 2010, they sent him yet another Supplemental Supplemental Supplemental SOC asking him if there was any part of “No” he would like to have spelled out for him. But in the meantime…
Back in May of 2009, another problem was coming to a head. Mr. Walthers’ feet had gout and there was mucho evidence of it in his medical records before he parted company with Mother Army. He filed a brand new claim (in VA’s mind) in May 2009. He relied on his current civilian foot man-Dr. Fred Bean. Dr. Bean was less than unequivocal and used the forbidden words “could” and “possibly”. That poked a bad hole in the claim. Surprise. He was denied in November 2009 so now we have two claim streams racing along in VA terms. The train wreck is inevitable.
The Jeffmeister promptly files a NOD on the gout call. He smartly races back and grabs his in-service podiatrist, Dr. Setter, and gets a nexus letter from him that is bulletproof.
Dr. Setter explained that he had treated the appellant in service, the appellant has gout, and the appellant’s “treatments for pain were ongoing and remained unresolved before his retirement.” Dr. Setter requested that VA “include the diagnosis of . . . gout in [the appellant's] file” as this condition was “present during his active duty service time.” Id. In February 2011, VA issued an SOC continuing to deny service connection for right foot gout. The appellant appealed to the Board, and subsequently testified at a Board hearing in August 2011.
The train wreck happened the following May 2012. VA bundled up this whole mess of back/spine claim and gout claim into one of the most screwed up BVA decisions you may read about for a long time ( until next month).
This is so sad as to not even be up to good Kabuki theater. The mea culpas are hollow. The tenor is flat. The sincerity is absent and the general consensus from even Judge Lance is one of disgust. That takes a lot, too.
In the appellant’s January 2009 statement in support of claim, he stated, “[t]he rating decision dated November 20, 2008 granted me ratings appropriate for my disabilities however the effective
[date] should have been the day after my discharge from military service.” The Board determined that “[t]his statement constituted a withdrawal of the increased initial evaluations issues for the spine . . . and bilateral feet.” However, as the Secretary concedes, the appellant’s statement does not contain the word “withdraw” or any express statement indicating a desire to withdraw his appeals of the initial evaluation of his spinal and bilateral foot disabilities. see 38 C.F.R. § 20.204(b); Moreover, the statement does not list which issues, if any, he intended to withdraw. The Board’s decision lacks any analysis as to how the appellant’s statement constituted a withdrawal of his claims of entitlement to higher initial evaluations for his service-connected spine and bilateral foot disabilities. Absent such an analysis, the Court cannot understand the basis for the Board’s decision and the Court’s review is frustrated.
I guess I see a conspiracy and I don’t use the word lightly. They tried to blow smoke rings at this guy and when that failed, they tried the “We construed his filing to be a desire to throw all his hard work on appealing this effective date business into the trash can and pursue just the current gout issue. Surely you guys can all see that? Right? He said it was appropriate in very clear English. Nobody could screw that interpretation up.”
One thing the VA tries to strive for is that professional courtly demeanor like their Big Brothers above them. Decorum and facts are their forte. Every T must be crossed. In the summary of the Conclusions of Law, the typist stepped on the wrong key and began a conclusion about “back” and ended up with a 20% rating for a shoulder issue. This is embarrassing. It’s like looking at the menu and finding ice creme being served as the salsa dip for your taco chips. Judge Lance couldn’t let it pass either.
The OGC krewe goes even further afield in defense of the BVA decision and fails to infer that this is, and always has been, a Fenderson Staged rating seeking a higher initial rating than the 10% for the spinal disability. They’re still out on the little branches trying to defend the October 2008 effective date of the 40%.
In fact, the same argument leads into the next part about his feet:
The appellant further argues that the Board erred by failing to articulate why Diagnostic Code (DC) 5284 for “Foot injuries, other” does not entitle him to a 10% evaluation for each foot due to the severity of his bilateral foot injuries…
The Secretary concedes that the Board failed to provide an adequate statement of reasons or bases as to why it denied a 10% evaluation earlier than October 27, 2008, for the appellant’s bilateral pes cavus, heel spurs, and Achilles tendonitis, and asks the Court to vacate and remand the Board’s decision on this matter.
See the problem? Jeff is saying I want 10% for each foot. VA is saying “We need to rephrase the way we denied him his earlier filing date versus October 28th, 2008″. VA is deaf even in Court. They don’t get it.
Finally, the gout comes in again. Remember the gout problem? Remember now. The RO Bozos have denied and said no evidence of it in service. The Army Medical doctor has inveighed and said “au contraire, ma cher”. The civilian doctor has stepped on his nexus necktie and the BVA is reduced to denying on absence of evidence:
The Board found Dr. Bean’s statement to be “vague” as “he does not clearly assert that the [appellant] had gout that was present in service. Rather, he states that ‘the assessment of [the appellant's] medical condition rendered on October 27, 2008 were pre-existing to his retirement.” The Board also found Dr. Setter’s memorandum to be “inconsistent with the [appellant]‘s service treatment reports” and “no more than a mere conclusion.” Ultimately, the Board determined that “to the extent that [Dr. Setters and Dr. Bean] indicate that the [appellant] had gout during service, these opinions are based on an inaccurate factual premise, and are afforded no probative value.”
Okay. Got that? He had gout before he retired from twenty four years in the Army but it pre-existed his retirement so therefore it is service connected. Except it’s not mentioned anywhere specifically so it isn’t service connected.
The Court holds that the Board improperly relied on the lack of a specific in-service diagnosis of gout while improperly discounting Dr. Setters’s and Dr. Bean’s medical opinions. The medical evidence of record, including Dr. Setters’s memorandum and Dr. Bean’s 2010 letter, suggest that the appellant suffered from gout in service. Nevertheless, the Board relied solely on the absence of evidence in the appellant’s service treatment records to find that he did not suffer from gout in service, despite multiple examiners expressing medical opinions that gout is precisely what the appellant suffered from in service. The Board also relied on its own opinion as to whether the appellant had gout during service. However, when the Board reaches a medical conclusion, it must support that conclusion with “independent medical evidence” rather than its “own medical judgment.” Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (holding that the Board “may consider only independent medical evidence to support [its] findings”).
Judge Lance threw in one last dig- the Kahana panel decision he also sat on recently. Take that, you ignorant wannabe judge VLJ swine! File this one under Implied Withdrawal.