Guest Speakers
Today our guest speakers are Dr. Craig Bash and Bill Creger. Bill’s on here with us right now, and we’re waiting on Dr. Bash to get out of the ER where he’s working on a patient. He’ll be along shortly.
Host: How are you doing, Bill?
Bill: I’m getting much better, thanks. Reasonably well.
Host: Well, I’ve got to tell you something. It wasn’t me that Dr. Bash was operating on.
Bill: Okay, well that might be good. He was reducing an open fracture.
Host: Oh, mercy.
Dr. Bash’s Bulletin
Host: Dr. Bash had written a Bash Bulletin concerning the VA and the reduction. Did you get a chance to read that, Bill?
Bill: Yes, I did. He shared it with me, and we discussed some ideas on it for tonight. He’s experiencing an increase in the number of cases where veterans are facing either a reduction in an evaluation of a disability or severance of service connection. Our concern is that veterans often aren’t well prepared to defend themselves against these sorts of adversarial actions. There are a couple of things Dr. Bash was pointing to that can help prevent VA from reducing the evaluation or perhaps save service connection from being terminated. These are some of the things we wanted to go over tonight with everyone.
Evidence and Due Process
I did a little bit of background research to make sure the earlier precedents established in our oversight court still bear weight. I was very pleased to see that many times the court, while adding new precedent, continues to rely upon the precedent established from the earlier cases. Those earlier decisions of the court reversing actions to sever service connection or reduce evaluations are still good and are still being used and cited by the court itself.
The best defense is the evidence. Medicine provides opinions, and the opinion is only as good as the person reviewing it, relying substantially on their intent. I’m not satisfied from my experience that the individuals conducting the examinations or the individuals making the rating decisions adequately understand that a reduction or a severance is intended to be extremely difficult to achieve. Congress wrote the laws that way. It’s not a typical situation; the tie goes to the runner. There are additional hurdles and burdens, particularly if the disability has been in effect for some time, that VA adjudicators must satisfy before making the reduction.
I was pleased to see the court still stands on the premise that if VA makes a reduction without observance of the governing regulations, the court typically will reverse the decision ab initio, meaning from the beginning. If VA went forward with a reduction and you’ve had an appeal in place for seven to ten years, if VA violated the procedures, the law requires VA to reinstate that disability back to the date it was reduced. It is to be a restoration, not an increase. I’ve seen a number of mistakes in my experience where VA will propose to reduce, effectuate a reduction, and the veteran makes an appeal. If the reduction is reversed, it’s reversed all the way back to the effective date when it was reduced so that the veteran is not harmed.
Preventing Reduction
Subsequently, after that, in some circumstances, if VA is persuaded and convinced that a reduction is appropriate, they are free then to continue to develop evidence to justify that reduction. So, it becomes very important to get good medical evidence in the record to explain why a reduction should not be made or why severance should not be achieved.
The weakest point typically lies in the failure to provide due process. Congress made it very clear that before VA effectuates a loss of benefits, due process must be provided. Most people hear the term “due process” and think of the Fifth Amendment of the United States Constitution, which gives all of our citizens the right of due process. Well, that’s exactly where this comes from. The Fifth Amendment to the Constitution states that no person shall be deprived of life, liberty, or property without due process of law. Congress decided that if a veteran is going to lose or have reduced payments, the veteran must have an opportunity to object and to provide evidence to persuade the VA that the loss should not be effectuated.
Additionally, the veteran must have time. A proposal must be made to allow the veteran time not only to oppose the adverse action but also to adjust his standard of living so that he can transition to the lower income if it turns out to be necessary. Many of the reversals that I’ve witnessed or advocated for were because the effective date of the loss of income was prior to the 60-day notice of such reduction. You have to tell the veteran what you’re going to do, why you’re going to do it, and give it to the veteran in the form of a proposal. The veteran is allowed 60 days. If that 60 days is not provided, then that loss is reinstated, pure and simple. I’ve caught a number of instances where that was not done, and I wanted to make certain that everyone is aware of that.
VA Manual
VA covers due process in the manual, here I go with the numbers again, M21-1, Part 1, Chapter 2, Section A. This provides the instructions to the VA employees for the provisions of due process, how it applies, and what VA employees are required to do if they choose to undertake reducing someone’s benefits.
Host: Bill, I have a question here. I think it falls along with our topic. Suppose you go to the VA and the rater looks at your claim and says, “Look, according to the 38 CFR, you should be rated 100%, but we feel you’re 40% responsible for your ailment. So rather than come back later on and reduce you, we’re just going to give you 60%.” Is that something that crops up? It seems like I’ve talked to veterans in the past, and that’s how it was presented to them. Is there anything to that?
Bill: Generally, no. Here’s why. There are a number of circumstances that could place a veteran into the position of, “How much of the total disability is VA responsible for paying?” The rating schedule provides that if you are granted service connection on the basis of aggravation, it means that you had the disability before you entered service, and during service, it became worse. The regulations provide that if you have, for example, at the end of your service, a 50% disability but 10% of that disability existed prior to service, then your compensation is reduced by that 10% because that degree pre-existed.
Host: What if the VA or the military, when you went in, was aware of this ailment and waived it? Does that put the responsibility back on them?
Bill: You used a specific term, waiver. I’ll interpret that to mean they were aware that you had a certain diagnosis but found that the diagnosis would not prevent you from performing your duties, so they found you qualified for military service. In that circumstance, that means that the disability was 0% disabling because if it weren’t, they would not give you straight ones across the PULHES, the profile. When the examiner at entry said you were fit for duty, it means you had a diagnosis, perhaps, but not a disability.
Aggravation and Pre-Existing Conditions
Some examples might be scoliosis, which might be mild enough in degree that neither the person examining knew it was present. At that point, when they certified you fit for service, it means you did not have a disability at the time of entrance into service. My general rule, when making these decisions, was that if you’re examined at entry and they didn’t find any compensable disabilities, then it was 0% disabling at entry in service, and no deduction from your evaluation is to be made.
What’s really important in litigation is the eggshell plaintiff rule applies to VA adjudications. In law, this is a well-known argument. If you and I are having a disagreement, and out of anger, you hit me upside the head, just to get my attention, and my skull is fractured, causing brain damage, it’s tempting to try to defend your actions by saying, “Part of this overall disability isn’t my fault. You had an eggshell skull, it was very weak. If you didn’t have that eggshell skull, it wouldn’t have fractured, and you wouldn’t be as disabled, so I’m only responsible for part of that liability.” In law, that is absolutely no defense. It’s called the eggshell skull rule or eggshell plaintiff rule. You take the plaintiff as you find them, so whether or not I had an eggshell skull is not relevant. You hit me in the head, I’m brain damaged, you fully compensate me for all of the damage.
I was deeply involved in a case in the court some years ago called Cohen v. Brown. In Cohen, the government was trying to deny compensation for PTSD, arguing that the veteran had a personality disorder responsible for most of the disability, so they weren’t going to pay him any compensation. The court made clear that this eggshell skull rule applies to mental health cases as well. If the veteran had a pre-existing personality disorder and was then exposed to combat stressors, the VA is responsible for all resulting damages.
Host: Now, the regulation I was going to quote from is 38 CFR 4.22, Rating of Disabilities Aggravated by Active Service. It provides that the rating will reflect only the degree of disability over and above that existing at the time of entry into service. If someone is allowed to come in with a 10% pes planus and ends service with a 30% pes planus, they are compensated for 20%. The two important points are that you deduct from the current degree of disability if ascertainable the disability existing at the time of entrance in service. If it wasn’t ascertained, it’s zero. If it was measurable and you can determine with accuracy what the degree of disability was at entry, then yes, you can deduct it from the total evaluation. One exception: if the disability is 100%, there is no deduction for pre-existence. If you had a 10% depression when you went in and came out with 50%, you get compensated for 40%. If it becomes 100%, you get 100%. Is that very clear?
Host: Yes, it is.
Eggshell Plaintiff Rule
Bill: The eggshell plaintiff rule applies to VA adjudications as well. In tort law, if someone with an undiagnosed personality disorder is subjected to combat stressors, the VA is responsible for all resulting damages. It’s important to help the decision-makers understand this.
I prepared for the Cohen case by obtaining copies of comments received from the public in response to VA’s proposed rule change for mental disorders in 1996. The Disabled American Veterans (DAV) made an excellent comment, explaining that it is impossible to apportion a degree of disability in mental health cases between an acquired disorder and an underlying personality trait or disorder because they interact.