Was  the  decision  to  cancel  treatment  by  the  Veteran’s Administration  justified?

There is a real problem in the Department of Veterans Affairs (VA) in the United States with respect to veterans who are ill not being helped in a timely fashion. This article deals with another matter that the VA had to deal with.

  

Roderick C. Stallworth served on active duty in the U.S. Army from May 1974 to July 1975. In March 1975, he experienced a psychotic episode that was attributed to his illicit use of the drug, LSD. He recovered with hospitalization, but relapsed following return to active duty. Stallworth's service medical records indicate that he was diagnosed with acute paranoid schizophrenia in April 1975. Stallworth was transferred to the Department of Veterans Affairs Medical Center in Biloxi, Mississippi for psychiatric treatment, but the treating physician noted that it was not clear whether Stallworth's illness was caused by his drug use or whether he had an independent psychosis. In July 1975, Stallworth was separated from service after an Army medical board found him unfit for further military duty. In October 1975, a VA Regional Office (RO) decided that there was a connection between Stallworth’s service in the armed services and his use of LSD resulting in him temporarily suffering from schizophrenia  and for this reason, they gave him at a 50% disability rating

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Schizophrenia is characterized by profound disruption in cognition and emotion, affecting the most fundamental human attributes: language, thought, perception, affect, and sense of one’s self. The array of symptoms, while wide ranging, frequently includes psychotic manifestations, such as hearing internal voices or experiencing other sensations not connected to an obvious source (hallucinations) and assigning unusual significance or meaning to normal events or holding fixed false personal beliefs in the form of delusions

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There is currently no physical or lab test that can absolutely diagnose schizophrenia. A psychiatrist usually makes the diagnosis based on clinical symptoms. What physical testing can do is rule out a lot of other conditions (seizure disorders, metabolic disorders, thyroid dysfunctions, brain tumor, illicit street drug use that sometimes have similar symptoms

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The first step in getting treatment for schizophrenia is getting a correct diagnosis. This is important to do quickly because research has shown that the sooner a person gets diagnosed and treated, the better the long-term outcome (which is the same for all serious illnesses). This can be a more difficult than it might seem, because the symptoms of schizophrenia can be similar at times to other major brain disorders, such as bipolar disorder (manic-depression) or other forms of depression. Another issue is that a person with schizophrenia may be paranoid or believe that nothing is wrong with them, and therefore may not want to go to see a doctor.  Because many regular family doctors may not be very familiar with schizophrenia, it is important that such sufferers see good psychiatrist that is experienced in the diagnosis and treatment of schizophrenia. 

Stallworth was then frequently admitted to inpatient psychiatric facilities where medical professionals repeatedly opined that he had “no mental disorder.” This included his primary treating physician, concluded that Stallworth was not suffering from schizophrenia. In March 1977, four staff physicians at the Biloxi VA Medical Center stated that Stallworth “had no evidence of a mental illness and he was fully responsible for his behavior and was successfully manipulating his transfers to various hospitals through deceptive practices.” The four doctors arrived at the conclusion that Stallworth's service connection diagnosis was “in error and mistakenly made, when it should have been listed as “psychosis with drug or poison intoxication caused by LSD.” Accordingly, the VA severed Stallworth's service connection. The RO denied Stallworth's request to reopen his claim because of a lack of new evidence so Stallworth appealed to the Board of Veterans' Appeals

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In 1981, the Board affirmed the denial of restoration of service connection when the members concluded that the October 1975 decision was the result of no clear and unmistakable error in the earlier decision in which there was a denial of restoration of his treatment for schizophrenia. The Board evaluated the evidence and determined that Stallworth's one episode of acute psychosis was secondary to illicit drug use and resolved without residual effects.  In other words, if he stopped ingesting LSD, he wouldn’t suffer any more from schizophrenia. The Board also arrived at the conclusion that the doctors who determined that Stallworth's 1975 service connection diagnosis was clearly erroneous. The Board arrived at that conclusion based on all of the accumulated evidence

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I believe that because he ingested the LSD while still serving in the armed forces, the VA rightly treated him for the schizophrenia that was the end result of him ingesting that illicit drug. But once he stopped using that drug, the schizophrenia would come to an end. If he continued to ingest that drug after he was initially treated and had left the service, the schizophrenia would return as a direct result of his ongoing stupidity

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The question facing the Board was—should they keep treating him for that disease? In my opinion, the answer is no. If he had been given morphine for pain as a result of a wound he got in battle and became addicted to it; that is different. But he chose to continue ingesting an illicit drug so he brought the problem of suffering from the resultant schizophrenia to himself and as such, is not deserving of any further sympathy or treatment at the taxpayer’s expense

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Stallworth then appealed to the Veterans Court, arguing that the Board misapplied or misinterpreted the evidence by failing to recognize that the March 1977 hospitalization report was inadequate to meet the standard for severance of service connection. Stallworth further argued that the examining physicians did not certify that the previous diagnosis was clearly erroneous and that the statements relied upon by the examining physicians did not address all of the accumulated evidence.

The Veterans Court affirmed the Board's decision, holding that the Board did not misapply or misinterpret the evidence and that the decision was not arbitrary, capricious, or otherwise not in accordance with law. The court was satisfied with the Board's explanation of the evidence showing that “the physicians had found the prior diagnosis ‘to be in error and mistakenly made and the Board's finding that the hospital report was thorough and accompanied by a summary of the facts, findings, and reasons supporting the conclusion.” The court also found that the Board had “analyzed whether the hospital report evidenced that the physicians took into account the accumulated evidence available at that time.”

Stallworth then appealed to the Federal Court of Appeal. The court after hearing the appeal said in part

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“Our jurisdiction to review decisions of the Veterans Court is limited by statute. We have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof by the Veterans Court and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision. We may not, however, absent a constitutional challenge, review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case. We therefore generally lack jurisdiction to review challenges to the Board's factual determinations or to any application of law to fact.

Let me explain that decision. Many years ago while I was serving a court summons on a woman, her husband attacked me and I told him that I was a peace officer.  Later a justice of the peace and a court judge ruled that process servers are peace officers. Despite that, a police officer charged me with impersonating a peace officer. I was acquitted of that charge. The prosecutor appealed and the case finally ended up in the Ontario Court of Appeal. I argued my own case before three members of that court. The court ruled that they couldn’t overturn the original judge’s ruling since he based his decision on the facts of the case and had accepted the evidence I had given him.  Courts of Appeal rarely like to overturn a finding of a lower court if they have reason to believe that the evidence given in testimony by the accused was truthful and the judge’s ruling was reasonable. This in my respectful opinion was why the US Federal Court when hearing Stallworth’s appeal decided that they didn’t have the authority to overturn a reasonable decision that was arrived earlier at by the Veteran’s Court

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The law permits severance of service connection for previously awarded disability benefits, i.e., reversing an earlier finding that a particular disability was connected to military service and cutting off benefits that had been awarded based on that finding. In particular, the law provides in part as follows:

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion

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Thus, the plain language of the regulation dictates that service connection may be terminated if a medical professional certifies that his or her review of all accumulated evidence indicates that the prior diagnosis is clearly erroneous.

To interpret a regulation one must look at its plain language and consider the terms in accordance with their common meaning. In other words, the law as it is written must be interpreted in the manner that a reasonable person would interpret it. It cannot be twisted to meet the criteria of someone wishing to interpret the law differently

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This is what Stallworth attempted to do. He had argued that the Veterans Court misinterpreted the pertinent regulation and failed to follow a previous ruling of the Federal Court by affirming the Board's reliance upon a medical opinion that failed to certify that “in light of all accumulated evidence, the diagnosis upon which service connection was predicated was clearly erroneous.” The Office of the Secretary of Defence responded that the Veterans Court merely affirmed the Board's factual finding that the 1977 medical report did provide such certification, even though the physicians did not recite the precise language of the pertinent section of the law.  

The Federal Court of Appeal in Stallworth’s case said;

“We agree with the Secretary. Stallworth essentially argues that Andino (a previous decision by that court) obligates the requisite medical authority to use magic words such as “clearly erroneous” when providing an opinion pursuant to regulation 3.105(d). But this misconstrues our law. In Andino, the decision of the certifying medical authority was not based on a consideration of all the accumulated evidence. In that case, we therefore held that service connection could not be severed based on a medical opinion that did not consider all accumulated evidence, but we did not require the use of any particular certifying language.

Stallworth's case is similar to that of the veteran in Prinkey, in which the Board and the Veterans Court considered all of the evidence of record and found that nothing in regulation 3.105(d) precluded severance of service connection for diabetes and related disabilities on that basis. What was noted in Prinkey was that the Veterans Court did not hold that an inadequate medical opinion could suffice under regulation 3.105(d) to establish that a prior diagnosis is clearly and unmistakably erroneous, but that the court in that case merely agreed with the Board as a matter of fact that a later medical examination was sufficient, although neither the Board nor the Veterans Court relied exclusively on those later medical opinions. Significantly, the court declined to require that such certification use language that exactly parroted the regulation.

In Stallworth’s case, the Veterans Court likewise found no error in the Board's determination that severance was based upon a medical report that did consider all of the accumulated evidence and that, in substance, certified that the prior service connection diagnosis of schizophrenia was clearly erroneous without exactly reciting the language of the regulation. There is no contention that the Board failed to use the correct “clearly erroneous” standard in determining the adequacy of the medical opinion. And although Stallworth contended that the Veterans Court applied the wrong standard, The Federal Court of Appeal found that both the Board and the Veterans Court properly recited and applied the correct legal standard.  The Board stated that service connection, once granted, may not be severed unless the grant thereof was clearly and unmistakably erroneous,” The Veterans Court stated that

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“Although the Board did not explicitly state whether the physicians certified that the prior diagnosis was “clearly erroneous,” the Board's analysis does not indicate to the Court that the Board committed any error by concluding that this language was adequate to meet, in pertinent part, to wit; the requirements of regulation 3.105(d).” 

The Federal Court of Appeal finalized their decision by saying

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“We thus conclude that nothing in the plain language of regulation 3.105(d) requires medical opinions to employ the specific language of that regulation. The regulation describes the substance required of the physician's certification, rather than prescribing any magic words that must be employed. We have considered Stallworth's remaining arguments and conclude that they are without merit. Because the Veterans Court did not err in interpreting the governing regulation, we affirm their decision.

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This ruling doesn’t mean that service men who suffer from any form of mental illness as a direct result of their service in the armed services would be denied continuing treatment after they have left the service. This court decision would only apply if they brought on the continuing illness by the continuing ingestion of illicit drugs.