CAVC–Clark v. Shinseki -SJD–Absence of Evidence is Not Negative Evidence

VetCourtAppealsPromoWhen I set out on my own to defend myself in early 2008, I did so with the idea that I couldn’t do any worse that the chuckleheads collecting a paycheck for it (my VSO). I began by starting in 1994 and reading every single BVA HCV or HBV decision to find out what I did so wrong in 1994.  No one had appealed this kind of thing up to the Court then so there was no precedent there. Besides noticing I didn’t have a nexus, I saw a pattern in the denials. Some Vets without nexi won, but they all had combat badges, medals or evidence of hep in service. 

     Then a sea change ensued. VA formed a huddle and a quick game plan emerged.  Suddenly Vets needed that nexus or all was lost. Some still won, granted, but there was a dramatic increase of denials. Face it; there was also a dramatic increase in claims for this (HCV) that were starting to be a noticeable blip on the VHA radar. More and more denials suddenly developed a drug overtone whether there was evidence of it or not. Alcohol abuse, “strange behavior”-even homelessness were often cited as evidence of a risky lifestyle. Soon after, any time spent in prison more than 3 days was accorded the same risk. All these items could be cherry picked to fit the claimant’s lifestyle.  New risks were added all the time-some almost inherently incredible. 

      When the jetguns entered the picture, a few got by. VA poobahs convened again and issued the FAST letter hoping that would quell it. By now, doctors could determine if you had ever had Hep. A or B and began the practice of denial based on only having had evidence of HBV in service. Suddenly, the absence of any C in the records in 1974 was grounds for denial. Or the opposite finding of Hep. A provoked the insinuation that your hep. in service was A and not C. Testing in the 70’s for which hep. you had was sporadic at best. If you survived and it only lasted a week or so, it was probably A . If you got puke sick and it gave you a raging case of OJ skin for 4 weeks then it was B. They finally developed a test later that determined if it was B. If it wasn’t positive for B then you had A.  Brilliant test idea.  Now, in the 90s to present, we have witnessed the beginning of the end for this logic. The judges are becoming educated and can see through that ruse.   

     VA had such wonderful success with that denial ploy that they convened again several years ago and moved on to a higher plateau. They had to come up with a new idea to deny. Can you imagine a smoky room with a bunch of perspiration-soaked VA lawdogs and their lackey doctors arguing for a new strategy to combat the utter tsunami of hep. c claims washing up on their shores? Suddenly the epiphany dawns on one. “What if? What if we begin denials based on no evidence of the risk in the SMRs (also known now as STRs)? Like, you know, the Vet claims he was exposed to sharing razors and toothbrushes, but it’s not in his medrecs? We could deny on that, right?” And so was born a new age of denials. Judges didn’t think this shittus up. They ruled on what was provided for them to rule on. The untermenshen did the dirty work and stuck it under their noses. Unless a judge had a good grip on the Hepatitis C disease process, he would be inclined to sign off on this.

     This has worked quite well for a time. Now it is starting to backfire. I saw it in a Single judge decision and wrote it up for the CAVC decisions forum under Strong v. Shinseki – Shared Razors:


First, there is no reason to believe that a soldier’s sharing of razors with other soldiers would be documented in the soldier’s service medical records, and this absence of “corroboration” cannot be dispositive.  Second, the examiner did not discuss the risk factors for hepatitis C at all, including the relative level of risk involved in intravenous or intranasal cocaine use versus the level of risk involved in smoking cocaine, which is how Mr. Strong has consistently alleged he abused the drug. Therefore, the examiner’s conclusion that Mr. Strong’s hepatitis C is more likely than not related to his drug abuse is presented without any rationale and renders the opinion inadequate Strong v. Shinseki (2011)

     Kahana v. Shinseki, recently decided, found another common error we are seeing. That is, the overlooking of obvious facts contained in the medrecs. VA has always done this, but was admonished to knock it off years ago. Apparently they need to be re-educated.

     The new reality is that non-evidence is now negative evidence. VA is knee-deep into this new cesspool. Now they are unmasked.  I posted a blurb with color illustration of the non-evidence method of denial in the Members Q&A under “What Wasn’t Said Is Important”. 

     What the Vet can discern here. I hope, is the constant shape-shifting aspect of VA’s denial process. As quickly as we can identify a new denial method, they shift to a newer one. They always seem to be several steps ahead of us in this respect. Remember the old Maxson v. Gober decision stating that claiming something 30+ years later is rather suspect? It, too, is listed in the CAVC forum. That worked until a judge noted that that is the very hallmark of Hep. C. It’s a stealth virus that surfaces decades later and goes undetected in the interim. Nevertheless, that was the banner for denial for years on Hep. C and is still cited on occasion by those who haven’t had “the briefing”. 

     The recent spate of decisions exhibiting this new ploy will slowly abate and a brand new, as yet unseen and unforeseeable “gottcha” will soon appear. Mark my words. What it will entail is classified and still being thrashed out in the aforementioned room somewhere at 810 Vermont Ave. NW by those perspiration-challenged attorneys and doctors. Rest assured they will not rest until this epidemic of hep. c claims is conquered- not the disease. This just confirms my belief that they start with a denial and extrapolate backwards to construct the scene of the crime, the drugs involved and the character of the claimant.  Mathematically it looks like this:

      Z= D + R(X) + N, where Z equals denial; D equals any form of drugs or alcohol; R equals risk factor multiplied by (X); X equals willful misconduct risks or risks experienced after service (intercurrent); and lastly, N equals a VA nexus by a VA examiner that concurs in the finding of “less likely than not”.  This formula is malleable and subject to reinterpretation when vacated and remanded by the Court to the BVA. Flexibility is a plus here.

     Gradually we will attain victory but I suspect there will be few of us standing when they finally issue the FAST letter that states all future claims for hep. C where the claimant was exposed to Pedojet or Munji guns will be approved based on a presumptive risk.  It’s small consolation to dead Vets. I know I will sleep better in my urn knowing this.                                                                                                                                                                                                  At any rate, the following single Judge decision enunciates all the hallmarks of the Kahana decision. The finding that absence of evidence is not negative evidence is refreshing and finally becoming a gale force wind rather than an occasional breeze. We hope to see more of this and less obfuscation by the lower tribunals. It’s way overdue. Mr. Clark will benefit from this and hopefully prevail.


About asknod

VA claims blogger
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