CAVC–Merczel v. Shinseki- Sorting out the Hickson Elements(SJD)

VetCourtAppealsPromoSweet. That’s what this decision is. It tunes in the ICU2TV and let’s us look at another example of what justice is, and isn’t, supposed to be about.  Although the decision is by a single judge and not an en banc precedent- setting one, the lessons to be learned are very important. Even I was a little taken aback by what St. Mary reasoned. You, as a pro se Vet, can use it as well.   VA’s propensity to use absence of evidence to prove a point or rebut lay testimony is well-known.  This decision explains it so well and provides the perfect example.

    Mr. Henry Merczel must be an incredibly patient Vet. He filed in 2002 and got the standard treatment we all do. He filed the NOD and everything moved up to the Board… and back for a remand . Then back to the Board…and back for remand #2. Then back again yet a third time to the Board for his final denial. Henry gladly took a number, moved up to the Court and waited. This why it took so long to get to this part of the story.  I print here the best as an hors d’oeuvres:

First, the Board’s discussion erroneously conflated the second and third elements of a service connection claim. The Board found that the appellant’s claim failed because “[t]he evidence [did]not show in-service incurrence or aggravation of hepatitis C.” (emphasis added).  The second element does not require such particularity; rather, the appellant must show an in-service disease or injury that he alleges caused or aggravated his current disability.    Proving a connection between an in-service disease or injury and a current disability is the requirement of the third element in a service-connection claim. The appellant alleges that either his in-service inoculations, scalp laceration, or index-finger laceration could be the “injury” that led to his contraction of hepatitis C. The Board did not question the credibility of the appellant’s assertions that such incidents occurred, and, in any event, they find support in the record.  When the Board discussed the unlikelihood that any of these incidents were connected with the appellant’s hepatitis C, however, it was making a nexus assessment and erroneously imposing a more demanding showing for the second element of a service-connection claim than is required. (stating that the incidents proffered by the appellant “are not known risk factors for hepatitis C”). This confusion renders the Board’s statement of reasons or bases for its decision inadequate because it prevents the appellant from understanding the basis for the Board’s conclusions and hampers review by this Court.  See Caluza and Allday, both supra.  Merczel v. Shinseki (2011)

VA has always dragged in the “Well, he didn’t have hep. c in service, so that pretty much tells you what you need to know.”. Judge Mary Schoelen has finally unwrapped the phraseology and exposed the error. We owe her a big favor

The second thing this decision represents is that the Court will not tolerate VA’s shenanigans when they are clearly in the wrong.  Here, VA forgot to give this guy SC and a rating for Reynaud’s Syndrome that he had in service. Then they tried to cover their asses by saying he needed a nexus. This is one of the few times you don’t. If you have a documented, chronic disease in service and documented medrecs of it being chronic, then it’s a done deal. You file, you win and you go home. VA, and especially the BVA, had no business denying this claim and Judge Mary reminded them by reversing and handing  Henry a blank SC slip for Reynaud’s.  We have always looked for a legal way to get around this and Groves did overturn established law in this vein. Judge Mary was also quick to point Groves out to the VASEC who begrudgingly acknowledged she was right. In order to maintain his ego, he wanted another do over (number 3) so he could hang old Henry out to dry for another 2 years.  Judge Mary wasn’t having any of that as you will read. She went into a long self-check legal menu of when it would be permissible to remand an error of this breadth and depth of perfidy. At the end, she delivered the riposte and said “Naw. No vacatur. I’m reversing. If you hadn’t been such assholes and wasted 10 years of his life, I might be inclined to remand.”

     It’s a relatively short read (10 pages) as legal filings go, and gives you a shiteatten grin when you observe Uncle Eric get the bitchslap. I apologize for my risqué language today but I feel colorful. Ebonics evokes such rich metaphors compared to  my dry, whitebread language.


  And what should my wondering eyes behold today than Mr. Merczel’s win at the BVA. Not only that, but he nailed them for Reynaud’s Phenomenon in the right hand as well but he got it on presumptive in § 3.307. $100 says that’s related to the hep. It’s cryoglobulinemia and the buildup of IgG globulins in the small veins is like blood mud in cold weather. 

downloadThe reason the decision reads like a short story is the remand instructions from St. Mary Schoelen above at the CAVC. She’s onto the BVA for the asinine rationale for denial all the way up the ladder since 2002. They’ve been playing him like a small mouth bass and keeping him in deep water away from snags. Have you ever seen a BVA Judge say “Well, there are competing opinions so let’s blow off the VA examiner’s pipedream and give the benefit of the doubt to Henry.” Shit oh dear. Either Judge Deborah Singleton is a blood relative of Henry Merczel or she’s smoking some killer Matanuska Thunder f**K  and was too stoned to bang the gong. Perish the thought that Laura Eskinazi happened to run into her in the hallway at lunch and tell her to “rocket docket” old Henry  for SC.

Of course it could be the OGC realized they had stepped on their necktie and if it ever went back up to 625 Indian Ave. NW, there would be hell to pay. As we say at Asknod, the squeaky mouse gets what behind door number 3. This time it was Monty’s Cookie Jar for the full meal deal. Congratulations, Henry on a well-deserved win. Another twelve year claim finally extricated from the backlog. Onward through the fog.

Now serving BVA Vet

download (1)

Number 527,675

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2 Responses to CAVC–Merczel v. Shinseki- Sorting out the Hickson Elements(SJD)

  1. Kiedove says:

    From the BVA–New extrahepatic manifestations or causes of HCV? “examiner concluded that the Veteran’s hepatitis C was associated with polyarthralgia’s and Dupuytren’s contractures.”
    –The possible symptoms of acute hep twice in service medical records was a huge help.
    — Hep B outbreaks after being given shots via jet injection is evidence! The concept has been proved. Different virus but transmitted the same way. I’m surprised it’s not referred to more.
    I would say she’s fed up too:
    “Thus, after numerous RO decisions and three appeals to the Board, it is pointless to make the appellant endure more procedural delays before he is granted the service connection that he is legally entitled to based upon the undisputed facts and applicable law. …On remand the Board must determine and assign the appropriate disability rating and effective date.”

    Really positive life-changing stuff can happen when good people are in leadership positions.

    • Kiedove says:

      CDC–June 13, 1986 / 35(23);373-6
      That’s a LONG time ago.
      Editorial Note: This is the first reported outbreak of any disease in which any kind of jet injector has been implicated as the vehicle of transmission. The CDC experiments reported here suggest that the Med-E-Jet, if contaminated, could transmit HBV but that it does not become contaminated easily during actual use. Once contaminated, however, the Med-E-Jet could not be easily cleaned by a simple swabbing technique, probably because of inaccessibility of contaminated surfaces of the nozzle tip and under the nozzle retaining cap. Furthermore, wiping the nozzle tip with a swab soaked in alcohol or acetone would not be expected to inactivate HBV. To ensure proper decontamination, disassembly and sterilization of the nozzle tip would be necessary.

      The CDC states here that they did conduct jet injector experiments….I would like to know more about these experiments.
      Four years later, the DOD withdraws their use.
      They were one mode of person-to-person transmission of blood-borne pathogens.
      It’s an important part of this miserable story.

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