CAVC–Strong v. Shinseki–Shared razors–SJD


   Meet Michael J. Strong. Mike has a problem. He has hep and DM2. Sound familiar? Mike decided to fight this one and ended up at the Court. What’s interesting is Judge Hagel’s carefully reasoned thought processes for querying the BVA over it’s denial of Mike’s claim.

     For decades we Vets have been subjected to the same treatment when we present hep claims. It becomes a witch hunt to dig up the dirt, criminal background checks, snide insinuations as to our lifestyle and mostly a rant about how we are IDVU/ alcohol abusers with no socially redeeming values. Mr. Strong encountered exactly the same.

     Mr. Strong was no saint and had a brief run in with crack cocaine in the early eighties after service in the Nasty Guard. On his risk factors questionnaire, he didn’t address this because it had no bearing on his disease process. One would not introduce evidence of hemorrhoids into the questionnaire, so why discuss smoking anything-be it crack or cigarettes?  He answered the risk factors questionnaire quite truthfully insofar as denying intranasal cocaine and/or IVDU abuse. Nevertheless, the VA adroitly used this omission to imply he was a “poor historian” which is VAspeak for “Liar, liar. Pants on fire”.  They also threw in alcohol abuse as another risk factor. Shooting up alcohol ? That’s a novel (and lethal) concept. The Court agreed. This is what Judge Hagel had to say about the BVA’s fact finding prowess:

The medical examination report indicates that Mr. Strong reported sharing razors with fellow soldiers during service as his only risk factor for hepatitis C and denied using cocaine.  The examiner considered the following factors in reaching his opinion: the claims file; all available medical records; the date of the first diagnosis of hepatitis C compared to Mr. Strong’s dates of service; Mr. Strong’s statements regarding the community use of razors; and Mr. Strong’s statements denying the intravenous and intranasal use of cocaine.  After reviewing Mr. Strong’s medical history of hospitalizations for drug abuse and after finding no evidence of razor sharing in the record, the examiner determined that “it is at least as likely as not that the current hepatitis C condition is related to his extensive cocaine use.”  R. at 117.  The examiner’s opinion in this case was based on the following factors: (1) there was no documentation in the medical records of shared razor use; (2) Mr. Strong used cocaine; (3) Mr. Strong had lied about cocaine use.  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)

    The reader will note the above in red. For years the VA has relied on this simple precept that there was no evidence anywhere in Vets’ records of sharing razors ergo it never happened.

     The other salient point that emanated from the BVA decision was that any kind of cocaine use was risk-positive as a hep. disease vector. This was unsupported by the evidence and the follow-on supposition that Mike was a liar for not listing it has been standard VA protocol for years. It’s as if they were using a story generator like a Stephen King novel to write the script.  Change the title of the book and the names of the characters and Voila ! A new book (read decision). 

     For years the AOJ with the BVA as its rubber stamp, have gotten away with this. Their attitude has been to discount any lay evidence as lacking any probative value or blithely dismissing a risk factor as unproven or not present in medical/military records. Forget for a moment that the Vet would have no reason to trot down to the base hospital and say something as inane as “Hi. I was out on field maneuvers and we shared razors and toothbrushes in the same helmet. Would you please be so kind as to include that in my SMRs just in case I come down with some unheard of disease in 20 or so years and need documentation?” Chances are he would be given a medical discharge for “personality disorders”. 

     It is a breath of fresh air to see the Court finally address some of this folderol  after twenty or so years. We submit claims in good faith (for the most part) and expect that the evidence will be viewed from a rational standpoint.  VA examiners work from the M21 manual which tells them how to process the evidence. If the Vet asserts something happened such as sharing razors, I suppose the boys look that up in his medical records. If there is no mention of it then he is adjudged a liar or it is considered unsubstantiated. There apparently is no room in the M21 for a section on logical deductions or inductive thinking. This practice has dogged our claims process far too long. Judge Hagel finally shed some light on the absurdity of it all. Allow me to rephrase that. He called bullshit on it.

     Again, this is a single judge disposition which carries no precedental value. It does illustrate viable arguments for you, the Vet, when the RO or the BVA arrives at these unfounded and circular arguments. Therein lies the reason for my posting them. Any ammunition that a Vet can use to buttress his claim is invaluable. Moreover, being able to rebut illogical theories is even more crucial to winning.

     Mike did this pro se which really is amazing. It’s too bad he wasn’t more careful as it appears that in his haste to defend the hep. claim he inadvertently forgot to do the same for his DM2. He will probably have to file again for that unless he can cogently argue that it is part and parcel of the hep. (inextricably intertwined as in Harris v. Derwinski (1991). Well done, Mr. Strong. 

StrongMJ_09-2499

 

About asknod

VA claims blogger
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