Fed. Cir. (Via CAVC)–Maxson v. Gober (2000)-You Waited Too Long


 When prosecuting a Hepatitis C claim against the VA, one thing pops up over and over again. That is the allegation that you didn’t manifest this disease in the service. Well, setting aside the most obvious reason that HCV doesn’t manifest itself like the measles, it also doesn’t make its presense known for decades. A lucky Vet is the one whose civilian doctor happens to do a liver panel thus uncovering abnormal liver functions. Absent this, one doesn’t become aware until the shit hits the fan. By then the damage often is beyond repair and little can be done. 

     When litigating this up the ladder on appeal, you will often run into the Court’s and the Federal Circuit’s holding in Maxson v. West (1999- CAVC) and Maxson v. Gober (2000-F 3d.). This may seem insurmountable, but it really isn’t. The VA likes to wave the Maxson banner and squelch any more discussion on your claim. Let’s analyze what Maxson actually said. It isn’t quite as cut and dried as the VA would have you believe. 

     Raymond G. Maxson was in the Army from 1941-45. He was in the reserves prior to that, but it has no bearing on this. He had a partial colectomy that cured a bowel obstruction problem prior to service in ‘38 and in the days after Pearl Harbor, the rush was on to join the military.  Mr. Maxson had some difficulty digesting K rations on Guadalcanal in ‘42 and some other issues with malaria. The malaria never resolved and he was discharged in 45 due to that and another disorder. 

     Everything went swimmingly until 1989. Mr. Maxson decided to file for problems associated with the colectomy and had extensive medical evidence from his private doctor. VA didn’t bite. Neither did the Board in November of 1991. Raymond reopened his claim in 1994. The RO denied again on the grounds he hadn’t submitted any new evidence. He promptly submitted new letters from several doctors in an attempt to buttress his arguments. On appeal to the Board, he assembled even more testimonials from friends, neighbors, hitchhikers, the family dog and anyone who would confirm his contentions. All this was to no avail. The primary contention was that he was well (as far as the colectomy) from ’43 to 89 for medical purposes. The other reason was that this was preexisting to his service and did not technically undergo an increase in severity. Mr. Maxson disagreed and filed his NOA with the Court. He met with the same fate there and decided to appeal higher to the Federal Circuit.  His claim was denied there as well and that was the end of his story. However we are graced with his presence virtually every time we enter an appeal. The VA drags this case out and reverently recites its holding as being apropos to the argument for denying SC for HCV. 

     Herein lies the problem. HCV is not very cooperative in rearing its ugly head upon infection in its host. If it does, it often mimics the same symptoms as a light flu with nausea and muscle ache. A normal person probably would not be prone to seek a liver functions test (LFT) blood panel to ascertain whether this “flu” involved his liver. Having no reason to seek medical care for something that doesn’t incapacitate you, you proceed on your merry way, oblivious to the gradual damage accruing in your liver. When you do finally discover this decades later, you probably go to great lengths to obtain medical care to abate it. Just because there is no history of symptoms or treatment is not dispositive of an absence of the disease. HCV takes years to develop to lethal proportions. VA has a mindset that dictates one mode-denial unless proven otherwise. And guess what their favorite CAVC holding is to deny you? Yep. Maxson. As in ” While the VA commiserates with the Veteran over this insidious disease, there was no evidence of it in service and, indeed, none in the intervening 30+ years since his separation”.

     You can head them off at the pass by making sure your Doctor or ARNP carefully explains that this disease process is subtle and silent. There are no “Aha!” moments with this. It’s more often the “By the way, Mr. Nod. Were you aware you have a very strange kind of hepatitis called non-A, non-B?” I can virtually guarantee that you will see our Mr. Maxson mentioned somewhere in your denial at either the RO, but most assuredly at the BVA if you don’t take precautions to prevent this. One way is to just be blunt about it and say” Maxson does not control because…”.

      Mr. Maxon’s colectomy also was preexisting, which VA clearly ignores. This is a seminal legal point that makes the holding immaterial where a presumptive risk factor in service is cited as the culprit.

      I attach the Federal Circuit synopsis for the Veteran’s perusal as it subsumed the CAVC finding:

http://openjurist.org/230/f3d/1330/raymond-maxson-v-hershel-w-gober

If you or your NSO run up against this in you fight for SC, we would be happy to locate other cites to buttress you claim if we can.  VA thinks they’re hot on these denials. We are proving them wrong one Vet at a time. 

About asknod

VA claims blogger
This entry was posted in Fed. Cir. & Supreme Ct. and tagged , , . Bookmark the permalink.

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