Fed. Cir. –Groves v. Peake—2008– Our Holy Grail


This is a wonderful case of what we call “precedence”. This is the Holy Grail of Court Rulings for Hepatitis C sufferers. In order to understand this in the context of our continuing battle, substitute the phrase “Paranoid schizophrenia” from the Groves decision with the word “Hepatitis”. 38 CFR §3.303(a)(b) had always been the Vet’s path to SC for hepatitis if he/she had it documented in their records.  Vets still needed a nexus letter because one couldn’t get any traction  without one regardless of whether you legally needed it or not. Remember, VA always supplies one if you don’t. We don’t even need to tell Vets what they invariably will conclude. This has provoked an appeal nine times out of ten which is time-consuming.

Within the last 18 years (1992) a disturbing trend started to surface. Veterans were coming down in increasing numbers with a new, chronic, persistent form of hepatitis. The disease came to be known as Hepatitis C and the VA had to put their thumb in the dike, as more and more Vets began filing and winning. To staunch the flow, they resorted to various ruses, the foremost being IVDU or some other form of willful misconduct. Certainly, there were a number of cases that fell into the BAD BOYS category. However , there were a disturbingly larger number that didn’t. VA examiners started finding new ways to deny and the latest one became the: “Gee, buddy. You’re absolutely right. You did have documented Hepatitis in service-but hold the phone- the hep you had was Type A or B, not C. Our VA examiners got together and OPINED that it must have been A or B even though the Doctors never checked to see what type it was-sorry but you lose.”
Smart Vets started proving via nexus letters that they didn’t have A or B in service or if they did, that the C was a hitchhiker on one of the other two.   That poked a hole in this VA method of denial. In the last decade, scientists have started using RNA PCR techniques to determine what, if any, types of Hep. we have had or been exposed to. This further narrowed VA’s ability to deny based on bogus logic.  One facet it hasn’t dimmed is VA’s proclivity to say there’s no evidence of HCV in your 197os-era medical records. Well, duh? That would be akin to searching high and low in a junkyard for a 67 Mustang 2+2 in 1946 and coming up empty-handed. Who would have thunk it?

Here, we have a case that was appealed all the way up to the Federal Circuit Court that deals with our problem indirectly. It returns to the old argument that if the hep you had in the service was not documented as being A or B via testing(and they had no tests or a clue about C then), then the hepatitis “could” have been C or a combination of several including C. Then the benefit of the doubt doctrine kicks in and you don’t even need a Doctor’s nexus to state that “its more likely than not” to win. The Groves decision clearly states that no nexus is required assuming you had hep in service. VA is fond of using what you say against you to denigrate your facts and hence, your credibility. Your medical records don’t lie and they cannot be manipulated to arrive at a preconceived conclusion. VA has been doing this for so long that the Groves decision is going to rock them back on their heels for quite some time. I suspect VA examiners won’t get the “White Paper” on the update for a while. This will mean a lot more appeals until everyone is on board.

To look at this decision, you will need to click on the attachment at the bottom(Groves v. Peake). It’s too cool for school and will go a long way towards helping all of you who had hep in service win your case without resorting to flow charts, jetguns, and alien abduction theories. Vets have waited a long time for this decision. It won’t give you closure-just SC and perhaps some small measure of  financial peace of mind in your sunset years.

http://caselaw.findlaw.com/us-federal-circuit/1249037.html

About asknod

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

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