old records

Posted on September 29, 2011 by asknod

RDMURPHY
Registered: 07/31/10
Posts: 49
04/28/11 #1
This is for the moderators or mngr. In my military records prior to discharge in 1983 the army drew blood for a”hepatitis survey”. never told me why. Their hospitilazition records  claimed that I had vrial hep. Does this give me any leverage with VA down the road as far as proving deception? I am unsure exactly when the medical community had IDed the hep c as a seperate disease. Not sure if I will even need this information as the QTC report says all secondary ailments that I filed for are “as least as likely as not” secondary to hep c. these claims are under review ha ha. opinion sir
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #2
     Ah, Mr. Murphy. You are why Vets have such a good reputation in America. So, you have your hands on your contemporary SMRs and you can clearly see where they state you had ” viral hep” ? A word on this. Viral hep in 1983 was Hep B. This was determined with an Australian antigens test. What the testdidn’t say(but implied) was the disease was not Hep A. This is an important distinction. If the test had been negative and you had jaundice, it would imply you had Hep A. End of claim. But it didn’t. Hep C (aka non A, Non B) was not expertly identified prior to 1989. There were a lot of false positives( and negatives) until about 92-94. Your positive results indicate Hep B, but do not exclusively rule out Hep C. You certainly have leverage and a lot more than you think. A really good nexus from a Gastrodoc stating that the Hep in service was at least as likely as not also Hep C is the glue that will cement this win. B & C are both blood borne pathogens. Hep A travels the oral/fecal route. Ugh. Not sure what you mean by “proving deception.” Do me a favor and read Groves vs. Peake in the Important CAVC Legal Rulings (page 2) to understand the significance of having hep diagnosed in the service. While it can be said you had hepatitis of some kind in the service, it cannot be said with any certainty that you did not have Hep C. That is an important distinction.


     Now, to dispel a horrible misconception. QTC may tell you anything. They may give you the winning lotto numbers for Saturday. What they will not give you is a nexus. The VA sends you there to do one thing only and that is to determine a)if you have the disease you are claiming and  b) how badly you have it (what %) . If you think, or gather by what they say, that they are going to provide a nexus to the VA for you, you are in for a shock. VA raters do this. They gather all the info and make a decision. Usually it is wrong, but 14.7% of the time they get it right-eventually.

     Time and time again I have heard this old wives tale that the Vet comes back and tells us the QTC people are in their court on this one. They may well be, but with that and $4.25 you can get a good iced latte with all the frills or a good heated B&B after dinner in an upscale restaurant. If your QTC doc had stated that it definitely and positively was SC, it still wouldn’t influence the RO decision.  They might look at it as one more piece of evidence, but wouldn’t accord it any more weight than any other piece. No, you’re going to win this on three prongs. One is disease in service which it would appear you have nailed; Two is the same disease (or a reasonable facsimile) currently; and lastly Three- the all important nexus from either a M.D. or an ARNP stating at a minimum that “it is at least as likely as not that the disease the Veteran has now is the one he had in the service”. The doctor has to state that he has read and reviewed not just your medrecs , but also your milrecs to make sure you do not have any UCMJ drug charges on your record. If you peruse 38 CFR § 3.303(B), you will see how that bears heavily on a claim where you had a potentially chronic disease in service that has now resurfaced. that is the crux of what Groves stands for. The QTC doc does not have your medrecs so his opinion is good for kleenex.

     I do not prognosticate on Vet’s claims. I will give you my honest opinion without resorting to tea leaves and chicken entrails that your chances of success are light years ahead of Vets claiming jetguns as the salient vector. Your nexus will be the single most important ingredient in the C file. A weak one is worse than none at all. It simply becomes the springboard for the VA examiner’s denial. As in “while the veteran provided a nexus from Doc. A, it wasn’t very probative because the Doc did not discuss the veteran’s ETOH addiction and homeless status in 1998 nor did he review the contemporary medical records”. VA is good at this. They do it for a living. You do it only once in a lifetime. They look for one mistake and deny based on that. So much for benefit of the doubt.  Just One Veteran’s Opinion (JOVO), sir
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menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #3
Went down to the VVA today to retrieve some records prior to my peripheral Diabetes QTC and also gather some things to share with you..They lost all my records but took my picture and asked me to give them a nice letter on how helpful they were in my claim winning SC for Hep C by air gun injections. What! hahahah….In any case was nice and agreed..they need the kudos. Vet in the office day prior to me  wasn’t a happy camper, went home and called Patty Murry and made threats. Last I heard he was barricaded in his house surrounded by federal agents. I had a mental grin and thought maybe they should ask him for a letter and picture…I still have the home records, not as good and not as orginized as it shoud be but will go through them and find enough to be helpful.  I may have other questions before my QTC on the 12th…..peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
04/28/11 #4
Jez. Tell them to contact the VARO and get a copy of your C-file. I wouldn’t give them anything. Just for shits and grins, did they do all the work to get you where you are now or did you do it yourself? I’ll bet they held your coat while you fought. I really respect VVA because they are light years ahead of other VSOs but the truth is all VSOs are not ready for prime time. I’m sorry if I sound like Negative Nancy. I call them as I’ve seen them in the past. Prove me wrong, Peter. Tell me it ain’t so. I want to be wrong.
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menalteed
Registered: 09/08/09
Posts: 37
04/28/11 #5
Really all they did was typing the forms but some of them now I have found were not correct, case in point my wife is not covered yet. In any case I did call them a lot and had them pester anyone who would listen up in the VA office. The first person I delt with became very I’ll over the last year and retired several month before my case was rated. He was always blown out by my information and thanked me many times telling me how helpfull my information was going to be in helping other vets, “your supplied information  found on NOD”. The new people in the office will take some time to get up to speed but I think they cleaned out all the files to lightin up the office….a mistake I believe…peter
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RDMURPHY
Registered: 07/31/10
Posts: 49
04/29/11 #6
mr mngr, brevity got in tne way again. My claims for hepc have allreadt been approved in 2008,currently sparring with big brother on date of claim. wondering what help if any the doctors statement about drawing blood for a hep survey might do for me in a court of law. They clearly knew something was wrong in 1983. Have filed with VA as far as date of disability a copl of 38 USC 3.157,b,1. this seems to clearly state my right to date of claim from my date of hospitializationin a uniformed services hospital. have read the information fowards and backwards and don’t see how they can slide out of it
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #7
     This is how the system works. If you file a claim, they will either consider or deny. If you have medical evidence from service, but did not file until now, they will not go back to then.The theory is you file within one year of separation to get SC virtually automatically. Absent that, your claim date is when you file. If you are in a hospital and want to file, you can express your wishes to do so. If you file when you get out, they still use the date of when you entered the hospital. You have one year to file this claim after discharge (see  § 3.157(a):                                                                                                                 

Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of §3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report.

The “uniformed services hospital” to which they refer is a military hospital if you were on TRICARE and retired after 20+ years. It isn’t a reference back to any military hospital you ever were in. VA pays (assuming they grant your claim) from date of filing and up to a year earlier if you can prove the requirements listed in § 3.157 re hospitalization (informal claim).
     Does that compute? VA is not generous and neither are their regulations. It mimics civil law in that a claim cannot be imputed. You have to file to obtain benefits. They cannot read your mind, nor will they blithely grant SC back to some ancient time when you had evidence of something amiss but failed to file. Were VA to do this, the government would be in deeper doo-doo financially than it already is.
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RDMURPHY
Registered: 07/31/10
Posts: 49
05/01/11 #8
Thank you, I do not have a complete copy of 38 USC as pertaining to vet benefits. Took your advice and filed a staterment with big brother as far as witnessing my 2006 claim being mailed. My wife has a saying’when it seems to good to be true it usually is’. will continue onward and upward, wish all brothers and sisters good luck in their ongoing battles. Thank you
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
05/01/11 #9
I suggest you not worry about 38 USC. 38 CFR are the regs on all this- specifically Part 3 (adjudications) and Part 4 (diagnostic codes and ratings). They can be accessed by clicking on Federal Code to the left. Best of luck and thank you for keeping America safe. We served 24/7 /365 w/o any overtime pay. It would seem VA would be willing to go the extra mile for us now as we did did for America then. Amen
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About asknod

VA claims blogger
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