The Power Of One–WGM’S SAGA

Early mathematicians were extremely enamored of the number One. After mastering the simple concept of addition, they branched out into the concept of Algebra and its cousins. Multiplication and division yielded an abnormal result though. One could not be increased via this venue. Likewise, raising the power exponentially gave similar results. The number One refused to obey the laws of the rest of its siblings in this regard. This claims analysis will entail the power of One in its original iteration of addition. Or, more precisely, what happens when you have an extremely intelligent Vet teamed with an equally adept Service Officer. The result is the power of 2 now with service connection for HCV, but with a twist.

One of our members filed for HCV via the jetgun risk. Being extremely intelligent, he amassed great quantities of medical research to support his thesis. I must say he was diligent. He supplied reams of studies, geographic distributions of genotypes, relative assignments of risk via all the known disease vectors- in short, a condensed history of all things HCV. All to no avail as he lacked an M.D. after his name. The VA, as is their wont, wandered off the reservation and focused entirely on the gentleman’s history of documented STDs in service. What ensued next is almost inconceivable in the VA ratings system.

Before I continue, allow me to digress on how a decision, whether it be a grant or a denial, is reached. Before you get the magic paper, it has traveled through many hands to collate, assemble and prepare for a determination. When it actually arrives at the decision team, they all get together and try to comprehend what it is-or isn’t. This is where the weighty question of just what the meaning of “is” is definitively decided behind closed doors. Once a consensus has been reached that the tail is as close to being pinned on the donkey properly as possible, it is sent upstairs for the “coach “ to review it for legal sufficiency and run-on sentences. After passing his/her muster, it is approved by the Assistant Veterans Service Center manager. It is typed up, tattooed by the fake signature machine and voila! Your decision arrives. Count all those safety switches? Safeguards? Peer review? Supervisory review? Whewwwwww, doggies. Okay, Sherlock. How can a bogus decision escape their scrutiny that is clearly and unmistakably erroneous? It simply can’t or else the above scenario is fiction.

The decision came down as a denial for HCV based on high risk sexual behaviors. The Houston VARO held that this behavior was willful misconduct and therefore not in the Line of Duty (LOD). As such, service connection was clearly precluded from consideration. What they didn’t do or investigate was to determine if there was any validity to the jetgun theory. Nothing. Zip. All that evidence collected and the chuckleheads never even looked at it.

After our member received his denial, he found this site. He went to a great VSO, one David Francis of the Texas Veterans Commission (they have real SOs in Texas and I assume they wear six shooters) and laid out the problem. They started amassing evidence-lots of evidence. Mr. Member promptly obtained not one but two nexus letters firmly buttressing his claims based entirely on jetguns, conclusively proved a) that his genotype (1A) was predominantly prevalent in the U.S, compared to 2A and 1B; b) that he had no other risk factors in service besides the jetguns and finally c) that if he had indeed caught HCV from prostitutes in Korea while stationed there, logic dictated that it would have the highest chance of being 2A or 1B. He went so far as to point out that the incidence of HCV via sexual congress as the vector was no higher that 6%. In spite of everything he submitted, VA had glommed on to the six cases of clap he had in 1972. Admittedly, that is a horrible run of bad luck, but he does have a point. It should have been 2A if it were the real culprit.

But the fatal flaw in the denial had inadvertently been cast. VA readily (and foolishly) admitted that it was service-connected. That, in a court of law, is what we call a finding of fact. Big, big mistake. Their judicial mistake however, was misreading 38 CFR § 3.301(c)(1) as saying VD was not LOD. Considering they changed the rules on November 14^th 1972, I’d say the old Houston M-21 computer needed some updates- like maybe about 39 years worth. By jumping in and saying it occurred in service, they couldn’t back out. Boldly going where no VARO had gone before, VA held their cards closer to their chest and decided to bluff this one out.

Having new and material evidence in hand, the dynamic duo filed the NOD. Houston couldn’t ignore it this go around. To be bulletproof, they asked for a Decision Review Officer’s review or DRO review. This is done by one of the ostensibly senior raters who is getting close to 20 years and gets that cozy corner office with a view of the water cooler. They have far more experience and probably saw this denial go by several months before anyway.

So this was the question I asked myself. The M-21 manual has been computerized, cross-connected, and does virtually everything but print the letter after deciding the outcome. Was a hands-on decision in Houston becoming the exception rather than the rule? How did this denial get out of the house? Who was that masked man? All these questions.

While a win is a win, when you present a polished, well-reasoned rebuttal to mental midgets, you can expect the unexpected. I’m sure a lot of midnight wax was burned and every way known was examined to get this tar baby out of the briar patch. It was too late. The finding of fact was cast in stone. The member, WGM13, was infected in the service. That could never change. VA never admits to error like this. What now ensued is best described as post hoc rationalization.

VA has for years refused to admit culpability for those jetguns. Before them steps our member with a thick stack of irrefutable evidence saying otherwise. Seeing the writing on the wall, the decision was made to bail out and rule only on the narrow grounds that VD was not willful misconduct. They promptly grant 40% in hopes he will go away satisfied. This is how things work at the VA. This was not an anomaly. This was not a “Gee. The computer was down that day and the rater had to look it up manually. We sort of screwed up and misread it a little bit. Good thing you brought that to our attention. No harm. No foul. Case closed. Next?”

Mr. WGM13 will now file a new NOD. Presumably from what he has picked up here, he will now start pointing out other mistakes such as the 40% rating. He’s damn near as sick as I am so he should be 100%, too. I’m willing to put down some serious money that says VA is going to handle him with kid gloves from here on out. They can’t have him up at the big house running his mouth about this. Au contraire, ma cher. Look how deeply they buried the jetgun assertions. Look at the final sentence in the DRO decision. They put paid to this jetgun theory hogwash and the subject is, like, yaknow, closed, dude:

This decision is a grant of benefits sought on appeal as service connection has been granted for the condition of hepatitis C. The appeal as to this issue is considered to be satisfied in full. No further action will be taken.

Pretty damn sly, huh? “We already granted service connection when we said you got it in service. Now, since we’re saying it was in the line of duty and not willful misconduct, we are going to pay you for it. Since we have decided it this way, any arguments about whether it was actually caused by jetguns is irrelevant. And since we have decided that jetguns are right out, you have no grounds to carry this appeal further based on the theory.“

Below, Mr. WGM13 has graciously allowed me to display this perfidy. It clearly shows how VA will resort to whatever is necessary to deny. The fact that they have to reinterpret 38 CFR§ 3.301(c)(1) to accomplish this is acceptable. If the default setting is deny, some errors are bound to occur. What could be more innocuous than another denial up for a signature and final okay-especially an HCV claim? With the current error rate of 70% widely attested to, this is really not remarkable. What is remarkable is a clever Service Officer spotting it and taking the appropriate response. On second thought, finding a clever SO is remarkable in its own right.

In closing, I would like to point out the teaching moment. No matter how well you prepare yourself for this battle, VA will come up with some inane rationale for denial. Be prepared. Look closely. Find the flaws. You can win. Apparently it’s just easier in Texas is all.

See all below. If you’re blind like me, click on them and they move to the left. Click again for magnification X110%.