CAVC– Ledford v. Derwinski (1992)– Why we can file for HCV

Veterans have asked me over time why we have a path to HCV when we legitimately didn’t have symptoms of it in service. 38 CFR 3.303 is the path most take for diseases or injuries that were documented in service. Due to the cryptogentic nature of HCV, there most often are no outward manifestations one can readily attribute to this. Well, yes I hear you say “What about the flu-like symptoms after jet gun parties in 1968? What about the sudden feeling of malaise or a decline in health for weeks on end with a gradual betterment over time?”

PTSD claimants have a similar if slightly different maze to traverse in order to attain their rating. Attaining an HCV rating is quite possibly the most difficult to do, though. Even if you get lucky enough to have an entry for clap in the SMRs, you will need a nexus letter to win. Same with a tattoo recorded at separation that wasn’t noted at entry on your Form 88 exam at #39. You can sometimes get around this with photos from service. Buddy letters are also helpful. The RO may still drag their heels provoking a substantive appeal and a trip to downtown Foggy Bottom. What our claims process (presumptive risk) is predicated on is a case decided on August 7th, 1992.

Mr. Odra NMI Ledford filed for heart problems right after he got out and won 30%. What he didn’t do was file for hearing problems or even mention as much. Along about 1989, he got around to that. Apparently he finally noticed in his medrecs that he had  had hearing issues in his right ear and they were way worse now. So he mailed the VA a copy of the separation physical, a new hearing test result and a” so what are you gonna do about that?” VA didn’t respond. Several months later he filed an official 4138 and was more specific. The RO denied several moths later in March of 1990. Odra rapidly sent in N&M evidence but the die was cast on the water. The RO had spoken and there was nothing for it.

Consequently, since there was this really keen new Court that Congress had recently set up…

In its decision of May 7, 1991, the Board noted that the separation examination did not contain “audiometric findings to support” the diagnosis of a possible loss of hearing in the right ear, deemed it to be “significant” that the veteran did not complain about a hearing problem when he was examined for his heart condition in 1964, and found itself “unable to grant service connection for his current defective hearing without a showing of either treatment in service or within the one-year presumptive period following his discharge from service.” Odra Ledford, BVA , at 3-4 (May 7, 1991). Appellant filed a timely Notice of Appeal on May 31, 1991. This Court has jurisdiction pursuant to 38 U.S.C. 7252(a) (formerly 4052(a)). Ledford v. Derwinski (1992)

This is the new Court. They have not spoken on very much yet. They’re still hanging their crap on their trophy walls. The picture of the wife and kids hasn’t even been unpacked in this insane rush to create Veterans Law precedence. Everything has a newness about it like the smell of a brand new car. The VASEC is feeling pretty good here. The case has no holes in it. Right?  Well, not exactly as they say in the Avis commercial.

Read on… 

It is important to note that 3.385 is negative in its terms and in its application. The regulation states when service connection will not be established; it does not, however, determine when service connection will be established. Therefore, by its terms, the regulation does not and cannot apply to the diagnosis rendered on appellant’s separation physical examination because the examination is incomplete and there is no indication whether or not appellant’s hearing met the thresholds for the cited frequencies; the regulation does not in and of itself rule out an award of service connection due to the absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria. If the regulation were construed to require retroactively such in-service examination results before service connection for hearing loss could  be found, serious questions would arise. However, when applied–as it properly must be–to the current audiometric reports, 3.385 compels the indisputable conclusion that appellant now suffers from defective hearing as defined by the VA. Therefore, the provisions of 38 C.F.R. 3.385 do not serve as a bar to service connection. As its “REASONS AND BASES FOR DECISION” the Board noted only the absence of complaints or treatment for ear problems or hearing loss during service and the lack of audiometric findings which would support the diagnosis on the separation physical examination that there was partial loss of hearing in the right ear. We have dealt with the absence of audiometric findings above. Contrary to the implicit reasoning of the BVA, we are unable to find in the statutes or regulations a requirement that there must be complaints or treatment in service before service connection can be found. The separation physical examination is more than sufficient evidence that appellant’s hearing was impaired during service. In the face of such evidence, there is simply no basis to deny service connection on the ground that the veteran was not treated for this impairment while in service. For the BVA to have done so, in the absence of statutory or regulatory authority, was error. Similarly, we hold that the absence of a complaint of hearing loss during a heart examination is not, on this record, a plausible basis for denying service connection. Ledford supra (emphasis mine)

Now, gentle readers, take note. Often a panel of judges open their mouths and commit themselves and their Court to a precedent- forever in some cases. Here is such an example. They used the phrase “unable to find in the statutes and regulations”. That’s a pretty big bite of steak to chew on in and of itself. In conjunction with what is attached to it, we now have the link to why we can say “HCV via jetguns, blood exposure in combat, medics’ needle sticks, tattoos, STDs” and on and on.

By deciding to go to D.C. when he did over what he didn’t get, we are graced with this wonderful piece of jurisprudence. It has stood the test of time and now is the cornerstone of how we can get a purchase on this slippery slope.

Raters do not deal in the Ledfords and the Gilberts of law. They only discuss it in dry terms with their bible-the M-21. In their minds, something is not specifically precluded from being used against you if they get away with it. Remember that. Consider also this ugly statistic- approximately 80 % of us don’t even appeal! This is why we see it written more times than we care to think that “there is no evidence anywhere in the Veteran’s SMRs or being diagnosed with hepatitis C in 1967. Indeed, from his entrance in 1964 to his separation in 1968, he never complained of any liver problems. Therefore, the absence of any manifestation of hepatitis of any kind militates against the claim.”  Even though what they are saying is blatantly wrong legally, they get away with it because you give up. Unfortunately you can quote this to the VA Examiner until you are blue in the face and look like a smurf.  Ledford v. Derwinski isn’t in the M-21 so the claim must fail.

The Court said this in 1992 yet there is little discussion of this even at the BVA level. Why is that? This is admittedly where these things should be brought up and discussed. This is established precedent yet you rarely hear or see any discussion of it. I would say it is an important tool in an appeals arsenal and needs to be sharpened and polished. Invoking it a few times will get it back in circulation on a regular basis. We already use it to get our collective foot in the door. It’s time to enunciate the precedent at the AOJ level by severing the discussion based on absence of it in service.


Truth be told, I’ve never had so much fun looking for something to conflusticate these folks with. One thing bothers me. Odra? Where in Sam Hill did Odra come from? Must be an inside joke or a family name from the old country. Sure will set a man apart and keep him on your mind, huh? Odra Ledford. Sounds like Jed Clampett’s next door neighbor in Bugtussle.

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, Important CAVC/COVA Ruling, Tips and Tricks and tagged , , , , , , , , , , . Bookmark the permalink.

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