I swear that the words that make their way onto this screen are born of woolgathering while driving. I keep a tablet under my right hand and a pen poised for when the little man in my head presses “Send”. It could just be an overactive subconscious brain function that regurgitates all this drivel. Likewise it could be that I am tied into the sotto voce Universe of all that is VA. Maybe I am the CHOSEN VA ONE. I doubt it.
I heard the word “plausible” being parsed in all its iterations on the radio this afternoon. Michael Medved had excavated it out of some diatribe by a progressive-thinking extrovert who was attending the Occupy Wall Street Happening. Someone stole his lap top from his tent in the “peace”park. He was rather nonplussed that one of his contemporaries would do this. No, I’m not going to go there. I’m still laughing and the back of my head hurts. It’s worse than an ice creame freeze in your nose.
The VA uses the term “plausible” to define the improbability that a jetgun can transmit the dreaded HCV. There has been many a great tree felled to write this large for the last seven years. I’m sure many have read the Fast Letter launched after some Judge, who hadn’t checked his fax machine, approved a claim based on that scenario. Since then VA has been monolithic in their recital of that holding or finding. Chinks have developed in the armor and well-written nexus letters continue to show this wall can be breached.
The large majority of HCV infections can be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. Despite the lack of any scientific evidence to document transmission of HCV with airgun injectors, it is biologically plausible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the airgun was the source of the veteran’s HEPATITIS C. ( VBA Fast Letter 04-13 (June 29, 2004).
Nevertheless, when perusing the M-21 and CAVC precedence-setting law, it is drilled into us that we cannot submit documentation of our ills couched in the terms “possibly, probably, might have, it’s within the realm of reality, most probably, conceivably, in all likelyhood, or “plausible”. The VA has insisted for years that any nexus discussion be encompassed by quantitative, measurable phrases such as “at least as likely as not, more likely than less likely, most likely” or the dreaded “not at least as likely as not.” I exerpt the following from the M-21:
1.12 DIAGNOSES DO’S (Also see diagnoses don’ts)
1. Definite diagnosis: Give a definite diagnosis or use the previously established diagnosis.
2. No Diagnosis found: If no diagnosis is found for any claimed condition, state this. For example, state “Lower back pain: There is insufficient evidence to warrant a diagnosis of an acute or chronic low back disorder or its residuals.” Explain in detail the reason why a diagnosis cannot be established for the condition claimed.
3. Diagnosis of Unknown Etiology: If a disability does exist but a definite diagnostic name cannot be given to it, state this. For example, state “Muscle strain of unknown etiology”. (See Gulf War Examination Worksheet concerning “undiagnosed illnesses” in Gulf War veterans.)
4. Support each diagnosis: Support each diagnosis with subjective (history) and objective (physical) data.
5. Effect on daily activities and work: Comment on the disability’s effect on the veteran’s daily activities and his ability to work.
1.13 DIAGNOSES DON’TS (Also see diagnoses do’s)
1. Non-committal diagnosis: Don’t use phrases such as “possible,” “probable,” “may be due to,” “could be,” or “rule out.”
2. Symptoms or signs: Don’t use symptoms (pain) or findings (tenderness) for a diagnosis.
3. Opinion for further studies, evaluations, or laboratory tests: If further studies, evaluations or tests are necessary, perform them before making a final decision. Otherwise the examination is incomplete and will returned as inadequate.
4. Additional comments following the diagnoses: Don’t add caveats to the final diagnoses, since they might undermine the diagnoses.
5. Change the previously established service connected diagnoses: Don’t change previously established diagnoses unless you carefully explain the discrepancy and adequately substantiate the new diagnoses.
And of course, this:
1.16 HOW DO I GIVE AN OPINION FOR NEXUS (relationship to a military incident)?
When asked to give an opinion as to whether a condition is related to a specific incident during military service, the opinion should be expressed as follows:
1. “is due to” (100% assure)
2. “more likely than not” (greater than 50%)
3. “at least as likely as not” (50%)
4. “not at least as likely as not” (less than 50%)
5. “it is not due to” (0%)
Now why is it that VA is allowed to characterize the possibility of contracting HCV via a jetgun plausible, but unproven and meet the same standard of proof? Unproven by whom? By who’s measure? Where is the scientific study that proves this beyond the shadow of a doubt? When fisheries experts talk about the dolphin caught in the nets and asphyxiated while fishing for tuna, who speaks for the tuna? We have a double standard here. VA and their minions have documented that which they feel needs explanation and segued on to the next argument before we can hold their feet to the fire on the preliminary one.
On the one hand, Obert v. Brown, 5 Vet. App. 30,33 (1993) succinctly dealt with this and is on point. VA’s habit of using the “plausible” word where jetguns are presumed to be the risk, is unacceptable for similar, obvious reasons. Obert, Bostain v. West (1998), Stegman v. Derwinski (1992) and Elkins v. Brown (1993) are all part of a long history of deploring the use of comparisons which are equivocal or can be equally implied to be so. For instance, “possibly” implies an equal probability of “possibly not”. Hell, the word “probably” is equivocally fraught with the connotation of “probably not”. VA embarked on a policy as early as 1992 , seconded by the Court (Stegman), of requiring a rating speculation that was quantifiable and capable of being held up to comparison to another prognostication. The idea was to enable higher Courts to measure each on a level field and utilize the most probative and discard the others which were less than specific about etiology.
As we can see by follow-on jurisprudence and the phraseology of the M-21, this has been incorporated into existing VA Law. So, with that in mind, how do we find ourselves mired down in “plausible jetgun risk” or “it’s all too speculative to make a clear, concise decision as to the etiology of the risks associated with the jetguns”? We have a horrible dichotomy brewing here where VA can resort to speculation and declare it is “less likely than more likely” based on specious, plausible (or equally implausible) data that is inconclusive or unfounded. Simply stating that it has not been documented in medical annals doesn’t make it fact. It simply confirms that it hasn’t been documented yet, but is capable of happening. Chaos theory has amply demonstrated that anything that “can” happen, will.
Vets would do well to make this fact an integral part of any submission in their Form 9. BVA judges have amazing minds and are open to innovative, rational arguments which illuminate the negative as an actual positive. CAVC Judges are even more so.
This goes further than the philosophy that no evidence is negative evidence. The hypothesis I am proffering contains the proviso that if VA intends to defend their contention that there is simply no evidence of a correlation between jetguns and HCV, then they need to present evidence of studies proving just that. A well-crafted nexus letter with supporting evidence such as that submitted by member WGM (see THE POWER OF ONE) is ample proof of what scares the bejesus out of these chowderheads. When they cannot argue with your logic, they will retreat to lesser, weaker arguments to deny. Ofttimes, they simply fold up the tents and grant your claim. Any well-reasoned denial is cannon fodder for the BVA and the Court. The RO is long on bluff and denial and woefully short of supporting logic. In their inevitable attempts to hornswoggle you, they sow the seeds of their own eventual defeat on appeal. Unfortunately, this means a time delay to an eventual coup d’etat. Considering the rewards upon success, why anyone would punch out when it comes time to appeal is unfathomable. The odds favor him who appeals. Even were you to employ the services of a lawyer to gain this, the reward of up to $33,876.00 a year tax free for life is a powerful enticement to persevere.
Vets must realize that one of the prime reasons SSI lawyers win eventually is that the SS administration and their judges have many fish to fry. When you discover the secret of the game and become an irritant, they will brush you off like an annoying horsefly and move on to the next victim. VA is no different. If you appeal this up to the Court and get a remand all the way back to the RO, it will be horribly time-intensive to combat it. If there’s even a glimmer of truth to it, VA will inevitably cave in. You can see this based on the paltry number of claims that made it to the Court reappear. I rarely see them wend their way back up. Where did they go? If the Vet was so anal as to fight this for 6 years to the Court, I find it hard to believe he would throw in the towel after a remand back to the RO. Somewhere on the way back up a modus vivendi was crafted where horsetrading was employed. I think it’s fair to assume the Veteran became the recipient of VA’s largess in this trade rather than the obverse.
I counsel Vets to bide their time. VA is slower than a slug on asphalt at 0900 in the sun. Winning is done the way you won in SEA. You set up your perimeter, put out sharp-eyed point men, employ the M-60s in an enfilading fire and light up a Marb. They’ll be along in a while. They will lose on a frontal and regroup. You will have to go to D.C. (airstrike) to protect those frontal assets. Retreat is forbidden by six actual and his superiors. You must stand and fight with what you have. Just make sure what you have is enough before you sit back and light up that Marlboro. Your claim is alive and requires flexible planning and continual defensive adjustments based on the enemy’s movements.
Falling for this ploy of two sets of rules for evidence is endemic among Vets. We trust VA to at least play by the rules we are required to. If you are held to one standard, VA must technically acquiesce to the same. Be sure to incorporate this into you perimeter defense when constructing it. Whining about it after you lose is asinine. Make them prove their theories of “plausibility” just as you are required to. Winning is a state of mind that cannot be blunted, defused or deterred.