CAVC–LEEPER v SHINSEKI-SMRs

This decision mirrors what I am appealing in that I had medical records from a civilian hospital during my time in service while on duty. Legitimately, these records would be associated with a Veteran’s SMRs. The truth is they rarely are.

Ronald E. Leeper approached the bench March 23rd, 2011 with an appeal for HCV and chronic Myelogenous Leukemia (CML). The RO and the BVA had done a magnificent job of ignoring the glaring evidence in his favor and focused entirely, as is their wont, on only that which supported their hypothesis.

Ronbo was a lifer and did his 20 in the Air Force. He retired honorably in 1990 and found himself in some medical difficulties shortly thereafter. In 1996, he discovered he had chronic HCV and two years later he got the cancer. After a solid twenty in the service of America, it could reasonably be assumed that that would be the first place to look for answers. Sure enough, he’d had “hepatic symptoms” documented in a French emergency room and had a long history of being exposed to benzene fumes down on the flightline. Benzene, to the uninitiated, is found in 130 octane Avgas and also in JP-4. Actually it’s in all gasoline, but this exposure for 20 years was far more insidious. This is a well-known precursor to CML and many doctors have written papers on it. Hepatic symptoms in 1986 would be impossible to diagnose as HCV, due to it not being “discovered” until 1989. This in no way dissuaded the RO and their cohorts at the BVA from finding against him.

Ronco filed in 2001 and had really good nexus letters to support his thesis on contraction of both diseases. It wasn’t like he showed up with an alien abduction risk theory. A man spends 20 years at a job, comes down six and eight years later, respectively, with some serious diseases and VA concludes that a) there’s no correlation and b) it happened “years and years ago” (a la Maxson v. Gober). The chutzpah is astounding. That the BVA seconded this motion and affirmed twice flies in the face of all scientific logic.

Now, I mentioned above the similarity of our cases (Ron and mine). The RO went to great lengths to ignore anything about the hepatic event in the French emergency room, even though it was part of the evidence. Mine was similar except it was in Thailand. The silence was deafening.

An August 2002 VA rating decision denied the appellant’s claims. R. at 996-99. The regional office (RO) decision noted that the appellant’s service records did not include treatment for
or diagnoses of hepatitis C or CML. Leeper v. Shinseki (2011)

Th is the art form employed by the VA. I want you all to memorize the technique. It is semantics. I bolded the pertinent phrase. The VA examiner didn’t lie. He didn’t stretch the truth. What he did is simply state that that the SMRs were silent for this. If you go no further afield and ascertain the truth, you can legitimately state that where you expected to find this, it was absent.

As for the CML, Mr. Leeper’s treating oncologist stated in his 2002 nexus letter that benzene is a known carcinogen that causes leukemia. I quote:

Mr. Leeper worked for 20 years while enrolled in the service on the aircraft crew support, which put him on the flight line frequently (with hundreds of running planes). In this position he would assist with the loading/unloading of planes and often the fuel pumps would be stored directly in his compound, all of these activities therefore giving him probable exposure to Benzene. Benzene is a colorless liquid that evaporates into the air very quickly and dissolves slightly in water (such as your perspiration). Breathing high levels of benzene can be hazardous, with the major effect of long-term benzene exposure (365 days or longer) being on the blood. Benzene causes harmful effects on the bone marrow and can cause a decrease in red blood cells leading to anemia. The Department of Health and Human Services has determined that benzene is a known human carcinogen and long-term exposure to high level[‘]s in the air can cause leukemia, cancer of the blood-forming organs.

Dr. Ronald D. Butler nexux letter (2002)

It appears this is common knowledge to oncologists and the DHHS but not VA physicians…

In March 2004, the appellant underwent a VA examination. R. at 877-79. The examiner stated that “[t]here is no evidence that benz[e]ne exposure or other agents can cause [the appellant’s
CML].” R. at 878. He therefore concluded that it would be “unfounded speculation” to link the appellant’s condition to benzene exposure. Id. Regarding hepatitis C infection, the examiner similarly concluded that “it is not possible to say when the veteran was infected with the hepatitis virus without resorting to unfounded speculation.” R. at 879. While the examiner noted at the outset that he had reviewed the appellant’s claims file, he failed to reference the 1986 service medical records that noted treatment for hepatic symptomatology or the submitted opinions from Dr. Butler with supportive treatise excerpts.

Leeper supra

Veterans would be advised to learn how to read their RO decisions carefully and fight these mistakes before crossing swords at the BVA. Once a misconception is perpetrated, it can be utter hell trying to undo it. The BVA simply perused the VA examiner’s nexus and agreed. I think that’s fairly obvious. No deep thinking was employed or the deficiencies Judge Holdaway points out would have been called out. Or… there was collusion. I will let the reader ascertain that.

This moved up to the Court and the VASEC finally acceded to a joint remand in December 2006. VA wasn’t finished by a long shot. Even with documented proof of the Hepatitis in 1986 while in service and a new concise, well-written nexus on the CML, the VASEC started spending some serious dough on his new nexi. This is interesting to look at. VA should have acknowledged at that point that the BOTD was there to grant this. Instead, the RO doubled down and went after not one, but two new opinions. They were not going quietly into the night.

In June 2008, Dr. Karl Brown discussed the appellant’s possible hepatitis treatment in 1986 but ultimately concluded that he could not resolve the issue “without resorting to mere speculation because there is actually not adequate documentation of his hepatitis presentation to be able to say what it was actually from, and since we did not really have a test for hepatitis C at that point, it is very difficult to actually answer.”

Leeper supra

Actually, I call bullshit on this and I apologize for my scatological reference. This was a blatant attempt to obtain some negative evidence against the claim. I am willing to bet they had to shop around for a doctor who would say this. I doubt they were lucky enough to lasso this fellow the first time out. Nobody is that fortunate. Again, the wording in red is the defining semantic moment again. The VA here is still not willing to say the 1986 French hospital event even occurred. It’s “possible” which is about as equivocal as you can get. Remember VA hates equivocal statements and if you or I submitted a nexus containing the word “possibly”, it would be tossed out lickity split.

As for the CML? Well, another doctor miraculously appeared and had a significantly different take on it. What I noticed is that there is no reference as to what Dr. Michael Kelley’s area of expertise was. He could have been a proctologist with a minor in obstetrics for all we know. VA is fond of attacking your doctor for not having an extensive background in Gastroenterology when he opines on HCV. Doesn’t anyone find it strange that the bona fides of Drs. Brown and Kelley were inadvertently omitted? When you go up against these people, you have to examine every detail and become anally semantic in your own right. Once you do, you will find all manner of defects in their “expert evidence”.

A November 2008 medical opinion by Dr. Michael Kelley addressed the relationship between the appellant’s benzene exposure and CML diagnosis. R. at 71-74. After discussing the opinions of Dr. Butler along with epidemiologic evidence on benzene and lymphatic and hematopoietic cancers, Dr. Kelley concluded that the appellant’s “CML is less likely as not caused by exposure to benzene during his uniformed service.”

Leeper supra

And? Based on? Predicated on which scientific research protocols conducted by whom when? If you and I cannot get away with such bald -faced, unsubstantiated claims, why is it VA feels it should be above reproach?

The Ronmeister got a new denial from the BVA in 2009. This one was even more queer.

As to the claim for service connection for hepatitis C infection, the Board noted the 1986 treatment for hepatic abnormalities and the eventual diagnosis for hepatitis C infection in 1996. R. at 10-11. The Board found persuasive the fact that “service treatment records do not reveal any findings, diagnosis, or treatment of hepatitis C during active service,” and further that objective medical findings of hepatitis C “are first shown in 1996, many years after separation from active service.”

Leeper supra

Here we see the BVA has graduated from “too speculative to arrive at a conclusion”to the Maxson theorem that it happened “many years after.” As we know, HCV is a cryptogenic disease. This is just more hot air in search of a balloon. 10 years in the life of HCV is a blink of the eye. As you can see in red, they are still trying mightily to keep their head in the sand about the French connection. By “noting” it, the decision will ostensibly be able to pass muster on appeal to the Court. Look up denial in the dictionary and see if there is a picture of the VASEC. These guys are hoping no one will notice the error of not addressing the private medical records and explaining why they are not probative. This is how VA has been treating my case, I might add.

Again, the BVA tried to do the amazing disappearing evidence trick by addressing some, but certainly not all, of the evidence. Leaving out the most probative of documents concerning the CML was no accident. This mistake alone voided the decision. Why did they resort to cheap parlor tricks to hide this? They are past masters of all things legal. They do this 24/7/365. This was not inadvertant and had I been the Judge instead of Holdaway, I would have had some serious words with the General Counsel on his devious presentation.

Regarding CML, the Board found that the “most probative (persuasive) evidence on the question of whether the [appellant’s] CML was incurred as a result of events during active service” was the November 2008 VA physician findings. R. at 18. The Board expressly discussed the “medical literature from the Internet submitted by the [appellant] in 2002” but failed to address the evidence submitted in February 2009.

Leeper supra

Again, we stub our toe on the semantics. The Board has decided the VA physician’s findings are more persuasive without getting down in the weeds and telling us why this is. The CAVC has held repeatedly that statements made with no supporting suppositions are not probative and will be disposed of with the baby’s bath water.

I conclude with Judge Holdaways’ observation:

The Board cannot reject evidence favorable to the claimant without providing adequate reasons or bases for its decision, and clearly, the Board cannot ignore evidence altogether.

Leeper supra

This is not an aberration nor is it the last time the RO and the BVA will attempt this. If a Vet doesn’t appeal, and anecdotal evidence suggests as much, he will be denied based on faulty logic and justice that is corrupted. The lawyers for the BVA were complicit in this ruse. They purposefully set out to disenfranchise this Vet, not once, but twice. The fellow has now invested 1o years into this and is once again headed to the showers for yet another remand. The sheer audacity of the BVA to attempt this a second time speaks volumes about their tenacity. By rights, Mr. Leeper should be at home playing with his grandchildren with what little time he has left. He does not deserve to be accorded the status of a welfare cheat trying to hornswoggle a Social Security judge. That he served honorably for 20 years and has presumptive risk factors that are dispositive of his claims gives him more legitimacy than most. VA’s attempt to deny him is predicated entirely on fabricated opinions manufactured for one purpose. So much for a claimant-friendly venue in which to present our claims. Decisions like this are why I started this web site.

Leeper