Nexus letters. Perhaps the single most important item in your claim is a piece of paper with magic words on it. What’s frightening is that almost no one files with it in hand. VSOs seem oblivious to the requirement which is extremely odd. VA’s letters have always been vague on this and are now finally addressing it in English rather than VAspeak.
Over the last several months I have been asked numerous questions about what is needed, how it should be phrased and what it should cover. A new group of Vets have found their way here and were never part of the old site. They have not delved into the BVA jetgun library or the Tips and Tricks section. I have noticed this habit on other sites where a Vet new to the process asks for advice and often prepares his whole defense before receiving his records from St. Louis. Winning this game is more than filing a claim and waiting. This is why this site exists and why there are almost 500 posts by both you members and me. Those posts document tried and true techniques as well as failed strategies. It’s often as important to know why someone lost as it is to understand their success.
A large number of you have claims which are intricately tied to, and based on, the jetguns. Your chances of getting justice and SC could never be better. The brick wall of invincibility against jetguns is crumbling. Slowly, I might add, but nevertheless inexoribly. It has taken almost seven years to get some traction on this at the BVA. There still is none at the VARO level as it’s above their pay grade. They deny and punt to the BVA to avoid setting any kind of precedent. If I worked there, I wouldn’t want that blemish in my folder come promotion time.
Now that a sufficient number have made their way up to the Court, a modus vivendi has been reached. VA and the BVA can no longer use their timeworn “non-evidence is negative evidence” dance to win. The facts about HCV have become well-known even to the Court and it’s cryptogenic nature is by now common knowledge. It is important, however, for you to note that there is no evidence in your file that you had HCV because it hadn’t been identified until 1989. If you don’t, well, VA will. They phrase it simply as “There is no evidence in the Vet’s SMRs of being infected with HCV during his time in service”. They always conveniently leave out the reason why.
This is where you, the Vet, can win. I think any rational thinking person other than a VA examiner could fathom that an unsanitary, blood-splattered multi-use injection device is capable of transmitting a robust virus when employed numerous times a day for weeks and years at a time. By granting that it is plausible, they leave open the door to the possibility. The mere fact that no one has been proven to have been infected with this device is immaterial. That is the “non-evidence is proof” school of thought. Scientific types would laugh you out of the laboratory with that pronouncement. VA, by never attempting a protocol to study this, has used it to be the truth that there is no evidence of it. Circular logic is very self-affirmative. It’s not scientific, but it can be used like smoke and mirrors to appear so.
Enter Joe and Jane Vet. Each one’s actual risk factors are slightly different. A failure to identify them at the beginning is often used later by the examiner to somehow imply deceit or desperation. This is where you have to get it right. You want all your risks on the table with no hole cards. You are going to have your doctor examine your contemporary medrecs to ascertain there was nothing out of the ordinary when you were in service. There must be an accounting for any risk mentioned, such as extensive dental work. You are capable of reporting a large amount of blood from this kind of medical procedure and are also cognizant of what dental work in 2011 is now compared to the same in 1975. There is simply no comparison.
Any STDs must be addressed. The same is true for tattoos and percutaneous puncturing of the skin such as an EMG test or acupuncture. Exposure to blood or needle sticks as a medical worker are another risk. Blood exposure in combat is another big risk. If you were in Vietnam, your mere presence there increased your risk by 60%. In short, you must assemble these risks and have your doctor address each and every one in his/her letter.
A nexus letter is going to be your bridge to the past as well as your path to a grant of benefits. The idea is to assemble a complete package that covers all the risks, important and inconsequential, that you, personally, were exposed to. The doctor will need to explain which particular risk is the most probable one over all the others with a descending order of risk danger for each additional one. At the end, a small summary can include a discussion of the sum of all risks and why there were none of any great import after service that bear responsibility. Again, you remove this post-service, intercurrent time span from discussion by stating that there were and are no risks. Failure to plug this hole invites a fishing expedition on VA’s part.
You can help by creating a lay testimony document where you give a brief summary of your pre-service and point out the absence of risk(s) post-service. Monogamous relationships, no history of multiple sex partners or wild, risky sexual behaviour, a quiet, mundane existence- all of these are examples of a stable lifestyle. It goes without saying that you do not want a long history of drug or alcohol abuse documented in your record. With all these attested to by both you and your spouse, it really leaves only one risk- the jetgun. This is how you build to a crescendo and win. You have to plug up all the holes in the dike before flooding the canal. Running to and fro with a caulking gun after the leaks begin is not advised. It compromises your credibility. You want to present one story with no additional editing.
VA is not your friend in this endeavor. They would just as soon use their VA doctors to “opine” on your jetgun experience and they have one setting which is not in your favor. You must build at least one foolproof nexus that has no mistakes. It cannot overlook anything. This is, unfortunately out of your hands when entrusted to most physicians. They insist on doing it their way with their phraseology. You must become a diplomat and gently “aim” your doctor in the right direction unless you are doing this with a professional such as Dr. Ben Cecil or his type. The easiest way is to employ a dummy letter for a doctor who is unfamiliar with the VA’s idiosyncrasies. Most letters I have given to Vets to use are specific to their circumstances so they are not universal, one size fits all letters. If they were, I would publish one here now.
The easiest way to do it is to present it in outline form rather that type it up and ask them to sign it. I suppose you can present both. I had to for one Vet. His doctor was “indisposed” to reading the outline, but uncomfortable with anyone writing it for him. We wrote it both ways and presented it to his nurse. Several weeks later he emerged with a very imperfect letter that didn’t even acknowledge he’d reviewed the Vet’s SMRs. We patiently printed up a BVA case denial that incorporated the fact. He rewrote it properly and the Vet went on to win. The important thing we have learned over time is that an imperfect nexus letter will be decimated and rebutted by VA and their doctor’s nexus will prevail. You do not want to play catch up. You want all the facts on your side with only one permissible view of the evidence.
One of our members, WGM, did this to perfection and VA stepped on their necktie. They knew he’d win on the jetgun claim and didn’t want to be the last one to say “Not it!” They finally granted SC for his STDs even though he had no nexus saying that. He did have one of the most clear and concise nexus for jetguns I’ve ever seen, though. VA never looked at it with the idea of contesting it. It was simply bulletproof.
VA must think we Vets never talk amongst ourselves on these subjects. Here’s the link to WGM’s case I wrote up this fall. I will contact him and ask him if he can email me all the particulars that he amassed with the purpose of winning on the gun.
WGM is currently appealing his rating percentage at the RO. Because he probably would rather remain incognito for the time being, I’ll have him send it to me and it can be sanitized if necessary.
One thing I do think needs to be addressed is the matter of what non-specific information you include with your claim. You want to defend your logic without boring them to death. Too much evidence will not win it if it’s not on point. For years Vet’s would mail in their group picture showing some member of their platoon in basic getting blasted. This never worked because First, it wasn’t them; Second, there is no way of knowing what was in the gun and third and last, the picture could not show the sanitary condition of the gun nor whether it was even being wiped between shots in some rudimentary attempt at hygiene. Fortunately, VA has given up on one of their standard denial procedures. Up until 2010, they would routinely say that there was no evidence in the Vet’s SMRs that a jetgun was employed to administer vaccines. Ruh-oh, Rorge. They didn’t contemplate the holding in Layno v. Brown (1994) that said we are capable of observing things without making medical pronouncements about them.
Anything equivocal, subjective or based on hearsay submitted with your claim is useless. The quintessential proof would have to be if a Vet in your platoon was infected with HCV and the genetic RNA markers were identical. That is where your picture from boot camp might be useful. With Facebook nowadays, it’s conceivable one of those you seek may be on there. You have their names from the picture and it’s one hell of a longshot. All it would take is one hit to open up the floodgates on this. Your odds of winning the Lotto are about the same. This is why the nexus letter is the make or break point and the focus of your whole claim. Weighing your claim down with studies on guns and what happened in a hospital in India is all well and fine, but it has no bearing on you and your claim. It is information about someone else. You can and should find things to include that prove the guns were suspect such as this:
Buddy letters are often employed to show inception of tattoos when your medical records are silent on this. Buddies are not useful for testimony on STD infections you had. They can only testify to things they can perceive by their five senses- hearing, sight, smell, taste and touch. They can testify that you were yellow as orange juice before you went to the hospital for a month with hepatitis, but they cannot say that you had hepatitis. Only the Doctor can surmise that.
In short, you are an ignorant boob with sensory perception and no medical training. You are dependent on your medrecs, your milrecs, your upstanding morals and lack of risks to win this. You can state with some authority that the guy in front of you bled when he flinched during his jetgun experience. You cannot say that the gun or the vaccine probably had HCV on it. Lastly, you cannot do it without a nexus. If you have all the ingredients and lack the nexus, you will lose. This much we know. VA knows that at some point, some one will win or lose this with a nexus and if they get theirs on record first, it will play hell on your claim until you can rebut it with your own.
VA has never, to my knowledge, had a VA examiner state that it’s as least as likely as not that the jetguns are responsible for Joe Vet’s HCV. The BVA has on numerous occasions (30?) overruled the RO and said it’s plausible. A positive nexus is almost always the reason. I do believe I have chronicled each and every one of them. Most are dual risks, but acknowledged the jetguns were “plausible” causative factors. The VA is committed to keeping this cat in the bag. That certainly does not preclude winning. It just raises the degree of finesse needed to prevail. A Kevlar nexus is that finesse, but you want yours on record-preferably first.
Here’s the Dayton Dental Debacle. It is useful to show that “unsanitary” happens- even after 1992. The endoscopy infections from HCV down in Orlando are further proof of it. In fact, we have one of our members (Mike) currently fighting on that front. He just received a nexus from Dr. Cecil which covers unsanitary colonoscopy lapses post 92. VA would certainly have us believe this is so rare as to be statistically insignificant. That info is also available to any who need it. I will need to sanitize Mike’s paperwork and get his permission to share it first. Correction: Mike just emailed and gave me same.
In closing, think of the nexus letter as part of a three-legged stool. You have to have the disease currently (one leg); You have to have had Hepatitis in service or a recognized risk factor documented by other than lay testimony (second leg)and most importantly, you need the nexus link. The only thing that can defeat this is a defective nexus that is lacking one of the prime ingredients I have discussed here. If it is deficient, VA will take the opportunity to say theirs is more probative and yours is useless. Then there’s nothing for it and it’s time to pack up and head to D.C. on appeal. I suppose a DRO review under 38 CFR §3.2600 is another avenue, but I have never seen a win via that route. Again, the VARO is extremely sensitive to this issue of jetguns and would prefer that you not submit them. In any case, they will take a flyer and force you to appeal.
Winning is no more than following a recipe. VA uses the obverse to deny. Their method simply begins with the hypothesis that your claim has no merit and works to compile proof that this is the case.
When you hand your claim to VA, it has to be teflon-coated. This saves you time and gets you in the catbird seat sooner. Leave no room for doubt.
This is my Basic picture. I’m in the center, above and slightly to the left behind my T.I., SSGT Nixon. Note the jetgun picture in blue at the bottom left.