Over the years, the VA and the BVA have become more adroit in their handling of denials where HCV is concerned. Hepatitis comes in many different forms and is not always as simple as it seems. This case is a prime example. Many kinds of Hepatitis are not the garden variety alphabet types and VA tends to try to group them together for simplicity’s sake. Here, they can’t even agree on which one it actually is. The Veteran, Perry Braxton Greer, is no longer with us to add his voice and a new biopsy to the record.  As they say in the obituaries, “Gone fishing-November 1, 1995.”

Perry’s wife Betty, the appellant in this case, is appealing a denial by the BVA from January 2010. She belatedly filed for accrued benefits and an appeal of the denial for service connection for the cause of death. What makes this decision so intriguing is the reasoning of the Judge, Mary J. Schoelen. Her Honor is the daughter of a Vet and she came up the the congressional ranks doing extensive work for the Veterans committees. This gave her a rock solid foundation on the plight of Veterans. Thus it is no mystery as to why she has an excellent track record on ferreting out the truth and exposing the shortcomings of our “infallible” non-adversarial system.

Perry had a documented history in service of digestive issues that continued chronically post service. In fact he testified that he suffered from vomiting and diarrhea frequently after separation. He even had his gall bladder removed in 1970. With a documented history of something amiss, it seems amazing that the VA could deny this Vet. He had numerous letters attesting to various diagnoses. Although none were dispositive of exactly what it was, the general consensus was that it was from service in 1950-54 while in the Japan/Korea theatre. He also had abnormal Liver function tests that showed elevated SGOT/SGPT readings. This, in itself, would be pretty damning evidence against the VA’s findings.

VA, as we all know, sometimes raises their hackles and refuses to budge. They will go to great lengths to discount your theories and nexus opinions to rule against you. This is what transpired here. This old boy had enough mustard on the hotdog to satisfy most courts of law. VA didn’t think so. Unfortunately, he died in the middle of this before another liver biopsy could be performed.

Now keep in mind this all started back in 1992. That, for the numerically challenged, was twenty years ago. This is still the same claim and is now headed back to the BVA on remand for the same old reason-VA screwed up. Having done this since 1812, it would seem they have had ample opportunity to perfect the process. I don’t think we can point to a specific weak link in the chain. There seem to be numerous places where these errors occur and no end to the variety.

Here, the VA chose to send out for an Independent Medical Expert. I would respectfully ask what VA defines as “independent”. Independent would seem to me to be the sort blindly chosen from a fishbowl of potential MDs with suitable credentials. Anything less smacks of a denial in search of an opinion or, perhaps, vice versa.

The BVA, thus armed with the new ammunition, denied Mrs. Greer on all counts and that brought her to Judge Mary several years later.

Betty was smart and lawyered up with one Sandra W. Wischow, Esq. which was very fortuitous. Two women and a Female Judge is apparently a lethal combo. It didn’t take long to pick this apart and see all the little tricks VA uses to make objects appear closer than they are in the mirror.

After an extensive review of the record and inclusion of part of the Board record, Judge Schoelen remarked:

The appellant expresses, and the Court shares, incredulity toward the Board’s reasoning. Appellant’s Br. at 13. The Board allows the absence of a discussion of record material in the opinion to serve as proof that such a discussion was not required for the opinion to be adequate. The statement, however, reveals that the Board itself is aware that the IME failed to account for contrary medical evidence in the record in his opinion.

This case, as the IME noted, is characterized by conflicting opinions among numerous medical documents as to the actual nature of the veteran’s liver disorder. As the appellant notes, several of these documents, such as the report from the veteran’s September 1987 liver biopsy revealing that there was “no evidence of . . . auto-immune liver disease,” and a March 1994 medical note indicating no evidence of “1E biliary cirrhosis,” appear to be compelling evidence against a diagnosis of PBC. Appellant’s Br. at 12 (citing R. at 345, 686). Given that the IME concluded that “[a]ll available evidence is consistent with a diagnosis of [PBC]” (R. at 54), his failure to explain why evidence that seems to contradict his diagnosis is, indeed, consistent with his diagnosis renders his statement inadequate.    Greer v. Shinseki (2011)

The Board decision ridiculed Mr. Greer’s lay testimony, and later that of his wife as not being credible. Veterans would be advised to sit up and take notice of this. This event didn’t occur in 1970. It happened during the adjudication of the case in 1994, and much more recently at the turn of the century. The VA, both at the VARO and Board level, are very fond of using this technique to make it appear as though the Veteran and his witnesses are incompetent, incredible and not credible. They get away with this frequently and only stub their toes when they arrive at the Court or the Fed. Circuit. As so few Vets appeal this high, they generally get away with it. Familiarity breeds contempt and here it is on display:

Next, the Court notes that the U.S. Court of Appeals for the Federal Circuit has stated that “[w]hile the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence, the lack of contemporaneous records does not, in and of itself, render lay evidence not credible.” Buchanan, 451 F.3d at 1336. As the appellant notes (Reply Br. at 6), the Board appears to reject the veteran’s and appellant’s lay statements, as opposed to merely assigning them less weight, because they are corroborated by some medical documents in the record but not by others. Thus, the Board is unsuccessful in its attempt to distinguish Buchanan.  Greer supra

While I feel some empathy for the VASEC’s dressing down here before Judge Mary, I see a trail of deceit, innuendo and outright evidence fabrication to sustain their findings. There is little in their favor to even point to as an alternate theory. A lovely analogy is building a tree fort supported by three trees. Here the judge has unceremoniously cut down two of them leaving the tree fort unsupported. Had the VA done their job, they wouldn’t be up here shucking and jiving before the judge:

Because the Court has found the September 2009 IME report and the Board’s statement of reasons or bases explaining its rejection of the appellant and veteran’s lay statements to both be inadequate, the Board’s statement of reasons or bases for rejecting Dr. Sue’s opinion can also no longer be considered adequate.

The Board’s statement regarding Dr. Sue’s failure to discuss PBC is also no longer adequate. The Board found that Dr. Sue’s silence as to PBC weighed against the probative value of his opinion because PBC is “the most likely diagnosis suggested by the other medical evidence of record.” R. at 26. Because the Court has found the IME’s opinion to be inadequate, the Board’s characterization of the evidence may no longer be accurate. Therefore, the Board, on remand, should reconsider the probative value of Dr. Sue’s opinion based the outcome of its future development of this case.          Greer supra

Since the beginning of recorded VA history, our VASEC and his forebears have been engaged in a nefarious scheme that denies all but the most obvious cases. While this one is not as clear cut as some, the evidence mitigates more for a benefit of the doubt argument than a concerted effort focused on denial and a show trial confirming it on appeal. Mrs. Greer and her attorney have made a credible effort to attain justice, all the while being given short shrift by the VA. I wager we’ll hear no more from her because this will be settled in her favor.

 http://search.uscourts.cavc.gov/isysquery/14bbe483-6022-4b8e-bf9a-e646aa2b1680/1/doc/

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