BVA–CONNECTICUT YANKEE IN VA’S COURT


 

From the Life Insurance Co.

RO of New England

You know how you can sense things? Have you ever had that Deja Vu, look over your shoulder feeling ? I was spinning through a bunch of those BVA  Decisions on the link above and spotted this one.

http://www.va.gov/vetapp11/Files4/1140114.txt

Immediately upon reading the interlocutory part from the 2009 RO hearing, I scrolled back to see if  King Arthur here had a VSO sword carrier named DAV.  Friggin’ ESP , dude. I apologize for that. Yes, indeed. the way that hearing was going, I knew it had to be the DAV. At my 1990 RO hearing , my weapons bearer Ronbo Ampedout, started out by asking me questions just like this. I’m not referring to the drug stuff, but the general presentation. The only problem was we were supposed to meet at 0800 to go over it for the 1030 hrs Show and Tell. This was before Saturday night special  cel phones,  so I had no way to damp down my panic until he arrived at 1000. We quickly went through the motions. Everything I had to tell him had to take a back seat because he’d done this a hundred times.

“Just let me ask the questions , man. I’ll lead you up to it and then you tell it in your own words. First we’ll talk about the…  the hearing thing and what else? Oh yeah. The tinnitus. Got it. Let me, uh-huh, I better write this down. I do better that way.  Yeah, t-i-n-i-t-u-s.and what else were we… right. The back thing, yeah, hips too? Oh, that’s right. It’s all coming back to me now. You were in the Philippines, I mean Viethailand. So, we’ve still got 10 minutes. How about we go over to the VFW’s coffee pot across the hall? So, does the back thing bother you a lot?” He remembered I was in the Air Force.

They must all go to the same school:

At an RO hearing in January 2009, the Veteran contended that his current hepatitis C was related to inoculations by an injection air gun during basic training. He recounted that he later learned that these inoculations presented a risk of passing on bacteria and viruses. When asked by his representative, he noted that he had other lifestyle risk factors that could cause hepatitis C, including drug use. He also related that he had been told that exchanging toothbrushes or razors was another way of passing hepatitis C. When asked if he had ever exchanged toothbrushes or razors, he said that he had not. He recalled that his drug use history included sharing needles. He recalled that this may have included incidents during active service. However, the law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service. 38 U.S.C.A. §§ 1110, 1131; VAOPGCPREC 2-98.

So, Arthur. Do you mind if I call you Art? What do you think, I mean, after reading all that internet stuff on HCV and all, what do you think you got this from? Yeah. And the guns were like megadirty and bloody, huh. So, anything else? Drug use, huh. Yeah, but you got through that way back in 90 and you’re like clean now, huh. Yeah , and we talked about that razors and toothbrushes thing and your were, like, oh- you didn’t. I thought , well, never mind.

About this time Mr. DRO cuts in and says:

So, Mr. King. You say you had some drug use issues? Why don’t you lean a little closer over there to the microphone? Yes, that’s good. So, you used injectibles and smoked crack? Well, we all did that when we were younger. I know how that is. And VA doesn’t hold that against you, either. We’re here informally and its just here among us, so we can discuss it like men. You say you SHARED needles? Mmmmmmm. Yep. Sometimes they’re scarce and if you know him and he’s your friend, well, you have to trust someone, huh? They say that Hepatitis is really hard to transmit, anyway.

This goes on like a friendly tag team. You’ve seen the cop show with the good cop and the bad cop in the interview room? Well, just imagine two good cops lighting your cigarette and pouring the 7 up in the glass. Ice?  Everyone’s all smiles like the Cheshire cat at this Texas necktie party. These guys are your friends, man. They just want to make sure you get what’s coming to you legally. What could possibly go wrong with this deal…

The Veteran does not have medical training, education or clinical experience. He does not have the medical expertise to relate his current hepatitis C to air gun injection inoculations during active service. 38 C.F.R. § 3.159(a). Because he is not medically competent to make expert medical determinations, his assertion that he has hepatitis C attributable to in-service air gun injection inoculations during basic training are of no probative value. There is no competent medical evidence to indicate that the Veteran’s current hepatitis C may be due to in-service air gun injection inoculations during active service or any other incident of service.

And of course:

Also, as the Veteran described at his January 2009 RO hearing, and as indicated in medical histories of record, he has experienced an alternative risk factor for hepatitis C, which is the sharing of needles during intravenous drug abuse. This is lay and medical evidence of a possible intervening cause of his hepatitis C, for which service connection is not warranted. This is evidence that weighs against the Veteran’s claim as to medical causation.

Well. Bummer, Dude.
There is no competent lay or medical evidence to support the medical nexus element of the Veteran’s claim, or continuity of symptoms of hepatitis C from active service forward, and as discussed directly above, there is substantial probative evidence against these aspects of his claim. The Veteran may have received air gun inoculations during basic training, as described at his RO hearing, and competent medical evidence shows that he has current hepatitis C. However, as discussed above, there are several aspects of the evidence that weigh significantly against medical causation or continuity of symptoms from active service forward.

Yeah, I forgot to mention that.  What we’re gonna do is file for a reconsideration and get you a C&P exam, Arthur. VA supplies the nexus thing for you no charge. If its any consolation, dude,  I thought you nailed it. Your testimony was straight up and we had the pictures of the guys getting the shots. I don’t get it. They told me that 2004 VA FAST Letter works every time. I think we’ll  win for sure if we go for the reconsideration. What the hey, We can always appeal this to the Court. They like so owe you, dude. And I’m right behind you man. You know, like a wingman. FISTBUMP! High Five!

And so it goes. One Veteran at a time.

About asknod

VA claims blogger
This entry was posted in BvA Decisions, BvA HCV decisions, Frivolous Filings, Tips and Tricks and tagged , , , , , , , . Bookmark the permalink.

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