BVA–BUILDING A CLAIM? HIRE THE CARPENTER


Before I begin, I wish to inform Miss Manners, who excoriated me for my incorrect capitalization of “Veterans” in the middle of a sentence, that it is my habit to do so. For your edification, I do this because we are the only ones (8%) who seem to feel it is their duty to keep people free-not just ours.  Most volunteered for the privilege. I gather you didn’t. Veterans, with a capital V, are the idiots who get blamed when the bombs don’t fall where they were intended to, when there is “collateral damage” (civilians), or on the off chance, when someone is “terminated with prejudice” as we used to say. Veterans, with a capital V, are the ones who occasionally get maimed or killed engaged in playing cowboys and indians.  However, veterans with a small v-perchance are those who have worked at GM for ten or more years. They are all honorable veterans of whatever endeavor they set themselves to, and are often quite adept at it. What they will never do is rise to the level of Veterans, and so I shall continue to commit this grammatical error. That’s all I have to say about that.

As much as I exhort  fellow members to engage the enemy in hand-to-hand combat, when circumstances find you needing a leagle beagle,  there are few with more legal acumen than the gentleman defending this Vet.  Mr. Carpenter needs no introduction as I have written several times of his finesse.

As BVA decisions are woefully incomplete, the names of these claimants are not available. We only discover their gender in the rare place where they divulge it via a pronoun.  I take literary license to substitute one where it entertains. Here, I won’t.

This gentleman, a Vet, stands tall in his shoes. If he enlisted in 1971 and still saw service in Vietnam, you have to know it was an unsafe, unsettled time.  We were busy retreating  (advancing in a different direction) from the dear old RVN. The fact that the Vet became homesick and went back into battle almost 17 years later (and was burned) tells us much more.  He may have been a weekend warrior. I can hear that one coming.  If he was 18 when he enlisted in 1971, that made him a 37 year old in the Nasty Guard-hardly a couch potato.

He arrived in DC on appeal asking for a ratings increase on three items and SC for the Hep. He’ll take home what’s behind door number 3-  Uncle Victor’s cookie jar. SC for hep will be the moneymaker here for this gentleman. Scars are like Tinnitus and hemorrhoids. You don’t die from them and VA ratings top out at low percentages.

Our Veteran friend also has some “imperial entanglements” here in the form of drug abuse issues. I suspect if it were  sniffing glue, some parallel argument would be substituted that was equally damning. What is of interest to me is how this is evolving. Obviously, due to VA law, Mr. Carpenter didn’t stroll in off the street at the RO and offer his services. The Veteran had to lose first, which is asinine, but that is a subject for another day.

What happened is the Vet probably did a little homework and knew that the Indochinese peninsula was crawling with every kind of Hep on earth-and thriving, too. He offered as much in testimony. As a combat Veteran (the burns, I would assume), his testimony is gold. Therefore, the after-service negative history has to be couched in polite terms. The VA examiner wants to accord this guy proper respect. The Certified Bedpan-Changing Nurse CBCN)  providing the VA’s nexus very carefully  segues into the drug hanky panky, but immediately seeks sanctuary in…

the issue of etiology of hepatitis C could not 
be resolved without resort to speculation.

Enter the cabinet maker/builder. This Vet would be toast without him. He convinces the Judge to remand this for a real opinion. As luck would have it, they got an assistant  professor of gastroenterology. This guy works over at the VAMC in a sharing arrangement from Duke University’s medical program. VA likes to do this. They don’t hire the doc full time per se. He is paid by Duke but his practice is probably exclusive to the VAMC. He cannot be suborned. VA doesn’t own him. Being knowledgeable about all things Hepatitis, he writes the truth on the magic paper…

The VHA physician stated that the Veteran was part 
of the group of Veterans who carried the highest 
risk for infection with hepatitis C.  The Veteran, 
via shared razors, was noted to have "blood 
exposure" in Vietnam.  The physician opined that 
while intravenous drug abuse, which had been noted 
in earlier parts of the medical history, would be 
a greater risk for hepatitis C than the Vietnam 
blood exposure of Gulf War burns, he conceded that 
there was conflict in the record.  Accordingly, 
in full understanding of both the in-service 
history and the later drug abuse, the physician 
stated that the record was sufficient to show 
that it was at least as likely as not that 
current hepatitis C was caused as a result of 
military service. 

I certainly won’t ask why no one obtained a liver biopsy to show a Stage 3, Grade 3 liver. That would have sealed the deal as to whether it was pre or post service . Had this Vet attained it post 1991, the Stage would be 1 or early 2. Fortunately, you only need one fact to win, so its immaterial here. Since he’s  a Veteran of two wars, I would trust the guy to tell the truth. He apparently self-reported the other negative evidence.

Thus, although this Vet’s post-service risks are great, he gets the benefit of the doubt-something that wouldn’t have happened if the Kenster hadn’t been there to make sure he didn’t get screwed. Having a law dog there with you tells Uncle Victor one thing and one thing only. There is no doubt that you are headed to 625 Indiana Ave. NW if the decision is adverse.

If you knew you were preparing to engage in a legal skirmish with Ken, you’d look at the cards more closely- and perhaps choose to fold.  A good nexus from a VA source that couldn’t be compromised certainly wasn’t what VA expected, either.

I have pointed out the new legal epiphany which VA has used for years off and on. They have started employing it more and more on the Hep claims recently because they’re running out of ammo to defend this. Remember, before Groves v. Peake (2008) VA examiners could “opine” and say “the hep in service appears to have been acute (infectious) whereas the hep he has now is C”? PCR testing put a fork in that. If it wasn’t tested and it was called “hep” in 1970, then it’s still hep today and BOTD says its HCV. However, in the new denial process (post PCR), trying to figure all this out causes consternation and a fear they may get it wrong. Rather than deny the Vet, they leave it purposefully vague and unattainable as in the phrase above. I think it’s on Page 1069 in the M-21-A1.

When all else fails, claim speculation. The phrase to be
employed should closely resemble this: "It's simply too 
speculative for the examiner and it gives him a migraine"

Mr. Vet loses on three 10%ers and wins the big one. Mr. Carpenter catches the next flight back to Topeka and they all go to Heaven in a little row boat. Cool or what?

http://www.va.gov/vetapp11/Files4/1136090.txt

The teaching moment here is when you’re standing at the mailbox looking at your shiny new decision and you see the word “speculative”, it’s time to lawyer up unless you have some powerful evidence you haven’t sent in yet.

About asknod

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

1 Response to BVA–BUILDING A CLAIM? HIRE THE CARPENTER

  1. Dottie says:

    Mr. Carpenter just sent our hcv case back to the raters after getting the va examiners report and also having the VA hepatologist/professor at a University doctors report so this case sounds very similar to ours. Back to RO with a letter from said lawyer to rate it as soon as possible.:) Hopefully we hear something soon.

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