The last of the 2011 BVA decisions were posted this morning early. I know. I couldn’t sleep or else I’m prescient. Since my Cryoglobulinemia is in Hyperdrive mode, I doubt it’s precognition. My brain feels like a gigantic sticky spider web.
But when I read this one from the wagon-burner Regional Office, I had that “Oh, no. Jez, scroll back to the top and see who was repping her.” I figured she was pro se. Maybe she should have been. No comment.
I love the Introduction portion of these decisions. It gives you the low down on what to look for and an inking of what’s in store.
The Veteran served on active duty from January 1984 to February 1984.
Wow. A whole month! I thought you had to be in for 3 months before you even got a banana. So… the rating denial occurred in February, 2003. Backtrack about eight months to May-June 2002 for the filing date. They were suuuper fast back then. It then tells us she opted for a DRO hearing at the RO in November 2004. Now, Veterans. Notice the next entry- May 2008 and a BVA hearing via videoconferencing. Three years and six months whizzed by from the DRO hearing, subsequent denial, filing of the F-9 and a new hearing. Form 21-4138s should be issued with seat belts. Apparently at this BVA hearing, VA asserts she withdrew her case for Bent brain syndrome.
Two whole months later the BVA denied in July of 2008. This has to be some kind of record or there wasn’t a whole lot of substance to this thing. One thing’s for sure. There was only one month’s worth of SMRs to review. Janey Doe filed her NOA and the CAVC decided she should get another shot at it. It came back to the BVA in December 2009.
She asked for and got several IME’s from different VAMCs. Unfortunately they all said “Dear Jane.” Of additional interest, I spotted this which means she and her VSO must not have been on the same page.
In her February 2009 informal brief to the Court, the Veteran stated that she should have appealed the appeal that she dropped, referring to the claim for service connection for PTSD.
Okay, skip over the denial and let’s move down to the reason she’s headed to Penny Lane.
The Veteran contended in her February 2002 claim that she contracted hepatitis C from contaminated in-service air gun vaccinations or dental procedures. The Board acknowledges that she had initial dental processing to include panorex and panorex screening in January 1984, was given vaccinations during service
The dental X rays! Jetguns! Round up the usual suspects. Read the SMRs. This is also a good time to go over the risk factors with your VSO officer. I have found it works better if you list the risks at the beginning instead of making them up as you get a feel for the process
In fact, the only evidence that the Veteran contracted hepatitis C from jet injectors or dental work during service was made by the Veteran during the course of the appeal.
Of course, everyones’s idea of risk factors is subjective..
In particular, the evidence indicates that the Veteran had blood transfusions before 1992, used IV drugs and cocaine, and had high risk sexual activity.
Sometimes VA examiners are narrow minded. They don’t get the big picture
As referenced above, the Veteran reported to two separate physicians in December 1999 and January 2000 that she had a blood transfusion after her D&C procedure. However, in her March 2003 notice of disagreement (NOD), the Veteran stated that she did not have a blood transfusion after her D&C procedure. She did not dispute that she received blood after cutting her hand. When directly asked by her representative during her November 2004 hearing if she had any blood transfusions, she replied that there was no hospital record of a blood transfusion. She did not say that she did not have transfusions. Further, the Veteran was also evasive when asked by her representative if she knew of any hepatitis C risk factors that she had before or after service. She replied, "We live in a high risk world, I don't know, I just know that those [jet injectors and dental work] were high risk and I was exposed." See November 2004 RO Hearing Transcript at 4.
Now, before you go jumping to conclusions like I did, you should understand her state of mind
Another September 1987 record indicated that she reported IV drug abuse. A September to October 1987 psychiatric report reflected that she had a long history of abusing alcohol, marijuana, and other illegal drugs since high school. She reported being sober since 1987 and drug free since 1986. It should be noted that the Veteran has a history of treatment for psychiatric disabilities to include schizophrenia since 1986, and has been assessed as having visual hallucinations and being a poor historian.
Yep. You see that’s how Vets get railroaded into rotten justice. Somebody (her rep.) didn’t gag her before the hearing. Now, keeping in mind that they have decided she has a horrible memory for events (see poor historian above), they now opt to believe her when she says she had a txfusion after service. This will conveniently prevent her from SC. Smooth move, VA!
The Board concludes that the Veteran's earlier statements made to her physicians in 1999 and 2000 that she did have a blood transfusion are more credible than her statements made after she filed her claim that she did not have a blood transfusion. It is noteworthy that she reported these risk factors after her initial diagnosis of hepatitis C in 1999 but made no mention of her service, dental work, or jet injectors. Because these records were generated with a view towards ascertaining the Veteran's then-state of physical fitness, they are akin to statements of diagnosis and treatment and are of increased probative value.
Here’s one last reason why Jane is not going to be riding in Cinderella’s Coach tonight
The Board finds it significant that the Veteran has changed her reports of the circumstances surrounding her inoculations with the air gun. When she initially filed her claim, she did not mention seeing blood on others arms following the inoculations. After being asked by her representative during her November 2004 hearing if she noticed a lot of people with their arms bleeding or cuts from the air guns after the inoculations, the Veteran replied that yes, in fact there was. However, later in her testimony after being asked by her representative if there was an abnormal amount of blood splatter or if she saw blood on the equipment, she contradicted her earlier testimony and replied that she did not recall. She added that there was nothing unusual about the dental work she received and that the dental work was a filling, not extraction of a tooth or root canal. During her May 2008 Board hearing, the Veteran testified that she saw another veteran in front of her with blood dripping down her arm while in line for inoculations. She added, "and also, I don't recall, it's been a long time ago. I don't recall though them cleaning those air guns off between each veteran."
Now, remember that the Board decided she was a credible historian about the blood transfusions? “Well, not exactly” as they say over in Hertz car country.
The Board concludes that the Veteran's reports made approximately 20 years after her separation from service that she saw blood dripping down other veterans' arms after receiving inoculations are not credible.
All in all, this is a fast paced story of adventure. Jane and her antagonist-hero es-husband John snort and shoot their way to new highs with sexual abandon and menage a trois encounters. Life confronts her with some hard choices which she meets head on. I won’t spoil the ending.