CAVC–MORRIS v. SHINSEKI


I always admire Vets for going it alone. Here, Mr. Kenneth L. Morris has chosen to go all the way up the ladder to the CAVC for justice. The problem is that his grasp of law is deficient. When we assay to defend ourselves it is a given that we have all the proper documents and diseases before proceeding. Mr. Morris lacks the latter to the detriment of his claim as we shall see.

Mr. Morris and I share something in common. We both had hepatitis at the same time albeit in two different places. His was in-country and mine wasn’t. I was up -country at the time. I will leave that to your imagination as to where. Mr. Morris was also very sick as was I. This was usually an indicator of  HBV rather than HAV but there was no way to conclusively identify it until 1972 and the advent of the Australian Antigens test. This test conclusively determined if it was HBV. If it was negative, medical honchos surmised it was A. This was before the advent of any tests for HCV but that is not what Mr. Morris complains of.

Mr. Morris was so ill they air-evac’d him to Camp Zama back in Japan. From there it was back to the States for additional treatment and a discharge. This was abnormal for someone to be sent back. Most, like me, recuperated and were back in the field in 6 weeks. Mr. Morris went on about his merry ways and nothing more was heard from him until he filed for the hepatitis, hypertension, heart disease and PTSD. Some were denied and others were still in development when this came to the Court. As such, the Court will only deal with the issues which are appealed from below.

Mr. Morris complains that the hep has ruined his life but he doesn’t actually say how. HAV and HBV are different from HCV. The former are not considered chronic although HBV can be if the individual has autoimmune deficiencies that prevent the body from successfully conquering it. This is not the case here. Mr. Morris has no antibodies present that would indicate an ongoing chronic infection of any sort. Merely having a disease in service does not automatically allow for claiming it afterwards. Certainly there are exceptions, such as mine where the doctor felt coinfection of both HBV and HCV occured at the same time. Kenbo has no such problems and that is why his claim fails. I won’t go into the hypertension because that is not an issue I am conversant with.

The teaching moment is rather simple. Three things are required to file and win a claim. A disease in service or a risk for same, a current chronic infection of the same, and a nexus letter tying the two to each other and service are prerequisites for this. The VA was honest on this rare occasion and fully well admitted he had HBV in 1971. What they argued was that Kenny didn’t have it now. As for his argument that they didn’t bother to find a Camp Zama hospital orderly (Larry Knight) who was there in 1971 is immaterial. Trying to claim a due process violation for an acute disease process is like peeing into the wind. You gain nothing.  Mr. Morris has learned a valuable legal lesson and consumed much in the way of legal resources which are in high demand by other Vets. While I will not raise the “selfish” argument, I will point out he should have done his homework on the disease process before pushing “print”. This information is available to all on the internet so it cannot be said that he had  no avenue to scientific tomes on the subject.

Mr. Kenneth L. Morris’ unavailing argument for HBV SC:

Click here then enter   10-3699 in the search bar.   Then click the blue Download in the upper left to view normally.

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, Frivolous Filings and tagged , , , , , , , , , . Bookmark the permalink.

6 Responses to CAVC–MORRIS v. SHINSEKI

  1. Kiedove says:

    –It’s too darn bad that nurse Larry Knight’s name was made public in the CAVC records because this is just hearsay and now his name is immortalized.
    ______________
    Question: So then, is it wise to file for secondary’s at 0% to get SC even if the secondary isn’t troublesome at the time of filing?

    • asknod says:

      I have, and will continue to have the belief that the primary disease process be the subject of one claim. Win that and you win them all. VA tends to look askance at claims with 11 secondaries. I had my doctor list my secondaries in my nexus letter and submitted them all together. I had filed for PCT in 94 anyway so I had two. The tinnitus was a claim for increase. Choose the diseases that will kill to file for. If the winnings come in less than 100% + 60% additional, file for more until your rating is. That will give you the magic combo for SMC-S at $324.00 more per month. It might sound paltry but its $3888.00 more per year on an admittedly frugal diet of $2924.00 per month.

      • Kiedove says:

        A princely sum compared to our current income.
        _____
        My DH broached the subject of a PTSD nexus letter with his VA shrink during a check-up. The doc told him that he’d have to write to a TX VA doc for a nexus letter in order to stay “impartial” during ongoing treatment. Never mind that he only sees my DH 3-times a year for medication. I hadn’t read the “impartiality” reasoning before. Is this for real or just an excuse to avoid helping or going on record?

        • asknod says:

          No, the VA changed the way they do PTSD C&Ps. Now only a designated hitter can do the exam. Guess who? That wascally VA examiner we hear so much about. The doctor writes what he knows. The VA rater looks for a stressor and an excuse to deny and at long last a GS-11 makes the decision who never set foot in Medical School. He gets his boss’ signature and last but not least, the asst. Veterans Service Center manager puts his John Hancock to paper and you have a denial.(or win). Maybe.

  2. SquidlyOne says:

    What is the difference between filing for “Hepatitis C” and “residuals of Hepatitis C”?
    When I originally filed I had a DAV VSO who wrote: “Residuals of Hepatitis C” and that was that.
    Our subsequent NOD promptly put into motion “Hepatitis C”.

    I have seen a BVA case where the two were discussed as different but alas I can admit that I didn’t understand it.

    Diddo with the concept of wasted court resources. I saw a CAVC case where the Vet was SC for hemorroids and was contesting 10%. That is all the Vet had wrong with him too! He lost at the CAVC because he wasn’t really having any medical issues to increase his rating at all.

    • asknod says:

      Good question. I filed in 94 for PCT as a residual of Hep. VA changed it because they “construed” it to be a claim for residuals of Hep and PCT due to AO. The term residuals as used by VA is now a catchall for anything they feel is a leftover of the original in-service event. Filing for “secondarys” is the 21st Century way of doing it now. I always considered residuals to be anything downstream from the original disease process-e.g. cryo, PCT, DM2 etc. What do/did I know? Not much apparently.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.