Nashville, Tennessee

Imagine reporting for your colonoscopy at the VA. Sanitary protocols are in place now, right? We’re talking 2008 and forward. In RO and BVA decisions , they constantly dredge up the fact that while there may have been “suspect sanitary conditions” prior to the 90s, these are all a thing of the past and unheard of now.

Mr. Carl Huddleson, rightfully assuming  this, showed up for his procedure along with thousands of others based on this premise. VAMCs tout themselves as the cutting edge of medicine and being light years ahead of regular medical facilities. What he and his fellow Veterans weren’t told about was the sloppy endoscopic cleaning procedures and the requirements that were ignored. When he received a notice to get checked for HBV, HCV and HIV years after his procedure, he promptly did so. He discovered he’d been infected with HBV. He was one of the lucky ones in that respect.

In addition to Carl, more than 10,000  fellow Veterans were notified in 2009 that they needed to be tested due to  unsanitary cleaning procedures at the Murfreesboro, Tenn.,  Atlanta, Ga. and the Miami, Florida VAMCs . Later, the vA revealed that 13 Vets had tested positive for HBV. Worse by far, 34 Vets were diagnosed with HCV and six with HIV. Oops!  Bummer, dude. Sorry.

When you sue the government (or vA) in these circumstances, you utilize the Federal Tort Claims Act (FTCA). You must file within 2 (two) years of the alleged incident. This time limit is as inviolate as the year you are given for a denial at the RO, the 60 days for the F-9, etc. Mr. Huddleson promptly filed within months of being informed of the compromised sanitary protocols. In fact, he filed virtually as soon as the tests came back positive. The problem was that he filed after more than three years. Bummer, Carl.

The Federal Appeals Court’s holding was simple-“Carl. You ignorant slut. You filed too late so we don’t have to pay you.” Never mind that he didn’t have the requisite knowledge to file sooner due to the delay in informing him of the danger. Ignore, too, the damning evidence of what ensued. The time violation became the focal point of the decision.

If anyone needed more evidence that the game is rigged and winning is impossible, Mr. Huddleson’s case is a classic example. At some point, equitable tolling has to arise.  The law cannot be so rigid as to not foresee this eventuality. We pray he files an Appeal because, if allowed to stand, this precedent bodes ill for all the others following in his footsteps. As an aside, I tried filing a FTCA for what the VHA did to my abdomen but discovered few takers. Most of the rainmakers wanted me to pony up $30K of my own money for a professional witness before they’d even consider it.

An important precept in law is that the government should not be allowed to profit from its errors as they appear to have done here. A verifiable injury has occurred and the government has resorted to a tortured reading of law that ignores several precepts. By lulling Mr. Huddleson into believing the colonoscopy was sanitary, they essentially estopped him from getting tested to be sure he hadn’t been infected. I doubt vA would have acquiesced to any testing  absent symptoms though. Similarly, equitable tolling would logically ensue from the date of notification-not the day of the procedure. As Mr. Huddleson is assumed to be ignorant of medical science, he would not be motivated to investigate his health sooner. This decision begs to be appealed higher. It’s almost classic proof, too, of our legal system’s indifference to the plight of Veterans.

We are constantly reminded that we inhabit a special legal system within the normal one where we are accorded special dispensations such as the benefit of the doubt and laches. A veteran friendly environment is the hallmark of the ex parte procedure. However, the moment we set foot into the real world of jurisprudence all these supposed special dispensations evaporate.

Apparently the Doctrine of laches  attaches outside the confines of vA  jurisprudence.  More’s the pity. This must be in keeping with the seminal Nehmer decision whereby the vA decided to give us presumptive service connection for Porphyrea Cutanea Tarda and Chloracne in 1991. The Catch 23 with that one was you had to manifest the disease at 10% or more within one year of leaving the Republic of Vietnam and it had to be in the SMRs. My kingdom for a DeLorean with a Hyperdrive motivator and a flux capacitor.