CAVC–BATSON V.SHINSEKI– CURED HEP=NO DICE


Much has been published here about representing yourself. When the evidence is so dispositive as to leave no room for doubt, we advocate it wholeheartedly. This is always true but only up to a point. When going before the CAVC, it behooves one to be very erudite on law. More importantly, before pushing the claim boat off the shore and embarking on the process, it is important to have all the condiments needed to prevail.

Meet Tommy H. Batson, [Click here . Erase the word {query}then enter 11-2405 and hit search. Click on Download in upper left to view normally]  the latest victim of pro se justice at the Court. Tommy, I’m sure has a lot of legal acumen to have made it this far on his own. To date, he has been unavailing in his pursuit of SC for his HBV-yep-Hepatitis B virus. While it isn’t unheard of, HBV can manifest itself in a chronic state that never completely resolves. These cases are few and far between but not so rare as to be an anomaly. Tommy doesn’t fall into that category. His was the mundane,  acute variety that resolved long, long ago. So long ago that he isn’t exactly sure when he got it. He insists it was from tattoos in the military. Nevertheless, it isn’t impacting his enjoyment of life now and that is the problem.

Tommy has petitioned the Court to grant him SC based on… what? The fact that he cannot donate blood at the Red Cross?  This is where he legally stubs his toe. Caluza, followed by Hickson and Shedden, enunciated the most important precept of the triad of components needed to begin a claim. That, of course, is an actual physical disability. Simply put, absent any active disease process, you have no claim. Tommy  Twotones arrived at the RO with antibodies to HBV and little else. He is otherwise healthy. Rarely do we see a Veteran arrive with no disease. Quite the contrary. Most arrive without the nexus and spend years trying to satisfy this shortcoming.

Part of the reason Patricia asked me to start this site in 2008 was to avoid this of which I speak-to educate Vets on how to win. In the process, we have branched off and tried to shed as much light on the process as possible to help you avoid wasting your time. Tommy missed that briefing much to his chagrin. Knowledge of the process is essential to formulating a game plan. I had no idea you needed a nexus letter in 2007 when I started over with my claim. You didn’t need one in 1994, but I didn’t know that either. In fact, my VSO wasn’t very forthcoming about it until I mentioned I had just uncovered it. Then he acted like I was raised by wolves for not knowing it.

I suppose this would be filed on my old site under Frivolous Filings in that it had no chance of winning-ever.  In light of the horrendous backlog that engulfs us right now, I feel it belongs in a new category-one called Depriving Fellow Vets of Justice. By carrying this appeal forward not just to the BvA, but further up to the Court, Mr. Batson has aided and abetted the backlog single-handedly. It’s unfortunate that there isn’t someone appointed by the judiciary to take the Batsons of life aside and explain reality to them-i.e. that they have no chance of prevailing. Better yet, wouldn’t it be nice if someone counseled him on the prerequisites for prevailing? I hesitate to suggest imposing monetary fines or punishment for gumming up the wheels of justice but this comes as close as I have seen for some form of intervention. Every dog must have his day. Make no mistake about it. That day should have ended at the RO. Instead, with the full force of the legal system in his corner, Tommy has usurped the place of another Vet for 8 years, received a C&P examination, extensive PCR testing for HAV, HBV and HCV antibodies, and generally pursued a claim for a nebulous condition. Along the way he has taken up the time and resources that would have been spent on someone genuinely diseased or impaired.

Assuming arguendo that he had prevailed and won, his reward would have been an ice creme cone with a scoop of air-0%.  He would have been entitled to medical care at VAMCs for what? HBV-resolved with no chronic symptoms. While we may sit back and grumble about the backlog, be aware that it is a double-edged sword. Veterans certainly aren’t the problem with today’s record backlogs but the Batsons of the world do nothing to improve the timeline to a resolution of your claim. While being unable to donate blood to your favorite charity may seem like a disability to some, rest assured that it is not.

And that’s all I’m going to say about that.

About asknod

VA claims blogger
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3 Responses to CAVC–BATSON V.SHINSEKI– CURED HEP=NO DICE

  1. Be careful not to over look the following! A zero percent lolipop stick can be enormously helpfull to Veterans, for “secondary” conditions in some cases. That is, it is quite possible to have a “primary” condition that is nearly asymptomatic and nets a zero percent evalution while the malady has secondary conditions far worse than the primary which can result in a significant disabilty rating. A hypothetical example may be a GSW. that healed up, with no physical problems, possibly a 0% scar. However, it is entirely possible, or even likely that PTSD happened (bent brain syndome) with the gun shot wound. Further, the PTSD could well be worse than the wound itself and it is even possible for the PTSD to yield a 100% evaluation secondary to a GSW scar at zero percent.

  2. Robert G says:

    Yes ignorance is bliss and the one-legged man will always show up to the ass kicking contest. Human nature is not logical. I agree this veteran needed and enema and ambien to calm his fears. My case/denial has been going since 2002. Waiting for BVA letter decision by turkey day. I know what to expect if I win. What to do next if I lose. Blind faith went the way of the 60’s…

  3. Randy says:

    Still waiting to hear if the claim for a hangnail is going to pass muster. Stories like this make me want to kick the stuffing out of people but then again with the illnesses we speak of here I doubt that I have much kicking left in me and probably would not be able to feel it anyway.

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