Here’s something I can’t seem to enunciate enough to Vets. I have an email from Ralph who is condemned to the St. Pete’s RO and Funhouse of Mirrors. He’s in his fourth year of combat with the VA (second reopening) and has a similar set of circumstances as this decision above.
Ralph complains thusly: ” I submitted new evidence showing my HCV is getting worse and the same for my Porphyria Cutanea Tarda (PCT). They refuse to look at the hep. claim again even though I gave them the new medical records from my private doctor.”
Ralphie has fallen into the New and material pothole described in 38 CFR 3.156(a) that says in order to reopen a previously denied (and final) claim, new and material evidence must be presented. Simply showing up with a fistful of records and asking for a do over doesn’t put the meat on the plate.
(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.
Now here’s the definition you need to understand. Obviously Ralph is bringing new evidence to the table. It has to relate to his time in service and not to the current progress of his disease. Material evidence is evidence that is useful in making a determination as to service connection here. It would be material evidence if used in conjunction with a claim request for an increased rating, however. This new evidence would demonstrate to VA that his illness was more debilitating. Until he gets SC for the hep, any discussions about the severity is premature. He has to overcome the Caluza triangle of disease; disease in service (or risk factor); and medical nexus.
Ralph had boots on the ground in 1967-68. Or as the DAV likes to say, “he stepped foot in Vietnam” which makes me suspect VA gives them all their old Adobe Acrobat software when they update. Hell, maybe the computers too? After reading some of VA’s correspondence personally crafted for me, I wonder. Nobody could be that word-challenged in our society. Reading it aloud makes you sound like Yoda or one of those Chinese guys they hire to translate instructions on how to assemble a patio chair. Anyway, Ralph gets the “Presumptive exposure” of herbicides right off the bat with a small wrinkle. Unlike DM2, IHD and all the other b cell hairy leukemia stuff, he must have had problems with the AO herbicides during and/or at least one year after departure from the land of the red clay. If he cannot prove that as the gentleman in the case above has done, he’s toast on it for presumptive purposes. However, there is the direct path to consider.
PCT, Chloracne and sub-acute peripheral neuropathy are the three diseases you must have manifested within that magic year. Given that PCT and Chloracne were virtually unknown aside from the hundreds suffering from them down at the Monsanto Herbicide Plant in Missouri, it was unlikely most Vets dialed in on why they had weird rashes on their arms and megazits behind their ears. Sub-acute peripheral neuropathy from AO, according to the VA and Monsanto, resolves within several years in VA’s land of Health so if you didn’t happen to recognize it before it got better you were out of luck…
For purposes of this section, the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset.
Given that VA didn’t even institute the presumptive remuneration regulations for AO until 1991, you were shit out of luck before you even filed by about sixteen years-assuming you departed on May 5th, 1975 on the last chopper off the roof of the Air Am compound. Why even bother to offer service connection for something you cannot get SC for?
Now, back to that direct concept. Combee v. Brown in 1994 was a neat case where Clyde Combee discovered what wasn’t in 38 CFR. Combee_91-786 and http://federal-circuits.vlex.com/vid/clyde-combee-jesse-veterans-affairs-36102742 He had some radiation-related diseases and had “stepped foot in Nagasaki” in September 1945 shortly after the Army Air Force had performed their parking lot remodel to it. It’s safe to say there was some ionizing radiation about. Well, not exactly. The M21 must have a Geiger counter attachment on it. Clyde lost out on the Presumptive because his disease wasn’t on the preferred customer list. He argued for a direct connection which VA really hadn’t looked at. Direct as in it manifested during his time in service. He lost. He continued to try different venues such as the en banc setting at the CAVC to no avail.
Ralph and the Vet above can do something I’ve only seen done in one other instance if they have the right cards. What few seem to realize is that PCT is not only prevalent among Vets exposed to AO but to those with HCV. Why, I’m not sure but I’m sure the egregious assault on the liver is a place to begin the search. VA did just this and I discovered it quite by accident early in my claims game. I cannot excavate the exact study but here was the page I copied and saved.
The next trick is to get service-connected for the PCT. The presumptive path usually only works where a Vet has a legitimate, undiagnosed skin disorder Once that is accomplished, they can seek secondary connection for liver disorders associated to the PCT. This might seem convoluted and a back door way to get there but it has been done.
You will notice this is VA’s own study done at the University of Oregon which is tied to the Portland VAMC for medical studies. All their victims come from the VAMC. Here’s a 2005 decision that deals with this.
However, porphyria cutaneous tarda or PCT, is not solely a disease of the skin, it can have manifestations in many other organs, especially the liver. Porphyria cutaneous tarda has been documented, in various publications, to cause liver disease or to worsen an already existing liver problem. There has been proven a direct relationship between increasing age and progressive distortion of the liver architecture with fibrosis with the mean age presenting at age 48, cirrhosis by the age of 57 and hepatocellular carcinoma by the age of 66 with porphyria cutaneous tarda. This was shown by Cortes et all, in Histopathology 1980, September, volume IV, page 471 to 485. In another study presented by Armas in the Rev Med Chil in 1994, January, volume 122, pages 72-74 revealed that the patients with porphyria cutaneous tarda have a higher incidence of hepatitis C virus infections as well as hepatoma. The question is now raised does the patient have a liver disease. The patient does present now with abnormal liver function studies with elevated hepatic enzymes. A recent liver biopsy confirmed that hepatic fibrosis and bridging consistent with early fibrosis and possible early cirrhoses was present. He was found to have splenomegaly on physical exam and ultrasound, which is a sign of liver disease. Gallstones were also noted, which is also manifestation of a porphyria cutanaeous tarda. Therefore, I do believe that the patient does present at this time with laboratory, radiological and physical evidence of liver disease.
Ralph is going to be forced to finally get the nexus letter which he was unaware of up until several days ago when we talked (emailed). It seems his illustrious VSO hadn’t yet deigned inform him of the need for this. Of course this is the same VSO (name removed due to low ratings) who convinced him to throw in the towel at the RO several years ago (2001) when he filed the first time. In all fairness, it does bear mentioning that it wasn’t the same service representative.
Ralph is now either reading this site avidly or taking an Evelyn Woods speed reading course preparatory to doing same. New and material evidence is just the tip of the iceberg. With the current backlog, he’ll be finished long before they get back to him with the “what we have and what we need” letter. At least this time he stands a chance.
NAME WITHHELD DUE
TO LOW RATINGS
P.S. Here’s an old post on PCT.
vets with hcv/military, must request a imeo/third party from va as soon as possible. a nexus from your doctor/gastrologist is nice to have if every issues regarding your military hcv is addressed, however to avoid a possibe seven year wait or more for the va to inform the vet that a imeo is needed. hcv requires imeo third party, vet should make the request to the va asap. va cannot determine military hcv without imeo/third party. va has denied hcv claims using arnp to establishe a negative nexus? hcv/vets must realize this disease needs third pary / hcv/medical experts to establish a nexus, negative/positive. there is a method to this madness/request imeo/third party
PTSD–The Florida vet is lucky to have good unit histories to support his case.
Thanks for the heads up, going for another CT exam and the mention of gallstones in relation to PCT is important but will keep mum until I have a copy of the report in hand. Merry Christmas to all of you and here to renewed vigor for the coming battles.
Here is another decision where Johnny Vet didn’t show up with a proper nexus.
Represented by the Mass. Dept. of Veterans Services—bad representation indeed.