Pull up a chair and set a spell. This is a piece of work. Occasionally we win. That much is undebatable. Occasionally, VA decides they were too nice and opts to take it all back. Keith Roberts comes to mind here. It is the Government trying to CUE themselves. This is often an even larger hurtle that us trying it on them.
As a matter of fact, I’m doing exactly that so this has my undivided attention. VA is currently looking at my application (claim). They don’t refer to it as a Motion for Revision (CUE). Instead they characterize it as me trying to get them to restore my 10% rating for Porphyria Cutanea Tarda as an “increase” which they reduced unceremoniously to 0%. I maintain that they gave it to me legitimately for scarring due to the PCT. They maintain otherwise but this story isn’t about me. This is about Mr. Willie C. Dennis and before the ink was dry on this, Will Gunn was probably referring to him as Dennis the Menace. This is another of those Immaculate Reversals rendered down to us by St. Mary of the Order of Indiana Ave. NW .
Mr. Dennis, Willie (not William), served variously as a medic and a soldier with wanderlust from 1966 to 1972. He wasn’t always available for duty due to this proclivity to wander off. The first time occurred from July to October 1967. The second time was a little more lengthy from February 1968 to January 1972. He appears to have only accomplished a brief amount of medical training from January to April of 1967 before moving into a second calling. He had some legitimate risk factors including needle sticks and a tattoo. These are his personal recollections. Being an honest Joe, Willie admitted freely that while “on vacation”, he used heroin and cocaine. Hell, he even threw in that he did them until 1975- but only orally rather than intravenously during the AWOL episode. When he came back in January 1972, he reported to sick call as it appeared he had hep. They treated him for it and someone erroneously noted it was in the Line of Duty. He was still given the Big Chicken Dinner but he somehow pulled a rabbit out of the hat and got it upgraded to Honorable five years later. Courts were a little lenient after Vietnam. It stands to reason if you gave all the Americans who decided to go sightseeing in Canada for ten years a bye, someone like Willie deserved a second chance, too.
Willie must have noticed he wasn’t hitting on all eight pistons in 1996. He applied for hep. and immediately ran into trouble. He grabbed several nexus letters and won based on their observations that Hepatitis (Not Otherwise Specified) in service twenty four years previously could very well have been both Hepatitis A and C or even B and C. Doctor #1 had an equivocal nexus using the word “probably”. Had this been the only magic paper submitted, I suspect Willie would have been down the tubes. However Dr #2 named Nelson was far more nuanced. He actually mouthed the sentiments in Groves v. Peake years before it was decided. Hepatitis in 1972 is Hepatitis in 1996 unless you can prove otherwise. VA couldn’t and Willie got his ticket punched for 10%.
February 1997 dawned cold and forbidding for Willie. He had an RO hearing concerning an increase for this new moneymaker but the VA suddenly changed it into a claim to remove the rating entirely based on CUE. Actually they said he got his rating based solely on a private nexus and no VA C&P examination. That was the predicate for the witch hunt. An RO hearing in 1997 was actually conducted by what are now DROs. They’re senior raters and they know the M21. Unfortunately, they weren’t that well versed in the facts of this case and bent them to fit the denial they had crafted. Thus, on September 18th, 1997 Willie found himself out in the cold and no longer in receipt of VA compensation. Dr. #1 (Hall) submitted a new “advisory” nexus that discussed why this was bogus. Willie swore up and down he snorted everything rather than shooting up. Dr. Nelson went to the floor for him a second time as well. A NOD was filed and the appeal was on.
Dr. Nelson’s new analysis was concise and pointed out the real problem. No one short of God Himself was going to be able to say with any certainty which risk factor was responsible for the Hep. He had had more than the average bear but he had that pesky AWOL hanging over his head, too. Dr. Nelson concluded that
“[n]o examiner[,] whether it be myself or any other government examiner[,] can clearly identify which virus led to his exposure in 1972 while working for the Army as a medic versus his exposure later on as a result of high risk personal behavior.” Dennis v. Shinseki 2010
This was affirmed at the BVA and he got a remand back down from the Court for an IME in late 2004. VA complied………………………..in 2008. Dr. Ohl, the “independent VA IME doctor” opined that it was probably drug abuse and not medical exposure or unprotected sex. In fact, he wove an interesting tale profusely salted with “probably”s, “could’ve”s and “just like my Uncle Earl had”s. Much like the Thomas decision I wrote of several days ago, Dr. Ohl was willing to give a day and date to this and it was smack dab in the middle of that nasty AWOL business. Call it the Thirty Pieces of Silver Syndrome. Amazing Grace wells up from the orchestra and the magic words incant “Was blind but now can see”
There is a limit to medical science. Why everyone pretends to be able to Ouija is beyond me. There is one finite measurement that cannot be bent any more than the speed of light. I speak of the natural progression of Hepatitis C without the insult of too much ETOH. HCV progresses through 4 distinct stages as measured on the Metavir score. Each stage exhibits known cellular structure. Each stage also takes 10 years to complete unaided by the aforementioned booze. Thus a Stage 4 like mine is 40 years old (1970 -2010). Willie is being judged by his AWOL because that’s a Bozo No-No. VA feels you must have been misbehaving if you were missing in action. Their whole argument hinges on this medical certainty and segues into whether what he had in service was B or C and in the alternative, whether it happened in 1967 or 1971. The Metavir scale is not that precise nor is Dr. Ohl. VA should know better than to pawn this off as legitimate science.
The Board determined that severance of service connection was warranted because it found that the record “clearly established” that the appellant contracted hepatitis “as a result of abusing drugs while AWOL.” R. at 42. However, the Board points to no evidence in the record that “clearly establishes” this determination. The Board rejected the appellant’s lay assertions that he did not use drugs intravenously while AWOL because it found his postservice treatment records more probative. Dennis supra
How many of you have been tarred and feathered on this petard? Many, I suspect. I base this on the large numbers of HCV-positive Vets who visited VAMCs where a “helpful nurse” suggested that’s how he got it and he failed to vehemently deny it. Years later you get to read it in the VISTA medrec: “Veteran endorsed drug abuse as the most likely etiology for his HCV”. All this over failing to rebut it. This is how they operate. Get used to it. Plan for it. I mention this in my book, too.
However, as the appellant notes in his brief, the prior hearings related to the appellant’s discharge upgrade and eligibility for education benefits; his in-service blood exposure was not relevant to these hearings. The Board’s reliance on unrelated hearing testimony to discredit the appellant’s lay assertions regarding his work as a medic – work that is substantiated by the appellant’s service records– is arbitrary.
Here again, VA goes off the reservation in what is well-known to be taboo legally. They do this for a living. How can they be so error-prone? Read the below very slowly and absorb the “bait and switch the subject” technique. This is classic VA. Anytime you see this much decision-writing about something you did wrong in your denial or SOC, start looking for the smoke. It’s also in my book under the denial section. See also divide and conquer.
The Board also discredited Dr. Nelsons’s opinions. The Board found that the June 2004 opinion was “based on an inaccurate factual premise” because Dr. Nelson stated that the appellant was first exposed to hepatitis when he worked as a medic in 1972 and that his drug use occurred after that time. The Board stated that the record shows and the appellant agrees that he worked as a medic in 1967, not 1972, and that he started using drugs before 1972. However, the Board appears to be overstating the importance of Dr. Nelson’s misstated chronology and ignoring the more significant point of his opinion – that the appellant could have been exposed to hepatitis while working as a medic, and that “[n]o examiner . . . can clearly identify which virus led to his exposure in 1972.” The Board rejected Dr. Nelson’s December 2004 statement because it did not discuss the appellant’s drug use or AWOL period. Again, the Board appears to focus on what Dr. Nelson did not say, instead of what he did say – namely, that “[t]here is no way to determine whether he was exposed [to] hepatitis B or C while he was working as a medic.” The Board rejected Dr. Nelson’s February 2005 opinion because the doctor stated that the appellant worked as a medic in 1968 instead of 1967, and failed to explain how “this change in date from his first statement (from 1972 to 1968) affected his conclusion.” Again, the Board emphasizes the absence of a discussion of a mistaken chronology, and ignores the critical point of Dr. Nelson’s opinion – that the appellant could have been exposed to the hepatitis virus “when he was exposed to blood products as a medic in training.“ The Board rejected Dr. Nelson’s March 2008 opinion because it found that the physician “now maintains that an opinion regarding the cause of hepatitis C was not accurately possible without knowing a myriad of factors,” when he previously had been “perfectly willing to provide an opinion in support of the Veteran without such information.” This finding fails to recognize that Dr. Nelson has consistently stated that it is not possible identify the precise source of the appellant’s exposure hepatitis C, and that the appellant could have contracted the virus through exposure to blood while working as a medic. This is positive evidence in support of the appellant’s claim that the Board should have discussed, instead of focusing on irrelevant inconsistencies and omissions in Dr. Nelson’s opinions.
Now we get to the main course. All the prior was the intro.
Significantly, the Court notes that Dr. Ohl used equivocal language in his opinion, as well. R. at 170 (stating that “it is very unlikely, but not totally impossible” and that “it is likely, but not provable without a doubt”); see also Perman v. Brown, 5 Vet.App. 237, 241 (1993) (stating that a speculative or equivocal opinion may be considered “non-evidence”).
Lastly, dessert is served as is fitting. Revenge is sweet and should be taken with a fine, aged brandy.
Instead of demonstrating that the 1996 grant of service connection was clearly and unmistakably erroneous, the Board has shown that there is a difference of opinion regarding the etiology of the appellant’s hepatitis. This does not amount to a showing of CUE sufficient to warrant severing service connection. The mere presence of an opinion against service connection does not demonstrate that the grant of service connection is clearly and unmistakably erroneous. The Court must reverse a severance decision that does not meet that stringent standard.
Here is the beauty of which I spoke at the beginning. When VA reaches a “finding”, they pour concrete around it and cement it into place. Jack hammering it back out is a very arduous process and rarely attempted by either party (VA or Vet). Very few succeed. In a way, this is how Leroy Macklem came about. VA attempted to do the same identical thing here and the Court refuses to remedy their screwup. In Keith Roberts’ case, they transported the concrete to a different location and dismantled it out of sight. Poor Keith was incarcerated before the ink was dry.
Face it. Willie certainly wasn’t the paragon of virtue, now was he? Nevertheless he is a Veteran, which gives him certain presumptives such as benefit of the doubt and the fact that all lay testimony duly sworn is considered credible unless refuted or proven to be incredible. Most Vets are extroverted and Willie was no different. Being loquacious, he inadvertently suffered diarrhea of the mouth disease. VA ignored protocol and granted him service connection. Why is immaterial. They decided, based on a preponderance of the evidence, that he was entitled. Once they did, it was a done deal. Next…
Unfortunately for Willie, about six months later they were busy again trying to undo this any way they could. They were desperate. The boss was looking for someone’s head to mount on the wall. Nobody wants to look like a boob. It doesn’t play well at bonus time. The way to make it right was to find a compliant doctor like, well, like Dr. Ohl.
Read about Mr. Dennis’ amazing adventure DennisWC_09-3417
Willie will now be going through the Fenderson Log-rolling Olympics for several years. We expect to see him back at the Court in about 10 years unless the VBMS fails to become reality.