This is one of those warm fuzzy moments where I get to nod (my head) and say “Toldja”. Long before even a thought of a book had crossed Cupcake’s mind, I met Mark. The how and why was not important but it was through the old HCVets Delphi Forums page where we all hung out. Mark wondered how I had won and I explained the “Win or Die” scenario. He had filed earlier in 2002 and, like most of us, lost and didn’t appeal. Boy, does that ever ring a bell with moi.
He was like all of us. We were given the Risk Factors Questionnaire (RFQ) to fill out. Unprotected sex? Check. Tattoo? Check. IVDU? Negatory. Maybe some killer Afghan hash a time or two; Extremely Trashed Or Hammered (ETOH) many, many times but definitely no hanky panky. Well, perhaps a few whiffs of the White Lady and some disco biscuits but definitely not the hardcore stuff.
Mark, like me (once), was still laboring under the misconception that the VA actually subscribed to the “For he who shall have borne the battle” theory. It’s the VA, right? They work for us, right? I don’t get it. Then how come I lost?
The ink was barely dry on my rating in 08 when Mark and I got together. In fact, several others were also asking for tips. I had to do some triage and Mark’s plight was the worst. It was so bad I was looking for help getting a Thanksgiving dinner to him. Seriously.
As you will read in his decision, Mark possessed about what all of us had when we came to them twenty five years later. A lot of lay testimony, some STDs in service, and an undocumented tattoo which he fortunately kept a picture of comprised the meat of his argument. Well, that and a nexus letter I suggested he get. The good old boys down at the California Department of Veterans Affairs had somehow neglected to tell him about that part of the process.
Mark went through exactly what I thought would be a winning process but VA cheated. They couldn’t bring themselves to believe with their own eyes what wasn’t written (evidence of tattoo on SF88 separation physical) nor could they accept what was written (their own RFQ that said unprotected sex may cause HCV). It’s a disease prevalent among VA Examiners. They’ll see it when they believe it.
Here, the “Examiner” decided not to decide. At the VA, this isn’t a denial. In the NFL, they call it punting on 4th and long. She was willing to concede that the picture in 1978 accurately depicted tattoos identical to the ones he currently was wearing. She ventured further and acknowledged he had STDs in service. At that point she hit the “Deny if you can. Grant if you must” wall. It was December of 2009. Unwilling to risk her annual bonus, she came out with what we call the Immaculate Conception theory. You know the one where you get knocked up but didn’t do the dirty deed? Mark had not gotten it from unprotected sex. God gave it to him. The evidence pointed to it happening about that time judging by what stage the hepatitis had progressed to but it wasn’t unprotected sex that caused it. God had. Therefore, if you divide the two risks, ignore the first one and then say it’s simply too speculative to decide one way or another on the second one, you have artfully denied Mark without making a call on either one. When all else fails, send it to DC. But that hinges on whether the Vet appeals. Most don’t.
VA decided Mark’s sexcapades were not at least as likely as not the cause. Furthermore, Mark was in the Neutral Zone. He was a peacetime soldier in between wars. He wasn’t going to get the 38 USC §1154 (b) combat dispensation that his word was gold. 100 missions over Inga and only shot down twice does not a risk factor make.
In the end, she simply threw up her hands and pretended to have the vapors…
“while not going so far as to confirm the Veteran obtained his tattoos in service, she did confirm that he had tattoos in service. She ultimately concluded that it was not possible to state whether the Veteran’s hepatitis C could be attributed to unsafe sexual practices during military service without resorting to mere speculation. She did not opine as to whether the Veteran’s obtaining tattoos could have been a contributing factor to his hepatitis C.”
Hearin lies the legal problem. All the VA Examiner is permitted (or required) to do is look at any and all risk factors and rate them in order of of descending importance. Tattoos are higher than unprotected sex in most cases. Here, they admitted Mark had some mighty funny-looking ink on his arms in a contemporary picture. They theorized he might have gotten them in 1978 judging by the photo but they sure weren’t going to go out on a limb and say that the tattoos in the old photo were the exact same tattoos they were looking at in December 2009 at his illustrious Dog and Pony Show. It was equally possible that he had obtained period military dress and makeup, illegally entered the base and had someone snap a picture recently with a really old Polaroid One Step. Any grant based on that would be resorting to mere speculation. You see, the Examiner was only 5 years old in 1978 and she lived in a different state. She didn’t personally witness Mark get the ink so it was speculative to even venture an opinion.
Now for the divide and conquer. Nurse Ratched has disposed of the 800 pound tattoo by ignoring it and now moves on to the sex thing. She uses her own intuition to make the medical call on the STDs. VA lists it on the RFQ. It’s a recognized risk by even the CDC. Mark’s nexus letter by a genuine MD cites this as the premiere risk. And he lost.
The Examiner missed the legal boat. All she had to do was make the “at least as likely as not” call based on the evidence and the benefit of the doubt. That is the legal standard. With two risks, the scales of justice tilted even more favorably. By having only one story,one scenario,one photo, one nexus and two documented risks, he had it in the bag but VA does not work that way. I beg to differ with some of the other Veterans websites who are convinced the VA is moral and upstanding. That only happens in Grimm’s Faery Tales.
Mark was crushed. I consoled him by pointing out the inevitable next step. He had all the ingredients for the recipe but no one would accept them. And then I started getting sick. Puke sick. Interferon sick. Go to the Hospital for a year sick. I quickly and carefully assembled everything we had, enlarged and sharpened the photo and told him how to take his Protein Pill and put his helmet on. I have to hand it to him. Most would have said piss on the fire and call in the dogs. Mark simply got out the Rand McNally atlas and asked for instructions on how to get there and what to say when he arrived. Such is the fabric Veterans are made of.
Fast forward two years and what I described in my book came to pass. The book was written about all the Marks, Cleotis’, Toms, WGMs and Squids- all the ones who have fought 5 and even ten years to get there. Mark really started in 2001 with Act I. This is just the culmination of Act II. Act III now begins with the battle to get his lowball 20% rating up to 100 P&T. Mark belongs to that unique Stage 4 Hepatitis club, and, like me, still hasn’t figured out how to kill the bug. What’s more, all those pesky secondary things like Diabetes 2 and Fibromyalgia are starting to crop up. Two or three Interferon parties will do that to you. I’m willing to bet his vision is also taking a hit and his thyroid is two quarts low. This didn’t happen a moment too soon.
Mark does not realize the importance of staying healthy for a while so I’ll spring the good news on him here. Mark just married his high school sweetheart. He needs to get this to P&T quickly so he can get the DIC for her. This is the golden time of the claim where 2007 is the magic date. Any rating he wins in the Fenderson Staged Ratings Phase is the rating that will be awarded back to that magic filing day in 2007. If his medical records clearly support a higher rating, it will dramatically change the amount of the award. In addition, free college for the missus and medical insurance, the free $10,000.00 Whole Life Insurance paid in full every month-the list goes on. He has to stay healthy for a year in order for her to qualify in the VA’s lexicon as a real “wife” and not a Russian mail-order flash in the pan. In fact, if VA can find anything wrong with her papers (prior marriages and divorces), they’ll hang Mark up for years until he straightens it out. Mark doesn’t have the luxury of years.
Mark is now inside the wire. He is no longer an adversary. He won. Now he begins the next chapter. Just like attaining rank in the Army, so now must Mark move up the ladder to Sargent and so on. He joins the ranks of the 15%ers-those who chose to stand and fight. I’ll never forget the day I was hanging over the porcelain filing cabinet puking in 2007 and said “What the Hell? I’m going to die from this so I might as well keep on fighting until I win.” Mark followed suit. No complaints. No “Will you do it for me?” He didn’t have a pot to piss in or a window to throw it out of and didn’t even bat an eyelash. And on 3 December 2012 he outlasted the bastards and won. He’s the Poster child for my book- as is WGM and all of you. You don’t give up.
And what I love most about doing this is you all come back and share your marvelous tale with us. This not only shows others how to do it but that it can be done. We have the Force with us on this site.
Here’s the exciting tale of Mark does DC. Let it be a blueprint of what can happen if you persevere.
Just for the record, The California Dept. Of Vet Affairs merely held Mark’s coat while he had this dust up. He did all the heavy lifting himself. I just whispered in his ear. Congratulations, sir. You entered the den and bearded the lion. What’s more, you did it yourself.
Here’s Mark’s BVA decision. It was just posted a day or so ago (2/15/13)