Sometimes, in their haste to assassinate a Vet, the RO neglects to take the head shot and ensure the claimant is down permanently. Such is the case here. For lack of a word in the right place in 2002 and failure to mention certain things, VA ‘s Los Angeles Regional Office poked a rather large hole in their foot with a large calibre weapon.
When Robert came to me in 2010, he presented his problem. If you believe the VA, he inadvertently confided that he had injected and sniffed drugs while in service. There is no record of this or judicial punishments. Nevertheless, by admitting this, VA formulated a finding or holding that he had. Robert has been through more Interferon courses than anyone I’ve met. None of them were successful in eradicating the bug. At one point in 1995, they had him injecting himself once a day. This tends to pickle the brain and Robert admits as much. He maintains he has never volunteered using illicit narcotics to the VA. I believe him. When I approached the VA with my claim, the C&P doctor was congenial and wanted to know how I thought I got it. The first word out of his mouth was drugs. I made sure he was aware that I did not endorse that theory.
So many Vets make this mistake and fail to correct it. Here, in the 2002 initial claim, he was unaware he’d been tarred and feathered with it because the VA examiner neglected to mention it. They, as I mentioned above, were so busy planning the ambush that they neglected to describe it in detail. In fact, the VA examiner neglected to mention anything whatsoever about drug abuse in the rationale for his denial in 2002. To add insult to injury, they took his nexus letter and started adding handwritten comments to it. Yep. Just like Phil Cushman. VA Examiner Doctors working overtime correcting other Doctors’ errors.
The denial was bogus but Robert didn’t know this. He was sick from all the drugs and trusted the bubbleheads that the government provided him with to represent him. When he came to me it was obvious he’d gotten the shaft. We put together a list of good risks which fortunately mirrored the ones he’s claimed in 2002- the usual-jetguns, dental and shared razors etc. One would think VA would just give this the once over again and heave it into the shredder room. They tried. They just underestimated Robert’s resolve.
Robert patiently followed my advice to appeal and we put it together carefully. We came up with a credible CUE defense based on a poorly altered nexus (the letter was typewritten on VISTA VHA- the additions were hand-written). We put forth the evidence of unsanitary hygiene in dental practices available here at the site. We piled it high with lots of things. Robert wisely put in for an advancement based on 38 CFR §20.900(c) on the docket as well.
The BVA looked at this tarbaby and realized the VA examiner had irreparably damaged the claim by omitting so much in 2002. They therefore had to repack the bearings with all the old drug stuff to refute Robert’s newer contentions that this was hogwash and merely words stuffed into his mouth. They then tore up Dr. Cecil’s nexus which hinged on no drugs being involved. Once they determined Robert had admitted using drugs, his protestation of innocence automatically provoked a finding that his credibility was shot. I have discussed this at length in my book. This did not bode well for the claim.
The BVA Veterans Law Judge, to his credit, could see the silt being stirred up and the hopelessness of gerrymandering a way out of this nexus business. He opted wisely for a new Independent Medical Opinion and it backfired on VA’s finest. The doctor actually used the benefit of the doubt to say that it was just as likely as not that the jetguns and poor dental hygiene practices in 1973 were the guilty party as any hanky panky with drugs-if indeed there had been any at all. Furthermore, Robert had obtained a tattoo in service but it had not been annotated at his separation physical. This weighed against his claim but really didn’t upset the applecart as it was not considered germane to the discussion. But remember, like an elephant, once a doctor hears something such as “tattoo in service”, his mind begins formulating that into the mix as well. It’s like a jury who overhears something and the judge instructs them to ignore the comment. Sorry Pandora’s out now. An independent doctor is liable to accept that a tattoo falls into the realm of non-medical and is a phenomenon a man can describe with his five senses.
What will grip you is the double IMO. The first just said it coulda been the jetguns or the dental with a side of bloody razor. Veterans Law Judge Martin felt he needed a tighter noose and sent it back to the Opiner in Chief. “What about the Imperial entanglements with the drugs, good Doctor?”
The doctor, nonplussed, added the rejoinder “Yep. It could have been any one of those things…while he was serving in the military. The risks were all equal in that the chances of him getting it from intravenous drug use were just as equal to his getting it from the jetgun”. Therein lies the the win. No IMO previously has given a jetgun nearly this much weight versus a drug risk.
In the end, the BVA judge was hung by the Colvin ruling. He would have dearly loved to choose an RO ARNP VA Examiner’s opinion as more probative, but instead, he foolishly sent out for Chinese dinner. Amazing. This is the first “jetgun” claim here to succeed based on that defense. I doubt it will be the last. Robert, by his own admission, is seriously impaired by what VA has done to him with Interferon again and again. Guinea Pig is too tame a description to describe poking someone day-in and day-out with rat poison. Multiply that by three or four courses of the bug juice and you are asking for some warped brain cells. Oh yeah…and the thyroid cancer.
The teaching moment, as always comes at the end. If you think you are incapable of accomplishing this task, think about how Robert approached it when he came to me. I was brutally honest and asked him if he had a sado-masochistic bent and a desire to be eviscerated by the VA. Remember he was already on a pension from VA. Why upset the status quo? He put his trust in me and I promptly said no dice. This is a DIY (do it yourself) site. I’ll provide advice but the claim is yours. He doggedly pursued it through the darkest hour when denied at the RO. He picked and poked at it all the way through and had a face to face with the Veterans Law Judge even though the fight or flight urge said “Run like hell”. In short, he did this with severe mental impairments and he did it well. In a word, he did it bravely. His military training served him well.He now awaits the LARO’s receipt of his C-file back from DC and a preliminary rating. Having tasted success, he’s going to try his hand at a few secondaries after the dust settles.
Of all the claims I’ve encountered, this was the one with the poorest of odds. I have an indomitable will and resist the urge to retreat. Throwing the gauntlet down is the signal to fight. Robert apparently felt the same way. He did condition his desire to fight based on whether I felt it had a prayer in hell. I didn’t lie nor did I tell him to start shopping for a new Ram pickup either. I merely said what I’ve said to all of you. One thing is for damn sure if you don’t file. You won’t win. The second adage most all know me for is “Win or Die”. I cannot begin to tell all of you how proud I am of Robert. When he emailed me last night and said ” I can’t be sure but I think I won”, I honestly couldn’t sleep. Apparently, neither could he. In sum, if this man can do it, any of you can. All I did was hold his hat and coat. He carried the water.
Here it is in all it’s splendor- a nineteen page how-to on winning your HCV claim. Thank you for sharing this, Robert. You are the very first Vet to give me wet-eye syndrome. That must be where the phrase “Read ’em and weep” came from.
Pretty cool stuff, huh? In spite of acknowledging the use of drugs intranasally and intravenously, the medical doctor still came down on his side and said the jetguns and dental procedures “were an equal risk”. This is cutting edge precedence for HCVets. No IMOs to my knowledge have ever gone out on the little branches and held that the risks were coequal. Robert’s decision is truly unique in that respect.
P.S. Robert is number #36. Also, Robert inadvertently followed my advice and got no less than three nexus’. The BVA supplied #4. Final tally was Robert 3, VA 1.