CAVC–MELANCON v. SHINSEKI–MALCOLM IN THE MIDDLE


About a month ago, the famous Malcolm H. Melancon Jr. of asknod fame contacted us (dogs, ponies, feral cat) and asked Nod where we’d been all these years. It was September 27th, 2011 when I wrote up his last adventures in CAVCland. He has traveled far and wide since then. Very far and wide–and, I might add–PRO SE. He went up to the Federal Circus and managed to bag a remand after  losing his April 2011 audition at the Court discussed above.

As we all know, the VA hasn’t even begun to run him through the dejà vu hamster wheel paces we are hauntingly familiar with. He was been sent back to the AMC for his obligatory Fenderson rating fiasco. This is apparently something no one but RVSR and DRO morons can accomplish otherwise we could just get it over with at the BVA without a remand below. Unfortunately, it doesn’t work that way. Malcolm had to take a number and sit down (again).

This he has done and they have expeditiously (thirteen months) returned it to the BVA for yet another action-packed decision that fails to solve the problem. Bad justice, bad logic, bad news. I have to hand it to Malcolm. When he came to me, he exclaimed “What am I doing wrong?” Why won’t they address this or that? What is the big mystery?” To which I answered “Why, son (because I’m older) you’re dealing with the VA. They’ll see it when they believe it. Not a moment sooner.”

Malcolm is far wiser today than when he set out on this Odyssey in 1991. He never sought legal help and figured all this out on his own. He went to the Fed. Circus and WON! He did it before he ever found us. That man’s 2001 claim is still viable and being actively pursued as we speak. I convinced him to seek professional help from a good law dog because this is unconscionable. Playing fish on with Malcolm like a King Salmon for twelve years is cruel and unusual punishment by anyone’s standards-anyone’s but the VA’s. They characterize this  pointedly– Justice delayed is not Justice denied.

As you will read, Mr. Melancon wants justice. VA refuses to admit defeat. The two sides are are drawn quite clearly. Va screwed up in 1991 but… Malcolm filed within a year of separation. VA contends they misdiagnosed him and therefore a new, corrected  diagnosis is not CUE. Groves v. Peake is on point here. Hepatitis in service is Hepatitis today unless you have conclusive proof it isn’t. VA contends they tested him and it came up as HBV. A good RNA PCR test, the very next time it was performed by VA ( in  1999), said HCV. Oops? Sorry we screwed up in 91 and you lost out? “Not exactly”, as they say down at Dollar a Day Car Rental. This is what is called a”clearly and unmistakably erroneous” finding. A blood test in 1991 for HCV would have been rarer than a June bug in December. Considering that a) VA doesn’t spend much on anything until it gets cheaper;  b) commercial testing for HCV didn’t become available until 1992; and c) knowledge of said test didn’t even become widespread until 1994, to believe VA actually has documented clinical proof of this in his C-file is earthshaking. I, for one, do not believe it and think it may be time for a CAVC game of Show and Tell. Surprisingly, all this momentous evidence of the 1991 Hepatitis claim is nowhere to be found in the Record Before the Agency. Some of his contemporary service medical records are there but none of the seminal 1991 VA documents, rating sheets or even a 21- 526  are present. Doesn’t this seem strange? Let’s see. Hep filing in 91. Denied. No appeal. Reopen in 2001. Denied, denied, de-oops. Granted. But no files from the 1991 decision to be considered probative. How about someone had to peruse the 1991 records to make sure his 2001 evidence, was in reality, new and material?  Knowing Vets are low-life, conniving hucksters, VA always does this test.

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Ruh-oh, Rorge. Malcrolm go back to Coo-ooourt! Arf?

Another big problem is VA contends Malcolm is now healed and pure as the driven snow. How many of our dear HCV friends do we know who have relapsed years later? To add insult to injury, VA will not even see reason and look at secondaries due to the Interferon candy he ate. Brain Fog is not Alzheimer’s when you’re 44 years years old.  The arthritis he suffers isn’t due to show up for another thirty years for normal folks. Fibromyalgia and unexplained “bumps” akin to growths are manifesting themselves. VA simply stares at the ceiling and says he’s healed. End of story. 10% for residuals of a bad dream to 2004 and then 0%. No meaningful Fenderson. No CUE. Just a horrendous misunderstanding that, fortunately for Malcolm, has been sorted out and solved to everyone’s satisfaction. Or not.

Malcolm might have been born at night but everyone knows when they’ve been taken to the cleaners. There’s always that  seminal moment when you realize you’ve been pick pocketed. The electric shock of realization has been like a cattle prod driving Malcolm onward all these years. And in a few short weeks after this latest BVA bitchslap, He “got” it.  I love the internet. Google your own name. It’s a hoot.

Back to Malcolm. Check this out. The first document is the BVA doing their Pontius Pilate ceremonial washing of the hands and the remand to the Black Hole ( the Appeals Management Center or AMC) get a new rating  mandated by the Federal Circuit. The second is the travesty of justice and the whitewash. With his newly found legal help, VA is going to discover they cannot “hamster” Malcolm anymore. Welcome home Malcolm. We look forward to a new and final chapter to this saga that will demonstrate that VA can be brought to heel.

Here is the remand.

Following this is the VA badminton return of the serve.

Pardon if we cut to the chase and print the important part.

2013-05-01 1449312013-05-01 144931_22013-05-01 144931_32013-05-01 144931_4

2013-05-01 144931_52013-05-01 144931_62013-05-01 144931_72013-05-01 144931_82013-05-01 144931_92013-05-01 144931_102013-05-01 144931_112013-05-01 144931_122013-05-01 144931_132013-05-01 144931_14

This also explains why we have global warming. Twenty five pages of what was formerly known as a tree were harmed in the making of Malcolm’s rating.

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Malcolm’s former legal conveyance.

About asknod

VA claims blogger
This entry was posted in BvA HCV decisions, CAvC HCV Ruling and tagged , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to CAVC–MELANCON v. SHINSEKI–MALCOLM IN THE MIDDLE

  1. Malcolm in the Middle says:

    It is funny how the VA works. The times I couldn’t work and had to use the VA the neglect to make any ties to the Hep. of any diagnosis. I currently have to work full time. I have a family I have to support and being tired all of the time is just the beginning of my ailments. When I went to the VA and spoke of joint pain, headaches, tiredness. My VA doctor told me they would document my symptoms because the felt uneasy about putting something in my record that they felt had nothing to do with the Hepatitis. If you ask me they didn’t want to document my symptoms because they felt it did have something to do with the disease or the treatment. The VA watches their backs on all levels and they give bonuses to the representatives that give out the least money. You do the math. VA= $ Vets+$0.00

    • asknod says:

      Perhaps one way to get around their not putting your symptoms in is to ask them to phrase it as “Patient contends that joint pain is related to HCV or Interferon therapy”. Getting in the records seems to be 95% of the problem.

  2. Kiedove says:

    According to Judge Allen, this veteran (Malcolm) is working full-time and feeling fine and dandy. No mention of ANY current post-HCV ailments in this decision. If we are looking for medical notes to accurately reflect what is said–as evidence–I think the points made have to be repeated several times. “I’m dead-tired, everyday since INF.” “I’m dead-tired today. I’m dead tired right now.” Before HCV, I functioned pretty well. Now I can barely get to work. etc…I sleep all weekend. etc..” Be a broken record until someone hears you and writes your true words down.

  3. Randy says:

    Seems like more of the same ole BS and then tag you’re it! Apparently he is now free to move one step forward. It should not take that many pages for a denial but rather go with the wording from the old TV show, “just the facts mam”. He will need a lawyer just to surmise all of this BS into an intelligible form using the English language.

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