Virginia Girard-Brady
VA Dragonslayer

Remember the quintessential Sound Of Music and Julie Andrews et al? Specifically, think of the musical scale song (Doe- a deer, a female deer etc.). Compare that to the trials and tribulations we encounter going up and down the ladder of our claims with the VA. We proceed up from the RO through to the CAVC and sometimes to the Federal Circuit. Indeed, some travel to the august halls of the Supreme Court. Upon succeeding,  we proceed back down the scale from whence we started to begin all over again. Some of us have traveled this path several times for the same ailments due to the intractable nature and obstinate refusal of the VA to grant what is unarguably staring them in the face.

After twenty four years of this, I have now succeeded in singing the first stanza and am descending back down from the Court. In relatively short order, I am assured, I will be greeted by the BVA with a new, revised decision that will incorporate what a blind man with no arms could ascertain. From there, the claim will matriculate backwards yet again to the Seattle “Veterans Service Center” (what’s in a name?) for a complete readjudication based on the mea culpas expressed by the Office of General Counsel and their henchmen at the BVA.

Which brings us to Mr. Costello NMI Hayslett.  As an aside, for all of you in St. Petersburg, NMI stands for no middle initial. There has been a lot of confusion about it possibly meaning  no more information. Mr. Hayslett began his sojourn in the VA desert in 1972. Having served America from 1970-72 and coming down with the hep, he filed and was given the ice creme cone sans the ice creme (0%). Veterans are all too familiar with this concept. As with most hep C Vets, the cryptogenic disease eventually made its presence known. In Costy’s case, that was twenty six years later (1996) after six months of “treatment”. VA graciously gave him a whopping 10% which back then was a mind-boggling $89.00 a month or so. In 2003, being ungrateful (and in failing health), Mr. Hayslett returned to the benefits trough and asked for a larger bowl of porridge. VA immediately saw an opportunity to divest themselves of him and explained that what Costello was attempting  was actually a claim for Hepatitis C, not the run-of-the-mill increase for hepatitis he had been granted in 1972. This would require a completely new adjudication. Miraculously, Mr. C passed the audition.

Fortunately for him, they relented and granted him the HCV claim with an increase from 10% to 20%. Included in the Statement of the Case (SOC) was the explanation that he was entitled to no more because his symptoms, which he himself described, were insufficient to warrant 40%.

Let us digress for a moment. In any civilian setting, when you arrive for a doctor’s appointment, they usually give you a questionnaire to fill out while you wait. You are asked to endorse your symptoms and in some cases, asked to rate them on a scale of one to five (or ten). Some list the physical complaints in detail. At the VA, they do no such thing. When you present, they induce you to explain it in your own words. They do not suggest or ask for anything else. Thus if you are having severe right upper quadrant pain (RUQP) in the vicinity of the edge of the rib cage and say “it hurts here”, the nurse/doctor/ medical technician records it as “patient complains of stomach ache”. No prompting is permitted apparently. My civilian doctors always run down a list of “Any gastro/digestive issues? nausea/emesis? How about that muscle ache and the fibromyalgia?” No sir. Not at the VA. They sit there like a bump on a log and wait for you, the eminent Dr. Kildare, to opine on your ills with no follow-on queries  This permits them the luxury at ratings time of saying  “Mr. C endorsed a stomach ache but made no mention of near-constant debilitating symptoms which is the hallmark of a 100% rating for Hepatitis C rated under Diagnostic Code 7354.”

Mr. Hayslett set sail on his appeals odyssey in June 2005. Looking at the above, you can see how they were able, in good conscience, to state the following.

On May 22, 2007, the Board issued the decision here on appeal. R. at 1-7. The Board found that, although the appellant missed three to four days of work per month, he did not have any “incapacitating episodes with symptoms and signs severe enough to require bed rest and treatment by a physician” and therefore did not warrant a disability rating of more than 20%.

Recall we have written in past missives that the DC 7354 code does not require any medical entry from a doctor stating succinctly that Mr. C has been prescribed a Rx for bed rest unlike the similarly worded one for back injuries that does. Since VA doctors will not ask you about your condition, you are forced to recite it to them chapter and verse. Some Veterans have discovered that in spite of this, their maladies are still not recorded-accurately or otherwise.

Following the submission of Mr. Hayslett’s  Form 9 for his substantive appeal, this proceeded to cold storage as all claims do. In 2009, it surfaced like a long-submerged bobber. At about this time he also employed the illustrious and well-know VA dragonslayer Virginia Girard-Brady, Esq. as his sword bearer. This is why he prevailed. The CAVC found that the Board had committed a number of errors as is their wont. The good judge promptly remanded it to rectify the deficiencies. The BVA dutifully remanded it back down to the Regional Office now known as our Veterans Service Center (VSC) in Nashville, Tennessee. There it grew dust in the in-basket. The  Nashville raters  just couldn’t bring themselves to do what the Court ordered. They refused to give him a 40% or 60% which were indubitably deserved. This is the insurance company mentality talking here. VA has taken a page from GEICO and Allstate and uses their training manuals to teach from. Large parts relating to customer relations and good-faith bargaining were removed as being irrelevant. The theory being that if you’re the only insurance company in town, you do it your way.  This isn’t Burger King. You don’t get it “your way”. And our patient, long-suffering Veterans Affairs Secretary is mystified about why we have such a protracted backlog of claims?

Mr. C strapped on his boogie shoes once again and headed back to 810 Vermin Ave. NW with Ms. Girard-Brady in tow. And this March 13th, 2013 BVA decision is the final report card on the mission success. Seventeen years have transpired since Mr. Hayslett began this journey of tears. Nine years have been squandered denying a legitimate claim. What went wrong?

The BVA myopically took his statements at face value and did not do the math. That job fell to the far thinkers at the CAVC:

The appellant contends that he is entitled to a higher disability rating for his service-connected hepatitis C disability. He also contends that he is unable to work due to his service-connected hepatitis C. The appellant testified at his November 2005 Board hearing that his weight was stable, that he took time off from work due to fatigue and nausea from the hepatitis C disability on average three to four days per month. He stated that his hepatitis C symptoms included right upper quadrant pain, fatigue and malaise which limited his physical activities. The appellant testified that there had been no significant change in his condition since the VA medical examination of 2004. He also reported that he was employed.

The Court, in its July 2009 Memorandum Decision, noted that the appellant’s report of missing three to four days of work per month due to the hepatitis C disability translated to five to seven weeks per year. The average would therefore be six weeks per year. Review of the evidence of record reveals that the appellant has been under medical care for monitoring of his hepatitis C disability on a regular basis throughout the course of the appeal. Therefore, the Board finds that the appellant’s hepatitis C disability more closely approximates the findings required for a 60 percent evaluation (incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, during the past twelve-month period, but not occurring constantly) and a 60 percent evaluation is assigned from the date of the claim for increase.   Hayslett v. Shinseki (2009) CAVC #07-2454

For lack of a shoe the battle was lost. Here, for lack of the ability to do simple mathematics, the claim festered like an ingrown toenail until  Judge Lance extrapolated the correct number of sick days based on nothing more than the Record Before the Agency (RBA). Obviously, from the constrained, sotto voce tone of the the BVA Veterans Law Judge Shane Durkin, this all falls on the shoulders of  Mr. Hayslett. Had he not been verbally challenged, this claim could have had a happier ending much sooner. But for his ugly habit of under-reporting his symptoms, he could have resolved this at his Veterans Service Center at the drive-thru window. As so often happens, Veterans are tight-lipped and refuse to share their medical information with VA doctors. Oddly, in a civilian setting, this phenomenon rarely rears its ugly head. Go figure.

The teaching lesson for Veterans is simple. The moment you discover your front teeth missing following a VA claims denial,  we at asknod.org strongly suggest you do as  thousands of other goldbricking, Veteran reprobates do-lawyer up. Get a mouthpiece. Don’t walk-run. Abandon the leaglebeaglezoom.com VSO you are using and get someone with a juris doctor sheepskin. The sooner you nip this intransigence in the bud, the sooner you get meaningful justice.

VSOs are fond of denigrating attorneys as EAJA (Equal Access to Justice Act) bloodsuckers who will milk your claims out to incredible lengths to get fat remuneration. Hogwash. Who in their right mind in the world of litigation would seek out the lowest remuneration, percentage-wise (20%), of any ambulance-chasing job? Moreover, why would they chose to do it in the hardest venue with the lowest rate of success? Someone is pulling your leg when they try to dissuade you from doing something that will benefit you. When they use the excuse that the attorney is costly versus their “free” representation, it’s time to get out the magnifying glass and venture inside the horse’s mouth. Now, with the recent revelations about the VSOs and their exorbitant CEO pay, their exhortations to use VSOs becomes excruciatingly clear.

To view Mr. Hayslett’s CAVC decision, click here and enter 07-2454 then hit search. Click in the upper left on the blue download to view as a normal document.