CAVC–MURPHY V. SHINSEKI-NO GOOD DEED GOES UNPUNISHED


CAVC

Murphy’s immutable First Law of Life simply states  “No good deed goes unpunished”. It is predicated on the inevitable outcomes of many good souls who tried to prove its fallacy. So many have broken their spear on this precept that the original Mr. Murphy enshrined it as his first observation. Placement of laws and wisdom often indicates their importance in law and life.

Meet Mr. John S. Murphy, a participant in the Vietnam Boundary Dispute. Here’s the .pdf  Murphy .   Judging by his two years of service, I would be confident in saying Mr. Murphy was drafted and made an 11B Infantryman. I base this on his two years of service versus three. Approximately a month after returning and being discharged, John came down with a dose of the Hep. He was admitted as an in patient and released after eleven days. He filed for VA disability and VA granted him a non compensable rating for it.

For those of you in the dark, in 1969 there was no test for Hepatitis A virus (infectious or HAV) or Hepatitis B (viral-HBV). If you recuperated in short order, it was often deemed to be A. If the recovery extended into 4-7 weeks, it was suspected to be B. Not until 1970 did they come up with the Hepatitis Australian Antigens (HAA) test which used the either/or model. If you were positive on the HAA, it was B. If not, the default kicked in and it was A. This is where the Hepatitis C virus (HCV) earned its moniker of Non A, Non B (NANB). If a body was obviously suffering from hepatitis with negative HAA test results, the diagnosis was NANB assuming no intercurrent etiology such as steatohepatitis or autoimmune hepatitis could be identified. Mr. Murphy fell into this category. VA  mistakenly assumed, in the relative absence of HCV, that he suffered HAV due entirely to its brief course of infection. Unfortunately, this also mimics HCV’s initial onset. With no testing protocol, he was diagnosed with HAV. Since it is acute and resolves, there is no permanent rating for it. You achieve immunity to it and move on. It comes from contaminated food or water that is handled by someone actively infected.

Moving along, Mr. Murphy put in for an increase in September and November of 1994. The record is unclear as to whether they gave him a C&P but my guess from my own experiences about that time is that he just got the standard wave off and another Dear John letter. Inspecting it more closely, it stands to reason that the Murph was suffering some ill effects of his “acute” infection. Most doctors would be intrigued enough to run some LFTs and a CBC. Most. The VA is not as inquisitive as others, apparently. By not becoming vociferous and putting his foot down, John made his first mistake. He didn’t appeal. What the hey? None of you haven’t made this blunder?

In April 2001, still suffering what all of us eventually recognize as the “symptoms”, he filed again for an increase. VA responded in December that he wasn’t getting a pay raise and explained how acute illnesses, even those with onset within the magic one year window, worked-i.e. 0% forever. It is patently obvious that little or no development was done on this. If a Veteran complains of ailments closely associated with liver disease, and he has been diagnosed with the same, most, if not all medical personnel would feel moved to investigate. Moreover, at some point someone with a modicum of intelligence would put two and two together in light of the HCV plague and test him for this. Which brings the second enigma to light.

The history of Hepatitis C testing is well-known in the medical community. Early tests in 1990 were spotty at best but were confirmed by other, similar testing.  If you kept turning up positive on all of them, it could be said with some degree of confidence that you had it. It would appear VA blew Mr. Murphy off and simply attributed it to the HAV without any confirmatory testing whatsoever. Had they done so, he would not have continued to pursue an increase for what was undoubtedly an acute disease. Mr. Murphy isn’t a doctor nor does he have any medical training. It would be nigh on impossible for him to diagnose himself under these circumstances. The disease is far too unique for that. VA would laugh (and did) at any attempts to self-diagnose this as being the same disease process as the one in 1969.

This time out, Mr. Murphy was not going to be rolled. He filed his Notice of Disagreement with the RO in December 2001 and made it quite clear this was the same thing he had experienced since 1969 with little or no surcease. VA swung into action almost immediately. Within 90 days an Agent Orange Registry Examination was requested and Mr. Murphy presented for the exam. I looked back on my 1994 AO Registry show and tell and find no test results for  HAV, HBV, and HCV.  Lots of blood tests showing something horribly wrong, but no hep tests. Mr. Murphy’s tests determined something odd. Keep in mind that the VA was simply using this as a cover for the more important investigation of what it was, exactly, that he did have. First, he didn’t have HAV. Never did. Ever. If he had, it would have shown up as antibodies in his blood. VA now knows this as of Spring 2002. What Johnboy did have was a co-infection of HBV and HCV. For Vietnam Vets, this is not all that uncommon. I have both, too. My hepatitis specialist opined I got them both at the same time. They both require getting infected blood on you or in you. If dental techs wear those fancy plexiglass face masks, that tells you quite a bit, doesn’t it?

VA must have spilled the beans because the next pertinent document in his claims file shows he has been apprised and wants to know what the ratings scheduled has to say about his “service-connected hepatitis”:

A June 25, 2002, Agent Orange followup evaluation medical report indicates that the appellant has hepatitis B and hepatitis C.  In correspondence dated November 1, 2002, the appellant stated: “I would like to know in the near future if my hepatitis B [and] C which is service connected, is there any compensation or rating  decision on this[?]”

On November 23, 2002, he again wrote to VA: “I would like to reopen my claim for service[-]connected hepatitis B [and] C that I got while serving in Vietnam – this was not recognized in my previous claim. I have symptoms such as feeling tired and weak, sleepy and diarrhea, to name a few.”

I do not think any reading this can misconstrue what the Johnmeister was enunciating. He had a claim. VA was currently serving an ice creme cone with no ice creme to him. In light of the fact that the “acute” disease was exhibiting distressingly chronic symptoms, he wanted to know why and how much he was to be remunerated for his already connected disability. I mentioned this one in my book on the subject of filing. I suggested “hepatitis” and no more. Let VA add in the nomenclature. My  paraphrased words were “what happens if  you claim hepatitis C and it turns out to be autoimmune hepatitis?” VA is prone to say “Bummer, dude. You filed for A and we gave you that. This is different. You have B and C. You didn’t file for that. You need to do that.” Of course they are equally apt to say “Dude. You have both but the Autoimmune hepatitis is the one that is kicking the shit out of your liver. The HCV is, like, not a problem but then, you didn’t file for that so it doesn’t really make any dif. Right?” I honestly thought that after Groves v. Peake (2008) that this would never come up again. I was horribly wrong.

Groves, in a nutshell, was a wonderful piece of work by the Federal Circuit. If you were diagnosed in service with paranoid schizophrenia, and you developed it again after service, it is service connected. In an effort to save the government money long before the current round of psychiatric corner-cutting, Mr. Grove’s shrinks attributed his mental aberrations to personality disorders, which we all know are noncompensable.

Upon his administrative discharge in December 1979, Mr. Groves received a diagnosis of “antisocial personality disorder, chronic, severe.”   This diagnosis did not mention schizophrenia, neither confirming nor denying Mr. Groves’ earlier diagnoses.

Groves stands for the proposition that the military and VA are free to characterize your disability however they want, but the fact remains that if you had paranoid schizophrenia in service and subsequently come down with it after service then 38 CFR 303(b) and chronicity kick in. The Army can say you are antisocial all day but they cannot say you didn’t have something in your records. Now substitute Mr Murphy and his hepatitis “A” two weeks after service. Hepatitis in service (or within the one year presumptive period afterwards) and chronic residuals of it thirty two years later are one and the same absent evidence rebutting it. Since VA did no testing of Mr. Murphy’s “hepatitis A” in 1969 or even later at each request for increase, they cannot rebut the presumption that it is the same hepatitis. VA knows this and is trying to figure out an escape hatch. Watch how they do it. 

Five days later, after the Murph informs them he wants compensation wampum for his ailments, the RO calls him up. On the phone. Really. Five days!

On November 27, 2002, VA contacted the appellant by telephone “to verify [the] issues he was claiming.”   The appellant “stated he is asking for an increase for hepatitis and a new claim for generalized anxiety.” Id. However, on December 12, 2002, the appellant executed another statement, that “I am now opening for hepatitis [B] and [C].”

Mr. Murphy made his wishes  clear November 1st, November 23rd and again verbally over the phone on November 27th, 2002. Does anyone here honestly believe, without some subtle, nuanced guiding by a “helpful RO employee” that  Mr. Murphy would abandon a perfectly good claim for increase of symptoms for hepatitis B & C, rated as Hepatitis A, which was in progress, to file a brand spanking new claim for B&C? He already is rated for hepatitis. It is by now a protected rating that cannot be changed. He is entitled to remuneration for his chronic HCV by virtue of the HAV rating. VA knows this but tries to “construe” what it is Mr. Murphy wants.

Now witness divide and conquer. This is a very prevalent VA technique. VA mails out the continuation of 0% and denial of compensable rating Statement of the Case (SOC) on the HAV February 10th, 2003. It is dated February 7th, 2002 VA knows full well he is appealing for consideration of HBV and HCV. They elect to play dumb. 

On February 12th, Mr. Murphy fired his next salvo with his Form 9. He included that his bone of contention was a rating for heps. B and C . Unfortunately, this wasn’t about B and C in VA’s eyes. They myopically focused on the HAV and moved on. Or did they?

On the 19th of February Mr. Murphy received a denial of his claim for Hepatitis B and C that he mistakenly was asked to file for. The date of the denial document was February 7th, 2002. This comes, of course, from the very same ratings committee at the RO. After scratching his head all summer, John elected to file his NOD for the Hep. B and C denial. By now it must have felt he was dealing with dolts. He was. Intelligent, conniving, unprincipled dolts who do this for a living and can sleep at night. And they now had him trying to ride two different horses bareback simultaneously.  

July 2004. VA issues the SOC for the Hep. B and C and says there is absolutely no correlation between them and his service connected Hepatitis A. Shoot. Anyone could have figured that was going to happen. And again, in December 2003, They sent him out another Christmas card in the form of an SSOC saying negatory on the increase on HAV.

As if it couldn’t get any worse, it did.

On January 13, 2005, VA received the appellant’s Substantive Appeal in which he asserted that he had contracted hepatitis B and C as a result of drinking dirty water in Vietnam.  He stated that he did not have the disease when he entered military service, but that he was diagnosed with hepatitis B and C shortly after discharge. Id. On January 27, 2005, the RO informed the appellant that his time to appeal the February 7, 2003, rating decision that denied service connection for hepatitis B and hepatitis C had expired and that no action would be taken on his appeal because it was untimely filed.  He was further informed what he should do if he disagreed with the decision.   There is no indication in the record that the appellant appealed that decision

This is the end game with divide and conquer. Confuse the Vet into pursuing two inextricably intertwined claims for the same thing and then wait for him to step on his necktie. John wasn’t marking time on a calendar. Even money says the guy was working to feed a spouse and kids and service a mortgage. They really didn’t even need five hundred attorneys to sandbag this guy. With his level of medical knowledge, they were playing with him.

Thirty eight years from his first filing, a BVA Veterans Law Judge spotted all this and admirably attempted to disentangle it. He remanded back to the RO and said this:

The Board requested that the examiner opine

whether as a result of the acute infectious hepatitis for which the veteran was hospitalized in June 1969 and for which he is service-connected, the veteran now has demonstrable liver damage with mild gastrointestinal disturbance or current symptoms of intermittent fatigue, malaise, and anorexia or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea,
vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period.

If you had the Diagnostic code for DC 7345 in front of you, this would be an inquiry as to whether John was entitled to a compensable (10%) rating. The VLJ is not asking for anything else. He’s not interested in who won the pennant this year. He isn’t worried that Bush Lied and thousands died. His burning desire is to know what Johnboy’s liver box is up to.

 The appellant underwent a VA examination in June 2007. The VA examiner stated that the appellant had been diagnosed with hepatitis C, but that he could not find any diagnostic reference to hepatitis B.   The examiner opined that the appellant’s “hepatitis diagnosis and liver disease is at least as likely as not related to his hepatitis diagnosis and liver disease diagnosed while in the military.”

While the VA examiner was a helpful chipmunk and came up with a logical (finally) dandy nexus letter for Johnboy, s/he failed to answer the VLJ’s query as to whether there was a chance to award him 10% for hep. C characterized as hepatitis A. We all know what that means. Yup. Remand again.

In November 2008, Board remanded the appellant’s claim for a compensable rating for service-connected infectious hepatitis, noting that the June 2007 examiner failed to provide the requested opinion. In December 2008, the same VA examiner provided an addendum to his earlier opinion, in which he noted that hepatitis C was not in the medical nomenclature when the appellant was in the military, but that it was known as “Non A Non B hepatitis.” R. at 739. The examiner stated: “Upon review of the [claims] file, the veteran was treated for liver disease.  Hepatitis C is a chronic condition where the symptoms may not manifest itself until several years later.”  He concluded that it “is at least as likely as not that the veteran’s symptomatic liver disease is related to his infectious liver disease while in the military.”

VA was not going to let this one go. When in doubt, stonewall. The VLJ had had it up to here. He sent it back again for remand number three. By now it’s May, 2009. Remand number three comes back like #1 and #2. Yeppers. He’s got HCV and I agree with the other guy. The VLJ, with smoke coming out his ears, resorts to the only thing in his repertoire. -another remand for what he wants- a compensable rating decision.

Well, we all know what that means. Yessssssss. Another C&P is in order to see how much he gets. This VA examiner was under no misconceptions about what she was instructed to say. Out went the three nexi calling HAV =HCV. In came the “I’m so confused I just get the vapors when I think about this. but I’m pretty sure all the things he is suffering from are just old age or a bad flu bug going around. The HCV has nothing to do with the HAV.” What she has failed to put to bed is that John does not, nor has he ever, had HAV. That cat is still out the bag and sitting on top of the 800 lb. Gorilla on the sofa. The BVA fell for it. Or did he just throw his hands up in frustration? We’ll never know. John’s claim just went down in flames like the Hindenburg.

When he arrived at the CAVC, he amateurishly started going off on due process. This was an  open and shut case of medical misinformation. Like a three card Monte dealer, the VA examiner had rearranged A,B and C so many times that suddenly the betters were all thrown off. As for symptoms?

 … the appellant’s current symptoms are the result of “hepatitis C or B (or some other unrelated condition such as depression, PTSD, diabetes[,] and alcohol abuse), and not due to the service-connected infectious hepatitis (hepatitis A).” This appeal followed.

Suddenly Hepatitis A is off the table. This is an argument about what it isn’t rather than what it is. The attorney Mr. Murphy found should be drawn and quartered. If he has a brain in his head, he may run to the Fed. Circus and see if he can do stick drawings in the sand to show how it works. On the other hand, maybe it’s time to call in someone with some real knowledge about what HAV, HBV, or HCV is…or isn’t. It’s obvious the VA examiner has the vapors or is a fast talker. Sounds like she could sell refrigerators to Eskimos.

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About asknod

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

3 Responses to CAVC–MURPHY V. SHINSEKI-NO GOOD DEED GOES UNPUNISHED

  1. Kiedove says:

    I couldn’t pull the decision up but you’ve explained it well. There are no adequate words to describe my disgust with the RO over their treatment of veteran Murphy.

  2. me says:

    FK THEM

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