Back in the old days, we were given “the briefing”. Holy Rules of Engagement, Batman! Each locale differed radically. What was basically a free-fire zone in Kon Tum was an entirely different proposition one Country over and it changed a lot. We came to call them Romeos as a nickname. If you were a groundpounder, you got that call from 6 Actual. What to shoot. When to shoot and which direction to shoot.If you were airborne you had to make sure the truck you saw was a Zil 131 and not a water buffalo pulling a cart. We didn’t have to wait for long for strike aircraft to arrive so we had to be sure. Our only big Romeo problem was napalm. We had to get permission from  the US Ambassador himself for that. It was ostensibly delegated to the Air Attache, but Col. Curry wasn’t always available. And as often as not, one of our sorties was carrying a few gas cans of it on the outboard stations. Which brings us to the VA and Romeos.

Any devoted conversation of law would not be replete without at least a basic understanding between the (non)adversarial parties that everyone was going to play by the rules and be nice. Hence a formal Rules of Engagement for both parties to abide by would be appropriate and ensconced in the regulations. VA has complied admirably. Everything in the regulations is couched in “shall” and “must”.  We are admonished to tell the truth, the whole truth, so help us God.  We expect them to, also.

Please, sir. May I have some gas?

Veterans get the top drawer treatment until we hit that conjunctive “if”. “If” is like being allowed to race in the Indy 500 but when you get there, no one will sell you any gas. “If” is like being invited over to play Monopoly for the first time at your friend’s place and no one will tell you what the Chance/Community cards are for or how to get out of jail.  When filing a claim, all of a sudden you’re at the mercy of a Veterans Service Organization or forced to take a crash education in the Evelyn Wood Speed Reading Course to assimilate what you are going to need to do this. That was before the Internet.

Even today, you are going to be assured everything is okay and this is just a time-consuming project to get your benefits. What no one expects is an adversarial process that looks for all the world like a third-world dictatorship replete with arbitrary, incomprehensible denials. As I’ve preached repeatedly, if 85% of you do not get what you seek, then there are a vast quantity of frauds and mountebanks queuing up at the VA trough for a handout.  Or…. not. That is what statisticians are left with for an answer. If you do not appeal, you legally agree with VA’s decision. No Vet is prepared to wait an inordinately long time only to be handed a bogus piece of logic for the denial of a claim. Anger and frustration invariably breed a desire to blow it off. VA prays you will do so as it makes their job soooo much easier.

Rules of Engagement at the VARO are elastic and vary according to the disease. Some require the application of the Maxson v. Gober logic of “Your back and hips? Why, you injured them 40 years ago. You can’t come back now and say it’s from jumping out of airplanes in 1970. We sure wish we could find a way to hook you up to this cash cow but your claim doesn’t have legs. If you find anything else wrong, you be sure to come on back down and file again. Hear?”

I hesitate to call it a stacked deck but you can see the correlation that a denial rate that has remained static for over a hundred years on claims, with hardly an uptick in wartime, is remarkable for any number of reasons. Statistics rarely hide conundrums. They amplify them by their abundance or paucity of percentages. This is where the Romeos are the deciding factor in denials. The M-21 IMR is constructed as a denial handbook. Yes, I’ve read every page and see it couched in “If claimant has ROM of less than 90% then…” and “If the conditions are near constant and debilitating, then…” But what if you were in the Outer Limits where they control the vertical and the horizontal hold. What if doctor’s C&P manuals didn’t contain the principle quotes that permitted the higher rating?  What if an artificial influence was reducing all these findings or negating them? We often complain about the low ball effect and having to go through multiple C&P exams to get to a proper rating- many times over 10 or more years. VA constructed it this way. But why? Romeos.

In this decision, Johnny Vet’s wife has picked up the Battle Standard and is gingerly making her way pro se across the field of battle. Johnny croaked back in 2010- or about two years after he filed. Mrs. Vet is from the Great State of New Hampshire (Live Free or Die). She isn’t taking this lying down. The sad truth is she isn’t going to win, either.

VA is busy trying to convince her that Johnbo wasn’t dying of cirrhosis but rather due some lung problems. In fact, that’s what was causing all his fatigue. Poor boy couldn’t get no air. He had a 30% rating for Hepatitis under the old code (DC 7345) and they jumped it in 2009 to HCV (DC 7354) and gave him 40% for a net 10% change. He was in the process of appealing this when he suddenly turned room temperature. What you’ll find interesting is they have covered every base, filled every chink in the armor and covered any medical contingency with an airtight excuse. Old Johnbo died. On that, no one can disagree. As to what the cause of death was, the VA examiner and the medical examiner are going to fabricate some of the most innocuous words and phrases ever strung together to paint cirrhosis as nothing more than a case of the vapors. How? Romeos.

In October 2008, laboratory tests demonstrated slightly increased abnormal liver functioning compared to testing in June 2008. The Veteran’s private physician recommended a liver biopsy sometime in the next six months and noted that the Veteran’s lung issues (chronic obstructive pulmonary disease (COPD) and interstitial fibrosis) were a more pressing concern. In February 2009, a liver biopsy showed moderate to severe piecemeal necrosis and cirrhosis. A letter containing the results of the biopsy characterized the findings as a “mild progression in the liver scarring to the level of early cirrhosis.” Laboratory testing performed in March 2009 also showed a slight elevation in the Veteran’s liver function tests. A year later, in March 2010, the Veteran’s liver function tests were again elevated, though his doctor noted that the levels were similar to prior elevations. Thus, objective testing establishes that the Veteran experienced abnormal liver function and hepatitis C that mildly worsened during the claims period to the level of early cirrhosis.

Well boy howdy. That’s about the mildest form of death I’ve ever read about. That mean old mild cirrhosis just crept up and put the hurt on him  and he never saw it coming. Of course, if you diagram the sentence, you notice “mild progression” employs the word “mild” as an intensifier of time rather than of degree of medical involvement. VA attempts to portray it as the latter for the discussion of this whole decision and thus deprives the Johnmeister’s widow of a higher (60%)rating. They take each disease process and ascribe it to global warming and chemtrails. By the time they’re done, fatigue has nothing to do with HCV.

I teach this to every Vet on claims. Read the wording. Each word is like a cardboard box full of info. VA combines them in such a way as to later portray it as a done deal that you did not find fault with. By making light of his fatigue, they have won on two fronts. It was a) due to the lungs and b) it also could have been the sleep apnea. HCV is well known for fatigue being one of the hallmarks but somehow our New Hampshire Vet is unique and had none ascribable to his hep. At Asknod, we call that FM- the second letter standing for Magic, of course. Even though they used the fatigue to increase his rating in February 2009 (below) , they will nonetheless use it against him a year later and blame it on anything BUT HCV.

>>>The record also shows that the Veteran’s hepatitis C manifested symptoms such as daily fatigue, nausea, and an enlarged liver beginning in February 2009.

This is what supported the increase from 30% (marked liver damage) to 40% (HCV). He’s sick and getting sicker. That’s what happens to HCV when left untreated. It only gets better with faith healers in Paraguay or in Grimm’s Faery Tales. People who get HCV do not live happily ever after except in VAland. What’s more, they didn’t ask him if he’d prefer to stay under the old DC 7345 code. He could legally have been rated on the one that would grant him the most. Romeos.

>>>After the February 2009 liver biopsy, he began to complain regularly of fatigue, though the Board notes that he was also diagnosed with sleep apnea following a private sleep study in March 2009.

Yeppers. Sleep apnea will get you fatigued every time. You will notice the Board member did not state that the fatigue was due to sleep apnea. It is implied or “noted”. It is not corroborated for accuracy or any other medical sufficiency. This is listed under negative evidence in the Rules of Engagement. We cannot do it but they are free to.

While symptoms including fatigue and nausea are associated with the service-connected hepatitis C, private records of medical treatment also demonstrate that the Veteran experienced severe symptoms of other disabilities during this period that account for his decrease in function and overall health. An October 2008 chest X-ray showed interstitial lung densities, and the Veteran underwent a resection of a portion of the right upper lung lobe. He manifested a severe cough and lung infection that resulted in difficulties sleeping and breathing and was thought by his cardiothoracic physician as the partial cause of his fatigue and nausea. Additionally, while the Veteran lost weight during the claims period, the weight loss was purposeful and due to his participation in the Weight Watchers program. It was not indicative of malnutrition or anorexia due to hepatitis C. The March 2009 VA examiner also specifically found that the Veteran did not experience any incapacitating episodes in the last 12 months due to hepatitis C. His medical records document a decrease in function during this period, but these findings were related to dyspnea due to the Veteran’s lung disabilities.

So there you have it. The VA examiner is a known Psychic in good standing in the community and it was all nothing more than a bad case of dyspnea. But wait. Look again. Nowhere do you see the VA examiner has stated that the fatigue is attributable to the lungs or sleep apnea.  The discussion involves a “decrease in function” This is why he was asking for a ratings increase. Rules of Engagement–change the subject!

The Board finds that the medical evidence in this case is more persuasive than the lay statements of the Veteran and appellant concerning the actual severity of the Veteran’s hepatitis C. The Veteran and the appellant are competent to report their lay observations of symptoms, but the objective medical evidence clearly indicates that the Veteran’s severe symptoms and functional effects in the period prior to his death were due to various lung conditions.

Rules of Engagement permit the Regional Offices’ VA examiners to overrule doctors and even specialists. This is permitted until you get called on it at the CAVC or when you wake up and object to the Independent Medical Expert (IME )of the foot doctor opining on why your cancer is in no way related to Agent Orange. Lay testimony based on the Layno (five senses) doctrine has been thrown in the trash and Espiritu is pressed into service. The Vet and his spouse are acting like doctors. Every observation by the dead Vet and his living spouse is remarkable and devoid of medical content nevertheless it is discounted and held either incredible or not credible. But the most egregious mistake is the one the VA and the BVA simply cannot quit committing. That is the Colvin v. Derwinski obstacle-

…but the objective medical evidence clearly indicates that the Veteran’s severe symptoms and functional effects in the period prior to his death were due to various lung conditions.

Incorrect. One cardiothoracic surgeon “thought” that it was “as the partial cause of his fatigue and nausea.” Notice “partial cause” has now segued into the VA examiner’s profound ability to cast chicken bones and read tea leaves. But as you can see, the February 2009 rating decision granting 40% said “The record also shows that the Veteran’s hepatitis C manifested symptoms such as daily fatigue, nausea, and an enlarged liver beginning in February 2009. Ruh-oh, Rorge.

Every rule that could be broken here was. The spouse is getting rolled like a cat playing with a mouse before the inevitable end. The RO’s evidentiary standard is non-existent. No one doctor has been asked to opine what happened when and which disease process is more guilty or causative of death than another. Innuendo abounds and there were (and are) multiple etiologies. Who’s to say he didn’t die from Sleep Apnea. Did anyone look into that?

Mrs. Vet is going to be played like a “fish on” for another year on remand and will reemerge here again for the final coup de grâce. All because she doesn’t know the Romeos. The secret handshake. The Password. When you play this game, you have to know what to do. Worse. You have to anticipate your opponent is not bargaining in good faith and will resort to cheating to win his hand.

Where’s the rules?