My sincere apologies to Crosby, Stills, Nash and Young for bogarting the Déjà Vu. It seems no matter how many times we go through this process, the BVA seems inclined to come up with the same tired excuses for their denials. Mr. Michael Strong is now beginning year 13 in a long judicial nightmare trying to prove, at this late stage of the game, that he never used a “glass pipe” to smoke crack cocaine. That’s how asinine the BVA has now become that they would be reduced to putting words in his mouth.
Mike’s history on this was written up in 2011 here. At that time. I pointed out the impossibility of ever finding in any Veteran’s STRs (or SMRs) a report of sharing razors. Additionally, the chances of reporting minor scratches and cuts incurred playing around concertina wire were also slim to none. The military taught us to be strong- not girlymen. Judge Hagel concurred and saw the improbability of it as well.
Nevertheless, the BVA has once again denied Mike from the RO on up in much the same way they gave him the bum’s rush in 2003. Nothing has changed except the date on the calendar. The rationale for his denial has even become more ludicrous and far-fetched than the 2009 BVA denial. The BVA gomers and the VA examiners have worked overtime trying to pound a square peg into a round hole. Unfortunately it’s a poor fit and so obviously a put-up job that Judge Hagel once again has to wash the OGC’s mouth out with soap.
I include this case for the obvious HCV connection but Veterans pursuing justice would be wise to analyze why this returned like a boomerang. VA is intransigent. They have an agenda of deny until you give up or die. It never dawned on them to read this and try to swallow it hook, line and sinker themselves before asking Judge Hagel to buy in.
It’s like Chinese instructions on how to assemble a table from Home Depot. The directions simply don’t fit the object they purport to describe. Eventually, VA resorts to manufacturing statements by the Mikemeister that he told them he used a glass pipe to smoke crack. Keep in mind that they have maintained for years that just the mere smoking of crack was the equivalent of snorting it as a risk factor. I also doubt the Mikester got diarrhea of the mouth at this late stage of the game and gave them a blow-by-blow description of how he ingested crack. When that flamed out, they started in on the “He has no history of sharing razors in the service.” In desperation the short, stubby overheated glass crack pipe materializes like they do in an episode of Cops. To the VA this is called “any port in a storm”.
VA insists that we, as claimants, have a logical argument for any nexus . It has to be cogent, well-reasoned and easily verifiable. You cannot just up and say “Your Honor, Mr. Strong has a long history of drug abuse and alcoholism. Therefore it ain’t service connected.” You need facts. You need medical studies peer-reviewed and accepted nationally. In sum, you need a bulletproof denial buttressed amply by science- not an alien abduction scenario. Now comes before us Will Gunn of OGC fame with airy theories, illogical, unsupported facts and a blatant attempt to roll Judge Hagel with them. Kind of makes you wonder what Mr. Gunn was smoking.
Here’s a small sample of some of the most priceless illogic you may read this year. You will find ample cites to utilize in your own defense when they start in with the VA examination where you admitted to snorting (or smoking) the entire 1987 production of Peru’s finest export.
In his December 2004 statement, Mr. Strong stated that, in September 1977, a member of his “platoon and company” attempted suicide by slashing his wrists and that he was among the men tasked with cleaning up the soldier’s blood. The Board denied Mr. Strong’s claim, in part, because there was no documentation of this in his “service treatment records.” The Court is dismayed that the Board provided such a patently illogical reason for denying Mr. Strong’s claim. The notation of another soldier’s attempted suicide is not the kind of information one would expect to find in Mr. Strong’s service records.
Fast forward to 2012 from the 2004 “non-probative” C&P:
In January 2012, Mr. Strong underwent a VA examination. The examiner stated: There is no documentation within the medical record of the patient having shared razors, if this had occurred, this would be considered an inefficient vector at best.
VA is cognizant of the risk factor associated with tainted blood. This is why you will find sharing personal items listed as one of the VA -recognized risks of contracting HCV. Yet here, our desperate Examiner is reduced (with no supporting medical logic) to opine that this is not the cause or a slim one at best. Please recognize this technique as VA uses it all the time. You have to read every word to excavate it sometimes. Here it was overt.
He also states that he helped clean up blood products resulting from the attempted
suicide of a fellow soldier. This involved using a mop, towels, and bleach. He was
not exposed to any needle sticks. There is no documentation in the medical record
regarding this event, however from his description of the event (using a mop, towels
and bleach), it is unlikely that he has had any significant exposure to blood products,
given that hepatitis C is not spread through intact skin or mucus membrane.
Well, pilgrim, except for those pesky glass crack pipes, that is. VA blithely glosses over the specifics and focuses myopically on mop, towels and bleach. No discussion of gloves, normal sanitary protocols, viral survival time outside the body or other recognized scientific tomes on the subject. Also note that it is a prerequisite that any nexus or opinion be couched in “at least as likely as not” or something similarly quantifiable. Here, the examiner concluded it was “unlikely” which could just as easily be equivocally stated “likely”.
Patient has a long history of drug and alcohol abuse and multiple admissions for detox in the 1980’s. While he denies IV drug abuse, he freely admits to smoking crack cocaine. Crack smokers use glass pipes to inhale the smoke. The pipes heat up and cause superficial burns on the lip. Sharing pipes carries the risk of transmitting hepatitis C.
Here’s the smoking gun. Nowhere in medical journals has anyone gone out on the little branches and opined that crack pipes cause superficial burns to your lips. It may very well happen but one cannot say categorically that it happens every time, nor can they say it is endemic to crack pipes -or even Mikey for that matter. Jez, what about pot pipes? The Examiner opined that sharing razors was a poor vector for transmission. It may well be the poorest imaginable but nowhere on the VA’s Risk Factor Questionnaire (RFQ)will you find smoking crack a risk for contracting HCV. Here’s the RFQ. Always remember VA is like an ADHD-addled kid. They say whatever pops into their noggin like someone with Tourette’s syndrome. When pushed onto unfamiliar ground, they turn up the bullshit setting. Here, they had to get the VA Examiner to manufacture new risk factors that the National Institutes of Health haven’t even researched-let alone recognized. This is a first for the BVA but then it should come as no surprise. It’s merely an instance that makes one’s eyebrows rise slightly higher on one’s brow. VA desperation knows no limits.
Of course, when you rebut their insinuations, you get an addendum that purports to call you a liar (again).
In July 2012, Mr. Strong submitted a statement in support of his claim. He asserted that the examiner incorrectly stated that he had smoked crack cocaine out of a glass pipe–”I never indicated this and I have never done it.” Mr. Strong subsequently submitted another statement: “I have never used a glass pipe to smoke any type of substance. When I did smoke it was always in a cigarette type paper. To conclude that my condition is the result of using drugs through a glass pipe is totally erroneous.” In August 2012, eight months after the initial examination, the VA examiner submitted an addendum stating, “the evidence used to determine that the veteran used a glass pipe to smoke crack cocaine was the veteran’s own testimony given to this examiner during the course of the [examination].”
I’ve been through this process before. When called on it, the VA C&P exam will not have any such thing written in it or, if it does, it will be penciled in after the fact as “post hoc proof” Sometimes the VA Examiner is queried and recalls very clearly that old Mikey said exactly that but he neglected to enter it in. However, with his eidetic memory and expert recall, it comes back like yesterday. Of course if you or I tried this stunt, we’d get laughed out of Dodge. The denial would discuss our credibility issues and how no one could remember that far back with such alacrity.
Judge Hagel shouldn’t have to explain this to attorneys schooled in the art of deductive thinking but nevertheless he finds himself doing it not once but twice. Here, he has to carefully explain Evidence Gathering 101 taught to aspiring young policemen with no Juris Doctorate.
[t]he Board found that, although Mr. Strong denied drug abuse intravenously or
intranasally, “he freely admitted to smoking crack cocaine, which the examiner noted involved use of glass pipes to inhale the smoke. The examiner explained that the glass pipes heat up causing superficial burns on the lip and that sharing pipes carries the risk of transmitting hepatitis C.” The Board wholly ignores the fact that there is no evidence that Mr. Strong shared glass pipes with anyone else and instead relies on mere speculation on the part of the medical examiner. It is well recognized that speculative medical opinions are of little probative value and should not be relied upon by the Board. See Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2009).
As you read your denials, you will see this time-worn trick VA employs. They start with a willful misconduct flaw and build upon it like a runaway locomotive. By the time you offer rebuttal, you’re tried and convicted. The trick is so old it doesn’t have a descriptive adjective anymore. It’s built into the M21R.
[t]he Board found that the “[s]ervice treatment records are entirely negative for any
reference to symptoms associated with what is now known as hepatitis C.” However, the Board also acknowledged that Mr. Strong had “a cough and other cold-symptoms” while in service… Considering that “[i]n the early or acute state, hepatitis mimics a variety of flu-like illnesses and may be difficult to diagnose,” Secretary’s Exhibit at 2, the Board failed to adequately explain its finding that there is no evidence of symptoms in service that may be associated with hepatitis C.
This is another age-old ploy. Describe the evidence and then promptly gloss over it as being immaterial as though it is of no consequence. The technique is necessary so the Board can, in good faith, on appeal to the CAVC, honestly say they mentioned it- ergo- it was part of the Reasons and Bases considered before assembling the inevitable hangman’s noose.
And last, but certainly not least, is our old friend Maxson v. Gober which VA trots out religiously at the drop of the HCV hat. Unfortunately it is apposite to Mr. Strong’s claim for all manner of reason which the OGC is all too aware. They’ve been taken out behind the woodshed numerous times for this on HCV cases and still respond with the same Pavlovian response at the ring of the BVA appeal bell.
Sixth, the Board found:
[Mr. Strong’s] post-service medical records first document his hepatitis C in 2000,
more than 2 decades after his separation from service. So[,] even accepting that
hepatitis C may be dormant or have a latency before the associated symptoms
become evident, the lapse of so many years in this particular instance after his
separation from service and the first documented complaint of this claimed disorder
is also probative evidence to be considered in determining whether his hepatitis C
dates back to his military service. The Federal Circuit Court has held that such a
lengthy lapse of time between the alleged events in service and the initial
manifestation of relevant symptoms and/or diagnosis after service is a factor for
consideration in deciding a service-connection claim. Maxson v. Gober, 230 F.3d
1330, 1333 (Fed. Cir. 2000).
The Board cites to Maxson in support of its finding; however, this case is distinguishable. In Maxson, the medical condition was an aggravated colon, not a disease like hepatitis C which, as noted above, can have a long period of dormancy. Additionally, the holding was specific to “evidence of whether a pre-existing condition was aggravated by military service,” which is also not the case here as Mr. Strong is not seeking benefits based on a theory of aggravation. Maxson, 230 F.3d at 1332. Thus, for the Board to use the length of time between Mr. Strong’s service and his diagnosis of hepatitis C as probative evidence is clearly erroneous, based on the Secretary’s own exhibit. See 38 U.S.C. § 7261(a)(4).
And just like moles, Will Gunn and company are industriously trying to undermine the underpinnings of your claim. Mr. Strong’s first “trial” and this do over are classic examples of grabbing any excuse off the shelf without seeing if it fits. Desperate in their attempts to deny at all costs so as to avoid a stampede to the cash trough ( and thus endanger their anticipated bonuses), they grasp at straws to fashion their arguments. The old saw about throwing spaghetti at the wall to see if any sticks is an apt analogy.
So, use this to your advantage. Always rebut the rebuttal as Mikey here did. Don’t allow a lie to go unchallenged. Do not ever, under any circumstances, allow a SOC or SSOC to go by without a vociferous response and a correction of the records.
Mike might not be a saint but neither am I. We all have our Dark side and we also have the ability to right the ship of life. Here, he has done so but is still being tarred and feathered for “drugs”. VA would blame his predicament on anything but something in service regardless of how far afield they have to go. Prepare to see a revision in the RFQs adding glass crack pipes to the list of risks. On remand, the BVA is going to have to throw some serious money at this to get it to stick. I smell a BVA-ordered IMO at Duke University or the University of Oregon Health Sciences Center (funded by who else- VA) where a noted medical scholar will take his thirty pieces of silver and thrice deny Mr. Strong before dawn based on being Extremely Trashed Or Hammered (ETOH abuse), or any of a panoply of other risks we were unaware of. The Veterans Law Judge will carefully eschew from the mention of glass crack pipes this time and hew to established law. Gone will be any reference to Maxson. Instead, a whole new legal epiphany will emanate from the new VA examiner carefully buttressed by antique CDC handouts. In 2017, it will surface like a bobber after a strike and Judge Hagel will inveigh anew.
I fear Mr. Strong’s legal battle is just beginning. The good news is he and Judge Hagel have demolished 90% of their defensive options. A refined hanging a la Macklem is what they desire. Or, the OGC will take him aside and fashion a financial modus vivendi and nondisclosure documents will be signed around. For Mikey, a more propitious time could not be asked for, what with the Phoenix brouhaha afoot. I expect Will Gunn is going to be busy this summer up on the hill trying to explain how the VA infrastructure is laid out and how he neglected to prosecute all these Bozos who were cooking the books.
Meet Mikey and his excellent second adventures at the CAVC. This is definitely one of those “Mikey! Hey, Mikey. He likes it.” moments. We commend him for his perseverance and desire to create precedential jurisprudence for those that would follow.