I always look for explicit examples of VA tricks and try to advertize them as a “Buyer Beware”. VA has a propensity to stretch the truth like no other agency of government. They have a tendency to cite to medical evidence as well, that, on it’s face, would not ordinarily be questioned…unless… well, if its seventeen years old. What’s disconcerting is that if and when called on it, the VA examiner will simply says something inane like “Oh, gosh. I guess I accidentally picked up the wrong Dorland’s manual”. Which would beg an explanation of why the old one is still on the shelf in any normal investigation of misfeasance.
Poor Jane Vet here from the Cigarette Regional Office of Winston tastes good
like as a Salem should, discovers this much to her dismay. Seems she did a bang up job of presenting secondaries to her now-connected Hepatitis C. The VA examiner, in what is quite obviously denial mode, searched long and hard to find supportive literature that would dissuade the Veterans Law Judge. And find that supportive literature he did. Nonplussed, Jan appealed. Smart cookie. And much like the song by Billy Gilman, the little things that the VLJ did made Jane glad she appealed.
Considering the VA is a cutting-edge medical organization with all the most up-to-date tomes on Cecil, Book or Medicine and Dorland’s Medical Dictionary, one would find it almost inconceivable that an examiner would be forced to quote outdated medical literature to write a cogent denial. The reason we know this is simple. When reading denials of this type, we see the cite to which year the VA examiner is referring- i.e. Dorland’s (1997). Here, we must assume the VA examiner made the grievous error of actually citing the reference material in such a way as to unveil his/her grotesque attempt at subterfuge.
Always remember this quirk. Add it to your list of “VA Denial techniques”. We all know they are forced to go farther and farther afield in their attempts to deny but this one is a newer variation. Hepatitis C is unique in many regards. Being cryptogenic, it can lie hidden for decades and we can now defeat the Maxson v. Gober holding. Similarly, we know it is uniquely linear in its progression which allows us to date it within a certainty of a few years of inception. That put a fork in the VA Examiner’s warped logic of stating that there was no evidence of Hepatitis C in the Veteran’s SMRs from 1967. Each of these medical revelations have allowed us to gradually improve our odds of winning. Thus it should come as no surprise that VA will go to any lengths to poke holes in any claims endeavour-even horribly logical, medically-supported ones- that purport to prove a link to the primary disease.
The Veteran contends that she currently experiences GERD, IBS, polyarthritis, and chronic headaches, as a result of hepatitis C. In this regard, the November 2012 VA examiner opined that the weight of the current medical literature was against a nexus (less likely than not) between hepatitis C and the remaining issues of GERD, IBS, polyarthritis and headaches. The examiner noted that those specific conditions had a number of possible etiologies or may be idiopathic in nature, but none of them were shown to have a plausible nexus to hepatitis C per the current medical literature. The examiner cited to medical literature dated in 1997 as support for the opinion. In response to this opinion, the Veteran submitted more recent general medical literature indicating a possible relationship between (1) chronic hepatitis C and IBS; (2) fibromyalgia and IBS; and (3) rheumatic arthralgia and hepatitis C. The literature, most of which is dated subsequent to 2007, suggests that the findings of the November 2012 examiner may be based on outdated medical findings given that the support for his opinion comes from medical literature dated in 1997, a decade before the medical literature submitted by the Veteran in support of her claims. Thus, the November 2012 examiner’s opinion should be revisited in light of the newly received evidence, and the Veteran should be afforded another VA examination to determine the current nature and likely etiology of the GERD, IBS, polyarthritis, and headaches. Significantly, the examiner should determine what symptoms are associated with each condition, particularly given that the November 2012 examiner provided a positive nexus opinion between the hepatitis C and the fibromyalgia.
We have to assume that the “acting” VLJ, A.C. Mackenzie wants to be anally correct and get it right because she’s new to this judging business. Several years from now, she’ll be firmly ensconced in the saddle and this will never happen again. By then, 1997 medial literature, in her book, will be compelling, cutting-edge, accepted medical evidence and the denial will be affirmed.
One reason Jane Vet prevailed here is obvious. Absent a VSO minder to steer her into a blind alley, she went it alone as a pro se claimant. I have nothing against lawyers (or VSOs for that matter). In fact, as most know, I extol their virtues. Here, Miz Jane seems adequate to the task so a rainmaker might be superfluous. This is all well and fine until you get to the rarified oxygen of 625 Indiana Avenue NW on appeal to the Court. Having a mouthpiece there is a must in my book.
Lastly, let’s revisit the Presumption of Regularity in all things VA does. If we are to believe it, this is simply an oversight or a glitch in the ratings protocols. Likewise, if believing it, we are expected to swallow the pablum that’s it’s a good thing Jane Vet was up to speed on the latest in medical science. Ignorance was thwarted and Justice was accomplished ergo they all lived happily ever after. Pray tell, with all that is afoot at the VA these days, how can there be any Presumption, other than the one of Ineptitude, VA can get anything right?
The river of deceit, the plethora of bonuses and the gross mis/malfeasance we are seeing uncovered daily contradict everything we could possibly depend on to support our confidence in their system. But then, knowledgeable Vets have known that all along…