The Louisville Two-step: Step One: Get VSO and sign POA over. Step two: Step into street in front of VA Examiner and get prepared to be mowed down. This is so predictable. Johnny Rebel here could have been in high cotton and down at the Dodge dealership years ago but his desire to “save a short ton of money” by not giving it to a filthy attorney has now cost him dearly. Mr. Rebel put all his chips on the Kentucky Dept. of Veterans Affairs and an attorney wannabe. He got what I cannot count on a Cray Computer- 100% of 0%. What the hey? It happened to me with the DAV. Don’t feel pregnant and alone.
The worst part about all this is that it was avoidable. More so, it was more predictable than knee-high corn by the 4th of July in a good year. Here we are in 2014 and the 46 VSOs continue to march us to slaughter ten-abreast and eyes right. So many trust them so implicitly and their admonition “Why use an attorney? They’ll just take all your money. Dude, we’re free!” falls on money-conscious ears. We aren’t rich and anyone in the know who advocates to save us samoles is a voice of knowledge to be heeded. Or not.
The first problem all of you should remember when you begin your claim and appeal is to couch your desires in generic, nonspecific terms. Whereas here, Johnny Rebel’s gomer Service Officer donned Stethoscope and White Jacket and got right down to the ICD-9 code on Johnny. So much so, in fact, that he has boxed himself in artificially like Clemons v. Shinseki . This is unnecessary for any number of reasons. Secondary diseases to primary service connected ones are somewhat birds of a feather, first of all. VA is well-acquainted with the fact that an inordinate number of us Heppers come down with DM2, cryoglobulinemia, Porphyria and what I could describe as Peripheral Neuropathy (loosely). Thyroid problems are endemic and they know all this. Mr. Clemons had to make the trip up to the Big House because he conflated mental problems as an all-inclusive batch of diseases with an ugly outcome. Who cares what you call it? If you are not an MD let it ride.
VA is fond(as is the BVA VLJ) of “recharacterizing” your claimed contentions. When they do this, they get to construe what they think it is you are trying so desperately to vocalize. When your own VSO decides to construe it, or worse, simply lets the VLJ have his way and choose it, you’re going to see the gravy train headed the opposite way from Dollar Drive.
Let’s recharacterize Johnny Rebel’s requests as they should have been phrased way back in the fall of 2003 when he filed this. Veterans note that was eleven years ago. That’s Backlog with a capital B. First, his SO’s and the VLJ’s “characterizations of what he filed for:
1. Entitlement to service connection for a disorder characterized by chronic fatigue as secondary to hepatitis C.
2. Entitlement to service connection for peripheral neuropathy of the bilateral upper and lower extremities as secondary to hepatitis C.
3. Entitlement to service connection for migraine headaches as secondary to hepatitis C.
4. Entitlement to service connection for hypertension as secondary to hepatitis C.
5. Entitlement to service connection for a cervical spine disability (claimed as cervical radiculitis) as secondary to hepatitis C.
6. Entitlement to service connection for a bilateral shoulder disability as secondary to hepatitis C.
7. Entitlement to service connection for a herniated disc of the lower back (also claimed as lumbago) as secondary to hepatitis C.
Now, let’s tune this up. We all know we have some radical problem associated with this bug that provokes all this and more. Some have ascribed it to any number of disease processes and have had success on a wide and varied level. The one constant in all these wins, be they at the RO, the BVA or the Court, is the path of Clemons. You are not a doctor and to opine like one simply gives the VA ammunition to shoot down the disease you identify. Mrs. Espiritu learned that the hard way in 1992. Mr. Layno followed in her path in 94. Nothing has changed in the interim. You still follow the Yellow Brick Road paved by Mr. Caluza, Mr. Hickson and Mr. Shedden. Here’s what I’d be writing:
1) Entitlement to fibromyalgia and/or rheumatoid arthritis not otherwise specified, secondary to service connected HCV.
2) Entitlement to headache syndrome, not otherwise specified, secondary to service connected HCV.
I’d leave it at that because, quite frankly, that’s all you’re going to take away from this. Nowhere has it ever been linked that cervical and lumbar problems are HCV-related. You’d just be shooting holes in the dark. I’d have myself tested up, down and sideways for high iron/hematocrit issues, ANA for autoimmune disorders and my IgG levels. I’d be looking at tests for RH factor to identify an exacerbated rheumatoid issue. VHA is not a self-starter on this. If you aren’t over 60% SC, you may have a hard time talking a VA PCP into running all those blood labs. You may, and probably should be doing this in a civilian setting to get the best independent results, too. As you can see from this decision, the labs that are all point to happy,happy,happy.
Now for the bait and switch:
The examiner also stated that there is a lack of sufficient clinical evidence to establish a current diagnosis of chronic fatigue syndrome. The examiner noted that there is no evidence showing the Veteran has been diagnosed with chronic fatigue syndrome. [That’s because Mr. Kentucky Vet helper guy never told him about nexus letters] The examiner determined that the etiology of the Veteran’s symptom of fatigue is unclear, and further noted there is no evidence of chronic, active hepatitis; acute active hepatitis; or any sequelae of liver disease with resulting fatigue, myalgia, or arthralgias. Review of the Veteran’s lab work revealed normal electrolytes and thyroid function was also normal.
Okay, what wasn’t said? The conversation keeps coming back to what the Veteran has claimed for a disease. Each denial substitutes the same exact answer for a denial predicate. “He says he has this but all the blood labs, MRIs, Cat Scans, urinalyses, etc.) say everything’s hunky dory. What is missing is any critical pursuit of what IS wrong. This is a straw man argument that can be eviscerated in short order. Where are the tests for RH factor or AI? Where is a concerted effort made to point out the issues/problems Johnny Vet is vocalizing are endemic to thousands of other similarly situated Vets with HCV- be it resolved, in remision or worse-healed via Interferon bug juice. VA has reams of handouts that explain some of the very same symptoms he complains of being part and parcel of the HCV syndrome. Aches, pains, and a passel of other bugs travel in the circus and not a word of discussion. VA is required to consider all etiologies of a disease -both direct and presumptive- and to investigate them.
Where is the effort made to find out what is wrong with Mr. Vet rather than an effort to prove that everything he claims is unsubstantiated? There are two schools of medicine at work here. One is the objective, Hippocratic method guided by an oath and the other is the Allstate/Nationwide model arguing the absence of corroboration. My favorite defense of this one is an old Derwinski case. Check this out:
Nowhere is it written that you must have continuity of treatment. The only specific item is discussed in 38 CFR §3.303(b) that there be continuity of symptoms. Since the Walker decision eviscerated §3.303(b) for all but the §3.309 diseases, it behooves us to have continuity of symptomatology from the day of the event or injury in service. A bread crumb trail is sufficient sprinkled with a few medical records but the paramount item is as Roseanna Roseannadana said- “It always goes to show it’s something!” You can point to the injury or event, then produce credible evidence including letters from wives, coworkers, kids, the mailman and the UPS guy that it’s exactly as you say.
Here, Johnny Rebel comes up short. He needs a doctor to state the obvious. Johnny has HCV-or did have. Even though his symptomatology of HCV infection may be in remission, this does not ameliorate the other secondaries once they manifest themselves nor does it absolve the VA of just remuneration. My friend and fellow Vet Mark has DM2. Whether it’s a present from Santa, HCV or two trips around the Interferon race track is immaterial. He did not have it before he came down with the disease. He is currently going through Sovaldi treatment. If he gains SVR (or remission), the chances of his DM2 going into remission are slim and none. The damage has been done. He should be service connected because VA’s own studies point to this as a prime cause of DM2. Here, there is no argument where there clearly should be. At asknod, we call this Whack-a-mole justice. You file it, we deny it. VA is employing the one-way street philosophy that is adversarial.
Filing a claim and sitting in the back seat just cost Mr. Vet eleven years of wasted time. He does have until July 20th, 2014 to file his Notice of Appeal at the CAVC and would be a fool not to. This is the last roundup on his claim and absent a remand to add the needed medical linkage, in the form of new and material evidence, all his hard work is going to go down the drain. Judging by statistics alone. Mr. Kentucky SO is going to meet with him and have a beer summit. He’ll talk about how they fought the good fight and the pricks just screwed him. There won’t even be a mention of the CAVC and a Notice of Appeal. I guarantee it. I seriously doubt they know (or care) the path exists.