I do not know how many times I have seen this phenomenon occur in VA law. Johnny Vet goes to VAMC for ailment. Johnny Vet is tested for HCV and turns up positive. Mr. Vet’s doctor, in true VA style, inquires as to his personal recreational drug habits. Johnny Vet assiduously avers any such activity and cites ETOH abuse with maybe a side of Cannabis in the remote past. Follow on doctors decide to “improve on his statements” and ascribe all manner of drug abuse to him with no basis in fact.
Several years/decades later, when applying for comp. benefits, Johnny gets tarred and feathered by things he never said- and in this case, previously denied. This is a classic case but Johnboy upstaged them to his credit. He denied this activity in 1990 but it came back to haunt him in an unsubstantiated and undocumented remark eleven years later.
When called on it, VA physicians often shrug their shoulders and say “Well, maybe I got Johnny and Jimbo confused with each other. So sue me.” That’s how this happens. Too many patients and too little time for record keeping at the moment of interaction (exam).
Post service medical evidence reflects that at the time of a hospitalization in September 1990 for treatment of an unrelated condition, the Veteran denied intravenous drug abuse (IVDA). However, a November 2001 evaluation by a professor of medicine reflects that the Veteran “does have a history of multiple recreational drug use including intravenous but has not done this since 1975.” In correspondence received by the VA in August 2011, the Veteran explicitly denied any intravenous drug use.
Once the stain is on the sheets, nothing can stop the pell mell rush to denial as witnessed here. I’ve discovered a lot of these things can begin in group therapy sessions with PTSD patients. Jimbo stands up and says “Hi. I was a door gunner in a Huey in I Corps in 67. I used to do a lot of smack. I’ve cleaned up”. Johnny stands up and says he liked to get Extremely Trashed Or Hammered too because it numbed him back then. Johnny now gets a check mark next to his name because the “professor of medicine” supervising the group disunderstood he was trying to say ETOH as in regular old alcohol. Johnny is now a junkie and there’s no callin’ back them doggies.
The June 2011 opinion is inadequate because the examiner erroneously relied on a statistical generality about cause of Hepatitis C without specifically explaining why, in the Veteran’s case, other potential causes were not the likeliest cause of his Hepatitis C. Additionally, the examiner accepted intravenous drug use as a reality without crucially analyzing, considering, or addressing the other medical records that contradicted the assertion.
This is prima facie evidence of why you need your VA medical records as well as your c-file to investigate what will eventually be used against you. That the Vet prevailed and won is due in no small part to his “prepositioned”statement in 1990. Had this been absent, I wouldn’t be writing this. It also helps when idiot VA examiners get diarrhea of the mouth and run on about things they know nothing about.
Mostly, this decision illustrates what I have encountered over and over again in eight years of helping Vets. Robert, of Los Angeles, was similarly smeared by this technique but the chowderheads entered the damning notation in pen into VISTA records (which were printed) much like what happened to Phil Cushman. Quite simply, don’t like the diagnosis or the facts? What the hell. Write your own in. Who cares if they’re aftermarket and undated with no corroboration? We’re VA. We don’t need no stinkin’ corroboration. Incidentally, Robert won with no big deal at the BVA. That it had to go up to Vermin Ave. NW for that Cushman determination is the non sequitur.