FROM THE HOUSTON, TEXAS
PRIZE REDEMPTION CENTER
Rarely do we get to see such a piece of misogynistic justice rubbed in a Veteran’s face. Rarely, too, do we get to see him go on to the CAVC and get more of the same. And mostly, rarely do we get to see ourselves, in retrospect, having made the same pathetic errors. All because we put our faith in pseudo-lawyer wannabes with the ___________ (enter your VSO) because it was ‘free’ dude. I have to hand it to Mr. Billy E. Wilson. There, steeped in the grace of God went I -three times- with gusto. He did what I did in 1989, 1994 and again in 2006. We all went to a VSO and began a process we knew nothing about. In short, we trusted the service officer to be professional, competent, knowledgeable and accessible much like an attorney. If this process was, and is, so ‘free’, then why is it we so rarely prevail in HCV claims? Read on.
Let’s take a look at this disaster in slow motion and from the beginning.
Looks like Billy Boy filed in late 2006 to early 2007 for service connection for Hep C and was denied in October 2008. Seems he didn’t even come to the table with a pair of Jacks or better to open the first time. I’m going out on the weak unsupported branches and assume he had the same calibre of legal beagle help as he did here in the 2010 appeal. I have heard many speak quite highly of the Paralyzed Veterans of America (PVA) over the years. We’re going to take a look at that quality justice today. But first, let’s take a gander at what Billy was dealt.
Billy served in 1971-1973. His MOS was peckerchecker so right off the red flag goes up for MEDICAL WORKER. That’s a big ticket item in the evidence resume in a truly nonadversarial adjudication for HCV. 1971 means the JETGUN INJECTIONS- another big risk of percutaneous piercings in a herd setting. Lastly, and more obvious than the wart on a witch’s nose, were his STRs clearly showing Hepatitis in service. Not just hepatitis. Hepatitis NOS or “not otherwise specified” according to VA raters. This means it could have been any of the three most common (A, B or C). Again, in a nonadversarial setting, this, too would count heavily towards a benefit of the doubt finding in favor of the Vet. Most VA rating folks would probably like to call this in favor of the Vet but that’s not how it works. If we do the simple evidence for, versus the evidence against, this much comes out in his favor every time. But absent that magic Mario Caluza triangle of Disease in service/Disease now/Nexus letter(s) from the medicine man, Billy’s claims-both the 2007 filing and this 2010 loss, were headed for the rocks.
The PVA was his legal rep. The PVA claims to be well-versed in this procedure. And for some reason, the PVA, as all VSOs do, allowed Mr. Wilson to proceed all the way through this process missing the most critical item of all (a viable nexus). What’s more, the representative filed a CUE (clear and unmistakable error) claim in the appeal fully well knowing one cannot file a CUE in a claim that is not final. Granted, the VA took no action to point this out and passed it on to DC for a few shits and grins. The level of incompetence doesn’t improve with the geographical change of location to DC. If PVA were even the least educated in the process, their DC troops would have boomeranged this back to Billy’s rep. for a quickie nexus to bolster his poker hand. No dice. Imagine how simple it would have been to reword the existing nexus to:
“Billy was a peckerchecker, was immunized with a jetgun and had viral hep in service. These three risk factors are all evidence that it is more likely than less likely that he contracted it in service. In addition, I ran some blood tests on him and he’s never had Hepatitis A in his life. His liver biopsy came back showing an advanced stage three liver indicating an infection that occurred over thirty five years ago and possibly forty or more. Other than a period of sexual promiscuity in service, he has few other risk factors more salient than these.”
In addition to that travesty, consider this one. Always remember, time is of the essence in this poker game. You are given a year from the day you file to reopen to submit new evidence to rebut the prior denial. If they send you the letter saying:
“Roger, Bill. We got the reopen filing. Here’s the program. Send us new stuff and anything you have that we can use to grant the hep. Over.”—- but—- if they send it to your old address in East Bumfork, Egypt, then you didn’t get it. Seems that feller down at the PVA would get it or someone in the office would call and say “Yo, Billybob. What gives? Are you gonna file or not?”
The letter was returned and the c-file clearly shows and rebuts the Presumption of Regularity of the mail. Furthermore, there’s no evidence in the c-file to show that a replacement letter was sent to the correct address that equitably tolled the lost time. Where, oh where was the PVA when this occurred? This is a due process violation of immense magnitude. The next violation also eviscerated any hope of fixing this before it got to the CAVC. The BVA Veterans Law Judge (VLJ) blithely glosses over the Rios v. Mansfield violation and then says it would be a waste of judicial resources with no benefit accruing to the Vet to remand it to fix it:
Following the Veteran’s April 2010 claim to reopen his previously denied claim of service connection for hepatitis C, the RO sent a letter to the Veteran in May 2010 which contained proper notice concerning his claim to reopen. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Board notes that the May 2010 letter was apparently sent to the wrong address, and the record does not indicate that a subsequent notice letter was ever provided to the Veteran. However, the Board finds that the defective notice is harmless error as the September 2011 statement of the case (SOC) informed the Veteran of the requirement that he submit new and material evidence to reopen his claim and the basis of the prior final denial. Additionally, the Board herein reopens the Veteran’s claim; thus, a remand for proper notice would serve no purpose except to further delay the Veteran’s appeal. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (finding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).
So, in short order, Mr. Wilson (no relation to the Beach Boys) lost a year of valuable time needed to pull together the ingredients for a win but was unaware of the need for it. In judicial time, his claim began to lie dormant. That much is CUE. Absent confirmation of receipt of claim, the filing must sit until Billy is made whole and informed that the clock is ticking once again. The Statement of the Case (SOC) , which he did receive, gave him a mere 60 days to scare up what he still didn’t even know he needed to win or risk the appeal not being consumated with a Form 9. He failed but the VLJ in DC several years later said it wouldn’t help to remand it for him to get a nexus now because hey, the VLJ looked at all the evidence again ( a de novo review) and since nothing had changed and Billy was still clueless, that it was better to put a fork in it. PVA had its chance to fix it and they never did for four long years. Sayonara, Billy.
The M21-1 Manual Rewrite is anally specific on this. No tickee-no laundly. A VA examiner is instructed to begin building on the premise that the Veteran is a lying scoundrel. From there, much like military justice(guilty until proved innocent) your claim is denied because you have not brought proof of innocence to the discussion. Not only that, you have to get a doctor to mumble the proper, supported magic incantation because they don’t trust you. I’ll buy that. I’m not a doctor. I don’t cotton to someone telling me how to build a house. What I don’t buy is a VA examiner dead set on denying with no medical evidence- pro or con- to base the decision on.
In this day and age, scientists have opened up the secrets of the body and can not only determine if you have Hepatitis C, but look further and see if you now have, or ever had, any other flavor of hepatitis. They can determine which genotype it is. Most importantly, in a nonadversarial environment where every benefit of the doubt is accorded the Vet, they can do a liver biopsy and determine with a high degree of accuracy, just how long (or if) you’ve had Hepatitis___, ___ or ___. Keep in mind there are also chronic variations of Hep B as well as autoimmune hepatitis, steatohepatitis and more. VA and all medical professionals have this Sherlock Holmes laboratory capability to discern what you did or did not have-ever. Note that the VA examiner, faced with this Rubic’s cube, did not request blood tests or a biopsy. Basing a decision on this scanty evidence is akin to theorizing the moon is made of bleu cheese based on its color alone.
VA did not provide the duty to assist here for the Billmeister. The ‘finding’ simply states that it was more likely A than C and goes into the inane “because it was acute and resolved before separation”. In fact, his urology screen was negative for hepatitis! Big problem there. Hepatitis is detected via blood and not urine. Imagine. A trained medical professional in the employ of the VA just opined that one’s pee reveals the presence of hep. and Billy passed the test when he separated. Since there was no definitive test for HCV in 1973, and actually not one in commercial use until 1992, this fits the definition of absence of evidence is negative evidence against the claim. But wait. it gets better.
AND THEN THERE WAS CUE
The next phase is where the VA begins to play loose and fast with the facts as they were known. This is a key ingredient if you want to file a CUE claim. Note in the BVA testimony where the author (ostensibly the VLJ) states that:
The Veteran was admitted to the hospital in October 1973 with liver function studies that suggested mild hepatitis. He was diagnosed with acute viral hepatitis and secondary urticarial and subsequently discharged in November 1973 to active duty with normal liver function. The Veteran’s separation examination in March 1973 contained normal clinical findings, including negative urology lab results. The Board acknowledges that the Veteran’s military occupation specialty (MOS) was as a medical corpsman; thus in-service exposure to hepatitis C as a result of occupations duties is a possibility, although the Veteran’s service treatment records contain no indication of any occupational exposure, such as accidental needle sticks.
VA has now found AND ACCEPTED that Billy had “viral hepatitis” which Dorland’s Medical dictionary defines as Hepatitis B-a a blood borne virus rather than a food-borne one like Hepatitis A. Note in blue that they finally acknowledge his pecker checker MOS but explain it away as though medical science was aware of Hepatitis C/HIV and the extreme danger of a needle stick. We would never expect, nor can VA use the absence of evidence to point to it being negative evidence based on this absence. In simple English, absent the knowledge of a risk (yet to be discovered 19 years in the future), a risk cannot be classified as such, nor would there be a reason to run screaming to the ER and ask for medical help. In 1971, they’d have laughed you out of the ER lobby
Here’s where the bait and switch occurs. Hepatitis A in 1971 was referred to medically as “infectious hepatitis” for it’s propensity to spread via the oral/fecal route. Dirty, unwashed hands in an unclean environment allowed this to propagate exponentially-hence the name. But the contemporary service medical records clearly referred to this as “acute viral hepatitis”. Medical doctors are presumed to be capable of discerning the difference between infectious versus viral hepatitis so it is to be presumed that they meant what they said and there cannot be two interpretations of what ‘viral’ constitutes. This is more nuanced and indicates a specific diagnosis rather than a NOS finding as VA tries to imply. Nevertheless, Billy’s nonadversarial VA examiner has now converted a blood-borne virus into a oral/fecal one- no small feat in VAland.
The September 2010 VA examination report documents that the Veteran’s contention that his hepatitis C is due to vaccination from a jet injector vaccination gun in 1971. The examiner noted an in-service diagnosis of hepatitis in 1972 without any designation at to type; however, he noted that it was more than likely hepatitis A and not hepatitis C.
Presto chango. This rater would have made a killing back in the dark ages with alchemy. He notably avoids Hepatitis B (viral hepatitis) and jumps to C. Bald, unsupported theories with no basis in fact cannot be accorded any credence or probity yet the rater is busy converting water to wine. It’s fairly obvious the Examiner is unfamiliar with the old terminologies for Hepatitis A and B or (s)he would not be including Hep C in this discussion. Another medical proof of viral hepatitis is the duration. Most who suffer infectious Hepatitis A are afflicted for a maximum of 7-10 days. Hepatitis B, however, persists, is contagious and causes extreme lethargy for over a month. Note that Billie was hospitalized in October 1973 for what appears to be a month through to November 1973. This was a dead giveaway.
Diagnostic and clinical tests reviewed from August 2009 indicated a high viral count for hepatitis C, while April 2010 liver function studies were normal. Review of risk factors included the Veteran’s statement above concerning a blood transfusion which the examiner could not corroborate within the claims file, and the Veteran’s admission of multiple sexual partners; he denied any other risk factors.
Off we go to the races. Ding Dong the wicked Hep. C is dead. The lab tests prove it! Most doctors would check to see if your results got mixed up with someone else’s-especially at a VAMC. Hep C doesn’t magically go into remission after eight years and a recent high viral load. This is where the incredulity begins begging for an audience. Note the phraseology. A high viral load is a PCR test to count the number of critters. A “liver function studies” is a CBC -a complete blood count that looks at many things but focuses on the SGOT/SGPT (or AST/ALT). A liver function studies test does not investigate viral load. Those are two different studies. You can have a high viral load and the liver can sometimes keep working-albeit struggling- to keep up with the damage. The Examiner also fails to illuminate what a “high viral load” constitutes. I suspect they mischaracterized the two different tests to paint a distorted picture.
Remember they always tell you you aren’t a doctor and you cannot opine as to medical things? Here, they tar and feather Billy because he claimed the jetguns were the guilty party but then began blowing bubbles about being a pecker checker. Next, he said he had a transfusion and started talking about being promiscuous. Each newly identified risk took him down a steep slope of incredibility with no proof other than his lay testimony. It made him look like a Safeway Slip on the Floor Club member lining up a new gig. Gone now is the hepatitis risk and the exonerating evidence of disease in service/disease now and nexus. They’re letting Billy clothesline himself with his pet medical theories- none of which are admissible based on Espritu v. Derwinski. They are pure hypothetical speculation-just as the VA rater has hypothesized that a 1973 diagnosis of viral has mutated into infectious in 2014.
The rest of the decision is moot because the clear and unmistakable evidence shows Mr. Wilson had a blood-borne viral disease (Hepatitis B) akin to Hepatitis C in 1973. Period. Absent a test to ascertain or rule out Hepatitis A, or Hepatitis B for that matter, the decisions was flawed from the get go and cannot stand. Billy was right but he was not permitted to file the CUE. He could have assembled what he needed if this had begun in the first year after the reopening in 2009-2010.
CUE hinges on a concrete precept. If the evidence, as it was known, at the time of the decision was not before the rater, or the laws as they were then understood were violated or not observed, then the decision is flawed. Further, it denied Mr. Wilson his rating so the last hurtle that the error had to manifestly change the outcome has been met. Game Set, Match. CUE that is obvious and unambiguous and easy for all to see is the metric. Here, it is classic VA overreaching to support a denial- the typical three-card Monte game they are well-known for. It is immaterial what the rater thinks. The military doctors said it was Hepatitis B. Unless, or until the VA can change that diagnosis to A using existing medical records at the time of the 2010 decision, Billy had B (and a high probability of a co-infection of C as well). But the beauty is that they cannot CUE themselves and now say “Never mind. It wasn’t A. It was B but it sure as hell wasn’t C. Of that much, we are certain.” Once you pull that “finding”trigger, you cannot call the Hep. A diagnosis back.
Would that it were that easy to win. Tomorrow, I’ll review the CAVC hanging that cast this in concrete. Guess who poor Billy got? Yeppers. None other than the Hanging Judge himself, Bruce “Almighty”Kasold.