As I pointed out several days ago, Mr. Billy E. Wilson’s travails at the BVA were nothing more than standard VA protocol. Distracting your “mark” by dragging in extraneous arguments and then not even addressing them is par for the course with VA. Their old straw man technique dressed up in a new straw suit was not unique. Nor, indeed, was Judge Kasold’s denial which exhibits barely one half hour of legal research and heavily plagiarizes the Acting Veterans Law Judges’s (M. Tenner’s) poorly reasoned dissertation.
In a well-reasoned decision, up or down, a CAVC judge must not fall victim to taking the path of least resistance. We understand that Judge Kasold is growing tired of his appointment to the bench but this is no excuse to simply lip whip the job and keep the seat warm for several more months. If the man cannot bring himself to devote the time and an erudite, incisive legal brain to the job, he has no business there.
Looking over the July 9th affirmation, and fully well knowing the errors of the BVA decision, Judge Kasold exhibits the hubris of one who cannot be bothered to go afield and research this to ascertain the truth. In contrast, look at Judge Meg Bartley’s minute dissection of Beraud v. Shinseki where she stood as the only dissenting party to the panel affirmation. Her careful examination of each and every facet led Attorney Amy Odom to a victory up at the Dead Circus- no small feat.
Kasold baldly contends that Rizzo v. Shinseki 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that VA medical examiner is presumed competent in the absence of evidence to the contrary) is on point here despite glaring evidence to the contrary. Unfortunately, Billy’s shield bearer Michael Wildhaber, had an inadequate grasp of the complexities of Hepatitis A, B and C and the correlation to what was known-and what wasn’t- in 1973.
Focusing solely on the reopening in 2009, and the failure to introduce the Risk Factors Questionnaire (RFQ) into the record early on, Mr. Wilson could not be expected to pick from a menu of possible risks. Absent this probative inquiry, he was left to his own devices or those of his VSO as to the etiology of his disease. The RFQ clearly lists all of his purported risks with the notable exception of jetguns but we at asknod feel they fall into the category of percutaneous piercings akin to EMG needles, tattoos and acupuncture.
In 2009, the RFQ was the go-to document first mailed to a claimant filing for HCV. VA wanted to ascertain early on what the potential risks were in the Vet’s own words. This was five to eight years before the inception of the newer DBQs which do not provide any similar list. Absent this, or even the knowledge such a document existed, he was condemned to failure. VA is fond of asking us how we came to be injured or diseased and often utilizes this document to demolish our credibility. In Billy’s case, they never even developed the claim because they never sent out the preliminary documents to the correct address when he filed. I notice Kasold didn’t even talk about due process. Admittedly, neither did Wilson’s attorney.
The due process violation of failing to inform the Vet of the need for substantiation, let alone the RFQ filing, left Wilson in the untenable spot of playing catch up when hit with the SOC. He then had sixty days to scramble to collate and send in a coherent rebuttal. Rotsaruck, Jose. His newly admitted risks were multiple sexual partners, an undocumented blood transfusion and potential needle sticks or exposure to blood as a medical worker. Since none of these risks were ever opined on in his original, poorly written nexus letter, VA demolished them in the ensuing SSOC. Inasmuch as Acting VLJ M. Tanner pointed out the absence of evidence of Mr. Wilson neglecting to report to his superiors any unsanitary contact with blood, the record is also equally silent with respect for Mr. Wilson’s sexual escapades. If VA expected to see reports of needle sticks or blood exposure in his STRs, wouldn’t it seem perfectly natural to also see a report to sick call that said “Yo. I was out on a cherchez les femmes expedition last night and got lucky. Would you be so kind as to inspect me for any risks associated with this?” More frequently in the past, we’ve seen BVA judges ruminate as to why, if a Vet shared razors/toothbrushes in the military, why that salient risk never appeared in his STRS either.
Bartley, Schoelen or Greenberg would be all over this like white on rice and asking why the discrepancy. Kasold blithely glosses over it but demands to see evidence of a needlestick in 1973. Sanitary protocols, as much as medical terminology, are the reason for this defective affirmation. Even more so, we have seen several memorandum decisions in the last few years that eviscerated the logic of hoping to find mention of hepatitis C, needlestick or other blood risk in a 1973 setting.
Mr. Wildhaber would be wise to take this up to the Federal Circuit on the simple Gilbert violation – that the decision cannot stand based on nothing more than the fact that everyone clearly ignored a coherent, concise, unequivocal diagnosis of viral hepatitis in service. It is part and parcel of the ROA. It is not a new theory like a post hoc rationalization introduced for the first time on appeal. Mr. Wildhaber carefully covered Wilson’s derriere in his fifth contention on page 3 where he summarized that the VA examiner failed to make the sale on it being Hepatitis A. Kasold magnificently shot himself in the foot with his cite to Acevedo v. Shinseki, 25 Vet.App. 293-294(2012)
(noting medical reports are to be “read as a whole”), the 2010 examination report reflects that the examiner reviewed the claims file, which included documentation of Mr. Wilson’s in-service hepatitis symptoms and treatment for his hepatitis. Mr. Wilson fails to demonstrate that his in-service symptoms and treatment were not more likely reflective of having and being treated for hepatitis A as opposed to hepatitis C, or that the examiner rendered his opinion based upon incorrect or incomplete facts or was not otherwise competent to render his opinion.
It is not incumbent on Mr. Wilson to have to point out the diagnosis error of a VA examiner to a CAVC judge. The record clearly speaks for itself in that regard. It is, however, the job of an astute CAVC judge to notice that the tenets of Accevedo were not met. Not to put too fine a point to it but had the VA Examiner truly read the STRs as a whole, as Judge Kasold insists, it would seem (s)he’s medical acumen is on a par with Cupcake’s standard poodle. Somebody call Amy Odom quick. That is, assuming Mr. Wildhaber is not licensed to practice at the Federal Circuit. Kenny Carpenter’s mellifluous voice would sound perfect on oral arguments for ol’ Billie. 120 days and the clock started ticking on July 9th.
Just think. A $39.95 blood laboratory test for HBsAG -our old friend the Australia Antigens test (or Hepatitis B surface antigens test) that reveals all and has since 1970. A positive result means you’ve had Hepatitis B in the past. A negative result indicates it’s Hepatitis A. And nobody even bothered to check all these years. Mr. Wildhaber would be wise to consider one.
Boy howdy do I love VA HCV law. This is like walking the dog and you aren’t even required to scoop the poop. I should have been an attorney. Hopefully that will be changing soon…