FROM THE DAVID KORESH MEMORIAL VARO IN WHACKO, TEXAS
VA examiners, over the decades I have witnessed the phenomenon, have reached conclusions no one else in the medical field could hope to. With perfect aplomb, they make pronouncements that are far reaching and totally unsupported by fact. I do give them credit for their imagination but the damage it wreaks on Vet’s claims can have serious, long term implications. Considering 85% of all claims are denied, it behooves VA to examine the M21 1MR process that drives such a high error rate. Here is a case in point.
I always get a bang out of Virginia Girard-Brady, Vet’s attorney extraordinaire. Her office is prolific and successful in pursuit of claimants’ appeals. She always has tremendous success with HCV claims and here she hits one out of the park. However, her case was made for her, rather than by her, due to the bumbling VA examiner who couldn’t string two sentences together and come up with a viable denial. The sum of the VA’s attempted denial consisted of 1) a positive nexus at worst and b) a misreading of 38 CFR 3.301(c) (1). While painful and ill-advised, the contraction of a venereal disease will never rise to the level of willful misconduct. Stupidity, yes but always in the Line of Duty!
This sounds like the semantic meanderings of someone far afield who cannot bring themselves to make a clear pronouncement pro or con. In the process, they accidentally give equipoise to the very arguments they set out to demolish.
The examiner opined that the “Vet was not treated for hepatitis or had any symptoms of hepatitis in his STR. He denied that he was jaundiced. The air jet vaccine gun is plausible way [sic] of his getting this. However, he has other risk factors, like h/o multiple sexual partners w/ STD. The air jet injector gun is associated with hepatitis B transmission (see http://www.ncbi.nlm.nih.gov/pubmed/17879809). Hep C has similar transmission. The June 29, 2004, VBA Fast Letter (04-13) says that this is plausible. However, the vet also had multiple sexual partners which is also risk factor for developing Hep C. So the airjet gun, may have been the cause of his Hep C. This may be related to his military service, but he has other strong risk factors that make this less likely than not that this is service connected.” The examiner provides no rationale for why the Veteran’s multiple sexual partners is a more likely risk factor. The Board finds this opinion to be contradictory in that the VA examiner found that the air jet gun theory is a plausible basis for the Veteran hepatitis, but he also found that the Veteran’s multiple sexual partners may have been the cause of the hepatitis. The Board finds that this examiner’s opinion places whether the Veteran’s hepatitis B and C were caused by an air jet gun into equipoise as it both supports the theory and also finds another basis for the Veteran’s hepatitis. The question of a nexus now in equipoise, the Board finds that 38 U.S.C.A. § 5107(b) is controlling and that the benefit of the doubt should be provided to the Veteran, and thus service connection for hepatitis B and C is warranted.
(As an aside, I want everyone to take note. I began referring to the “air inoculation device” as a jet gun in my blogs back in 2008. With great pride, I see the term jet gun finally catching on.)
Assuming the Whacko’s VA examiner in this case was also pontificating the same day on other claims from our Texas Johnny Vet, how about a few of these gems.
DVT and/or Peripheral Vascular disease
In the Board remand, the examiner was directed to expressly address and reconcile the contemporaneous in service findings of lower extremity pain, tenderness, and swelling documented, the SSA determinations showing that his DVT has rendered him unemployable since February 1995, and the lay statements attesting to a history of “blood clots” and related peripheral vascular disease symptoms persisting since his active service. See August 2013 Appellate Brief, March 2010 Statement from D. McGee. The examiner’s opinion consisted of only this remark “Vet checked no to cramps in his legs on his discharge physical. So his legs did not bother him. He was seen for acute knee and ankle injuries, however, there is no documentation of blood clots in his STR. His knees or ankles didn’t seem to bother him at discharge either. Therefore, the evidence is lacking that his DVT is service connected.” In addressing the DVT issue the VA examiner only wrote “Vet’s STR does not have evidence that his current chronic DVT is related to another service condition. His STR does not have any evidence of peripheral vascular disease.”
The vernacular of the examiner(s) is uniquely the same again here.
In the 2014 remand, the respiratory examiner was directed to expressly address and reconcile the contemporaneous in service findings of congestion and wheezing, the post service evidence of treatment for chronic bronchitis beginning in the mid-1990s, and the lay evidence regarding a history of recurrent coughing and related respiratory complaints persisting since his active service. The examiner wrote “The vet had one episode of wheezing on 5/24/77 which was attributed to a “cold.” He did not have any other episodes in his STR. He also said he did not have asthma on his discharge physical. The examiner did not note any wheezing either. So the evidence is lacking that his asthma is service connected.“ The Board notes that the VA examiner did not comment as instructed on the chronic bronchitis beginning in the mid-1990s or address the lay evidence of continuous symptomatology. Therefore, the Board finds that the Board’s remand directive was not fulfilled.
These are the ruminations of Veterans Law Judge Gail E. Strommen. If this is the new standard by which we will be judged, God forbid. We’re heading into a perfect storm of remands in search of coherent VA examiners who can read at a 9th grade level and remember to fetch the pertinent contemporary records before ruminating. Once they analyze each individual’s claims, they will be required to opine and subsequently support their findings or this just becomes another exercise in stupidity. We, who live trailer parks or under posh, well-furnished overpasses, are required to produce cogent, well-reasoned treatises on why we are afflicted with disease and injury. Further, we are required to tie it to our service. Lastly, we are precluded from making any observations requiring medical expertise in diagnosing our ills.
Apparently, VA is not bound by these same codicils.