Those very same three horses ran in the fourth, fifth and sixth races of innumerable visits to the track until I met Cupcake. She feels the heat in her fingers and can feel the winner on the program. But that’s another story. This is about Veteran Maria Collazo and her semantics jousting match with Veterans Law Judge Stephen Wilkins. It has now spilled over into Judge Bruce Almighty Kasold’s docket. Granted, it would have flunked any win test for any number of reasons-even with St. Meg’s or Brother Greenberg’s introspection but it bears repeating that this was a lose-lose case. I commend the DAV for even choosing to defend her. By law, we cannot accept what might appear to be fraudulent claims.
Veterans Attorney Arvind Jairam, Esq. appears to be a stand up guy but is in far over his head. Hanging your whole legal theory on a VA training letter written in 2002 about Hepatitis C risk factors is already shaky ground but having a nexus with the word “Probably, possibly, could’ve, might’ve, it’s conceivable, wasn’t ruled out” or “My Uncle Lemuel had that very same thing and he got it from Hep C” is akin to having no nexus at all. The good news is Mr. Jairam undoubtedly got his 30 hours of pro bono in on this one.
What Judge Kasold never had to say and Judge Wilkins politely avoided, was the clear evidence of willful misconduct. If you’re shooting up drugs in service, that’s a Bozo No-No- period. It doesn’t make any difference if you’re sharing the experience and the needles with others. Even for argument’s sake, as Maria would have Judge Wilkins believe, that she never shared the needle because she was an OCD type of junkie, she still cannot erase the leopard’s spots. If Mr. Jairam had read Sickels v. Shinseki he might not have even taken the low road. The loss of credibility has taken it’s toll as well. You cannot have two versions of a story on file. Using drugs often wrecks our memories of what we say in those VA Kumbaya encounter groups. Standing up and announcing “Hi. I’m Suzy Vet and I shot up waaaaaay too much junk but I’ve been clean now for over twenty years. Jane is my sponsor and here’s my twenty year pin.” will not go unnoticed at these meetings. It always comes back to bite you on the ass.
Although she apparently stated she used intravenous drugs in service on at least one occasion, more often she identified her intravenous drug use as taking place exclusively prior to service. The private treatment records reflect that she admitted sharing needles when she was using intravenous drugs.
The private and VA doctors have opined that the Veteran’s hepatitis C was most likely due to her intravenous drug use (including at a private pain management consultation in June 2003).
The exception is one physician who noted that there was a “possibility” that the Veteran contracted hepatitis from receiving tattoos or dental work during service in a July 2011 letter. This physician did not address the Veteran’s history of intravenous drug abuse prior to service in her letter.
It just gets worse. This is why I couldn’t see a DAV VSO touching this with a ten foot pole. Lady speak with forked tongue. Bad Juju. This suitcase don’t gots no handle, Jose. If she contracted Hep B with the C before service, that pretty much pokes a big hole in claiming it in the first instance. The only thing that can be said is the evidence for tattoo risk was flat out wrong. Any instance of blood exposure before 1992 and the advent of the protection of the American blood supply leaves the risk of transmission plausible. Here, absent an honest weighing of all risk factors, the decision was arbitrary and capricious but well-balanced vis-à-vis the drug baggage.
Believe it or not, I’ve seen wins under some of the darnedest circumstances of folks with Hep C and many “Imperial Entanglements” like Maria’s that would seemingly preclude service connection. Poor Maria was ill-advised on this one. I don’t know if they have lead in the water in Hartford, Connecticut or if it’s just bad plumbing in the water fountain in the DAV’s lobby but it appears somebody had a severe case of dumb and ran with it. A bigger waste of scarce judicial resources has seldom been seen.
What I find sad is that some chucklehead VSO rep. probably got her hopes up she might prevail on some of this. The Hepatitis B dog won’t hunt because, for all but rare cases, Hep B is acute and resolves with conferred immunity for life. About the only ploy she didn’t resort to was jetguns.