BVA–JETGUN WIN BUT IT TOOK TEN YEARS AND A GOOD VA LAW DOG


download-13You read about the VA hamster wheel. Perhaps  you’ve taken a few rides yourself in the claims game. BVA remands, as I’ve pointed out in the past, are time alligators. My pet advocacy game with these jetgun claims is simple. You will never get a win from a jetgun risk alone at the RO level. Ever. Trust me. I’ve been pounding that nail since 2007. I don’t care if you have that buddy letter from your Squad leader Sgt. Jesu F. Christe saying it’s so. Not even the Surgeon General is going to convince a DRO-ever. They do not have the authority to grant at the AOJ.  

This is why you always ask for a traditional appeal and keep that new nexus IMO in your breast pocket until you get to the BVA. Plunk it down like you’re raising the bet, drop your pair of aces and call. This VLJ isn’t stupid. He can see the law as clearly as any and VLJ Anthony C. Sciré Jr. here is a relative FNG in this game. I call it the newer, smarter breed of Judges I’ve seen coming out of the woodwork and granting these intractable claims. If you were betting jetguns alone, it would be a crapshoot unless you got a fair VLJ. Jetguns and tattoos documented in the SF 88 at separation in #39 is a guaranteed winner. It always has been along with about a case or more of the clap. To set the record straight, dark urine is not jaundice. Jaundice is the yellow bilirubin buildup in your eyes and skin when your liver is hors d’ combat. Dark urine, however, is a strong indicator of an acute assault to the liver-like Hep C when initially contracted. Repeated dark urine for more than a week is pretty good evidence of at least Hep A.

I got both B and C at the same time in one transfusion and boy howdy did I turn high yellow. It went on for six weeks and kicked my ass for another two months afterwards. I don’t think I ever recovered fully.

3aea503Johnny Vet beat around the bush here and tried to win this with news clippings and internet articles. Fortunately, he kept it alive to the CAVC several times until he figured out how to play VA poker. Most will recall I wrote a complete chapter’s worth  on the subject  here as well as in my book on how the  squeaky wheel eventually gets the grease if you can keep it airborne. Fortunately for Johnny Vet here, he hooked up with Kathy Lieberman. She’s red hot on claims in general. I guess we could run a BVA search for how many Hep C claims she’s won. I don’t see the need. Her name precedes her. Look at those cites to Jones v. Shinseki 23 Vet.App. 382, 394 (2010):

In that regard, as noted by Judge Lance in his concurring opinion in Jones v. Shinseki, “if the medical evidence in the record indicates that a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant’s disability would place the evidence in equipoise, and the benefit of the doubt rule would apply.”

That cite is worth its weight in gold. Memorize it.

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11 Responses to BVA–JETGUN WIN BUT IT TOOK TEN YEARS AND A GOOD VA LAW DOG

  1. Thanks, they didn’t do any liver function tests nor did he have a tat. But…. I recently noticed he had, as they put it, “clap”, dental treatment and lots of antibiotics due to an RPG wound – he had a Purple Heart. One of the points I am confused about is this statement. “if the medical evidence in the record indicates that a disability has only two potential causes and at least one is related to service, then the inability of the medical examiner to provide a reason why one is more likely the cause of the claimant’s disability would place the evidence in equipoise, and the benefit of the doubt rule would apply.” Does that mean that it would be better to have one potential cause prior to entry or simply if there was more than one mode of transmission while in the army it could make their decision more favorable? I seem to dissect statements lately. Sorry

    • asknod says:

      The legal concept is akin to baseball- i.e. the tie goes to the runner. Thus, if your husband had clap in service and had sixteen girlfriends after service and a tattoo in 1980, he would have multiple risks both during and after service. The law says if one of those risks (clap) was in service, then the equipoise argument is met and it is as likely as not that the clap was the cause of his HCV absent willful misconduct. When in receipt of a Purple Heart or other medal showing combat with the enemy, the VA is far more lenient. The smart money is to contact Dr. Ben Cecil (we’ll tell you how) and have him write you a nexus letter saying your husband got it in the service. asknod@gmail.com

    • SPrice says:

      It means that if your husband had a tattoo before service and the clap during service and the examiner can’t say which one is a higher risk then they’ll give your husband the benefit of the doubt and rule in his favor…..BUT….the examiners usually have plenty of ridiculous bullshit to deny claims.

      So your husband has 4 risk factors….
      1. wound backed by Purple heart and medical notes
      2. Clap backed by medical notes
      3. Jetguns
      4. Dental procedures

      You just need the nexus letter and hopefully he doesn’t have a history of drug use on the notes.

      On the notes re the wound check for cultures. I saw one that said the infection was resistant to the antibiotic they prescribed several times. Having an unresolved infection makes it easier to catch Hep C.

      • asknod says:

        Wrong on the tattoo. If you had the tattoo before service, it might be the source of the Hep C and VA would deny the claim. Silvia hasn’t learned yet be very careful when dispensing advice on VA claims. The wrong advice can mean years of pursuing a claim that cannot be won. It also can be used against me as a nonattorney practitioner and imply I’m party to poor or false advice.

      • No drug use. I have a question but I don’t know if I should start a new thread. It is about an examiner making a determination.

  2. I am a novice at this. The subtle nuances are, apparently, too subtle. I think need the 2×4 thingy. lol “Jetguns and tattoos documented in the SF 88 at separation in #39 is a guaranteed winner. It always has been along with about a case or more of the clap” What is the SF88 in #39 and what does clap have to do with HCV? I’m beginning to realize that I might just be in over my head.
    Thanks in advance
    Pat

    • asknod says:

      A jetgun is an air inoculation device capable of transmitting Hepatitis C. Tattoos are also a recognized vector of infection. Basically, anytime you penetrate the epidermis with a sharp needle which may have been in contact with the blood of another who has Hep C.
      The Standard Form #89 and the newer SF 92 that superseded it had a box (#39)you could check off on that said “Scars or other identifying marks/tattoos. There was a space after to list the tattoo/scar and it’s location. If it was blank when you entered and it was checked on the SF 88 at separation, it was an automatic win for Hep C. The same was true for an STD. If you had venereal disease annotated in the service medical records, it too, was a risk factor you could use to win.

      • Kiedove says:

        HCV & sex. One study on monogamous long term couples showed that HCV is transmitted rarely by sex. This study has been used to deny HCV claims sometimes and is cited in VA research. Give me a break! How many single young horny soldiers were celibate in service without their boy and girlfriends? Only married officers were the least likely to admit they visited a massage/bar girl etc…Soldiers in strange lands are not/do not live like priests are supposed to live–chaste and pure.

        These silly VA questionnaires ask the vet a broad question without specifying in-service & post service: YOU had sex (unprotected) with more than (any #) partners. Even if, say, a soldier had sex with only one bar girl in Vietnam, the question that matters is : How many sexual partners was she/he likely to have had each week. Probably hundreds.

        Human bodies aren’t meant for that kind of action and tender tissues tear. She has been subjected to “rough” sex.
        If she was a carrier of HCV, she could have initially got HCV from an American. But because her internal mucous membranes were so fragile from sex work, she then could be thought of as a super-spreader due to vaginal, anal, and oral lesions. Since she engaged in rough sex, so did her customers. Having sex with a sex worker is like having sex with someone who is subjected to gang rapes daily. A virus can travel up inside a man’s penis to seek entry. Females of child-carrying years had monthly periods too.

        Now, a soldier could have picked up a common STD that needed treatment in service. But If he picked up HCV from a sex worker, and if the acute phrase was asymptomatic, he wouldn’t find out about if until decades later due to the long latency period. That would not be in his records; however, if the acute stage was symptomatic, high fever, flu-like symptoms, malaise from unknown cause, may be marked in his medrecs and could be be evidence of acute HCV (Non A-non B then)
        It may be embarrassing for some vets to deal with this subject. But sexual transmission of HCV from contact with sex workers happens in greater numbers than in monogamous couples.
        No moral judgements is here offered–just the need to present facts that will help one win a HCV claim.
        You do NOT have to prove you got a typical STD in service to prove you visited a bar girl/boy for sex. This was common behavior. You could have been infected with HCV and not say, gonorrhea (a bacteria).
        Your word is sufficient. If you think you may have contracted HCV from a sex worker, in addition to other risk factors you have, report the encounter (s). It needs to be factored in.

    • SPrice says:

      What he means is that if your initial exam doesn’t mention tattoos but the exit exam does, that proves that you had a tattoo while in the military that backs up your claim that you got hep c while in service. It is also important to read the medical notes to see whether they mention having bilirubin in the urine, STD exams and treatment with antibiotics, medical and dental procedures, injuries, transfusions, etc.

    • SPrice says:

      I am convinced that the VA writes to confuse the reader rather than betray the writer. Same thing with their studies.

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