Thank you Smoke. I needed a good tag line. A lot of us suffered for years in the era of Non A, Non B Hepatitis before they isolated it and gave it a real name. And, much like finally giving something or someone a name, an Independent Medical Opinion gives your Hepatitis C a name. In VA jurisprudence, we call it service connection and with it comes a VA compensation check. Now for the back story on this horse with no name.
David and his wife began fighting in October 2014 to attain service connection for this beastly disease. Even after listening to me on Hadit.com radio shows and reading my offered advice, they were unable to come up with that killer Independent Medical Opinion (or nexus letter) that put this thing in the bag.
They had their representative file the opt-in to a RAMP Higher Level of Review (HLR) to get a quicker win back in 2018 March. As fate would have it, their VSO rep. forgot to file it. This is one of those silver lining things but I’ll get back to that later. They kept going and all of a sudden it wasn’t a RAMP HLR at all but the BVA. Nobody explained it to them. Their rep had been fired about the time the RAMP opt-in was supposed to have been filed.
Fast forward to about 4/10/2019. David’s spouse called me and begged me to take this before it went up on the rocks. It went up on the rocks on April 16th, 2019 when the BVA Veterans Law Judge affirmed the denial of service connection. Unbeknownst to me, I filed the POA and it kicked in on 4/30- a wee bit late to help them.
We NOVA attorneys and agents just got the most detailed briefing available in March at the Nashville Conference. The new process is virtually untested at the moment. The AMA is brand new. There is little data to study on success/failure vs getting a rapid decision on using the supplemental lane. There is endless conjecture whether VA would honor the AMA’s promise you can take the denied appeal back to the Regional level and file a supplemental claim with new and relevant evidence-like a killer IMO. This avenue allegedly lets you avoid the Motion for Reconsideration at the BVA (which would easily take a year just to agree to a new decision) or the same one-year path to the CAVC but with no new evidence allowed to be entered. Much like untested ice, no one who walked out on it has come back to tell us if VA was
lying -er- peeing on our collective leg and telling us it was raining. Looks like we’re good to go from this decision, fellow litigators.
My clients sometimes don’t last five years so I try to get the benefits awarded asap. The fee is not the reason we do this. With the new AMA, and the implication I could take the BVA denial to the Supplemental lane, win for the client … and preserve the effective date of October 2014 seemed like a bait-and-switch thing with more Catch 22s than a military enlistment form. To think I could pull off this gig in fourteen days was sheer effrontery. Look up ‘slow’ in the dictionary and there’s an 1899 picture of Gen. Custer’s widow holding up her pending 1876 claim for DIC.
So with great reservations, I launched a Supplemental claim on July 5th for reopen of Hep C due to jetguns and all the other risks. I submitted my brand new IMO from the medical wizards at Mednick Associates and 14 days later-i.e. today, July 19th- the narrative and the confirmed ratings sheet came out for 100% permanent and total. I was sure one of two things would happen. First, they’d say “Yep, you proved it was service connected, David… but only as of 7/05/2019 when you sent in that new claim with the IMO”. The flip side was they’d say “Yep you won but the agent doesn’t get any dough because this is a brand new “supplemental” claim. Your 2014 legacy appeal is final.” Shockingly, I was wrong on both counts. No, I’m not being cynical. The Legacy track isn’t convertable to the AMA after a BVA decision. Perish the thought that’s coming into your head. VA has now spoken. The presumption of regularity posits that they can make no mistakes. Far be it from me to disturb this. We’re all taught to sit there and smile. I’ve learned how to smile while I eviscerate their asses legally. Remember, I have an ax to grind. VA insisted I never served in the Republic of Vietnam for almost twenty years(1989-2008). For the record, I served two tours back to back (5/1970 to 5/1972). And, unlike Senator Richard Blumenthal, I have plenty of medals to prove it.
Lastly, the silver lining in this VA claims cloud is simple. A VSO signed a RAMP opt-in form and failed to file it in January 2018. That failure unfortunately cannot be used against the Georgia Department of Veterans Affairs. They are lawsuit-proof. You can’t sue them for providing free quasi-legal advice and assistance. However, it appears to have sufficiently shamed the VA into promptly adjudicating the instant claim we filed July 5th, 2019. David’s missus also called her Congressman which helped, too, I’m sure.
Here’s the opening brief and the VAF 20-0995 I used as a template for your own DIY or legally assisted claims:
And here’s the decision at 12:34:58 Atlanta Time today. What a wonderful thing to read first thing in the morning over coffee on Pacific Daylight Time…
And the BVA decision…
Granted, my client was flashed for terminally ill. He’s my age and my generation. He served during my Vietnam War. He enlisted like me. He’d do this for me if he could. Of that, I have no doubt. Leave no one behind. Not on a Jungle Trail. Not on a Desert Trail. Not on a Paper Trail®. That’s Theresa Aldrich’ tagline, not mine. It evokes my sentiments though. And yes, David and his spouse found me on Hadit.com. We’re all in this together. NOVA is just the uppercase “A” in VA’s ICARE mantra.
So… take a good, long gander at the IMO we submitted above, ladies and gentleman. This is the ammunition you’ll need to win. You cannot submit a letter from your doctor that merely says ‘he got blasted with a jetgun ipso facto he got HCV from the jetgun.’ That will not put the chicken in the pot. IMOs are a medical art form most doctors do not comprehend. They mean well but writing a good nexus requires peer-reviewed citations much like the ones the IMO author referred to in the above IMO. You cannot use internet articles because they don’t have your name on them. Anything from Wikipedia is useless because anyone can post on it. BVA decisions are not precedential. You can claim HCV is caused by alien abduction on Wikipedia and it might stay on there for a week. That may be plenty of time to print up a copy before someone comes along and takes down your artful attempt at subterfuge but it won’t win the claim.