“Dogs bless you”: service dogs for veterans

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“Dog Bless USA”
2011 poster

We are huge fans of sharing our lives with furry companions, at one time sharing our property with a rescued yellow lab, five rescued beagles and two rescued cats.  It could get really noisy when they howled in chorus to defend our territory. 

 All but two of our beloved pack have passed away.  The cats were the clowns of the family offering lots of laughs. But the dogs especially helped my DH calm down after work.  He preferred them to most people.  Still does. We called them pets but they were essentially service dogs.  

I love to read about philanthropic efforts like “Dogs bless you” because I know how comforting a canine companion can be, especially for those who have experienced war up close and personal.

The website Dogster has published several articles on this topic and on soldier dogs, most recently here:

http://www.dogster.com/the-scoop/dog-bless-you-charlie-annenberg-weingarten-170-service-dogs-veterans

Enjoy. Woof. Woof.  ah-ROOOOOoooo!

Posted in All about Veterans, Guest authors, Inspirational Veterans, Medical News, PTSD, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , | Leave a comment

Two HCV Public Service Announcements on Youtube

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Anyone seen these on TV?  I haven’t.  The medieval theme doesn’t make sense until the knight lifts his sword to the Silent Dragon.

I think the Willie Nelson HCV PSA (public service announcement) is a more effective communication.  I also think the VA should talk to Willie about creating a HCV PSA aimed at veterans because he’s a likable character.

Please email this post to your local television station and ask them to air them.  Someone might be motivated to get tested!  To email directly from these posts, click comments, scroll up to Share, and click Email and copy and paste an email address from TV staff listings.  

Posted in Guest authors, HCV Health, HCV Risks (documented), Medical News | Tagged , , , , , , , , , , , | 3 Comments

FACE PROVERBS

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Sometimes you come across something so perfect, it needs no improvement. It needs no introduction. It’s like the Washington Monument- a stand alone item that speaks volumes in a simple format.

Posted in FACE HUMOR | Tagged , , , , , , , , | 3 Comments

OH NO! MS. SANTIAGO’S BACK!

Her Royal Highness Mary Santiago

Her Royal Highness
Mary Santiago

By now, we are virtually inured to any further misfeasance or malfeasance of personnel in the Human Resources Department down at 810 Penny Lane NW. After millions of OIG dollars squandered chasing down a hoodoo lane looking for who authorized the ice sculpture at the cheese tasting and rented the Karaoke machine in Orlando, the OIG has discovered yet again another little half a million faux pas up in Detroit. Seems one of our illustrious former VA colleagues (retired,rehired and now fired) found her job irresistible and leaned on a former acquaintance to squeeze back in. Dedication to one’s job for decades – even following retirement- is a quality hard to find in any employee. You ignore this opportunity at your own peril. Or do you?

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Which makes it all the harder to comprehend why someone this flawed, with a well-know propensity to hurl expletives about like a drunken sailor, would be allowed back in to work for VA in any capacity above a janitor. Nevertheless,  Ms. Mary Santiago, a former retired VA senior official, managed to put the squeeze on the reputedly rehabilitated Mr. John Sepulveda (of recent Orlando HR fame) and bagged a GS-15 slot in an admittedly cushy job counting heads at VET “job fairs”. From the OIG report:

 Personnel records reflected that Ms. Santiago returned to Federal service, effective January 31, 2010, when she was appointed as a GS-15 Special Assistant to Mr. John Sepulveda, former HR&A Assistant Secretary, and in April 2010, she became the Deputy Dean of the VA Learning University (VALU). In an April 7, 2011, Advisory Memorandum (2011-00198-IQ-0002), VA OIG reported to VA’s Chief of Staff that Mr. Sepulveda did not exercise sound judgment or due diligence when he hired Ms. Santiago and others and that Ms. Santiago falsified a Declaration for Federal Employment, Optional Form (OF) 306, as part of her VA employment application by failing to disclose that she was [redacted] – (we can only theorize that what is missing here might be “a convicted felon;  convicted of domestic violence; convicted of shoplifting; a felon convicted of 1st degree assault, etc.) The advisory prompted no action against Ms. Santiago, and she was later appointed as the Director of VESO in 2011. In a March 28, 2013, report (12-02503-151), VA OIG reported to the Acting HR&A Assistant Secretary that Ms. Santiago failed to properly supervise an employee that she knew worked at a non-VA second employment during his VA tours of duty and that she did not exercise the necessary supervisory oversight to ensure the employee took leave to cover his absences. Ms. Santiago retired from VA in November 2012, soon after this hiring fair investigation commenced.

Would that this was the end of the story. Alas, for poor Vets, it was just the beginning. In what turned out to be nothing more than another well-orchestrated VA Dog and Pony show, it cruelly held out hope for “employment challenged” Vets to a meet and greet with prospective employers reputedly drooling and trolling for valuable new ex-military types. Turns out that was all a ruse. None of the employers hornswoggled into setting up booths was hiring on site. They were simply there for the photo op.

In concert with her new drinking buddy and outside consultant,  Ms. Katherine Nix, the dynamic duo set out to make some serious walking around money and con Uncle Sam out of even more. Kitty’s company, Serco Services, Inc., got a spiffy new contract to count heads at the job fairs using dysfunctional Earl Scheib, special software. About $510 K worth.

HOW BAD WAS IT?

It was so bad that the VA employee new-hires sat around updating their Facebook pages 60% of the time.

It was so bad that there were no written instructions on what to do or when/how to do it.

It was so bad, bored new employees quit in frustration.

It was so bad, Ms. Santiago would regularly go on the rampage and swear and cuss at the new-hires and tell them they were worthless and brain dead- usually with four-lettered words beginning with F or S.

Let me count ze Vets

Let me count ze Vets

It was so bad the software program to count ze Vets was hopelessly dysfunctional and could not even retrieve any useful data.

It was so bad someone erased the data that was collated and collected.

It was so bad, they cooked the numbers to make it look like a shit ton of Vets got jobs.

The last item might have been the deal breaker. You can blow smoke rings artfully and create elaborate Powerpoint presentations that dazzle the eye. You can cite to endless statistics (VA’s favorite fallback position) that proves unequivocally that the Earth is flat. You can assemble thousands of pages of evidence proving you put on one hell of a production and hundreds of Vets got jobs. But you cannot prevent employees from collecting individual exit polling data that damn your statistics to hell. Mary and Katie forgot that niggling little detail.  Additionally, when you piss off the hired help, you always run the risk that someone will spill the beans. In a well-oiled conspiracy like this one, all it takes is one disgruntled individual. At the VA, it requires at least 20 who will corroborate each others’ story.  You know those AFGE union guys will say anything to make life difficult for the higher-ups so the OIG is forced to sample a larger audience.

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What amazes me is that they (OIG) even pretend to go through the motions anymore these days. This kind of malfeasance is rampant throughout the VA and everyone seems to pretend to be somewhat astonished each time it occurs. Committees are established to study the failures. New safeguards are put in place and regulations are drawn up thus preventing this type of error. Yet time and time again we’re horrified-nay-conflusticated to discover all the best-laid plans of the OIG are all for naught. Along come Mary and Kitty with a better mousetrap. But was it a better mousetrap or merely more of the same old claptrap that passes for a legitimate job in the hierarchy of the VA? If we review Ms. Santiago’s personnel folder, will we discover she was a recipient of the storied VA Bonus program year in and year out?  Finding corruption at the VA is like tugging on a loose strand of yarn on a Walmart sweater. Before long it’s a pile of undone knitting on the floor.

A few presidents ago, we used to have one with “The buck stops here” on his desk. I know this is horribly judgmental and we know the VA Secretary already feels like a one-legged man in an ass-kicking contest, but. A big BUT.  Who is minding the candy store here? Surely, it isn’t John Sepulveda. He didn’t even dial in on the helicopter rides or the free golf in Orlando. He failed the due diligence test on hiring Mary, let alone Serco and Kitty. So who is minding John, you might ask? We notice that soul is AWOL from this discussion. Perhaps what we need is one of those chain of command dealybobs that shows us (or the OIG) who’s the next fall guy above Mr. Sepulveda. Onward through the fog.

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Yessir. We signed up a bazillion Vets today.
Check out the guest book if you don’t believe us.

Posted in All about Veterans, OIG Entertainment, VAOIG Watchdogs | Tagged , , , , , , , , , | 6 Comments

FACECAT

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Describes my Ambush kitty to a T.

Posted in FACE HUMOR, Humor | Tagged , , , , , , , | 1 Comment

2 O’CLOCK CHARLIE

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James S. Hensinger circa 4/70 Phu Tai, RVN

We used to hear about these incidents over the hill in Udorn or NKP back in 1970. Da Nang and its environs were frequently the scene of sniper incidents. I had a buddy that I kept up with who would call me on AUTOVON in the evenings to tell me about some VC with a death wish up on Monkey Mountain or thereabouts. Phu Tai was in the same prefecture so it was six of one and half a dozen of another. I find it interesting that this was a 173rd Airborne site. LawBob was a member of the august group and forwarded this to me. Sadly, we in the Air Force did not show the proper respect to the Airborne troops. Anything that fell from the sky (other than bombs) was referred to as “bird shit”. Thus the name for the Airborne caused some untoward friction among our normal fraternization efforts at the local watering holes in Southeast Asia.

We have James S, Hensinger to thank for these extraordinary shots. Why he kept them hidden all these years is a mystery. Thank goodness he didn’t throw them away. One day, LIFE magazine will do a retro on this war and these pictures deserve a prominent place there. Stunning photography from a grunt-even if he fell from the sky.

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The beginning of the evening:  60mm flares and 40 Mike Mikes from an M-42

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More 60 mm mortar flares followed by M-60s in guard towers (red tracers)

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more 40 mike mike

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High burst of 81mm flare

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more 40mm cannon fire

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40mm Bofors and .50 cal from M-42

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Betty Crocker’s adventures in better living through gunpowder

That must have been an interesting night for the sniper. Looks like about $25 K worth of ordnance. What the hey? I saw more than one instance of extraordinary amounts of ordnance expended to squelch someone. One thing that can be said for being there was that you got a front row seat for the fireworks more than once a year like the Fourth of July. Thank you Mr. Hensinger for sharing these stirring pictures. Great memories of days long past.

Posted in Inspirational Veterans, Vietnam War history | Tagged , , , , , | Leave a comment

OSHA AND VETS

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Sometimes I receive valuable posts from you guys and gals. I want to thank you. This from Midway, Georgia Vet Bruce is spot on for us when we get older. We tend to become impatient and get that Mr. Knowitall disease so often mentioned by Mr. Peabody.

As Bruce commented though:

I know, I saw it right away too…. No safety glasses or hearing protection.

And I caught something else that is really important: he has no gloves on.

I might be up in age but I am still sharp as a tack.

Right on, Bruce. No flies on you.

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Posted in Humor | Tagged , , , , | 2 Comments

JAMA STUDY SHOWS PTSD IS JUST FIG NEWTON OF THE IMAGINATION

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Well, I’m glad we cleared this up. Every Tom, Dick and Sue was coming out with a PTSD complaint and angling for the bucks. Seeing a problem, VA ganged up with  DoD and decided to get to the bottom of this enigma. Why is it that all these guys are sucking on lead lollipops or driving their new 2013 Ford Mustangs into bridge abutments at 100 mph? Well, apparently for a lot of reasons but none of which have anything to do with going to War or being in the military. 

So we’re just going to have to wonder for a while longer why 22 guys (who just happen to have a a military background recently) a day decide to punch out.  Here’s the JAMA study in all it’s shining splendor. Note that the “study” runs from 2001 -2008. It ignores the latest statistics in favor of old stale ones. Perhaps they’re less irritating than the newer theories.

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MALCOLM IN THE MIDDLE- WHAT DID THEY KNOW AND WHEN DID THEY KNOW IT?

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Few people, let alone doctors, seem capable of understanding a disease (or diseases in this case) and the chronology in which they occur. Additionally, with similar diseases, confusion seems to arise as to which one was acquired when- and sometimes as to whether it was acquired at all.  To add insult to injury, doctors who have no knowledge of this often pretend to be experts and inveigh on etiology. This is where we find Malcolm after twenty two years.

A short history of  the Hepatitis of Malcolm is in order. Malcolm came down with it in service (1991) and continued to suffer the effects of it for years. This is not acute Hepatitis A  Virus (HAV). It might have been Hepatitis B virus (HBV) or indeed HCV. Testing in 1991 was limited. In fact, little more than being able to distinguish whether it was HAV or HBV was available to researchers or lab technicians. HCV would not be readily identifiable with any degree of accuracy for several more years.

Nevertheless, VA insisted Malcolm did not have a chronic liver condition in 1991. They continued to maintain that until 2004 when they suddenly decided that he had HCV in 1991. They were not prepared to make it right though. To add insult to injury, they maintained that by virtue of Interferon, Malcolm had gone through Immaculate Remission and no longer suffered adversely from his thirteen years of infection. The liver biopsy showing a Stage II, grade 2 liver was not remarked upon. His recent acquisition of Diabetes Mellitus, type II was not considered extraordinary even though Malcolm was a puny little 140 pound , 5’8″ rapscallion. His other problems of malaise, muscle ache, vision issues and headaches were considered unrelated. Malcolm was just a typical, post-HCV gentleman with various medical aberrations-none of which had anything to do with his prior HCV or Interferon treatment. This is how VA looks at it.

Now, let’s analyze what doctors and researchers knew(and didn’t know) in 1991. In 1991, about the only thing they could determine was if you had ever had HAV or HBV. They had no clue about HCV yet other than if you were yellow and puking, then you suffered from a new, as yet unnamed version called Non A, Non B Hepatitis (NANB). This was determined by negative testing for HAV/HBV above. A negative on both tests in the presence of a major hepatic liver disorder meant something was afoot. There were autoimmune hepatitis (AIH), steatohepatitis, alcoholic hepatitis (hyaline) or NANB to choose from. An Antinuclear Antibodies test could isolate the presence of autoimmune markers in the body and rule out the AIH. Excessive use of a medication such as acetaminophen was often the case for a diagnosis of steatohepatitis. Obviously, a blood alcohol content level of .23 for a decade would provoke hyaline cirrhosis. Lastly, any history of cryptogenic (untested) hepatitis -not otherwise specified (or NOS) from an era when there were  no tests would leave NANB on the table and demand comprehensive testing or at least the investigation of an unknown disease process. Well, anywhere but the VA. VA does not care. They are not in the traditional “wellness” business. If you feel shitty, it’s not because of something VA did (or didn’t ) do.

VA has tested us for HCV on and off over the years without telling us. Ask Kel here about his finding it in his VISTA records from about 2007. VA never bothered to inform him at the time. Robert from LA-same story. I could spend half this article listing all of you.

Now, let us energize the flux capacitor and go back in the DeLorean to witness the most defective, circular logic ever seen. Here’s case number one in point, circa, 1992. This case arrives via VARO San Diego. VA examiners there puzzled over this one and finally sent out for Chinese and an IMO/IME because they couldn’t wrap their brains around it. Unfortunately, the Whizbang experts couldn’t either. I suspect this is one of those proctologist cum hepatologist IMOs we hear about. You know what I mean. VA desperately grabs the first guy with an  MD after his name and asks him to opine for the record. The good doctor complies even though what he know about hep is going to be misquoted directly out of Cecil, Book of Medicine or Dorland’s.

Our 1992 San Diego Vet resembles Malcolm in many ways. He has a case of what appears to be acute, resolved hepatitis in service. Let’s ignore the dichotomy of the drug entanglement for a moment. Malcolm has no such problem. Our Johnny Vet here applies for Hepatitis Not Otherwise Specified that appears to be chronic. He is intelligent enough to know it is chronic because he continues to suffer the effects. It’s 1992 and there is no true test for HCV yet. Using the Braille method, VA is going to employ that unique brand of logic they are so famous for. They will pronounce the hepatitis in service as being

a) HAV, acute and resolved then change and say

b) HBV, acute and resolved then change and say

c) Hepatitis,  undocumented, weird offbeat, unknown flavor caused by drugs and alcohol but completely acute and resolved by late 1971. Never to be seen again. Wasn’t HAV because he never had that. Wasn’t chronic so it can’t be HCV. Could have been most any kind of hepatitis. Too bad they never tested him, huh?

They will then declare he came down with HBV around 1989,  it was acute and has resolved. One problem with this is inescapable. If you get HAV and recover, you have a permanent immunity to it. Same for HBV. You get it once and you’re done …unless it’s chronic HBV. However, Johnny San Diego and Malcolm have never had HAV. They simply do not have the antibodies for it showing a past infection. They both, however, have antibodies showing past infection with HBV. Since HBV is a blood borne pathogen like HCV, the two are often transmitted simultaneously. VA doesn’t subscribe to this philosophy. Each flavor of hepatitis is viewed as a separate event.  And according to the VA, they do not obey normal rules of medicine. To add insult to injury, VA maintains that somehow Malcolm’s HBV, which is now no longer evident in blood labs, was actually HCV all along.

From Johnny San Diego’s BVA decision:

In this case, the veteran’s service medical records reflect that he was seen on sick call while in Vietnam in February 1971 with a 10-day history of malaise, anorexia, upper abdominal pain, dark urine and jaundice. A diagnosis of infectious hepatitis was made and he was admitted to the hospital in Vietnam. However, the treatment records from that hospitalization are not among his service medical records.

The above in blue reflects that the Australian Antigens Test was either not employed or was unavailable. It would have determined what flavor hepatitis Johnny had.  It would not determine HCV because that would not occur commercially until 1993 or later. VA started buying the test in 1997. As for the above in red, VA knows full well that all inpatient medical records for Veterans are kept in a separate file (identified by hospital) at the National Personnel Records Center in St. Louis. The fact that the inpatient records are not associated with his C-file is no mystery. VA has chosen to ignore them even though they know of their whereabouts. The truth is VA never went looking for them. What? You’re shocked? Read on.

In 1985, the veteran was admitted to the VA Medical Center in San Diego, California, with fever, chills, sweats, headache and a 20-pound weight loss. In March 1989, the veteran was again treated at that facility for chills, nausea and diarrhea. During that hospitalization, serologic testing was performed. Hepatitis B surface antigen was negative, hepatitis B core antibody was positive, and hepatitis A antibody was negative.

So there you go. March 1989 sets the day that VA knew beyond the shadow of a doubt medically that Johnny had never had HAV and that he did have HBV at some time in the past. It doesn’t tell us when but simply that he has had HBV and recovered from it. If it was chronic HBV, his HBV surface antigen would be positive-forever.  Chronic HBV is incurable and it will kill you- no ifs ands or buts. A positive HBV core antibody means he has had HBV and recovered. He cannot come down with it again-ever. This has now been cast in stone. VA calls this a “finding”.

This is where the medical malfeasance begins. VA isn’t stupid. The only way to get out of this tar baby is to “create” an acute disease and make it acute twice. HAV is now off the table. HCV isn’t but since they don’t know enough about it yet, they hesitate to go off and make some stupid statement that can be refuted.

The BVA panel (they had panels of three judges back in 1992) then proceeded to summarize what was known about hepatitis in 1992:

Hepatitis A, also called “infectious hepatitis”, is defined as a viral infection of the liver which occurs sporadically or in epidemics, is usually transmitted through the fecal-oral route, and has an incubation period of 2 to 6 weeks. It does not have a carrier state, and does not result in chronic hepatitis. S. A. Schroeder et al, Current Medical Diagnoses and Treatment at 500-503 (1991) (hereinafter Schroeder). The presence of antihepatitis A virus (hereinafter HAV) activity indicates previous exposure to HAV, noninfectivity, and immunity to recurring HAV infection.   Hepatitis B is defined as a viral infection of the liver usually transmitted by the inoculation of infected blood or blood products. It is known to be spread by sexual contact and intravenous drug use, has an incubation period of 6 weeks to 6 months, and can have a carrier state.  Hepatitis C is responsible for the majority of cases of post transfusion hepatitis, and can lead to chronic hepatitis.  In this case, the only record of serologic testing performed was that performed in March 1989, wherein the hepatitis B core antibody was positive, the HAV was negative, and the B surface antigen was negative. As noted in Schroeder, supra, if the veteran had previously been exposed to HAV, it would have been detected in the serologic testing.

The above mentions that HBV can have a carrier state. This is true. You can infect others with your blood but you cannot reinfect yourself. You suffer acute symptoms once and only once and then the infection resolves. Of course, some die from it if left untreated, but that is rare. Note also the green above. That is the most important sentence you will read in this decision. It freely admits that only HCV can lead to chronic hepatitis. That is the the one and only mention of chronic hepatitis with respect to a type of hepatitis in the whole decision. The gross implication was that “serologic testing”  can and would have revealed HCV when the limits of science could deduce only two. Since the serologic testing on March 29, 1989 did not reveal any HCV antibodies (because the test had not been invented yet) it became a VA finding in 1992 that no HCV antibodies capable of producing chronic HCV had been recorded. This is old hat. VA does it all the time. I call it looking for a left front quarter panel for a ’67 Mustang in a junkyard in 1953. This is not an accident. VA used this to deny Johnny boy. 

As you can see, the knowledge of HCV at this time is woefully sparse as the citation shows. Notice there is no mention of an HCV carrier state? VA has now summarized the history of all known forms of hepatitis circa 1991. Now watch the obfuscation, bait and switch and the three-card monte game begin.

It starts innocently with a requested Independent Medical Expert’s synopsis and summary of what is suspected. This is pure speculation based in part on what is known. The specialist opines that yes, HBV and HCV could be acquired simultaneously. It examines the risks of intravenous drug abuse. It discusses acquisition via sexually transmitted diseases yet pointedly ignores tattoos or unsanitary dental work.  The problem arises when this gastroenterologist who is supposedly conversant with all forms of Hepatitis goes off the reservation and begins discussing how an acute, resolved case of HBV (and/or HCV) becomes acute a second time- 18 years later. This article tells us all about HBV. One thing it discusses is the definition of “acute” i.e. a period of six months where the disease is active and transmittable. The article also points out that if HBV is not chronic, then it resolves  granting the bearer permanent immunity. S/he does not need a Gamma globulin shot to prevent infection. S/he is permanently immune and requires no vaccine-ever. In fact, if the HBV is chronic, there is no cure. Let’s see how that comports with our expert’s take on it all.

In summary, the medical record does not support the diagnosis of chronic viral hepatitis in this patient. It appears that he developed acute hepatitis during his tour of service in Vietnam and that he recovered from the hepatitis. (yes but what “acute” kind?)  Evidence of recovery is noted during his admission to the Veterans Administration in 1985, when his liver function tests and liver ultrasound were normal. (but gee- what about  “In 1985, the veteran was admitted to the VA Medical Center in San Diego, California, with fever, chills, sweats, headache and a 20-pound weight loss.”? Where’s the serologic test that hasn’t been invented yet?) Therefore, in response to your first question, it is my opinion that the patient had acute viral hepatitis, specific viral etiology unknown, during his tour of duty in Vietnam. It  should be noted that in 1971, specific virologic testing for hepatitis was probably unavailable at most field stations in Vietnam. In response to your second question, I do not find any evidence to support the contention that the patient has chronic hepatitis at this time. (Because there isn’t a test for it yet.) The medical record does not provide any specific information to suggest that the veteran has evidence on physical examination or serologic testing of chronic hepatitis. (but the serologic testing will be available in several years) Given the patient’s history of long-standing drug abuse, the most likely reason for his acquisition of hepatitis B in 1989    STOP (here’s the malfeasance -an acute HBV infection cannot reoccur later) was sharing of needles during intravenous drug abuse. He also may have suffered some liver damage from his chronic drinking.

So we have an acute, resolved disease that has defied medicine and is now acute yet again contravening everything we know about HAV and HBV. Next, we have lab results showing:

…March 11, 1989, when the patient was seen in the Veterans Administration in San Diego with chills, nausea and diarrhea. Liver function tests at this time indicate an SGOT of 45 and SGPT of 108.

The noted gastrodoc is now telling us that on top a resolved disease you can only catch once, his liver test show he was at least abusing alcohol. Any self-respecting doctor, let alone a gastrodoc, knows that hyaline cirrhosis, grossly evident upon liver biopsy, has an entirely different footprint in the blood labs. The SGOT (AST) of 45 with respect to the SGPT (ALT) of 108 clearly shows the liver was being assaulted by a virus rather than alcohol. Had this been alcohol-induced, the numbers would have been transposed and the SGOT (AST) would be far higher like 150 than the SGPT (ALT). This is not a recent revelation. Doctors have looked to  high AST numbers for years to prove recurrent ETOH abuse. It’s a standard tool for VA to deny with. SGPT (ALT), on the other hand, has long been a tool to show a presence of a virus or liver disorder.

So, in true circular logic, which the BVA (and by extension, their compatriots at the VARO) is renowned for, Johhny Vet here has suffered a non-chronic disease ((but not HAV or HBV) while vacationing in Vietnam. He came home and, defying all medical science, managed to become infected with HBV (merely acute and not chronic, mind you)  which he apparently did not have in Vietnam. Applying medical logic to this, the only thing we can surmise is that he had HCV in Vietnam and it was not chronic in spite of what all those doctors say these days.  Secondly, his HBV was caused by alcohol and drugs after service but not by tattoos or poor dental hygiene practices. Think it through. Two episodes of hepatitis. Neither one was chronic. They were both acute and resolved. Neither episode was HAV. You can only get HBV once. What’s wrong with this picture?

So little was known when Malcolm contracted his “acute” HBV. Even noted specialists are misinformed as the “expert” above was. Hepatitis of all sorts were poorly diagnosed and even more poorly understood. If a specialist can surmise that Johnny did not have a chronic hepatitis condition, then pray tell what did he have? HCV was a virtual unknown then and VA has used a post hoc rationalization in Malcolm’s records to say he was tested for HCV in 1991 and none was found! Even this group of BVA gomers didn’t go out on the little branches and make that pronouncement.

Unfortunately, VA uses the cheapest, most pliant doctors they can round up. They are remunerated with their 30 pieces of silver and disappear. Unless you vociferously contest their credentials, any IME is suspect. It is not unheard of for an ARNP with no gastroenterological experience to opine on matters hepatic. They bust out the Dorland’s manual and cut and paste with no regard for accuracy. Here, in 1991, a documented specialist lied through his teeth for his 30 pieces of silver. I doubt Malcolm fared any better. The only difference is the 2004 VA examiner concurred that it was undoubtedly HCV in 1991 but made no effort to go back and right the applecart for Malcolm.

We aim to fix that. Malcolm won all by himself at the Dead Circus this summer so it’s time to crack the books and set the record straight. One of the best ways , to me, is to prove that the whole Presumption of Regularity, that Holy Writ of VA, that all medical opinions are correct, is untrue. VA talks through the top of their hat 90% of the time. The problem is we do not contest it on appeal. When we do, they trot out their experts to make a mockery of medical science.

The teaching moment here is “When is a resolved, acute, non-chronic, hepatic disease actually capable of defying science and becoming acute again at a later date but not be chronic?” Why, anytime at the VA, pilgrim. Haven’t you been paying attention?  Rephrasing that old Traffic song:

Make your own Hep up if you want to

Any old Hep that you think will do.

Posted in BvA Decisions, HCV Risks (documented), Interferon claims, Presumption of Regularity, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

CAVC– REGARDING MR. CLINE’S EAJA FUNDS

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As most of you know, when you have legal representation, you are entitled to Equal Access to Justice Act funds (EAJA). The catch is that you must prevail in your legal arguments and prove that the VA was “substantially unjustified” in their actions. VA pays on a “lodestar” basis as the cost of living in each city is variable. A law dog in DC is going to pull down a bigger lodestar for himself and his paralegals than one in Frankfurt, Kentucky. 

In this case, Mr. Philip Cline was clearly in the right and the Court went out of their way to point that out to a confused group of attorneys down at the General Counsel’s office at 810 Penny Lane NW.  With the cessation of all those peachy keen bonuses, everyone is positively destitute. No more free rounds of Starbucks on the Judge over at the VLJ ranch.

When Kenneth “the woodbutcher” Carpenter of Topeka fame sent his rather modest EAJA application over to the VA boys, he probably thought it was a mere formality. Vindictiveness cuts deeply when you win a big one. The anger and recriminations began anew. The Court could see this was not going to end peacefully and decided to form a panel and make it a teaching moment. And well they should. The Court has been getting far too chummy with the VASEC on this “substantially justified” thing for too long

Towards this end they logged on to Westlaw© at $59 dollars a minute and came up with all manner of legal precedent. The  final sum was Cline 5, VA 0. The Secretary’s insistence that they were substantially justified in their legal boondoggle fell flatter than a cheese soufflé at a daycare for elementary kids.

This Court will award attorney fees to a prevailing party “unless the Court finds that the position of the United States was substantially justified,” or unless the other statutory requirements are not met. 28 U.S.C. § 2412(d)(1)(A); Cycholl v. Principi, 15 Vet.App. 355, 359 (2001). Because Mr. Cline has alleged, pursuant to 28 U.S.C. § 2412(d)(l)(B), that the Secretary’s position was not substantially justified, the Secretary “‘has the burden of proving that [his] position was substantially justified in order to defeat the appellant’s EAJA application.’” Vaughn v. Gober, 14 Vet.App.92, 95 (2000) (quoting Stillwell, 6 Vet.App. at 301). The Secretary must establish that his position was substantially justified at both the Board level and before this Court. Id.; see Locher v. Brown,9 Vet.App. 535, 537 (1996); ZP v. Brown, 8 Vet.App. 303, 304 (1995)

That’s the legal bar the VASEC must jump over. And here’s the Ta-Daa! moment:

Even if the Court were to assume that this was a “close question,” however, the Court’s findings on the merits make it difficult to conclude that the Secretary’s position was reasonable. This is especially so in light of the Federal Circuit’s ruling that, “[w]here . . . the government interprets a statute in a manner that is contrary to its plain language and unsupported by its legislative history, it will prove difficult to establish substantial justification.” Patrick, 668 F.3d at 1330-31. Thus, on the whole, even though this is a case of first impression, the Court concludes that it did not present a “close” question on which the Secretary had a “reasonable” interpretation. Cf. Golliday v. Brown,
7 Vet.App. 249, 255 (1994) (explaining that, because the statute in dispute involved language that was difficult to understand and was very complex, this factor weighed in the government’s favor.)

Reviewing the totality of the circumstances, including factors identified by the Court in Stillwell, the Court today concludes that the totality of the circumstances in this case weighs against the Secretary. Accordingly, the Court finds that the Secretary has not carried his burden of demonstrating that his position was substantially justified.

As expected, Judge Lance dissented again as he did in the first Cline decision. I won’t say he’s biased towards Vets. I’ll let you come to your own conclusions in that respect. I don’t mind that. Just be thankful two judges could see the light. The most important thing to take away from this is the concept that a VA Secretary can manipulate the regulations into virtually anything he wants them to say. This happens to you-the Vet – more than you will ever know. If you fail to appeal, it stands. You’d never know they cheated you because you accepted it. Phil Cline and Ken Carpenter didn’t let that happen.

What is the teaching moment is elementary. The Secretary and his henchmen thought they could still pull out a good argument to defeat the EAJA. That, as I mentioned above, is pure animosity and poor legal good taste. Ken kicked their ass out onto the sidewalk of Indiana Ave. NW. They just couldn’t let that stand. What better way to “get even” than to play asshole and make him work for that lodestar.

As was expected, they gave it a trim around the edges but left the top alone. The Kenster, if he was smart (and he is,) probably put a little air in the pillow to fluff it up. The Court merely removed the air and left the pillow intact. Will Gunn and his dejected crew will go back to Penny Lane and lick their wounds. Ken will be back again soon and they can express their enduring ire yet again.

I wonder what kind of chutzpah it takes to honestly think you can blow smoke up the Court’s collective nose and cause them think like you do. The Secretary’s position was so far off in left field, it was good to see the Court micro-analyze this for posterity to chew on.  I have no beef with Judge Lance living in rose-tinted glasses land once.  Twice just exhibits his poor breeding.

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