CAVC–MURPHY V. SHINSEKI-NO GOOD DEED GOES UNPUNISHED

Posted on July 26, 2013 by asknod

CAVC

Murphy’s immutable First Law of Life simply states  “No good deed goes unpunished”. It is predicated on the inevitable outcomes of many good souls who tried to prove its fallacy. So many have broken their spear on this precept that the original Mr. Murphy enshrined it as his first observation. Placement of laws and wisdom often indicates their importance in law and life.

Meet Mr. John S. Murphy, a participant in the Vietnam Boundary Dispute. Here’s the .pdf  Murphy .   Judging by his two years of service, I would be confident in saying Mr. Murphy was drafted and made an 11B Infantryman. I base this on his two years of service versus three. Approximately a month after returning and being discharged, John came down with a dose of the Hep. He was admitted as an in patient and released after eleven days. He filed for VA disability and VA granted him a non compensable rating for it.

For those of you in the dark, in 1969 there was no test for Hepatitis A virus (infectious or HAV) or Hepatitis B (viral-HBV). If you recuperated in short order, it was often deemed to be A. If the recovery extended into 4-7 weeks, it was suspected to be B. Not until 1970 did they come up with the Hepatitis Australian Antigens (HAA) test which used the either/or model. If you were positive on the HAA, it was B. If not, the default kicked in and it was A. This is where the Hepatitis C virus (HCV) earned its moniker of Non A, Non B (NANB). If a body was obviously suffering from hepatitis with negative HAA test results, the diagnosis was NANB assuming no intercurrent etiology such as steatohepatitis or autoimmune hepatitis could be identified. Mr. Murphy fell into this category. VA  mistakenly assumed, in the relative absence of HCV, that he suffered HAV due entirely to its brief course of infection. Unfortunately, this also mimics HCV’s initial onset. With no testing protocol, he was diagnosed with HAV. Since it is acute and resolves, there is no permanent rating for it. You achieve immunity to it and move on. It comes from contaminated food or water that is handled by someone actively infected.

Moving along, Mr. Murphy put in for an increase in September and November of 1994. The record is unclear as to whether they gave him a C&P but my guess from my own experiences about that time is that he just got the standard wave off and another Dear John letter. Inspecting it more closely, it stands to reason that the Murph was suffering some ill effects of his “acute” infection. Most doctors would be intrigued enough to run some LFTs and a CBC. Most. The VA is not as inquisitive as others, apparently. By not becoming vociferous and putting his foot down, John made his first mistake. He didn’t appeal. What the hey? None of you haven’t made this blunder?

In April 2001, still suffering what all of us eventually recognize as the “symptoms”, he filed again for an increase. VA responded in December that he wasn’t getting a pay raise and explained how acute illnesses, even those with onset within the magic one year window, worked-i.e. 0% forever. It is patently obvious that little or no development was done on this. If a Veteran complains of ailments closely associated with liver disease, and he has been diagnosed with the same, most, if not all medical personnel would feel moved to investigate. Moreover, at some point someone with a modicum of intelligence would put two and two together in light of the HCV plague and test him for this. Which brings the second enigma to light.

The history of Hepatitis C testing is well-known in the medical community. Early tests in 1990 were spotty at best but were confirmed by other, similar testing.  If you kept turning up positive on all of them, it could be said with some degree of confidence that you had it. It would appear VA blew Mr. Murphy off and simply attributed it to the HAV without any confirmatory testing whatsoever. Had they done so, he would not have continued to pursue an increase for what was undoubtedly an acute disease. Mr. Murphy isn’t a doctor nor does he have any medical training. It would be nigh on impossible for him to diagnose himself under these circumstances. The disease is far too unique for that. VA would laugh (and did) at any attempts to self-diagnose this as being the same disease process as the one in 1969.

This time out, Mr. Murphy was not going to be rolled. He filed his Notice of Disagreement with the RO in December 2001 and made it quite clear this was the same thing he had experienced since 1969 with little or no surcease. VA swung into action almost immediately. Within 90 days an Agent Orange Registry Examination was requested and Mr. Murphy presented for the exam. I looked back on my 1994 AO Registry show and tell and find no test results for  HAV, HBV, and HCV.  Lots of blood tests showing something horribly wrong, but no hep tests. Mr. Murphy’s tests determined something odd. Keep in mind that the VA was simply using this as a cover for the more important investigation of what it was, exactly, that he did have. First, he didn’t have HAV. Never did. Ever. If he had, it would have shown up as antibodies in his blood. VA now knows this as of Spring 2002. What Johnboy did have was a co-infection of HBV and HCV. For Vietnam Vets, this is not all that uncommon. I have both, too. My hepatitis specialist opined I got them both at the same time. They both require getting infected blood on you or in you. If dental techs wear those fancy plexiglass face masks, that tells you quite a bit, doesn’t it?

VA must have spilled the beans because the next pertinent document in his claims file shows he has been apprised and wants to know what the ratings scheduled has to say about his “service-connected hepatitis”:

A June 25, 2002, Agent Orange followup evaluation medical report indicates that the appellant has hepatitis B and hepatitis C.  In correspondence dated November 1, 2002, the appellant stated: “I would like to know in the near future if my hepatitis B [and] C which is service connected, is there any compensation or rating  decision on this[?]”

On November 23, 2002, he again wrote to VA: “I would like to reopen my claim for service[-]connected hepatitis B [and] C that I got while serving in Vietnam – this was not recognized in my previous claim. I have symptoms such as feeling tired and weak, sleepy and diarrhea, to name a few.”

I do not think any reading this can misconstrue what the Johnmeister was enunciating. He had a claim. VA was currently serving an ice creme cone with no ice creme to him. In light of the fact that the “acute” disease was exhibiting distressingly chronic symptoms, he wanted to know why and how much he was to be remunerated for his already connected disability. I mentioned this one in my book on the subject of filing. I suggested “hepatitis” and no more. Let VA add in the nomenclature. My  paraphrased words were “what happens if  you claim hepatitis C and it turns out to be autoimmune hepatitis?” VA is prone to say “Bummer, dude. You filed for A and we gave you that. This is different. You have B and C. You didn’t file for that. You need to do that.” Of course they are equally apt to say “Dude. You have both but the Autoimmune hepatitis is the one that is kicking the shit out of your liver. The HCV is, like, not a problem but then, you didn’t file for that so it doesn’t really make any dif. Right?” I honestly thought that after Groves v. Peake (2008) that this would never come up again. I was horribly wrong.

Groves, in a nutshell, was a wonderful piece of work by the Federal Circuit. If you were diagnosed in service with paranoid schizophrenia, and you developed it again after service, it is service connected. In an effort to save the government money long before the current round of psychiatric corner-cutting, Mr. Grove’s shrinks attributed his mental aberrations to personality disorders, which we all know are noncompensable.

Upon his administrative discharge in December 1979, Mr. Groves received a diagnosis of “antisocial personality disorder, chronic, severe.”   This diagnosis did not mention schizophrenia, neither confirming nor denying Mr. Groves’ earlier diagnoses.

Groves stands for the proposition that the military and VA are free to characterize your disability however they want, but the fact remains that if you had paranoid schizophrenia in service and subsequently come down with it after service then 38 CFR 303(b) and chronicity kick in. The Army can say you are antisocial all day but they cannot say you didn’t have something in your records. Now substitute Mr Murphy and his hepatitis “A” two weeks after service. Hepatitis in service (or within the one year presumptive period afterwards) and chronic residuals of it thirty two years later are one and the same absent evidence rebutting it. Since VA did no testing of Mr. Murphy’s “hepatitis A” in 1969 or even later at each request for increase, they cannot rebut the presumption that it is the same hepatitis. VA knows this and is trying to figure out an escape hatch. Watch how they do it. 

Five days later, after the Murph informs them he wants compensation wampum for his ailments, the RO calls him up. On the phone. Really. Five days!

On November 27, 2002, VA contacted the appellant by telephone “to verify [the] issues he was claiming.”   The appellant “stated he is asking for an increase for hepatitis and a new claim for generalized anxiety.” Id. However, on December 12, 2002, the appellant executed another statement, that “I am now opening for hepatitis [B] and [C].”

Mr. Murphy made his wishes  clear November 1st, November 23rd and again verbally over the phone on November 27th, 2002. Does anyone here honestly believe, without some subtle, nuanced guiding by a “helpful RO employee” that  Mr. Murphy would abandon a perfectly good claim for increase of symptoms for hepatitis B & C, rated as Hepatitis A, which was in progress, to file a brand spanking new claim for B&C? He already is rated for hepatitis. It is by now a protected rating that cannot be changed. He is entitled to remuneration for his chronic HCV by virtue of the HAV rating. VA knows this but tries to “construe” what it is Mr. Murphy wants.

Now witness divide and conquer. This is a very prevalent VA technique. VA mails out the continuation of 0% and denial of compensable rating Statement of the Case (SOC) on the HAV February 10th, 2003. It is dated February 7th, 2002 VA knows full well he is appealing for consideration of HBV and HCV. They elect to play dumb. 

On February 12th, Mr. Murphy fired his next salvo with his Form 9. He included that his bone of contention was a rating for heps. B and C . Unfortunately, this wasn’t about B and C in VA’s eyes. They myopically focused on the HAV and moved on. Or did they?

On the 19th of February Mr. Murphy received a denial of his claim for Hepatitis B and C that he mistakenly was asked to file for. The date of the denial document was February 7th, 2002. This comes, of course, from the very same ratings committee at the RO. After scratching his head all summer, John elected to file his NOD for the Hep. B and C denial. By now it must have felt he was dealing with dolts. He was. Intelligent, conniving, unprincipled dolts who do this for a living and can sleep at night. And they now had him trying to ride two different horses bareback simultaneously.  

July 2004. VA issues the SOC for the Hep. B and C and says there is absolutely no correlation between them and his service connected Hepatitis A. Shoot. Anyone could have figured that was going to happen. And again, in December 2003, They sent him out another Christmas card in the form of an SSOC saying negatory on the increase on HAV.

As if it couldn’t get any worse, it did.

On January 13, 2005, VA received the appellant’s Substantive Appeal in which he asserted that he had contracted hepatitis B and C as a result of drinking dirty water in Vietnam.  He stated that he did not have the disease when he entered military service, but that he was diagnosed with hepatitis B and C shortly after discharge. Id. On January 27, 2005, the RO informed the appellant that his time to appeal the February 7, 2003, rating decision that denied service connection for hepatitis B and hepatitis C had expired and that no action would be taken on his appeal because it was untimely filed.  He was further informed what he should do if he disagreed with the decision.   There is no indication in the record that the appellant appealed that decision

This is the end game with divide and conquer. Confuse the Vet into pursuing two inextricably intertwined claims for the same thing and then wait for him to step on his necktie. John wasn’t marking time on a calendar. Even money says the guy was working to feed a spouse and kids and service a mortgage. They really didn’t even need five hundred attorneys to sandbag this guy. With his level of medical knowledge, they were playing with him.

Thirty eight years from his first filing, a BVA Veterans Law Judge spotted all this and admirably attempted to disentangle it. He remanded back to the RO and said this:

The Board requested that the examiner opine

whether as a result of the acute infectious hepatitis for which the veteran was hospitalized in June 1969 and for which he is service-connected, the veteran now has demonstrable liver damage with mild gastrointestinal disturbance or current symptoms of intermittent fatigue, malaise, and anorexia or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea,
vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period.

If you had the Diagnostic code for DC 7345 in front of you, this would be an inquiry as to whether John was entitled to a compensable (10%) rating. The VLJ is not asking for anything else. He’s not interested in who won the pennant this year. He isn’t worried that Bush Lied and thousands died. His burning desire is to know what Johnboy’s liver box is up to.

 The appellant underwent a VA examination in June 2007. The VA examiner stated that the appellant had been diagnosed with hepatitis C, but that he could not find any diagnostic reference to hepatitis B.   The examiner opined that the appellant’s “hepatitis diagnosis and liver disease is at least as likely as not related to his hepatitis diagnosis and liver disease diagnosed while in the military.”

While the VA examiner was a helpful chipmunk and came up with a logical (finally) dandy nexus letter for Johnboy, s/he failed to answer the VLJ’s query as to whether there was a chance to award him 10% for hep. C characterized as hepatitis A. We all know what that means. Yup. Remand again.

In November 2008, Board remanded the appellant’s claim for a compensable rating for service-connected infectious hepatitis, noting that the June 2007 examiner failed to provide the requested opinion. In December 2008, the same VA examiner provided an addendum to his earlier opinion, in which he noted that hepatitis C was not in the medical nomenclature when the appellant was in the military, but that it was known as “Non A Non B hepatitis.” R. at 739. The examiner stated: “Upon review of the [claims] file, the veteran was treated for liver disease.  Hepatitis C is a chronic condition where the symptoms may not manifest itself until several years later.”  He concluded that it “is at least as likely as not that the veteran’s symptomatic liver disease is related to his infectious liver disease while in the military.”

VA was not going to let this one go. When in doubt, stonewall. The VLJ had had it up to here. He sent it back again for remand number three. By now it’s May, 2009. Remand number three comes back like #1 and #2. Yeppers. He’s got HCV and I agree with the other guy. The VLJ, with smoke coming out his ears, resorts to the only thing in his repertoire. -another remand for what he wants- a compensable rating decision.

Well, we all know what that means. Yessssssss. Another C&P is in order to see how much he gets. This VA examiner was under no misconceptions about what she was instructed to say. Out went the three nexi calling HAV =HCV. In came the “I’m so confused I just get the vapors when I think about this. but I’m pretty sure all the things he is suffering from are just old age or a bad flu bug going around. The HCV has nothing to do with the HAV.” What she has failed to put to bed is that John does not, nor has he ever, had HAV. That cat is still out the bag and sitting on top of the 800 lb. Gorilla on the sofa. The BVA fell for it. Or did he just throw his hands up in frustration? We’ll never know. John’s claim just went down in flames like the Hindenburg.

When he arrived at the CAVC, he amateurishly started going off on due process. This was an  open and shut case of medical misinformation. Like a three card Monte dealer, the VA examiner had rearranged A,B and C so many times that suddenly the betters were all thrown off. As for symptoms?

 … the appellant’s current symptoms are the result of “hepatitis C or B (or some other unrelated condition such as depression, PTSD, diabetes[,] and alcohol abuse), and not due to the service-connected infectious hepatitis (hepatitis A).” This appeal followed.

Suddenly Hepatitis A is off the table. This is an argument about what it isn’t rather than what it is. The attorney Mr. Murphy found should be drawn and quartered. If he has a brain in his head, he may run to the Fed. Circus and see if he can do stick drawings in the sand to show how it works. On the other hand, maybe it’s time to call in someone with some real knowledge about what HAV, HBV, or HCV is…or isn’t. It’s obvious the VA examiner has the vapors or is a fast talker. Sounds like she could sell refrigerators to Eskimos.

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Posted in CAvC HCV Ruling | Tagged , , , , , , , , , , , , , , , , , | 3 Comments

MARINES–ONE OF THE QUINTESSENTIAL FORCES IN LIFE

Posted on July 26, 2013 by asknod

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In my travels in Southeast Asia, I had occasion to rub shoulders with some of the Marines who were sightseeing along the Ho Chi Minh trail in Laos. They were quiet, reserved and not taken to long sentences. We flew them in to LZs which were often wide spots on a trail. We didn’t see them for two weeks and sometimes they didn’t all come back vertical. Nevertheless, they were quietly arrogant as they should be. If you are going to have an elite force that doesn’t require a lot of petting and reassurance, you want Marines. No fancy berets. No special camouflage uniforms. No elite divisions with catchy names. Just grunts with an attitude. Marines fill that bill. They don’t blow an ass gasket if they don’t get hot food on Thanksgiving. They don’t complain during monsoon that the crackers in their c- rations went south five minutes after being opened. The ones I met complained that they had packed a lot of ammo in and couldn’t find enough worthy recipients to wear it.

Gen. James Mattis, with forty one years in service, retired recently because he was becoming an anachronism.   Politicians do not like verbally challenged Generals who enjoy warfare. Gen. Mattis wasn’t so much verbally challenged as he was prone to say what he feels. Nothing like a little honesty when talking to the press. Unfortunately, this translates into what appears as Tourette’s Syndrome when it surfaces in the mainstream media. I know well. I’m guilty of it. Cupcake has an encyclopaedia of my gaffs. I sympathize with Gen. Mattis. I also agree with his philosophy. When you assay to cross swords with an enemy, it should be with the intention of erasing him from the earth. No half-measures or meetings to “assess the situation and the consequences of the actions”. The operable phrase is “Press on”.

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Army medic Bruce sends me this daisy. The quotes are priceless and still appropriate- and should be instilled in all branches of service.

1. “I don’t lose any sleep at night over the potential for failure. I cannot even spell the word.”

2. “The first time you blow someone away is not an insignificant event. That said, there are some assholes in the world that just need to be shot.”

3. “I come in peace. I didn’t bring artillery. But I’m pleading with you, with tears in my eyes: If you fuck with me, I’ll kill you all.”

4. “Find the enemy that wants to end this experiment (in American democracy) and kill every one of them until they’re so sick of the killing that they leave us and our freedoms intact.”

5. “Marines don’t know how to spell the word defeat.”

6. “Be polite, be professional, but have a plan to kill everybody you meet.”

7. “The most important six inches on the battlefield is between your ears.”

8. “You are part of the world’s most feared and trusted force. Engage your brain before you engage your weapon.”

9. “There are hunters and there are victims. By your discipline, cunning, obedience and alertness, you will decide if you are a hunter or a victim.”

10. “No war is over until the enemy says it’s over. We may think it over, we may declare it over, but in fact, the enemy gets a vote.”

11. “There is nothing better than getting shot at and missed. It’s really great.”

12. “You cannot allow any of your people to avoid the brutal facts. If they start living in a dream world, it’s going to be bad.

13. “You go into Afghanistan, you got guys who slap women around for five years because they didn’t wear a veil. You know, guys like that ain’t got no manhood left anyway. So it’s a hell of a lot of fun to shoot them. Actually it’s quite fun to fight them, you know. It’s a hell of a hoot. It’s fun to shoot some people. I’ll be right up there with you. I like brawling.”

14. “I’m going to plead with you, do not cross us. Because if you do, the survivors will write about what we do here for 10,000 years.”

15. “Demonstrate to the world there is ‘No Better Friend, No Worse Enemy’ than a U.S. Marine.”

16. “Fight with a happy heart and strong spirit”

Simply put, there is no Silver or Bronze medal for coming in second or third. We learned that in Vietnam. Go for the Gold or go home.

Posted in Inspirational Veterans | Tagged , , , , , , , , , | 1 Comment

BVA–ROAD TRIP TO VIETNAM

Posted on July 24, 2013 by asknod

WANTED: NATIONAL SERVICE OFFICERS

download (2)PROOF OF ELEMENTARY EDUCATION REQUIRED

I’ve read a lot of these but this one is unique. The vet was out of the service and decided to go get his brother’s body in Vietnam and bring it home. Therefore he was exposed to AO and gets the presumptive? After service? Oh, and he got PTSD while he was there, too. You can see that happening. I can. War is messy-even after you get out. You should be remunerated for it, too.

Let’s set aside the Graves and Registration MOS and just say for shits and grins that this guy did this the way his wife says he did. How did he get in-country? Who gave him a passport to wander around in a free-fire zone? Was this a financial thing? Was the Army broke from sequestration that month and ask him to “come and get him before we throw him out”?

I am not callous nor am I insensitive to the wife’s grief. I am merely voicing incredulousness at the thought of a man separated from service being allowed to hop a flight to Tan Son Nhut and pick up his brother at the take out window. As for why he’d be entitled to the PTSD, that is an even bigger mystery.

The Veteran’s sister-in-law also wrote a letter in November 2010 suggesting that based on her work volunteering at the Vet Center she was of the opinion Veteran had PTSD. 

and

Here, there is no specific in-service stressor reported by the appellant. Rather, the appellant repeatedly asserts that the Veteran recovering his brother’s body was the stressor that caused him to develop PTSD. However, this event occurred after the Veteran had been discharged from service and would not therefore support the grant of service connection.

This is a scream. Two women with no medical degree opining.

Once again I see the DAV as the VSO who is repping this gal. Do they employ differently abled people there or is it a prerequisite for employment that you have an IQ below 70? Who, exactly, is in charge of training the DAV’s National Service Officers in Montgomery, Alabama?  Why did they waste their time appealing this? Did they legalize marijuana in Alabama, too? Lottsa queshuns and no answers. Once again, the blind leading the deaf.

Posted in BvA Decisions | Tagged , , , , , , , | 4 Comments

BVA–WHAT’S WRONG WITH THIS PICTURE? TIMES 2

Posted on July 24, 2013 by asknod

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First let me say that I am shocked- shocked I say- that Congress has approved Laura Eskinazi as a Veterans Law Judge. She, for all of you in the dark, has been the Veterans’ nemesis over at the Office of General Counsel for years. I always assumed she’d take Will Gunn’s place. Apparently he wasn’t ready to move on and she was ripe for promotion. Oh well. There’s still hope when he gets the bump or boot. That will be a dark day for us.

The next one is a hoot:

On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii

THE ISSUES

1. Entitlement to an initial rating higher than 10 percent for dysthymic disorder.

2. Entitlement to an increased rating for chronic actinic damage due to sun exposure, currently rated as 10 percent disabling.

3. Entitlement to an extraschedular rating for chronic actinic damage due to sun exposure.

4. Entitlement to a total disability rating based on individual unemployability (TDIU).

Hellooooooooooooooooooooooooooooo? It’s Hawaii, homey. What was he expecting?

 

The Veteran has not yet been issued a Statement of the Case on the issue of entitlement to a disability rating in excess of 10 percent for chronic actinic damage due to sun exposure. Where a Notice of Disagreement has been filed with regard to an issue, and a Statement of the Case has not been issued, the appropriate Board action is to remand the issue for issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

And to add insult to injury, the RO sent it off to DC without even issuing a SOC or certifying the appeal. Heavens to Murgatroid.

Posted in BvA Decisions | Tagged , , , , , , , , , | 1 Comment

BVA– TEXAS FREQUENT FILER PROGRAM

Posted on July 24, 2013 by asknod

FROM THE TALL TALES REGIONAL

scOFFICE IN HOUSTON, TEXAS

I write occasionally of the VA Backlog. I write sometimes about “frivolous filings”. Rarely do I come unglued and blow an ass gasket over Vets who legitimately (although mistakenly) attribute their ills to their time in service. We are not doctors but sometimes we disremember things and the memory box doesn’t serve us well.  

And then there are another class of humans for whom the expediency of financial remuneration becomes immediate. These brave individuals operate on a different plain than you and I and regular rules do not apply. They are entitled to claim anything and everything they want and often get away with it. This simply provokes more of the same until the baggage exceeds the design limits of the aircraft. When this happens, you don’t become airborne at V2. You crash.

Mr. Tall Tales Vet in Houston here has woven quite a web of deceit. Taking just enough factual information to make it plausible, he weaves a tale of automobile accident, exposure to Agent Orange and chronic, perennial psychiatric woes to create the perfect storm. Unfortunately, none of it is true.

VA is not your BFF. We accept this ugly truth. We have to work around the fact that they do not believe a thing we say. We must prove it all just to win it on benefit of the doubt. We must provide documentation that purports to show we are being truthful. As the courts remind us, this is a two-way street. Apparently Johnny Vet here is impatient and has a few mental aberrations. These two character defects, in combination with a decided propensity to rewrite history each time he files, does not go unnoticed by the raters. After decades of deceit, they assemble it all and call him a liar.

C-files are usually a huge mish-mash of facts in no apparent order. Nevertheless, all the facts are there if one bothers to sort them out. If they are not, the VA is willing to go to the wall and dig for them. They aren’t thorough and often are sloppy. But eventually they ferret out the facts from the older records and build timelines that prove what has been reported isn’t possible. This case illustrates that in spades.

Here’s John-boy’s timeline.

1973- January- Join service. Combat training @ Ft. Dix

April — AIT at Fort Sam Houston. Flunked out of EOD

June-July  — AIT cook school at Ft. Ord (passed)

1973–July– Assigned as cook to Ft. Benning

1974-May- Went AWOL

1974- First MVA (motor vehicle accident)

1975- Discharged from service honorably at Ft. Dix after finishing up “commitment”

1978- first filing for bad back

1979- October–first filing for bent brain

1980- January–second  ”                       ”

1984- June–third filing ”                        ”

1990- second MVA (in Mexico) with spinal fracture X 2.

2003-second filing for bad back

2008- BVA denial on back claim

2008– file for DM2 due to AO exposure at Eglin AFB (Florida) and reopen psychiatric problems claim

2010-CAVC remand for more info on back claim/DM2

2013 -current claims reopenings denied

In a nutshell, Johnny is history-challenged. Apparently they sprayed the Roundup down at Eglin AIR FORCE BASE three years before he joined the ARMY. That popped up later when they tried to find records assigning him there. VA is so sweet and polite when they tell you your memory’s chords are less than perfect:

There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to his current account of the events of service. Rather, it is the accuracy of the Veteran’s current account which the Board finds is lacking. Simply put, the report of medical history at separation from service is more convincing than statements made decades later in support of a claim for monetary benefits. The report of medical history is further bolstered by normal clinical findings based on an examination at the time. In addition to the normal psychiatric findings on the separation examination, the record contains the February 1975 counseling report which includes a detailed contemporaneous account of his problems in service. Notably absent from this report is any mention of psychiatric hospitalization or treatment. The finding of acute situational maladjustment, coupled with severe deficiencies in attitude and motivation is considered conclusive as to the extent of his psychiatric or mental symptomatology at the time. As noted above, to the extent that there were psychiatric or mental symptoms in service, they were not chronic.

 

In short, the Veteran’s account of symptoms and treatment has been entirely inconsistent. In fact, it is difficult to piece together any consistent narrative as to his asserted onset of symptoms and initial treatment. The Veteran has reported that he was hospitalized in service for psychiatric complaints; he has reported that he was not hospitalized in service, but was treated for psychiatric complaints; he has reported that he was hospitalized in service, but it was not for psychiatric complaints; and he has reported that he was not hospitalized in service for anything. He has variously reported that his initial post-service psychiatric treatment was in 1975, 1976, 1978, 1979, and 1984; however, in the earlier accounts, he asserted that these treatments were for alcohol and drug abuse, and not for psychiatric complaints.

I find it amazing that this Veteran has cut a swath through the VA adjudication system for thirty five years and appropriated it for his personal gain. In all that time he has not made any headway and has misrepresented himself, his case and the facts to the VA as well as his VSO- the Disabled American Veterans. At what point do you ask for his bonafides? VA has an extremely complete case file on this gentleman but I suspect he is going to go back to the CAVC and continue his quest. At what point do they point out his pants are on fire?

The parties to the March 2010 Joint Motion stipulated that VA should verify that archived records at the Albany VA Medical Center were checked to determine whether there was any record of hospital treatment from 1974 to 1976. The RO requested a search of the archived records and received a negative response from the Albany VA Medical Center in September 2010. The Board finds that this negative response is consistent with the Veteran’s report in his September 2005 substantive appeal that, upon seeking treatment at the VA Hospital in Albany, he was told that he could not be treated by VA because he was still in the service, undermining the foundation for the joint motion utterly. Thus, notwithstanding the stipulation of the parties that such records were likely to exist, the Veteran himself indicated that he did not receive treatment at the VAMC in Albany in 1974, and it is therefore logical that there would be no treatment records.

As, in each case, VA has been informed that the requested records do not exist, no additional efforts and obtaining the records are necessary. Based on a total review of the record, the Board makes the following factual finding: there are no additional records that can be obtained by the RO in this case.

 Seems like someone should tattoo “incorrigible liar” on this guy’s forehead and deny him entry into a VARO for filing purposes. Fortunately for the rest of us, it won’t happen. The nonadversarial nature of the VA precludes it. This causes untold delays for the rest of us with legitimate claims. Were it to disenfranchise even one of us, we’d be screaming bloody murder- and rightfully so.

Thus we accept the good with the bad and soldier on. However, there is one powerful tool that would have prevented this. Any service officer, agent, lawyer or other official associated with the process of applying for, or aiding others, in the pursuit of benefits is admonished to examine a claim closely for fraud. If the claim doesn’t hold water or the claimant’s assertions are inherently incredible, the advocate is obligated to investigate whether he should proceed. Obviously someone dropped the ball on this one so many times they should have broken toes for life. Were our Johnny boy just a pro se filer, he could be excused for having an “active” imagination. It’s clear from the record that he purposefully sought out information about AO spraying at Eglin AFB in order to include it in his claim. That facet alone should have set off alarm bells. AWOL Army troops do not go TDY to Air Force bases-ever. Do I even need to point that out? 

Say. Did I mention I was exposed to AO in, er, 73?

Say. Did I mention I was
exposed to AO in, er, 73?

Posted in BvA Decisions | Tagged , , , , , , , , , , , | 5 Comments

CHILDREN OF THE FUKUSHIMA CORN

Posted on July 23, 2013 by asknod

Fukushima Corn 003

Just a quick update on Leigh’s Silver Queen corn. It’s over my head now. Tassels are out. I checked the radiation count and it’s down to a dull roar. My new helmet detector picks up in HD. That’s why my helmet is equipped with two dishes instead of one. 

Ever since the aliens put their bases in at the North and South Poles, the weather has been changing. Duh. Everyone thinks its from chemtrails but it isn’t. The voices in my helmet told me the truth. For just $39.95 a month you can find out the truth in my Newsletter. Hell, for $69.95, you can buy one of my helmets. They have fantastic bandwidth and are Bluetooth® ready. Dealer prep and destination fees extra; No warranties expressed or implied. $69.95 includes F.O.B. to lower 48 and Canada. Standard rates apply. No roaming fees. Verizon Wireless may require a one year helmet contract. All helmets come with standard one year warranty against Fukushima radiation and chemtrail residue.

download

But wait. What would you say if I said I could supersize that absolutely free? That right. Call now and for the next 30 minutes you can get two of these fabulous helmets for the price of one. Simply pay the extra postage and handling fees of $239. 50 and you’ll be walking the dog in style with you significant other completely protected against whatever the atmosphere’s throwing at you.

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HCV RISK FACTORS SUBTLY INCREASED

Posted on July 23, 2013 by asknod
HCV breeding ground

HCV breeding ground

As we read all BVA decisions regarding HCV studiously to see if we can find new techniques for success, we often spot new trends. VA is never blatant about hepatitis risk factors. To the contrary, they tend to discount risks everyone in the medical community feel are glaring. Witness the hard time they are having relinquishing the idea that HCV should somehow be listed in your 1960s STRs when in fact it was not medically identified until 1989. 

Which is why I was shocked when reading this decision. Here, in black and white, is a new risk factor being discussed as if it has been around for years. Vietnam-era Vets are twice as likely as their civilian counterparts to have HCV. Actual in-country Vets, with boots on the ground, are 66% more likely than just the “Vietnam-era” Vets. We know this and it’s been rather common knowledge for almost a decade but the VA has never acknowledged it legally. In fact, their Risk Factors Questionnaire (RFQ) is woefully incomplete and reads more like a risible “fat chance” list than any cutting-edge, medical investigative tool.

Continuing to insist that the earth is demonstrably flat in 2013 has more adherents compared to doctors who consider the RFQ to be a useful tool for ascertaining where you got the bug. One thing that provides us endless entertainment is the idea that alcohol or marijuana are risk factors for HCV. When called on it up at the Court of Appeals last year, the Judge asked the Secretary (on remand) to please explain in detail just how and why booze and pot cause HCV. I haven’t seen that one come back up the ladder yet. My pet theory is that if you became extremely trashed or hammered (while stoned) you might fall down in a puddle of infected blood. Perhaps sharing a bottle of Scotch or a joint transmits this not-so-hardy virus via the saliva. VA can be so vexing and vague sometimes when it comes to denials. Perhaps this is why we end up appealing more often than not.

Here’s the phrase that caught my eye:

In December 1990, the Veteran had an abnormal liver function study. In March 1991, he had a normal liver function study. The Veteran was diagnosed with chronic hepatitis in June 1991; it was noted that its etiology was not yet determined. In April 2001, he underwent a hepatitis C risk factor screen and denied undergoing a blood transfusion prior to 1992, using intravenous drugs, exposure to blood, hemodialysis, having tattoos and/or body piercings, using intranasal cocaine, abusing alcohol, having an unexplained liver disease, having an unexplained abnormal ALT (SPGT) value, and being a Vietnam era veteran. He did not answer in the affirmative to any risk factors for hepatitis C. In April 2005 and July 2010, he tested positive for hepatitis C. The first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253.

As an aside, look at this incisive, nuanced timeline and the dates.

December 1990- Hepatitis (NOS) problems detected

March 1991- No hepatitis problems. Immaculate recovery

June 1991- Chronic hepatitis now apparent with no known etiology and no attempt to make any effort to find out who,what, where, why and when.

TEN YEARS GO BY…

April 2001- Somebody at VA decides to investigate how he got HCV even though he has not been diagnosed with it. (Anybody see a problem as to why you would investigate why someone has a disease they aren’t even diagnosed with yet?)

FOUR MORE YEARS GO BY…

April 2005- Someone decides to ascertain if he actually has HCV

July 2010- Someone decides to confirm this is still the case

Even money says they tested him for it in 2001 and never told him he was infected. This would be the VA Dick Tracy scenario. If he files, we’ll test him “officially” and declare him ill.

So we now have a new, recognized risk to add to our list. With the avalanche of new information coming out at the CDC and other medical research outfits, it’s apparent that the VA’s RFQ is as outdated as yesterday’s newspaper. VA still clings desperately to the “plausible but highly improbable” theory and the antiquated belief that HCV can only survive  outside the body for a few hours. Which brings up the burning question of why dirty toilet seats in gas stations are not on the list.

One other fact that is mentioned here is grossly inaccurate.

The Veteran’s STRs are negative with regard to liver problems, including a diagnosis of or treatment for hepatitis. The earliest diagnosis of abnormal liver function is December 1990, three years after separation from active duty. Significantly, the Veteran denied having risk factors for hepatitis C in April 2001. Further, in June 2009, the RO requested the Veteran identify any risk factors that applied to him and he did not identify any in his July 2009 response. No risk factors were documented in his STRs. The Veteran has not made a specific assertion as to why he believes that his hepatitis C is related to service. The second element of a service connection claim, medical or lay evidence of an in-service incurrence or aggravation of a disease, is not met.

Our Vet here would have been hard-pressed to opine on his infection vector in 1990-or any time. Need we explain to the VA that they constantly remind us we were raised by wolves with absolutely no medical training?  As for the specific denial of risks in April of 2001, I might point out that VA had no printed RFQ form in existence at the time. Here again we see the “No HCV in 1968 STRs is proof he never had Hep” logic. Any discussion of risks in April of 2001 would have been oral and recorded in VISTA medrecs. It might be a good time to do some sleuthing and find out what is really in the VHA records.

Be careful if you find yourself in one of these denial predicaments. Analyze VA’s arguments and you will see the defective logic, the “cart-before-the-horse” proof  and an attempt to find the Veteran at fault for why he lost.  Remember also, that in 1991,  Caluza, Hickson and Shedden had not been decided. A Vet would have been clueless that he/she needed the three Hickson elements to prevail.

My relatives celebrating Dad's graduation from Medical school.

My relatives celebrating Dad’s graduation from Medical school.

Posted in BvA HCV decisions, HCV Risks (documented) | Tagged , , , , , , , , , , , , , , , , , | 3 Comments

BVA– THROUGH AND THROUGH GSW ≠ HCV

Posted on July 21, 2013 by asknod

FROM THE STAR SPANGLED BANNER

scVARO IN BALTIMORE MARYLAND

Through and through GSW to head? Check. (decision here)

Here, service treatment records show that the Veteran was treated by the 95th Evacuation Hospital in Vietnam in July 1972 for a gunshot wound sustained to his head in a confrontation in the local village. Records reflect left occipital entrance and exit wounds, with no palpable cranial defect. There were neither bony nor metallic fragments, nor bone chip nor fracture. The wound was debrided, irrigated copiously, and closed primarily with nylon. Records reflect units of procaine administered, as well as V Cillin K. His stitches were removed later that same month. The small wound had healed nicely; the larger wound was slightly infected, and iodine was applied and the wound was left open to air.

Transfusion? Check.

While there is no documentation of any blood transfusion in active service, the Veteran has credibly testified that he spoke with his sister at the time of the incident; and relayed having received a few pints of blood in the treatment of his combat wound. The Board finds that the Veteran is competent to testify on factual matters of which he has first-hand knowledge and which are corroborated by other evidence in the claims file. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board further finds no reason to doubt the credibility of the statement, which has been consistent throughout the appeal.

Nexus? Check and check.

In September 2008, the VA physician indicated that, after a careful review of the Veteran’s medical records, no traditional risk factors were identified. The physician noted that the Veteran described a history of receiving multiple injections while serving in Vietnam; and opined that this was the most likely cause of the Veteran’s chronic hepatitis C. In support of the opinion, the physician reasoned that there have been cases described as occurring in this manner.

and

In November 2010, the Medical Director of the Division of Infectious Diseases at the University of Maryland School of Medicine, who was the Veteran’s former VA treating physician, noted that the Veteran had denied ever using intravenous drugs, and that he had no other high-risk behaviors that would indicate the source of his infection. The Veteran reported the gunshot wound to the head, and that he was uncertain whether or not he received a blood transfusion as part of the management of his injuries. The Veteran also received vaccinations via the multiple use nozzle injector during his time in active service. The Medical Director opined that, given the lack of other risk factors and the progression of the Veteran’s disease to decompensated cirrhosis, and the fact that he underwent medical treatment for a gunshot wound and received vaccinations via a multiple use device in active service, it is more likely than not that the Veteran acquired hepatitis C during his active service. The Medical Director also noted that the Veteran’s decompensated cirrhosis suggested a remote infection.

Okay, what’s wrong with this picture? Why is he fighting this at the BVA? He has all the elements needed to win at the RO and yet he’s getting the bum’s rush. Oh. VA’s nexus-probably by a bedpan changer, says uh-uh.

Moreover, the Veteran underwent a VA consultation for chronic hepatitis C in May 2005. At that time he adamantly denied using intravenous drugs. He also reported one occasion of a sexually transmitted disease (gonorrhea) at age 22; and reported having two sex partners in the past ten years, and that protection was used. The Veteran had received a tattoo in 1986, and he claimed that the needle and inks were sterile. He also reportedly shared razors in his household. His past medical history included polycythemia, and the Veteran denied having units of blood removed. He also reported a gunshot wound to his head in Vietnam; and indicated that there was blood present at the time, and that he was transferred to a hospital. The diagnosis in May 2005 was chronic hepatitis C; and a VA nurse practitioner indicated that the origin of infection was vague, and opined that it may have been handling of the wound (sic) in Vietnam.

Well, that all seems mighty vague. If you have the IQ of a goat or work for the VA as a “VA examiner”, that’s pretty much the conclusion you’ll come to. Fortunately for Johnny Vet, he had a VLJ with a modicum of intelligence who didn’t need chicken entrails or tea leaves to figure it out. Too bad it only took 7 years. The poor guy’s liverbox is running on empty and his VARO in Baltimore is minutely parsing the meaning of vague. Notice the 2005 date. This is important. He filed in 2006 and the VA used this as the reason to deny. however, he refiled in 2008 and they are still using outdated info to continue a prior claim denial. That’s a Bozo No-No. Here’s how that one played out:

VA treatment records show that the Veteran screened positive for hepatitis C in April 2005. In February 2006, the Veteran stated that he had never done drugs; and that he may have had a blood transfusion when he was shot in Vietnam. He also indicated that he may have contracted hepatitis C through shots that the Army gave, or through needles used in the hospital.

Based on this evidence, the RO concluded that there was no current diagnosis of hepatitis C; and no evidence that this could have occurred in active service.

Where do they find these “VA examiners”? Is there a special medical school where VA trains them?

This explains why our Silver Queen Leigh is having so much trouble with her claim there. They’ve been fighting for two years just to get the C-file to find out if she, too, is being vague.

Her attorney just filed a Writ Of Mandamus to extricate the C-file from the RO. About time.

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BVA–BITCHSLAP BACKFIRES

Posted on July 21, 2013 by asknod

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It’s one thing to denigrate a Vet and say you don’t trust his word. It’s another thing entirely to say you don’t give credence to a combat Vet as evidenced by his CIB and the George Washington coupon. Or worse. Simply don’t give any opinion at all and deny him until he dies. In this case, the evidence is pretty dispositive for at least several risk factors- the very least being the punji stick. 

38 USC 1154(b) accords us the presumption that, having been in combat, we can actually be trusted to tell the truth. How that works is beyond me. Seems if you joined up in the first place, your commitment to your country was pretty much assumed. Nevertheless, if you were in combat, your word is golden. Unless, of course, you were one of those drug addicts from the Vietnam debacle. Anything they say is suspect from the get go.

Johnny Vet’s wife has picked up the flag and continues to charge across the field, oblivious to the carnage around her. I commend her for her fortitude. This decision exemplifies the propensity of the 58 ROs to deny any HCV claims unless your evidence is airtight. 5 alibis, three nexus opinions and several buddy letters are the bare minimum when your spouse finds herself fighting the BVA. Having no input on the Georgia Dept. Of Vet affairs win/loss record, I hesitate to say whether she is adequately represented.

Face it. Erectile dysfunction and PTSD didn’t kill her husband. Winning the HCV claim is going to be the lynchpin in her DIC claim because that is what this is about ultimately. Shoot. She almost deserves a Bronze Star for putting up with this crap.

 

Posted in BvA HCV decisions, DIC | Tagged , , , , , , , , , , , , , , , | Leave a comment

BVA–MISSED IT BY THAT MUCH

Posted on July 21, 2013 by asknod
download

Missed it by 96 days, sir.
Nobody told me.

VA has the ugly habit of taking back with the left hand that which they shook hands on with the right. Our Johnny Vet out of Houston here, had a little problem. He got the VA notice of “We’re taking it all back, hoss” about two years after he got it all. Somehow this doesn’t surprise us here. The law is dispositive on this. Once the magic ten years is past, your rating is inviolate. Granted, VA began their retraction procedures in August 2010-within the window to legally divest Johnboy. However, they dawdled too long and didn’t get around to it until June 21, 2011. Johnny was golden at 0001 Hours on March 15, 2011-96 days previously.

This further  illustrates why they teach basic mathematics now at ASPIRE training in Baltimore. A rater’s got to know his limitations. Seems with all the fancy computer doodads now, the old M-21 alarm would go off and scream “Danger! Danger! Protected rating date approaching!”

Under VA law and regulations, service connection for any disability that has been in effect for 10 or more years will not be severed except upon a showing that the original grant was based on fraud or that military records show a lack of the required service or character of discharge (38 U.S.C.A. § 1159; 38 C.F.R. § 3.957). The 10 year period is computed from the effective date of the finding of service connection to the effective date severing service connection. The Court of Appeals for Veterans’ Claims (Court) held that this same protection from severance applies to awards of Section 1151 compensation. Hornick v. Shinseki, 24 Vet. App. 50, 56 (2010) (holding that the Section 1159 protection from severance of awards of “service connection” in effect for 10 or more years also extends to awards of compensation under Section 1151 that have been in effect for 10 or more years).

ROBBIE

Posted in 1151 claims, BvA HCV decisions, Tips and Tricks | Tagged , , , , , , , , , , , , | 1 Comment