BVA–THE CURIOUS CASE OF COSTELLO HAYSLETT

Virginia Girard Brady  VA Dragonslayer

Virginia Girard-Brady
VA Dragonslayer

Remember the quintessential Sound Of Music and Julie Andrews et al? Specifically, think of the musical scale song (Doe- a deer, a female deer etc.). Compare that to the trials and tribulations we encounter going up and down the ladder of our claims with the VA. We proceed up from the RO through to the CAVC and sometimes to the Federal Circuit. Indeed, some travel to the august halls of the Supreme Court. Upon succeeding,  we proceed back down the scale from whence we started to begin all over again. Some of us have traveled this path several times for the same ailments due to the intractable nature and obstinate refusal of the VA to grant what is unarguably staring them in the face.

After twenty four years of this, I have now succeeded in singing the first stanza and am descending back down from the Court. In relatively short order, I am assured, I will be greeted by the BVA with a new, revised decision that will incorporate what a blind man with no arms could ascertain. From there, the claim will matriculate backwards yet again to the Seattle “Veterans Service Center” (what’s in a name?) for a complete readjudication based on the mea culpas expressed by the Office of General Counsel and their henchmen at the BVA.

Which brings us to Mr. Costello NMI Hayslett.  As an aside, for all of you in St. Petersburg, NMI stands for no middle initial. There has been a lot of confusion about it possibly meaning  no more information. Mr. Hayslett began his sojourn in the VA desert in 1972. Having served America from 1970-72 and coming down with the hep, he filed and was given the ice creme cone sans the ice creme (0%). Veterans are all too familiar with this concept. As with most hep C Vets, the cryptogenic disease eventually made its presence known. In Costy’s case, that was twenty six years later (1996) after six months of “treatment”. VA graciously gave him a whopping 10% which back then was a mind-boggling $89.00 a month or so. In 2003, being ungrateful (and in failing health), Mr. Hayslett returned to the benefits trough and asked for a larger bowl of porridge. VA immediately saw an opportunity to divest themselves of him and explained that what Costello was attempting  was actually a claim for Hepatitis C, not the run-of-the-mill increase for hepatitis he had been granted in 1972. This would require a completely new adjudication. Miraculously, Mr. C passed the audition.

Fortunately for him, they relented and granted him the HCV claim with an increase from 10% to 20%. Included in the Statement of the Case (SOC) was the explanation that he was entitled to no more because his symptoms, which he himself described, were insufficient to warrant 40%.

Let us digress for a moment. In any civilian setting, when you arrive for a doctor’s appointment, they usually give you a questionnaire to fill out while you wait. You are asked to endorse your symptoms and in some cases, asked to rate them on a scale of one to five (or ten). Some list the physical complaints in detail. At the VA, they do no such thing. When you present, they induce you to explain it in your own words. They do not suggest or ask for anything else. Thus if you are having severe right upper quadrant pain (RUQP) in the vicinity of the edge of the rib cage and say “it hurts here”, the nurse/doctor/ medical technician records it as “patient complains of stomach ache”. No prompting is permitted apparently. My civilian doctors always run down a list of “Any gastro/digestive issues? nausea/emesis? How about that muscle ache and the fibromyalgia?” No sir. Not at the VA. They sit there like a bump on a log and wait for you, the eminent Dr. Kildare, to opine on your ills with no follow-on queries  This permits them the luxury at ratings time of saying  “Mr. C endorsed a stomach ache but made no mention of near-constant debilitating symptoms which is the hallmark of a 100% rating for Hepatitis C rated under Diagnostic Code 7354.”

Mr. Hayslett set sail on his appeals odyssey in June 2005. Looking at the above, you can see how they were able, in good conscience, to state the following.

On May 22, 2007, the Board issued the decision here on appeal. R. at 1-7. The Board found that, although the appellant missed three to four days of work per month, he did not have any “incapacitating episodes with symptoms and signs severe enough to require bed rest and treatment by a physician” and therefore did not warrant a disability rating of more than 20%.

Recall we have written in past missives that the DC 7354 code does not require any medical entry from a doctor stating succinctly that Mr. C has been prescribed a Rx for bed rest unlike the similarly worded one for back injuries that does. Since VA doctors will not ask you about your condition, you are forced to recite it to them chapter and verse. Some Veterans have discovered that in spite of this, their maladies are still not recorded-accurately or otherwise.

Following the submission of Mr. Hayslett’s  Form 9 for his substantive appeal, this proceeded to cold storage as all claims do. In 2009, it surfaced like a long-submerged bobber. At about this time he also employed the illustrious and well-know VA dragonslayer Virginia Girard-Brady, Esq. as his sword bearer. This is why he prevailed. The CAVC found that the Board had committed a number of errors as is their wont. The good judge promptly remanded it to rectify the deficiencies. The BVA dutifully remanded it back down to the Regional Office now known as our Veterans Service Center (VSC) in Nashville, Tennessee. There it grew dust in the in-basket. The  Nashville raters  just couldn’t bring themselves to do what the Court ordered. They refused to give him a 40% or 60% which were indubitably deserved. This is the insurance company mentality talking here. VA has taken a page from GEICO and Allstate and uses their training manuals to teach from. Large parts relating to customer relations and good-faith bargaining were removed as being irrelevant. The theory being that if you’re the only insurance company in town, you do it your way.  This isn’t Burger King. You don’t get it “your way”. And our patient, long-suffering Veterans Affairs Secretary is mystified about why we have such a protracted backlog of claims?

Mr. C strapped on his boogie shoes once again and headed back to 810 Vermin Ave. NW with Ms. Girard-Brady in tow. And this March 13th, 2013 BVA decision is the final report card on the mission success. Seventeen years have transpired since Mr. Hayslett began this journey of tears. Nine years have been squandered denying a legitimate claim. What went wrong?

The BVA myopically took his statements at face value and did not do the math. That job fell to the far thinkers at the CAVC:

The appellant contends that he is entitled to a higher disability rating for his service-connected hepatitis C disability. He also contends that he is unable to work due to his service-connected hepatitis C. The appellant testified at his November 2005 Board hearing that his weight was stable, that he took time off from work due to fatigue and nausea from the hepatitis C disability on average three to four days per month. He stated that his hepatitis C symptoms included right upper quadrant pain, fatigue and malaise which limited his physical activities. The appellant testified that there had been no significant change in his condition since the VA medical examination of 2004. He also reported that he was employed.

The Court, in its July 2009 Memorandum Decision, noted that the appellant’s report of missing three to four days of work per month due to the hepatitis C disability translated to five to seven weeks per year. The average would therefore be six weeks per year. Review of the evidence of record reveals that the appellant has been under medical care for monitoring of his hepatitis C disability on a regular basis throughout the course of the appeal. Therefore, the Board finds that the appellant’s hepatitis C disability more closely approximates the findings required for a 60 percent evaluation (incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, during the past twelve-month period, but not occurring constantly) and a 60 percent evaluation is assigned from the date of the claim for increase.   Hayslett v. Shinseki (2009) CAVC #07-2454

For lack of a shoe the battle was lost. Here, for lack of the ability to do simple mathematics, the claim festered like an ingrown toenail until  Judge Lance extrapolated the correct number of sick days based on nothing more than the Record Before the Agency (RBA). Obviously, from the constrained, sotto voce tone of the the BVA Veterans Law Judge Shane Durkin, this all falls on the shoulders of  Mr. Hayslett. Had he not been verbally challenged, this claim could have had a happier ending much sooner. But for his ugly habit of under-reporting his symptoms, he could have resolved this at his Veterans Service Center at the drive-thru window. As so often happens, Veterans are tight-lipped and refuse to share their medical information with VA doctors. Oddly, in a civilian setting, this phenomenon rarely rears its ugly head. Go figure.

The teaching lesson for Veterans is simple. The moment you discover your front teeth missing following a VA claims denial,  we at asknod.org strongly suggest you do as  thousands of other goldbricking, Veteran reprobates do-lawyer up. Get a mouthpiece. Don’t walk-run. Abandon the leaglebeaglezoom.com VSO you are using and get someone with a juris doctor sheepskin. The sooner you nip this intransigence in the bud, the sooner you get meaningful justice.

VSOs are fond of denigrating attorneys as EAJA (Equal Access to Justice Act) bloodsuckers who will milk your claims out to incredible lengths to get fat remuneration. Hogwash. Who in their right mind in the world of litigation would seek out the lowest remuneration, percentage-wise (20%), of any ambulance-chasing job? Moreover, why would they chose to do it in the hardest venue with the lowest rate of success? Someone is pulling your leg when they try to dissuade you from doing something that will benefit you. When they use the excuse that the attorney is costly versus their “free” representation, it’s time to get out the magnifying glass and venture inside the horse’s mouth. Now, with the recent revelations about the VSOs and their exorbitant CEO pay, their exhortations to use VSOs becomes excruciatingly clear.

To view Mr. Hayslett’s CAVC decision, click here and enter 07-2454 then hit search. Click in the upper left on the blue download to view as a normal document.

Posted in BvA Decisions, CAvC HCV Ruling | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

Update: Big HCV trouble for dental patients in Tulsa

Becoming infected with blood-borne pathogens like HIV from medical procedures is extremely rare says the CDC:

“Although HIV transmission is possible in health care settings, it is extremely rare. Careful practice of infection control, including universal precautions (i.e., using protective practices and personal protective equipment to prevent HIV and other blood-borne infections) protects patients as well as health care providers from possible HIV transmission in medical and dental offices and hospitals.”

A cohort of dental patients in Tulsa are not living in the CDC’s Never-Never Land.  Current numbers from Tulsa’s dental outbreak are:

HCV: 70

HBV:  5

HIV: 3

Testing costs so far run about $700,00 ($195 per person) for about 3,800 of the 7,000 patients have been tested far.  Cheap when you consider that these folks are now among those who now know their carrier status (good or bad news) and can act appropriately.

The state calls Dr. Harrington a public menace charges “gross negligence” which is appropriate.  Given the discovery of all those multi-dose vials and non-sterile tools of Dr. Harrington’s trade, this outcome will not surprise ASKNOD  readers

The VA had a dental infection problem in Dayton Ohio with at least 9 HCV cases and 2 HCV with fairly limited testing.  NOD wrote about it here: https://asknod.wordpress.com/2011/11/15/vamc-dayton-dental-clinic/

http://www.va.gov/oig/54/reports/VAOIG-10-03330-148.pdf 

The CDC “extremely rare” scenario is pure fantasy but the Tulsa outbreak case shows how extremely likely it is to acquire HCV in dirty health-care settings!

Dentist talking to patient Dentists

It takes scrupulous and disciplined health care providers to not cut corners in creating sterile environments between patients–as these guidelines show:

 http://www.ada.org/sections/professionalResources/pdfs/guidelines_cdc_infection.pdf

Don’t we deserve it?

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20 DAYS TO HUGFEST IN INDIANA

Does anyone know this gal? She was spotted in Tennessee.

HUGFEST OR BUST

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WEIRD HUMOR

thow human away 2

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BVA–HCV FROM TATTOOS? NEVER HEARD OF IT

VA Examiner (RN)

VA Examiner (RN)

I have heard innumerable Vets who were told by their VSOs that VA will take care of the nexus. Most don’t even say that much if you don’t ask. Nowhere is it written that you would be advised to do it yourself (obtain the nexus). VA certainly doesn’t discuss this in DickandJanespeak.

This causes immense confusion and denied claims for the most part. The following is a classic example of relying on a VA examiner to do the right thing. Johnny Vet from the land of Lincoln, Nebraska runs into this wall when he applies for hep. Notwithstanding he had documented exposure to it in service, VA is quick to denigrate the evidence. Analyze this for a moment. How many decisions have you read here on this very site where the VA says “gee, bubba, there’s nothing in the records ergo it never happened.” ?This time around the Vet has all that and more but VA has a new attack: ” Gee bubba, tattoos aren’t proven to be a cause of hep. C. And besides, just because he was exposed to a lot of blood risks and hep in service doesn’t prove much.” So at what point do the scales tip towards the fabled benefit of the doubt-if ever?

As to the hepatitis C claim, the Board notes that VA has recognized the following activities as known risk factors for hepatitis C: intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified “key points” that included the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture.

Wisely, or fortunately in this case, the VLJ is conversant with the risk factors questionnaire and Johnbo Vet wins on the tattoo if nothing else. This illustrates the blatant disregard or outright ignorance of VA examiners. Whether they’re just lazy or ignorant is immaterial. The catastrophic effects of  forcing a sick Veteran into a prolonged three year appeal is almost criminal. The financial ramifications alone are often enough to provoke homelessness in some cases.

…the December 2009 VA examiner opined that it is highly unlikely that the Veteran’s hepatitis C was caused by one of the risk factors he reports from service. The examiner thereafter opined that the Veteran’s exact risk factor is undeterminable and no alleged risk factor is more likely than another to be the cause of his hepatitis C. In support of his opinion, the examiner opined as to the Veteran’s exposure to waste water and sewer flooding, that he could not find any documentation that states that this exposure could cause hepatitis C. As to the tattoos the Veteran received while on active duty, the examiner opined that tattooing has not been “extensively proven” to cause hepatitis C. As to the Veteran’s other claims regarding in-service blood exposure holding dressings on injured sailors, the examiner opined that under current guidelines this is not a major cause of hepatitis C.

Kind of makes you wonder what planet these fellows have been living on for the last several decades. Probably the same one as The Old Medic over at Yuku’s VBN.

The Board does not find the December 2009 VA examiner’s opinion probative because the examiner disregarding VBA letter 211B and the VA FL issued in June 2004 which specifically found that tattoos, like the three the Veteran received while on active duty, are known risk factors for hepatitis C. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Lastly, the Board does not find the December 2009 VA examiner’s opinion credible because the examiner did not appear to apply the “at least as likely as not” standard but instead applied a higher standard such as “extensively proven” and “not a major cause.” Id.

Remember that last sentence above. VA is fond of raising the bar so high you cannot overcome it. We are held to the standard of “at least as likely as not” to win. When denied, be sure to peruse the language they use and the rationale. As here, it is often illegal as sin and they do it every day. The decision is also correct if you do not appeal. That happens far too frequently due to the ineptness of VSOs who wouldn’t recognize a legal violation if it was typed out and taped to a naked lady. The VSO would be far more likely to appeal based on a new review and benefit of the doubt being overlooked.

Never depend on others to build your case. Do not do as I did and expect the facts to be uncovered and exonerate you. It just doesn’t happen. Here, an injustice was averted by a watchful and knowledgeable  VLJ. The results could just as easily have gone the other way. This Vet had a nexus and VA still kicked him in the teeth in spite of it. All the more reason to get the two nexus/IMOs I advocate you obtain.

One last point would be that this Vet, now ably represented by a lawyer, did not have the wherewithal to challenge the medical qualifications of the VA examiner who erroneously screwed him over. VA often talks about quality control and getting multiple signatures before pushing print. I don’t see it.

 

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MARK’S LATEST UPLAND CALIFORNIA HUMOR.

From the redneck capitol of Northern California (Clear Lake) member Mark sends us the latest he spotted while out and about. The “NEED BEER” is an old one. We had to do that up in Alaska moose-hunting one time.  Unfortunately the pilot had never heard of Tanqueray. It was ugly. We almost died from no alcohol poisoning.

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What am I missing with the birth announcement? Doesn’t everyone do that?

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HOUSTON, WE HAVE LAUNCH

540 launches to be exact. We’re talking corn, baby. Silver Queen, Jubilee, Kandy Korn, Sweet Delicious, White Wonder and more.silverqueen starts 001silverqueen starts 002

And here’s what happens when you start your yellow squash in the greenhouse in February. You can fake them out into thinking it’s summer as long as it doesn’t get cold.

silverqueen starts 003

 

Like Mikey says, Squash is about as sharp as a marble. It doesn’t take much to convince them.

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VA ON FACEPAGE

VA

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BVA– IT WAS HAV! I KNOW BETTER

images (1)

Did you ever wonder how they pick out who will be a VA examiner? Do you think they have some qualifications for the job? Here’s a lovely case that was similar to mine. This gentleman, like me, had Hep. in service. A 1974 test for the Australian Antigen revealed he had HAV (hepatitis A). Technically this would mean the test was negative as a positive result would indicate HBV or hepatitis B.  It turns out this HAA test was often interpreted wrongly or the results were contaminated yielding inaccurate results.

Fast forward to the reality of 2004.  Goldrush Bill is SC for it since 1974 (nonspecific hep.) and asks for an increased rating. Bingo. Now it’s a witch hunt to ride this Vet out on a rail and throw out the bogus 1974 rating. All the stops are pulled. The drug card comes out. All of a sudden an increase becomes a whole new adjudication into “What is it? What was it? and Do we have to pay him?”

The VA examiner is trotted out and he  opines immediately through the top of his hat that it was HAV in service and Bill’s new zip code is on Penny Lane. Denied. After an extensive battle and appeal to DC, the truth finally emerges. The chucklehead at the VARO was full of it. Another doctor had to explain that if the PCR test for HAV comes back negative, then you have never had HAV.  Ever. Conversely, regardless of what they thought back in the stone age of medicine (1974), he now is documented as having HBV antibodies (showing an infection at some time in the past) and HCV. Usually, if you get exposed to B, you can be fairly certain you picked up C as a hitchhiker and didn’t know it for 20 or 30 years. Which is what happened here.

Often we talk about objectivity and prejudiced opinions. Nowhere is this more prevalent than at the VA. It seems as if a qualification to be a medical Ouija board practitioner there is predicated on denying any and all claims that come through the door. The list of “never happened” is eerily similar from one case to the next. VA has a hard time getting over the idea that PCR testing is far more legitimate and not prone to the errors we see emanate from the VA examiners. In fact, it is error-free assuming the results are mated to the right individual sample. Thank God VA examiners are not tasked with filing the results in the right C-file or innocent Vets would be tarred and feathered unmercifully. Oh, wait. They already are.

Anyway, here’s one that got it right nine years later. If a VA rater’s (or Examiner’s) job hinged on a success rate  of properly decided claims with few remands from appeals, there would be no raters to perform the task. This tells me two things. Either the system is corrupt or they hire incredibly mentally challenged medical personnel who wouldn’t qualify for a job at a Veterinary clinic.

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BVA–DID ANYONE GET THAT TANK’S LICENSE PLATE NUMBER?

imagesA golden opportunity squandered by an overactive imagination. Well, that and pot and booze. I call it the Tim Poe syndrome. Here, the Vet failed to get all the appropriate information on the BFF Vet who died in his arms in the medical dispensary. As for the tank driver running amok, that one is a mystery but nevertheless consumed valuable CURR hours that could have been expended verifying a legitimate PTSD stressor event for another Vet. 

I ask all my Vets I help to do the mirror test. Look at yourself in the mirror and convince yourself that this is genuine and legitimate. Is it as least as likely as not that the jetguns are the culprit? Could it be sharing needles with your buddies doing junk was the cause? If you pass the test proceed to GO! and file.

This Vet may want to file for something legitimate like flat feet or hemorrhoids later on and his credibility is now in tatters. D-U-M: dum. He’s too mentally challenged to call it dumb with a b. If you know a Vet like this or even one who thinks he was once a Vet (but isn’t) have him seek mental health counseling and take a load off the VA. Legitimate Vets with documented diseases and injuries will thank you from the bottom of their hearts. No wonder we have a backlog.

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