BVA–THE PERFECT STORM

Posted on October 31, 2012 by asknod

Speaking of storms, here’s a daisy. This Vet assembled a compendium of perfect nexus letters from several doctors. Their resumes were particularly impressive as was their detail to the facts regarding the Vet’s etiology. Every step in the path to service connection was artfully accomplished in such a way as to protect his credibility. The timing of the claim after discovery of the disease was well-ordered. That this wasn’t granted at the St. Pete RO shows the unwillingness of the hierarchy of the RO to go out on a limb and say “jetgun”. In spite of extraordinary effort, he still had to go to 810 Vermin Ave. NW. for his reward.

VL Judge Dilorenzo does himself proud with this one rather that some inane denial that will end up back on his desk later.

Posted in BvA HCV decisions, Jetgun BvA Decisions | Tagged , , , , , , , , , , , , , , , | 2 Comments

BVA–LSD IN WATER COOLER

Posted on October 31, 2012 by asknod

Read this decision and then tell me someone isn’t half a bubble off. Here’s the punchline:

 

The specialist opined that it was likely that the Veteran’s hepatitis C was related to the drug use but opined that it was less likely than not related to service because the long-term drug use involved only 2 years of in-service drug use as opposed to 23 years of post-service drug use. Here, the Veteran’s competent statements, which the Board finds to be credible, indicate that during service and for a long time thereafter he used drugs to self-medicate for the low back pain associated with his service-connected low back disability. In light of that factual background and the VHA specialist’s opinion linking the Veteran’s 25-year use of drugs to the onset of his hepatitis C, the Board finds that the evidence supports the Veteran’s claim. As such, given the opinion offered by the VHA specialist, the Board finds that the Veteran’s hepatitis C is proximately due to his service-connected low back disability.

I wish I could do that “Awwwerrrh? Tim Allen does so well on Home Improvement. This decision certainly deserves one.

 

Posted in BvA HCV decisions | Tagged , , , , , , , , , , , , , , , | 5 Comments

VA HOPELESSLY MIRED IN POOR LEADERSHIP

Posted on October 30, 2012 by asknod

Member Bob sends us this take from the Daily Caller. I attach more significance to articles by former employees free to speak rather than current ones paid to speak. The difference can be the truth. Darin Selnick, being the VASEC’s flunky, was in a privileged position to observe the situation and report it candidly. It appears he has done so. There is no joy in Mudville with this revelation.

Chief Apologist

Posted in All about Veterans, VA BACKLOG | Tagged , , , , , | 1 Comment

FOOTLOCKER–1969

Posted on October 30, 2012 by asknod

When dreaming of where I wanted to serve in November of 1969, I put in for

A) England

B) Spain

C) Italy

I got Udorn to begin with and then Long Tieng. Oh well. I ran across this when I found the 602nd Fighter Squadron (Commando) lighter. That’s me with the Red Rope.

Telephone Maintenance and Installation School
May 1970 graduating class Sheppard AFB Texas

Posted in From the footlocker | Tagged , , , , , | Leave a comment

FOOTLOCKER–BANGKOK BREWERY

Posted on October 30, 2012 by asknod

Remember Singha? More appropriately, remember the odd effect of drinking one liter and not being able to navigate vertically on Friday night and the following week drinking 5 and not even getting a good buzz? The portly German Brewmasters of Bangkok did not always  watch over their minions in charge of day-to-day operations and we were sometimes pleasantly surprised to be drinking 32 proof beer.  Conversely, there were times where we must have been drinking hops-flavored water for all the effect it had on us.

My son had a graduation party from U Dub (University of Washington) in 2010 and someone brought a six pack of these. I haven’t seen any in forty years so I purloined one for photography purposes. By then beer pong was in full swing and I doubt they missed it.

What I also never saw in my quarterly travels to the Swiss Embassy in Bangkok was this particular bar. I hope it doesn’t offend  readers. Brownwater Jim is the culprit on this as well. Feel free to comment below on his poor taste.

Jim didn’t say whether he was visiting in Bangkok recently and I didn’t ask. This is truly “Veterans” humor.

Posted in From the footlocker | Tagged , , , | 1 Comment

JOHN BRITTAN–TAPS IN TACOMA

Posted on October 30, 2012 by asknod

This is very poignant. It was sent to me by member Jim of the brownwater side of the sheets. I hope you enjoy it. I will be making the pilgrimage into T-town to listen in the future. It should be well worth the trip. I do hope I got the spelling of his name right. Oddly, he never served but does not let that get in the way of his avocation.

Posted in Food for the soul | Tagged , , , , | Leave a comment

BVA–LIVER TXPLANT+HCV=PYRAMIDING

Posted on October 30, 2012 by asknod

Imagine having a transplant and still being infected with HCV. Hardly a strange scenario. The St. Pete RO must be hardcore. All they want to give Mr. TampaVet is 30% on a post transplant with 10% thrown in for his transplant scar. Ouch! What of the HCV side effects? The fatigue and all the other symptoms we invariably associate with HCV apparently are comprehended by the 30% in Diagnostic Code 7351-or are they?

Take a peek at this little-used  ploy to give you 10¢ on the dollar.

7351 Liver transplant:
For an indefinite period from the date of hospital admission for transplant surgery 100
Minimum 30
Note: A rating of 100 percent shall be assigned as of the date of hospital admission for transplant surgery and shall continue. One year following discharge, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter.

Now they’re stuck on stupid and think this is all that is permitted. The assumption that there is pyramiding under 38 CFR §4.14 is just that-an assumption on their part. There is nothing in DC 7351 discussing the disabilities one sees discussed in DC 7354. Here’s Veterans Law Judge (VLJ) J.A. Markey’s take on it.

The Veteran and his service representative also have contended that, because the Veteran’s hepatitis C associated with his status-post liver transplant has worsened, he is entitled to an initial rating greater than 30 percent under DC 7354. See 38 C.F.R. § 4.114, DC 7354 (2011). They alternatively have contended that the Veteran is entitled to a separate compensable rating for hepatitis C associated with his service-connected status-post liver transplant. The Veteran is not entitled to an initial rating greater than 30 percent for his service-connected status-post liver transplant with hepatitis C on the basis of worsening disability due to the residuals of his liver transplant surgery (including hepatitis C) because that would constitute pyramiding under the Rating Schedule. See 38 C.F.R. § 4.14 (2011).

What, exactly is contained in § 4.14 that provokes this interpretation?

§ 4.14

Avoidance of pyramiding.

The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Dyspnea, tachycardia, nervousness, fatigability, etc., may result from many causes; some may be service connected, others, not. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided.

Here are the two ratings for HCV which Tampaboy feels may be appropriate.

Daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, 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 four weeks, but less than six weeks, during the past 12-month period 40
Daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, 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 two weeks, but less than four weeks, during the past 12-month period 20

Nothing in DC 7351 discusses what is incorporated in DC 7354. Nothing. This is priceless as it will allow vA to dawdle for several more years and keep the Vet in poverty. Admittedly, part of the problem is the VSO (VFW) who is attacking this from the wrong angle. Johnny Tampa should have filed for both diagnostic codes rather than just the transplant code. His HCV is blooming like perennial pansies that can’t be quelled. Any thought of tossing in an Interferon napalm strike is out of the question as it would destroy the new liver in a heartbeat. vA raters wouldn’t know that because it is a medical problem way over their heads. St. Peter’s puzzle palace suffers the same problem as all ROs. They consult their M21 bible and run aground on the pyramid. No way to get around it can be ascertained because no one does their homework and actually looks up the ratings to discern the actual phraseology of the diagnostic code. What makes matters worse is this unfounded logic.

The Board also notes that the 30 percent rating currently assigned for the Veteran’s service-connected status-post liver transplant with hepatitis C contemplates moderate liver disability. The competent evidence does not show that the Veteran’s service-connected status-post liver transplant is more than moderately disabling such that he is entitled to an initial rating greater than 30 percent under DC 7354 for hepatitis C associated with his service-connected status-post liver transplant.

Newsflash. Does anyone see any discussion of DC 7354 in DC 7351? In the same vein, does anyone see a 30% rating listed under DC 7354? Ruh-oh, Rorge. Here’s another problem area. Once a Vet has established service connection, he/she no longer needs a medical nexus to rationalize a higher rating. This is accomplished via medical examinations or C&P determinations. A nexus is to tie two events together-e.g. a GSW and subsequent HCV via a transfusion. Requiring a nexus for a higher rating is not required. That a VLJ would sign his name to this is criminal-or evidence of poor legal training.

The BVA usually spots this and clarifies the RO’s thinking on these mishaps but here they simply parrot the RO’s take on it and buttress it with CAVC precedent. Johnbo has until December 3rd to untie or cut this Gordian knot. A quick trip up to 625 Wagonburner Ave. is the sure ticket. I’m sure the VFW SO is still back at the RO scratching his head and telling Johnny it’s time to roll up and go home after a good fight.

Service Officers are not trained to spot inequities. They are taught the intricacies of mail delivery. They are taught how to parse a C-file and determine if you have anything in your contemporary service medical records that will support a filing for your current illness. This is why they have such a hard time with our complicated HCV claims. Rarely is there ever a smoking gun to point to for HCV. Much conjecture about risks is the only avenue. Giving them their due, they are unprepared for the technical prowess needed to win these claims. This is why you see that timeworn, hackneyed phrase ” There is no diagnosis of HCV in the Veteran’s medical records showing a diagnosis of HCV in 1967-1971.” No rebuttal based on the fact that it wasn’t discovered, let alone diagnosable until 1989 is ever presented. Rarely, this occurs when an astute judge at the Court or the occasional VLJ remarks on it and kicks it back for a remand. Otherwise, it goes on to be an unappealed denial.

The introduction of the transplant diagnostic code was a token offering to tide us over the rough spot of hospitalization as it rightfully should. The 30% follow-on is poorly conceived as it comprehends absolutely nothing more than the residuals of a transplant. Likewise, tossing in 10% for scarring is a poor panacea.  Why is it they gave him the scarring rating without a prolonged discussion on whether that was pyramiding, too? With their tortured logic, it could be extrapolated that scarring after surgery was contemplated as well. Doesn’t surgery imply there will be a surgical scar of some sort? At best, there would be an accounting at the promised one year, post-surgical examination that addressed the secondary symptoms that are invariably present from the underlying disease-i.e. HCV. Here, it is entirely absent or relegated to a dark corner and given short shrift.

The whole decision is flawed on its face and ripe for a reversal and remand. Why the VFW has been AWOL on this in their arguments on appeal is typical. They are Leaglezoom.com, not accomplished law dogs. Their talent lies in their ability to fill out a Form 21-22 Power of Attorney and playing mailman. Beyond that, they are over their heads in the legal deep end. This is what passes for justice in our nonadversarial, Veteran-friendly, ex parte judicial forum.

DELIVERING VETERANS’
MAIL SINCE 1899

Posted in BvA HCV decisions, Veterans Law, VSOs | Tagged , , , , , , , , , , , , , , , , | 1 Comment

VA–HOUSTON, WE HAVE A PROBLEM.

Posted on October 28, 2012 by asknod

I often wondered about this. Considering this site is not exactly pro-vA on any given  decade, I wondered if the day would come when I found them camped out on the country road in and out of my neighborhood snapping pictures of my legendary goat and pony show.

Fortunately that hasn’t happened yet although I have had an inordinate amount of small aircraft and chopper traffic overhead. No, gentle readers, I am not suffering in the last throes of conspiracy fever-yet. Or wasn’t.  Member JM sends us this interesting snippet about an Air Force Vet in Houston getting the VARO ham-handed “knock it off or we’ll make you wish you had” treatment. So, what gives? First, as a disclaimer, I would point out Not it! JM sent it to me! No. That’s pure humor. I shirk from nothing- least of all the opprobrium of the vA. I’ll be dead before they can make life Hell for me. And they can’t deny me my spot at Arlington National Cemetery either.

After what happened to Keith Roberts up in Michigan, I’ve watched my six somewhat more frequently while wondering why he got a four year staycation at the Graybar Hotel for his misstep. Obviously the vA does not take kindly to criticism. Few do but then the government is ostensibly precluded from reacting viciously to hateful diatribes.

As often as I have poked fun and misidentified Unter Secretary for Paychecks Allison A. Hickey as the Under Secretary for Karaoke and HR, etc. , I haven’t received any ill will or threats to renegotiate my Permanent and Total status. I attribute that to one thing and one thing only. Over the years, while reading BVA HCV decisions, I found a common thread. The vA is far more likely to give its combat Veterans a little more slack than they are their non-combatants. Whether they are candid about it is immaterial. I never asked for 1154(b) status but my filings for HCV and AO were unequivocal as to the GSW and the ensuing transfusion in a far from sanitary USAID “hospital” being the culprit.

In the newer theatres in Southwest Asia (Iraq and Afstan), virtually everyone is a moving target and “combat veteran” is almost a given for Vets who have endured three or more deployments. Getting blown up by an IED fifty miles behind your own lines can be called whatever the military chooses, but the physical repercussions are the same.

In the Southeast Asian Boundary Dispute of 1961 to 1975, the vA has chosen to be far more discerning and, in the process, disenfranchised hundreds of thousands of Vets by a simple parsing of their MOS/AFSC. Anyone from the Vietnam conflict would know that a truck driver hauling goods from Saigon to Bien Hoa often got in some practice with his M-16 when he came under sniper fire even in the seventies after most of our combat troops were pulled out. Nevertheless, when filing for PTSD, absent any proof from the JSRRC, he is not going to prevail. It’s that simple. All the lay testimony in the world will not carry the day.

Doug Strand, the unfortunate “unclassified” combatant in this article, is going to suffer the same fate. The vA is of a mind that he is a small fry and thus the press will not feel compelled to accord him the same degree of sympathy. With this mentality, no Vet will be safe from recrimination by the vA. Unbeknownst to them, they have underestimated the power of Youtube. Now that his plight is coming to light, they feel threatened. I don’t know why. How their reputation can sink any lower after all they have done (or haven’t done) in the last sixty years since WW2 is not for conjecture. We speak of a backlog in terms of how long it takes to process a claim in 2012 as being unconscionable. Few would believe that I waited seven and one half months in 1994 for a rather simple claim denial for HCV/AO.  Technically, they still haven’t finished it and that’s why I’m pounding on the CAVC’s door eighteen years later.

I suspect Mr. Strand will soon discover that vA will back down. Good PR, like a stellar reputation, is hard to come by. Conversely, negative press is like a bad penny and hounds you for a long time. When you’re already in the doghouse with Congress, the last thing you need is an eager, self-appointed Dudley Doright running amok at the Houston RO threatening to cut some Vet off the rolls for voicing his disapproval with the process. Were that the case, I’m long overdue for a Texas-style, down home Barbecue and Necktie Party with all the fixins’.

CUPCAKE AND NOD FUN

P.S.     The family carving contest was held this afternoon. Princess ended up doing the kids’ and BJ did a magnificent monster. Cupcake went for Ghostbusters and I chose Win or Die. I’ll get the others for posting. We’ve come a long way, baby. Six months ago I planted the seeds for these gourds.

Posted in All about Veterans, vA news | Tagged , , , , , , , , | 3 Comments

BVA — HBV ≠ HCV NO MATTER WHO REPS YOU

Posted on October 27, 2012 by asknod

 FROM THE HONORABLE

DAVID P. KORESH VARO

IN WHACKO, TEXAS

 

We saw this last year. Looks like they mimeographed the playbook and the decision was lifted verbatim. The Veterans Law Judge is running this down a cow chute with the HBV brand on it. There can be no talk of the horrible HCV symptoms the Veteran is suffering because they are not service connected. All the VLJ wants or needs to know is that the HBV that he had in service was acute and has now resolved. He no longer suffers from HBV and is now rated 0% for it because he does not have any compensable symptoms of HBV. He has previously been denied for HCV so we’re not talking inextricably intertwined. These are two entirely different viruses and two completely different etiologies.

Switching from Vietnam Veterans of America to the Disabled American Vets is not going to make a difference either. This claim is up on blocks and they’ve removed the axles. At any rate, this guy is toast. It’s called “push him off balance”. They split the difference. He had hep in service so we call that HBV and give him 0% for it. He had willful misconduct in service doing drugs so we don’t have to pay him for that flavor (HCV). Win-win. No CUE. I get a bonus and Last one to Willy’s Bar has to buy a round.

DAVID P.KORESH MEMORIAL VARO

Posted in BvA HCV decisions | Tagged , , , , , , , , , , , , , , | 1 Comment

BVA–TRICK OR TREAT FROM NEW JERSEY

Posted on October 27, 2012 by asknod

Here’s a dandy just in time for All Hallows’ Eve. Our Johnny Newark had bad luck at the roulette tables in July. He rolled the dice back in 2001 for HCV and got it for 40%.  SMOKIN’! He obviously thought that was skinny so he filed his NOD. Incensed at his obstreperous behaviour, they opted to take his rating away entirely-and indeed did so in January 2006. Nonplussed, he went up to the Court and got it back in March 2008. So you can see there’s been a little head-butting already. Johnny–1, vA–0. vA just scored 2 and Johnny’s now behind. Since his rep. forgot to include it, vA isn’t even looking at TDIU either. That’s 3

Meanwhile, the prednisone and Imuran were kicking his kidneys hard. Next thing you know he says he has DM2 from the pills. The medrecs say something entirely different according to the BVA. They reflect that maybe he was, no, most definitely, coming down with it and positively had it 3 years before the filing. Okay? So what? When filing, you have to look at all theories of how the airplane crashed. Anyone with an ounce of knowledge in gastropathy is aware DM2 and HCV are frequent dance partners. Throw in any Interferon and I guarantee it with about a 55% probability.

Johnboy isn’t a doctor and neither is the New Jersey Department of Military and Veterans Affairs. To their credit, they did chase this HCV claim reversal  thing up to the Court and get a reversal of their own, so something eeeeeevil was afoot as usual. You don’t get many reversals at the Court. Remands are a dime a dozen but true reversals are rare. That implies the BVA and the RO were legally challenged and couldn’t bob for the apple without cheating.

This decision is a further example of playing tennis with the remand a few times and dragging the whole thing out like a childhood game of keep away. In the end, the animosity is so great, that the BVA decision on the DM2 purposefully goes off into a discussion not of secondary origin, but a minute inspection from 1972 forward on a direct basis. No consideration of anything of or having to do with correlation between HCV and DM2 but only in the limited context of prednisone equals DM2.  I think he has a shot at the DM2 on appeal as an unintended consequence of the pills.

So who’s fault is this? Looks like a traditional railroad job at first glance but who opened the gate and let the vA off the reservation? The boys down at the NJM&VA were repping him so someone there wrote it up. Unless they were word- challenged, this should have been straightforward  Of course, the vA should have been stand up guys and entertained all theories, too. That’s a faery tale so don’t waste your time chasing down that Hoodoo Lane.

No, the evidence seems to point back to the original grant of HCV during a transplant. They wanted this in the DC 7312 cirrhosis file and they don’t want to admit error. With 7312, they can get away with down rating him to 30% from his 40%. Ideally, he’d just die and solve the problem, too. When they reversed at the Court, this became a tennis ball. The RO has now been dissed. Anything they do in the future will be purposefully  defective out of spite and require a redo. Witness a remand for two years (expeditiously handled ?) to get to an up to date medical examination for this present denial of everything sought. Eleven years of Trick or Treat, Johnny. Thank you for your Service, Johnny. Here, Johnny. Have some more prednisone and Azathioprine on us, Johnny. Free.

The sad fact is Mr. Newark has a long road ahead on rough terrain. Getting rid of his headless horseman (the NJM&VA) and finding good legal help will be his next challenge. We wish him all the best for his next endeavour in the Hall of Mirrors.

Posted in BvA HCV decisions, Veterans Law | Tagged , , , , , , , , , , , , , , | Leave a comment