BVA–JETGUN WIN IN ST PETE

Posted on October 3, 2012 by asknod

Rarely do we feast our eyes on this. I’m sure the fellow who won this didn’t read our site but he dialed it to a T. He got a bulletproof nexus from a top drawer Hepatologist. He had good post-service records and  supportive medical personnel who backed him up. vA couldn’t hang anything on this fellow but we notice it had to go to DC for resolution. This begs the question of why in Sam Hill they denied it at St. Pete.

A clean jetgun win is unique. vA is loathe to just grant on this alone. Usually they want some other risk they can ascribe it to so that it  dilutes the win.  WGM’s decision this year was a classic example of this. They didn’t even want to go there so they took the misguided (and illegal) approach of willful misconduct via STDs.

Vets might do well to look up attorney Carol J. Ponton in the St. Pete’s phone book or google her name to find out more about how she managed to pull off this stunning win.

 

Citation Nr: 1214128
Decision Date: 04/18/12 Archive Date: 04/27/12

DOCKET NO. 09-22 157 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by: Carol J. Ponton, Attorney
The service treatment records do not show any complaints, findings, treatment, or diagnosis of hepatitis C or any liver abnormalities.

Post-service medical records include clinical records of Ronnie Pimental M.D., who treated the appellant for hepatitis C in 2004-2005. It is significant to note that the appellant told this physician that he was a “lab tech” while in the Coast Guard during the 1970’s. He reported having an episode of hepatitis in about 1972, but did not know when he was infected. He denied having any past drug use.

The appellant currently maintains that he worked in a medical facility during ADT service. His service personnel records only show that he was a Seaman, with no other information regarding his duties. When the appellant told Dr. Pimental that he had been a lab tech, he was seeking treatment for hepatitis C, was exploring his medical history, and had no claim for VA benefits pending with VA. As such, his report of his history to this physician is highly credible and probative. The Board therefore accepts that he did work in a medical environment during ADT, as he has reported.

Two medical opinion letters have been received from Philip N. Styne, M.D., in which he indicated that he reviewed the appellant’s medical records and had interviewed the appellant. This physician provided his credentials, which are extensive, and include experience with hepatitis C. Originally, Dr. Styne stated that he thought that the appellant was a phlebotomist during service. He later corrected this statement and indicated that the appellant worked cleaning in a medical laboratory. Dr. Styne stated that the appellant had exposure to blood products during that time. In addition, Dr. Styne indicated that the appellant had been inoculated via jet gun during service. The service treatment records document that the appellant was vaccinated on two occasions during his ADT service. The physician provided an opinion that the appellant’s hepatitis C was related to the jet air gun inoculations as well as possibly from laboratory cleaning work exposure. He cited to various medical research articles in support of his conclusion that the jet air gun inoculations likely caused the hepatitis C. It was also noted by this physician that the appellant did not otherwise have any exposure to hepatitis C.

As noted, the Board finds the appellant ‘s statements credible regarding his inservice job duties and experiences. The Board also accepts that his job duties and the inservice vaccinations occurred while he was performing ADT. The appellant provided his hepatitis risk factors which are uncontradicted in the record. The assessment as to the etiology requires a complex medical impression. The private physician provided an opinion to determine the etiology of the appellant’s hepatitis C. The records were reviewed, the appellant was questioned, and the risk factors were explored. The physician provided his own curriculum vitae which showed experience with hepatitis C diagnoses and he also cited to medical research. The Board attaches significant probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the appellant. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). 

Posted in BvA HCV decisions, HCV Health, Jetgun BvA Decisions, Nexus Information | Tagged , , , , , , , , , , , , , , , | 5 Comments

BVA–BAD BACK+IVDU=SC

Posted on October 2, 2012 by asknod

Follow this twist of logic. You have a painful back. You use drugs to alleviate the pain. Lots of drugs of all different flavours. As many drugs as you can get your hands on. For many, many years until one day you discover all that shooting up to kill pain has some consequences. You file for SC for bad back with HCV as a secondary. You win.

Yep. Those Nashville cats are back again and this time even I reread this again and again in a vain attempt to follow the logic. I’m still not sure I do. Someone either removed the page on willful misconduct or they came to a new conclusion about what the meaning of “is” is.

I’ll cut and paste the header but I’m going to paste the meat and ignore the “I was born in 1951” part.

Citation Nr: 1214243
Decision Date: 04/19/12 Archive Date: 04/27/12 

DOCKET NO. 08-20 316 ) DATE 
On appeal from the 
Department of Veterans Affairs Regional Office in Nashville, Tennessee 

THE ISSUES 

1. Entitlement to service connection for hepatitis C. 

2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, lumbar spine (low back disability). 
FINDINGS OF FACT 

1. Service connection is in effect for low back disability. 

2. Resolving all reasonable doubt in the Veteran’s favor, hepatitis C had its onset in service. 

CONCLUSION OF LAW 

Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). 
 

The service treatment records show that the Veteran was treated for his low back problems and at separation his spine was found to be abnormal. Indeed, the Report of Medical Examination at service separation reflects that the Veteran reported, “My back bothers me from an injury when I fell last summer. Especially when I do hard work [sic].” The examining physician noted that the Veteran had injured his coccyx and was treated for continuous symptoms. The examiner added that the Veteran’s treatment had “fair results.” 

In November 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA), which was received in January 2012

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), interpreting 38 U.S.C.A. § 1110 in light of its legislative history, held that VA compensation benefits are available for alcohol or drug-related disability, here hepatitis C, that arises secondarily from a service-connected disorder, here low back disability. Id. at 1370.

There you have it. I shot up in service because my back hurt. I continued to do so for years. I have hep. You SC’d me for my back. If I hadn’t hurt my back in service, I would never have been forced to self-medicate and run the risk of getting Hep. You owe me.

I don’t for a minute think the DAV dreamed up this defense. It has more holes in it than O.J. Simpson’s.

VA treatment records dated from 2005 to 2007 show treatment for hepatitis C. A hepatitis C risk assessment in October 2005 includes risk factors of multiple sexual partners, past or present; tattoo or repeated body piercing; and intemperate alcohol use. VA treatment records in March 2007 show that the Veteran reported at that time that he was diagnosed with some kind of hepatitis in the 1970s; and that in 1995 he stopped drinking alcohol and stopped intravenous drug use (cocaine) that had included sharing of needles. 

In November 2011 the Board requested a medical expert opinion from the Veterans Health Administration (VHA) to determine whether it is at least as likely as not that any hepatitis C is related to or had its onset during service, to specifically include whether it is due to a right upper arm tattoo obtained in service or in-service immunizations. In a January 2012 responsive advisory medical opinion letter, a medical specialist physician who reviewed the Veteran’s medical record history, provided an opinion as to whether there was an etiological relationship between the Veteran’s claimed hepatitis C and his active service. The specialist reviewed the clinical history during service and thereafter. The specialist noted that hepatitis C was diagnosed in about 2005, that the records showed that the Veteran had stopped intravenous drug use in 1995 and that there had been sharing of needles as reflected in a March 2007 gastroenterology physician note. A January 2006 psychiatry physician note stated that there was a “25 year cocaine habit.” The examiner noted that the Veteran stated that he used intravenous drugs and shared needles while in service and noted that he had received a tattoo while in service. 

The specialist noted that the first symptoms of hepatitis C, if they appear at all, will usually be many years after the infection. The specialist opined that the Veteran’s risk factors for hepatitis C were his tattoo, intravenous drug use, and possibly, though not proven as a cause, vaccinations with contaminated injectors while in service. The specialist opined that the Veteran’s strongest risk factor for hepatitis C was his long-standing history of intravenous drug use with sharing of needles, which was documented in the medical record as a 25 year history of intravenous cocaine use that ended in 1995. 

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. 

See what happens when you train these VHA specialists to say “Yep. He did it in the military. That’s what happened. ” The intended result was the Willful misconduct etiology and ensuing denial based on it. Seeing where the Judge was headed, the VA examiner came out with the  “Nope. It occurred somewhere in that twenty three years after service, not during the two years during service. ” This was a forlorn attempt to get the IVDU on the proper side of the fence so as to preclude having to pay.

Now who among you doctors or aduccers of chicken entrails can tell me the exact moment the dragon entered the syringe and traveled up the needle to his veins? Anyone? Just to throw gas on the fire, what would have happened if they said they didn’t believe he shot up while in the military?

“It appears the Veteran is a poor historian and no one can remember what they were about 40 years ago. We believe the claimant contracted it shortly after service separation. There is no history of IVDU or drug abuse in his SMRs therefore his testimony is unsupported.”  Now keep in mind if you even mumbled in your sleep that you smoked dope or drank booze to avoid picking up dysentery, you’d get tarred and feathered as a junkie and it would be all over. No, this reeks of everybody being on the wrong page at the wrong time and trying to reinvent the wheel.  Absent that my second theory is that the guys was some Senator’s son.

 

Those VLJs. You just can’t figure what they’ll do next. I fully expected an Acting VLJ with 4 days under his belt to whistle this one or our latest Phonics winner April Maddox.

Posted in BvA HCV decisions, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , | 7 Comments

THE GOSPEL OF ORLANDO ACCORDING TO VAOIG (REDACTED)

Posted on October 1, 2012 by asknod

This will eventually be sanctioned, all will be pardoned and some will be promoted. Uncle Eric will move over to the State Dept. and change his name. It will be republished with the “Once upon a time in a land far away ” format. Soon they will deny it happened like the Holocaust.

Posted in vA news | Tagged , , , , , , , | 1 Comment

DOTTIE’S LATEST POST

Posted on October 1, 2012 by asknod

Member Dottie left this on my page for contacting me as a comment. It makes me very happy to see these show up. They are starting to appear far more frequently.

Dottie says:

Just received news today that hep c is service connected at 30% …so it’s a win. Definitely having a nexus helps and haven’t been to the BVA yet.:)

That’s what we live for. maybe I can coax her into sending me the particulars to share with all you wonderful Veterans.

Posted in vARO Decisions | Tagged , , , , , , , , , , , , , | 3 Comments

ORLANDO WON’T GO AWAY

Posted on October 1, 2012 by asknod

Kiedove just sent this to me this evening and will be inveighing on it tomorrow. I thought Vets might like to know that they now have the best-trained Human Resources folks that money can buy. Unfortunately they are all being let go so that won’t be true for too much longer.

Posted in Complaints Department, vA news | Tagged , , , , , | Leave a comment

MARINE- IT’S MORE THAN A WORD

Posted on October 1, 2012 by asknod

Tom (a Marine) sent me this. He embodies what Marines are even now. It’s a disease that you never get over nor would want to. I find this very close to unnerving.

 

Every now and then, in the middle of the constant barrage of crap that’s just pissing us all off these days, we come across a story, a feat, an event that just makes us stop in our tracks.

This was one for me.
 Cody Green was a 12-year kid in Indiana who was diagnosed with leukemia at 22 months old. He loved the Marines, and his parents said he drew strength and courage from the Marine Corps. as he bravely fought the battle into remission three times. Although he was cancer-free at the time, the chemotherapy had lowered his immune system and he developed a fungus infection that attacked his brain. Two weeks ago, as he struggled to fend off that infection in the hospital, the Marines wanted to show how much they respected his will to live, his strength, honor and courage. They presented Cody with Marine navigator wings and named him an honorary member of the United States Marine Corps.
 For one Marine, that wasn’t enough … so that night, before Cody Green passed away, he took it upon himself to stand guard at Cody’s hospital door all night long, 8 hours straight.
 Nowhere on the face of this planet is there a country so blessed as we to have men and women such as this. I wish I could personally tell this Marine how proud he makes me to be an American.
Posted in All about Veterans | Tagged , , , , , | 2 Comments

BVA– ACTING VLJ HOOKED ON PHONICS

Posted on October 1, 2012 by asknod

WGM got the short end of the stick on this one but now I see why. vA just can’t bring themselves to accept the fact that getting Winky dirty isn’t willful misconduct. Listen to this Judge pontificate, bluster, chew her pencil eraser, have one conniption fit after another and finally accede that it’s the will of Congress that this is so.  She sure isn’t happy with it and lets everyone know it’s WRONG!…Wrong!……………..Wrong! as Sen. Byrd used to inveigh.

This is priceless. It goes on for three paragraphs. What’s amazing is that this VLJ actually understands you can’t say no hep in 75 if there wasn’t a test for it.

Citation Nr: 1220078
Decision Date: 06/07/12 Archive Date: 06/20/12

DOCKET NO. 09-22 952A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina

THE ISSUES

1. Entitlement to service connection for hepatitis C. 

2. Entitlement to a disability rating greater than 10 percent for a left eye maculopathy with headaches and blurred vision.

REPRESENTATION

Appellant represented by: The American Legion

The Board dismisses the blood transfusion as the source of the Veteran’s hepatitis C in this case. First, the Board notes that there is no objective evidence of any blood transfusion during military service. While the Veteran is competent to state that he had a blood transfusion, the Board concludes that such is not a credible statement in light of the lack of objective evidence of such in the service treatment records.

Instead, the Board focuses on the Veteran’s high-risk sexual activity in service. The Board notes the several instances of treatment for sexually-transmitted diseases during military service. The Board further observes that the May 2011 VA examiner specifically noted that the Veteran’s hepatitis C was more likely than not the result of his high-risk sexual behavior from 1975-1977, during which time he was treated for multiple different sexually-transmitted diseases. The Board cannot find any evidence of record at this time that the Veteran continued to engage in high-sexual practices after his discharge from service, nor is there any other evidence of record such as a blood transfusion after discharge from service but prior to 1989; any evidence of illicit drug use, particularly intravenous drugs or intranasal cocaine use; or, any other noted risk factors post-service. 

[In other words, they can’t screw him for après-service risks although they’d love to]

Moreover, the Board finds that such high-risk sexual activity during service is not willful misconduct and therefore is not a bar to compensation benefits. 

[But….. but….. but….]

The Board notes that no compensation shall be paid if a disability is the result of the veteran’s own willful misconduct, including the abuse of alcohol or drugs. 38 U.S.C.A. §§ 105, 1110, 1131; 38 C.F.R. § 3.1(n), 3.301. Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. A mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). Residuals of venereal disease are not to be considered the result of willful misconduct. See 38 U.S.C.A. § 105; 38 .F.R. § 3.301(c)(1).

[Dang it. What can we use to deny… ah, the rule is fuzzy]

The general prohibition against service connection for disease or injury caused by a veteran’s own willful misconduct has been set forth above. The precise outline of this rule is somewhat unclear. There is no statute or regulation specifically prohibiting payment of benefits for any disease or injury incurred as a result of promiscuous sexual activity during service. It is debatable whether engaging in high-risk sexual activity constitutes an act “involving conscious wrongdoing or known prohibited action.” 

[ I think we can go out on a limb and deny this guy. It’s a stretch but let’s see where this line of thought goes…]

VA regulations specifically provide that residuals of venereal disease are not to be considered “willful misconduct.” See 38 U.S.C.A. § 105; 38 C.F.R. § 3.301(c)(1). The Board observes that “venereal disease” is defined as one “transmitted only or chiefly by sexual intercourse with an infected individual.” See Webster’s New World Dictionary. The Veteran has not contended that hepatitis C fits that definition. However, the Board does not believe that the definition applies, in that it may be transmitted in numerous ways other than sexual intercourse (including tattoos, intravenous drug use and needle sticks). However, while it is true that hepatitis C may be acquired in ways other than sexual contact, it is also true that it may be acquired through sexual contact. {Dick Tracy moment in 3,2, 1…}> The Veteran claims that such is his situation, and the medical opinion supports the Veteran’s contention.

[Shoot. what about this Congress thing? I think they tied my hands]

While the Veteran thus does not currently suffer from a venereal disease, it appears that there is clearly intent on the part of Congress and VA to remove from the definition of willful misconduct diseases which are the residuals of sexual contact. It would thus appear to be contrary to the spirit, if not the letter, of the law to allow service connection for say syphilis or HIV/AIDS but deny service connection for hepatitis C when it has been demonstrated that the latter has been incurred as a result of sexual contact. The Board therefore concludes that in this case the Veteran’s hepatitis C may be likened to venereal disease and therefore falls outside of the statutory misconduct prohibition. 
Accordingly, the Board finds that the evidence of record in this case supports the finding that the Veteran’s hepatitis C is the result of high-risk sexual activity during military service; therefore, by resolving all doubt in the Veteran’s favor, the Board finds that service connection for hepatitis C is warranted on the evidence of record. See 38 C.F.R. §§ 3.102, 3.303. In so concluding, the Board has appropriately applied the benefit of the doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Well, I’m glad we allowed Congress to settle that one. I was beginning to think that the VLJ was going to say they simply were in error and he was going to right this wrong here and now. Now, look down at the bottom and what do we see?

APRIL MADDOX
Acting Veterans Law Judge, Board of Veterans’ Appeals

Well, helloooooooooooooooooo, April. Been deciding claims very long? Oh. That’s right. You’re just an acting VLJ.  No wonder you had to sound it out like phonics.

Posted in BvA HCV decisions, Uncategorized, Veterans Law | Tagged , , , , , , , , , , , , | 5 Comments

BVA DECISIONS BYPASS INFO

Posted on October 1, 2012 by asknod

Trust Squidley to cut the Gordian knot. I think I might have solved the second half of getting in. It seems you need to do this in a particular order. First pull up the BVA site and then go to the tools function and pull up you browser history. Erase it all. Cookies, everything. When its clean go directly back to the bva site and click on a decision. It should work.  I use Google Chrome and I’ve done it twice today. If I close the BVA tab and try to reopen it, it goes to page not found. A browser scrub and it’s back.

Posted in BvA Decisions, BvA HCV decisions, vA news | Tagged , , , , , , | 1 Comment

BVA–20 +YEAR LIFER LOOKING FOR WELFARE

Posted on October 1, 2012 by asknod

I’ve never read one of these.I’ve seen combat Vets and medics get HCV SC with all number of drug issues. I’ve seen guys who deserved it get denied a bunch, too. But this is a new one. On top of the fact that the DAV is his VSO, they convinced him to withdraw an appeal for HCV in 2006 that he had two years invested in. Now he’s back refiling. His legal help is in cahoots with the VA, for crying out loud. Who ever heard of suing someone then throwing in the towel? And come back again 6 years later? Will they talk him into giving up again until the backlog is solved?

Citation Nr: 1221619
Decision Date: 06/21/12 Archive Date: 07/02/12

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1. Entitlement to an increased rating for chondromalacia patellae, status post debridement of the left knee, currently evaluated as 10 percent disabling.

2. Entitlement to an increased rating for chondromalacia patella, postoperative, right knee, currently evaluated as 10 percent disabling.

3. Entitlement to an increased rating for degenerative joint disease, right shoulder, currently evaluated as 10 percent disabling.

4. Entitlement to a separate compensable rating for residual scar, status post right shoulder arthroscopy.

5. Whether new and material evidence has been received with respect to a claim for service connection for hepatitis C.

6. Entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. N. Moats, Counsel

INTRODUCTION

The Veteran had over 20 years of active service ending with his retirement in March 1995.

The issue of entitlement to service connection for hepatitis C comes before the Board of Veterans’ Appeal (Board) on appeal from November 2006 rating decision of the Department of Veteran’s Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The remaining issues come before the Board on appeal from a May 2009 rating decision by the RO, which continued the already assigned 10 percent disability ratings for the left and right knees, and granted a temporary 100 percent evaluation based on surgical treatment necessitating convalescence for the right shoulder until April 1, 2008, and then continued the already assigned 10 percent disability rating.

The issue of service connection for hepatitis C was originally appealed from prior September 2004 and October 2004 rating decisions. The RO issued a statement of the case in February 2006 and a substantive appeal was received the following month. Nevertheless, in a July 2006 statement as well as at a RO hearing that same month, the Veteran withdrew his appeal of this issue. The following month, the Veteran filed a claim to reopen. Thus, the Board must determine whether new and material evidence has been received with respect to this issue in accordance with 38 C.F.R. § 3.156.

An appeal had also been perfected on the issue of entitlement to service connection for PTSD. However, this issue was granted in a December 2007 rating decision. As this was a full grant of the benefit sought on appeal, this issue is no longer in appellate status.

The underlying issue of entitlement to service connection for hepatitis C is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1. The Veteran’s service-connected chondromalacia patellae, status post debridement of the left knee, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, and without recurrent subluxation or instability, frequent episodes of “locking” and effusion into the joint or ankylosis.

2. The Veteran’s service-connected chondromalacia patella, postoperative, right knee, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit flexion to 30 degrees or less or limit extension to 15 degrees or more, and without recurrent subluxation or instability, frequent episodes of “locking” and effusion into the joint or ankylosis.

3. The Veteran’s service-connected degenerative joint disease, right shoulder, is manifested by findings of pain, but without additional functional loss due to pain, weakness, incoordination or fatigue so as to limit range of motion to the shoulder level.

4. The Veteran’s residual scar, status post right shoulder arthroscopy, is manifested by tenderness on examination.

5. In an October 2004 rating decision, the RO denied service connection for hepatitis C; the Veteran withdrew his appeal of this decision in July 2006.

6. The additional evidence received since the October 2004 rating decision denying the claim of service connection for hepatitis C relates to unestablished facts necessary to substantiate the claim.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability evaluation in excess of 10 percent for chondromalacia patellae, status post debridement of the left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5019, 5260, 5261 (2011).

2. The criteria for entitlement to a disability evaluation in excess of 10 percent for chondromalacia patella, postoperative, right knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5019 5260, 5261 (2011).

3. The criteria for entitlement to a disability evaluation in excess of 10 percent for degenerative joint disease, right shoulder, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Codes 5010, 5201 (2011).

4. The criteria for a separate evaluation of 10 percent, but no higher, for residual scar, status post right shoulder arthroscopy, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.118, Diagnostic Code 7804 (in effect prior to October 23, 2008).

5. The October 2004 rating decision denying the application for service connection for hepatitis C, became final. 38 U.S.C.A. § 7105(c) (West 2002 & Supp. 2011); 38 C.F.R. § 20.200, 20.201, 20.302 (2011).

6. The additional evidence presented since the October 2004 rating decision is new and material, and the claim for service connection for hepatitis C, is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2011); 38 C.F.R. § 3.156 (2011).

So he gets the 10% knick knack bone. But what’s wrong with this DAV picture? Why, the confounded nexus is missing. It’s as if his legal help, who do this for a living, set him up for a fall. They burned up 3-4 years of this fellows time and purposefully let him get all the way here to lose everything.  The VLJ didn’t fall for it and remands for a nexus. vA is going to give this lifer a big Christmas present – his very own vA-supplied nexus free of charge. You can be sure it won’t be from Dr. Bash either. This is a classic example of that fabled VSO help that was designed to help Vets “navigate the system with confidence in the capable hands of a Veterans Service Officer who is well-versed in the law.”

Accordingly, the case is REMANDED for the following actions:

1. The RO should schedule the Veteran for an appropriate VA examination with a medical doctor to ascertain the etiology of his currently diagnosed hepatitis C. All necessary tests should be conducted. 
The claims file must be sent to the physician for review and the examiner should be informed that Veteran’s duties as a combat medic during the first Gulf War have been conceded.

After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that the Veteran’s hepatitis C is related to service, to specifically include the his duties as a combat medic. The examiner should also consider the Veteran’s contentions that he might have contracted the disease as a result of surgeries performed in service, to include a wrist surgery in 1985 at Fort Campbell, Kentucky. A complete rationale should accompany any opinion provided.
2. In the interest of avoiding future remand, the RO should then review the examination report to ensure that the above question has been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies in the examination report.
3. Thereafter, and any additional development deemed necessary by the RO, the issue on appeal should be readjudicated under a merits analysis. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

I guess twenty plus years in the service is no panacea, nor is being a combat medic. One would think his type would be the last to think about cheating and looking for a free ride on the government’s dime. I misjudged him. He must be a goldbricker. VA has an 86% accuracy rate, remember? I can hear his rep: “Hey, come on, man. You won the 10% on the scar. Let’s go home and come back in six years. We can give it a fresh look and they’ll probably grant. For sure we can get you a pension then when, I mean, IF we lose. This hep thing is mighty skinny, you know”.

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BVA–CLEOTIS WINS

Posted on October 1, 2012 by asknod

Squidly cracked the safe. The 2012 decisions are available if you know the secret handshake and the password.

 

Obviously we aren’t going to use any names here. A while back I was putting up BVA cases and showing how (or how not to) be successful at it and a gentleman who identified himself as “Cleotis” left us a veiled threat that he “better not see his name up here”. Since I didn’t know who Cleotis was at the time, I felt powerless to prevent publication of his particular case. I wasn’t even sure he had continued to pursue it after he became angry with me for my perceived failures.

While strolling through the new 2012 cases I came across this one of a fellow I helped for over two years in an attempt to get him service connected. After many losses, and much work on getting the proper nexus letters, I was accused of being inept, unwilling to help him and generally an asshole for even pretending to know what I was doing. We parted company on less than happy terms. Then it dawned on me who Cleotis was. Damned if he hadn’t won. Why he never told me is a mystery. Most would be happy to share. Perhaps he’s too proud to apologize for his rudeness.

When I spotted this, my heart jumped for joy. I had gone to great lengths to push him to redevelop his evidence properly and present it anew. At some point I took over and rewrote his NOD for him. He apparently completed the appeal process because he won. vA says this is the benefit of the doubt but the preponderance of the evidence was in his favor from the beginning. Reading through his files was a litany of the typical vA justifications for denial and a purposeful ignoring of the facts needed to prove it. So, of all the cases I’ve ever taken on, this will probably be my finest hour. I don’t want to take credit for it completely because Cleotis and his wife carried the water. I wrote many a letter for them to file over the years. Much of it was done from my hospital bed when I was a guest of the Seattle VAMC in 2009.

God, there’s nothing finer than realizing this system for winning claims works. Cleotis, if you’re reading this, forgive me for publishing it. I don’t care if you never thank me for all my hard work, either. That isn’t why I do it. As I point out to each and every one of you- If the shoe was on the other foot, I’m sure you’d do it for me if you had the wherewithal.

Here is my most stunning assist in my four years of doing this. I’m saddened that it took so long and required going to D.C. Unfortunately Cleotis’ earlier legal help had made a complete hash of it and even failed to file his substantive appeal causing him to have to start over. Congratulations Cleotis. Hell, if you can win anyone can.

Citation Nr: 1206365
Decision Date: 02/21/12 Archive Date: 03/01/12

DOCKET NO. 10-28 394 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUE

Whether new and material evidence has been submitted to reopen a previously denied claim of entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by: Richard E. Geyer, Attorney at Law

ATTORNEY FOR THE BOARD

B. Diliberto, Associate Counsel

INTRODUCTION

The Veteran had active service from March 1965 to February 1968.

This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that denied the benefit sought on appeal. The Veteran appealed that decision, and the case was referred to the Board for appellate review.

In January 2012 the Veteran, through his representative, submitted additional evidence without a waiver of RO consideration. See 38 C.F.R. § 20.1304 (2011). However, in light of the positive determination below, there is no prejudice for the failure to remand the appeal back to the RO for issuance of a Supplemental Statement of the Case (SSOC).

FINDINGS OF FACT

1. The RO, in an October 2006 rating decision, denied entitlement to service connection for hepatitis C. The Veteran did not timely appeal that rating decision and it is now final.

2. The evidence received since the October 2006 rating decision relates to an unestablished fact necessary to substantiate the Veteran’s claim of entitlement to service connection for hepatitis C and raises a reasonable possibility of substantiating that claim.

3. The competent and probative evidence of record is in relative equipoise as to whether the Veteran has hepatitis C that is related to his military service.

CONCLUSIONS OF LAW

1. The October 2006 rating decision, which denied entitlement to service connection for hepatitis C, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104 (2011).

2. The additional evidence presented since the rating decision in October 2006 is new and material and the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011).

3. Resolving reasonable doubt in his favor, the Veteran has hepatitis C which is related to his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Before addressing the Veteran’s claim on appeal, the Board is required to ensure that the VA’s “duty to notify” and “duty to assist” obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). In connection with a claim to reopen on new and material evidence and in accordance with Kent v. Nicholson, 20 Vet. App. 1 (2006), the RO must satisfy the duty to notify with a letter defining new and material evidence, advising the Veteran of the reasons for the prior denial of the claim of service connection and noting the evidence needed to substantiate the underlying claim of service connection. However, given the favorable disposition in this adjudication, and the fact that no prejudice to the Veteran could result from the Board’s decision, no further notice or assistance is required. Mayfield v. Nicholson, 19 Vet. App. 103, 115 (2005); Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004); Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.

The Veteran first claimed entitlement to service connection for hepatitis C in May 2006. The RO denied entitlement to service connection for that condition in October 2006, finding that there was no evidence linking that condition to service. The Veteran submitted a Notice of Disagreement (NOD) with that rating decision in April 2007. The RO issued a Statement of the Case (SOC) in March 2008, but the Veteran did not file a timely Substantive Appeal. Accordingly, that decision is now final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.

In October 2008 the Veteran filed to reopen his previously denied claim of entitlement to service connection for hepatitis C. The RO issued a rating decision in October 2009, finding that new and material evidence had not been presented and declining to reopen the Veteran’s claim. The Veteran submitted a Notice of Disagreement (NOD) in January 2010. The RO issued a Statement of the Case (SOC) in May 2010 and the Veteran filed a Substantive Appeal (VA Form 9) in June 2010. Regardless of how the RO ruled on the question of reopening the Board as the final fact finder within VA must initially determine whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

As a general rule, a claim shall be reopened and reviewed if new and material evidence is presented or secured with respect to a claim that is final. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. When a veteran seeks to reopen a final decision, the first inquiry is whether the evidence presented or secured after the last disallowance is “new and material.” Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

Furthermore, “material evidence” could be “some new evidence [that] may well contribute to a more complete picture of the circumstances surrounding the origin of the veteran’s injury or disability, even where it will not eventually convince the Board to alter its rating decision.” Hodge v. West, 155 F. 3d 1356, 1363 (Fed. Cir. 1998). If it is determined that new and material evidence has been submitted, the claim must be reopened and the VA may then proceed to the merits of the claim on the basis of all the evidence of record.

When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In order for evidence to be sufficient to reopen a previously denied claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1990).

The evidence submitted since the October 2006 rating decision consists of VA treatment records, letters from both VA and private physicians and numerous statements from both the Veteran and his spouse. The Board has determined that this evidence is both new and material. Specifically, the Board finds that the VA and private physician letters are competent evidence indicating a likelihood that the Veteran was exposed to hepatitis C while in service. New and material evidence having been submitted, the claim of entitlement to service connection for hepatitis C is reopened.

Having been reopened, the Veteran’s claim of entitlement to service connection for hepatitis C must be reviewed on a de novo basis. Service connection will be granted for a disability resulting from an injury or disease incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. If there is no showing of a resulting chronic disorder during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Coburn v. Nicholson, 19 Vet. App. 427 (2006); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 2004). If the Veteran fails to demonstrate any one element, denial of service connection will result.

The Veteran’s service treatment records are negative for any findings of treatment pertaining to hepatitis C. The Veteran’s entrance examination indicates that he entered service with a tattoo on his right upper arm and his discharge examination indicates scars on the right forearm and tattoos on the right forearm and right arm. Other injuries are also noted, including a closed fracture of the right ankle due to an assault by unknown assailants.

VA treatment records dating back to August 2002 indicate findings of hepatitis C. VA treatment records from January 2003 note that the Veteran had many tattoos on his body. The Veteran denied any intravenous drug use or blood transfusions. He reported a history of snorting cocaine in the late 1970s and early 1980s. He indicated that this was done in a group with common straws passed around. He also reported a history of multiple fights with other people where he was exposed to blood in the 1960s, a history of driving needles into his right thigh as part of a bet and a history of sharing razors and toothbrushes. He stated that each of these events occurred in service.

In a December 2006 statement the Veteran stated his belief that he contracted hepatitis C from unsanitary jet injectors. He also reported other blood transfers from fights and injuries suffered in service, relating these events in detail. He stated that he received a tattoo to his right forearm while in the field and that the needle was used by several individuals. The Veteran has subsequently submitted numerous additional statements which are largely reiterative.

The Veteran submitted a December 2006 letter from a private physician, wherein the physician stated that the Veteran’s hepatitis C was related to service based on a history of extensive unprotected blood exposure through multiple situations.

In March 2007 the Veteran submitted a letter from a physician at the VA Medical Center in Martinez, California. In that letter the physician stated that the Veteran did not have any identified civilian means by which his hepatitis C could have been acquired. He related the Veteran’s history of in-service fights and stated that the Veteran’s military blood exposure offers a plausible explanation for his hepatitis C infection.

In May 2009 another physician from the VA Medical Center in Martinez, California, submitted a letter in support of the Veteran’s claim. This physician discussed the Veteran’s reported history in detail. He also evaluated the Veteran’s service treatment records. He provided an opinion that the events related by the Veteran are at least as likely as not related to his current hepatitis C infection. In so stating the physician stated that the Veteran’s reported history was credible and that the medical history documented in his service medical records supported his contentions. The physician also noted that the Veteran’s liver biopsy suggested a much earlier date of infection than the late 1970s.

A June 2009 letter from the same physician who wrote the March 2007 letter indicates that physician’s opinion that the Veteran’s hepatitis C infection was most likely acquired during his period of military service in the 1960s.

After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is in relative equipoise as to whether he has hepatitis C that is related to his military service. For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his current disability is related to service. See 38 U.S.C.A. § 5107(b). The Board finds that standard has been met in this case. In so finding, the Board notes that the Veteran has been diagnosed with hepatitis C and that numerous physicians have stated that it is at least as likely as not that the Veteran contracted hepatitis C while in service. In this context, the Board also finds that the Veteran is competent to relate events in which he has been involved, namely fist fights and assaults in service. See Charles v. Principi, 16 Vet. App. 374-75 (2002).

In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998).

ORDER

New and material evidence having been presented, the claim of entitlement to service connection for hepatitis C is reopened.

Entitlement to service connection for hepatitis C is granted.

____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans’ Appeals

I notice that the date of the win is 3/01/2012. I also notice Cleotis’ reminder not wishing to see his name in lights was dated 3/15/2012.  Oh, well. Sometimes you can’t please the customer no matter how hard you try. I also notice Cleotis followed my advice and retained a lawyer to carry the water. Smart man.

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