Nine Ways to An Earlier Effective Date, Part II

Posted on May 8, 2012 by joeaveragevet

A few days ago, I published an article on winning an earlier effective date, here:

https://asknod.wordpress.com/2012/05/04/nine-ways-to-an-earlier-effective-date/

 

So here you are:  1.  You dont have a “pending claim” that your VARO forgot to adjuticate.  2.  The RO didnt lose any Service records.   3.  The VA didnt step on their own necktie and fail to  inform you of your time limits. And, number 4, you didnt have any informal or inferred claims by which you can win an earlier effective date.

Dont give up yet.  Persistence often wins at the VA when all else fails.

 

Try numbers 5-12:

5.  Remember, the general rules for effective dates is the later of the date the claim was received or the “facts found”.  The exception to this is if you had an increase within the first year you had applied.   Such an increase could be TDIU, that is, your service connected conditions rendered you unable to maintain substantial gainful employment.  If you became unemployable, OR otherwise had an increase in disability  within your first year after SC, be sure to investigate “number 5” , here:   http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

6.  Liberalizing laws.  Congress is always changing laws, and sometimes, “number 6” can entitle you to an earlier effective date.  If you are unsure ask you lawyer or “ask nod” the question.  He is the expert.

7.  Within one year of discharge.

8.  Nehmer class Veterans.  Sharp eyes will notice there is no #8 in the NVLSP training guide:

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

However, don’t dismay, these  came from the noggin.  If  you are one of the 140,000 Nehmer class Vets, you can start here:

http://www.nvlsp.org/Information/ArticleLibrary/AgentOrange/AO-VABeginsReview.htm

9.  Get your “CUE” stick.  If the VA made an error on your claim that makes the “CUE” grade, then say hello to your retro check, after waiting, of course.

10. The VA “fuzzy math”.   Wait, I thought you said 9 ways?   Oh, yes, this is the VA “fuzzy math”, only THIS fuzzy math is to your benefit!    Remember the one where the VA told you that your 50% and your 30% combined to 70%?  THAT fuzzy math.  You see, RO employees are sometimes “FUZZY” and make a math error, which, when corrected, results in retro to you.  RO’s, for example, are sometimes “fuzzy” in remembering all your dependents, when they calculate your retro, referring to you as “single” in your decision, which could upset your wife.

11.  Your secret weapon.  Use this with caution.  Take your claim file to a NVLSP lawyer and ask HIM if he can find any reason for an EED.  It probably  wont cost you a cent to talk to the lawyer, and you get to keep at least about 80% of the extra retro he finds for you.

12.  Save the “big guns” for last.  Seriously, do this one first.  Send an email to “ask nod” and see if we can find your “lost retro”. I’d be happy to investigate.

 

The “one year” number keeps coming up..again and again.  1)  One year for the Veteran to file a NOD.  2)One year after discharge and 3)One year after you apply and then seek an increase.

Posted in Complaints Department, Guest authors, Uncategorized, Veterans Law | Tagged , , , , , , , | Leave a comment

ANC-Funeral For Gary Lupole

Posted on May 8, 2012 by asknod

The funeral for Gary Lupole at Arlington National Cemetery is scheduled for tomorrow at 1300 hrs. A grateful Nation will honor one of its Fallen on Gen. Robert E. Lee’s former plantation overlooking the Potomac. Our thoughts will be with HCVets founder Patricia Lupole.

Posted in All about Veterans, Inspirational Veterans, Milestones | Tagged , , , , , | 4 Comments

9th Fed.Circus Bails Out of VCS Controversy

Posted on May 7, 2012 by asknod

In an stunning display lacking intestinal fortitude, the 9th Fed. Circus, in an en banc decision, decided on narrow grounds-i.e. it wasn’t an “individual” but a group claim- to get out of this sticky wicket.  I was looking forward to seeing this one get the thumbs up and watching Uncle Eric start hyperventilating. Alas, t’is not to happen.

2012-05-07 [099-1] 9th Circuit Opinion

2012-05-07 [099-2] Post Hearing Judgment

And you heard about it here first!

Posted in All about Veterans, Fed. Cir. & Supreme Ct., VA BACKLOG, vA news, Veterans Law | Tagged , , , , , , , | Leave a comment

For KC &RC In W.V.

Posted on May 7, 2012 by asknod

They do not have Rhododendrons in West Virginia. Therefore we bring them to you.

The camera doesn’t do the flowers justice. I apologize.

Posted in Food for the soul, General Messages, Uncategorized | Tagged , , , | 1 Comment

37 YEARS

Posted on May 7, 2012 by asknod

Thirty seven years ago was the last day of our involvement in the Vietnam Boundary Dispute. I had a tshirt with the unofficial logo of the Air Wing but I can’t find it. It was a skull and crossbones with  checkered flags hanging from both bones at the side. The logo under was “WIN OR DIE”.

Army Generals do not retreat. The phrase is “to advance in a different direction smartly”. This we did. It can be said that this was our first Olympics where we didn’t take home the Gold but the Bronze. Thank you for your selfless commitment to America’s freedom-all of you. Including the ones who followed in our footsteps.

And the last man out? Why, Master Gunny Sgt John J. Valdez on April 30, 1975. He was in charge of the Marine detachment at the Embassy. I wonder why his boss (the guy with the slats) wasn’t ? It figures they’d leave it to someone competent.  Air Am kept up the evacuation with their Hueys and Bell Rangers after the Army bailed. That’s one of their choppers you see above at the Pittman Apts.

Posted in All about Veterans, Food for the soul, Inspirational Veterans | Tagged , , , , | 1 Comment

SNORKELING IN HAWAII

Posted on May 5, 2012 by asknod

For Member Leigh who

enjoys my warped humor

Everybody’s been to Hawaii, right? I went there in 82 for my divorce honeymoon.   The second time was to get over a particularly rotten relationship that went south over drugs- a nose candy habit- in 86. Marilyn had a Ferrari parked in one side and a Lamborghini  in the other financially. When I discovered someone was tapping my money market/IRA with my own credit card, I went single again. That’s not what this is about, though. It’s not about the third time with Cupcake and the whole Griswold clan either. The fourth time we went for my son’s spring break. He was allowed to take a friend to keep him occupied. My daughter had moved out so we didn’t have to haul her.

Maui is sweet if you have a condo on the golf course. You just ooze out about 1700 in between a couple of twosomes and join up with one. Tell them your partner had a heart attack and buy them a round. Most guys are toasted by the 12th hole anyway. Golf is thirsty work and golfers are all related and get along well.

I’d done the snorkel gig in 82 down at Hanauma Bay on Oahu back  when you could wade in with bread and get a fish massage. It got so polluted with rotten bread they outlawed it at some point, but that was Oahu and we’re talking Kaanapali in 2000. Alternately, I’ve heard  that the fish died of cholesterol poisoning on Snopes.

Cupcake had this thing planned out to a tee. All the restaurant reservations for a week, the deep sea fishing, the all-day snorkeling/lunch/ drinking cruise- in a word-the works. The snorkel deal was a one hour cruise up the west coast towards the northwest corner. It was an  underwater National Park without Yogi and Boo-boo.  Political correctness and the guide informed us we were not to feed the fish and were forbidden to stand on the weird rock formations that projected up like mushrooms in the bay.  The vessel was a huge Catamaran with two bars and no waiting. A stairway descended to the water between the hulls. First class, including the little umbrellas in the drinks.

Having done the Hanauma Bay snorkel and 5K hike to the beach, I was knowledgeable about these things. I had swimming trunks with Velcro®  pocket closures which were perfect receptacles for bread. In fact, they had little holes that let the water out when you exited the ocean. They were particularly well-adapted for Liquid bread as well. Rules, as most Vets know, are  for the general public. Since we are far more intelligent and march to the beat of military music, anyone telling us what we can and cannot do is ludicrous. Any one foolish enough to tell us what to do after a few Hawaiian Electric Ice Teas is really barking up the wrong tree.

Everyone launched  and off we went. I pocketed the bread before we left the Condo and the adult beverages had caused me to disremember it. The fish didn’t. After about 25 yds. my son swam over and pointed behind me. I felt like the Pied Piper. There was a white,  liquid  stream of dissolving bread  behind me and about 3,000 fish. They soon figured out where the Mother Lode was and I was surrounded. We were in 20-30 feet of water and the fish were skinny and underfed.

Buckwheat thought it was a scream and so did I. Here was an example of truly getting your money’s worth. Then the bigger fish showed up. Moving away from the shitstorm worked for all of about 30 seconds until they figured where Wishbone and the chuckwagon were off to. By now I was trying to get mass quantities of dinner roles out of my pockets and move on. The fish weren’t having it. Off to my right was one of those crazy mushrooms we were instructed to avoid. They were some rare breed of coral or Hawaiian ceremonial cremation urns. I rationalized it as “The needs of the idiot outweigh the rules of the lagoon” and climbed up.  Several fellows on the boat in the  distance waved frantically at me and shouted. I smiled and waved back. Buckwheat and Daniel had come to the surface were sucking sea water they were laughing so hard. Cupcake had surfaced and suggested that this was “poorly thought out” and might cause some “dissension” on board when we returned. I carefully rinsed the last of the fish food out of my pockets and tried to exit the rock gracefully but the stink was on me.

By now all the fish in the lagoon and I were on a first name basis. Being such good friends, we all slowly retired back to the Catamaran together. Other snorkelers on the far side of the bay were becoming upset because the expedition was somewhat of a bust. Where were all the promised fish? $65 dollars a pop for a milk run wasn’t cutting it.  My new friends and I hung out for a while near the ladder until a gaggle  arrived to go up. Everyone stopped to watch me and my buddies-all 10,000 of them. I tried to blend in innocently. No dice.

The Commander of the expedition came over to the ladder and reamed me for standing up on the rock as I emerged. I told him about my service connected tinnitus and hearing loss and suggested he talk louder. Apologies were proffered and accepted. Assurance that it would never occur again was tendered and all was well. Almost. When Buckwheat and Daniel got back they couldn’t  refrain from commenting on my ability to make such fast friends with the denizens of the deep in such a short period. Cupcake had figured it out 30 seconds after I got in.  She just shook her head with that “I should have known he would feed them” roll of the eyes.

Some of the other snorkelers came over and commented that the fish seemed inordinately attracted to my bright red bathing suit. Eventually the truth spread and I had a one on one with our group leader on the subject of feeding the fish. I was going to give her the “Gosh, you know Denise. I completely forgot-we were feeding those cute little miniature doves on the lanai this morning and I guess I left some bread in my pocket” . No dice again. She’d heard Buckwheat spill the beans to some girls he’d met.  I took my medicine and promised never again.

I can’t wait to go snorkeling again, but this time I’m taking less bread.

Posted in Humor | Tagged , , , , | 5 Comments

BVA– Bronze Star= HCV

Posted on May 5, 2012 by asknod

Here’s a perfect stir of a combat soldier, 38 USC 1154(b) and vA’s grant of HCV service connection. The confluence of all three is the key to his success. Why this had to go to the BVA , the CAVC and then back rather than being granted at the RO is anyone’s guess. Well, actually it isn’t anyone’s guess. It’s how vA operates and they got caught-as usual.

38 USC 1154(b) is called the combat clause. It’s sister, 1154(a) contains a lot of the same language, but the (b)  clause accords a Veteran a pass on his testimony. America has decided that if one of its sons engaged in combat with the enemy, he is to be believed in all he says about the circumstances surrounding it (unless they can find a way to compromise his credibility). To wit:

38 USC § 1154

(a) The Secretary shall include in the regulations pertaining to service-connection of disabilities

(1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence, and

(2) the provisions required by section 5 of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (Public Law 98–542; 98 Stat. 2727).

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

§1154(a) is still very valuable as a tool for winning. If you were claiming tinnitus due to being in artillery at Firebase Oscar, it helps if the Service records show you were a 13B. Similarly if you were wounded “over the fence” and there were no records, it helps if you medical records are stamped “Qualified by training for REMOTE/ISOLATED” Tour of Duty”. If the military has done it’s job keeping up the personnel records, you’ll have evidence of a general nature here that will corroborate your claim. Most concentrate their efforts on the medical side and neglect the military records.

As you can see, in no uncertain terms, America accords a special place for heroes in the regulations and §1154(b) is where it is incorporated. vA calls this the “combat exemption” as if it were a hall pass or a get out of jail free card. It is no such thing. It is a combat “clause or enhancement”-a statement that anyone foolish enough to get in the way of harm should be trusted to tell the truth without having to depend entirely on records of the event. I think this clause rankles VA examiners because it’s such a large hole in the M-21 scheme of things. This may be why you never see these granted at the RO level. They are invariably here on appeal  and rarely rubber-stamped with the §1154 imprimatur sooner. It certainly can’t be so difficult for VA examiners to grasp the concept of combat-unless they make no effort to investigate. Which is why you see these ping ponged back to the RO for a do over after a search of the records of where he was/MOS and how many/what type of medals.

Looking at the introduction on this one, you can see the tortured path this Vet has taken. I caution Vets against doing the DRO Hearing/Review process. There is a good reason, too. When a VARO denies you, it says they have done their due diligence and you were found lacking. Absent a really good chunk of evidence, nicely researched and meticulously assembled with glossy 8½ by 11 color photos and a good looking wife, you’re on the Shortline railroad to zerosville.  Fort Fumble is done. Through. Pack the bags and head to D.C. Hanging around another year or 15 months at the back door of HARTRO isn’t going to pay off. I don’t care if it’s hemorrhoids or hangnails.

A DRO review is like limbo and then… more limbo- in D.C. I can count the Vets I know, or have read of,  that persevered and won a DRO. They are very few-less than 15. Most were for ratings increases or dependency.

Further, you can see that Mr. Hartford  has been up to the CAVC with this, too. This is the second do over at the BVA for him. Interestingly enough, he wins. Gee, what a coincidence. We see that the whole gist of the decision here rests completely on §1154(b). That is pretty telling of one thing. It wasn’t discussed and the Vet wasn’t accorded this enhancement which is the coin flip.

The Connecticut Yankee in King Eric’s Court has been wearing his armour now since 2002. He’s got a new liver because the old one crapped out. He has a colored piece of cloth that says he’s incredibly brave under fire but it took him 10 long years to “prove” this to the vA’s satisfaction. Just because Congress wrote up this gloriously worded assurance. don’t expect our esteemed veterans Administration to honor it without a lot of hoops and hurtles. For entertainment, look at the Gomer down in California who ran for the water district board  in Podunkburg. He said he was “there” and had more medals than he could count. Everyone believed  ol’ Xavier right out of the gate.  Even with your records, the vA doesn’t!

Some of you will read this and conclude it’s a fluke. An accident. A mere misunderstanding that unfortunately festered for a decade for lack of proof that the Vet was a “combat” Vet. This is no anomaly. This is business as usual. This is classic proof of why the backlog is out the door, around the block and across the nation. The vA has spent more hours handling this, mistakenly denying it causing numerous appeals and finally granting it. Two good months of solid development in 2002 would have turned up the exact same evidence and provided the Vet justice then at a quarter of the cost. Now compound that by 1.3 million Vets and you are talking some serious work and money ahead.

If the quality of  due diligence at the VAROs has truly metastasized into the promised super raters, we should see a marked sea change. If they plod along at the pace of the  above calibre, we should expect no different.

Allow me to introduce one of America’s finest- Johnnie Vet from Hartford, Connecticut-  “real” Vet with the medals to prove it.

P.S. You can see in the remand that he’s still got a fight ahead of him on the other claims. He’ll probably have to prove all over again that he was at Hamburger Hill or even in country. We sure wouldn’t want any fakers trying to get welfare at vA, huh?

Posted in BvA HCV decisions, Inspirational Veterans, PTSD, Uncategorized, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , | 2 Comments

Nine Ways to An Earlier Effective Date

Posted on May 4, 2012 by joeaveragevet

 

 The NVLSP, through the Purple Heart, has listed at least 9 ways to win an earlier effective date, here:


http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

 

For those who would like a summary, I have provided my interpretation but would always suggest you thoroughly study the case laws suggested.

Without further ado, here are my nine favorite ways to win more retro:

.

  1. Pending Claim.  Evidence received prior to end of appeal period.

    Citation: Meeks vs West:

    “The general rule for an original claim for benefits is that theeffective date is the date the VA receives the claim or the date that entitlement “arose”, whichever is later.””Determining the date entitlement arose may be difficult.””Most advocates are familiar with one situation which may result inan earlier effective date of benefits: A claim filed years ago wasnever adjudicated by VA and remains pending; the advocate sees thatthe claim is still pending and asks VA to adjudicate the claim.”Citation: Meeks v West (Fed Cir. 1999)

  2. 38 CFR 3.156 C New Service Records, which states:

    1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

     

    (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

     

    (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

     

    (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.


    The “kicker” is that once the claim is reopened due to new service records, the Veteran is able to resubmit any new evidence.

    3 Failure of the VA to inform Veteran of time limits.  The NVLSP’s take on this is that the time limits the Veteran has (1 year to file a NOD, 60 days to file the I9) do not even start until the Veteran gets notice informing him of the applicable time limits.

    4. Informal/Inferred Claims can lead to an EED.  There are 3 elements the courts have required to qualify as an “informal claim”.   The informal claim must:

    a) “Show Intent” to seek one or more benefits.  There is a difference between “seeking benefits” and “seeking treatment” and your VA doc is likely going to assume the later unless you tell him other wise.

    b)  Be in writing.  Telling your doc something does no good unless he writes it down and puts it in your record.  Verbal “informal claims” dont cut it.

    c) The Veteran must “specify the benefit sought”.    However, remember, the Veteran is not competent to make a medical diagnosis, but he is competent to say, “My head hurts”.

     

    For the other 5 methods of winning an earlier effective date, keep reading Asknod.  

Posted in General Messages, Guest authors, Nexus Information, Tips and Tricks, Uncategorized, Veterans Law | Tagged , , , , , | 12 Comments

ILP Computer and Peripherals

Posted on May 4, 2012 by asknod

Apparently VA gets good deals on certain computers. This go around they are pushing Dells. Here’s the email from the VA’s IT guy:

Okay

Here is the computer and the extras.  I can send them in as soon as I hear back:

Computer:  Dell Inspiron 620 Intel Core i5 2320, 6 GB RAM, 1tb Hard Drive, 1GB AMD Radeon HD 6450 Graphics Card, 24 inch Monitor, Windows 7 Home Premium, Speakers, Keyboard and Mouse Combo, CD/DVD Burner, 19-1 Media Card Reader, Office Home and Business (Word, Excel, PowerPoint, Outlook, OneNote), 3 Year at Home Warranty, 3 Year McAfee Antivirus Protection, Dell V525 Wireless All in One Printer with Cable (print, copy, scan), 8 Outlet Surge Protector, 8 GB Flash Drive.

Requested additions:

Dragon Naturally Speaking Premium 11.5

Andrea Electronics ANC750U USB headset microphone

Adobe Acrobat  Professional

Microsoft LifeCam Cinema 720p HD Webcam for Business

Vertical Wireless mouse

Adobe Photoshop Elements 10

                                   M.Div., ATACP

Senior Certified Disability Analyst

Assistive Technology and Disability

I think vA is being fair here. It’s all free. I sure can’t complain on that score. We shall see if they quibble over the mouse and the web cam. That might be a reach but  you never know if you don’t ask. I’m still dumbstruck that  they granted it considering their track record on ILP. One small step for Vetkind.

Posted in Independent Living Program, VR&E | Tagged , , , , | 5 Comments

BVA–Energizer Bunny–Still Going

Posted on May 4, 2012 by asknod

From the cigarette

RO in N.C.

This decision caught my eye for a number of reasons. When I saw  the two different Diagnostic Codes employed and the cutoff date of July 2001, I knew this Vet had been at it for quite some time. This BVA decision came down in May 2011 but involves much more. The actual win occurred in 2006 and the effective date was his filing on January 26th, 2001. Way to go, vA. It only took eleven short years to put paid to this one. That assumes Mr. W-S doesn’t appeal it up to the Court. So, what happened?

Winston (no relation to Churchill) filed in 01 and fought the good fight. In just a few short years as vA measures them, he won in September 2006. Because his decision straddled two different interpretations of vA’s diagnostic codes, he was given a bifurcated decision. Everything after July 1, 2001 fell into the brand new category of HCV under DC 7354. Everything prior to that was under the old code for hepatitis (DC7345). The  codes are similar but not precisely the same. Hence the wording for 10% under 7345 differs from 10% for 7354. VA is very anal about these things. As an aside, the law says the Vet is entitled to the best interpretation of the rating under whichever code is more beneficial to him.

Additionally, our Vet is contesting this as a Fenderson staged rating. He actually thought he had a 20% rating which the VLJ is careful to discredit. He has an extensive medical record on this which threw me for a minute until I spotted the fact that he is a quadruple amputee. He probably gets regular medical attention for that alone.

What I see is a contrived situation that carefully uses what W.-S. didn’t say more than what he did say. vA has a propensity to do two things. When you see one of their personal care physicians (PCPs), they often throw their hands up if you broach the subject of HCV. The feeling is that this is handled by your assigned Hepatologist or Gastroenterologist. They have no interest in discussing it. So, for the medical record touted here in the appeal to have any pertinence, it would have to be in the context of it being before said specialist. If it were before a PCP, Winston wouldn’t be discussing  right upper quadrant pain, malaise, nausea, emesis, anorexia, weight loss and other various symptoms. He might be discussing the flu or abrasions from his motorized wheelchair.

I will give you all some valuable information I have observed over the last four years on this. If you do not mention something specifically to a doctor, they don’t write it down. They’re lazy. That’s why I always type up a problems list and hand it to them when I go in. This serves a dual purpose. They have to deal with it and it makes sure you get it all into the record. I’ve discovered later that I forgot to mention something and by then (two weeks) it’s too late to add it in. As you can see here, the VLJ gloms onto one thing- the fact that our erstwhile Vet did not mention these ailments. This is the age old vA ploy that no evidence of something is dispositive of it ever having happened.

Consider these:

There were no current complaints of abdominal pain or distention.

A March 2005 VA treatment note reflects that the Veteran was doing well with no episodes of abdominal pain, nausea, or vomiting, and no weight loss. Similarly, he reported no complaints in a June 2005 treatment report.

In April 2006, the Veteran denied abdominal pain, nausea, vomiting, diarrhea, and constipation.

A June 2006 VA treatment note reflects that the Veteran has been undergoing liver transplant evaluation. He denied abdominal pain, nausea, vomiting, diarrhea, and constipation.

A June 2007 VA treatment note reflects that the Veteran was doing well with no significant fatigue, abdominal pain, or increase in abdominal girth.

A November 2007 VA treatment note reflects no specific symptoms, the Veteran denying abdominal pain, nausea, vomiting, diarrhea, constipation, and weight loss.

A January 2009 VA treatment note reflects complaints of intermittent abdominal discomfort. There was no distention, jaundice, nausea, or vomiting

A July 2009 VA treatment note reflects that the Veteran was without problems of liver-related complaints. Specifically, he denied fatigue, nausea, vomiting, and abdominal pain.

Okay. You get the picture. The man is a glowing picture of health and suffers none of the debilitating symptoms associated with this illness. To say he denied them is disingenuous. If someone doesn’t mention symptoms, that cannot be construed as denying them. vA often uses this method to construct a scenario whereby you are good to go. What might be more à propos would be to couch it in terms such as “When queried as to symptoms such as malaise and nausea, the Veteran denied them”.

vA also has a regulation that says if you suffer some of the symptoms some of the time and they more closely approximate the higher rating, it is permissible to grant that rating percentage.

 38 CFR § 4.7

Higher of two evaluations.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.

With that in mind, go back and consider these:

March 2004…The Veteran reported more diarrhea with this course of treatment, as well as GERD (gastroesophageal reflux disease), nausea, and sinus congestion.

 November 2004… Veteran testified that he had GI problems every two weeks and that he was tired all the time.

A September 2005 VA examination report reflects a history of active hepatitis C that had turned into cirrhosis, and which appeared to be fairly stable. The Veteran reported some nausea and occasional vomiting. 

A June 2006 VA social worker transplant assessment reflects that the hepatitis C treatment affected the Veteran’s activity level.

A December 2006 VA treatment note reflects complaints of nausea related to some foods

A May 2007 endoscopy consult noted burning in the esophagus area, with a provisional diagnosis of gastroesophageal reflux disease (GERD)

Well, GERD isn’t HCV so we have to toss that one out. But wait. Anything of or having to do with the intestinal tract is implicated where HCV is concerned. If it is not specifically ruled out, it is part and parcel of the HCV process.

A March 2008 VA treatment note reflects that the Veteran was doing well considering his overall health, but he was experiencing intermittent abdominal pain and occasional spells of dysphagia

A June 2008 VA treatment note reflects that the Veteran was doing well and that the abdominal pain had improved somewhat with medication.

This one is important because the VLJ implies he isn’t using any medications to control his symptoms.

An October 2008 VA emergency department note reflects that the Veteran remained positive for hepatitis C.

What, pray tell, was he doing in the Emergency room? There is no answer to that.

A January 2009 VA treatment note reflects complaints of intermittent abdominal discomfort.

A May 2009 VA short stay unit note reflects complaints of nausea and vomiting but the note indicates that they were due to an ultrasound guided liver biopsy.

I’ve had two biopsies and never puked. This is pure hogwash and speculative conjecture. If you do not address these things you can see how they are used against you. Just as an offhand remark about drugs can spiral into an accusation of polysubstance abuse, so too can an uncontested statement about the cause of a malady.

If you try to have a meaningful medical relationship with vA as your primary care provider, you must realize that they view you as a potential lawsuit/claim looking for a place to happen. Much like the proverbial “slip and fall” Safeway claimant looking for a cash infusion, vA marginalizes anything you complain of. Failure to complain is listed under a default setting  as in “claimant denies.”  With this in mind, when you visit, you must either be specific in your description of your ailments or provide a list they cannot blow off. When you give them the list they can hardly say you denied it.

I’m sure when Winston read this he was appalled to find out just how healthy he wasn’t. The record shows he’s preparing for a transplant. This is not done for those of us who are healthy, active, vibrant and full of the zest for life. I do know some of us men are guilty of braggadocio and would hate to evince any weaknesses. I used to be guilty of that until I read some of the above in my records. I have become proactive in this respect now. I retrieve my records from ROI as soon as possible and examine them closely for those “patient denies”.

Let this be an instructional how to in how not to do it. Winston didn’t show up for all these appointments because he was hitting on all eight cylinders. The mere fact that they’re preparing to R&R his liver is proof positive that he’s not going to participate in the Special Olympics for differently-abled paraplegics. Swimming three times a week does not imply you’re the picture of health. It most likely is prescribed therapy for his paraplegia.

Winston’s 11 year Odyssey.

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