Veterans Claims Help

Squid sent this over today. My, what a fine piece of judicial work. Although Squidly was waiting for his nexus letter to arrive, I counseled him to get this on the road to D.C. via a Board hearing. We both rationalized that his claim was going nowhere in the Podunk EBE they call a RO there.

What is apparent is that VA still hasn’t gotten the message from the CAVC on Layno (use of 5 senses to confirm lay testimony) and all the jurisprudence that discusses no evidence being negative evidence is a Bozo No-No. They have even resorted to the old school method of looking for a 1967 Ford Mustang in a junk yard in 1946. Ain’t gonna happen. VA knows good and well by now that there was no commercial test to diagnose HCV infection until 1992 yet they insist that lack of same is definitive proof that he didn’t have it in 1984.

Reading down in the Reasons and Bases of the denial on Page two requires a lot of faith that the wind was blowing just so, the EMG needles were clean and sterilized in 1982, the Dentist was extremely more hygienic than his peers, the razors used in shaving were clean as a whistle, that administrative personnel were in the habit of recording accidental cuts from said razors in military rather than medical records and last but not least, that old Squidly is actually quite functional. Where the Hell did that come from? As for a HCV 2B genotype infection having a “good prognosis”,  somebody’s been smoking some really, really strong left-handed tobacco. This nexus must be from the “People actually can live with this virus and go on to lead productive lives” school. VA would have Squidly believe he is good to go and those nasty ASTs and ALTs are just a minor acute aberration that will resolve in time. They’re partially right. The numbers will go way down when he hits Stage 4 cirrhosis and the portal hypertension kicks in.

This can and will be rebutted in a good nexus letter. The VA has regressed back to the early days of the 21st Century to churn this one out. The only thing truly unique is the EMG needles. I doubt VA has seen this novel defense yet. When taken in conjunction with the 2B genotype and Squidly’s posting in Japan at that time, it is a benefit  of the doubt argument that weighs heavily in his favor. Unfortunately this won’t happen at the RO. They have their marching orders to boot anything with the words airgun, jetgun, pneumatic air injection, Pedojet, Munji, etc. upstairs to D.C. In the early days I suggested Vets focus on the salient risks that were obvious. As the jetgun defense became more familiar, I started suggesting Vets include it in their claims. I wouldn’t have counseled Squidly any differently than what he did here. I doubt omitting  it would have changed the outcome, though. VA is desperately trying to blow out this trick candle on the birthday cake but it keeps relighting. It’s not going to go out as a risk no matter how desperately VA tries to blow on it.

The VA examiner tries to take the well-know tack that ” You do not have a history of any well-known risk factors for HCV and your liver transaminase levels started to elevate in 2009.” What he/she is trying to imply is that Squid just got this bug recently and that’s why the AST/ALT went through the roof. We all know, with or without any medical acumen, that this is the beginning of the liver endgame, not the beginning of the infection. VA has chosen to interpret it to their advantage. Did anyone expect them to opine otherwise?

This should not come as any surprise to you who are active claimants or thinking of filing. It demonstrates the depths of deception VA will go to in order to deny the claim. If they cannot produce evidence to rebut the claim. They resort to the old “Look, ma! No HCV in 84. Proof positive it never occurred in service”. The 2B and the EMG needles will put paid to it with a definitive nexus as I mentioned earlier. The shame is that this will simply put off paying Squidly for several years until he wins on appeal. That much is patently obvious on its face.  The crime here is the “denial at all costs” mentality. Nobody will be punished for this. No one’s promotion will be jeopardized. Quite the contrary. Were the Examiner to rule in his favor, he/she would face a good tongue lashing and a demand for a do over based on VA CUE. Business as usual in EBE.

Here’s Squidly’s Supplemental Statement Of the Case (SSOC). I often refer to these as the “What part of No don’t you understand (part 2)”? Part 1 is the SOC.  Had he gone through a DRO review, he’d have seen this in April- April 2013 that is.

I always get a big bang out of them throwing in the 38 CFR §3.303(b) in there at the end as if that was the last word on nexus or law. The only law the RO practices is the law of “Get Lost”.