Squidly’s HCV SSOC

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”.

Posted in Nexus Information, Tips and Tricks, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , | 8 Comments

0700 in Seattle

It 0700 in Seattle.

Do you know where the

Easter Bunny is right now?

If I could chose to paint my vehicle one color this would be it.

Happy Easter.

Posted in General Messages | Tagged , , , | 3 Comments

SATURDAY’S WANING THOUGHT

 We married men should be

allowed to put our shortcomings

aside. There is absolutely nothing to be

gained by two people in the same household

remembering all this and one digressing on it constantly.

Posted in General Messages, Humor | Tagged , , , , | Leave a comment

GULF WAR POSTER CHILD

It’s the Soldier, not the reporter

Who has given us the freedom of the press.

It’s the Soldier, not the poet,
Who has given us the freedom of speech.

It’s the Soldier, not the politicians

That ensures our right to Life, Liberty and the Pursuit of Happiness.

It’s the Soldier who salutes the flag,
Who serves beneath the flag,

And whose coffin is draped by the flag.

Happy Easter from the

Asknod Home for Wayward

Pets & Vets.

Posted in All about Veterans, Gulf War Issues, Inspirational Veterans | Tagged , , , , | Leave a comment

CAVC–MORRIS v. SHINSEKI

I always admire Vets for going it alone. Here, Mr. Kenneth L. Morris has chosen to go all the way up the ladder to the CAVC for justice. The problem is that his grasp of law is deficient. When we assay to defend ourselves it is a given that we have all the proper documents and diseases before proceeding. Mr. Morris lacks the latter to the detriment of his claim as we shall see.

Mr. Morris and I share something in common. We both had hepatitis at the same time albeit in two different places. His was in-country and mine wasn’t. I was up -country at the time. I will leave that to your imagination as to where. Mr. Morris was also very sick as was I. This was usually an indicator of  HBV rather than HAV but there was no way to conclusively identify it until 1972 and the advent of the Australian Antigens test. This test conclusively determined if it was HBV. If it was negative, medical honchos surmised it was A. This was before the advent of any tests for HCV but that is not what Mr. Morris complains of.

Mr. Morris was so ill they air-evac’d him to Camp Zama back in Japan. From there it was back to the States for additional treatment and a discharge. This was abnormal for someone to be sent back. Most, like me, recuperated and were back in the field in 6 weeks. Mr. Morris went on about his merry ways and nothing more was heard from him until he filed for the hepatitis, hypertension, heart disease and PTSD. Some were denied and others were still in development when this came to the Court. As such, the Court will only deal with the issues which are appealed from below.

Mr. Morris complains that the hep has ruined his life but he doesn’t actually say how. HAV and HBV are different from HCV. The former are not considered chronic although HBV can be if the individual has autoimmune deficiencies that prevent the body from successfully conquering it. This is not the case here. Mr. Morris has no antibodies present that would indicate an ongoing chronic infection of any sort. Merely having a disease in service does not automatically allow for claiming it afterwards. Certainly there are exceptions, such as mine where the doctor felt coinfection of both HBV and HCV occured at the same time. Kenbo has no such problems and that is why his claim fails. I won’t go into the hypertension because that is not an issue I am conversant with.

The teaching moment is rather simple. Three things are required to file and win a claim. A disease in service or a risk for same, a current chronic infection of the same, and a nexus letter tying the two to each other and service are prerequisites for this. The VA was honest on this rare occasion and fully well admitted he had HBV in 1971. What they argued was that Kenny didn’t have it now. As for his argument that they didn’t bother to find a Camp Zama hospital orderly (Larry Knight) who was there in 1971 is immaterial. Trying to claim a due process violation for an acute disease process is like peeing into the wind. You gain nothing.  Mr. Morris has learned a valuable legal lesson and consumed much in the way of legal resources which are in high demand by other Vets. While I will not raise the “selfish” argument, I will point out he should have done his homework on the disease process before pushing “print”. This information is available to all on the internet so it cannot be said that he had  no avenue to scientific tomes on the subject.

Mr. Kenneth L. Morris’ unavailing argument for HBV SC:

Click here then enter   10-3699 in the search bar.   Then click the blue Download in the upper left to view normally.

Posted in CAvC HCV Ruling, Frivolous Filings | Tagged , , , , , , , , , | 6 Comments

More Snappy Answers To Stupid Questions

If you ever testify in court, you might wish you could have been as sharp as this policeman. He was being cross-examined by a defense attorney during a felony trial. 

The lawyer was trying to undermine the police officer’s credibility …..

Q: ‘Officer — did you see my client fleeing the scene?’ 
A: ‘No sir. But I subsequently observed a person matching the description of the offender, running several blocks away.’

Q: ‘Officer, who provided this description?’ 
A: ‘The officer who responded to the scene.’

Q: ‘A fellow officer provided the description of this so-called offender. Do you trust your fellow officers?’ 
A: ‘Yes, sir. With my life.’

Q: ‘With your life? Let me ask you this then officer. Do you have a room where you change your clothes in preparation for your daily duties?’ 
A: ‘Yes sir, we do!’

Q: ‘And do you have a locker in the room?’ 
A: ‘Yes, sir, I do.’

Q: ‘And do you have a lock on your locker?’
A: ‘Yes, sir.’

Q: ‘Now, why is it, officer, if you trust your fellow officers with your life, you find it necessary to lock your locker in a room you share with these same officers?’ 
A: ‘You see, sir, we share the building with the court complex, and sometimes lawyers have been known to walk through that room.’

This is the art form I would love to have for DRO Hearings.

Posted in General Messages, Humor | Tagged , , , , | Leave a comment

The Oil Crisis

A lot of  folks can’t understand how we came  to have an oil shortage here in our country

Well, there’s a very simple answer.

Nobody bothered to check the oil.

We just didn’t know we were getting low.

The reason for that is purely geographical.

Our OIL is located in:

Alaska

California

Coastal   Florida

Coastal Louisiana

Coastal Alabama

Coastal Mississippi

Coastal Texas

North  Dakota

Wyoming

Colorado

Kansas

Oklahoma

Pennsylvania

And Texas

Our dipsticks are located  in DC

~~~

Any Questions?

Posted in General Messages, Humor, Uncategorized | Tagged , , , | 1 Comment

Extraschedular Rating Granted

Member Loyal sent this one in. It’s a 2012 decision, too. It’s very unique for two reasons. The first being the Director of Comp. and Pensions denied the Vet  for the extraschedular and then the VLJ promptly overturns the decision. This is rarer that a faery Blue moon with 8 rings around it.

Here’s a piece.

Conversely, the Director of Compensation and Pension found that the evidence did not demonstrate the Veteran’s service-connected PTSD was more disabling than the 50% assigned under the schedular criteria and there was no exceptional or unusual disability picture that rendered the schedular criteria inadequate. He further found that the evidence did not establish that the Veteran is unemployed and unemployable due to service-connected disabilities. However, because the Director provided no rationale in support of the opinion, it appears to be conclusory. We therefore afford that opinion relatively low probative value. 

In addition, it is observed that the evidentiary record documents the Veteran’s complaints pertaining to a non-service-connected back disorder and he has, at times, expressed concern about his ability to work due to his back and leg pain such as in a June 2002 treatment record. However, it is notable that the Veteran’s treating psychiatrist specifically wrote in a past October 2000 treatment record that the Veteran’s psychiatric and physical (i.e., recurrent and chronic back pain) complaints were intertwined and inseparable. Similarly, the Veteran’s orthopedist wrote in a March 2003 treatment record that most of the Veteran’s reported symptoms were a manifestation of his psychiatric disability and he definitely needed to follow-up with his psychiatrist regarding such complaints.

Further, the Veteran is shown to have been diagnosed with psychiatric disorders other than PTSD by mental health professionals at various times relevant to the claim/appeal period, which are not service-connected. However, as it relates to psychiatric symptomatology attributable to these nonservice-connected psychiatric disorders for which the Veteran is currently diagnosed, the Board notes that it is not always clearly distinguishable which symptoms are attributable to the service-connected PTSD with insomnia or otherwise to a non-service-connected psychiatric disorder. For example, the October 2006 VA PTSD examiner specifically wrote that many of the Veteran’s PTSD symptoms overlapped considerably with major depression. Therefore, the Board has considered all of the Veteran’s psychiatric symptoms and diagnoses as part of his service-connected psychiatric disability in reaching its decision regarding entitlement to a TDIU. Mittleider v. West, 11 Vet. App. 181, 182 (1998).

Thus, upon consideration of the foregoing, the Board resolves reasonable doubt in favor of the Veteran in finding that he is unable to secure and follow a substantially gainful occupation by reason of service-connected PTSD. Giving the benefit of the doubt to the Veteran, the Board finds that he is entitled to an award of TDIU on an extraschedular basis. 38 C.F.R. §§ 4.3, 4.7. 

 Vet wins w/ extraschedular

You can send thank you letters to:

ANDREW J. MULLEN
Veterans Law Judge, Board of Veterans’ Appeals                                                                        810 Vermont Ave. NE                                                                                                             Washington, D.C. 20420

Posted in BvA Decisions, PTSD, TDIU, Veterans Law | Tagged , , , , , , , | 3 Comments

HCV AND PROPER EXCERCISE

Several of my friends with HCV are coming out of their caves after a long winter’s hibernation and I worry about them. They just aren’t getting a suitable level of exercise. I have been rading up on this and have the most excellent regimen.

Begin by standing on a comfortable surface, where you have plenty of room at each side.

With a 5-lb. potato bag in each hand, extend your arms straight out from your sides and hold them there as long as you can.

Try to reach a full minute, and then relax.

Each day you’ll find that you can hold this position for just a bit longer.

After a couple of weeks, move up to 10-lb. potato bags.

Then try 50-lb. potato bags and then eventually try to get to where you can lift a 100-lb. potato bag in each hand and hold your arms straight for more than a full minute.  (I’m currently at this level.)

After you feel confident at that level, begin by putting a few  potatoes in each bag . Don’t try to approach this too rapidly. Build up to it slowly so as not to be disappointed if you hit the wall going from the 50-lb. bags to the 100-lb. ones. 

Posted in HCV Health, Humor, Medical News, Uncategorized | Tagged , , , , | 4 Comments

Thursday Thought

Albert Einstein, God rest his soul, gave us this durable proposition.

Everybody is a genius.

But if you judge a fish by its ability

to climb a tree, it will live its whole

life believing that it is stupid.

Posted in General Messages, Uncategorized | Tagged , , , | 2 Comments