FED.CIR. Akers v. Shinseki–Informal Claims?

Posted on March 27, 2012 by asknod

Much has been bandied about on the subject of informal claims over the years. The  subject became so contentious, VA was forced to amend its own definition  in 1987. I’m sure we haven’t heard the end of it. Vickie Akers will be one in a long line of claimants who approach the bench with what they feel are genuine informal claims. I see Kenneth Carpenter’s legal reasoning here, but I feel it is flawed from several perspectives, the very least being the untimely filing of the Form 9 sixty-seven days late. In my mind, equitable tolling is an immutable law like the speed of light. All the time limits are clearly published. SOCs include the “Don’t miss this important date” information. If anything, this more clearly illuminates the dangers of being pro se in a shark pool. If you are unknowledgeable  on the process, leave it others who are. So, what light can 38 CFR § 3.155 shine on this…

38 CFR 3.155 – INFORMAL CLAIMS.

(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.

(b) A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

(c) When a claim has been filed which meets the requirements of § 3.151 or § 3.152, an informal request for increase or reopening will be accepted as a claim.

[26 FR 1570, Feb. 24, 1961, as amended at 52 FR 27340, July 21, 1987]

James D. Akers punched out February 12th, 2002. He was SC for 100% PTSD but the ROA does not state whether that was a protected rating of over ten years. There’s a big difference where DIC is concerned. Dying from anything other than PTSD- related issues within the first ten years gets the widow/er nothing. As it is a mental disorder, there are not many things that can provoke such a diagnosis. The one most often used is a drug addiction or disease such as HCV secondary to the bent brain syndrome. None of these were operable here or if they were, the record is silent.

Mrs. Akers promptly filed for DIC that same month. Not unexpectedly (from our standpoint), she was denied by her RO in June or July 2002. The ROA mentions both months. This seems like a miracle that any RO could act so quickly in assembling the facts and shooting her down. Too bad they can’t adjudicate things that rapidly nowadays.

In February 2003, approximately a year after filing the original claim, Miss Vickie filed her NOD. In short order again, the RO mailed her back her SOC on May 9th, 2003 asking her what part of “No” she didn’t understand. As usual, in no uncertain terms, on the Form 4107 it informed her she had sixty days in which to act in order to preserve her right to appeal. That the VA was able to get this decision out to her in a timely manner is notable. In the legal world, time is often of the essence. It was no different here. Just because she was taken aback by the novel timeliness of VA’s response, it did not give her license to dawdle in returning the Form 9.  Nevertheless, dawdle she did-until September 16, 2003. As this was sixty seven days past the mandated July 9th, 2003 suspense date. the appeal was untimely. Her claim was DOA. The legal definition of untimely varies with your and my interpretation. Having an attack of audible flatulence in church is untimely but excusable. Missing your court-appointed date by sixty seven days is unfortunate but inexcusable. Thus, rightfully so, on October 3rd, 2003 Mrs. Akers was dutifully informed of the untimeliness of the Form 9. Ever helpful as only those wascally wabbits can be, they told her she was free to reopen this claim at any time in the future if she so desired.

The sun rises early in July and it did so again on the 24th in 2004. Vicki was hard at it again and submitted a new Form 21-4138 requesting to reopen the old DIC shootdown. VA  toggled the red light and gave her the wave off/go around which seems to be the standard approach pattern in this day and age. After some quick and fancy footwork and the proper submission of what I strongly suspect was evidence in support of her claim which she’d had in her possession prior to the original denial, she was granted DIC. The problem in her mind was the effective date. July of 2004 wasn’t going to cut it. She’d filed in February of 02 and that was the correct date in her mind. We cannot see when she obtained the services of Mr. Kenneth Carpenter, VA attorney extraordinaire, from the record, but I assume it was about this time or shortly thereafter.

With the ink still wet on her new DIC grant, she dashed off a new NOD protesting her effective date. We’re talking $1000.00 + a month which equates to about $ 29 K. While that is not a kingly sum, she felt it was well worth the fight. In D.C. they eviscerated her arguments. She really didn’t have any of substance other than a vague feeling that she had been shat upon. We all feel that uncleanliness when dealing with the VA so that is a non-starter. Here’s where the argument goes astray.

The Court stated that in order for the September 2003 F-9 to have any import as a timely legal document ( read informal claim or better yet, a reopening of the old one) it would need to have supporting new and material evidence attached with the filing to make it ascertainable as to whether it could be construed as  either one of the two. No one at this stage was going to entertain the tired idea that it was still some orphan F-9 waif in search of a substantive appeal home.

Her arguments before the Court fell flatter than a cheese souffle at a 3 year old’s birthday party. Gee, no surprise there. What happened next is.

Off to the next legal bus stop- the 3rd Federal Circuit. This arcane legal institution across the street from the VA is where our claims land if we feel the Court has erred. Vicki, and by extension Kenneth, felt this was in order. The legal argument began to metamorphose from one of  a denial of EED due to BVA shenanigans into one of misreading the old F-9 as a cry in the night for an informal claim… or perhaps a reopening?

 Akers also argues that the Veterans Court committed a second error of law by failing to address Akers’s contention that her Form 9 submission constituted an informal claim to reopen her previously adjudicated claim pursuant to 38 C.F.R. § 3.155. According to Akers, the Veterans Court’s misinterpretation of section 3.156 caused it to reject Akers’s interpretation of section 3.155 sub silentio. Akers states that it is an undisputed fact that prior to her Form 9 submission she had expressed the intent to apply for benefits. Akers further argues that it is undisputed that DVA understood the identity of the benefit Akers was seeking from her Form 9 submission. Thus, according to Akers, it is a question of law based on undisputed facts whether her Form 9 constituted an informal claim to reopen her previously adjudicated claim.

DVA argues in the alternative that to the extent that the Veterans Court interpreted sections 3.155 and 3.156, it committed no reversible legal error. According to DVA, the Veterans Court did not base its holding on a categorical rule that no claim to reopen will ever be recognized absent simultaneous submission of new and material evidence, but rather that such evidence would have been necessary on the facts of this case. DVA also argues that the Veterans Court’s reference to Akers’s lack of intent to reopen her claim proved that the Veterans Court had applied the correct interpretation of section 3.155. Akers v. Shinseki  F 3d. 2013

If we just analyze the validity of the argument as to whether the Form 9 should have been a belated attempt to “reopen” her DIC claim and inadvertently submitted on the wrong form, it still must pass the the 38 USC § 5108 test.

Reopening a claim

It’s damn hard to argue in a court of law that the CFR doesn’t specify you need to submit N&M evidence to get the ball rolling when the statute it is predicated on says

 If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

In the alternative, the language of informal claims still requires some form of plea for such.  The VA is remiss in many things including prescience. For an informal claim to be adduced from a late substantive appeal filing isn’t so much a leap of faith as it is a misunderstanding. Given that Mrs. Akers got the formal SF 4107  “if you’d like to reapply, we’ll be here from 0800 to 1630 hrs Monday through Friday” its hard to discern the absence of any reopening/ informal claim phrase in the document. I find the VA to be dishonest and anything but forthright. Don’t mistake this paragraph as an endorsement of their behaviour. It is a rational analysis of the circumstances without slanting it for or against either party. Trying to change your argument at the Fed. Cir. and say a late F-9 was, well, like, you know, actually just an informal claim usually won’t fly. Perhaps the error was sending in her informal claim printed up on a Form 9.

Here is the meat of this whole argument. I will put the links in at the bottom to each of the mentioned cases of this decision because it shows the evolving process of what does (and does not) constitute this confounded slippery “informal” business.

The requirements for submitting an informal claim are generally established by 38 C.F.R. § 3.155(a), which provides in relevant part that “[a]ny communication or action, indicating an intent to apply for one or more benefits . . . may be considered an informal claim.” This court has held that to qualify as an informal claim, a communication must: (1) be in writing; (2) indicate an intent to apply for benefits; and (3) identify the benefits sought. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Further, 38 C.F.R. § 3.155(c) expressly recognizes, in the context of a claim for dependency and indemnity compensation, that “an informal request for . . . reopening will be accepted as a claim.” See also Tetro v. Principi, 314 F.3d 1310, 1312 (Fed. Cir. 2003) (reciting that claim-ant “had filed an informal claim to reopen”); Sagainza v. Derwinski, 1 Vet. App. 575, 579 (1991) (recognizing an informal claim to reopen previously adjudicated claim). Relevant to this case is the recognition that “statements cannot constitute informal requests to reopen . . . [if] they fail to demonstrate an intent to reopen a disallowed claim.” King v. Shinseki, 23 Vet. App. 464, 469 (2010), aff’d by King v. Shinseki, 430 F. App’x 890 (Fed. Cir. 2011). Akers v. Shinseki  supra

Rodriquez v. West

Tetro v. Principi

Sagainza_90-760

King v. Shinseki (Fed Cir)

So, this is where we are this week with informal claims. As I mentioned the book is still being written. Vicki Akers’ decision is not  a true rendition of an informal claim no matter how she and Mr. Carpenter try to characterize it. It is an abysmal attempt to put lipstick on an F-9, powder its nose and send it out as a beleaguered attempt at a judicial redo rather than a late filing. In any event, Mrs. Akers, under this last gasp reopening theory, would be entitled to ten months of DIC from September 16th, 2003, not all the way back to her original filing date of February 2002. I just don’t see how Mr. Carpenter could see any daylight under this door.

Miz Vickie goes to DC

Posted in Fed. Cir. & Supreme Ct., PTSD, Veterans Law | Tagged , , , , | 4 Comments

Sick Monday Humor

Posted on March 26, 2012 by asknod

More Friday morning humor along the same line…

I walked into a drug store and asked to talk to a male pharmacist.
The lady I was talking to said that she was the only pharmacist and as she and her sister owned the store, there were no male employees. She then asked if she could help me.

I said that it was something that I would be much more comfortable discussing with a male pharmacist.
The lady pharmacist assured me that she was completely professional and whatever it was that I needed to discuss, I could be confident that she would treat me with a high level of professionalism.

I then agreed and began by saying, “This is tough for me to discuss, but I get erections every day that last more than four hours. It causes me a lot of problems and severe embarrassment, and I was wondering what you could give me for it.”

The pharmacist said, “Just a minute, I’ll talk to my sister.”

When she returned, she said, “We discussed it at length and this is the absolute best we can do: 1/3 ownership in the store, a company pickup truck, room and board, a king size bed, and $3,000 a month in living expenses.”

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

When Autoimmunity quits working.

Posted on March 26, 2012 by asknod

I am sick. Mega sick. Not from some Hepatitis secondary for which I thank God, but sick as in a cold from hell. All this wonderful dieting to bring my liver numbers down has come home to roost. I had the flu in 2000 and that was it. Surely there were other illnesses before, but this was a milestone for sickness. As my autoimmune processes ramped up, nothing could get a grip on me. I could go into a Leper’s ward and lick their hands. No dice. I could visit my grandchildren with all the diseases of the week and laugh with abandon.

With the change in diet, my liver became happy. My numbers came down like a drunk’s in detox. I didn’t check but I’m willing to believe the croyoglobulinemia numbers went down , too. It seems my autoimmune system is tied to liver distress. It would explain why I have AIH.

My son came back to visit for Spring vacation and brough the remnants of some horrible cold/bug disease he couldn’t shake. I came down with it Friday. As usual, I figured the tickle in the throat was the harbinger of nothing. Saturday changed all that. It’s Monday and I’ve discovered every muscle in my body has seized up. Someone backed a concrete truck up to my sinuses and poured 6-sack, 4  inch slump in. A jackhammer can’t dislodge it, nor can Mucinex A,B, C or D. What’s with that name? Mucinex? Did they run that by a test group for name-acceptability?  Sounds like something the Frogs would choose. Je voudrais te presenter Mucinex. Il est tre bon pour le sinusite maxillare. How about Snotex if you want to travel that path?  Snot-be-gone? Ewww. The only cure is a Blue Hawaiian. That’s a shot of Stoly with a Nyquil chaser. Cupcake says those are not “liver-friendly” which means I’m going to be eating yucko cough drops from a health foods store with Heaven knows what inside.

Suffice it to say I don’t feel well and don’t write well when I’m in this condition. I apologize for being politically correct today. I’ll try to get well and become obnoxious again as soon as possible.

Posted in Complaints Department | Tagged , , , | 2 Comments

Footlocker 7

Posted on March 24, 2012 by asknod

Check this out. Every time we hopped a ride down to Udorn from LS 20-Alternate  for smokes and a beer/Scotch run, I’d leave my “issue” Model 39 9 mil in my wall locker in the hootch. I carried a Model 19 w/ JHPs  under my shirt.   When we departed again on the klong flight back up, I’d zip into the big warehouse there at the AOC  and grab a new one and a holster. They had crates of the these and Browning Hi-powers, too. I sent a bunch  of them back to my sister that Fall and told her to put them away. I gave them to all my friends when I got back and managed to keep one. This is a real NIB. It was clean and has a low (87XXX) number.  Nobody liked them. Who’d trust their life to a seven-shot semi-let alone a 9mm? It’s like a Vespa. They’re fun to ride but you wouldn’t want your friends to see you on one.

A forty two year old virgin- and liable to remain one.

Posted in From the footlocker, General Messages, Humor, Uncategorized | Tagged , , , , | 4 Comments

Erroneous DD214

Posted on March 24, 2012 by asknod

2000px-Seal_of_the_US_Air_Force.svgWhen you leave the military, one document is supposed to be free of any errors. It must be perfect in every respect for future employers and the VA to confirm your history. Every medal, every duty assignment and type of discharge are checked and rechecked-or not.

I was roaming around the internet and found my old  outfit I spent two years with except for a brief period working for a civilian airline. They list that under “other service for 1 month and 14 days. Right there in bold arial script, I find I was awarded the Outstanding Unit citation with Combat “V” device for valor three times. Additionally, my Vietnam Service medal should have six (one silver and one bronze) battle stars for the six offensives we supported. The Vietnam Campaign Medal and Gallantry Cross w/ palm are also absent. My Small Arms Expert Markmanship Ribbon is similarly AWOL. In fact, the NDSM is the only one showing on my 214. We called that the “Battle for Lackland” medal as in Basic Training. The box for Vietnam is checked “no” and not one duty station is listed.

Nod’s outfit

 Misplaced medal

If a body didn’t know any better, they’d surmise I joined and four years later turned around and got out of Basic without leaving San Antonio. I have debated getting my pseudo-PTSD General Discharge upgraded to an Honorable and I figure I could swing it after forty years. Except for the midnight streaking ticket at Green Lake Park in downtown Seattle in  August 1974, my record is squeaky clean. You have my word on it.

PS

Here is the deficient 214. I’m sorry I didn’t post it earlier but this is Gun Show day at the fairgrounds. You meet the nicest people there. In fact, a man agreed to give me $50 off a nice S&W Mod. 19 as a Veterans’s discount. It was 10%- just like Home Depot.  The thing looks like it’s NIB and the only drawback is the Pachmeyer grips instead of the rich furniture on the one I had in SEA.

As for the 214, I had to get the original onion skin out of the safe and copy to sanitize it. I guess I never really read it that closely because it does say “Indochina–yes” and reflects I spent two years overseas.

(Put your arrow on it and click to magnify)

I guess I didn’t have to black out my top secret clearance. Maybe I’m too paranoid.

Here’s something they don’t make anymore! DD 257s. Now they just write it on the DD 214. What the hey? I think it’s suitable for framing. They also discontinued the DD258 (Big Chicken Dinner)  and the DD259 Dishonorable Discharge certificates. When you get booted, it’s always nice to have something framed that Mom can hang on the wall. Sort of like a certificate of participation where you behaved most of the time.

P.S. on the 214, note the “SPN” code (AF used SDN) in Box 11. c. 265 is for “Unsuitability, character disorder”.  Roger that.

Posted in All about Veterans, From the footlocker, General Messages, Humor | Tagged , , , , | Leave a comment

Wet T-Shirt Contest Winner

Posted on March 24, 2012 by asknod

Get serious. This is a Grandpa and Grandma oriented site. This has happened to me so I felt it was appropriate to post.

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

Friday’s Last Thought

Posted on March 23, 2012 by asknod

Waiting for remuneration from the vA

makes Veterans a pauper twice–once

while waiting interminably for service

connection and then a second time

when they discover the horrible

financial truth of what they are going to

be forced to live on for the rest of their

lives. Death on the battlefield or at one’s

own hand almost sounds like a better

fate to some. J1Vo

 

Posted in All about Veterans, General Messages, PTSD, Uncategorized | Tagged , , , | 1 Comment

bVA–NHL= HCV

Posted on March 23, 2012 by asknod

Whoa there, doggies. For all you guys from Michigan, back up the boat. NHL stands for Non-Hodgkin Lymphoma.  We don’t do sports or politics here.

Non-Hodgkin Lymphoma

Two things catch your eye about this. First,  the correlation between the two diseases seems to be a reach. More importantly, the Introduction is the eye catcher. Remember I have frequently commented on the fact that most claimants who appeal to the CAVC are never heard from again?  vA  would say that’s because they realized that their claim had no merit so they abandoned it. Read this closely. The Vet is asking for a redo all the way back to the RO. The VASEC has decided to quit burdening the RO with this and move on to the next denial. Here is proof-positive that my theory holds water. Not only is his claim being granted, the BvA is interposing itself and granting without the additional trip back down to LARO. The fix is in. This doesn’t happen if the CAVC orders it to be vacated and remanded . The rules say this has to go all the way back to the AOJ for a de novo decision. The BvA appears to be bogarting it. This has the heavy hand of someone with a lot of power. Either that, or someone just donated a shit ton of money to Obama’s Re-Election Campaign Fund.

The issues on appeal were previously denied by the Board in a November 2007 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2010 Order, the Court vacated the November 2007 Board decision due to the Board’s failure to consider and discuss an October 2007 private medical report, and remanded the matter back to the Board.

The Board notes that in a June 2011 statement, the Veteran requested that this matter be remanded to the RO for review of newly submitted evidence prior to the Board’s consideration of the matter. However, as the claims on appeal are being granted, the Board finds there is no risk of prejudice to the Veteran from proceeding without first returning the matter to the RO. 

Moving on, we have an interesting decision here. vA and medical science have always been in contention on ionizing versus non-ionizing radiation as the progenitor of cancers. Here they have gone down the “direct” route rather than the ionizing route. The power of the nexus is on display here as well as the ignorance of the RO raters. I often joke about it taking 10 years to get any justice and here comes this piece of work. The Vet filed in Juneish 2002. It’s September 2011. The guys from the BvA are all high-fiving and fistbumping. This is proof that the system works the way it’s supposed to- delay and deny until we die. This Vet happened to hang on to life long enough to win. I’m betting he’s starting the long road to Fendersonville for a long overdue staged rating.

It’s exciting to see that Justice Happens. Perhaps vA will come out with a catchy bumper sticker that embodies that thought. They can tuck it in with the clean socks and the new toothbrush when they are visiting Homeless Vets at the Wall.

Meet the LA Miracle.

BvA Bogarts Claim

In spite of the joy I feel at this Vet’s success, the prospect of having to fight down in the weeds over the meaning of minor versus major weight loss has just begun. Whether he is suffering from near-constant debilitating symptoms or just symptoms of more than six weeks in duration but not debilitating all the time will become the focus of his next appeal. It could be worse. vA has yet to ask  a claimant to define what the meaning of “is” is.

 

Posted in BvA HCV decisions, CAvC HCV Ruling, Nexus Information, Veterans Law | Tagged , , , , , , , , | Leave a comment

BVA–Shabby clothing = Not Credible Witness

Posted on March 23, 2012 by asknod

The RO, and subsequently the BVA will almost always act in tandem of their denial if you, the Vet, exhibit any type of squirrely behavior during the process of your claim. This is a drastic example of it. This Vet is filing through the (only) RO in South Carolina-Columbia. That’s the capital and why they chose that boring place escapes me. I lived in Sumter f or a while and Charleston is where it’s at for our age. 30 years ago it would have been Myrtle Beach. They ought to split the Difference and open a small RO there for the GW Vets. There’s nothing like a little ocean watching to brighten your spirits when filing.

Being from S.C., our Vet probably has a propensity to flower up a story a little to keep the reader interested. He’s no stranger to this game. He went up the ladder to the CAVC in 2004 and lost. This is a reopening of that same claim and Johnny Rebel has “unearthed” some new and material evidence. He’s also gotten a few (5) nexus letters,too. The problem is he hasn’t read up on what a proper nexus has to espouse.

First, the Veteran’s VA gastroenterologist Dr. EEK executed a pre-printed Physician’s Questionnaire in November 2000 in which he stated he had been treating the Veteran for approximately 1.5 years and had reviewed “those records made available to me.”By checking the boxes provided Dr. EEK stated the Veteran did not currently suffer from infectious hepatitis and that the Veteran did not have risk factors for hepatitis before service or after service. However, Dr. EEK checked boxes agreeing that the sharing of razors is a risk factor for hepatitis and hepatitis could be transmitted through use of a syringe that had not been properly sterilized. Dr. EEK checked a box endorsing an opinion that infectious hepatitis is at least as likely as not due to incidents during active duty.

Second, the Veteran’s private physician Dr. IS submitted a letter in February 2001 stating that the Veteran was exposed during service to Agent Orange, which is proved to be linked to many subsequent chronic and crippling medical disorders; due to this exposure and other active duty service-related activities the Veteran contracted chronic hepatitis C and developed liver failure. Dr. IS made essentially identical comments in a Response to Interrogatories dated in March 2001.

Third, the file contains an October 2001 VA outpatient treatment note by nurse BKV stating that after review of records, including gastrointestinal treatment notes, it was her opinion the Veteran was currently disabled due to hepatitis C with marked fatigue, which was possibly related to hepatitis C exposure in Vietnam. In conjunction with that statement the Veteran signed a disclaimer acknowledging that a VA health care practitioner’s opinions and statements are not official VA decisions regarding whether he would receive VA benefits or the amount of such benefits, but will be considered along with other evidence by the VA adjudicator.

Fourth, the file also contains a February 2002 VA outpatient note by Dr. EM stating that on review of the Veteran’s chart and current laboratory findings the Veteran had chronic hepatitis C that could have been contracted while on duty in Southeast Asia. Dr. EM stated as rationale that nothing in the chart would contradict the Veteran’s account of where he contracted the disease.

Fifth, the file contains an April 2009 one-paragraph note from VA primary care physician Dr. SER stating the Veteran had informed Dr. SER that he received a tattoo while in Vietnam and that he was “covered” in the blood of an injured shipmate; it is at least as likely as not the Veteran contracted hepatitis C while in Vietnam.

Remember Caluza v. Brown that I wrote about 3 or so months ago? This guy stole a page from Mario’s book and has it down almost to a T. T as in Trouble.

Caluza– Total Recall

I find a problem with the fact the the Psychiatrist decided to wreck this man’s life with one sentence. Literally, that’s all it took. The dreaded word malingering. The supposition for his guilt is predicated on being “disheveled” which is a synonym for one’s clothing or hair being  in disarray.

As a threshold matter regarding credibility, the file contains the record of a January 2008 VA psychiatric examination, performed by a psychiatrist who noted the Veteran had made very numerous claims for various disorders in order to obtain service connection. The Veteran presented looking disheveled and reporting a litany of symptoms, but was found on examination to have no diagnosed psychiatric disorder. The psychiatrist stated an opinion that the Veteran was likely malingering in an attempt to obtain financial gain or had done so in the past. The Board finds the psychiatrist’s opinion demonstrates desire for financial gain on the Veteran’s part that weighs against his credibility. (Of note, a September 2009 decision by the Board denied service connection for PTSD based on a finding the Veteran did not have a competent diagnosis of PTSD.)

As they say in Sumter, “That’s all she wrote.” Let’s set aside some of the negative evidence of drug abuse ( which no one has said Boo about) and just concentrate on what’s up. It’s obvious the Vet has some issues. There’s some evidence that, viewed in the wrong context, might be construed ( kn-strd) by the vA to be suspect. The Court has weighed in on the validity of using just one brain inspection to make decisions this sweeping and final. There’s jurisprudence forbidding the practice of seeking negative evidence against a claim. Strangely, in this rush to justice, the subjects aren’t mentioned.

This gentleman has a real, live attorney on this and that’s spooky. With paid representation comes the expectation of proficiency. Allowing the nexus stuff in the door without vetting it or asking the doctors/nurse to elucidate and elaborate was childish error. Failure to obtain the SMRs and give them to the doctors was fatal. Everywhere you look, you see the guiding hand of a man who did it wrong and is reassembling the puzzle based on what went wrong in 04. Without a time machine, you can’t redo the evidence in the past. Changing the story is okay if it still plays in Peoria.

One of the telling points in a long line of mistakes is this little gem.

In regard to the tattoo, the Veteran has variously asserted that he was tattooed in Vietnam and tattooed in the Philippines. While a person may be uncertain about when a tattoo was acquired, he is unlikely to be uncertain about where it was acquired; the statement is also contradicted by the separation physical in which no tattoo was noted. The Board accordingly finds the Veteran’s statements to be internally inconsistent and also inconsistent with objective medical evidence, and thus not credible.

Let’s put aside the idea that everyone gets a separation physical. I didn’t get one. This is the last meaningful thing a Vet does when he leaves. Many are or were glad to put paid to the job and move on. You weren’t going back there and they were never going to set eyes on you again. If you didn’t bitch, they got an early lunch. End of tattoo. What everyone including his lawyer overlooked is that we’re talking NAVY. Navy. Like gee, let’s all go ashore, get Extremely Trashed Or Hammered (ETOH’d) and get a tattoo. If you didn’t have a tattoo in the Navy, you were a Virgin. I’ve never met a Squid without one. The only other group so minded were Gyrines- Gomer Pyles.SFGs (Semper Fi Guys). So for Christopher Columbia to have foregone this rite of passage requires an immense leap of faith.  There is a school of thought that says SFG was, and is, a reference to the IQ of grunts but I’ve only heard it used around Marines.

The outcome of this was ordained before it ever arrived in D.C. I find the character assassination to be troubling. Generally, the VLJs are polite and simply say that you’re having a senior moment and just “disremember it all”. What the hey? The drug issues punched a hole in the bottom of this claim boat. Let the guy go home with his pride intact. The vacillation on where the tattoo originated is just a pure South Carolina retelling of the story ploy. If you allowed as it could have happened in both places, everyone would find that twice as entertaining and could assume you were really ETOHd that night! Guys do that. They actually brag about how toasted they were and that they don’t remember everything. Why would that become a make or break item in a decision?

This decision shows a marked shift towards indicting the Vet solely on his credibility and making it the prima facie reason for the denial. This should come as no surprise to us, but it shows that they are now willing to denigrate your reason for filing as being for financial gain.  Hello? Vets didn’t build this maze to get VA comp.  Congress did. This is what it is here for. When a Vet loses the ability to provide for himself and his family due to a service injury, he files the claim. Of course it’s going to entail some $.

Any Vet who becomes the victim of a witchhunt  is proof positive that justice is tainted. By our mere presence and willingness to serve, we have already scaled the wall of credibility. Now we are, in essence, being judged on whether we’re lazy, greedy ne’er do wells merely seeking money for beer and Pot. Even if , just for the sake of argument,  some of the Vets who file are not being straight shooters, the practice in the past has always been a polite one-free of recriminations or condemnation about motive and credibility.

From the State who got off the first shot in the War of Northern Aggression:

Captain Columbia

Posted in BvA HCV decisions, Frivolous Filings, Nexus Information, Veterans Law | Tagged , , , , , , , | 3 Comments

BvA– HCVets

Posted on March 23, 2012 by asknod

I read many BvA decisions in search of anything we can use to win our claims for this insidious disease. As most know, it seems vA is one step ahead of us on figuring out new ways to deny. This decision doesn’t qualify by breaking new ground. In fact, sadly, it further illustrates one soldier’s run in with drugs and the horrible aftermath.

General Sherman here is attempting to burn down the Atlanta RO with the pretext that he was administered heroin against his will,was assaulted and suffered lacerations to the noggin, all his buddies had hepatitis in Germany, and that it might have been due to jetguns. All his theories are voiced over a four year period as the claim developed. This is a particularly bad idea for any number of reasons. By not listing all the reasons up front, it makes you look desperate and willing to bend the truth to get there.

Here, the Vet has more serious credibility problems. Blaming his buddy for the one indiscretion that resulted in the overdose has backfired. It seems the doctors recorded numerous “tracks” indicating regular IV injections.

 The STRs do reflect that in April 1978, the Veteran treated for a drug overdose after he was found beside a road. Medical records of April 1978 indicate that old and new track marks were present on the Veteran’s body and an assessment of a heroin overdose was made. It appears that the Veteran subsequently went through a rehabilitation program.

This is one reason why we advocate that Vets get their SMRs first before filing.  It might make you think twice about filing if you realize they wrote it all down. Then there is the follow on problem where your piehole becomes your worst enemy.

A VA mental health note of July 2009 indicates that the Veteran reported being drunk and high all of the time in service, indicating that he experienced with hashish during that time, used heroin in Germany until 1978, and also used LSD while serving in Germany. He failed to mention any sexual trauma or forced drug use in service.

The Veteran presented testimony at a travel Board hearing held in October 2009. He indicated that everybody that had hepatitis C that he had talked to had undergone a VA examination, and stated that he did not know where hepatitis had come from, but assumed that it might be because soldiers received shots using the same inoculation guns.

And then he discovered HCVets…

In March 2010, additional evidence was added to the record consisting of: (a) a VBA Fast Letter issued in June 2004 (FL 04-13, June 29, 2004); (b) a press release from HCVets dated February 28, 2005 entitled, Plan Backfires – VBA Fast Letter Boosts Claims relating to the risk of blood borne disease transmission through the use of air jet guns for immunization; and (c) a portion of a VA rating action issued in August 2003, granting a service connection claim for hepatitis C resulting from a jet inoculation received during service.

This gentleman had other problems too numerous to mention. One important one was that he was tested (by VA) in 2001 and was free of the virus. He tested positive in 2005. Filing a claim pro se is not advised for those who don’t enjoy doing their homework. Belatedly looking for evidence when the claim boat is headed for the rocks is not a recipe for a win. Dragging out new theories as each of the old ones is discounted creates the perception that you have an endless supply and are waiting to see which one will get traction.

The vLJ might have been born at night , but I doubt it was recently.

To the extent that the Veteran maintains that a single occurrence of IV drug use in service was the root of hepatitis, the STRs themselves indicated that an overdose of IV drugs (heroin) occurred in April 1978, at which time track marks indicative of previous IV drug use were also evident, refuting the Veteran’s reports of one-time drug use in service, either forced or willful. Moreover, numerous clinical records – based upon a history provided by the Veteran himself, document his long-standing IV and intranasal drug use in and since service, which is in fact shown to have been documented as recently as April 2011.

Service connection under the very best of circumstances is difficult. For HCV it is a long, uphill battle as most can attest.  Submitting FAST Letters and old Bva decisons which aren’t precedental for your claim is futile. HCVets is many things. It is a powerful storehouse for information on DIY claims. This site was started to continue and increase that body of knowledge.

The legal aspect of winning your claim is just as important as the medical aspect. Where they become inextricably intertwined is the nexus requirement. Absent that, your claim will fail absent powerful evidence that shows a medical MOS or a transfusion in service. Evidence of combat seems to be a powerful inducement to grant as well. What is evident is that the claim can be won on appeal absent the presence of drug abuse. There are exceptions to this but they are few and far between.

Do yourself and other disabled Veterans a favor by obtaining your records and analyzing your chances of success before clogging up the judicial system with a claim that is futile. 

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files4/1134861.txt

Posted in BvA HCV decisions, Jetgun BvA Decisions, Nexus Information | Tagged , , , , , , , , , , | 3 Comments