BVA– THE VETERAN IS COMPETENT TO REPORT HIS DRUG HISTORY

Posted on January 24, 2012 by asknod

FROM FORT FUMBLE

 IN RENO

The last laugh has to be on Mr. Cronk and Dr. Snood. This is what happens when you set your febrile mind free to extrapolate all the myriad ways you can use pot and hash. Of course, IVDU immediately comes to mind and thus is born a drug addict from an occasional toker. Here, it backfired as the Vet is a credible witness and didn’t prevaricate. His story never waivered one bit and VA was forced to admit-through lack of evidence- that this ever happened. VA’s “fig newton” offense is  thus unmasked and the Vet wins.

The Veteran is competent to report his drug history.  
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  
Moreover, the Veteran is credible in his reports. The
record reflects no clear first person statement that
he used IV drugs.  Where that allegation is made, it 
is done second hand, where another party has interpreted 
either a statement or a record.  The Veteran has offered
a reasonable explanation of the confusion, and the fact
that only one doctor has specified use of IV drugs raises
serious doubts as to the accuracy of the allegation. 
While the Veteran has used drugs in the past, such is 
limited to the smoking of marijuana and hash; there is no
credible and competent evidence of intravenous or 
intranasal (or any other) use of other drugs such as 
cocaine or heroin.

A good win just wouldn’t be complete without our erstwhile Doctor friend:

Dr. B. Cecil, associated with a hepatitis C treatment 
center, reviewed the Veteran's service records and current 
treatment records, and opined that the currently diagnosed
 hepatitis C and associated liver damage was related to 
service.  He noted that the Veteran had "no history of 
drug abuse or transfusion," and felt that the extent of 
current liver disease was "very suggestive" of a 1979 
infection.  Dr. Cecil also noted additional risk factors, 
including air gun injections, shared razors, and blood 
exposure during football games.

http://www.va.gov/vetapp11/Files4/1132255.txt

E.I. Dupont Nemours- when you care enough to serve the very best.
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BVA– NEW FORMAT ON CLAIMS?

Posted on January 24, 2012 by asknod

FROM THE BRANCH DAVIDIAN

RO CAPITOL IN TEXAS

OUR MOTTO?

BURN FIRST AND ASK

QUESTIONS LATER

 

Strolling through all the new releases of BVA decisions allows for little nuggets of info to be picked up. Here, I spotted a subtle new wrinkle to go with our new HCV medical form:

The record reveals that the Veteran submitted a claim of 
entitlement to service connection for hepatitis C.  As 
will be discussed further below, the medical evidence of 
record reflects that the Veteran was diagnosed with 
infectious hepatitis during service, and a January 2003
 letter from the Carter Blood Care Center reflects that 
the Veteran tested positive for hepatitis B core 
antibodies.  See a January 2003 letter from Carter Blood Care
 Center.  Concerning the Veteran's in-service diagnosis of 
hepatitis, the Board points out that hepatitis C was not 
diagnosed, nor could it have been, during the Veteran's 
service since hepatitis C was not specifically 
denominated as such until the 1980's.  Further, the 
United States Court of Appeals for Veterans Claims 
(the Court) has held in Clemons v. Shinseki, 23 Vet.
 App. 1 (2009), that when a claimant makes a claim,
 he is seeking service connection for symptoms 
regardless of how those symptoms are diagnosed or labeled.  
In light of above, the Board has recharacterized the 
issue as entitlement to service connection for a hepatic 
disorder.

I like this one, too. Vet loses job. Vet tells VA in Claim. VA “construes” it to mean he wants to file for TDIU. Vet has a 0% or No% rating so he isn’t qualified to receive this. VA knows that so why did they do it?

In an September 2007 statement, the Veteran asserted that 
he was "dismissed" from his job because of "medical 
reason."  See the Veteran's September 2007 statement.  
It appears that the RO construed this statement as a 
claim for TDIU.  See Roberson v. Principi, 251 F.3d 
1378, 1384 (Fed. Cir. 2001) (VA to "determine all 
potential claims raised by the evidence, applying all 
relevant laws and regulations").  Indeed, in a letter 
from the RO dated in November 2007, the RO notified the 
Veteran of the laws and regulations relating to TDIU 
claims and provided him a VA Form 21-8940 (Veteran's 
Application for Increased Compensation Based on Individual
 Unemployability) to complete.  Servello v. Derwinski, 
3 Vet. App. 196, 198-200 (1992).  However, it does not 
appear that the Veteran completed and/or submitted the 
VA Form 21-8940, and the RO did not adjudicate the Veteran's 
TDIU claim.

Even money says that if he did apply, they may have slapped him with a fraudulent claim! We’ll never know.

This old boy will live to fight another day.

http://www.va.gov/vetapp11/Files4/1132924.txt

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BVA– NO DIC FOR WIDOW

Posted on January 24, 2012 by asknod

FROM THE HORSE-TRADING

RO CAPITOL OF THE WORLD

I don’t know which is more painful – the idea of the BVA VLJ having to sign this decision or the widow conned into chasing this chimera with no hope of winning.

 I take no pleasure in bashing the VA. I find it unavailing and I’d be out of a blog if they ever started performing up to their own ideals. I commiserate with this poor widow that she will never attain DIC, but it simply wasn’t possible given the medical evidence that Mr. Bourbon was the guilty party. When you live that close to a man, I think you’d be able to discern a pattern of ETOH abuse over 30 or 40 years. To ignore it and mount a legal assault on VA for benefits is either the height of hypocracy or… the product of some extremely poor legal advice.

Were you or I to have consulted with a VA-approved attorney, he would have  asked VA  for the same file (the C-file) that contained all this nefarious information about our Resurrected Brother’s alcoholic liver. He would then have ascertained the futility of the endeavour and communicated as much to the widow. She, with this valuable knowledge, would apply for a pension if it paid more that SSI.

What happened is best described as tragic. Somehow, or some way, this poor widow woman was induced into filing a rainbow chase claim. The American Legion SO, were he properly trained, could have avoided this too. Somewhere along the line someone had to convince her this was the correct and lucrative path and perfectly legitimate. Assuming her age to be 78-82, she didn’t hatch this on her own. Perhaps she had a greedy daughter or son in law. It still should have stopped at the VSO for a long discussion of how they were going to win it.

Springing all this evidence into court and embarrassing his spouse is unprofessional. Nevertheless, this is what we see day in and day out. Blame it on the Vet if you must but don’t compound it with interest by dragging the widow through the mud. Due diligence would have revealed the predicate for the denial and the futility of an appeal.

http://www.va.gov/vetapp11/Files4/1133916.txt

From the footlocker:

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BVA–40 YEARS TO SC

Posted on January 24, 2012 by asknod

FROM THE MAPLE SYRUP

RO IN VERMONT

Imagine filing shortly after service for Hep because you came down with it a week after you got out. You know the dentist is responsible but VA treats you like a dolt and denies. Being young, dumb and underrepresented (by VSO), you are induced not to appeal.

Insert thirty years and then discover it has gotten worse and changed flavors. That’s what our Vet has discovered. To add insult to injury he went through two, count them, two DRO reviews with no luck. Finally the BVA adds it all up and comes to the right conclusion. Gee, the Vet wasn’t lying and there may be some substance to his contentions. VA calls them contentions because that’s how they view them. The theory can also be called “Guilty until proven innocent”.

The Vet has finally prevailed by amassing so much evidence that even  reasonable minds could only come to the conclusion it occurred in service. What  is disturbing is that the DRO couldn’t do this. After all, they are the best of the best at the RO and the senior raters. The refusal to grant in 2009 just proves the futility of trying to get anything out of these bozos once they throw the gauntlet down. Moving the claim to D.C. is prudent in the long run. Your decision will occur a year sooner and most with any legs will win.

The Veteran wisely collected “buddy letters” from all his friends and relatives to document this. His filing in 1972 although unappealed, was  more ammunition in his favor. He presented this well and was lucky the VA’s “nexus” was in his favor. It’s risky business to allow them to do this, but here it paid off.

http://www.va.gov/vetapp11/Files4/1134287.txt

Note the tail number starts with an “O”. That’s not a zero. The O designation (Obsolete) was the AF and the government’s way of taking the aircraft “off the books and transferring it to places it wasn’t supposed to be or to organizations who were not governmental. Even the military has rules. This one still has it’s AF insignia on it before transfer to the RLAF in 1968. These brand new Cessna 170Es  (O-1 E) were declared obsolete as soon as they were “born” and accepted by the AF.

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BVA–DM2= HCV

Posted on January 24, 2012 by asknod

Here is something Vets can take to the bank. Peel off the studies on HCV and DM2 and insert them into your claims. Then proceed to get it in nexus format. This is proof positive that HCV equal DM2. VA has denied this for years but this puts paid to the story. Read it closely and look up the studies to print and include in your claims. This is an instance where the evidence is overwhelmingly in your favor. The Vet wins on his hypertension claim as well even though it was far more tenuous.

In contrast, the file contains positive nexus opinion 
of September 2011, offered by a practicing hepatologist.  
The doctor cited numerous medical studies and provided 
additional medical information, but determined that he 
could not conclusively say that HCV was the proximate 
cause of the Veteran's diabetes.  He further observed that
 based on the preponderance of (specifically cited) evidence 
linking both HCV and cirrhosis with diabetes, it was his 
expert opinion that it was more likely than not that HCV 
and cirrhosis were either causally related to or chronically 
aggravated the Veteran's diabetes.


The Court has held that a medical article or treatise "can  
provide important support when combined with an opinion of 
a medical professional" if the medical article or treatise 
evidence discusses generic relationships with a degree of 
certainty such that, under the facts of a specific case, 
there is at least "plausible causality" based upon 
objective facts rather than on an unsubstantiated lay 
medical opinion.  Mattern v. West, 12 Vet. App. 222, 228 
(1999); see also Sacks v. West, 11 Vet. App. 314 (1998) 
and Wallin v. West, 11 Vet. App. 509 (1998).  Here, the 
studies cited by the hepatologist assisted him in 
providing a positive and adequately supported medical 
opinion in 2011.

The BVA has been good to us this year and even more so in this last quarter. Realization that something is amiss should be evident by now. If we have appealed 20,000+ denials of HCV at the ROs, how many were filed, lost and unappealed? Frightening to think. Using the 28% figure, I would assume somewhere in excess of 100,000 of us filed in 2010-2011.

We are rapidly becoming dinosaurs in this fight, so it behooves us to fight all the harder to win. With the BVA more inclined to actually read the appeal and use elementary logic, chances of a win go up daily.

http://www.va.gov/vetapp11/Files4/1138429.txt

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BVA–ABSENT RISK FACTORS= JETGUNS

Posted on January 23, 2012 by asknod

Its nice to see these decisions as they are entirely too rare. Here, there simply isn’t any other risk. Try as they might, VA cannot hang this guy out to dry. I wonder if they are finally coming to rue the day they said it was biologically plausible…

http://www.va.gov/vetapp11/Files4/1140321.txt

I’m sure the AMLEG guys got this fellow’s photo on the wall in the trophy room. It’s probably the first HCV one, too.

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BVA– Internet Articles = No Service connection

Posted on January 23, 2012 by asknod

Here is a classic example of what not to do. Even though this widow has a law dog, the approach is all wrong. You can submit evidence until the dump truck breaks down from the excessive load to the front door of 810 Vermont Ave. NW and it will get you no  closer to SC. You can submit like cases of BVA and Single Judge decisions from the CAVC and the same will ensue. Absent a true and  coherent nexus letter , your efforts will not avail you. Here, the widow is doubly disenfranchised as her husband, a combat Veteran, cannot speak from the grave to describe the blood exposure he undoubtedly experienced.

Take this to the bank when filing your claim regardless the circumstances. Amassing large quantities of articles about HCV clinics in India and contamination of jetguns  in a Pakistani weight loss clinic in 1998 will not get you there.

http://www.va.gov/vetapp11/Files4/1132480.txt

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BVA–TRANSPLANT= SC FROM JETGUNS

Posted on January 23, 2012 by asknod

Here’s a classic jet gun win with nexus letters to go with it. What is notable is that the doctor writing the nexus is also the transplant surgeon and uses the trnasplant as prima facie evidence that the infection is 30-40 + years old. This places it squarely in the time frame when the Vet got his jetgun innoculations. This, Veterans, is the ticket to a good letter in my book. Metavir scoring , Childs-Pugh or any other that shows the disease is extremely advanced is an indicator no one argues with any more. One simply cannot “hurry up” the infection by drinking or doing drugs post service.. Once you get it, it is a linear progression of approximately 10 years per stage from 0-4. Thus, 40 years (2002) is smack dab at the start of this fellow’s induction in 1966. Okay, to be terribly anal, its thirty six years.  This is excellent evidence for any of you who are post transplant.

http://www.va.gov/vetapp11/Files5/1142926.txt

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NEW VA HEPATITIS DISABILITY QUESTIONNAIRE

Posted on January 23, 2012 by asknod

VA just released this and a bunch more the other day. This is the one for Hepatitis.

http://www.vba.va.gov/pubs/forms/VBA-21-0960G-5-ARE.pdf

This is the list for all the questionnaires:

http://benefits.va.gov/TRANSFORMATION/dbqs/ListByCondition.asp

 

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BVA– More Magical Disappearances

Posted on January 22, 2012 by asknod

This morning, I decided to write down all the numbers and amounts of Hepatitis claims to hang on the bulletin board in front of me. This would allow me to watch the quantities change or jump around. I started with 2011, because that is what pops up first. You can see this when you click on BVA decisions above.

I wrote them all down. Yesterday or late Friday night, the BVA uploaded the last of 2012 or the majority. The number was 20, 537  of 668,105 claims appealed. This morning the number was  16,356. That’s odd. So I clicked back to 2010 and there were only 1,508.  2009 was 1417 and so on. So I gather there is a major epidemic afoot and I’m planning on letting the CDC in Atlanta know it. Even if the figure is 16K+, that’s a major uptick from 1508 in case anyone is math-challenged. And the kicker is that apparently there wasn’t one single claim appealed for Hep in 2003. Numbers are our friend.  I’ll keep you posted (get it?) Posted? Never mind.

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