BVA–13 YEARS AND COUNTING

Posted on December 26, 2011 by asknod

Here’s a decision that immediately catches your eye. Our patient Vet from Jackson, Mississippi is now into this over thirteen years and counting. It’s unclear when he filed other than that he was denied in 1998. What is clear is that his claim is being remanded yet again and it’s September 2011. I suspect he won’t see any resolution to this before 2014 unless he’s extremely lucky.

http://www.va.gov/vetapp11/Files4/1133927.txt

Our patient Vet served in Vietnam during his first enlistment. Judging from the economic climate in 1971, I’d say he elected to re-up about a year after his separation. I noticed he listed his MOS as cook so chances are the job market wasn’t all it could be for ex-Vets with his educational achievements. At any rate he finally parted company in 1983. Records reveal he had some negative claims issues such as drug and alcohol abuse. This is history he supplied himself, so there is nothing here to compromise his credibility. The drug history may or may not sink his claim because it’s risks outweigh presumptive risks that were not willful misconduct. That is not the bone of contention here. All this evidence has pretty much existed and been incorporated into the records over the years so there isn’t much to debate.

One thing that VA has overlooked in their headlong rush to judgement is his service connection for PTSD. How he contracted it, what induced it and its ultimate effect on his psyche are irrelevant. What is paramount is whether the PTSD caused him to abuse drugs in the first place. If that is true, then he cannot be guilty of drug abuse. Self-medicating yourself with a cornucopia of heroin, cocaine and prescription drugs is excused when you are not in your right mind. This is as it should be. People do strange things when they are not in their right mind. Mind you, I don’t sanction it. I merely point it out as a matter of law. Fortunately, VA recognizes this and comprehends the consequences of it.

The thing that concerns me and should bother all Vets is the lengthy time consumed in properly adjudicating this claim. Were we to view this from the perspective of the VA, we’d consider it to be “unfortunate” but that the Vet will get a fair shake. No stone will go unturned in an effort to accord him that which is his due. The reality from our perch is an adjudication that is rapidly turning into a Gutenberg Bible in size if not in age. The VA has been well aware that this gentleman is service connected for bent brain syndrome for years. This isn’t some major revelation only recently uncovered. A remand to examine this theory for SC is long overdue and should have been accomplished during the 2008 remand.

This makes me ill when I read it.

The Board notes that the Veteran is currently 
in receipt of service-connected benefits for 
posttraumatic stress disorder (PTSD).  As 
the Veteran's hepatitis C has been associated 
with the Veteran's use of illegal intravenous 
drugs in service, the Board finds it necessary
 to obtain an opinion regarding whether the 
Veteran's use of illegal intravenous drugs in 
service was an attempt to self medicate for 
his symptoms of PTSD.

You know you’re getting the bum’s rush when you read things like this:

In March 2008, the Veteran was notified that 
the Judge before whom he had testified in 
March 2000 was no longer employed by the 
Board.

Chances are this gentleman may prevail before he reaches room temperature. Or not. I have faith in the system and know that he could pass away before any resolution is reached. A trip up the ladder to the Court will put him into old age and possibly set some record for delay. Assuming he was 18 in 1967, he’s now about 63. I foresee him blowing out 65 candles before his new VLJ signs off on this-pro or con. He’ll need sunglasses to avoid blindness with all the birthday candles on the cake he blows out, if and when he goes up to 625 Indiana Ave. NW. In any event, I will print a map from their website to show him how to get there.

See the blue “M” above and to the right of the Grand Army of the Republic? That’s where the Court is located. This town is my old stomping grounds. I was born at the George Washington University Hospital where they took President Reagan after Hinkley attempted to impress Jodie Foster.

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CAVC–HORBOL v SHINSEKI– Medical Opinions from Fortune Cookies

Posted on December 25, 2011 by asknod

Veteran Steve A. Horbol served from 1972 to 1975. He was service connected for HCV before he arrived here. He’s trying to connect the dots between sleep apnea and his hep. I commend him for trying. I think it would have been a good idea to get his own nexus for that, as well as the toenail fungus he’s claiming. He’s doing this pro se so the Court has it’s “special handling” gloves on. He gets the royal treatment from the Judge, but they still require every t crossed and every i dotted. Steve missed a few of them and doesn’t get a star after his name. Fortunately for him though, he gets another bite of the apple because once again, VA has tried to cheat. In order to ameliorate this, the VASEC vainly attempts the role of  the hero and defends the Vet from the excesses of his inept underlings.

What is it about the VA that lets them think there are two sets of criteria for evidence to be probative and credible? The Court has held that the Board is entitled to assume the competence of a VA examiner.”[ Cox v. Nicholson, 20 Vet.App. 563, 569 (2007)]. I don’t. I have too much evidence accumulated in just the last 3 years that argues for a different assessment. Much of it has been presented on this site.

VA examiners are VA personnel charged with assessing all the evidence, inputting it into the M-21 computer and reading the result. They are then supposed to send it to their supervisor for a signature and thence to Quality Control. After everyone has placed their imprimatur on it, off she goes to the Steno pool for typing and mailing. The room for error is vast. After Quality Control, one would assume it was half-vast. With all the technology, a simple voltage spike during this process can vomit out an incorrect “holding” from the M-21 device. A slip of the finger on the keyboard will induce an incorrect conclusion. Mostly, relying on a medical doctor’s finding in his last sentence-as in “not at least as likely as not” -without determining whether the bozo even perused the Vet’s medrecs can result in a denial with the evidence pointing to the exact opposite.

If this were a rare event, we’d all chalk it up to an aberration and move on. When it’s the norm and VA continues to profess its rarity, we need to reassess the way they conduct business. This is a single judge decision, but it illustrates what is becoming distressingly familiar. Doctors who perform C&Ps, IMEs and IMOs need to be mighty precise in their findings. When Joe Vet arrives at the RO with nexus in hand, VA routinely discounts, discredits and generally trashes his efforts. The reasons usually fall in a narrow confine. Either the opinion is not well-reasoned, is devoid of probative cites or fails to review his SMRs. In the event the good doctor accomplished all these requirements and he has no specialized training in the field, his opinion will be denigrated as less than perfect. Here Mr. Horbol contests the VA’s “expert” as being unknowledgeable  in the art of sleep apnea. The Court gives VA a pass on this, but jerks the choke collar abruptly on the matter of the review of the the medical records. It’s painfully obvious the good doctor hasn’t and the VASEC is forced to concede this. I find it interesting that the record on appeal leads us to believe the VASEC showed up here pleading for remand because he felt the poor Vet had been denied a probative C&P:

Second, however, the Court agrees with the Secretary that the March 2009 VA examination is inadequate because the examiner misstated facts from the claims file and failed to provide supporting rationale for his conclusions. In this regard, the examiner stated that Mr. Horbol had seen several physicians at a VA medical center and none had concluded that his joint pain was related to his hepatitis C. However, in a September 2008 treatment note, a staff physician clearly stated that “[Mr. Horbol’s] joint pain is more likely than not related to hep[atitis] C.” R. at 110. As noted by the Secretary in his brief, because the examiner made an incorrect statement in his opinion, the portions of his opinion that relate to sleep apnea could also be problematic. Horbol v. Shinseki

So here we have an enigma. How is it this case is before the Court when the VASEC is begging for a remand at the last minute? It’s almost as if they (General Counsel) decided to read the whole thing while sitting in Court and came to the shocking conclusion that they had screwed up.

Lastly, the Court holds the rationale for the opinion up to the light and sees defects:

Finally, the Court also concludes that the VA examiner failed to provide sufficient rationale for the medical opinion he offered. See Nieves-Rodriguez v. Peake, 22 Vet.Ap. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.”); Stefl, 21 Vet.App. at 124 (stating that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Here, the VA medical examiner stated that his opinion was based on a review of medical literature and the claims file; however, he did not specifically cite to or describe any relevant portions of the medical literature nor any specific evidence in the claims file to support his conclusory opinion that Mr. Horbol’s sleep apnea was not related to his active service or his service-connected hepatitis C.

Horbol supra

This is fortunate for the Vet. What is unfortunate is that, absent an appeal, this would have become final. The decision is grossly unjust as I pointed out at the beginning because VA is aspiring to a lower judicial standard than they hold us to. With a judicial process slanted steeper than the deck of the sinking Titanic, we have little recourse other than to question any decision that emanates  from the BVA or their lackeys at the RO.

One of our members has recently pointed out that the VA takes a position substantially at odds with the Veteran in over 60% of its decisions that is indefensible. This results in reversed and vacated decisions at the Court and squanders precious judicial resources. We as Veterans deserve a system that is truly blind and level. We are accorded the benefit of the doubt in word but not in action. We should be entitled to prompt service rather than endless years of legal warfare. The VA sees it otherwise, though how they can escapes me. I expect the Ninth Circuit is going to disabuse them of this misconception shortly when they hand down the Veterans For Common Sense ruling. That, fellow Veterans, is a day I look forward to.

Of note, from the reading of this, it implies that the “VA examiner” was the very doctor tasked with the C&P. Au contraire, ma cherie. The VA doctor was the one who failed in his duties. The VA examiner sits at the RO and makes all these mistakes. He is the one collating the evidence and performing the BOTD dance. He is a ratings expert aka a VA examiner. There is a marked difference in the two. While it may be said that the VA employs doctors as ratings experts, it cannot be said legally that VA employs raters as doctors. We all know better. Who else could misconstrue so frequently that which an erudite 12 year old with average inductive capacity could sound out without the benefit of phonics?

Meet pro se Veteran Steve A. Horbol.

HorbolSA_10-958

 

Above is my one and only experience of taking off and not landing (on a runway). And Jack didn’t “just” hit a tree. He stalled the aircraft and hit about 10 trees.  You can see the aircraft didn’t magically alight among all those deciduous items above.

Posted in CAvC HCV Ruling, From the footlocker | Tagged , , , , , , , , , , , , | Leave a comment

North Carolina Pecan Puffs

Posted on December 24, 2011 by asknod

It’s Christmas once again and that draws me to the kitchen. I love cooking deserts so it’s only natural that I want you Vets to be sure you get your daily supply of butter, too. It’s one of the five major food groups that helps build happier bodies 12 different ways. So no Veteran worth his or her salt would choose rationally to go without eight or nine of these little things every day.

Pecan Puffs (North Carolina 1962)  

Makes about thirty                                                           Oven 300

1/2 cup butter

Add and blend until creamy

2 tsbp. sugar

Add 1 tsp. vanilla

Measure, then grind in a nut grinder

1 cup pecan halves

Sift, then measure

1 cup cake flour

Add the flour into the butter and then mix in the nuts. Roll the dough into one inch balls and place one inch apart on a greased cookie sheet. Bake in a slow 300 oven for 40 minutes.

Roll in confectioner’s sugar while they are red hot. Roll a second time when cooled.

I make 4 recipes at once and put them in cookie tins to give to the grandchildren and the neighbors. These are almost better than my pecan pie-almost. Please make some for Santa. I’m told they are his favorite.

Posted in General Messages, Uncategorized | Tagged | 1 Comment

CAVC–Reinhart v. Shinseki–IFN=Blindness

Posted on December 23, 2011 by asknod

Pity Mr. Michael J. Reinhart. He enlisted in 1962 and separated in 1964. He got the HCV diagnosis in February 2002, began the bug juice November 2002 and started to notice some odd effects he hadn’t been counseled on. The VA gave Mr. Reinhart a brief one-two on the side-effects and ordered up the program literature/video. They waited until January 2003 to discuss “side-effect”  management in detail, gave him the pep talk and told him,  well, they told him a lot of things. One thing they failed to go into in detail was the possibility of going blind.

On May 13th, 2003 he discovered he had blurred vision. VA told him to discontinue the juice. If I read this right, he’d been on the program about 26 weeks.  The side effects of the chemical  misadventure were papilledema  http://en.wikipedia.org/wiki/Papilledema and disk hemorrhages with binasal visual field effect (inferior) http://en.wikipedia.org/wiki/Binasal_hemianopsia . A month later he was DXed with optic neuropathy due to IFN toxicity.

http://en.wikipedia.org/wiki/Optic_neuropathy#Ischemic_optic_neuropathy

September began but there was going to be no dove hunting for Mr. Reinhart. He was having chronic vision issues that failed to resolve as the VA doctor had hoped for. He thus filed in September 2003 for severe damage to his eyes from the rat poison in a 38 USC § 1151 venue. His February 2004 C&P revealed the right eye was worse than the left and the VA examiner concluded that the IFN was the culprit. He noted that the vision issues did not precede the treatment. Good to go, right?

Not so fast, Michael. VA denied in March 2004 and said the evidence failed to show “fault” on VA’s part. I would have loved to have been a fly on the wall in that office to hear them sound it out with phonics. Mr. Reinhart promptly filed his appeal to get the ball rolling. VA opted for another Dog and Pony show in September 2007-four years later- on the off chance they had missed something. The examiner came to the exact same conclusion, but this time he was instructed to rephrase the rationale. He did so by saying the vision abnormality was simply a side effect that was rare but not unheard of. Therefore Mr. Reinhart shouldn’t have been surprised to wake up blind one day in May. Since they had gone over this and he’d signed off on it, he couldn’t return and claim an injury. In essence, he went into this with eyes wide open (pun intended).

During his DRO hearing (where he was denied again), he mentioned that he wasn’t told anything about going blind.

During a November 2007 hearing, the appellant testified that when he began interferon treatment in January 2003, a list of 10 to 15 side effects was included in the information package that
he received but ocular damage was not mentioned as a possible result of treatment. Reinhart v. Shinseki 2011

He got his Board hearing in February of 2009-five years and three months after filing.

At a subsequent Board hearing in February 2009, the appellant testified that side effects were discussed with him prior to beginning the hepatitis C treatment and that he received literature from the VA about the side effects. R. at 53-54. He testified that ocular damage was not mentioned as a potential side effect. Reinhart supra

So we have testimony on two different occasions on this subject and VA still has not associated the “informational packet” with the file folder. Seems suspicious. And where is the signed authorization giving them permission to blind this Vet?

As usual, the VA trotted out their patsy to “opine” and give a  reasoned explanation to the VLJ and the Vet as to why this was almost a given…

In October 2009, an independent medical expert opined that while the appellant’s ocular disability was generally uncommon, occurring in less than 10 in 100,000 patients, Pegasys/Ribavirin treatment has a known adverse reaction of optic neuritis, retinal thrombosis and hemorrhages, and papilledema. R. at 41. He further explained that although adverse reactions such as those experienced by the appellant were quite rare, they were known to occur. Id. Reihart supra

At this point I have to wonder what the “expert’s” field of expertise was. I’m willing to bet it changes regularly from one discipline to another as needed. At any rate, the writing was on the wall and the fix was in. No money for Michael.

On March 5, 2010, the Board issued the decision here on appeal. R. at 16-25. In that decision, the Board found that “[b]ilateral optic atrophy and arteriolar attenuation were not caused or aggravated as the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA in furnishing medical care, nor were they caused or aggravated as a result of an event not reasonably foreseeable.” R. at 17. The Board also found that the appellant  provided informed consent prior to beginning the Pegasys/Ribavirin treatment regimen. Reinhart supra

I guess we could say that a win for this man was “not reasonably foreseeable” either. Michael promptly filed his NOA and headed to Indiana Ave. NW. Notice, though, the innocent little phrase at the end of the above record. The VLJ had gone on record as saying he had signed the informed consent prior to beginning this. Were that the case, it would be embedded in his VISTA records. All four of mine are. They don’t get lost. They’re done electronically so as to become a permanent part of the record in case of a situation, well, like this one.

The Court looked at the BVA record and decided to include it. Remember how I have discussed the habit of moving evidence around on the table and getting some in the wrong order? The BVA has done just this highlighted by red type.

In discussing the informed consent process in this case, the Board stated the following: The Board notes the testimony of the Veteran during his November 2007 RO hearing and February 2009 Board hearing indicating that, prior to giving informed consent for his Peginterferon/ribavirin treatment, the Veteran was informed of potential side effects such as nausea and depression but none involving his eyes or vision. The Board also notes that the details of the information regarding the potential side effects of Peginterferon/ribavirin treatment provided to the Veteran prior to his giving informed consent for treatment are not of record.
However, the record reflects that VA providers discussed the risks of Peginterferon/ribavirin several times with the Veteran prior to the beginning of such treatment, and that the Veteran was provided written and video information regarding the risks of such treatment. Furthermore, the October 2009 IME explained that, although adverse reactions such as optic neuritis, retinal thrombosis and hemorrhages were rare, they were known to occur secondary to Peginterferon/ribavirin treatment.
The examiner also stated that, although he could not find the details of the information, there was documentation of discussions of side effects of treatment and literature being given to the Veteran several times prior to treatment. Reinhart supra

Let’s summarize. VA gave him the briefing. They forgot to have him sign something giving the informed consent. They had to order in the video on the risks. They then semantically “create” the consent because they had to have it to start treatment. The 2009 IME’s conclusions are now incorporated into a “side-effects” discussion six years prior. Huh? All the King’s men and all the King’s horses are not going to manufacture that informed consent because it doesn’t exist or they lost it. I suspect the former.

I will conclude with this morsel from Judge Ivers:

The parties are correct that the Board’s discussion of the informed consent process is inadequate. See Appellant’s Br. at 10-12; Secretary’s Br. at 7-9. The Board completely failed to explain how the informed consent requirements espoused in 38 C.F.R. § 17.32 (c) were met in this case and failed to point to or discuss any specific evidence documenting consent. In fact, the Board even appears to recognize the lack of such documentary evidence, stating that “the details of the information regarding the potential side effects” are not of record. Reinhart supra.

http://www.law.cornell.edu/cfr/text/38/17/32 (38 CFR §17.32)

VA has strung this poor boy out so long that the publications they were handing out in 2003 are out of print and no longer “operable”. I’m sure the new ones include the vision warning.

In conclusion, the VASEC has arrived without his evidence. Worse, he has implied he had it, it was reviewed and the evidence did not support Mike, yet he cannot produce it. VA does this all the time and gets away with it until someone points out the emperor is running around naked. Strangely, they are willing to remand about the time the judge points this out. This will give them needed time to search the floor of the shredder room and try to piece the informed consent document back together. Always read those decisions, Vets.  VA examiners are good, but they always try to cheat or bluster their way through these things instead of just telling the truth. If the informed consent document was absent, they should have manned up and said “Okay. We screwed up. Mike wins, but we did tell him what was coming”. End of battle. VA just can’t turn and walk away, though. Remember Tin Cup with Kevin Costner? Recall how he lost the tournament because he just kept hitting balls to get over the water hazard? The parallel to VA’s intransigence is remarkable. They screwed up, but are fatally resigned to continuing Mike’s denial even though the cause was lost years ago.

Meet Mr. Reinhart who  now has eight years and two months invested in this:

http://search.uscourts.cavc.gov/isysquery/5ccd79a7-ce5c-46fe-8b53-3cf275f359d9/64/doc/

P.s. Notice the ankle holster on the left ankle? Don’t leave home without it. It was an FN .25 cal. “Baby” model.

Posted in CAvC HCV Ruling, HCV Health, Important CAVC/COVA Ruling | Tagged , , , , , , | 6 Comments

PBC-NEW HEPATITIS

Posted on December 23, 2011 by asknod

Perhaps the phraseology is wrong, but the disease isn’t. Primary Biliary Cirrhosis, or PBC, is a form of hepatitis with no DNA or RNA serum markers. It doesn’t mimic autoimmune or steatohepatitis either. In fact it is dissimilar to alcoholic liver disease or any of the Alphabet soup of regular ones. Here I though I knew all the different flavors and bingo-a new one.

http://search.uscourts.cavc.gov/isysquery/5322d69a-e46f-4458-935d-78fe991b2c85/65/doc/

As usual, click on the blue download (top left) to view it as a PDF document.

Posted in CAvC HCV Ruling, HCV Health | Tagged , , , , , , | Leave a comment

VCS v. VASEC– 9th Fed. Cir. VIDEO

Posted on December 23, 2011 by asknod

If you have a spare hour, this is a good watch. It will open your eyes on how deeply the VA is in denial. Denial of their backlog problems. Denial of our claims. Denial that they even have any problems!

http://www.ca9.uscourts.gov/media/view_video_subpage.php?pk_vid=0000006173

The VA wins the Alfred E. Neuman “Everything is Okay” award this fortnight.

Posted in Fed. Cir. & Supreme Ct. | Tagged , | Leave a comment

ILP SURVEY

Posted on December 22, 2011 by asknod

As some of you may know, the VA has a clandestine program for Veterans that they do not advertise and are trying desperately to conceal. The Independent Living Program, or ILP as it is known, is run by the Vocational Rehab folks. Since the wind down from the Iraqi Olympics,  the money has mostly flowed to Vets with documented disabilities to help them reintegrate with the jobs market. VR&E subsidizes the Vets with tools and educational opportunities to learn a trade. Killing is a very limited field of work and there is little demand for it outside the military and perhaps the Mafia. Retraining to more basic skills is needed. With the new gas pump technology, the time honored gas station attendent/ windshield washer guy is extinct. No more can you set your sights on a future in the oil industry.

But written into the VR&E charter was a codicil for Vets who are now 100% P&T. Even though we are precluded from  becoming productive members of society, our mental needs must be met. We cannot live on the pablum that comes out of TVs. Drew Carrey and the Price is Right are not mentally stimulating. Prior to the inauguration of the 44th President, we had a robust program that provided those of us knowledgeable of such things a valuable path to recreational stimulation. Vets were applying for, and being granted funds for greenhouses, tractors for rural uses like snow removal and gardening, etc. Some received computers to keep them connected with the outside world via email.

All this came to an abrupt halt with “change we can count on”. No more were sewing machines given to women Vets to while away the boring hours. Gone were the tractors. Reloading equipment for guns was withdrawn. Computers were right out because we suddenly didn’t need these things “for the ordinary ability to live independently”. In their stead were those cute little grabbers for things on the shelf above your reach. Grab bars in showers and tubs became the new “need”. A cordless telephone was the new “independence tool” freeing us up to roam about the house recklessly with no fear of falling and not being able to rise. We had 911 at our beck and call! Why, a set of chains for the car eliminated the need for that snowplow. A new paradigm was unfolding  before our eyes.

I applied when I came home from the hospital. One of our formidable members (Loyal) told me of this cornucopia awaiting us. I immediately applied and in August 2011  VA sent out an independent contractor to assess my needs. I was denied a month later. I filed for an Administrative review which I surmise is VR&E’s version of a NOD. I agreed with them that the greenhouse and the sewing machine were a reach, but insisted that the computer was a legitimate request based on my needs for this site. I delved into all the fine print in 38 CFR and tortured the regulations to prove my point. Being proliferous with words, I must have made my case. The head of the Seattle VR&E ILP program for the Northwest (Alaska, Washington, Idaho, Oregon and Montana called me today. Their “Information Technology (IT)contractor”  wishes to make an appointment with me to survey my computer needs for the claim. He wouldn’t say I had won, but why would they need to determine my “needs” for a second denial?

I’m accustomed to denials so I won’t get my hopes up. Just think. With a nice dockable laptop, Windows 7 and dragonspeak, I’ll be more able to venture afield to American Lake VAMC and help the incarcerated Vets make life miserable for VA. Whoo-doggies.

Everything you read here is a gift from my wife’s real estate company’s computer. It’s on loan to me until the VA can replace my donated laptop that expired in March. I would like to think the work I do here is worthwhile. The fact that I disparage the VA is not for discussion. The mere fact that I help Vets is the predicate for the need. It would be justice if VA provided me with the seeds for their own defeat.

Sidharthism (a sect of Buddhism) practiced in NW Thailand and Laos holds that you will reap what you sew. The phrase “what goes around, comes around” summarizes their belief system perfectly.  I’ll keep you informed on developments.

Posted in General Messages, HCV Health, Independent Living Program, Tips and Tricks, Uncategorized, VR&E | Tagged , , , , | 1 Comment

Re: THEOFRASTOU V. SHINSEKI

Posted on December 21, 2011 by asknod

I received this letter from Mr. Wayne Theofrastou today:

Wayne Theofrastou says:

Dear Sir: What have I ever done to you that rates your belittlement of me, my character and my service connection for hep C case ? The VA placed stumbling blocks for me at each and every phase of my case for the past nine years…I could not afford a lawyer during most of that time as well as my health failing throughout most of my case…Yes I made mistakes but I at least had the guts to go it alone…It was a very lonely battle as sick as I was… Now you said I had provided a few articles from the internet in support of my claim, I provided over 1000 pages of statements, medical studies (both foreign and domestic), Department of Defense documents stating that they were concerned about cross contamination via the jet guns, and the reasons they ordered the use of the pneumatic jet injectors to be stopped, and I can go on to list all the rest of what I submitted in support of my claim but that would bore you. You neglected to note during your tirade that I alone had my case remanded from the Court of Veterans Appeals in Washington back to the BVA and remanded back to the Office of Origin to be revisited and the proper action (comp and pen hearing) be provided, (I guess I did something right). Now due to the fact you have not reviewed my entire case, including several teleconferences, I feel that you have judged me too harshly. I know the truth as well as all the professionals I had to deal with…The pneumatic jet injectors did cross contaminate during the vaccines given, they (doctors ( both VA and civilian) and researchers) admit that. The cost of the VA to admit this fact would be financially devastating to them. You remember how the agent orange claims were dismissed for years but the VA had to finally admit AO caused many illnesses. So it is the same with the HepC claims. By the way I made it clear from the onset, I wanted NO Compensation for this affliction just an admission of responsibility in order to be vindicated. Now I could go on and on but I’ll close with and old, but wise, native american saying: Judge not your neighbor untill you have walked a mile in his moccasins. You haven’t, so your judgement of me is misplaced. I will be judged by God as you will be, I know how my case will be decided by Him, do you know yours? I’ll pray for you.
God bless and keep you…Wayne Theofrastou

The message was left in the “About the Author ” page. I am erasing it from there and moving it here because I have done Mr. Theofrastou a disservice. CAVC records of his case before Judge Davis are woefully incomplete and this has resulted in a distorted record from which I used to write my post.

I will say this, though, and I stand by it. I still have my little yellow books of all my immunizations, some via jetgun and others via disposable syringe. Some were by old glass syringe reuseables up in Laos. Nowhere in my shot records are there any lot or batch numbers on any of my immunizations. To expect the military to record and keep this information is unworkable in my mind. I do strongly believe that Vets have been irreparably harmed by jetguns, including you,  Mr. Theofrastou. Proving this is a daunting task for anyone, be they a leagle beagle or an unrepresented Vet. Doing this via your route was ill-advised.

I have often pointed out the early history of jetgun claims. They consisted of Vets supplying the articles published on HCVets and the famous Fast Letter of 2004. All of this was for naught. Vets were still denied after the one inadvertent BVA decision that slipped through the cracks. Once that hole in the dike was plugged, few others won. The recent wave of jetgun successes have all been accomplished via strong, well-reasoned nexus letters. The same can be said for the Nehmer claims that preceded them. Many AO diseases, while presumptive, still require this nexus method to win.

While I admire your tenacity in pursuing this, the reader can also see from my post that the endeavor was futile from the beginning.  You had no chance of winning because you had no legal strategy. For lack of a strategy, your CUE filing, as well as your  compensation claim, were doomed right out of the gate. That was the reason for this write up. It has nothing to do with a personal ad hominem attack on you or your person.

I assure you, Mr. Theofrastou that I have walked in your shoes-since 1989 when I got my first denial. I have been at war with our common enemy ever since. I, too, have a CUE claim before a panel of five (5) VLJs as I write this concerning that 1989 denial. My original BVA decision was before a panel of three with one absent in 1992. I am no stranger to this process.

What I wish to make clear about filing a claim, let alone a CUE revision, is that simply reprinting Internet articles and pictures of people formerly known as civilians in their new undies getting shots from a jetgun will not get you service connected. All the Department of Defense articles, NIH studies and write ups for pedojet contaminations in Bophal, India are no panacea for success.  In order to win a claim, you must present evidence- a nexus letter- from a doctor saying you, Wayne Theofrastou, were personally contaminated by a multi-use pneumatic air injection device while a member of the US military. The letter must state in no uncertain terms why the doctor feels so strongly about this. There are numerous ways of doing this to include seeking the services of a doctor we advertise on this site. He charges nothing for this. At most, it would cost you some USPS expenses unless you have access to electronic means of transmittal.

I commiserate with your plight and wish you had found us before setting out on this Odyssey on your own. We have helped and are helping Vets wend their way through this jungle every day. Our successes are slowly accreting  over time as we learn from our mistakes. I used your case as an illustrative example of all the wrong ways to attack the VA. Proving a claim requires you to go on the offensive rather than sit in the trenches waiting. By the same token, it requires you to collect evidence that supports your- Wayne Theofrastou’s- claim and not all the things wrong with jetguns in India. Their checkered history is not on trial here nor is the lot or batch of defective Gamma globulin serum. Would you go out and sue the manufacturers of the bullet that severed your spine? The maker of the gun that fired the bullet? No. You would sue the idiot who pulled the trigger and who also happens to be the one invested in remunerating you by your kind and grateful Government.

VA, while not the perpetrator of this jetgun stupidity, is still the one you have a gripe with. Arriving in court unprepared or with info that they refuse to consider as probative evidence is what I complained of. I’m in the same boat as you with this disease. I chose to fight it by carefully studying the methods of winners. I also did it while I was very ill. You mention having been occupied thusly for nigh on nine years. I have been about this since my filing in March of 1994. Regardless of how much time, perspiration and angst we have greased the wheel with, we have had two different outcomes. We both did it pro se, too. Mr. Theofrastou, the reason your attempts came up short was your methodology. You claim you sought no remuneration, but I would point out the VA is a court of equity, pure and simple. They are not in the business of dispensing apologies-just holdings and checks for compensation and pension. You will get no “We’re sorry” and a gift card for a free Vende at Starbucks from them.

While my judgement of you may be misplaced in your view, it was predicated on a futile, inartful defense which consumed a lot of scarce judicial resources. You deserved better and for that, I am ashamed of the system. If you read other cases here, you will find I am guilty of this again and again. My frustration is born of beating my head against the wall until bloody to no avail.

Take another page from the manual of Native American Indians and peruse it, sir. In order to conquer your enemy, you must learn his greatest weaknesses and exploit them. Arriving in a Court of equity and claiming you were dissed, dismissed and diseased by their hand is all well and fine, but you must prove your contentions in the accepted manner. Justice is not always a one-way street with the advantage accruing to the Vet. Demanding answers and evidence from the VA is counterproductive and yields nothing, as you have come to find out. The duty to assist has boundaries.

We stand ready to help you if you wish to mount a new defense and would indeed be honored to do so. The idea of justice for Vets shines brightly at this website and my remarks were borne of a desire to prevent others from choosing your path. You are quite obviously well educated which leaves me at a loss as to how you came up short in this effort. The courts grant much leeway to pro se Vets such as us.

I attach your CAVC single judge disposition here again. I apologize that it has continued to be an elusive link when posted. I try each and every one out after writing the post and some seem to become inoperative shortly after posting from the CAVC. It was working when I attached it this evening, Well, it seems every several weeks the link rots.

Here is the copy and past version:

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4156
WAYNE C. THEOFRASTOU, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Coast Guard veteran Wayne C. Theofrastou appeals pro se from a July
16, 2009, Board of Veterans’ Appeals (Board) decision that determined there was no clear and unmistakable error (CUE) in a January 9, 2007, Board decision that denied entitlement to service connection for Hepatitis C. Forthe reasons stated below, the Court will affirm the Board’s decision.
I. ANALYSIS
Mr. Theofrastou argues that the Board erred in determining there was no CUE in the January 2007 Board decision. CUE is “a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403 (2010). For CUE to exist, either (1) the correct facts, as they were known at the time, were not before the adjudicator or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994); 38 C.F.R.§ 20.1403. Review of a request for revision on the basis of CUE is based on the record and law thatexisted at the time of the decision in question. Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc). VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R.§ 20.1403(d)(2) (2010); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”). An allegation that the adjudicator improperly weighted or evaluated evidence also cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3) (2010); see also Damrel, 6 Vet.App. at 246. The Court’s review of a Board decision regarding an allegation of CUE in a prior decision is limited to whether the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and whether the decision is supported by an adequate statement of reasons or bases. 38 U.S.C. § 7261(a)(3)(A); see Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en banc).

Mr. Theofrastou first argues that the Board failed to determine that VA erred by neglecting to obtain records he requested, including information related to the make and model of the jet injector used to administer his immunizations during basic training, the types of immunizations he received during basic training, the standard operating procedures for administering immunizations at the time of his basic training, and the lot number of the gamma gobulin he was administered. The Secretary responds that the Board did not err because the failure of the duty to assist cannot constitute CUE. Indeed, the regulations clearly state that “[t]he Secretary’s failure to fulfill the duty to assist” is not CUE. 38 C.F.R. § 20.1403(d)(2). Because failure to fulfill the duty to assist cannot constitute CUE, the Board’s decision is not arbitrary, capricious, or an abuse of discretion. See 38 U.S.C. § 7261(a)(3)(A).

Mr. Theofrastou presents two additional arguments in his informal brief. He argues that the Board failed to afford him the benefit of the doubt under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. He also argues that the Board failed to consider documents and articles provided in support of his claim. However, it appears Mr. Theofrastou did not raise these allegations of CUE before the Board. Se eRecord at 7 (stating that Mr. Theofrastou’s argument was “that the Board’s January2007 decision was clearly erroneous because the Board failed in its duty to assist him in locating records he contends were ‘critical’ to his claim”). Each specific request for revision on the basis of CUE constitutes a separate allegation “that must be the subject of a decision by the [Board] before th[is] Court can exercise jurisdiction over it.” Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).
Where, as here, the appellant “raises a new theory of CUE for the first time before the Court, the Court must dismiss for lack of jurisdiction.” Acciola v. Peake, 22 Vet.App. 320, 235 (2008). Therefore the Court lacks jurisdiction to consider these arguments.
Because Mr. Theofrastou does not demonstrate that the Board has erred, the Court will affirm the Board’s decision.
II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the July 16, 2009, Board decision.
DATED: May 5, 2011
Copies to:
Wayne C. Theofrastou
VA General Counsel (027)

I wish to genuinely thank you for your selfless service to our Country. Few hear the call and even fewer respond. When things go south it behooves us to close ranks as we do here and seek mutual support. This we offer free with no preconditions, sir. Consider your case an example of Justice run amok and a teaching moment for other Vets. If, after absorbing this, you still feel belittled, then I am guilty as charged in your personal court. It certainly wasn’t my intention.

Posted in CAvC HCV Ruling, Complaints Department, Important CAVC/COVA Ruling, Jetgun BvA Decisions | Tagged , , , , , , , , , , , , | Leave a comment

ASKNOD POLL

Posted on December 20, 2011 by asknod
Posted in General Messages, polls, Uncategorized | Tagged , , , , | 5 Comments

UPDATE ON DR.CECIL

Posted on December 20, 2011 by asknod

I just received an email from Dr. Ben Cecil. His old  email address is deluged in spam and almost useless. If any of you need a nexus letter for your illness(es), please contact me by clicking on the Email asknod page and I will send you his new email address. Do me a favor and thank him for what he does for us.

Posted in General Messages, Introduction-Read these first, Tips and Tricks, Uncategorized | Tagged , , , , | Leave a comment