VA NEXUS LETTERS

Posted on December 20, 2011 by asknod

A member, defined as anyone who contacts me on my email, asked me how the VA works with respect to their nexus letters. I could not honestly answer him with a truthful assessment. If you read my most recent CAVC post about Mr. Ronald Leeper, it might cause you some concern.

I left a paragraph hanging when I said I found it mighty odd that VA embarks on collecting nexus assessments on risk factors, yet they all seem to come back in VA’s favor. By that I mean the Vet loses virtually every time. If you asked someone on the street for an opinion based on facts that can be weighed by them, you might expect there to be a wide assortment of responses ranging from intensely for, tending towards a neutral stance and lastly, a cadre of definitely negative assessments. This would be in keeping with most polls taken.

Why is it, then, that any “independent” foray by VA in search of a medical opinion as to the possibility of service connection always seems to come back solidly in their favor? Experience dictates that there would be a 50-50 chance assuming the evidence is evenly balanced. After all, that’s why they perform this nexus assessment. You have arrived with an opinion (medical nexus) that supports your contentions. So, doesn’t it bother you when VA marches out and magically encounters Doctor Joe Blow on the street and he concurs with VA’s examiner 100% of the time? This seems like an incredible coincidence when it happens again and again.

Having viewed tens of thousands of BVA and RO decisions, reading the Leeper decision felt like a deja vu redux. I certainly didn’t expect VA to say that their doctor felt it was at least as likely as not, but I always have faith that the Veteran will triumph some of the time.  A monolithic denial process smacks of collusion. One other scenario came to mind after I wrote that. What if VA is in the habit of shopping for nexus diagnoses from doctors and utilizing one which will support the denial? If this were true they are violating protocol. The law states that they cannot shop for negative evidence, but we know that their adherence to law is spotty at best and driven by financial reality. Read no further than those seminal requests for remand from VASEC at the Court. You know the ones to which I refer. They all say the same thing- “VASEC agrees with the Court that he stepped on his necktie and a remand for a new trial would be in order” or VASEC admits that due process was not accorded the Vet and feels remand, rather than reversal, would be appropriate.”

As their assets are bottomless, there is no reason why they cannot assemble multiple theories and discard those which do not comport with their “wishes”. Thus, a doctor who  submitted a nexus in favor of a Vet would not know whether his letter was used as evidence. He isn’t called to testify or defend his theory. He is contracted to provide a service and that is the end of it. The Veteran, on the other hand is required to defend his nexus and often to have his doctor submit an addendum to address VA contentions. In many cases his nexus is declared “not probative” and discarded entirely.

I go to great pains to avoid sounding like a conspiracy theorist and am usually confident that the VA dog and pony show is above board. Recently, with the advent of the new “speculation” non-nexus technique, VA has created a whole new form of denial. A denial based on an inability to come to a conclusion is not a denial. It is simply a decision being held in abeyance awaiting more information. VA doesn’t see it this way. The Leeper decision was proof that you can always get someone to commit to a yes or no eventually. The military would be in one hell of a pickle if they sat around and endlessly dithered about whether to attack or not. Putting off the decision for lack of input simply means some one needs to investigate further to ascertain the truth with some degree of certainty. Throwing your hands up and declaring you are hopelessly deadlocked like a hung jury cannot serve as a decision. VA thinks its perfectly acceptable.

This is the current state of knowledge concerning nexus letters at the VA. What is not in dispute is that if you arrive without one, VA is not obligated to provide one. If your evidence strongly supports your contentions, VA will most assuredly obtain a nexus to deny you. If you arrive with one, even money says they won’t fight you, but that is not guaranteed. VA’s decision on fight or flight is nuanced. If your case can be won at a higher level, they will acquiesce. If they feel it’s “iffy” as they did in Mr. Leeper’s claim, they may feel emboldened to take a chance on a protracted battle.

I have always advocated for a nexus that covers every contingency to avoid the above. One thing I have learned from this is to expect the unexpected. Vets can build the perfect claim to support a jetgun defense only to have the VA sky out and say it was STDs and the nexus didn’t encompass that. Same for tattoos.

Winning is sometimes a matter of expecting that VA is going to resort to what wasn’t covered or ignoring evidence which will vindicate you. In most cases, you expect that an agency of the Government will be a stand up organization-especially one with Veteran’s interests at heart. When viewed as being akin to an insurance company, it all makes sense. It isn’t their money , but they go to inordinate lengths to hoard it. Knowing this helps when you file for benefits

P.S. Look at the Nexus Bible above in Pages for an extended compendium of what you need to prove it.

Posted in General Messages, Tips and Tricks | Tagged , , , | 5 Comments

CAVC–LEEPER v SHINSEKI-SMRs

Posted on December 18, 2011 by asknod

This decision mirrors what I am appealing in that I had medical records from a civilian hospital during my time in service while on duty. Legitimately, these records would be associated with a Veteran’s SMRs. The truth is they rarely are.

Ronald E. Leeper approached the bench March 23rd, 2011 with an appeal for HCV and chronic Myelogenous Leukemia (CML). The RO and the BVA had done a magnificent job of ignoring the glaring evidence in his favor and focused entirely, as is their wont, on only that which supported their hypothesis.

Ronbo was a lifer and did his 20 in the Air Force. He retired honorably in 1990 and found himself in some medical difficulties shortly thereafter. In 1996, he discovered he had chronic HCV and two years later he got the cancer. After a solid twenty in the service of America, it could reasonably be assumed that that would be the first place to look for answers. Sure enough, he’d had  “hepatic symptoms” documented in a French emergency room and had a long history of being exposed to benzene fumes down on the flightline. Benzene, to the uninitiated, is found in 130 octane Avgas and also in JP-4. Actually it’s in all gasoline, but this exposure for 20 years was far more insidious. This is a well-known precursor to CML and many doctors have written papers on it. Hepatic symptoms in 1986 would be impossible to diagnose as HCV, due to it not being “discovered” until 1989. This in no way dissuaded the RO and their cohorts at the BVA from finding against him.

Ronco filed in 2001 and had really good nexus letters to support his thesis on contraction of both diseases. It wasn’t like he showed up with an alien abduction risk theory. A man spends 20 years at a job, comes down six and eight years later, respectively, with some serious diseases and VA concludes that a) there’s no correlation and b) it happened “years and years ago” (a la Maxson v. Gober). The chutzpah is astounding. That the BVA seconded this motion and affirmed twice flies in the face of all scientific logic.

Now, I mentioned above the similarity of our cases (Ron and mine). The RO went to great lengths to ignore anything about the hepatic event in the French emergency room, even though it was part of the evidence. Mine was similar except it was in Thailand. The silence was deafening.

An August 2002 VA rating decision denied the appellant’s claims. R. at 996-99. The regional office (RO) decision noted that the appellant’s service records did not include treatment for
or diagnoses of hepatitis C or CML. Leeper v. Shinseki (2011)

Th is the art form employed by the VA. I want you all to memorize the technique. It is semantics. I bolded the pertinent phrase. The VA examiner didn’t lie. He didn’t stretch the truth. What he did is simply state that that the SMRs were silent for this. If you go no further afield and ascertain the truth, you can legitimately state that where you expected to find this, it was absent.

As for the CML, Mr. Leeper’s treating oncologist stated in his 2002 nexus letter that benzene is a known carcinogen that causes leukemia. I quote:

Mr. Leeper worked for 20 years while enrolled in the service on the aircraft crew support, which put him on the flight line frequently (with hundreds of running planes). In this position he would assist with the loading/unloading of planes and often the fuel pumps would be stored directly in his compound, all of these activities therefore giving him probable exposure to Benzene. Benzene is a colorless liquid that evaporates into the air very quickly and dissolves slightly in water (such as your perspiration). Breathing high levels of benzene can be hazardous, with the major effect of long-term benzene exposure (365 days or longer) being on the blood. Benzene causes harmful effects on the bone marrow and can cause a decrease in red blood cells leading to anemia. The Department of Health and Human Services has determined that benzene is a known human carcinogen and long-term exposure to high level[‘]s in the air can cause leukemia, cancer of the blood-forming organs.  

Dr. Ronald D. Butler nexux letter (2002)

It appears this is common knowledge to oncologists and the DHHS but not VA physicians…

In March 2004, the appellant underwent a VA examination. R. at 877-79. The examiner stated that “[t]here is no evidence that benz[e]ne exposure or other agents can cause [the appellant’s
CML].” R. at 878. He therefore concluded that it would be “unfounded speculation” to link the appellant’s condition to benzene exposure. Id. Regarding hepatitis C infection, the examiner similarly concluded that “it is not possible to say when the veteran was infected with the hepatitis virus without resorting to unfounded speculation.” R. at 879. While the examiner noted at the outset that he had reviewed the appellant’s claims file, he failed to reference the 1986 service medical records that noted treatment for hepatic symptomatology or the submitted opinions from Dr. Butler with supportive treatise excerpts.

Leeper supra

Veterans would be advised to learn how to read their RO decisions carefully and fight these mistakes before crossing swords at the BVA. Once a misconception is perpetrated, it can be utter hell trying to undo it. The BVA simply perused the VA examiner’s nexus and agreed. I think that’s fairly obvious. No deep thinking was employed or the deficiencies Judge Holdaway points out would  have been called out. Or… there was collusion. I will let the reader ascertain that.

This moved up to the Court and the VASEC finally acceded to a joint remand in December 2006. VA wasn’t finished by a long shot. Even with documented proof of the Hepatitis in 1986 while in service and a new concise, well-written nexus on the CML, the VASEC started spending some serious dough on his new nexi. This is interesting to look at. VA should have acknowledged at that point that the BOTD was there to grant this. Instead, the RO doubled down and went after not one, but two new opinions. They were not going quietly into the night.

In June 2008, Dr. Karl Brown discussed the appellant’s possible hepatitis treatment in 1986 but ultimately concluded that he could not resolve the issue “without resorting to mere speculation because there is actually not adequate documentation of his hepatitis presentation to be able to say what it was actually from, and since we did not really have a test for hepatitis C at that point, it is very difficult to actually answer.”

Leeper supra

Actually, I call bullshit on this and I apologize for my scatological reference. This was a blatant attempt to obtain some negative evidence against the claim. I am willing to bet they had to shop around for a doctor who would say this. I doubt they were lucky enough to lasso this fellow the first time out. Nobody is that fortunate. Again, the wording in red is the defining semantic moment again. The VA here is still not willing to say the 1986 French hospital event even occurred. It’s “possible” which is about as equivocal as you can get. Remember VA hates equivocal statements and if you or I submitted a nexus containing the word “possibly”, it would be tossed out lickity split.

As for the CML? Well, another doctor miraculously appeared and had a significantly different take on it. What I noticed is that there is no reference as to what Dr. Michael Kelley’s area of expertise was. He could have been a proctologist with a minor in obstetrics for all we know. VA is fond of attacking your doctor for not having an extensive background in Gastroenterology when he opines on HCV. Doesn’t anyone find it strange that the bona fides of Drs. Brown and Kelley were inadvertently omitted? When you go up against these people, you have to examine every detail and become anally semantic in your own right. Once you do, you will find all manner of defects in their “expert evidence”.

A November 2008 medical opinion by Dr. Michael Kelley addressed the relationship between the appellant’s benzene exposure and CML diagnosis. R. at 71-74. After discussing the opinions of Dr. Butler along with epidemiologic evidence on benzene and lymphatic and hematopoietic cancers, Dr. Kelley concluded that the appellant’s “CML is less likely as not caused by exposure to benzene during his uniformed service.”

Leeper supra

And? Based on? Predicated on which scientific research protocols conducted by whom when? If you and I cannot get away with such bald -faced, unsubstantiated claims, why is it VA feels it should be above reproach?

The Ronmeister got a new denial from the BVA in 2009. This one was even more queer.

As to the claim for service connection for hepatitis C infection, the Board noted the 1986 treatment for hepatic abnormalities and the eventual diagnosis for hepatitis C infection in 1996. R. at 10-11. The Board found persuasive the fact that “service treatment records do not reveal any findings, diagnosis, or treatment of hepatitis C during active service,” and further that objective medical findings of hepatitis C “are first shown in 1996, many years after separation from active service.”

Leeper supra

Here we see the BVA has graduated from “too speculative to arrive at a conclusion”to  the Maxson theorem that it happened “many years after.” As we know, HCV is a cryptogenic disease. This is just more hot air in search of a balloon. 10 years in the life of HCV is a blink of the eye. As you can see in red, they are still trying mightily to keep their head in the sand about the French connection. By “noting” it, the decision will ostensibly be able to pass muster on appeal to the Court. Look up denial in the dictionary and see if there is a picture of the VASEC. These guys are hoping no one will notice the error of not addressing the private medical records and explaining why they are not probative. This is how VA has been treating my case, I might add.

Again, the BVA tried to do the amazing disappearing evidence trick by addressing some, but certainly not all, of the evidence. Leaving out the most probative of documents concerning the CML was no accident. This mistake alone voided the decision. Why did they resort to cheap parlor tricks to hide this? They are past masters of all things legal. They do this 24/7/365. This was not inadvertant and had I been the Judge instead of Holdaway, I would have had some serious words with the General Counsel on his devious presentation.

Regarding CML, the Board found that the “most probative (persuasive) evidence on the question of whether the [appellant’s] CML was incurred as a result of events during active service” was the November 2008 VA physician findings. R. at 18. The Board expressly discussed the “medical literature from the Internet submitted by the [appellant] in 2002” but failed to address the evidence submitted in February 2009.

Leeper supra

Again, we stub our toe on the semantics. The Board has decided the VA physician’s findings are more persuasive without getting down in the weeds and telling us why this is. The CAVC has held repeatedly that statements made with no supporting suppositions are not probative and will be disposed of with the baby’s bath water.

I conclude with Judge Holdaways’ observation:

The Board cannot reject evidence favorable to the claimant without providing adequate reasons or bases for its decision, and clearly, the Board cannot ignore evidence altogether.

Leeper supra

This is not an aberration nor is it the last time the RO and the BVA will attempt this. If a Vet doesn’t appeal, and anecdotal evidence suggests as much, he will be denied based on faulty logic and justice that is corrupted. The lawyers for the BVA were complicit in this ruse. They purposefully set out to disenfranchise this Vet, not once, but twice. The fellow has now invested 1o years into this and is once again headed to the showers for yet another remand. The sheer audacity of the BVA to attempt this a second time speaks volumes about their tenacity. By rights, Mr. Leeper should be at home playing with his grandchildren with what little time he has left. He does not deserve to be accorded the status of a welfare cheat trying to hornswoggle a Social Security judge. That he served honorably for 20 years and has presumptive risk factors that are dispositive of his claims gives him more legitimacy than most. VA’s attempt to deny him is predicated entirely on fabricated opinions manufactured for one purpose. So much for a claimant-friendly venue in which to present our claims.  Decisions like this are why I started this web site.

Leeper

Fortunately, perfect women are easier to find. I’ve already found two so far.

Posted in CAvC HCV Ruling, Important CAVC/COVA Ruling, Tips and Tricks | Tagged , , , , , , , , , , , | Leave a comment

BVA–HBV=JETGUNS

Posted on December 16, 2011 by asknod

Here’s a jetgun decsion that is clean-i.e. there is no other risk other than jetguns to consider. What will make your hair stand on end is what this Veteran assembled and presented as evidence. He has obviously done his homework. He’s being represented by the VVA, but I’m sure they weren’t his waterboy on this one. You will notice this pertains to Hepatitis B virus , but the bold type at the bottom tells a different story about the risk of transmission of hepatitis.

Read this and remember it when it’s time to file your claim:

Also in January 2011 the Veteran submitted a 
November 2005 Board decision which noted that:

The VA physician indicated that a review of 
the medical literature, including a report 
from the CDC MMWR dated in June 1986, 
confirmed a high correlation between this 
method of immunization and Hepatitis C 
infection (the Board notes that this excerpt 
actually pertains to the Hepatitis B virus).  
The VA physician also noted that a review of 
a document from the Department of Defense - 
Epidemiology Board dated in January 1998 
strongly recommended that multi-use jet gun 
injectors not be used because of the risk of 
transmission of blood borne diseases.
http://www.va.gov/vetapp11/Files4/1139163.txt
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BVA– DM2 AND 55 GAL. DRUMS

Posted on December 16, 2011 by asknod

Have you ever had a premonition that a 55 gallon drum near you might have Agent Orange in it? It happened to me a lot in SEA. In fact, they all had orange rings around them except for the ones with blue rings. We never used the word Agent though.

Imagine being out in the woods on maneuvers in western Washington and coming across some 55 gallon drums of “something” in 1973. This would be about 3,000 miles away from where any herbicide was used. You would automatically assume it had something to do with herbicides, though. Right? Even if it was lacking the telltale orange stripes. Dang. I wish I had ESP. I’d wouldn’t waste it on that business. I’d head to the casino.

Here, Dick Tracy determines there was definitely a link between those drums, herbicides and his DM2 38 years later. Brilliant.

The Veteran contends that he was exposed to 
Agent Orange in service.  At the Board 
hearing the Veteran testified that while 
stationed at Fort McChord in Washington 
State he was at a meeting at a remote 
edge of the base.  Near the meeting location 
there were large 55 gallon blue drums with 
a chain link fence surrounding them.  The  
Veteran testified that he did not know what 
was in the drums, "what is in those drums I  can't 
honestly tell you", but he contends  that it was Agent 
Orange.  He reported that he didn't think it 
was diesel as they were allowed to smoke.  
The Veteran testified that he was never told 
that Agent Orange was in the drums.  At the 
February 2010 local hearing the Veteran also 
testified that during the meeting he was 
near blue and white or green and white 
drums and that he did not know the contents 
of the drums, nor even whether they were 
empty or full.  The Veteran's contentions 
that the blue or green 55 gallon drums 
which he was in proximity to contain Agent 
Orange are unfounded.  The Veteran was 
never told what was in those specific 
drums, nor was he told that Agent Orange 
was stored anywhere on base.The Department 
of Defense has acknowledged that Agent Orange 
and other herbicides used in Vietnam were 
tested or stored elsewhere, including some 
military bases in the United States.  However 
there is no record of any herbicide storage 
at Fort McChord, Washington.  The only 
recorded storage or use of any herbicides 
in the state of Washington was in 1950 to 
1951 when Agent 2, 4-D was used in water 
studies in Prosser, Washington.Even assuming 
arguendo that Agent Orange was in the drums 
near the Veteran during the meeting, he has 
not argued that he was actually exposed to 
Agent Orange.  He does not contend that he 
touched any liquid or inhaled any fumes.  
The Veteran did not report touching the 
drums, or touching any liquid near the drums, 
or that the drums were opened and he breathed 
in fumes.  He does not even contend that 
areas of the base were being actively sprayed 
or that the contents of the drums were 
actively used, never mind that he was present 
in areas where any sort of spraying had 
occurred.
 http://www.va.gov/vetapp11/Files4/1138378.txt
Posted in AO, BvA Decisions, BvA HCV decisions, Frivolous Filings | Tagged , , , , , , | Leave a comment

BVA– CALIFORNIA DREAMIN’

Posted on December 15, 2011 by asknod

Here is a Vet from, like check it out, California. And he has this, like, you know, totally awesome homey from the hood he went to school with. Anyway, dude, he got this guy to help him with his claim, like, and they worked on it almost, wow like 4 years but they lost. Bummer, huh? He was way gung ho and in the Army with medals and stuff, and he got the hep. from it. But the VA gave him the shaft and, like he’s not gonna be buyin’ the brewskis this week ’cause he’s totally broke. Like he thought he was gonna score big with his claim so he blew his roll last week. His buddy works for this Veterans place and they told him he was good to go so he can’t figure it out. He filled out the form to file with the government and he still lost. Go figure, huh?

http://www.va.gov/vetapp11/Files4/1138955.txt

Win plan:

File claim

Kick back

Lose

File F-9

Kick back

Lose.

And then what?

Posted in BvA HCV decisions | Tagged , , , , , | Leave a comment

BVA– NEW JET GUN WIN

Posted on December 15, 2011 by asknod

The newest batch of BVA decisions was posted today and there was a lot of activity on the jet gun front. Apparently this is now becoming accepted insofar as it is “biologically plausible”. I’m sure the VASEC is apoplectic about this but if it is biologically plausible and a Doctor, PA or ARNP says its at least as likely as not, then you’re in business at the BVA. Maybe not at the Winston-Salem RO, but who cares?

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

Posted in BvA HCV decisions, Jetgun BvA Decisions, Tips and Tricks | Tagged , , , , , , | 10 Comments

9TH CIR.–VCS v. PEAKE et al

Posted on December 15, 2011 by asknod

For he who shall have borne the

battle, his widow and his orphan child.

Abraham Lincoln- from his Gettysburg Address

As to whether the Court has jurisdiction to

institute remedial actions to compel the VA to do their job:

 “I don’t know. It’s an interesting

question. I don’t believe so.”

VA Government Counsel

Veterans are on the cusp of either relief from systemic delays endemic at the VA or being precluded from ever entering the halls of justice to seek injunctive relief from denial of due process.

The oral tape of the hearing was not of high quality at the beginning so I was unable to ascertain the name of counsel for VCS. He was, however very eloquent and made his case succinctly in the last two minutes on rebuttal, such as it was. VCS has couched their argument in terms of there being no remedy for delay of mental health benefits and the concomitant delay in benefits sought for death or pension compensation. Counsel contends this is a predicament for which there simply are no procedures in place to deal with the delays. He ably argued that 38 CFR §20.900(c) is not a panacea for this widespread practice. This regulation, of course, is the only one the CAVC can use as an Article 1 Court for relief. As we know, this simply advances one Veteran’s claim at the expense of others who have waited even longer for justice-hardly an equitable solution.

Listening to the Judges, it might seem as though they seek to absolve themselves of standing in this action. Nothing could be further from the truth. The Ninth Circuit revels in this sort of case. One of the Judges put forth a hypothetical postulation to the VA counsel that drove the nail home. VA has always maintained that they should be left alone to their own devices. They seek anonymity in their own splendid isolation to operate their fiefdom with no outside oversight. VCS has rudely interrupted this practice by calling them on the carpet for a practice that has been going on as long as I have been filing claims. The fact remains that VA has made no attempt to cure the ills complained of in spite of its protestations otherwise.

The Judge mentioned above put forth a scenario of where a Vet might turn if he or she perceived discrimination based on sex or race-to wit: Would it be permissible for a Vet to turn to the Fed. Cir. for relief if they were a) an individual versus a group and b) the discrimination or failure to resolve the inequity was inherently absent from an Article One Court’s charter? The counsel for VA initially said “I don’t know. It’s an interesting question”. Several sentences later he said there needed to be a specific case to cite to, not a class action. He then opined that he didn’t believe the authority of the Fed. Circuit extended into that realm. He reversed course several sentences later and said an individual wouldn’t be precluded from seeking appellate review from the Fed. Cir. Huh?

The counsel for VCS tries and succeeds in my mind, to present this as a problem that VA is ill equipped to handle. They have no procedures in place to comprehend the extensive delays and their current defense is “Nehmer’s slowing us down”. VCS tries to divorce this from the strictures of 38 USC §511 to  §7292(c) and move it into the light of deprivation of due process.

The unvarnished truth is that VA acknowledges they have no clue as to what the delay is due to. Their whole argument is to deflect the thrust of the inquiry and ask for an individual example or examples. Lord, there are no dearth of those lying about. I’m no poster child for this, but I’ve been waiting for sixteen years. VCS’ counsel cited Cushman which had festered for 20 years (see discussion of Cushman in link below)

.http://www.bva.va.gov/docs/VLR_VOL3/4-DeutschAndBurriesci-DueProcessInTheWakePages220-262.pdf

In the preface, VCS’ counsel made some strong statements that frame this case very well. The system’s broken and everyone is standing on the side of the road arguing about the correct course of action. Some advocate for extreme measures (VCS) and others (VA) would prefer to let the system right itself with time or, in the alternative, that the 9th Federal Circus has no right or standing to propose solutions to this.

Let’s look at this from an historical perspective. Courts have   (since the sixties) become more amenable to the plight of the individual or a class where due process issues arise. Look no further than the seminal remedies employed to integrate schools forcibly in the sixties or remedies for overcrowding in state prisons and jails. In each instance, the Courts interposed themselves in the middle of what could only have been considered turf belonging to the legislative branch. This judicial activism resulted in a sea change for Civil Rights in the first instance and a radical departure from how States ran their prisons in the latter. This is the ammunition VCS brings to the Court as evidence that that intervention is both needed and is apropos.

The government and VA would prefer to repair it themselves, yet they have shown no inclination to do so. Their silver tongued arguments that this will soon be remedied are becoming repetitious and redundant with no appreciable relief for Veterans on the horizon.

VCS ably made its argument that if the Court rules against them, they will effectively squelch more than Veterans’ due process rights. A ruling in favor of the government would effectively deprive anyone of relief when they are at the mercy of a closed system such as the Social Security and Veterans courts.

The judges put VA’s counsel off kilter when they inquired as to who a Veteran would turn to for due process relief if he were deprived of this avenue sought.  A Writ of Mandamus for injunctive relief from undue and interminable delay currently is the only remedy and that simply disenfranchises another Veteran. As the CAVC can only offer relief in a narrow vein, and this avenue is not accorded them in their charter, it would appear that Vets have no judicial venue to protect their interests absent one proffered by the  Ninth Circuit. VA dissembled and had no specific answer to that. When one of the Ninth’s nine cited to Bowen v. Mass. for the proposition that the Fed. Cir. does indeed have this statutory power, VA had no rebuttal argument in their back pocket to counter with. Nevertheless, they insist the Ninth Circuit most definitely doesn’t have it.

http://supreme.justia.com/us/487/879/

VA is on thin ice and has been for years. They have always been able to ask for one more chance like a junkie asking for one more fix before going to rehab. Their arguments have been extremely well received in the past and I’m sure they expected no less a reception before the Ninth Circuit’s en banc Court. They must have thought they would receive a more cultured group amenable to the Government’s point of view after the earlier bitchslap from the panel. It must come as a rude surprise, then, when the Justices proceed to ask embarrassing questions and query them on when (and how) they propose to correct this problem. The old answers don’t seem to work any more.

America has once again become enamored of its citizen soldiers and their contributions to our freedoms. There’s nothing like a Pearl Harbor or a 9/11 to galvanize the populace to our cause. This increased attention has had the unfortunate effect of shining a light on VA’s shortcomings. Vietnam cast a long shadow on our military that has taken forever to throw off.  People are proud of our military and its accomplishments again and they feel remunerations are in order, not excuses. This appreciation for all things military exposes Government’s professed support of the Veterans Administration and the actual facts. VA can no longer hide its mentally defective aunt in the upstairs bedroom and say she’s under the weather today or she’d be here in the parlor with us. The facts are starting to seep out like last week’s garbage under the kitchen sink. Febreeze and excuses won’t mask the problem anymore.

All in all, this will be the Chicken Little moment for Vets. Either the sky is falling as the VCS has unarguably pointed out-or it isn’t and its just a “perception” problem. When a Veteran has to wait 89 days to see a mental health expert and chooses to end his life while waiting, I submit the sky is falling. When 18 Veterans a day chose this option because they have lost their ability to “perceive a solution” then I, too, submit that it is time for the Court to intercede on their (and our) behalf and correct this injustice. The alternative is too egregious to be allowed to continue.

http://www.ca9.uscourts.gov/media/ Third case down on the docket.

Posted in Fed. Cir. & Supreme Ct. | Tagged , , | 1 Comment

CAVC– Barbaccia v. Shinseki–Duty To Assist

Posted on December 13, 2011 by asknod

imagesIt’s nice to see the Court put as much effort into a SJD memorandum decision as they do  the bigger Dog and Pony shows. Mr. John R. Barbaccia , a Veteran as well as a frequent member of the Nasty Guard, has limped off the field with his honor and his flag intact. He will live to fight another day and perhaps return to visit Judge Alan G. Lance, Senior if things don’t go well at the BVA again.

Johnboy filed for NHL and HCV in 2000 while he was still in. He wasn’t feeling well and was getting ready to roll up and go home. He didn’t foresee 9-11-01. He finally asked for his walking papers in July of 03 and was separated.

In the meantime he was busy signing off on SF 10-5345s to give VA authorization to obtain his civilian medrecs. After all, this is what you do when you file, right? VA has a duty to assist the Vet. This is paramount when the Vet gives you the name, rank, airspeed and tail number of the doctor, where to find him and what kind of ordnance he has under his wings. One expects this to be a given that they will do what they are required to. Imagine the Johnster’s surprise when he was denied two years later. Being like most of us, he blew it off the first time and didn’t appeal. He woke up in  March 2005 and filed to reopen. The shutdown was much swifter this time- August. The reason? No New and Material evidence to reopen. Mr. B filed his NOD in November and started looking into this very carefully this time. Something was apparently amiss. All that VA doubletalk he’d gotten the last time around was starting to sink in. He didn’t have a nexus letter connecting the dots and VA was quick to use that as the salient reason for the denial. Mr. Barbaccia was getting a college education in a few short months on VA protocols. This didn’t dissuade him in the least. He filed his Form 9 and got in line at the BVA. This decision does not specify when, but it’s apparent the BVA hosed him by the record. Nonplussed, Johnmeister filed his NOA and got in line for another long wait.

He arrived here at the Court to plead his case hoping someone with a three-digit IQ and a real law degree would listen. His prayers were answered. Alan and the chipmunks went to work and discovered some serious problems with that pesky duty to assist provision. Seems the VA had been a little remiss in retrieving his civilian records:

The Secretary argues that the appellant’s written consent (R. at 220, 222) was submitted in February 2001, which is prior to the
April 2002 rating decision that became final, and that the consent was not “new and material” under 38 C.F.R. 3.156(a) (2010), because it was previously of record. Secretary’s Brief (Br.) at 8. The Secretary further asserts that the appellant “has not demonstrated any prejudice where these postservice records were not obtained where his claims were denied due in part to lack of evidence of in-service occurrence.” Barbaccia v. Shinseki (2011)

Negative copy. Say all after “was submitted in February 2001”? This is VAspeak for “we were unable to understand what it was he was submitting written consent for (second time) so we put it in the circular file. As for it being prejudicial? Well, that all depends on how you define prejudicial. We don’t think he got it in the service, so we’re not gonna squander any time looking for it even if he asks us to. What a waste of time.” Judge Lance said otherwise.

Here, the Secretary does not dispute the appellant’s argument that VA made no attempt to obtain his medical records. As § 3.159(c) clearly states that the duty to assist includes obtaining records for an appellant who seeks to reopen a claim, the Court concludes that VA failed to fulfill its duty to assist. As for whether this error was prejudicial, in his request for VA to obtain the records, the appellant denoted the conditions for which each record was relevant. R. at 219, 220, 222, 234. By making clear references that the records he seeks VA to obtain relate to his lymphoma and to his hepatitis C, the appellant meets his burden of demonstrating that these records are potentially relevant to his attempting to reopen his claim and he is prejudiced by the RO and Board not having these records to review to make its decision.  Barbaccia supra

Jez, I don’t know which is sadder- the VASEC trying to blow this Vet off and give him a smorgasbord of nunc pro tuncs or a Judge having to take the VASEC aside and tell him he’s not allowed to do it. He’s not in some foreign court and cannot claim unfamiliarity of the law. Hell, he writes the regulations in  38 CFR ! What kind of defensive posturing is this?  This is like a first year law student screwup. It should never have arrived at Indiana Ave. in this state. What was the Veterans Law Judge who signed off on this smoking? If Shinseki and his merry band thought they could roll Lance this easily, they may have to rethink all their legal strategy. It ain’t gonna happen. VASEC tells the General Counsel what to do. They don’t exude flatulence without permission from on high.

The Court is an august place to do business. When caught cheating, they tend to slap your wrist verbally. The current VASEC has been engaging in this sort of shotgun justice on Vets since his investiture in 09. A Vet himself, this leaves me with a sinking sensation. §3.159(c) has been in existence for quite some time in its current iteration. Nothing new has been appended to it. It doesn’t have a lot of conjunctive adjectives and sub-layers that require a Powerpoint presentation with the laser that I torture my cat with. Judge Lance must have been thinking something similar. He was polite as punch and told Eric to take Mr. B’s case back down to 810 Vermont AVE. NW and be quick about it.

As stated above, Johnbo will live to fight another day. Sir Eric will  pursue his hobby of disenfranchising Vets as he pleases frequently and legally with abandon. Judge Lance will continue to do what he does best which is identify injustice to Vets and correct it. Why Mr. Barbaccia had to wait ten years to get this straightened out and remanded for an honest “trial” will elude him (and me) forever.

An ex parte system of justice shouldn’t be mutually exclusive of communication between the participants. We shouldn’t have to read about our denial 3 years hence based on illegal actions. A simple tool called correspondence, via Ben Franklin’s invention (the USPS), could have cleared up this misadventure in short order. I do hope Mr. Barbaccia had the pleasure of attending the oral presentation of this case and stood up at the end with some spot on  comment like “Yo!. Who’s the fool, fool?”

BarbacciaJR_09-3136

Posted in CAvC HCV Ruling, Important CAVC/COVA Ruling | Tagged , , , , , , , , , , , , , , | 8 Comments

More for Veteran’s Wives

Posted on December 13, 2011 by asknod

Here I thought I had put paid to the praying mantis with her matching handbag. When what should my wondering eyes behold? Why, a feral cat who showed up here starving on Labor Day weekend. She took a long time to gentle and still refuses to come inside or sleep indoors. Ambush lies in wait and pounces on your leg as you go by. You have to shake her off literally sometimes. The dogs have made peace with her. She moved into the barn and is earning her keep on mice abatement. I’ve never had a totally black cat. If it’s bad luck for one to cross your path, everyone around here is due for a stretch of about 100 years.

Today Cupcake noticed her eyes are the same color (or pretty close) to the handbag. That, of course, required it to be promptly digitally immortalized  . She says the color is “celery”. I say it’s electric guacomole. Ladies, today I give you Kitty… with matching handbag.

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CAVC–DRAGNET–JUST THE FACTS, MA’M

Posted on December 12, 2011 by asknod

VetCourtAppealsPromoSometimes you can catch a break. A good example in Vetsworld is when you arrive at the Court. I capitalize Court because it’s our Supreme Court of sorts. The BVA is not a court. It is a more erudite appellate form of the cave man Regional Office venue. You will be accorded an appeal, but unless you’ve radically improved your case via new evidence or the RO was stuck on stupid, the BVA will merely reverbalize what they are handed like a DRO review.

Most who travel there to plead their case will be complaining that the prior two venues were dumber than goats. As most know, your first and possibly only intercourse will be as a single judge decision such we are going to examine here. If it involves a totally new concept of law never before decided, you will be accorded a panel opinion of 3 judges. If it threatens the foundations of Vetkind, it will be heard en banc which is currently 7 judges. Actually they only have 6, but one of the retired ones would be called in. When the president and Congress see fit, they will vote to approve 3 more and we’ll have a full house. They cancelled the hearing scheduled for tomorrow regarding this. I expect it would play havoc on their shopping plans. Such are the vagaries of Vet’s justice.

Meridyth Dwyer has arrived, after much delay, before the Honorable Judge Lawrence B. Hagel who was appointed by W in 2003. She seeks DIC for the death of her beloved, William S. Dwyer. He departed for new adventures in 1995. She filed at that time and has been chopping down trees to make paper ever since. Hell, on page three it says they didn’t do much of anything from 1997 to 2004. That must have just frosted Mrs. Dwyer no end.  The battle of the nexus and interminable remands have been her nemesis lo these 17 years. What always pulls my string is when the VASEC arrives in court, after ample preparation, filings and counterfilings, and says something like this:

The Secretary agrees that the Board erred in relying on inadequate medical opinions and failing to properly explain its finding that VA satisfied its duty to assist. Additionally, the Secretary asserts that the Board erred in summarily dismissing Mr. Dwyer’s lay statements as incompetent and of no probative value merely because he was not a medical professional. However, the Secretary argues that each of these errors necessitates remand, not reversal. Dwyer v. Shinseki (2011)

I’m sure Meridyth is okay with this assessment, but why is Gomer just now bringing this in? Why not a joint remand for development about a year ago? The reason is simple. Once in Court, the General Counsel boys lick their collective finger and hold it up to see which way the legal wind is blowing. Since it always blows towards legitimacy, they are constantly taken aback that the direction never changes in their favor. Search 100 decisions, be they single Judge or panel, and I wager that of the remanded ones, VASEC will have uttered something to the effect that he acknowledges the need for a remand in 75 of them. The courts tell us repeatedly that justice needs to be husbanded to prevent piecemeal litigation, yet they almost always pull this stunt at oral argument. Hello? McFly?

Old Bill had undisputed evidence of NANB in the records in 1962, and the Board managed to just stare at one thing-the VA doctor’s nexus. They discounted two favorable opinions from his treating physician and a Nurse in arriving at this decision. Judge Hagel’s boys field stripped this decision and looked at this “VA nexus” in minute detail. Here’s Lance’s take on it:

The Court agrees that the Board erred by relying on these medical opinions without further discussion. As explained above, the Board sought clarification from Dr. Aytaman regarding his April 2004 opinion because that opinion failed to comply with the Board’s instructions. Specifically, the key portions of Dr. Aytaman’s April 2004 opinion stated that “we cannot say that the acquisition of [hepatitis C virus] in [Mr. Dwyer] is more likely than not related to [in-service] vaccinations,” and that “we cannot say it is more likely than not that the patient died as a complication of illness acquired during military service.” R. at 305 (emphasis added). However, the Board had instructed Dr. Aytaman to address “whether it [was] at least as likely as not that [Mr. Dwyer’s] [h]epatitis C, or any other disease or injury suffered during service, caused or contributed to [his] death.” R. at 311 (emphasis added). In response, Dr. Aytaman issued a second opinion in May 2005, but still did not address the question specifically posed by the Board. Rather, Dr. Aytaman concluded that, with the information available to him at that time, it was “not very likely” that Mr. Dwyer was infected with hepatitis C virus during his service. R. at 273 (emphasis added). If anything, this opinion ventured further from answering the question posed by the Board than did Dr. Aytaman’s initial opinion. Dwyer supra (emphasis mine)
The CAVC  doesn’t have it in for the Vet. They are consumed with the fine point of the law. I think they may go so far as to compare themselves with King Solomon the wise. I bet they feel left out if their grandkids have a disagreement and they are not called in for arbitration. They are stand up guys even if they’re stuffed shirt types. When they find judicial misfeasance, they are anal about telling you in as many words as possible. What ever happened to en banc opinions from the early 90’s that summed it up in four or five pages? Puffed shirtery, I guess.

The VASEC always has one trick up his sleeve- the mea culpa argument:

The Secretary, on the other hand, concedes that the Board erred in relying on Dr. Aytaman’s opinions, but contends that the appropriate remedy is to vacate the Board’s decision and remand the matter for further development and readjudication. The Court agrees with the Secretary.

And:

Additionally, the Secretary contends that the Board did not properly consider the competency of Mr. Dwyer’s lay statements that he believed he was infected by the hepatitis C virus while in
service. The Court agrees that the Board clearly erred in this respect.

Dwyer supra

So here we go again. The VASEC has donned sackcloth and ashes,  conned Hagel into letting the BVA go on another fishing expedition to fix this and deny poor Mrs. Dwyer properly. Dr. Aytamen will be taken aside and told “Listen Habib. Read the letter and do it like it says. Write ‘not at least as likely as not’ and don’t embellish it. You made the boss look like a boob, you dolt. Another one of these ass backwards nexus attempts and we’re gonna have to take a look at your long term VA employment prospects. Are we clear on that?”

Out of respect, I will stay neutral on this one. To me it’s definitely a BOTD situation, but VA has failed to follow the rules. When do they ever? Giving them another chance to bushwhack her legally is counterproductive. Habib should be given the benefit of the vacation and another truly “independent” source from outside the system do the nexus without benefit of anyone else’s opinion. I would call that the true Joe Friday “just the fax, ma’m. Just the fax.” I don’t know what’s up back east, but we on the left Coast have been given the QTC system of C&P exams (see VA dictionary). Some Vets benefit from this where HCV is concerned. At least QTC knows that the  NANB test arrived in 1988 and the term HCV wasn’t invented until 1992. Sadly, I can’t say that about VA examiners.

Last but not least, Judge Hagel admonishes VASEC to make sure he actually gets Dr. Habib to say whether he did or did not contract this disease in service. This is a vicious verbal jab you usually hear a haughty woman offer another in a soft, silky voice with a deadpan expression. It’s akin to broken up glass hidden in ground beef, but couched in innocent verbiage:

The Court is compelled to comment on one other issue that may arise on remand. Namely, the Court notes that, in relevant part, the instructions the Board provided to Dr. Aytaman in March 2004 asked him to comment only on “whether it is at least as likely as not that [Mr. Dwyer’s] [h]epatitis C . . . caused or contributed to [his] death.” R. at 311. Thus, the Board did not ask Dr. Aytaman to comment on what appears to be the other critical question in this case; namely, whether it is at least as likely as not that Mr. Dwyer was infected with the hepatitis C virus during his service.  Although it appears Dr. Aytaman attempted to offer such an opinion, the terms of his opinion were deficient, as outlined above. On remand, the Board should carefully phrase any future inquiries to VA medical personnel so as to include this question. Dwyer supra.

Smart money could go either way on this. DIC isn’t that much and Mrs. Dwyer isn’t going to collect it for very long. Wild Bill probably enlisted for Korea in 1952 at 18. She’s every bit of 80, nearabouts. She’d pull in $220 K in back pay, too. VA may just let it slide and give it to her. Knowing the Man, for $220 K he won’t let it go. She’ll be back in two years. Mark my words.

This was the first HCV case in 2011 so she’s already got a year of knitting piled up on her needles. Our prayers are with you, Meridyth.

DwyerM_09-2077

Just for shits and grins I googled her attorney-Sean A. Ravin and look what I found:

http://www.seanravin.com/web/legal/disclaimer.html

The internet is an amazing device. So is a woman.

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