From the Footlocker–Divorce Reception

Posted on December 31, 2011 by asknod

While you are warming your feet in front of a fire somewhere tonight, listening to the crackle of the wood, have a laugh on this. I have told you how I have an irrepressible humor about all things sacred. Here is proof of the lengths I will go to bring a smile. Of course in 1981, I would party at a drop of the hat. After all,  it was only eight years and eight months since I’d arrived home from sunny Southeast Asia. It was five years and eight months ’til death of marriage did us part. Apparently it had something to do with my PTSD and it rained too much in Washington.

This little catered black tie get together for 100 with the champagne fountain, Swedish meatballs in cognac,  Dungeness oysters on the half shell and three-tiered Divorce cake was quite the event of the season. It (the divorce cake) made the local papers. A photographer from the Seattle Times happened into the bakery at the wrong time and spotted the bridegroom standing alone with the crudely hacksawed remains of the bride’s arm still visible. I forbid pictures at the reception so as to avoid their getting back to Constance Louise. No need to drive up the animosity factor or increase the support payments, n’est pas?

In my defense, I would point out that I was taught to be excruciatingly correct in my dress and deportment. To divorce without a suitable announcement would have been socially awkward. How else could I announce my new marital status to all those women waiting in the wings?  Relax. I ran it by Miss Manners first.

Posted in From the footlocker, General Messages, Humor | Tagged , | 1 Comment

NEXUS LETTERS AND JETGUNS

Posted on December 30, 2011 by asknod

Nexus letters. Perhaps the single most important item in your claim is a piece of paper with magic words on it. What’s frightening is that almost no one files with it in hand. VSOs seem oblivious to the requirement which is extremely odd. VA’s letters have always been vague on this and are now finally addressing it in English rather than VAspeak.

Over the last several months I have been asked numerous questions about what is needed, how it should be phrased and what it should cover. A new group of Vets have found their way here and were never part of the old site. They have not delved into the BVA jetgun library or the Tips and Tricks section. I have noticed this habit on other sites where a Vet new to the process asks for advice and often prepares his whole defense before receiving his records from St. Louis. Winning this game is more than filing a claim and waiting. This is why this site exists and why there are almost 500 posts by both you members and me. Those posts document tried and true techniques as well as failed strategies. It’s often as important to know why someone lost as it is to understand their success.

A large number of you have claims which are intricately tied to, and based on, the jetguns. Your chances of getting justice and SC could never be better. The brick wall of invincibility against jetguns is crumbling. Slowly, I might add, but nevertheless inexoribly. It has taken almost seven years to get some traction on this at the BVA. There still is none at the VARO level as it’s above their pay grade. They deny and punt to the BVA to avoid setting any kind of precedent. If I worked there, I wouldn’t want that blemish in my folder come promotion time.

Now that a sufficient number have made their way up to the Court,  a modus vivendi has been reached. VA and the BVA can no longer use their timeworn “non-evidence is negative evidence” dance to win. The facts about HCV have become well-known even to the Court and it’s cryptogenic nature is by now common knowledge. It is important, however, for you to note that there is no evidence in your file that you had HCV because it hadn’t been identified until 1989. If you don’t, well, VA will. They phrase it simply as “There is no evidence in the Vet’s SMRs of being infected with HCV during his time in service”. They always conveniently leave out the reason why.

This is where you, the Vet, can win. I think any rational thinking person other than a VA examiner could fathom that an unsanitary, blood-splattered multi-use injection device is capable of transmitting a robust virus when employed numerous times a day for weeks and years at a time. By granting that it is plausible, they leave open the door to the possibility. The mere fact that no one has been proven to have been infected with this device is immaterial. That is the “non-evidence is proof” school of thought. Scientific types would laugh you out of the laboratory with that pronouncement. VA, by never attempting a protocol to study this, has used  it to be the truth that there is no evidence of it. Circular logic is very self-affirmative. It’s not scientific, but it can be used like smoke and mirrors to appear so.

Enter Joe and Jane Vet. Each one’s actual risk factors are slightly different. A failure to identify them at the beginning is often used later by the examiner to somehow imply deceit or desperation. This is where you have to get it right. You want all your risks on the table with no hole cards. You are going to have your doctor examine your contemporary medrecs to ascertain there was nothing out of the ordinary when you were in service. There must be an accounting for any risk mentioned, such as extensive dental work. You are capable of reporting a large amount of blood from this kind of medical procedure and are also cognizant of what dental work in 2011 is now compared to the same in 1975. There is simply no comparison.

Any STDs must be addressed. The same is true for tattoos and percutaneous puncturing of the skin such as an EMG test or acupuncture. Exposure to blood or needle sticks as a medical  worker are another risk. Blood exposure in combat is another big risk. If you were in Vietnam, your mere presence there increased your risk by 60%. In short, you must assemble these risks and have your doctor address each and every one in his/her letter.

A nexus letter is going to be your bridge to the past as well as your path to a grant of benefits. The idea is to assemble a complete package that covers all the risks, important and inconsequential, that you, personally, were exposed to. The doctor will need to explain which particular risk is the most probable one over all the others with a descending order of risk danger for each additional one. At the end, a small summary can include a discussion of the sum of all risks and why there were none of any great import after service that bear responsibility. Again, you remove this post-service, intercurrent time span from discussion by stating that there were and are no risks. Failure to plug this hole invites a fishing expedition on VA’s part.

You can help by creating a lay testimony document where you give a brief summary of your pre-service and point out the absence of risk(s) post-service. Monogamous relationships, no history of multiple sex partners or wild, risky sexual behaviour, a quiet, mundane existence- all of these are examples of a stable lifestyle. It goes without saying that you do not want a long history of drug or alcohol abuse documented in your record. With all these attested to by both you and your spouse, it really leaves only one risk- the jetgun. This is how you build to a crescendo and win. You have to plug up all the holes in the dike before flooding the canal. Running to and fro with a caulking gun after the leaks begin is not advised. It compromises your credibility. You want to present one story with no additional editing.

VA is not your friend in this endeavor. They would just as soon use their VA doctors to “opine” on your jetgun experience and they have one setting which is not in your favor. You must build at least one foolproof nexus that has no mistakes. It cannot overlook anything. This is, unfortunately out of your hands when entrusted to most physicians. They insist on doing it their way with their phraseology. You must become a diplomat and gently “aim” your doctor in the right direction unless you are doing this with a professional such as Dr. Ben Cecil or his type. The easiest way is to employ a dummy letter for a doctor who is unfamiliar with the VA’s idiosyncrasies. Most letters I have given to Vets to use are specific to their circumstances so they are not universal, one size fits all letters. If they were, I would publish one here now.

The easiest way to do it is to present it in outline form rather that type it up and ask them to sign it. I suppose you can present both. I had to for one Vet. His doctor was “indisposed” to reading the outline, but uncomfortable with anyone writing it for him. We wrote it both ways and presented it to his nurse. Several weeks later he emerged with a very imperfect letter that didn’t even acknowledge he’d reviewed the Vet’s SMRs. We patiently printed up a BVA case denial that incorporated the fact. He rewrote it properly and the Vet went on to win. The important thing we have learned over time is that an imperfect nexus letter will be decimated and rebutted by VA and their doctor’s nexus will prevail. You do not want to play catch up. You want all the facts on your side with only one permissible view of the evidence.

One of our members, WGM, did this to perfection and VA stepped on their necktie. They knew he’d win on the jetgun claim and didn’t want to be the last one to say “Not it!” They finally granted SC for his STDs even though he had no nexus saying that. He did have one of the most clear and concise nexus for jetguns I’ve ever seen, though. VA never looked at it with the idea of contesting it. It was simply bulletproof.

VA must think we Vets never talk amongst ourselves on these subjects. Here’s the link to WGM’s case I wrote up this fall. I will contact him and ask him if he can email me all the particulars that he amassed with the purpose of winning on the gun.

https://asknod.wordpress.com/2011/09/30/the-power-of-one/

WGM is currently appealing his rating percentage at the RO. Because he probably would rather remain incognito for the time being, I’ll have him send it to me and it can be sanitized if necessary.

One thing I do think needs to be addressed is the matter of what non-specific information you include with your claim. You want to defend your logic without boring them to death. Too much evidence will not win it if it’s not on point. For years Vet’s would mail in their group picture showing some member of their platoon in basic getting blasted. This never worked because First, it wasn’t them; Second, there is no way of knowing what was in the gun and third and last, the picture could not show the sanitary condition of the gun nor whether it was even being wiped between shots in some rudimentary attempt at hygiene. Fortunately, VA has given up on one of their standard denial procedures. Up until 2010, they would routinely say that there was no evidence in the Vet’s SMRs that a jetgun was employed to administer vaccines. Ruh-oh, Rorge. They didn’t contemplate the holding in Layno v. Brown (1994) that said we are capable of observing things without making medical pronouncements about them.

Anything equivocal, subjective or based on hearsay submitted with your claim is useless. The quintessential proof would have to be if a Vet in your platoon was infected with HCV and the genetic RNA markers were identical. That is where your picture from boot camp might be useful. With Facebook nowadays, it’s conceivable one of those you seek may be on there. You have their names from the picture and it’s one hell of a longshot. All it would take is one hit to open up the floodgates on this. Your odds of winning the Lotto are about the same. This is why the nexus letter is the make or break point and the focus of your whole claim. Weighing your claim down with studies on guns and what happened in a hospital in India is all well and fine, but it has no bearing on you and your claim. It is information about someone else. You can and should find things to include that prove the guns were suspect such as this:

https://asknod.wordpress.com/2011/12/16/bva-hbvjetguns/

Buddy letters are often employed to show inception of tattoos when your medical records are silent on this. Buddies are not useful for testimony on STD infections you had. They can only testify to things they can perceive by their five senses- hearing, sight, smell, taste and touch. They can testify that you were yellow as orange juice before you went to the hospital for a month with hepatitis, but they cannot say that you had hepatitis. Only the Doctor can surmise that.

In short, you are an ignorant boob with sensory perception and no medical training. You are dependent on your medrecs, your milrecs, your upstanding morals and lack of risks to win this. You can state with some authority that the guy in front of you bled when he flinched during his jetgun experience. You cannot say that the gun or the vaccine probably had HCV on it. Lastly, you cannot do it without a nexus. If you have all the ingredients and lack the nexus, you will lose. This much we know. VA knows that at some point, some one will win or lose this with a nexus and if they get theirs on record first, it will play hell on your claim until you can rebut it with your own.

VA has never, to my knowledge, had a VA examiner state that it’s as least as likely as not that the jetguns are responsible for Joe Vet’s HCV.  The BVA has on  numerous occasions (30?) overruled the RO and said it’s plausible. A positive nexus is almost always the reason. I do believe I have chronicled each and every one of them. Most are dual risks, but acknowledged the jetguns were “plausible” causative factors. The VA is committed to keeping this cat in the bag. That certainly does not preclude winning. It just raises the degree of finesse needed to prevail. A Kevlar nexus is that finesse, but you want yours on record-preferably first.

Here’s the Dayton Dental Debacle. It is useful to show that “unsanitary” happens- even after 1992. The endoscopy infections from HCV down in Orlando are further proof of it. In fact, we have one of our members (Mike) currently fighting on that front. He just received a nexus from Dr. Cecil which covers unsanitary colonoscopy lapses post 92. VA would certainly have us believe this is so rare as to be statistically insignificant. That info is also available to any who need it. I will need to sanitize Mike’s paperwork and get his permission to share it first. Correction: Mike just emailed and gave me same.

https://asknod.wordpress.com/2011/11/15/vamc-dayton-dental-clinic/

In closing, think of the nexus letter as part of a three-legged stool. You have to have the disease currently (one leg); You have to have had Hepatitis in service or a recognized risk factor documented by other than lay testimony (second leg)and most importantly, you need the nexus link. The only thing that can defeat this is a defective nexus that is lacking one of the prime ingredients I have discussed here. If it is deficient, VA will take the opportunity to say theirs is more probative and yours is useless. Then there’s nothing for it and it’s time to pack up and head to D.C. on appeal. I suppose a DRO review under 38 CFR §3.2600 is another avenue, but I have never seen a win via that route. Again, the VARO is extremely sensitive to this issue of jetguns and would prefer that you not submit them. In any case, they will take a flyer and force you to appeal.

Winning is no more than following a recipe. VA uses the obverse to deny. Their method simply begins with the hypothesis that your claim has no merit and works to compile proof that this is the case.

When you hand your claim to VA, it has to be teflon-coated. This saves you time and gets you in the catbird seat sooner.   Leave no room for doubt.

This is my Basic picture. I’m in the center, above and slightly to the left behind my T.I., SSGT Nixon. Note the jetgun picture in blue at the bottom left.

Posted in From the footlocker, General Messages, Introduction-Read these first, Jetgun BvA Decisions, Nexus Information, Tips and Tricks | Tagged , , , , , | 5 Comments

DVA– PGWS=AO

Posted on December 29, 2011 by asknod

PGWS stands for Persian Gulf War Syndrome. AO, well, who can forget that one? The VA today published in the Federal Register an interim rule pushing forward the date for presumptive compensation of PGWS incorporated in 38 CFR § 3.317.  http://veteranslawlibrary.com/files/Fed_Reg/2011/76FedReg81834_Dec29_2011.pdf

There is a laundry list of diseases this covers, to include:

(1) Chronic fatigue syndrome;

(2) Fibromyalgia;

(3) Irritable bowel syndrome; or

(4) Any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness; or

(C) Any diagnosed illness that the Secretary determines in regulations prescribed under38 U.S.C. 1117(d) warrants a presumption of service-connection.

(ii) For purposes of this section, the term medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained.

(3) For purposes of this section, “objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification.

(4) For purposes of this section, disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest.

(5) A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of this chapter for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar.

(6) A disability referred to in this section shall be considered service connected for purposes of all laws of the United States.

(b) For the purposes of paragraph (a)(1) of this section, signs or symptoms which may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to:

(1) Fatigue

(2) Signs or symptoms involving skin

(3) Headache

(4) Muscle pain

(5) Joint pain

(6) Neurologic signs or symptoms

(7) Neuropsychological signs or symptoms

(8) Signs or symptoms involving the respiratory system (upper or lower)

(9) Sleep disturbances

(10) Gastrointestinal signs or symptoms

(11) Cardiovascular signs or symptoms

(12) Abnormal weight loss

(13) Menstrual disorders.

(c) Compensation shall not be paid under this section:

(1) If there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; or

(2) If there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran’s most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or

(3) If there is affirmative evidence that the illness is the result of the veteran’s own willful misconduct or the abuse of alcohol or drugs.

(d) For purposes of this section:

(1) The term Persian Gulf veteran means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War.

(2) The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations.

The reason for my comparison is simple. When VA finally was handed the AO problem in the 80s, they did a miserable job of it. They were ill-equipped to deal with this and had no template to draw from. Hence, they tried the simplest technique- the ostritch one. By 1990, they couldn’t sweep this one under any carpet. The media grabbed it and ran with it. Nothing sells better than blood and gore at six P.M.- unless it’s a story about a Vet getting the shaft. When it concerns Vets plural (and a shit pile of them), you can almost guarantee a piece on Sixty Minutes and the morning shows. This kind of outrage was perfect for the Bahbahrah Wahwahs of the news world.

VA is adroit at PR, though. They saw the way the wind was carrying this stink and got in front of it the same way they’re doing this one. They probably brought the same AO official out of retirement, set him up with a consultant’s office for $225K a year and a staff of 20. The trick is still the same. Promise the Vets an equitable settlement on most of the diseases and a presumptive period for manifestation of the symptoms.  Set a minimum of a 10% threshold for the severity, publish it and and kick back and wait.

The first problem is no one can qualify because the presumptive period will expire before anyone finds out about it. Take Porphyria Cutanea Tarda(PCT) or sub-acute peripheral neuropathy. You had to exhibit symptoms of PCT within one year of leaving RVN and the presumptive exposure of AO. The symptoms must have been documented in your SMRs at a compensable degree of 10% or more: (http://www.law.cornell.edu/cfr/text/38/4/118)  See DC 7815. So the pesky problem you were having with your skin that you never could get off for sick call to document never got into your medrecs. The Benedryl never worked and your dematologist figured it out 20 years later. Tough luck, GI. No SC on PCT for you. Chloracne was covered under the same criteria.

Acute and sub-acute Peripheral Neuropathy is not the same as that which afflicts you from DM2. This disease had to manifest itself during active exposure to AO and the symptoms had to abate after 2 years from date of exposure:

For purposes of this section, the term acute 
and subacute peripheral neuropathy means 
transient peripheral neuropathy that appears 
within weeks or months of exposure to an 
herbicide agent and resolves within two 
years of the date of onset.

Great. Here’s another popsicle stick missing the cold stuff. VA is going to award you a rating for a disease that had to abate within two years of being documented. Sounds like another 0% game to me.

So here we are in 2011 and the Persian War Vets are coming home with all these weird diseases as we  did in 1970. VA is graciously going to award them compensation IF they manifest this stuff within X number of years that continues to ratchet up because the last ones are just now coming out of Iraq. The effective cutoff date proposed in the Fed. Reg. is December 31st, 2016. Whoohoo, Vets! Better hurry up and manifest that sucker. You have four years and counting. Twenty years from now you will arrive to find the barn empty.

So, fellow Vets of a later war, you, too, will be getting the bum’s rush soon. If you don’t get it in your records now, don’t hold your breath when you file. And, I guess I don’t need to tell you that it would be a damn good idea now if you figure out some foolproof method to prove that you were there. Our generation expected Uncle Sam would be a stand up guy on that one for us. We found out the hard way that ” There’s simply nothing in the records that would support that allegation. While the VA is mindful that the Veteran feels he was in-country, VA simply cannot document it and thus remunerate the claimant. We regret that the records are inadequate for this purpose.”

VA is like a new lover. They’ll promise you the world on paper. But, like an attorney, the devil’s in the details. The fine print immediately disenfranchises the majority and the actual financial reward, if you do manage to qualify, is infinitesimal. Just like scratch off lottery tickets, someone always wins big but it ain’t you.

I am not a big fan of mounting a Call your Congressman! The sky is falling! telephone blizzard of calls to try to change their opinions in D.C. That’s like pissing into the wind. We need to 86 all of them and start over with term limits. Veterans will always get the sympathy and the Goodwill clothes treatment from Government. When it’s politically advisable they throw us a bone. The rest of the time they can’t hear us. This regulation and the statute enforcing PGWS (38 USC §1117) will gather dust just like 38 CFR § 3.309 (e) did.

For humor, go look at the shabby treatment Vietnam Vets are still getting even now when they finally get around to filing for PCT:

http://www.index.va.gov/search/va/bva_search.jsp?QT=Porphyria+Cutanea+Tarda+&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

These poor Vets are, for the most part, convinced by their VSOs that they most likely will win this. It’s a cruel joke. Look at this and tell me it’s not SOSDD :

http://www.index.va.gov/search/va/bva_search.jsp?QT=Chronic+multisymptom+illness&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

Yes, pilgrims, VA is many things, but they are very predictable. Gulf War Veterans are soon going to learn how this process works and are not going to be so acquiescent. We were defeated by time in the 70s and 80s on AO. By the time we figured it out and blew an ass gasket, it was too late. The same could be said for HCV.

Gulf Vets started coming down with this crud in 1991 in the first Gulf war. VA hasn’t even started to deal with that contingent yet and here comes another wave. It rather makes you wonder what will come home from Afghanistan besides a host of TBI from IEDs and the ever-present PTSD.

Much like the brewing HCV storm on the horizon in 1992, VA has elected to duck and cover. With the advent of the Internet and modern dissemination of information, Vet news can travel at lightspeed. This new cohort of Vets will be far more proactive and harder to deceive with smoke and mirrors.

Posted in AO, Gulf War Issues | Tagged , , , , , , | Leave a comment

PAPA NOEL– THEN AND NOW

Posted on December 27, 2011 by asknod

downloadWhen I was a child and for the succeeding generation, the admonition by parents that they might have to write Santa a snail mail letter (first class with delivery the next day to the North Pole) and tell of your bad behaviour was standard procedure. Small children quailed at the thought of this. I certainly did. I had never held a piece of coal and had no desire to. In fact, the idea of a Christmas without new toys or gifts was alien.

I was not the best behaved child on the east coast in the fifties, but surely I couldn’t have been the worst that deserved opprobrium and gifts from a West Virginia mine. Discovering the myth was untrue was a relief in some respects, but brought on the requirements of young adulthood via morals instead of coercion.

With the dawning of the new age of electronic communications, we entered into the concepts of long distance telephony and 800 numbers. When my young daughter was throwing a tantrum in the early eighties, I heard myself blurt out that I was going to call 1-800- SantaCl(aus) if she didn’t behave. To be truthful, it was completely spontaneous and ingenious. The effect on Princess was instant. Thus was born the new electric shock collar that was useful for several more years until she discovered the horrible truth. This worked with equal effect on my son. I had a vasectomy that wasn’t entirely successful and he arrived 10 years after. We were rather surprised to greet him but we certainly didn’t sue the doctor. I don’t recommend spreading your children out quite that far, though.

Once again, the 800 threat was employed with great success for almost 9 years. His fellow cub scouts were the humbugs who ruined it all. That brought us to 1996 and the dawn of the computer age. With no misbehaving children to cow into submission, the art form fell into disuse.

Imagine my surprise when my grandson was over for some target  shooting this fall and started to whine. His father (my son in law) gave him “the talk”. If he was not going to behave, there was a strong probability that Daddy was going to have to contact santaclaus.com and inform Mr. Kringle that Conner was not in the running for the Xbox this year. This development brought some instant results. Connor became the model junior citizen of the year. He suddenly became Mother’s little helper extraordinaire with his new brother. The change was phenomenal.

So what else could possibly be milked from this? On Christmas Eve, my son devised an impromptu treasure hunt with notes from Santa for Conner to follow to his present. One of the notes was left in the barn too close to the goat’s feed trough. Goats, as we all know, will eat anything, so it should not have come as a great surprise to arrive at the barn and discover the ribbon with no note attached. Showing his future abilities as a father, my son didn’t even skip a beat. He instantly figured out what had transpired. He whipped out his Iphone and informed Conner that he had just received a text from the Big Guy apologizing for the goat and giving him the next clue. This didn’t faze Connor in the least. He took it in stride and proceeded apace.

Isn’t technology wonderful? Little people adapt to this completely. My newest grandson, Hayden, is almost 10 months old yet he knows what a keyboard is. I have an old laptop I never e-disposed of and it is his favorite toy when he comes to visit. He sits and “types” as long as we will let him. Speaking of technology, when my son was still an avid follower of Santa, he called once from the Scoutmaster’s house to tell us he was ready to come home. He described their phone as being “weird” in that it had a circular wheel with holes you had to stick your finger in and twirl clockwise in order to dial the number. He had to be shown how to operate it.  I think Alexander Graham Bell would be proud to see all this now.

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

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