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.

Posted in General Messages, Humor, Uncategorized | Tagged , | Leave a comment

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

Liquor and Guns

Posted on December 11, 2011 by asknod

During Christmas week of 1970, I was on TDY at a base right up against Laos. Udorn Royal Thai Air Base was the jumping off point for all the action to the north. Air America occupied a quarter of the base and there were more classified operations than you could count. Airplanes would land with Thai roundels on the side and take off with the Laotion Erawan (three-headed elephant). Six hours later they’d land, refuel and take off with no markings but the tail number never changed. Most of this traffic was on the AirAm  apron code named Waterpump.

Without going into detail, I was employed there that week. We had the run of the warehouse where all the small arms and liquor was and I was on very good terms with the manager. I got him lined out on calls back to the states on the MARS radio system and I got free booze and guns occasionally. I’d spotted a British SMG called a Sten and decided it was my kind of gun. Never mind that it was a 9mm. It had a silencer, looked cool and when you’re 19, that’s what counts.  http://en.wikipedia.org/wiki/Sten

That weekend I stayed with our aircraft crew chief  who had a bungalow off base and we got pretty slippery. The hootch  was right beside a lake about 10 klics from the base called Dalat Nambua. I remember it was off Soy Nam Khang where an ice manufacturing plant was. That’s Ice Water road if you don’t speak Lao. Soy means road or lane. Nam is water and khang is hard. Hard water is Lao for ice. This language was really easy to learn. I took the Sten and several clips with because you didn’t wander around without armament in the boonies. Rich brought the Jim Beam and the Papasan who rented the bungalows brought over the left-handed tobacco. After way too much of everything, we decided to take the Sten down to the lake and try skipping bullets like flat rocks. This idea was not thought out very well at all.  Unbeknownst to us, 4 Klics south on the other side of Dalat Nambua was a Thai military outpost. That’s where the skipped bullets were landing.

Within 30 minutes things got pretty exciting. First, several Hueys came over and rocketed the shoreline and jungle 800 meters to the west of us. 5 minutes later three T-28s rolled in and nuked it with napalm and BLU-26.  http://www.globalsecurity.org/military/systems/munitions/submunitions.htm

We tiptoed back to the bungalow, stashed the guns and the booze and came back out acting like tourists. If anyone ever tells you liquor and guns don’t mix, don’t believe them. Trust me on this.

Rich got the poop report from Papasan a week later. A  small contingent of CTs (Communist Terrorists) had tried to infiltrate the Thai compound and were repulsed. The body count was 5 dead and 3 captured. I’m not sure if they were counting monkeys or humans. Papasan forbid us to shoot from his property ever again.

Christmas will somehow never be that exciting again. As for the body count, this explains how we killed everyone in North Vietnam twice and they still had enough to whip the ARVN after we left.

Posted in General Messages, Humor, Uncategorized | Tagged , | Leave a comment

CAVC Results 2011

Posted on December 11, 2011 by asknod

Here are the results of the CAVC’s court calendar this year. While the year is 20 days away from completion, the Court has never shown any inclination to finish with a flurry of late opinions. I see no reason to expect them to do otherwise this year.

The Court heard 30 cases this year-one twice. This is the only year in the 22 year history of the Court where the Secretary was found in contempt and fined (Harvey). Buie is probably the only cutting edge decision as it upset some of the tenets of Bradley on TDIU. Otherwise, it was a ho-hum year.

The score looks something like this. Reversals in the Vet’s favor-7; Remand (in favor of the Vet)-16 and affirmation of the BVA’s decison-5. One can be seen as a tie (Peet) that requested a Joint Motion for Remand to readjudicate the case.

It can be said that the Court has matured and now is confident in its jurisdiction. As most will recall, the first decade of its existence was mired in arguments over whether they even had the right to inveigh on much of what they were presented. That rarely raises its ugly head anymore and the Secretary uses it less and less. He, too, is coming to accept that much of his jurisprudence is flawed and requires “fine-tuning”. Veterans continue to get high quality justice and a claimant-friendly venue when they appeal.

The addition of more justices to bring up the total to nine will do much to speed up our predicament. It is hoped that they will be approved by the Senate sooner rather than later. We have waited for our Commander in Chief to fill these positions for years and the delay is uncalled for. If he truly believes Veterans deserve better, he will sign the paperwork and get them ensconced up at Indiana Ave. promptly.

 

Happy bath tissue makes for happy raters. You see the problem?

Posted in Important CAVC/COVA Ruling | Tagged , , | 2 Comments

For Male Vets (#2)

Posted on December 11, 2011 by asknod

An extensive manual for the care and feeding of woman has been released and is available on Amazon. Shipping costs are rather steep but men simply cannot do without this tome. It was written by psychiatrists and is relatively easy to understand in spite of the fact that women aren’t. As women are complex and often misunderstood by men, this is “must have” for us and will go a long way towards  answering all those “How come when I …” and other FAQs. These things are selling like hotcakes from what I was told.

 

Posted in General Messages, Humor, Uncategorized | Tagged , | 2 Comments

Dr. Bennet Cecil

Posted on December 10, 2011 by asknod

Check this out. Dr. Cecil has a beautiful website.

http://www.hepatitisdoctor.com/

Dr. Cecil also has a new email address for Vets to contact him. Please leave me an email at asknod@gmail.com and I will provide you with it. He charges nothing for a nexus letter and is a warm, kind doctor doing a great service for us Veterans.

Posted in General Messages, HCV Health, Tips and Tricks, Uncategorized | Tagged , , , , | 2 Comments

BVA–TARRED AND FEATHERED

Posted on December 10, 2011 by asknod

This is a classic example of VA’s habit of interviewing you at an initial intake exam and trying to pin the willful misconduct tail on the donkey. I have witnessed it numerous times, including having it almost happen to me.

When you first enter the VHA system, certain protocols occur. They want your old history as much as possible and will ask where any records regarding your ailment(s) are located. If you file a claim for SC, they will return to these initial records as they did to this Vet. What has occurred here is the Vet was undoubtedly questioned about the origin of his HCV and willingly provided evidence to the interrogator. The Vet was queried about any behavior that might have put him at risk. He repeatedly and vehemently denied any consumption of drugs during the course of his claim, yet it still sneaks in. It’s no mystery. When I came into the system in the fall of 2008, I had reams of info about this illness and not one scintilla of evidence about any drug hanky panky. Nevertheless, the first doctor I talked to started off the conversation with “Well. Let’s talk about your drug history. Tell me how you started out. Pot?” The assumption is always that it is a drug-related infection. VA doctors, for the most part, assume this from the get-go.

It is paramount that you make it known in no uncertain terms that this is not the disease vector. Just filling out the RFQ can be fraught with danger. We had one member that scratched out an answer regarding piercing because he wasn’t sure about the terminology. VA attempted to use this to prove he was being devious and was therefore not a credible historian. When he filed a second RFQ, they said he had changed his story. He won on appeal, but it illustrates what you will deal with.

When a doctor or an examiner from QTC asks you questions during a C&P exam, he/she will pose rhetorical questions. This means questions that are assumed or really don’t need an answer of yes or no. They will ask you if you’re a Veteran. Well, Duh! That’s why you’re there. So if a doctor segues into a discussion about drugs or the risk of drugs with respect to HCV infections in general, without referring to your case specifically, you can assume this is the groundwork for an assumption on his part that if you do not specifically deny it then you are guilty of it. It is a very subtle technique, but police detectives do it every day. Doctors write it in the records and you will spend the rest of your life trying to excise it. When the subject is broached, simply nod your head sagely and say something inane like “Well, that’s what I’ve heard, but I’m a pick one (Christian, Mormon, 7th Day Revisionist, etc.) and we don’t cotton to that stuff. Never done drugs or alcohol myself.”

If you so much as admit you puffed on a joint (and shared Slick Willy’s propensity for not inhaling), you’re headed for the Group W bench. No one will ever be able to prove this one way or another unless you have been busted and have a track record. Pot doesn’t cause HCV even if you shared the joint so why drag it into the discussion? The same applies for alcohol. VA uses anything in the file as a tool to leverage a denial. Therefore it behooves you to think very carefully before shifting your mouth into drive and taking your foot off the tongue.

This Vet was lucky because he kept his story the same. He didn’t get worried and start adding more suspected risks as he progressed. He refuted the “drug” testimony as soon as possible and did so frequently. One thing Vets should also consider is the conversation with the doctor is not testimony sworn to, but simply what the doctor wrote down. If you discussed this again and again every time you came in and bragged about how many times you’d been through rehab, it might be a little bit more damning. Here, the Vet discovered it and immediately set about correcting the record. Remember also, if you discover it and do nothing to correct the misconception, it is assumed to be true.

Meet our Veteran from Manchester, New Hampshire:

http://www.va.gov/vetapp11/Files3/1125743.txt

 

Posted in BvA HCV decisions, Introduction-Read these first, Tips and Tricks | Tagged , , , , | 2 Comments

BVA–§1151-HCV Reasonably Foreseeable?

Posted on December 10, 2011 by asknod

I always search BVA and CAVC decisions for medical validity and to see how the VA approaches these things. While reviewing this decision, I noticed, as did the VLJ, that a VA physician opined that the risk of acquiring an HCV infection via transfusion in 1982 was entirely foreseeable.

The VLJ analyzed the evidence and noted that HCV wasn’t identified or recognized until 1989. This was the difference between winning and losing this claim. Yes, I hear the chorus of naysayers. Sure, the Vet could have won this on appeal to the Court, but the fact remains that he shouldn’t have to resort to a higher tribunal to obtain justice. Physicians who set themselves up as knowledgeable, go-to specialists must be above reproach. This is very sloppy work for an expert. The fact is, we are seeing more and more of this in a rush to deny claims. Accepted practice dictates handing this off to a VHA employee who does nothing but opine. It is no surprise that virtually all of these “opinions” seem to come down in favor of the VA and against the Vet.

I wrote up a long treatise about another VA phyician who was asked to submit a “Independent Medical Opinion” (IMO) regarding the etiology of a Vet’s HCV. That chucklehead quoted all manner of incorrect medical procedures for identifying the hep using 1987 AIDS testing protocols. This is more of the same. The fact is, ladies and gentlemen, VA will use anything or anyone to deny your claim initially absent concrete proof presented by you. Do not expect them to collect this proof for you. In fact, expect them to use outdated protocols, inexact science and outright tomfoolery to deny you. Always examine a denial for several things. Among them, look for a dichotomy between accepted medical knowledge and when it was discovered.

Most importantly when denied, be sure to make sure VA addresses every possible risk you bring up. We are starting to see a plethora of denials based on one facet such as jetguns even though the Vet also claims other risks. VA will focus entirely on one risk to the exclusion of all others. There will be no discussion about these other risks and you will lose. VA is obligated to address all risks whether you bring them up or not. They rarely do this.

Here, where a Vet brings a truly viable claim to the table, the VA resorts to rounding up a pliant doctor who will say what he is paid to say. Fortunately the opinion blew up in their faces, but what if it had been couched in medicalese such that no one but another doctor could call bullshit on it? This gentleman was represented by the DAV and I have no confidence in their abilities to uncover what amounts to medical malpractice.

Veterans expect to be given a fair shake, but the evidence seems to come down more and more frequently proving otherwise. This decision exposes yet again the VA’s propensity to deny with no accountability. When exposed, the guilty party is not penalized. He/she can continue this practice for years aided and abetted by continued employment at the VA. In a civilian arena, this would be cause for remedial training or termination due to gross negligence. Witness:

In October 2009 a VA physician opined that the most likely 
cause of exposure Hepatitis C was the February 1982 
blood transfusion. She explained that Hepatitis C was
 commonly spread by blood transfusions prior to 1992. 
 Since then, a blood test has been developed to accurately 
screen the disease. The examiner opined that the Hepatitis 
C infection did not involve carelessness, negligence, lack 
of proper skill, error in judgment, or similar instance of 
fault on VA's part. She also opined that it was reasonably 
foreseeable. She did not provide further explanation for 
her opinions.

I hope Vets can take advantage of this adjudication for their own claims as it is a model of brevity and honesty. Sometimes the BVA gets it right.

http://www.va.gov/vetapp11/Files3/1125825.txt

 

Posted in BvA HCV decisions, Introduction-Read these first | Tagged , , , , , | 3 Comments