FED. CIR–HAMER V. SHINSEKI (he’s baaack!)

Posted on November 8, 2011 by asknod

downloadIt’s always interesting to follow the progress (or nonprogress) of a claim as it wends its way up the legal ladder. As the BVA is rather secretive and does not divulge the name, rank, airspeed and tail number of the Vet, we only pick up on these as they go by at the Court. I happened to spot Mr. Hamer back in the news again today. Apparently the gentleman, still under the expert tutelage of Mr. Kenneth Carpenter, has opted to take it up a notch and pursue his argument before a panel of the Federal Circuit.

This should be interesting. I posted a writeup of Mr. Hamer’s excellent adventures in claims back in October, 2010 and his subsequent mishap when the BVA inadvertently granted the very thing he wished- a CUE of his 1985 rating.

http://www.uscourts.cavc.gov/documents/Hamer_07-3181_published_opinion_July_27.pdf

When they did this, it freed them up to use what we call the Fenderson or staged rating technique wherein  you are rated retroactively based on the available medical and work history info the VA has access to. Technically they are not allowed to hire private dicks and put surveillance on your home. Hell, they don’t have to. They have their own jack-booted thugs at their beck and call. Of course, if you’re on TDIU and working, that’s a different story altogether. That’s cheating. One is the antithesis of the other. One simply cannot be “Totally Disabled Due to Individual Unemployability” if he is working. Or can he? There’s one small wrinkle here. The VA’s actions caused him to seek work to eat. He obtained what can best be described as “sheltered employment” as a Service officer of a VSO. This was still no excuse as we saw at the Court.

When Mr. Hamer won his CUE claim they Fendersoned his ass and scalped him of his TDIU during that period he was working (1989 to 2000) and then re-TDIU’d him. Apparently this rating technique did not sit well with the gentleman. Yesterday he and his esteemed mouthpiece went to the Fed. Cir. and pleaded his case before them.

You can listen to the hearing (audio only) by visiting :

http://veteranslawlibrary.com/files/Fed_Cir_Audio/2011/Hamer_2011-7033.mp3

Mr. Carpenter has cogently and ably made his case and it isn’t all that tortured or convoluted. He simply points out that a CUE claim is clearly defined as a restoration of one’s existing claim rather than a new, initial award that can then be Federsonated. Always remember, Fenderson was constructed to aid in determining a fluid rating predicated over time (retroactively) on an original claim. Think of it like this: You win after 10 years of VA intransigence. They give you 10%. No way, you say. I qualified for 60% on such and such a date 5 years ago and 30% 7 years back. They split it and give you 10% to begin with 10 years back, up it to 20% @ 7 years, 40% @ 8 and 60% now. “Now” was 2 years ago so you file another NOD and say  Hold the phone. Now its 100% in 2010. And on and on the dance goes. But- and its an important but, Fenderson only applies to new claims, not the restoration of an old, protected rating based on CUE. You can never use Fenderson on a claim for increase and go retroactive either. Mr. Carpenter aptly points out the incongruity of bending Fenderson around like a pretzel and inserting it into 38 CFR § 3.105(a) and (e) to the judges. He’s a silver tongued devil, that man. If I am ever forced to venture into the hallowed halls of the Court or the Fed. Circuit, I hope he’s by my side. I have no qualms about sharing my take with him.

Mr. Hamer got his severance package in 1985- fully 7 years after his grant of SC. As such, it was a stabilized rating which, absent a medical finding and proper severance notice, could not be disturbed. He argued in 2000 for a finding of CUE in the 1985 severance and several months later for an increase back to TDIU immediately. His RO gave him back the IU but declined the CUE revision. He won that in 2004 at the BVA, but got saddled with the Fenderson criteria. Based on that he got the lollipop stick sans lollipop from 89 to 2000.

The Court didn’t see eye to eye with Mr. Carpenter’s arguments and found nothing wrong with this business. They utilized existing jurisprudence in Reizenstein and O’Connell to rationalize their decision. This is all well and fine if, and it’s a big if here, O’Connell and Reizenstein are truly on point and good jurisprudence.

Mr. Carpenter reaches back to SEC v. Chenery Corp. 332 U.S. 194 (1947). The SEC did what the Board did. They invented a rule to fix an inequity during the course of the adjudication. The BVA got the appeal and re-adjudicated it based on a VAOPGCPREC designed and promulgated solely to deal  with Mr. Hamer’s  predicament or, more properly, their predicament. This constitutes creating law out of whole cloth to buttress their argument for their inevitable decision which, lo and behold, supported their theory of how this should have been adjudicated. Mr. Carpenter has really earned his shekels if he prevails here. What it means to Mr. Hamer is a free paycheck for IU from 1989 to 2000. I agree with the precept that he’s not entitled to it, but the VA threw the first rock and then admitted their error 19 years later in an underhanded attempt to fix a very sticky wicket..

In all fairness, we shouldn’t come down on Mr. Hamer. He got the end of the stick with the defecation all over it in 85 and didn’t appeal. He legitimately won his argument for CUE in 2004 and that should have been the end of the matter. The BVA, in its own inimitable way, went to its paymaster the VA General Counsel and basically asked them how to fix Mr. Hamer’s wagon.

Those funny guys at the VA  Office of General Counsel came up with this predictable “finding”:

PREC 1-2007    Applicability of 38 C.F.R. § 3.105(e) to TDIU Award Reinstated Based on CUE

I suppose if you were a scientist of the horizontal persuasion and wanted to prove your case that the world truly was flat, the best jury of your peers would be fellow members of the Flat Earth Society. In essence this is what the VLJ opted for.

That the Court didn’t pick this apart and see the non sequitur is appalling. Normally they are all over this kind of inequity like white on rice. A General Counsel finding in the middle of an adjudication should have made their collective hair stand on end. I wrongly impugned Mr. Hamer’s motives for appealing this last year and I humbly apologize to him and Mr. Carpenter. You cannot bend the law to prevent unjust awards. Yes, you read that right. Mr. Hamer is not legitimately entitled to his TDIU from 89 to 2000 because he was “working” in the truest sense of the word. He wouldn’t have been if the VA hadn’t committed CUE in 85, but that is a tenuous argument that will not avail him here. No, the injustice was in severing him in the first place. They compounded their error by asking the GC to craft a bulletproof finding that would cover their ass. Once they had it in the form of the VAOPGCPREC, they could walk all over his rights and dictate a new decision a la Fenderson. The Court aided and abetted this with even poorer reasoning.  We can only hope Mr. Hamer’s appearance yesterday will inevitably prove to set another benchmark to VA law in our favor. We also pray the members of the Court take notes on this and avoid similar mistakes in the future.

As there is a vacancy on the Court bench, I would admonish our President to seriously consider appointing the Kenster to fill it. He sure isn’t making a killing representing us. On the other hand, this would deprive us of that which we sorely need when we appeal injustice.

This is part 2 of a three part judicial adventure. Here’s part 3:

https://asknod.wordpress.com/2012/11/23/surprise-surprise-surprise-hamers-baaaaaaack/

Posted in Fed. Cir. & Supreme Ct., Important CAVC/COVA Ruling, vARO Decisions | Tagged | 7 Comments

BVA– PCT= HCV?

Posted on November 7, 2011 by asknod

I found another one of these years ago and didn’t bookmark it. When I finally found this, I decided to print it anyway even if the case was remanded. It involves the reverse concept that PCT, as a known side-effect of HCV can be used to show a correlation to it as a claim. Our Veteran here has been rated for PCT as a presumptive disease associated with Agent Orange. He is now trying to swim upstream and reach HCV. I pointed to the same thing when I filed for Hep. The PCT was what clued me in to the Hep. initially, but I filed for both simultaneously. He’s represented by DAV and they have that “AO causes HCV” mentality. We know otherwise but VSOs haven’t gotten the briefing. Or, if they have, they’re still helping Vets lose by claiming thus. No conspiracy here- just stupidity.

This is interesting. I haven’t seen anything come up the ladder to the CAVC, so my feeling is that VA gave him all this. He was already rated in 05 and it will eventually end in TDIU or P&T if he gets really sick. Denying now (or then, when this was remanded)  is an exercise in putting off the inevitable. Giving the Vet SC for hep. especially in lieu of his rating for PTSD would almost be axiomatic. You never know what these fellows will do, though. Vindictiveness runs in their blood. Reality is the only thing that makes them sky down.

http://www.va.gov/vetapp05/Files1/0500244.txt

 

Another important aspect illustrated for you is the concept of the Fenderson Staged Rating process outlined here. This is an appeal of an original rating with added issues. The Vet is appealing his denial of PTSD (and wins) but is also appealing his initial rating for his PCT (granted by the VARO). He has done his homework as I definitely don’t believe for a moment that the DAV chucklehead was aware of the 40% available under DC 7704 for PCT. I’ve only seen it used 6-7 times mostly by pro se Vets and only on appeal at the BVA. It is so basic a concept that it doesn’t warrant a trip up to the Big House. I like this one because it has a lot of excellent info for HCV/PCT guys like me.

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

HCV AND COUMADIN

Posted on November 7, 2011 by asknod

This is amzing stuff. I’m on Coumadin because I had a heart attack while I was in the VAMC in 09. They did a pre-op physical on me to make sure I was good to go for surgery to take down my ileostomy diversion and reconnect my small bowel to the large. The EEG dude says( and he talks like this) “Dude. You have had a serious heart bummer since your last EEG . That’s bogus. We did this last Oct. 15th  and it sure didn’t look like this. Hmm. You feel okay?” I assured him I did and asked if this would change their plans to operate. He assured me it wouldn’t. When I finally got my records several months later, it said myoicardial infarction or possibly a septal infarction during the peritonitis with a mega T wave abnormality, etc.

Lately my ALT number (also called SGPT) has been climbing which is not good. The last time this happened was after my first dose of Interferon. It went up to 635.  Mine’s up and down but staying  around 300. While surfing for liver/Coumadin connections on Google I hit on some articles which deal with this. Most amzing stuff. Perhaps this is why I’m avoiding the liver disaster of cirrhosis. It’s short and a good read:

http://www.hcvanonymous.com/SMF/index.php?topic=8963.0

And this:

http://www.hepatitis-central.com/mt/archives/2008/08/popular_blood_t.html

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

VA Obamacare?

Posted on November 6, 2011 by asknod

This is weird and I don’t mean funny-ha ha weird. I got a letter in the mail several days ago from the VA. What first caught my eye is the the date- May 5th, 2011. What? they ran short on stamps? If that wasn’t cause for alarm, the brainwashing attempt that followed was.

Any time someone or a government entity says they have found a way to save money and improve the system, I back into a corner and put my hand on my wallet. This missive was to announce a new VA-wide initiative to revamp the VA health care system. Seems reasonable considering the sucker is on the verge of a hernia. The new campaign touts the Patient-Aligned Care Team or PACT. The letter goes on to tell how they are going to form a “partnership” between you and your health care team “to make sure you receive  personalized whole-person care with an emphasis on prevention and health promotion”.

This all sounds sweet but I hear these things and my anti-social personality with passive aggressive tendencies kicks in and asks  Jez! Was I receiving half-person care before? If I wasn’t going to the the doctor for preventive medicine and a proactive approach to my health, then what exactly was I engaged in? Did they suddenly “get it” and decide to up the ante? Does this mean they are actually going to start caring for me?

The next paragraph spills the beans. Taking the same letters (PACT), they artfully reiterate their point with this:

Partnerships= with Veterans (as opposed to…?)

Access to care= using diverse methods (read concertina wire)

Coordinated care= among team members (determines who goes to get the coffee)

Team-based care centered around the Veteran. (Based on Hillary Clinton’s book “It takes a village”)

Seems like they took a page from one of my posts because they have suddenly started capitalizing the V in Veteran. About two years ago someone asked me why I always capitalize the V. My answer was that there are a lot of veterans. A veteran can be one who worked at Ford Motor Co. for 20 years or someone who has been reelected to Congress way too many times whereas a Veteran is one who served his or her country unselfishly. There’s a big difference and it deserves a big V.

Here we have a schmooze campaign in progress. In case any of you hadn’t noticed, if you want to see your PCP now, the wait can be several months. The newest trick is to just pop in to the “urgent care” model they have constructed at VAMCs and see a nurse. If it requires a doctor, you may get 5 minutes of face time and an attaboy with the Rx.  The VA’s new model of health care is going to be:

1) Call in to you Team and identify your concern. If you have internet access, you can email it and pose the question and they’ll “get back to you”.

2) If they can get away with it, you will be seen by a nurse or other pecker checker.

3) Since most questions can be answered over the phone, this will save you an unnecessary visit.

I understand most medical abbreviations attached to medical personnel such as MD and RN. My new PACT has four members . Does anyone know what an HT is? How about a MAA? These appear after the names of two of my team. I googled it but came up with a zero. Knowing the VA, these are made up by them. HT might stand for “Hope Technician” as in “I hope you’re not in a hurry, sir”. The MAA? “Mostly an Administrative Assistant” as in one who answers the phone and takes your BP/temperature  at lunch when the HT is on break.

Over the years we have seen the birth of nurses with more and more authority. I now see ARNPs, PAs and others who have the power of an MD. Where will it end? I envision a computer terminal in the VAMC lobby with the latest accouterments. “Please be seated and state your name and last four. Thank you. How may I help you? Place your right wrist in the cuff. Please lean forward until your forehead touches the sensor. Please remove the prescription form from the tray below and take it to the pharmacy.”

They are being blatantly honest when they say they’re offering “access to care using diverse methods.” This will undoubtedly turn out to be a redux of the claims process. If you wait too long you’ll give up and go away… or die. This is a win-win for VA and the Vet because there will be fewer Vets clogging up the medical care system and the waiting time will decrease.

Posted in General Messages, Uncategorized | Tagged | 1 Comment

38 CFR § 20.900(c)– MORE THAN MEETS THE EYE

Posted on November 5, 2011 by asknod

Members have asked me frequently what the parameters are for seeking an advancement on the docket. While this might sound like climbing Mt. Everest barefoot, it isn’t. There are four criteria for this in spite of the common misconception of two.  Additionally, this is not something that can only be petitioned for to the BVA. Let’s review this. I print below 38 CFR  § 20.900 first:

Here is the link if you wish to peruse it later

http://www.law.cornell.edu/cfr/text/38/20/900

(a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received. Cases returned to the Board following action pursuant to a remand assume their original places on the docket.

(b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket.

(c) Advancement on the docket— (1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.

(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. (This is for advancement on the BVA’s docket. All other request should go to your VARO)

(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered. (oddly, if the advance occurs at the VARO, you will never know except that justice sure seems to move right along).

(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.

(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.

 § 20.900(c) is up in the § 20s section of 38 CFR because it ostensibly only applies to cases before the Board. Not so. Any claimant can ask for this from Day One of his filing. Here is another little secret. They (your VARO) must make this determination within 90 days of your filing for such. It behooves you to supply them with everything needed to make this decision if you want to hit that 90 day number. One cannot simply ask for it and sit back and wait. You have to be proactive on this. You are petitioning them for special consideration so you must do the legwork to prove you are eligible. Once they have all the required information, the 90 day clock begins to tick. If you provide them with it at the outset with VA VISTA records and/or reams of credit card balances, it will begin sooner rather than later. They will not send you a letter saying they are granting it either. You will just notice things move along rather swimmingly.

So, with that laid out, you will notice the underlined portion in section (c). This is the one facet of the regulation most are not aware of. Usually, this is utilized to help older WW2 Vets. I petitioned on the grounds that my 1994 claim was unadjudicated and thus still open. VA accepted my argument or else they rightfully assumed I’m going to be room temperature sooner rather than later. I certainly haven’t given them any reason to believe otherwise. Four operations and a one year sojourn at the VAMC in a private room (MRSA) is a good beginning for this argument. Secondly, I put forth the argument that medical records from a civilian hospital in a war zone should have been treated as service medical records and collocated with my SMRs.  Working for AirAm did not always give you the opportunity to just hop a plane back to civilization and the nearest military medical facility when you were bleeding out from a GSW.

HCV claimants have a leg up for this request. Those of you who are getting along as I am at 60ish, are usually rather advanced in the disease process. This mitigates for an advancement based on poor health. As most of us can no longer work, we have financial issues as well. I know I did and they just got worse the longer I waited.  This is why I admonish the reader to start with this at the beginning rather than wade in and ask for it a year after filing when things are bogged down waiting for an IMO. Don’t think you are stepping on another Vet’s toes.  Someone filing for acne vulgaris or hemorrhoids does not face the same time constraints as you.

Lord, I felt so guilty when I first set foot in the Seattle VAMC in 1989. I asked myself what on earth I was doing there. I had nothing more than a simple, screwed up back with radiculopathy down into my hips for 20 years. Outside the entrance were Vietnam Vets with no legs and some without arms either, happily smoking and sharing jokes. I felt so out of place compared to these warriors. It seemed that I was the interloper who might somehow detract from their financial or medical needs. Three years later when my health started going south and I found out what Agent Orange was doing to me, my sentiments changed. While the feeling persists that I am less worthy than one who has lost limbs to war, I console myself by keeping in mind that my injuries are virtually invisible, but far more lethal. This is one of the hardest concepts for many Vets to overcome. VA aids and abets this insecurity through VSOs by implying that somehow you are a “willfully disabled Vet” or one that is not as “entitled” as other real Vets. Some of those we have helped have reported that the SOs they approached were loathe to take their cases and went so far as to imply it was a waste of their time. I won’t go into how I feel about this subject line, but I saw the raised eyebrows of my rep. and the knowing look traded with another SO sitting beside him in 1994. It spoke volumes as to their belief that I obtained this from drugs.

Now that I have that off my chest, I can proceed. Asking for advancement and being denied same is not good. Of course they will think you are trying to cut in line if you request this without documentation. I don’t think I need to explain why. Go look on another Veterans Web site that has pink in the background and examine the laundry list of problems these guys and gals are trying to hang on their service. I mean no disrespect to anyone, but it seems something is amiss when Vets come out the other end of a four year enlistment as a paper pusher and have more ills than combat Vets. I don’t buy it. HCV secondary to paper cuts? Hemorrhoids due to sitting too long at a desk? Bunions due to those nasty combat boots you wore for 6-8 weeks in Basic and never donned again?

I hope this little diatribe reinforces your resolve if you were wavering on this subject. HCV and resultant cirrhosis waits for no one, be it Veteran or civilian. The hosts of ills that travel with this circus are horrible and debilitate you further. As such, you legitimately should file for advancement. Your time on earth absent SVR (HCV remission), is measurable- not some nebulous concept that may or may not come to pass. It is incumbent on you, especially if you have a spouse, to start making provisions for the future now. Advancement on the docket, even at the RO level, is prudent if you qualify. I think I speak for all Vets when I say that most would advocate for a triage philosophy that comprehends the sickest and neediest be afforded a quicker resolution to their claim(s). I apologize if I seem selfish about this. No Vet is better than another, even if they served in time of war. Hate me if you will, but I advocate for the sickest first.

Posted in Tips and Tricks, vARO Decisions | Tagged , , | 3 Comments

Krispy Kreme–The Veteran’s Friend

Posted on November 4, 2011 by asknod

I have discovered something very valuable to Veterans that they need to know. There are many corporations that show their appreciation to you as a Veteran by granting a discount upon presentation of your DEERS ID card. I don’t know if they grant this to those of you with just a VAMC ID card but I would hope so.

My knowledge of this began a year or more ago at Home Depot when the clerk saw my card and said  “Whoa. Cowboy! 10% off”. I had no idea. She informed me this applied equally to active duty or retired Vets w/ 20 years. They have the card, too. This led to the discovery that Lowe’s offered it as well. This P&T thing was starting to pay off even away from the PX/commissary.

Last fall while rummaging through my wallet for  9 and some change for a dozen raised glazed, the young lady said “Excuse me sir but your military ID entitles you to a discount so I’ll just recompute that and take the 15% off.” Well, this was too cool for school. A dozen of America’s best donuts had just gotten $1.48 cheaper. When did this happen? Why don’t they advertise this? Can I apply for a retroactive refund?

As a matter of course, I ask everywhere now. Cabela’s offers 5% which is nice as I’m an avid sportsman. I’m a little under the weather for hunting now but I love their outerwear.  And who besides Jack in the Box down near Joint Base Lewis McChord on Pacific Ave. South should offer 10%? No one. Arbys, McDonalds and Burger King all decline to offer this to America’s finest.  That’s an insult to us. I have had Vets come back from Iraq telling me BK had set up at some of the bases there as well as Mickey D’s. How is it we give them a foot in the door for profit over there and they decline to remunerate us here at home? I suggest you voice your indignity loudly at the counter where the patrons behind you can hear. Better yet, vote with your feet, walk out and go to JITBox.

I find it never hurts to ask. I don’t do it to embarrass or coerce establishments into something for nothing or a reduced price. Obviously, there are responsible corporations that comprehend good business practices. The mere offer of a small discount to the 8% of Americans who have offered up their lives in service to their country can be a powerful public relations tool. Vets talk to other Vets. As a minority smaller than Blacks and Hispanics and only slightly larger than Asians, we naturally interact with one another once identified. Communicating how to be frugal and take advantage of a proffer from these corporations is natural for us.  Look no further than this post.

I take advantage of anything I can to save money. I think I speak for the 99% here. We’re in a pretty rough spot economically in America now and finding a station selling gas for 10¢ a gallon less than their competitors always prompts me to tell friends, employees and relatives. It’s human nature, I suppose.  As for the aforementioned corporations, they appear to have a strong incentive to help Veterans. Altruism? Maybe, but the fact that we communicate this knowledge to other Vets is bound to help their bottom line. It’s like a blue light special at K Mart. Marketers call it the Loss/Leader phenomenon. Get a shopper in the door for an advertised special and they’ll buy other things resulting in a profit that far outstrips the loss of profit on the special. The same applies for us. I’m telling you about this although I suspect most know. However, the Krispy Kreme connection is too good not to share in the event you don’t. I hope all of you start supporting them and they make tons of money because I have ulterior motives.  They can hire more people and build more stores.  And hopefully this time they’ll build one closer than 38 friggin’ miles away from my house on the other side of the toll bridge.

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

BVA– BENT BRAIN + ETOH = SC

Posted on November 3, 2011 by asknod

From the gambling halls of Reno, we are treated to this gem of jurisprudence. Judge George R. Senyk is another judge who is no stranger to the BVA corral so I’m sure he’s seen a lot of these. However he must have been scratching his head when he read the VA-provided nexus letters by the “specialists”. Here’s a split decision that grants alcoholism (substance abuse) as a disease secondary to Bent Brain Syndrome (PTSD). This, in itself, isn’t so infrequent as to warrant attention. Our Renonian also has the Hep, but VA is going to deny on that. They will grant the liver transplant as being SC too, but only because of the alcohol. Even though the two diseases (alcoholism and HCV) are co-equally responsible, VA will reason that 50.0001% was caused by alcohol rather than hep and therefore give him the SC for this as well. Vet wins big with new liver, right? Not so fast, Hoppalong. If he dies before his ten year protected rating  date of November, 2015 from what they adjudge as HCV-related liver cirrhosis, then the P&T evaporates and if he has a wife and kids under 18, it’s bye-bye compensation and any DIC/DEA hopes.

If you were service connected 100% for PTSD and died within the first 10 years of that rating, your heirs/spouse lose. Ten years and one day? Then they’re good to go.  Interesting concept. Here the American Legion has done some phenomenal horse trading and got this Vet a stellar deal. You will notice that VA is still in denial about the whole jetguns, razors,and toothbrushes thing. They are willing to give him the cirrhosis of the liver only as alcohol-related to dodge the HCV bullet. Very interesting.  In the next paragraph below I present the VA’s infectious disease specialist’s nexus theory, or should I say non-theory. VA has a marked propensity to always point to something and say “Here. See? Right here the Vet said he did thus and so. He admitted that he (fill in “snorted, shot up, huffed, drank, absorbed, inserted in body cavity”) on this date to VA medical personnel. This is where he got the bug. Willful misconduct!”

What’s interesting in this decision is how the Vet didn’t get it. They have spent a lot of energy proving what it isn’t from (the PTSD), but strangely are not the least inquisitive as to ascertaining the etiology. You just don’t see this in VA adjudications. Ts have to be crossed and Is dotted before the denial can ensue.  The sordid truth must be revealed. The culprit must be unmasked. The method and frequency of ingestion must be identified.

In March 2011, a physician from the infectious disease department of a VAMC stated that he had reviewed the Veteran’s medical records as well as the psychiatry specialist’s opinion regarding the hepatitis C, alcohol use and PTSD.  The medical expert noted studies regarding the causes of hepatitis C, and found, in essence, that the Veteran’s hepatitis C is unrelated to his service or to his service connected PTSD with alcohol abuse.  Regarding the Veteran’s alternative theory of entitlement, that his hepatitis C is the result of exposure to infected blood/blood products in service, the medical expert opined that razors, sutures, and suture needles are an ineffective vector for transmission; casual exposure of intact skin to infected blood or body parts is insufficient to produce a hepatitis C infection; and although jet injector use (vaccinations) can be associated with hepatitis C transmission, this is usually recognized in an outbreak situation where there has been a breach in standard operating procedure.  Thus, the VHA medical expert’s opinion is against the Veteran’s claim that his hepatitic C is secondary to his service-connected PTSD and alcohol abuse .  The Veteran has presented no competent (medical) evidence to the contrary.  His own statements (that his hepatitis C is the result of exposure to infected blood in service or is secondary to PTSD/alcohol abuse are not competent evidence; he is a layperson and lacks the training to opine in a matter that is beyond the capability of lay observation.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

VA has always held that alcoholism is a risk factor for HCV, yet here we see that is no longer true. A specialist in these things has spoken. In several weeks he will probably be called to opine on another Vet who has a history of alcoholism, HCV but no Bent Brain Syndrome. The doctor will undoubtedly come down on the alcoholism leading to the HCV but no explanation as to how this is possible. I suppose a homeless Vet toasted on MD 20-20 could pass out and do a face plant into a small pool of blood from his HCV-positive buddy for several hours and rise with the disease.  VA denials are always carefully crafted to fit the circumstances. Here we have a classic example.

I suppose the good news is that AmLeg will get their photo op with this fellow if they invite him to their bar. You won’t see many of these types of decisions, but this is a good primer if you’re planning the “bent brain syndrome ate my liver with Alcohol” defense.  The teaching moment is also that you should claim alcoholism rather than blood exposure as your hep risk factor secondary to PTSD because it is recognized as one, apparently.  Well, except for here,  most of the time.  I think. Except in Reno. Right?

http://www.va.gov/vetapp11/Files3/1122102.txt

 

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

A NEXUS LETTER IN A MANILA ENVELOPE

Posted on November 2, 2011 by asknod

We have a member in the Philippines- Manila-to be precise. No, he’s not a survivor of the Second World War He was a naturalized citizen who signed up and fought in the SEA conflict. After he got out, he opted to leave LA and moved back. He has filed for hep. via the jetguns and just natural exposure inVietnam. I suspect he’ll win on the drunken tattoo in Saigon ploy though. He had none going in on his entrance exam and one documented coming out. He was denied based on no nexus so he’s in search of that right now. What blows me away is that there’s still a VARO (of 57 in the world) in Manila. I realize we won the Philippines from Spain in the Spanish-American War of 1898. We’re still paying a tax on our telephones for that war in case you were not aware. I guess some wars are more expensive than others. Seems we would have paid that one off by now. I  also wonder how long it will be before VA downsizes and closes their office there.

Manuel (not his real name) is having a tough go of it getting the nexus. I noticed this with another vet we are helping in Puerto Rico, too. I don’t get it. Why is it so damn difficult to get a nexus out of anyone? Seems like you could just cart your records down to Dr. Kildare and say “Hey, check this out. If you believe that this is plausible and I’m not wet all over, would you be so kind as to sign this letter for me? I promise no one’s going to question your bona fides or sue you. In fact, you’ll never hear from me or VA again. If I need to pay you something to perform this function, I would be happy to.” We shouldn’t have to be at the mercy of the VA examiner to give us a winner. As most know, that only happens about 10% of the time.

In the United Soviet Socialist Republic of Washington, I can go to an ARNP and say “my hep. makes me sick and nauseous” and give them $100 for a “marijuana letter”.  That gives me a prescription for the pot.  In fact it’s getting cutthroat now. They’re running recession specials for $89.95 at the pot “pharmacies”.  Last year it was $200 for one. I guess what I ought to do is set up a “clinic” and have all you Vets who need nexus letters write in for one. I’m sure I can get some underemployed Dr. or ARNP/PA to do this on the side in the evenings.  In fact, I can run specials around the holidays and for twofers. I’m seeing dollar signs already. We can do it a la Occupy Wall Street mode. The 1%ers have to subsidize the 99ers.  The problem is I don’t know any rich Vets.  It’s an oxymoron. Nevertheless, this bears investigation. My hope is to find a doctor who would do it for free for hep. Vets and not everyone with hammer toes and hemorrhoids.  This may prove to be a seminal moment for HCVets should we succeed. I will report back to you.  Just to clear the air, should I succeed in this, any fee would be strictly between you, the Vet, and the doctor or medical professional. I jest when I say I would be the intervenor.  I have no desire to benefit financially from another’s misfortune, nor would I.

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

Quotes Worthy of Quoting

Posted on November 2, 2011 by asknod

I was asked by someone active in the HCV movement named Terri L. to be friends on Facebook. On her page, I spotted this:

“You have never really lived until you do

something for someone who can never repay you.”

I wish to second that opinion and thank her (him?) from the bottom of my heart. That is the joy I feel with every victory and have never seen summarized quite that succinctly. As a codicil, I have been offered remuneration for this work by several and I have to remind people that it’s AGAINST THE LAW. Even if it wasn’t, I could never bring myself to accept anything for what I do here. This is my pay it forward phase for some of my shortcomings earlier in life. Without getting all religious on you (which I don’t approve of), it is definitely more blessed to give than to receive. I am blessed, so it follows that I would share what I have found and continue to discover with others similarly situated. That’s all I’m going to say about that.

Posted in General Messages, Uncategorized | Leave a comment

Cel phones for Homeless Vets ?

Posted on November 1, 2011 by asknod

What could possibly sound more useful and compassionate? The devil is in the details.

I constantly search other Veterans websites and glean them for meaningful things that may help you, the Veteran, in your pursuit of justice. However, when I run across a prime example of do-gooders run amuck, I cringe. Help should be spontaneous and unconditional for Vets. We defended America and expect them to honor their compact with us. What could possibly be more wasteful of limited resources than to do the following…

http://www.veteranstoday.com/2011/10/24/all-men-are-created-equal-except-homeless-veterans/

No offense to the Kenster, but he looks a little wet behind the ears on this one. A cel phone that ET would have a hard time phoning home on? Hello? McFly? Look at me without laughing, Ken Smith, and tell me you think this is the solution or even a beginning towards ending homelessness. This is hopeless social engineering with nothing accruing to the Vet. Feel good programs let social workers sleep better at night, but do nothing to improve the homeless’ lot. Throwing a cel phone into the mix is like handing out flashlights with no batteries. What honestly must pass through their pointed little heads when they “envision” these schemes?

Or this one already preplanned for a photo op and the news and film at eleven:

Veterans Advocate Bill Pittman, M.Ed. , Director of Special Programs for the “Veterans Workshop” and alum of Boston College will help launch this program in Washington DC with a homeless veteran calling his VA outpatient clinic coordinator in early 2012.  Together with support and encouragement, all Americans can bring a voice to those who have given so much.  Homeless veterans are asking for a voice because they are now -voiceless.  Oh shit. What happens if the overworked outpatient clinic coordinator puts him on hold for 45 minutes? What if his cel phone battery runs out while he’s waiting for meaningful assistance? Smart money says they’ll be sitting there waiting for his call at the expense of every other Vet calling in.

Ki Yi yippee all day. Let’s launch another program that will run out of funding in six months and then what the hey? Launch another one. If they keep this up, we’ll be too busy attending the launchings and cheering to notice all the homeless Vets sleeping on the park benches behind us.  I’m sure Bill Pittman and all his cadre think they’re going to make a difference with genetically inferior cel phones, but I have been watching this Dog and Pony show for decades and I have seen more “get rid of homelessness” programs launched than I can count. News flash! We still have an epidemic of this and all the king’s men and all the King’s horses haven’t managed to make meaningful inroads in it.  The VASEC recently (six months ?) announced that he, too, was going to slay this dragon before he leaves office or die trying. Oh, please. Spare us the theatrics. What we don’t get to see is the army of Bill Pittmans he has hired as consultants at $120K a year to study this and make recommendations to VA on how to fix it. After paying all the REMFs to demonstrate how to use a cel phone at a VA photo op in 2012, the coffers will be empty. The 99% will be hornswoggled out of their money yet again and the fat cats will be shopping for a new “problem” to study and cure. They are so helpful. What would we do without them?

If we took all the money devoted to these studies and actually spent it on the homeless Vet- and not all the administrative infrastructure they employ to deliver it, we might discover we accidentally fixed in the problem.  Thousands of you are out there willing to donate your time and energy to the plight of disenfranchised Vets, yet the Government doesn’t trust you to be objective like them.  You are well-meaning but unprepared and untrained to perform anything other than mundane volunteer work. Therefore, VA must hire trained professionals.  Everyone has to have a Masters in Sociology to get on this gravy train.  No, the smart money to ending homelessness is to enroll them all in college, give them a degree and then a job at the VA.  Yep- more government equals more taxes. Take a page from the Wall Street krewe- Kill the rich and take their money. Income redistribution is the cure, apparently, until we run out of rich people. And then what?

Posted in General Messages, Uncategorized | Tagged | 1 Comment