CAVC– Ledford v. Derwinski (1992)– Why we can file for HCV

Posted on October 22, 2011 by asknod

Veterans have asked me over time why we have a path to HCV when we legitimately didn’t have symptoms of it in service. 38 CFR 3.303 is the path most take for diseases or injuries that were documented in service. Due to the cryptogentic nature of HCV, there most often are no outward manifestations one can readily attribute to this. Well, yes I hear you say “What about the flu-like symptoms after jet gun parties in 1968? What about the sudden feeling of malaise or a decline in health for weeks on end with a gradual betterment over time?”

PTSD claimants have a similar if slightly different maze to traverse in order to attain their rating. Attaining an HCV rating is quite possibly the most difficult to do, though. Even if you get lucky enough to have an entry for clap in the SMRs, you will need a nexus letter to win. Same with a tattoo recorded at separation that wasn’t noted at entry on your Form 88 exam at #39. You can sometimes get around this with photos from service. Buddy letters are also helpful. The RO may still drag their heels provoking a substantive appeal and a trip to downtown Foggy Bottom. What our claims process (presumptive risk) is predicated on is a case decided on August 7th, 1992.

Mr. Odra NMI Ledford filed for heart problems right after he got out and won 30%. What he didn’t do was file for hearing problems or even mention as much. Along about 1989, he got around to that. Apparently he finally noticed in his medrecs that he had  had hearing issues in his right ear and they were way worse now. So he mailed the VA a copy of the separation physical, a new hearing test result and a” so what are you gonna do about that?” VA didn’t respond. Several months later he filed an official 4138 and was more specific. The RO denied several moths later in March of 1990. Odra rapidly sent in N&M evidence but the die was cast on the water. The RO had spoken and there was nothing for it.

Consequently, since there was this really keen new Court that Congress had recently set up…

In its decision of May 7, 1991, the Board noted that the separation examination did not contain “audiometric findings to support” the diagnosis of a possible loss of hearing in the right ear, deemed it to be “significant” that the veteran did not complain about a hearing problem when he was examined for his heart condition in 1964, and found itself “unable to grant service connection for his current defective hearing without a showing of either treatment in service or within the one-year presumptive period following his discharge from service.” Odra Ledford, BVA , at 3-4 (May 7, 1991). Appellant filed a timely Notice of Appeal on May 31, 1991. This Court has jurisdiction pursuant to 38 U.S.C. 7252(a) (formerly 4052(a)). Ledford v. Derwinski (1992)

This is the new Court. They have not spoken on very much yet. They’re still hanging their crap on their trophy walls. The picture of the wife and kids hasn’t even been unpacked in this insane rush to create Veterans Law precedence. Everything has a newness about it like the smell of a brand new car. The VASEC is feeling pretty good here. The case has no holes in it. Right?  Well, not exactly as they say in the Avis commercial.

Read on… 

It is important to note that 3.385 is negative in its terms and in its application. The regulation states when service connection will not be established; it does not, however, determine when service connection will be established. Therefore, by its terms, the regulation does not and cannot apply to the diagnosis rendered on appellant’s separation physical examination because the examination is incomplete and there is no indication whether or not appellant’s hearing met the thresholds for the cited frequencies; the regulation does not in and of itself rule out an award of service connection due to the absence of results of an in-service audiometric examination capable of being compared with the regulatory pure tone and speech recognition criteria. If the regulation were construed to require retroactively such in-service examination results before service connection for hearing loss could  be found, serious questions would arise. However, when applied–as it properly must be–to the current audiometric reports, 3.385 compels the indisputable conclusion that appellant now suffers from defective hearing as defined by the VA. Therefore, the provisions of 38 C.F.R. 3.385 do not serve as a bar to service connection. As its “REASONS AND BASES FOR DECISION” the Board noted only the absence of complaints or treatment for ear problems or hearing loss during service and the lack of audiometric findings which would support the diagnosis on the separation physical examination that there was partial loss of hearing in the right ear. We have dealt with the absence of audiometric findings above. Contrary to the implicit reasoning of the BVA, we are unable to find in the statutes or regulations a requirement that there must be complaints or treatment in service before service connection can be found. The separation physical examination is more than sufficient evidence that appellant’s hearing was impaired during service. In the face of such evidence, there is simply no basis to deny service connection on the ground that the veteran was not treated for this impairment while in service. For the BVA to have done so, in the absence of statutory or regulatory authority, was error. Similarly, we hold that the absence of a complaint of hearing loss during a heart examination is not, on this record, a plausible basis for denying service connection. Ledford supra (emphasis mine)

Now, gentle readers, take note. Often a panel of judges open their mouths and commit themselves and their Court to a precedent- forever in some cases. Here is such an example. They used the phrase “unable to find in the statutes and regulations”. That’s a pretty big bite of steak to chew on in and of itself. In conjunction with what is attached to it, we now have the link to why we can say “HCV via jetguns, blood exposure in combat, medics’ needle sticks, tattoos, STDs” and on and on.

By deciding to go to D.C. when he did over what he didn’t get, we are graced with this wonderful piece of jurisprudence. It has stood the test of time and now is the cornerstone of how we can get a purchase on this slippery slope.

Raters do not deal in the Ledfords and the Gilberts of law. They only discuss it in dry terms with their bible-the M-21. In their minds, something is not specifically precluded from being used against you if they get away with it. Remember that. Consider also this ugly statistic- approximately 80 % of us don’t even appeal! This is why we see it written more times than we care to think that “there is no evidence anywhere in the Veteran’s SMRs or being diagnosed with hepatitis C in 1967. Indeed, from his entrance in 1964 to his separation in 1968, he never complained of any liver problems. Therefore, the absence of any manifestation of hepatitis of any kind militates against the claim.”  Even though what they are saying is blatantly wrong legally, they get away with it because you give up. Unfortunately you can quote this to the VA Examiner until you are blue in the face and look like a smurf.  Ledford v. Derwinski isn’t in the M-21 so the claim must fail.

The Court said this in 1992 yet there is little discussion of this even at the BVA level. Why is that? This is admittedly where these things should be brought up and discussed. This is established precedent yet you rarely hear or see any discussion of it. I would say it is an important tool in an appeals arsenal and needs to be sharpened and polished. Invoking it a few times will get it back in circulation on a regular basis. We already use it to get our collective foot in the door. It’s time to enunciate the precedent at the AOJ level by severing the discussion based on absence of it in service.

Ledford_91-903

Truth be told, I’ve never had so much fun looking for something to conflusticate these folks with. One thing bothers me. Odra? Where in Sam Hill did Odra come from? Must be an inside joke or a family name from the old country. Sure will set a man apart and keep him on your mind, huh? Odra Ledford. Sounds like Jed Clampett’s next door neighbor in Bugtussle.

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

Quote of the Day

Posted on October 22, 2011 by asknod
“When I joined the military it was illegal to be homosexual,
then it became optional,
and now it’s legal.
I’m getting out before Obama makes it mandatory.”

GySgt Harry Berres, USMC
 I believe Harry has summed up what a lot of us feel. I had the pleasure this week of meeting one of our members who flew in from Dayton. Broncovet was here to travel back to Ohio with his son who was separating from the Army on Thursday at Joint Base Lewis McChord. Fortunately, his son survived and is now a civilian and no worse for the wear. We had a nice dinner here at Chez Nod and one of the subjects was DADT and its latest iteration.
     It is our confirmed belief that this bodes ill for the professional military. We suspect there will be no dearth of REMFs in the future, but a decided absence of combat personnel or those aspiring to same. We also expect to see the draft instituted again at some time in the near future when our military becomes depleted due to a desire by many not to socialize with others not of the heterosexual persuasion. I would point to the comedy skits of Monty Python from the eighties to illustrate this coming crisis.
     While we hold no animus towards those who are gender challenged, we feel the new paradigm will eventually alienate others who may hold old fashioned ideas on this touchy subject.  It would appear that the words of Leonard Nimoy as Spock in Star Trek have been co-opted to read “The needs of the few outweigh the needs of the many.”  So, special barracks and three bathrooms in the future? Sex change operations on demand? Salutes with a wink? We can’t wait.
Posted in General Messages, Uncategorized | 1 Comment

THE ROI AND CHOCOLATE

Posted on October 22, 2011 by asknod

At every VAMC you will find a ROI. That, if you haven’t visited the VA dictionary, is the Release Of Information portal. You will end up there eventually for several different reasons which we shall talk about today.

You have probably heard about Ebenefits and Myhealthevet which are two programs the VA administers via the internet. They are getting better with age like a fine cabernet. Some day we will be forced to use these exclusively and talk to people with English accents in India who will claim to work for the VA. You might as well get started now.

Ebenefits  is used to find out where on earth your claim is and when it will be done. It’s a nice little fictional story and will keep you entertained for years. Myhealthevet aspires to connect you with the medical side of your relationship with VA. It, too, is growing slowly and is reputed to soon enable you to see your medical records. This is slated for 2016 or so. I noticed my laboratory results are starting to pop up there about 3 months after I see the doctor.  This may be a problem for some if you are emergent and desire to find out what’s afoot immediately. For others it’s an important tool to keep abreast of what you have actually been diagnosed with. Many Vets come to us with horror stories of lab tests for HCV they were given years ago. They are just now discovering the tests were positive and no one bothered to tell them. Sound familiar? Don’t feel pregnant and alone.

In order to enroll for either one of these programs, you will need to present yourself in person at the ROI and sign up. You will need valid I.D.  After proving your identity you will be able to access the new system when its up and running. They are notorious for their downtime so don’t be disappointed. Here is the link

https://www.ebenefits.va.gov/ebenefits-portal/ebenefits.portal?_nfpb=true&_nfxr=false&_pageLabel=SelfRegistrationLevel1

The link for myhealthevet is

http://www.myhealth.va.gov/

As cynical as I am, I am personally glad they have instituted these programs. Ebenefits has taken a load off the poor telephone crews at Dial a Prayer. Now Vets can pester a computer 8 times a day about the progress of their claim instead of a warm ignorant body.

Speedupmyclaim.com  (It’s humor. Okay?)

Being old fashioned, I like to visit with Bev and Marge at my local ROI. They, in turn, like the Hershey’s toffee almond candy bars I always bring them so I get really good service. Veterans would be advised to carry these with them year ’round rather than just at Valentine’s day or Halloween. My VAMC is 42 miles away and gas isn’t cheap. A simple telephone call to Bev asking her to mail me the most recent lab or Doctor’s visit is an ace in my pocket. Without the toffee almond bars she wouldn’t remember me from Adam’s asshole.  Now, with just the mention of them, she exclaims ” Oh, sure. I remember you, honey. How far back do you need?”

I also find the candy is useful when trying to get labs done. I made friends with the gal up in Infusion therapy when I was very ill and had a PICC line in. She would do my blood draws at the same time as she refreshed the surgical site. If you have never taken a number at the lab in a VAMC, you will soon come to dread the experience.  Chocolate doesn’t cut it down at the lab. Some Vets don’t bathe very frequently if they suffer from PTSD. Others use Petuli oil in an effort to mask the aroma. This is like drinking Vodka during the day in the mistaken belief that nobody can smell it. Some have colds and sneeze a lot without covering their faces. I have a compromised immune system and it scares me to death to go in there and wait for 30-40 minutes. I armour up with masks and hand sanitizer and I still worry.

Well, worry no more pilgrims. Yes, with Hershey’s amazing new TA-3, you to can overcome medical problems that seem insurmountable. Simply present them everywhere you go and soon you will notice that you are ushered to the front of the line at VAMCs . Soon VA employees will “friend” you on their Facebooks. You will need this soon. I have witnessed the shrinking budget and it is beginning to make a subtle difference. Nurse Jean up in Infusion therapy used to hold court with Sandy and Barb 4 days a week and take Fridays off. Used to be you could go up there for a blood draw and find out the skinny on who’d been fired in the pharmacy for stealing Dilaudid. Yessiree. Chocolate got you the newest recliner up there pronto. Now she’s there with only Barb on Mondays and Wednesdays. Tuesdays and Thursdays they put her on the shuttle bus to Seattle to go work at the VAMC up there. This has put undo stress on me because I have to schedule all my appointments on Mondays and Wednesdays to obtain good gossip.

Rumor has it that by next year we’ll have to draw our own blood and send it in little prepaid packages to Rajeev at the lab in New Dehli. This Obamacare thing is starting to have horrible consequences as you can see. My PCP and his crew sent me a letter this week announcing a new program called PACT (Patient Aligned Care Team) . The new PACT approach offers many ways to access health care according to the brochure. Most of it entails a “type it in and send it to us” format on Myhealthevet. They promise to get back to you soon. Keeping in mind the promise to me from the VARO after my NOD that they had my claim in January of 1995 and would be “getting back to me as soon as they had reviewed the new info”, I feel I have cause for alarm. As most know, VA never did get back to me. I got back to them 13 years later after I got too sick to work while waiting for that call.

I’m sure our illustrious leader at 810 Vermont Ave. NW means well, but every time the VA institutes something new to speed things up and improve the system, we see a marked decrease in work product and an increased wait time. Mayhap I’m just getting old and  irascible. However, I did mail the VLJ some Hershey’s toffee almond bars in hopes he would see my appeal in a more favorable light. If “he” had been a “she”, I’m sure I would have had a decision by now. More anon.

P.S. I am not sexist and most certainly not chauvinistic. It is my firm belief that the VA should be run by women. They are far more efficient. Hell. I’ve watched them type and talk on the phone simultaneously- all the while chewing gum and ovulating! I’d like to see a man try that.

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

CAVC– GEORGE V. SHINSEKI– DUE PROCESS?

Posted on October 21, 2011 by asknod

If you have never filed a claim with VA, I suppose you could be a little lame as to what the procedures are. When VA tells you that you need to go to a Dog and Pony show to determine if what you’re claiming even exists, it behooves you to do so. If you forget and blow it off, they send you a Statement of the Case (SOC) informing you they are continuing your denial because you didn’t show and you have sixty days to get your shit together. You can still pull the bacon out of the fire at this point if you request another D&P. If you don’t and just send in the F-9, VA will oblige you and mail it to D.C. as is.

Our good buddy, Robert J. George, must think the rules don’t apply to him. He filed and lost. He filed a NOD and VA agreed to give him the D&P. He was a no show so he got the SOC treatment. Instead of asking for a new D&P and pleading stupidity, he exercised his Constitutional right to remain stupid and filed his F-9. The Board explained what he did incorrectly and that he had many chances to right the wrong. He chose to file an NOA and go to the Court. NOA filing fee? Fifty dollars. Guaranteed denial? Priceless.

What Big Bob hoped to accomplish at the CAVC escapes me. His argument has about as much gravaman as screen doors in submarines. If there is a process to be followed to reach the pot of gold at the end of the rainbow, why would BJ think he was absolved of the responsibility to comply?  I cannot believe he did this all by himself. This has all the hallmarks of an AWOL VSO.  The strongest argument he seems able to resurrect is the latest “due process” one. Everyone is trotting that one out this year. It consists of “I was dissed” or “Nobody told me”.  Another one I hear is “Its no fair the way the law is written.”

As much as I dislike the VA process of ex parte justice, there are many safeguards built in. My favorite is § 3.156(b). You are allowed to submit new evidence or even to ask for another exam when those rude, inconsiderate mugwumps issue the SOC  . VA will oblige you. You can keep this up forever theoretically or until you run out of New and Material evidence to submit. As Judge Hagel pointed out, this is a two-way street and if the Vet makes no attempt to help out, he mustn’t be appalled when he discovers he lost.  While he was sitting around waiting for the BVA to docket his case, he could have legally petitioned the Judge to remand this for an exam. Tellingly, he didn’t. This exudes stupidity and inattention from start to finish. The amount of time and money expended to make sure Bobmeister had his day in court (twice) rankles me. I have no beef with cutting down trees to build houses and such. I do find it wasteful, however, devoting their pulp  for printing appeals like this one.

I guess I should bite my tongue and be silent. The system was designed to actually accord the Vet every consideration at every phase in this process. His voice must be heard even if what he has to say is gibberish. Where I diverge with this procedure is when the Vet has no legal argument to present, but simply wants a soapbox to stand on while he cries. The time and money spent taking this to the Court was uncalled for. One should have to have something to cite to ask for review on appeal. Due process violations must have some substance. Simply shouting the phrase in haec verba does not make it fact. Everyone  but BobbiJay knew this. At the end of the decision, the document shows he had a legal beagle tagging along.-Jeany C. Mark, Esq. What on earth was she doing besides her nails?

Given the interminable delays we encounter for legitimate adjudications, this kind of jurisprudence leaves us desirous of  giving Mr. George a much deserved Texas Necktie Party from the nearest tall Oak tree. This being the 21st century, such enlightened justice is forbidden. Two  purple nurples and a severe noggin noogie will probably be his fate from his wife.  I sure he told her this was in the bag and she was out spending money like water on a new ensemble (accessorized, of course).

http://search.uscourts.cavc.gov/isysquery/9aecb4de-9673-4d27-9af4-a1ca1e34c8cd/8/doc/GeorgeRJ_09-3294.pdf#xml=http://cavc-isys1.cavc.adir/isysquery/9aecb4de-9673-4d27-9af4-a1ca1e34c8cd/8/hilite

Posted in CAvC HCV Ruling, General Messages, Important CAVC/COVA Ruling | Tagged , , , | Leave a comment

BVA– SPECULATION OR BENEFIT OF THE DOUBT?

Posted on October 21, 2011 by asknod

Milo J Hawley has been a VLJ for as long as I can remember. He is not very forgiving of stupidity, be it the VA or the Veteran. If you arrive in his class without your homework or if its prepared incorrectly, you fail.  No ifs, ands, or buts.

This motor city Vet has a lot going against him. By all rights, he should lose. God looks out for idiots like him as you will see here.

The Veteran’s service treatment records indicate treatment for sexually transmitted disease.  In addition, the record appears to indicate that the Veteran obtained a tattoo while in service.  In addition, the Veteran admits to in-service intranasal cocaine use and intravenous drug use.  

In this case, there are three opinions which indicate that the Veteran’s in-service IV drug use was the likely cause of his hepatitis C.  As noted above, Dr. Campbell stated that the Veteran’s remote history of IV drug abuse and alcoholism resulted in a cirrhotic liver, hepatitis C, and impending liver failure.  Dr. Campbell also noted that the Veteran used IV heroin and many other intravenous drugs during military service.  M. Kretschmer stated that the Veteran admitted to using intravenous heroin and other [il]licit drugs as well as abusing alcohol during his term of duty and that he most likely contracted hepatitis C at that time as he denied other risk factors for contracting the virus.  The May 2009 VA examiner first opined that the Veteran’s hepatitis C was as likely as not acquired during service as sexual activity is likely a mode of transmission of hepatitis C virus and then opined that it was likely that any one or all of the following, sexual activity, IV drug use and cocaine, could have been a transmission of the hepatitis C.

The Board notes that the RO continued the denial based on the May 2009 VA examiner’s opinion noting that the examiner noted that it would be a mere speculation to state one cause of transmission of the hepatitis C as they all could transmit the hepatitis C and it was difficult to delineate which one caused the transmission.  The Board emphasizes that the criteria is whether it is “at least as likely not” that the Veteran’s hepatitis C was the result of the Veteran’s service.  The term “at least as likely as not” means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.  In this case, the May 2009 VA examiner’s opinion in essence is that it is at least as likely as not that the Veteran’s hepatitis C was the result of sexual activity; that it is at least as likely as not that the Veteran’s hepatitis C was the result of IV drug use; and that it at least as likely as not that the Veteran’s hepatitis C was the result of cocaine use. 

Mr. Kretschmer’s opinion was based on an inaccurate factual premise and is not probative.  Although Mr. Kretschmer stated that the Veteran denied other risk factors for contracting the hepatitis C virus, there is evidence of other risk factors including in-service high-risk sexual activity and a tattoo.

In this case, both physicians seem to indicate that the veteran’s cirrhosis was caused by either hepatitis C or alcoholism.  Stated another way, the VA examiner appears to opine that it is at least as likely as not that the veteran’s cirrhosis was caused by hepatitis C, and that it is at least as likely as not the veteran’s cirrhosis was caused by alcoholism.  Thus, the Board finds that the competent medical evidence both for and against a finding that the Veteran’s cirrhosis is related to the hepatitis C is also in a state of equipoise.  Accordingly, reasonable doubt is resolved in favor of the Veteran.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

VLJ Hawley has smelled the “speculation coffee’ and wants no part of that. If he subscribes to it, he will be dodging the bullet and passing the buck up to the Court. The BVA has noticed that recently everything speculative headed that way seems to have a rubber band attached to it and they come back faster than they depart. Instead, he does a probative analysis and finds the error is nothing more than good old benefit of the doubt. He doesn’t care if some of the risks are willful misconduct. The important fact is that the good is equal to the bad, so there is no need to don sackcloth and rub ashes on your forehead. Mere speculation does not have to result in an “nondecision”.  You simply pronounce the magic incantation “equipoise” and grant the sucker.

This speculation phenomenon will run its course as we all find a way around it. VA will undoubtedly find a new trick in the next year and that will become the latest rage until it, too, fades away. Recognizing these ploys is easy. Counteracting them without a prolonged delay will always be the challenge.

http://www.va.gov/vetapp11/Files3/1124905.txt

 

 

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

BVA– SP-SP-SPECULATIVE, YOUR HONOR!

Posted on October 20, 2011 by asknod

downloadSenator Harry Byrd of West Virginia used to inveigh in the Senate when filibustering with a well-known rejoinder-“WRONG! WRONG! WRONG!” (capitalized merely to enunciate his vigor voicing it). Where are you now when we need you, Harry?

This horrible piece of legal work made its way to the BVA this year. It was advanced on the docket because the poor widow is undoubtedly past her medical prime. I doubt she’s a mail order fluffer from Russia or the Philippines. The VFW has done a credible job here or the VLJ has. I suspect the latter as you will see.

I recently posted a 2010 CAVC case (Jones v. Shinseki) where the appellant was getting the sharp end of the Punji stick. It was remanded based on a lot of things, but one in particular is the new default denial starting to become the latest way to chuck these decisions in the circular file. VA has the “examiner” tear their hair out and say they really tried and tried but couldn’t in good conscience grant SC, because to do so would be speculative. This makes for good theater at the RO, but wears thin at the BVA. If it gets up to the CAVC, the whole house of cards comes tumbling down and the RO has to admit defeat and actually come up with a yea or nay rather than check the box marked “don’t know”.

VA examiners do this for a living. Most are not doctors, but that’s why we have IMOs and IMEs . Private Doctors are not so equivocal as to scratch their heads and profess ignorance on how to decide it.  Without doing the Mel Gibson Conspiracy shtick, I think something is afoot here and I don’t like it. Ten years ago it was the plaint “It appears that the hepatitis the claimant suffered in Vietnam was Hep. A”. We can now test for that and determine if it was A or B so that window of denial was erased. If you had B, then there is a better than even chance you picked up its little brother C at the same time.  VA would dispute it but that is common medical theory for the SEA theater in the 60s and 70s.

In Jones, the Court enunciated an important precept:

The appellant raises a new question, however, with which this Court deals today.  How should the Court treat a situation in which an examiner’s opinion is unclear or silent as to whether all information that reasonably bears on a medical analysis has been gathered or the reasoning behind the inconclusive opinion is absent?  Stated another way, how thoroughly must an examiner develop and describe the information gathered and explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered “without resort to mere speculation”?  This phrase must not become a mantra that short circuits the careful consideration to which each claimant’s case is entitled. Jones supra. (emphasis mine).

The reader can ascertain where I’m going with this. The BVA VLJ was just as perceptive. The RO is like an inept, bumbling prosecutor who can’t find the right file. Then, when located, enunciates a theory as insane as alien abduction. Here, the examiner tried the old  ETOH ploy. Yup. Two beers a day. There you go. A raging alcoholic. It’s a wonder he didn’t die sooner. Hold the phone. The testimony was 1 (one, uno) sixpack a week= 6 beers/week. Now it’s 1-2 per day for an aggregate total of 14/week? In VAland a “pack” of beer is subjective. The terms “rack” or “case” apparently are not in their vernacular.

The appellant disputes the RO’s suggestion that the Veteran was at risk for developing hepatocellular carcinoma due to cirrhosis from alcohol consumption (one pack of beer weekly, one or two beers daily).  She points out that, although cirrhosis is a factor leading to such cancer, it is a consequence of chronic hepatitis C and might not develop into liver cancer.  The appellant believes that it is just as likely that the inservice hepatitis led to the Veteran’s cancer.

 

http://www.va.gov/vetapp11/Files1/1101957.txt

Four medical professionals have discussed the cause of the Veteran’s death and/or possible relationship between the Veteran’s liver cancer and in-service hepatitis.  In August 2007, a VA examiner/non-physician, reviewed the claims file and concluded that she could not resolve the issue of whether the two were related without resort to mere speculation.  She based this conclusion on the following findings: (1) it is too difficult to determine whether the Veteran’s in-service hepatitis was of C type; (2) although there was no test for hepatitis C when the Veteran was serving on active duty and no medical professional noted hepatitis A or B during that time, the symptoms the Veteran exhibited during service were more typical of infectious hepatitis A or B; (3) liver enzymes were normal prior to 2007; (4) the Veteran had no risk factors for hepatitis C virus and therefore was not tested prior to his cancer diagnosis; (5) the Veteran had cirrhosis on a computer tomography scan in February 2007 and revealed drinking a pack of beer weekly; and (6) cirrhosis often develops with chronic hepatitis C infection and is a major risk factor for developing hepatocellular carcinoma.  

 This is where the poor examiner at the Huntington VARO is forced to swallow her pride and spout the VA party line.  Were she to tell the truth and say it was undoubtedly something to do with that Purple Heart and combat wounds, she would have been looking for new employment outside government. The reader will notice that even though this examiner professes to be well-versed in this process, there is no mention of testing in 07 to determine if he was positive for HAV or HBV antibodies? This is so elementary a test, they just do it automatically when they run the HCV PCR test. Somebody is not being completely forthcoming with all her medical abilities to opine.

Three months before, good old Ramesh Shah, M.D. had no problems with a speculative quandary:

In May 2007, Ramesh K. Shah, M.D., submitted a prescription indicating that the Veteran had been diagnosed with hepatocellular carcinoma in February 2007 and had underlying hepatitis C.  He opined that the liver cancer was probably due to the underlying hepatitis C.

One of VA’s  finest, a physician/ examiner no less, was  stymied to the point of speculation yet again three years later. These poor folks in Huntington must have a hell of a time making a commitment to marriage if opining on HCV gives them such conniption fits…

In March 2010, a VA examiner/physician, concluded that he could not resolve the issue of whether the Veteran’s in-service hepatitis contributed to the cause of his death without resort to mere speculation.  He based this conclusion on the following findings: (1) it would be sheer speculation to label the Veteran’s in-service hepatitis as type C in the absence of test results showing such type (not then available) and with documentation of non-specific symptoms and liver enzymes; (2) the Veteran did not have classic risk factors for hepatitis C; (3) from 2000 to 2006, the Veteran had normal liver enzymes and there was no episodic pattern of aminotransferase elevation; (4) there were various causes that contributed to the Veteran’s terminal phase, including other types of carcinoma, with a possibility of a metastatic cancer to the liver with a primary site of the intestines or lungs (hepatocellular carcinoma favored, but not definitively established, as primary site); and (5) the Veteran had cirrhosis, which is also a risk factor for developing hepatocellular carcinoma, and a history of alcohol consumption, which can cause cirrhosis.  The examiner explained that he could not conclude with certainty, and could not discard fully as a probability that the Veteran’s initial episode of non-specific hepatitis in service was hepatitis C and that the Veteran was a chronic carrier for almost four decades before developing hepatocellular carcinoma, which led to his death.

 

Well, there you go. No classic symptoms of HCV. What, pray tell, might those be? As near as I can tell, everyone presents in a different manner. There is no “classic” textbook demeanor one can cite to. Apparently this doctor is aware of one and our room temperature candidate failed the test. What happened to Groves v. Peake (2008)? At this point, our esteemed VLJ got tired of all these West Virginian bozos and opted for his own medical whizbang. Smart move.

In October 2010, upon the Board’s request, a private gastroenterologist reviewed the Veteran’s claims file and concluded that, although he could not state definitively that the Veteran had acute hepatitis C in service, that was the most likely clinical scenario.  He also concluded that the hepatitis C contributed to the Veteran’s chronic liver disease and death.  He based these conclusions on the following findings: (1) risk factors for hepatitis C infection include intravenous drug use, blood transfusions, high-risk sexual activities and body art/tattoos; (2) Vietnam veterans are at a significantly higher risk of such infection than the average population; (3) hepatitis A and B were unlikely based on serologic evidence; (4) hepatitis C is one of the most common causes of liver disease; (5) acute hepatitis C infections are most often asymptomatic, but account for approximately 20 percent of acute hepatitis cases in America; (6) over 80 percent of individuals exposed to hepatitis C progress to chronic disease, one third of which have normal liver tests; (7) one study with 10 to 20 years of follow-up with individuals with chronic hepatitis show progression to cirrhosis in 50 percent of the cases (other studies show lower rates); (8) hepatitis C accounts for one-third of all cases of hepatocellular carcinoma in America and this type of carcinoma always occurs in the setting of cirrhosis; (9) progression from initial infection of hepatitis C to cirrhosis to hepatocellular carcinoma takes 20 to 30 years; and (9) tests for detection of hepatitis C were not available until the early 1990s.    

 

Hmm. The man said “TA-DAAA!” No mention of beer and resultant hyaline cirrhosis due to same. The speculative cobwebs have been wiped away and a diagnosis has been found to clear the air of indecision. Now that wasn’t so hard. Perhaps this gentleman could replace the two boobs up in Huntington and VA could save some money. In addition, one rarely sees this degree of honesty exhibited in the cloistered VA system:

In this case, the Board assigns the VA examiners’ opinions the least evidentiary weight.  The two opinions are inconclusive, in some respects conflict with medical literature the appellant submitted in support of this appeal and do not respond to the appellant’s well-reasoned assertions. 

To the contrary, the private gastroenterologist’s opinion which favors the claim is based on a review of the claims file, including the medical literature the appellant submitted, supported by rationale and phrased in a manner that allows the Board to understand the probability of a relationship between the Veteran’s active service and death.

Much ado about nothing as they say. The folks in Huntington just don’t get out much and are medically challenged. We should pass the hat and buy them a newer edition of Cecil, Book of Medicine or a new Dorland’s illustrated.  Perhaps they need to attend more of those Hawaiian Tutorial Task Force get-togethers for some up to date instructionals on HCV.

Posted in BvA HCV decisions, HCV Risks (documented), VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , , , | 1 Comment

BVA– 3 Judge Panel

Posted on October 20, 2011 by asknod

This is an example of what happens when you have a Board hearing, the claim gets remanded and somehow you end up with another judge looking at stuff or doing a travel Board hearing at your RO. You end up with the evidence spread out over two VLJs. In order to adjudicate it properly, they have to revert to the old method and have a three judge panel to make it legal. Hence, we have the following decision with 3 VLJs. You don’t see this very frequently. It’s more common when filing a MFR over an old decision. Our friend loses here for a number of reason. His VSO just isn’t up to speed for this big a production. They rarely are. I am constantly amazed at how many arrive in D.C. with little or no preparation. The process is so basic Homer Simpson’s monkey (Mojo) could learn it. Why does it escape VSOs so frequently?

http://www.va.gov/vetapp11/Files1/1105512.txt

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BVA– Waco Tobacco

Posted on October 19, 2011 by asknod

Leave it to those funny guys down at the Whacko, Texas VARO smoking their left-handed tobacco. Here, His Honor Ronald W. Scholz, a seasoned VLJ, has divulged that the emperor has a twin brother and they are both naked as a jaybird. He may have known prior to this, but I have never seen any Judge or the AOJ let on that DC 7345 (HBV, AIH, etc. to exclude HCV) is identical to DC 7354 (HCV only) . Anyone can read it and see, but the comparison has never been so lucidly pointed out with a big ”So tell me how does it make any difference whether you just go ahead and rate him on the HBV? If the symptoms of both are identical and the ratings criteria are as well, who cares where one ends and the other begins? Rate him on the HBV or explain why you can’t and then send it back to us and we’ll do it.”

We get some really off the wall stuff from the religiously challenged city of Waco. You do remember the BATF shooting up that church and then the FBI burning it down a while back?  Whacky religion …Waco…Wait. I think I feel something here…

At any rate, this remand finally focuses on something that few consider. The VA watched as HCV claims started to increase when everyone from the Vietnamese “conflict” started to present like a pregnant woman with 4 cm dilation. They finally reached 10 cm.  on July 1, 2001 and DC 7354 was born.

The VA started to notice an uptick about 1992 when Vets started coming in with acute symptoms and no risk factors. Worse, testing showed it to be the new version of hep.- Non A, Non B (NANBH). As was their wont, they ignored it for a few years and then started to notice “bidness was pickin’ up “as they say at the VAMC. Consider these figures from the BVA files.

1992)======= 395 dispositions ( includes remands)

1993)======= 315 “                   “                                 “

1994)======= 451

1995)======= 450

1996)======= 649

1997)======= 841

1998)======= 811

1999)======= 824

2000)======= 865

It peaked at 1432 in 2009 and has held stable there.  BVA’s search engine is antiquated, so it’s difficult to sort out the different flavors and sub group them. Nothing remarkable would happen to the statistics even if I did.

If I were a business man selling hep. test kits to the VHA, I would have been building a bigger factory about then. VA opted for something far better than trying to figure out what was up.  They started a new Diagnostic Code to weed out the drug addicts and group them under a different number. Bingo! A lot less HBV claims! What they didn’t foresee was that someone, sometime, was eventually going to put 2 and 2 together and come up with Pedojet.  Think back to 1964 and consider this. The Army was now drafting individuals. Some were drug addicts and when sent through the line with the rest, they were contaminating the guns. Obviously it would be almost impossible, short of a Cray Supercomputer, to crunch the data and find all the infected souls and group them by Basic Training squadrons or platoons etc.  Thus was bred the beginnings of ultimate deniability. Do no study for fear of finding out the truth. Nobody has ever been infected with one so we will hear no more about that.

Truth always surfaces like a five day old body in a lake. Look no further than the AO cover up and subsequent debacle. If a Department of the government is tasked with overseeing the health and welfare of a component of our citizenry, common sense dictates they would represent us in a defensive posture rather than defend their actions against us. This little BVA ditty says as much.  Write Ron a letter and thank him for pointing out the obvious to Fort Wacko.

Honorable Ronald  W. Scholz

c/o Board of Veterans Appeals (027)

810 Vermont Ave. NW

Washington, D.C 20420

http://www.va.gov/vetapp11/Files1/1109238.txt

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DICK TRACY 101

Posted on October 19, 2011 by asknod

When filing a claim for benefits, there are certain things that can unduly influence your success. These may seem mundane and of no import, but they will have an impact larger than you can imagine. First time filers fill out a Form 21-526 that records as much information as can be amassed in order to find your records and enter you into this gargantuan system. Subsequent filings will be done on the venerable Form 21-4138. Of course, if you’re a maverick like me, you shun the bridle and do it yourself on the Standard Form 8 ½ X 11 (white). Nowhere is it cast in stone that you use their paper.

Regardless of which method employed, one thing will stand you in good stead. A brief, concise summary of what you are filing for and why you think it is related to your military service is axiomatic. Where most Vets overlook a golden opportunity is to interject the most primordial reason for the disease that can be ascertained medically. Most initial filings with the VA are a peremptory affair with the majority of the claims documentation following later. This reason is twofold. First, the VSO or the VA stands a better than even chance of losing it and secondly, that is how it has been done for aeons.  The VA motto, shared by their VSO lackeys is “If it’s broke don’t fix it”.

Under this scenario, you file and a month or more later VA will send you the standard intro with a “send us what you have and tell us if we need to go fishing for more.”  This is all well and fine but there is one small detail many overlook. Much further down the road when the claims file reaches the ratings personnel, the first piece of paper on top will be the original filing document that set this process in motion. As such, it will be read and reread more times than any other document in your entire file. It will have more French fry fingerprint grease and catsup stains on it than any other document.

VA examiners, as they are referred to in BVA decisions, have just so much attention span. This is true for all of us, but when you do this for a living, your eyes tend to glaze over after about 3 or four pages and good comprehension of important evidence is often missed or simply misinterpreted. I have looked at successful claims I have helped with and see one commonality. The rationale in the great majority of them was plagiarized almost verbatim from what the Vet filed and the phrase or rationale was derived from that first document.

Case in point.  I filed, or should say, technically refiled to reopen my HCV/PCT in 2007.  Still ignorant of the ways of VSOs, I was doing this with the MOPH representing me. On my initial 21-4138, the rep. and I laid out all the reasons why I felt this was SC. One thing I insisted he enter on my sheet was the fact that my HCV genotype was 3A, dominant only in SEA at the time of my service there. Granted, I had hepatitis in service, but no one ever determined what flavor it was. I honestly believed it was HAV back then. It kicked my ass and I was sicker than a dog for months. Nevertheless, I survived and went on to recuperate after 6 weeks as an inpatient and several months of light duty. When I was diagnosed with PCT in 1992, the doctor ran the tests and determined I had been infected with HBV. He didn’t test me for HCV because it was still relatively unknown.

During the run up to what I figured would be a denial, the rater called me at home and asked for more information about my risks and whether I could document my transfusion from the GSW. It took me several days to remember the name of the pilot I was flying with. Believe me when I say it tasked my brain. I could see the gentleman in my mind’s eye, but couldn’t put a name to him to save my life.  While driving to a job site to check on my crew (I was still working a few hours a day), I turned onto Englewood Drive and bingo-Charles “Chuck” Engle, Slats (slang for a 1st. Lieutenant) jumped up and it all came back to me.  Forty years of admittedly repressed memories. Being a newbie to the computer, I asked my wife how to find him or show me how. Fifteen keystrokes and a google search later up popped the link that would guarantee my claim’s success…

http://www.virtualwall.org/de/EngleCE01a.htm

I was still in the hospital when Chuck augured in on the 22nd of February, 1971. I never returned to that assignment and thus never knew he caught the golden BB. This really put a fork in any potential buddy letters as you can imagine. Try as I might I couldn’t put a last name to our crew chief Randy. No one wore uniforms up country so that name tag over one’s right pocket was absent from my memory’s chords.

All I had for evidence was some civilian medical records that documented my hep.  89 days after being wounded, a faded scar where the bullet transversed my upper thigh and a raging case of HCV out of control.  Things looked pretty dim. VA wasn’t going to buy my version of events without some tall evidence. The hep records were useful, but VA was still in the “HBV isn’t the same as HCV” mode then. If you didn’t have evidence of HCV in 1970 in your records, then you were screwed. Trying to point out that HCV hadn’t been “invented” until 1989 falls on deaf ears-especially when they aren’t medical ears. VA ignored my nexus letter from my doctor and sent me to a QTC exam. I suppose that would have happened anyway as it’s SOP. The doctor who performed the C&P was an old Chinawoman. I couldn’t understand a word she said so she had her assistant translate. She listened to everything I said and finally asked me to drop my trousers. She carefully measured the GSW and photographed it extensively. That was January of 2008- almost a year from filing.

VA called again in March and asked if there was anything I could think of that might help prove this and also asked when I was going to send in any private medical records in my possession(???).  I couldn’t add any more new, but did send in all the ones I submitted to my VSO a year earlier which were promptly lost. I was stumped and so were they. This is when they sent out for an IMO and also where the story returns to why I won.

The QTC doctor doing the IMO looked over the whole pile of evidence which was pretty skinny. He correctly pointed out that while I claimed a transfusion, there was nothing to document it other than an obvious GSW scar. However, he seized on two things that were right on the top of the pile in the 4138. Hepatitis in service (documented now) and the genotype. Like all Dick Tracy types, he simply abrogated this evidence for himself and acted as though he had just cut the Gordian knot. Yea, verily, Genotype 3a is of Southeast Asian origin and the hepatitis in service wasn’t HAV, but HBV. Since it was HBV which is blood borne, it was as least as likely as not that I had contracted the C at the same time from the transfusion that was undocumented.  I’m sure at that point he felt he had just solved the most complex medical quandary of all time. My private doctor had opined as much in his nexus a year earlier.

The moral of this is simple. You can put the evidence in front of VA examiners but you cannot make them digest it. They live in the M-21 world which demands clear, easy to decipher evidence contained in military medical records. Nexus letters mean nothing unless penned by their own personnel. Doctors, like lawyers, have a keener mind and invoke inductive as well as deductive thought processes to arrive at diagnoses. While I am fond of making fun of the mental midgets who work at the VAROs across the country, I understand their limitations. They are a product of what they are taught and permitted to do. Hillary Clinton wrote a charming novel about how it takes a village to change a light bulb or some such drivel. Similarly, it takes a VARO to arrive at a decision on your claim. The fact that it is in error 70% of the time is immaterial in their mind. They have done their job and it is up to others to sweep up the broken glass if they erred. One small, insignificant entry in and of itself at the very beginning of my claim is what made the difference in my case. Keep this in mind when you file. Condense the initial filing into something short so as not to lose the attention of the examiner. Keep it simple enough that a person of sub par intelligence can assimilate it. And most importantly, enshrine it at the beginning of the process on your initial filing where even a dolt can stumble over it- thus repeatedly stubbing his mental toe in the process. Where, as here, if they still manage to ignore it, your chances are not completely dashed. Should it require a substantive appeal, rest assured that someone with a three-digit IQ will eventually recognize it for its significance. My abiding hope for all of you is to avoid that by utilizing some of these ploys.

If you are filing based on a jetgun risk theory, enunciate the fact that just because there are no documented cases of HCV transmission via the guns, that is not definitive evidence that it has never occurred. Absence of evidence is never incontrovertible proof that something doesn’t happen. Explaining this to the VA is much like discussing the shape of the Earth with a devoted member of the Flat Earth Society. Keep that in mind.

Below are the 2/23/07 refile for Hep./PCT and the QTC IMO that put this in the bag.

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BVA–BABY YOU CAN DRIVE MY CLAIM

Posted on October 18, 2011 by asknod

Baby you can drive my claim

Yes I know it sounds insane

And Baby, I trust you

Seeing as I was born and raised in the Tidewater area ofVirginia, it’s only natural for me to spot Roanoke VARO and be interested. This is the original stomping grounds of Capt. John Smith of Fort Jamestown fame. Hell, you could legitimately call Jamestown the original Fort Fumble.  After you read this remand, you’ll undoubtedly agree.

This old boy got the 10% ice cream cone in 1982 with an effective date of 10/13/81. He had HBV diagnosed in service and was rated on DC 7345.  In 1985 the ice cream evaporated and he was holding an empty cone. Apparently he didn’t appeal, or if he did, it isn’t mentioned.  What’s the difference? He would have lost because the HBV symptoms abated.

Fast forward to 2002 with an interim Dx of HCV in 1999.  Capt. John files for increase of his service–connected HBV because he isn’t feeling too hot and his doctor is worried. The VA prognosticators rightfully diagnose that HBV does not equal the recently diagnosed HCV and deny the request based on the fact that he wasn’t rated for HCV. Incidentally, the new Diagnostic Code rating for HCV (7354) was introduced less than a year before on July 1st, 2001. Capt. Hep seems to be just behind the eightball here and really slow on the uptake.  Or… his VSO isn’t on his speed dial. I find this incongruous because his rep. is AmLeg and they have pretty good well drink Happy Hour specials regularly. They should have been on a first name basis and playing on the same slow pitch team by now. What happened?

Fast forward over the commercials again to 2006. Our time-challenged Veteran, who is really starting to get sick, now files for HCV and the fun begins. Remember how I always tell you potential filers to beware of what you claim and how you couch it in English?  Those wascally wabbits down at the Veterans Service Center drank too much carrot juice and construed his claim to be for an increase for his HCV. They somehow spaced out on the fact that there was no HCV rating in the file. Ne Problemo, Capitano. They therefore granted him a 10% scoop for “chronic hep.” and his effective date was deemed Feb. 28th, 2006, his most recent date of filing. Everything would have gone well, but Capt. Crunch filed a NOD for a higher rating. Ruh-oh, Rorge, said Astro.

Three years later on appeal, the esteemed Derek R. Brown, legendary VLJ, and his able munchkins spotted this anomaly almost immediately. What most Vets don’t understand is that BVA decisions are not issued piecemeal. They save it all up until they are completely finished and then release it simultaneously. That means this thing sat like a bump on a log for a year or more when it could have been legitimately remanded back to the VARO chowderheads at the Roanoke Puzzle Palace. Lord, give us the strength to endure until they finish their labors.

 

     In considering the merits of the claim for increase, there appears to be some confusion as to what type of hepatitis the Veteran is service-connected for.  For example, in an addendum request to the November 2008 VA examiner, it was noted that VA provided information that the Veteran has hepatitis C for which he has been service-connected.  Additionally, in a September 2008 letter, the RO set forth the rating criteria for Diagnostic Code 7345 (chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C)) and Diagnostic Code 7354 (hepatitis C (or non-A, non-B hepatitis)). 

 

On review of the various rating decisions, it is clear that the question of entitlement to service connection hepatitis C has never been the subject of a formal rating decision.  In an effort to properly evaluate the residuals of service-connected hepatitis B, the Board finds that the claim of entitlement to service connection for hepatitis C  must be adjudicated.  The Board acknowledges that Diagnostic Codes 7345 and 7354 are very similar.  Notwithstanding, consideration of residuals related to hepatitis C, if service-connected, could possibly affect the overall evaluation for chronic hepatitis.  As such, the Board considers the issues inextricably intertwined and the evaluation for service-connected hepatitis B is deferred pending the outcome of this issue. 

 

This decision is dated 03/30/2011. It takes a month from this date to reach the stenographer’s pool. It takes another month to be typed, proofread, and mailed. It will take several more months to box up the C-file and send it 95 miles from D.C. to Roanokopolis. With any luck the Pony Express showed up by September. And then what?

The claim will spend 16 months in development and rating before they decide. If Pocahontas’ friend is still breathing, he will be delighted to get the manila envelope. I won’t guess the outcome, just the timeline.  About January 2013, seven years after filing, he will know. If his endeavour flops, he will be refilling a new NOD, etc. and returning to see Judge Brown again, assuming the aging Judge hasn’t retired.

Again, I reiterate my plaint: “Where’s his VSO? Who’s in charge of this clusterconstruction? You Vets do realize, I hope, that your VSO reps. are allowed to wander in and out of VAROs at will and find out the where/how/ why/ when of your claim any time they want. If this thing was headed down the wrong track, the VSO should have derailed it in its infancy. Isn’t that why you gave them your POA? This is where a well-versed law dog would be invaluable for the Vet who is  DIY challenged. Unfortunately, Congress has set it up so that only we or a VSO can file. A Grateful Nation bestows its respect on its defenders. In a word, brilliant.

Perhaps we should just automatically throw in MDD and/or dysthemia because if we aren’t bummed out when we start, we sure as hell will be after years of adjudications and denials.

http://www.va.gov/vetapp11/Files2/1110405.txt

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