Veterans Claims Help

9/22/11     

     As we have current member(s) fighting VA over this issue, I include this as the latest BVA word on the subject. Valuable info is always gleaned from these even if there is nothing precedental about them. For those of you from Yorba Linda, that means it won’t set a President.

Something that needs to be expressed more frequently is that sexual promiscuity in service was not willful misconduct when we were in. I assume that is still the case but I don’t keep up on that kind of thing. It may come to pass that with the end of DADT and permissiveness of having gays openly serving, that we will experience an uptick in HIV/HCV cases. That remains to be seen as the military hasn’t yet completed the changeover.

     I have had Service officers who profess that it is willful misconduct to come down with the clap in service. My MOPH rep. even went so far as to say tattoos were, but we know that isn’t the case. There’s not enough room at Fort Leavenworth to incarcerate 75% of the enlisted Navy and Marines who were guilty of that.  I won’t go into it any further than to wonder why you’d put something permanent on you when you’re inebriated. It shouldn’t come as a surprise when you wake up and find it. The problem seems to arise 20 years later when your spouse wonders who the chick with big tits named Patsy is/was.

     Getting back to clap and all things VD, we can blame it on alcohol just as easily as being caught out without protection. I do know that you were welcome to help yourself to as many protective devices as you desired when I was in sunny Southeast Asia. I and many of my friends availed ourselves of this generous policy to install them on the ends of our CAR-16s, the occasional Thompsons, M-79s and especially shotguns.  They worked very well for the purpose. I suppose they were also useful for preventing the spread of disease. I had several incidents of “non-gonococcal urethritis (NGU) which I attributed to failure to observe that protocol. What? You think Mr. NOD was a complete saint? I’m not proud of it, but I foolishly depended on ladies of the night having a current, up to date, stamped VD card saying they were free of these things. Alcohol can impair your eyesight from what I have read.

     The military used to do everything in their power short of confining us to base to reduce the numbers. We had lectures and photo slide shows of the horrors of it. Somehow that never dimmed our desires. When I was eventually seconded to Air America there were no lectures. They really couldn’t punish me for it even though that may have been their policy. I was still technically in the Air Force regardless of the fact that my ID said United States Agency for International Development. The fiction was that I was a “French teacher”.  We had no bases per se, just operating locations. The prostitution trade was 160 klics south in Vientiane. One did not consort with the local Hmong maidens at risk of becoming married to them. Shotgun weddings were still in high fashion for any so foolish and our government did little or nothing if we were caught in flagrento delecto.

     I have seen many ratings at the BVA that were denied at the RO under the mistaken belief that it was willful misconduct or “less likely than not”. ROs are fond of denying Hep. even  if  your STD occurred in service and was fully documented. Their rationale is that it is very rare.  Conversely, if it happened after service and you mentioned it in your risk factors questionnaire, VA will focus on this risk being the most salient to the exclusion of all others except drugs. VA doesn’t explain the dichotomy of European and Asian STDS being HCV-free nor do they explain how VD in America is rife with it. The below decision is an example of this.

     So, with this in mind, if you do have SMRs that document Winky getting dirty, you should list it as a risk factor. You won’t win at the RO, but you sure will at the BVA. They may call it the benefit of the doubt, but who cares? Service connection is a bitch under the best of circumstances, so all’s fair in love and war (no pun intended).

http://www.va.gov/vetapp11/Files2/1118033.txt

I had to search for a perfect example of this to illustrate the folly of filing a claim without a nexus. This Veteran could have, and most assuredly should have, won this claim. We won’t go into why his Service Officer from VFW let him get to court without it, nor why he was dissuaded from having a Travel Board hearing or a Videoconference one.

This case illustrates a train wreck in slow motion. The BVA summarizes all the evidence in Lawspeak and we watch helplessly as the fellow’s claim disintegrates in the best Hollywood slow motion. The tattoo in question that is the precursor to the destruction probably did occur during service. To use a different recollection of events as the evidence to prove his testimony is unreliable is very flimsy.  However, it does reveal how far the VA will go to find a chink in your armour.

The reader will notice also that the Vet had a viable risk factor despite the lack of a recorded tattoo. He was a combat engineer-as in Gee, let’s go build a road through a free-fire zone without any support. We can always call Superman with our Jimmy Olsen high-pitched whistle slash wristwatch. Combat engineers were part insane, part macho and very good shots in that “conflict”. They had to be in order to avoid becoming a Charles Darwin statistic.

The VA decided to can this with a VHA opinion. So much for an Independent Medical Opinion.  The VHA examiner dutifully wrote a well-reasoned treatise on why this gentleman came down with HCV slightly later than a year after service. The incubation period was too long. The blood of wounded soldiers he came in contact with was free of HCV.

This was the positive evidence against his claim.  Now, what wasn’t done to develop the claim that might have proved his contentions? You will notice that in spite of being mentioned, there was no testing done to ascertain if the Veteran was seropositive for Hep A or B. If he was exposed to B, he very well might have contracted C at the same time. That was one of the theories my doctor explored in his nexus for me. B and C can only be transmitted via direct blood exposure. Hep. A is a food born illness only. Often, what wasn’t explored as a risk is as telling as what was. For instance, there’s no mention of the jetgun until appeal. Too late in the Board’s eyes. Besides the Vet has no medical training, so this seems to be a last ditch defense volunteered by none other that Mr. Veteran’s untrained legal representative.  How about deciding not to have a hearing? Buddy statements confirming the tattoo was applied in service? All of these were missed or overlooked. We won’t go into the Monday morning Quarterback mode and analyze the could ofs, would ofs and should ofs. If we’re reading this now we only hope our Vet friend appealed up to the Court. It’s too late to introduce new evidence, but never too late to claim failure to assist.

These two paragraphs speak volumes to the loss:

This VHA medical opinion appears to have been based on a thorough review of the record, including the Veteran’s comprehensive treatment records, and a thoughtful analysis of the Veteran’s entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”].  The Board therefore finds the July 2010 VHA opinion to be probative as to the issue of medical nexus.

Also of record as to the issue of medical nexus is the opinion of the September 2006 VA examiner.  Specifically, the VA examiner stated that “the Veteran’s hepatitis C infection is as likely as not related to previous history of hepatitis in 1971, tattoo left upper arm in 1968.”  Critically, the VA examiner provided no rationale for this conclusion and also failed to provide an opinion concerning the relationship, if any, between the Veteran’s hepatitis and his in-service blood exposure.  See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence].  Accordingly, the Board finds the September 2006 VA opinion to be of little probative value.

It is obvious from the above in red that the Vet had won this and someone higher up overrode the rater. How else could there be a positive finding of SC?

As we all know, or should, HCV travels on its own schedule and manifests itself very differently from one individual to another. Witness that I just lost a friend May 11^th eight years my junior to this. He had it when he came out of service in 1988 and was granted a 10% rating by VA. When he started to slide downhill in 2006, he filed for an increase.   After two years of denials, he finally came here and we got him lined out on a game plan. He was awarded 180% in early 2009 but it was too late to enjoy. He went from Stage 0 to complete portal hypertension and cirrhosis in 24 years. I’m still relatively vertical after 40 and am Stage 3.5.  Johnny was no Mormon, but he wasn’t a lush.  The important thing in retrospect here is that confounded nexus or the lack of an independent one.

Take this to heart when you file. Get the groundwork done and a good foundation laid prior to building a claim on it. If your chances of winning are 15%, then having all the Hickson elements sewn up before filing will bring the odds up considerably. Make it so, Number One.

http://www.va.gov/vetapp11/files1/1102254.txt