Veterans Claims Help

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

Yes, gentle reader, you read that right. HCV from surgery to correct hemorrhoids.  Once upon a time in polite society we would have never presumed to print this for the reader’s edification. Only in America. A win is a win no matter how ugly or sore. Besides, the header is a bit of an eye grabber.

Just when you think you have all the answers and the best or safest way to tackle a hep. claim, along comes a BVA decision that makes you sit up and take notice. Granted this has no precedence and cannot be cited by other Vets, but the information about the inner workings and the thought processes of VA examiners  is  extremely revealing.

Witness this gentleman from sunny, western Florida. He’s being repped by the Florida Dept. of Vet affairs. They are a reputable, no-nonsense bunch of state employees who help Vets obtain SC. Makes sense. It keeps them off the State’s welfare roles. Definitely a win-win for the Vet and the state.

He had some other baggage that put a wrinkle in this story. He smoked hash and drank booze and got caught while in the service.. Well, there you go. Risk factor and willful misconduct. How you can get Hep from the business end of a hash pipe or the mouth of a beer bottle is obvious to the VA. Because he arrived without his own nexus, VA felt sorry for him and decided to provide him one courtesy of their  very own VA medical personnel. The ARNP, in January of 2006 opined that it was simply impossible to speculate on whether it was from being a medic (big risk), smoking hash and swilling beer (medium risk) or his post service drug addiction( major risk). That was January. In March she had a change of heart and opined that the etiology was less likely than not the 1 ½ years of being a medic or the UCMJ  beer bong infraction, No, the smart money was now on the fact that he had a twenty year history of IVDU after service and that was more likely than less likely the cause. Now, stay with her on this. Here’s the unvarnished rationale:

She explained that the Veteran’s in-service diagnosis of infectious hepatitis was mostly

likely hepatitis A as evidenced by symptoms of abdominal pain, jaundice, and an inability

to digest food.  Supporting documentation consisted of an April 1973 treatment note, inwhich the Veteran denied drug use, thus making it more likely that he contracted hepatitis A, not hepatitis C while in service.

VA examiners are real Dick Tracys. Sherlock Holmes would feel like a mental midget next to these sleuths. He denied using drugs which automatically ruled out Hep C! Which begs the question of what exactly she was smoking to arrive at that conclusion. Keep an eye on these April, 1973 treatment notes. We haven’t heard the last of them.

In November 09 on appeal, the Board remanded for another VA exam- this time for any possibility of secondary service connection. Oddly enough, they asked the same ARNP to do this…

On this occasion she noted the Veteran’s risk factors of a tattoo prior to service, blood exposure and shared razors during service, and IV drug use after service. Consequently, the examiner was unable to resolve the issue of whether hepatitis C was due to or a result of infectious hepatitis without resorting to mere speculation.  Her only rationale was that the etiology of hepatitis C could not be isolated to one specific cause as the Veteran had multiple risk factors for the disease.

The Board was beginning to feel confused now. Here the RO had three shots at coming up with an etiology for the HCV and they couldn’t commit on two out of three. In addition, VA’s highly-trained ARNP “examiner” is somehow trying to graft the HCV onto the HAV. So the Board called in the Hexpert…

For further medical comment on this issue, the Board requested a VHA medical expert opinion in April 2010 from a hepatologist. The Board received the expert medical opinion in September 2010. After reviewing the claims folder, the hepatologist concluded hat it was at least as likely as not that the Veteran’s service-connected infectious hepatitis was associated with an acute hepatitis C infection and caused his current chronic hepatitis C infection.

In discussing the rationale of the opinion, the hepatologist noted that the infectious hepatitis of April 1973 became chronic, i.e. there was evidence of persistent abnormality in his liver enzymes (“abnormal laboratory exam, an elevated SGOT of 148″) a year later in August 1974.  He also noted that the Hepatitis A virusdoes not cause a chronic hepatitis infection.  In addition, the Veteran was diagnosed with drug abuse in September 1973, admitting to smoking hash and drinking alcohol. The hepatologist went on to explain that, regardless of the Veteran’s report of lack of exposure to needlesticks or intravenous drug abuse, it was his opinion that the acutehepatitis infection in April 1973 was at least as likely as not acute hepatitis C and that the subsequent natural history would be the development of a chronic hepatitis C infection in most affected individuals.

Now, the Board summed up the positive and the negative to do the benefit of the doubt dance. Yes, they do that at the Board. You may never see it at the RO, but that doesn’t mean anything. Their mission is to bag ’em and tag ’em and let the Board sort it out.

The positive evidence of record consists primarily of the VHA medical opinion, from a board-certified hepatologist, which reflects a full review of all medical evidence of record, including the prior VA opinions, and bases his opinion on professional and personal experience, as well as the traditional risk factors for hepatitis C.

On the other hand, the negative evidence of record consists of a January 2006 addendum in which a VA nurse practitioner was unable to provide a definitiveopinion.  However, in a March 2006 opinion, the same VA medical professional determined that the Veteran’s service-connected infectious hepatitis did not play a significant role in the development of the current hepatitis C.  She articulated a credible opinion regarding etiology, and supported that opinion with clinical rationale and citation to the Veteran’smedical history.

What no one (besides the Hexpert) is admitting here is the glaring fact that this Vet had a AST (SGOT) of 148 a year after his “ acute, resolved HAV infection”. If the AST was cooking at 148 you can bet the ALT was about 170+. The Board does mention it in passing, but it is not addressed in the positive-negative powwow. This is the smoking gun. How is it the ARNP, assigned this job not once, no, not twice, but three times, managed to overlook this little tidbit. It was right there in his SMRs. VA examiners are paid very handsomely for their expertise. That’s all they do. They didn’t run down to the VAMC and grab her out of the gastroenterology clinic. She was on staff at the RO.  This is the St. Petersburg VARO. The smart money says she still works there and is currently denying HCVets on a fairly regular basis.

Finally, in the last paragraph, we find the real reason the Vet won. It turns out a Board certified hepatologist  is a full house whereas an ARNP is two pair.

In this regard, the Board acknowledges that neither the negative March 2006 VA opinion nor the September 2010 positive VHA opinion referenced medical literature to support the medical conclusions contained therein or to reject any opposing conclusion but that both opinions were based upon a complete and thorough review of the claims folder.  However, the March 2006 negative VA opinion was rendered by an advanced registered nurse practitioner, and the September 2010 positive VHA opinion was rendered by a doctor who specializes in gastroenterology and hepatology (indeed the Chief of the Gastroenterology and Hepatology Department at a medical facility).

     This further illustrates the “white wall”. The gastrodoc didn’t say the ARNP twit was all wrong.  He didn’t ask how she could come to the horribly misguided conclusion that the HAV was acute. An AST of 148 a year later is not just a smoking gun- its a smoking 155mm Howitzer.. He made his own case without  disparaging hers.  They should revoke  her  license to opine, but they won’t. She works for VA and does what she’s told, even if it conflicts with the truth.

We at AskNod do not subscribe to conspiracy theories about how VA seems intent on denying our claims with the flimsiest of evidence. We do not produce complicated plots that require hours to explain. We don’t have to when evidence like this surfaces.  We do not believe this constitutes a coincidence.  VA personnel are employed to do this for a living, not a side job. This is all they do. We, as Vets, would like to hear the VA’s tortured explanation for why they suffer this 70% error rate in ratings.

Here’s the link to the BVA decision. It really wasn’t even close in spite of how the VLJ characterized it.

http://www.va.gov/vetapp10/files5/1040154.txt

     From that Religiously Challenged city in Texas where they burn down churches  (Waco) comes this quintessential case. Vet applies for chronic Hep. B in 2002. Vet gets the bum’s rush.Vet fails to file NOD and appeal. Vet applies for Tinnitus in 2005. Claim denied. Vet fails to appeal. In 2007, The DAV represented him with more success. He obtained his medical records from the NPRC in St. Louis and submitted some showing hep. in service. Since these are new and material evidence, the RO had to reopen his claim. Now, the interesting part is that these are no run of the mill medical records. These are contemporary “Official Service Department” records. As such, they permit the 2002 decision to be vacated as if it were CUE. This lucky Vet may win his hep. claim with effective date of the original 2002 date. Stinky, dude. Nine years of back pay if he wins and gets a Fenderson rating. We certainly hope he wins this one. 

We are attaching a series of decisions that deal with the “What if” of passing before one’s claim is accomplished. This situation leaves the battle for DIC in the widow’s lap. The first decision here is what we call a negative objective in FAC parlance. The widow loses because the Vet was not service connected for the hepatocellular carcinoma (HCC).  These are included to illustrate what occurs after the Vet sets off to the Happy Hunting Grounds. Unlike trying to shop for a favorable nexus, the VA is bound by autopsy results in rendering its decision. Period.  If this Vet had had a claim pending for Hep. or was already rated for it and the cause of death was Hep. or one of its ancillary disease processes, the widow would have prevailed.

http://www4.va.gov/vetapp10/files4/1038652.txt

This next decision highlights what happens if you wait too long and marry shortly before your spouse’s death. You must have been married for a year or more prior or have had children with the spouse at any time prior to death.

http://www4.va.gov/vetapp10/files3/1026355.txt

The decision below is an example of what will occur should the Vet pass away during the pendancy of the appeal or before the the BVA has an opportunity to remand the case to the AOJ for a rating.

http://www4.va.gov/vetapp10/files3/1022414.txt

We include the following to foster understanding of substitution:

38 U.S.C. § 5121A has this to say on the subject:

§ 5121A. Substitution in case of death of claimant

(a) Substitution.—

(1) If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121 (a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.

(2) Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations.

(3) Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe.

(b) Limitation.— Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title.

We probably should have posted information of this nature sooner. We apologize for our tardiness in doing so and hope it has not caused any undue stress on anyone seeking the information.