What Wasn’t Said Is Important

Posted on September 30, 2011 by asknod

When you reach the appeal stage of your claim and have an opportunity to submit your Form 9, you will be accorded a space on the form to rebut (VAspeak) why you disagree with your denial. If you claim a jetgun risk, you will need this. Not that it can’t be won, mind you. It just requires some finesse.

I was looking at a claim up on appeal to the BVA recently. I was struck by some of the logic employed and how it warps and bends. I will get to this in a moment and show you how to use their logic against them to write a proper statement on your Form 9 before they use this to your detriment.  Anticipate it and use it to your advantage.

Consider this and then you can pick through it at your leisure to see numerous examples of it throughout the decision:

http://www.va.gov/vetapp11/files1/1101080.txt

I will copy and paste a small portion of a paragraph and illustrate the defective logic employed. First, note the time of service. This is important when gauging the age of the disease and the context of the claim plus risk factors, claimed or not.

The Veteran served on active duty from March 1963 to March 1965  and from August 1965 to March 1969.   

From the hep C Analysis:

Hepatitis C

The Veteran has alleged that he has developed hepatitis C as a result of his military service. Specifically, the Veteran has  alleged that he was exposed to bloody linens and towels as a  launderer aboard the USS Repose and as a result, contracted  hepatitis C. Service treatment records are void of any complaints or diagnosis  of hepatitis C. A service treatment record dated in November 1964 shows that the Veteran was diagnosed with urethritis, acute, due to gonococcue (sic). The Veteran presented at sick call with complaints of urethral  discharge of two days duration.  The Veteran admitted to sexual exposure in France.

The Vet has claimed only the bloody linens risk. He has SMRs that show a STD was contracted in service. VA is required to look at all theories of a claim, not just the one claimed  The STD is a major risk for HCV, but the Vet needs a nexus letter to say that. 

A September 2001 VA treatment record shows that the Veteran was seen for a physical to re-establish care.  The Veteran indicated  that his ex-wife had hepatitis C and he asked to be checked for  that condition.  An October 2001 addendum shows that the Veteran  tested positive for the virus that caused hepatitis C.  The  Veteran was referred to the liver clinic.    A December 2001 VA treatment record shows that the Veteran was  referred for evaluation of his hepatitis C.  His viral risk  factors include sexual promiscuity in years past, IV drug use,  blood transfusions, and tattoos.  The Veteran admitted to  drinking 1 to 2 pints of whiskey per day for 6 or more years, he  quit 17 years ago.  He also indicated that he used IV heroin in  the late 1960’s.  The Veteran was assessed as having probable  chronic hepatitis C with multiple risk factors.

Here VA has announced that an STD is a risk factor. Mr. Vet is brutally honest to a fault about the ex-wife.. This should be a good indicator that his testimony is not only competent but also credible. This is a very important concept in VA law. Remember it later in this denial . He has also admitted to IVDU in the late 60s which presumably dates the drugs after service. He has filed for comp.- probably in 9/01when he went to VAMC and met his MOPH representative who will be his legal help. Help!

A January 2004 VA examination report shows that the Veteran  reported current treatment with pegylated interferon weekly  injections and epoetin injections which he just started about 3  weeks ago.  The Veteran reported a history of significant alcohol  use in the past but no alcohol since 1983.  He does not smoke  cigarettes.  He has smoked marijuana in the past occasionally.   His liver biopsy revealed that he had grade 3 changes.  There  were no other causes of liver injury on his liver biopsy other  than hepatitis C.  He was then started by GI on therapy for his  hepatitis C.  He is asymptomatic as far as chronic liver disease.   There are no extrahepatic manifestations of hepatitis C.  He has  abnormal transaminases.  Again, the liver biopsy performed in  March 2002 revealed significant liver disease.  The examiner  indicated that he was asked to furnish an opinion about the  relationship between the current HCV infection and confirmed or  supported risk factors.  The only risk factor that he confirms is basically that he worked in the ship’s laundry on a hospital ship  and was exposed continuously to bloody towels, drapes, and  sheets.  They wore no protection in those days to prevent what  was then unknown as hepatitis C.  He was not using IV drugs.  He  was not sexually promiscuous, although he did visit houses of  prostitution from time to time.  The examiner stated that he  believed that there was a significant chance that the Veteran’s  current hepatitis C infection was related to exposure to bloody  drapes, towels, and sheets.  This is known to be a high risk  factor in these days, but in those days, during the Vietnam War,  hepatitis C was an unknown entity, and no protection was really  worn to prevent any infection.  Therefore, I believe that his  current hepatitis C is related to that particular risk factor.   This is not speculation or conjecture.  He did work with bloody  linens and that is indeed an exposure factor.

This is not a treatment record. It is a C&P exam.  You will notice  the biopsy results reveal this is not a new infection. He never said what the dates of the marriage to Mrs. Ex-HCV were but the VA will make that point moot soon. The record reveals he is a responder and is clear of the infection but then proceeds to say his AST/ ALT (SGOT/SGPT) are elevated. The BVA cannot have it both ways. Either you are healed and the liver is all happy inside again or… there is significant, long term damage that the VHA is not copping to. Nevertheless, at the end of the paragraph, the VA examiner says Yep! It happened in the service.  Looks pretty stinky, dude. He won, right?  Not so fast. The VA supervisor read it and probably blew Coca cola through his nose all over the decision. Which brings us 3 months further to the next paragraph. The above was  January 2004  so the claim was two years and 3 months old and still at the VARO…

The January 2004 VA examiner provided an addendum opinion in  March 2004.  The examiner stated that the most common risk factors for contracting hepatitis C are intravenous drug use and  blood or blood product transfusions before 1992.  (1) IV drug  abuse-60-80% of all IV drug users have hepatitis C infection  because they share needles (2) blood transfusions-blood banks  did not test the blood supply for hepatitis C before 1992 (3)  sexual promiscuity-high risk sexual behavior, especially having  multiple sexual partners, is associated with and (sic) increased risk  of getting hepatitis C (4) hepatitis C infected ex-wife- hepatitis C is not easily spread through sexual intercourse.  The  examiner indicated that the risk factors are listed in order of  highest to lowest risk of infection.

So. Mr. VA Examiner has been “re-educated” on his duty to be impartial and look at all risk factors . The prognosis has changed to the IVDU being the most likely culprit. I would have bet that they’d pin it on the woman. I still think like a dinosaur and can’t get my head wrapped around political correctness. Notice also how sexual promiscuity/high risk sexual activities has been listed as a very high probability of disease vector but in the next phrase its “Naw, he didn’t get it from the unprotected sex with his infected ex-wife all those years. Its way too hard to transmit that way”.

Now, there is a hiatus of 5 years. I surmise it has something to do with waiting for a Travel Board hearing and docketing of the appeal. Knowing how far behind VA is, that would be about right.  Now watch closely as the VA employs one of their most lethal tactics- denigrating your evidence because it’s not in the records.  Ignore the fact that handling bloody linens would never be in your SMRs, the VA nonetheless uses this as conclusive proof that it didn’t happen…

A March 2009 VA examination report shows that the examiner  reviewed the Veteran’s claims file.  The examiner noted that  there were no documented instances of the Veteran handling bloody  linens while he was in the military.  The Veteran’s documented  viral risk factors include IV drug use, blood transfusions,  tattoos, and sexual promiscuity.  The examiner noted that in  January 2004, Dr. R.K. stated that the Veteran was not using IV  drugs and was not sexually promiscuous while he was in the military.  In December 2007, T.M., NP stated that the Veteran did  say that he had a history of IV drug use.  The examiner indicated  that the hepatitis C virus is transmitted mainly by contact with  blood and blood byproducts.  Sharing of contaminated needles  among IV drug abusers is the most common mode of transmission.   Using a needle to inject recreational drugs, even once, is a risk  factor for hepatitis C.  It was the opinion of the March 2009 VA  examiner that it is not as likely as not that any hepatitis C had  its onset during the Veteran’s military service or is otherwise  medically related to the service.

All the “nexi” in this claim are provided by VHA doctors, not private ones. How is it anyone can overlook the man’s clap in 1964? By tiptoeing by this the VA can now focus on the risk most often employed to deny Vets. Note the December 2007   medical record by Nurse Practitioner T.P. alleging IVDU. What isn’t stated? The chronology of when he engaged in IVDU is absent. This is an attempt to compromise his credibility to testify. The Vet denied IVDU use in service and nothing has changed that would contradict his assertion. Nevertheless, it has morphed into much more now. The claim, for all intents and purposes, has now been denied and it is simply a matter of   publishing it.  The new VA Examiner has gone to the Wall and seen the Light. In VAspeak, he’s been “re-educated”. It’s IVDU alright, but now it’s after service not during. That’s an important distinction. How, you ask, can he possibly know? Ah, Glasshoppah. Watch and you will learn these VA tlicks. Notice also this is the Vet’s second C&P.

A November 2009 VA examination report shows that the examiner  reviewed the Veteran’s claims file.  The examiner opined that the  Veteran put himself at risk for contracting hepatitis C when he  got tattoos and used IV drugs.  The fact that the Veteran worked  in the laundry of a hospital ship, in a war zone, is verified.   The examiner explained that the hepatitis C virus is transmitted  mainly by contact with blood and blood byproducts.  Sharing of  contaminated needles among IV drug users is the most common mode  of transmission.  The use of contaminated needles from tattooing  is also a mode of transmission. It is as likely as not that the  hepatitis C could have been caused by anyone (sic) of these risk factors.  It would be pure speculation to attempt to determine  which risk factor likely caused the hepatitis.

Finally. An honest assessment. After considerable review, and this one being the fourth in a continuing saga, the Vet now has another risk factor acknowledged- the tattoos. This throws a monkey wrench into it you say? Benefit of the Doubt?   “Not exactly” as they say in the  Avis commercial. Armed with nothing more than rank speculation and  an examiner unwilling to deny, they retreat and regroup for a new “impartial” judgement.

Two more months transpire and then TA-DA. An addendum is born (#5) and added:

A January 2010 addendum to the November 2009 examination report  states that it is the opinion of the examiner that the IV drug  use is more likely than not the cause of the Veteran’s hepatitis  C.  It is not likely that the hepatitis C had its onset during  military service.  The medical literature states that the most  common mode of transmission is IV drug use and needle sharing.

This is priceless. Let’s keep changing the reason. We at the VA can do this in our official capacity as triers of fact. If you attempted to advance this many diferent theories, they would say your credibility was shot. As in Liar! Liar!. Pants on fire!.  Hell, if its any consolation, I wouldn’t believe you either. So why is the VA accorded a by on this? The Vet’s list of risk factors for contracting this in service tilts the table in favor of the Benefit of the Doubt rule. We have tattoos, documented proof of  unprotected sex with prostitutes, jetguns (strangely absent) and working in a hospital ship’s laundry  which is an exorbitant risk in its own right yet there is no meaningful discussion of these.

It doesn’t end there. Opinion #6:

A June 2010 VA examination report shows that the examiner  reviewed the Veteran’s claims file as well as the January 2004 VA  examination, the March 2004 addendum opinion, the March 2009  addendum opinion, and the November 2009 opinion.   

The examiner diagnosed the Veteran with a history of hepatitis C  virus, treated with interferon and erythropoietin, now in  remission, and opined that the Veteran’s former hepatitis C was  less likely as not caused by or a result of his service in the  ship’s laundry on a hospital ship.  It was noted that the  Veteran’s recent laboratory tests indicated normal hepatic  function and no evidence of hepatitis C antibody, thus, medical  treatment with interferon and erythropoietin effectively  eliminated the hepatitis C infection, and it is now in remission. The examiner provided a thorough rationale for his opinion.   Hepatitis C virus is transmitted by exposure to the blood of an  infected person through contact with mucous membranes or breaks  in the skin (including cuts, accidental needle sticks, and sexual  contact), blood transfusion, and IV drug use involving use of  shared needles.  Medical history reviewed does not indicate an  occupational exposure to hepatitis C virus while in service-that  is,although the Veteran may have handled bloody linens, intact  skin is a barrier to infection, thus preventing actual exposure.   While it is possible that there may have been some incidental  occupational exposure in service through minor skin breaks or  abrasions while handling bloody linens, the medical history also  indicates potential sexual exposure and IV drug use.  In the  United States, IV drug use is the most frequent and likely means  of acquiring hepatitis C virus infection.  Thus, the medical examiner concurs with the findings of the GI consultant who  concluded multiple risk factors, as well as previous compensation  examiners who noted such multiple factors and were unable to make  a conclusion regarding the causal factor.  Given that the history shows risk taking behavior (illegal drug use resulting in  discharge from the service, and heavy alcohol use), potential  occupational exposure (undocumented) sexual contact resulting in  venereal disease, and IV drug use, it is impossible to state that  the Veteran’s service in a hospital ship’s laundry alone caused  or resulted in the previous hepatitis C infection.

You will notice that in spite of the elevated LFTs, the man was healed and walks among us today upright. Where are the tattoos? They have mysteriously disappeared as a risk and are no longer examined as a causative factor. I grant they briefly gloss over the sexual exposure, but again no mention of the dirty dick disease in France. Do you see the pattern here yet?  It’s like the old shell game with 3 walnuts and a pea. Keep your eye on the VA Examiner Ladies and Gentleman. Sleight of hand is their forte and disappearing risk factors are their specialty. The examiner will take you further afield and start quoting statistics about how one’s biggest risk factor for contracting HCV in the US is IVDU. Wait. The Vet was in the Naaa-vyyy, dude. He got the clap in France, dude. He got the prostate cancer he’s claiming from AO in Vietnam, dude. He went to Australia for his R&R, dude. We will assume he got his tattoo abroad, too. But mostly, he worked in a Hospital ship’s laundry ! So what does all this have to do with IVDU in theU.S.? Ah, yes indeed, Glasshopper! The magic time machine reveals he got this just about 5 minutes after he stepped off-base in Long Beach,California- as a civilian. To combat this, reverse logic is essential:

it would be impossible to state that the Veteran’s service in a hospital ship’s laundry with concurrent exposure to bloody linens didn’t cause or result in extensive liver damage evidenced by current high LFTS.

Here’s that sleight of hand trick. This examiner finally (and subtly) inserts the fact that the USS Repose is a hospital ship. Hello? McFly? What better place to pick up a nasty bug like hep? Notice this tidbit was mentioned (and used) as the basis for initially granting the claim by the January 2004 examiner!  Our erstwhile  Vet would have fared better if he’d enunciated  the fact that the USS Repose was a hospital ship at the beginning of his claim so it was on the record.

I want you to read this paragraph carefully for what it does and doesn’t say:

The June 2010 examiner noted that the Veteran’s medical history  reviewed does not indicate an occupational exposure to hepatitis  C virus while in service-that is, although the Veteran may have handled bloody linens, intact skin is a barrier to infection, thus preventing actual exposure.  The board has carefully  reviewed the Veteran’s service treatment records and notes that they were void of complaints of cuts, scrapes, or other skin  injuries while in service.

Okay, Johnny Vet. You had your hand up first. What’s the problem here? Yep. What do you call that thingamajiggy that they used to poke a hole in that intact skin? Right. A jetgun. And we all know what potential for germs that had on it. So, the Vet handled bloody linens and never rubbed or scratched his nose when it itched. He probably never scratched or cut his hands on anything because its not in his medrecs. (again-it’s what’s not in the records) His contact with the French madame du noir is uncorroborated even though he came down with the clap. The tattoo seems to be extraneous info at this point. And last, but not least, we have a report that he admitted IVDU after service, but that is absent and after only one mention it became the salient cause. Remember that VA has to look at all risks? What about the jetgun risk? I never saw it mentioned anywhere. Additionally, we have the tired excuse that the medrecs are silent for cuts, scrapes and other skin injuries. A serviceman would be laughed out of sickbay if he arrived with a small cut  on his finger. VA started using this ploy recently to deny claims and its becoming well-known up at the Court. What? You shared razors? Hmmm. Nope. It’s not in the records. You have an active imagination, son.

The final summary is A=IVDU and B= No nexus. You lose. Now, if the fellow’s legal help had coached him a little bit on this and he’d obtained a nexus from an independent source that couldn’t be impeached or coerced into changing their story, the Vet could have won this in spite of his “imperial entanglements” with drugs. If VA honestly believed he’d gotten this during service from IVDU, they would have played the “willful misconduct” card.   And how can they assume the Vet had no cuts or abrasions on his hands all the times he was handling bloody linens? What if he had cut himself shaving and it wasn’t quite scabbed over when he came on shift? This decision amply illustrates VA’s habit of resorting to its latest ploy of conjectural logic.

Now you can see the way these things metamorphose right before your eyes. Facts are introduced and promptly whisked away to be replaced with other extraneous information until the poor reader (not to mention the Vet) can’t follow the plot. When reassembled and put under the microscope, it paints a picture of bait and switch. It also implies that not everyone in VAland is on the same page either and they have to be gently prompted (or admonished) to write it again correctly until it follows the approved policy.

It follows that the Vet must head off these assaults by pointing out the  RO’s mistakes. By using reverse logic and pointing out the failure to mention a theory, you  eviscerate the defense’s arguments. You have to do it before it gets to the BVA on appeal. You can’t let all those examiners get their two cents in without your rebuttal. Admittedly, a lot of these “VA examinations” occurred after the case was docketed and that can be problematic, but if the Vet had listed a litany of risks including the jetguns, it would head off this insane “intact skin” hogwash. If you do have to take it up to the Court on appeal, the intact skin theory would get a really good laugh and the Judge would eat them alive. It may be too late for this guy unless he can get the Court to vacate on some technicality. The Reasons and Bases for this decision has so many holes in it he should have no problems. If he succeeds he could then run out and get a nexus for the remanded decision. It would have been so much easier had he obtained one in the first place, but that is why we started this forum…

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Time line for life is getting short-Menalteed’s Story

Posted on September 29, 2011 by asknod
menalteed
Registered: 09/08/09
Posts: 37
02/03/11 #1
My hep C has progressed to Liver cancer, in fact this was known from the time I filled my claim. I was told I didn’t have a lot of time. They said because of that they would put me on a expedited claim..I was told it could be as early as four months to close. It has been about 11 months so far. The C&P exam was Nov. 16 and I think I’m in the stack to go for rating.
I provided all my medical records and pertinent information including three Nexus letters at the time I filled, it seems like things are going so slow that I may not be around for the final. Can my wife keep my claim alive?  Are they just slow and I’m becoming paranoid. Can’t really call the VSO,  they never have given me the same answer twice and have never been right once. Anyone know how long these things take from the time my file gets to the rating pile to a answer to Service connection…peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
02/04/11 #2
     The VA has rule 900 [ 38 CFR 20.900(c)] which allows a Veteran’s claim to be advanced on the docket. While it does advance it, it doesn’t guarantee adjudication in days or weeks. As a matter of course, as soon as the next available ratings expert is free, your claim will be decided. From what you have implied, the claim is still at the VARO rather on appeal to the BVA. Any candidates in line for consideration of Rule 900 in front of you are served first. There is no triage for 900 candidates. This may explain why your claim is moving slowly. 


     While it may sound bleak, here is the program. Should you pass before the decision has been granted, your claim will die. Your wife can then take your place and start over , but current law does not allow for substitution unless it is before the CAVC. If  VA determines the Hep was service connected and caused your death, your wife will be granted DIC. 

     Peter, allow me to express my sorrow for your circumstances. I know one day I will be announcing something similar and it is not in the far distant future. Getting the HCC Dx is one hell of a body blow. If there is anything we can do to aid you in this claim, rest assured we’ll move Heaven and Earth to do it for you. On the off chance time runs out, we stand united here to provide your wife with anything she will need to succeed. Were the shoe on the other foot, I have no doubt you would do the same for my wife. 

     As service members , we were a tightly knit crew. As Veterans, it is even more important to close ranks and support one another in these situations. We stand ready to help you, whatever form that may take.  I do strongly suggest you approach your Congressman/Senator and inform him of the need for haste. VA can be monolithic, but they occasionally   show their gentle side when addressed with these situations. Sadly, I concur on your VSO assessment. Chances are you may put him at risk of a DUI if you involve him in it. They don’t take bad news very well.
     Based on a Nov. 16th, 2010 C&P, I would presume you may get some results very soon. If they have your home phone number, they will probably call you to let you know if you have won. It may take another month to generate the paper for it and another month or two to effect a compensation payment and log you into the system. If it is still at the RO this will speed things up immensely. Were it at the BVA, it would entail a remand back to the RO for a rating.
      I think I speak for all of us here at HCVets when I say we hear of far too many of our members succumbing to this insidious disease. Being the undying optimist I am, I firmly hold out hope that some miracle drug will be forthcoming before you or I reach Bingo. Let us pray that drug comes to pass sooner rather than later.
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menalteed
Registered: 09/08/09
Posts: 37
02/04/11 #3
Thank you for taking the time to answer some of my questions. Rest assured that I have contacted both my Senator and Congressman in a effort to speed things along. My medical exam was done through a private contractor hired  by the VA, (QTC) and at the time the doctor suggested that I also apply for AA, I really didn’t want to as I thought it would slow down my claim. My VSO told me to file it and it shouldn’t slow things down but Monday I received a call from the VA office asking me if I wanted to take the full 30 days for the AA claim, this was after I called to ask about my status of the regular claim.
I waved the right for the full 30 days. I asked the VA officer for his name but none given and faxed a letter to the VSO with the information and a letter stating my intention to wave the 30 days. I received a letter two day
later from the VA with the same question and again waved my 30 days and faxed the form to the VSO  to hard carry to the VA office. I was told everything was done and not to worry. At the time the VA officer called he was very nice and said my claim would be going right to the Rater. I asked what that time line would look like. The VA man put it at two to three weeks for the rater to get the file. I asked him how long after that did he think I would hear something and was told after the rater the file would have to mover to a rater checker and that could take awhile. I’m starting to get the feeling that there is a coordinated effort to stall me until I drop dead, a little paranoid feeling for sure! LOL. The positive is the OTC doctor wrote that my hep C was most likely to be service connected as did two VA doctors and the head of the Hepotology dept at my local University Medical center. With now, four Nexus statements I’m hoping it does not need to go any place else but the local office for a rating. I’m not that healthy anymore and if they stall this another 90 days I’m afraid for my family losing out. That is why I asked about time lines as the stress of this is not helping…Thank you again for your reply and your service…peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
02/04/11 #4
Peter, I find it unconscionable that people who have no VA law background would advocate you file a claim for A&A. First of all,  absent a SC for Hep., there is no precedent for the A&A. It would be like applying for TDIU in the absence of any claim. In order to qualify for any additional perk associated with a disease, one must have a rating for the same first. That anyone would advocate that you do this speaks volumes about their ignorance of the law. 


     During the pendancy of my hep. claim in late 07, I informed my SO that I was effectively dead in the water medically and unable to work. My query to him was what should I do? He handed me the TDIU form and said they had to rule on it in 90 days or less. I pointed out that I had two 0% ratings for hearing/Tinnitus and felt VA wouldn’t view it favorably. His rejoinder was epic;”You’ll never know if you don’t try.” This is what is wrong with the VSO program. Poor training and a feeling that there is a VA form for every contingency breeds this stupidity. Your doctor, of all people, is as ill-prepared to offer legal advice as I am to dispense medical diagnoses. Clint Eastwood’s character in Magnum Force(Harry Callaghan)  enunciated this quite succinctly when he said “A man’s gotta know his limitations.”

     As there is only one C-File, any additional issues added on to the claim slow it down. A&A is an additional issue. It is also something the RO can deal with after the important business of getting you rated. Please avoid any more side trips, however well intentioned, until some resolution is attained with the Hep. claim. That, and only that is of paramount importance to you right now. 

      We do know that the normal time for a decision relating to your QTC C&P is never longer than 90 days. QTC headquarters is in some obscure little backwater in California. Everything has to go through there for the steno pool to type it up. I hope they are not tardy and have learned to take it up a notch in cases like yours. 

     I do not believe there is a conspiracy to deprive you of your rating. I know they have  a rather archaic method of checks and balances to ensure correctness. The redundancy built in to the system is maddening, but I firmly believe they are just trying to ensure a proper outcome. This is of little or no consolation to you, unfortunately. 

     Stay on top of this with the Congressional inquiry route. The VA responds more rapidly to political pressure than individual Veteran pressure for obvious reasons. Congress controls their purse strings and can make life unbearable for them if they ignore the requests.

     As for thanking me for my service, you needn’t. Wild horses couldn’t have kept me out of war in 69. Young adults feel the need to test their limits. What better way than to get into red clay up to your armpits and eat Agent Orange for breakfast?  Besides, the military had an unending supply of oversized M-80’s and they were free. So…free food, free rent, free ammo and they paid you to kill Communists. How could you improve on that system? Sadly, we are only now coming to realize the downside to it. The crime is that the VA now spends an inordinate amount of time and resources denying their culpability rather than focusing on equitable solutions. On behalf of my country, I apologize for the treatment that they accord you.  I only wish there was more we could do to aid you.

     I will excavate several BVA decisions that will illustrate the path your wife may encounter if things don’t go smoothly for you. I apologize for not posting something along these lines earlier. Perhaps it was a subconscious desire not to have to face the consequences  which you do now. It appears denial is more than just a river that runs through Egypt for me.
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
02/23/11 #5
Peter-Here is a representative sample of what you will encounter. This one went to D.C. on appeal. They don’t always, but VA will surely vociferously try to show no culpability for your illness. Best if possible to treat your liverbox with the utmost respect until this process is completed. 
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menalteed
Registered: 09/08/09
Posts: 37
02/23/11 #6
Thank you for the information. My VSO says my claim is now with the RO. It has been there for about seven weeks now and still no news but hoping someone does something with it sooner then later as it shows it is now being activly worked on…Hmmm….peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
02/23/11 #7
      Well, we all certainly hope they don’t camp out on it. Having a nexus, let alone several, is paramount. Idle hands are  the devil’s workshop. Left to their own devices, they would seek their own nexus for you. Perhaps this will keep them occupied checking the bona fides of your doctors rather than pursuing an IMO.


      I arrived with only one from a prominent hepatologist. They opted to seek one of their own at QTC. Dissatisfied with that, they pursued yet another in an IMO that arrived at the same conclusion from another angle. So, after over 1200 samoles in pursuit of a denial, they gave in. Let us hope they don’t invest that much negative energy in an effort to denigrate your nexi. We will pray for your health and on this matter in spite of the fact that it is politically incorrect to do so. Concentrate on maintaining your health and the certain joy you will undoubtedly experience when VA grants this, Peter. Your unswerving dedication to America’s freedom will be realized and rewarded soon enough. Thank goodness you haven’t had to invest 17 years into it. I wish a site similar to this had been available to us in 1994. 
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AZeeJensMom
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Registered: 01/05/09
Posts: 94
02/24/11 #8
Peter ….. for what it’s worth, and I sure hope it is plenty, I’m sending you positive vibes for a swift and positive decision.    You are a strong man, it’s most difficult to wait and wait and wait some more.   It sounds like you have enough IMO ammo with your 4 Nexus statements and with solid medical evidence to support those statements.   


As NOD points out, it’s a scrutiny of checkpoints, dotting i’s and crossing t’s …… after an almost 8 year battle with VA, my husband received his 100% sc for HepC.   I know, as many do here, what the waiting can do to someone.   

Hang in there ……


We anxiously await your post of victory.
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menalteed
Registered: 09/08/09
Posts: 37
02/24/11 #9
Thank you all for your positive attitudes and vibes. As you know the not knowing is the hard part. I’m still not sure about the Nexus statements because in two of them they used the wording of “highly plausible” instead of “highly likely”, which my VSO should have caught but didn’t. One letter is correct, even saying 95% and highly likely and I hope this is enough with the other two as reinforcement. On the OTC letter they really didn’t make a statement other then just using my statement but didn’t question my reasons of the epidemiology of the Hep C as service related….peter
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AZeeJensMom
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Registered: 01/05/09
Posts: 94
02/24/11 #10
You are welcome Peter.  Yes, we do know the waiting is horrible.  Like watching grass grow.  You know your claim better than anyone, staying informed and present in the process the best you can is paramount.   


We remain in support,

AZeeJensMom
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menalteed
Registered: 09/08/09
Posts: 37
02/25/11 #11
Called my VSO today and found out my claim has been rated. I was excited and asked what the rating was and he said no way of knowing as my claim now has to go through a “Coach” and it would depend on how many claims the coach has to look through. Always seems to be another hoop. Never knew about the coach thing before….LOL…peter
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flipfarts
Registered: 05/12/09
Posts: 19
02/25/11 #12
Sorry to hear my fellow vets are suffering like this. I have HCV and it progressed to head/neck cancer. Lost my thyroid. My “CUE” claim has been denied(da) and I want it out of the RO filed in Washington for a judge to hear. I requested SOC from denial at RO Los Angeles. Letter says records cannot be found. I must have from 9 filed with NOD. Am I screwed or what? How can I solve this problem?
ALSO… Are there any independent HCV doctors favorable to vets for the nexus opinion out there. My zip is 92307. I am  in CA and outpatient at Loma Linda VA Hospital. Looking for advice and help.
Please say your prayers my brothers and sisters. God does answer…..
Thank you for your service.
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menalteed
Registered: 09/08/09
Posts: 37
02/25/11 #13
That you for your service. I’m not the one to ask questions as I’m not very up on things. Best bet is start a new thread asking your questions. NOD will then be able to answer you with the best resorces available. I don’t even knnow what “CUE” is but hope all works out well. Great information on this site and great people. Keep hope alive…peter
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NOD
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02/25/11 #14
To flipfarts:


 I requested SOC from denial at RO Los Angeles. Letter says records cannot be found. I must have from 9 filed with NOD. Am I screwed or what? How can I solve this problem?
ALSO… Are there any independent HCV doctors favorable to vets for the nexus opinion out there. My zip is 92307. I am  in CA and outpatient at Loma Linda VA Hospital. Looking for advice and help. 


It would appear you have not filed your disagreement in the proper order. As I am unaware of whether you have VSO representation or not, I hesitate to confuse you with more advice. However, here goes. 

     When you receive a denial of any kind of claim, even a CUE claim. you must file a Notice of Disagreement (NOD) first, listing all the reasons you disagree with the decision. VA then issues you a Statement of the Case (SOC). The SOC may or may not grant your claim.If you file additional evidence(which you are not allowed to do in a CUE claim),  VA would review that, issue a Supplemental  Statement of the Case  and then ask you to file a Form 9 to complete your Substantive Appeal and prepare the claim for certification to the BVA in D.C. You may also seek a Decision Review Officer’s de novo review (unless it is a CUE claim). 

     If you fail to submit a NOD within one year of the denial indicating a desire to appeal each and everyone of the claims, your claim is final. You may reopen it if you can find and submit new and material evidence. If you file a NOD and VA denies you did, you must have proof of it via a Certified Mail-Return Receipt Requested (CM-RRR), or some proof of signature like UPS or FEDEX. Without proof of receipt there is no presumption of delivery. We read a case where a man got a notarized letter from his mail lady at the P.O. stating he mailed his Form 9 (he won) and another where a lady went in with a good friend who witnessed her mail a NOD for her husband. She, too, won. Absent that kind of proof, you may be in trouble. We always suggest Vets go to the P.O. personally and get a CM-RRR green card for $6.50 to CYA. It can really pay off. Of course, if  you have a VSO involved, they are the proof-assuming they remember to file it for you. 

     Please contact Patricia at HCVets@AOL.com to find a good doctor for a nexus.  She has the corner on that market. You may contact her at this site if necessary via private messaging at HCVET. 

     If you are  unsure how the VA adjudication process works, we might suggest going to the VA Tips and Tricks  Section and perusing the first ten or so introductory articles from Introduction to Proper nexus. The site here is easy to navigate and there are numerous posts covering most of the contingencies you need to have answered, especially questions concerning CUE. Vets need to understand that CUE is not a claim per se, but a collateral attack on a prior final decision that you assert is legally defective. The rules are completely different. VA is defending their good name such as it is. The benefit of the doubt is not for application here. CUE is Indian country for the Vet, and the burden of proof is substantial. You have to specifically cite that which you believe is in error. No 12 gauge spray and pray is permitted.  There are other equally daunting hurtles to overcome , but this isn’t the venue for that.
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menalteed
Registered: 09/08/09
Posts: 37
03/03/11 #15
NOD, I’m getting very confused now after calling my VSO last week they told me my claim was the hands of the Coach, “last step” and I should be hearing someing within days. I called again today and was told my claim is with a rater. I asked what happeded to the Coach and was not given a real answer. So after telling me what the trail looked like he said the claim was with one rater for one day then another rater for 12 days then the Coach for nine days and is now with another rater as of yesterday. It seems like they are playing ping pong with the claim. I’m sure I’m on the bottom of another stack five months out from my C&P medical. I’m just frustrated! Sorry for bothering you, just had to get this off my chest as I realize the system has taken over here and just hope I can stay alive long enough to see this through……
NOD
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03/03/11 #16
Well. This is certainly classic VA behavior. The fact that it is filtered through the sensibilities and interpretation of your SO makes the chances of it being garbled even more so. 


     If we analyze this simply on the content you have provided thus far, I would be inclined to believe the GS-3 munchkin has provided this to the coach for a final clarification of some medical or legal fact. The knowledge that it has been returned to the munchkin in rating tells you all you need to know from what I see. Unless I am mistaken, had your claim been denied, it wouldn’t still be in rating. It would have journeyed over to the steno pool for the DEAR JOHN LETTER. The 9X12 manila envelope with the wax paper window (ICU2 TV) in it would either be in route or have arrived by now. I do know that they rated mine (in Seattle) on the 2nd of June 08 and actually called me to tell me it was rated 100%. I didn’t  receive a hard copy suitable for framing until July 8th. 

     No news is good news here Peter, unless otherwise indicated. Rest assured that no one at the VARO has the heart or the inclination to call you and tell you the decision was adverse. Nobody but a masochist would savor that job, anyway. They much prefer the anonymous route. Keep your spirits up. It must feel like a lifetime in just the last month. All things must pass.
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menalteed
Registered: 09/08/09
Posts: 37
03/17/11 #17
Not long ago I read in here , someplace” about Bonus incentive for RO’s. Did I just dream that or is there a paper trail for that. Still waiting for my claim. I have been through a coach and six dirrerent RO’s and they all seem to be playing wackamo when my claim pops up on a tablle….peter
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NOD
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03/17/11 #18
I have no information on that facet of the claims procedure or the personnel perks. associated with it. I do know from reading about the Board, that they regularly receive bonuses every year usually around December. For specifically what, I haven’t the faintest. Mayhap they didn’t pout and cry all year long. Peter, if it’s any consolation, those well-intentioned RVSRs in Seattle dropped my claim entirely from April to October, 2007. When I caught them at it, they quickly tried to catch up. It still took until June of 2008 and several QTC exams/IMOs to get results. Even then I didn’t “see” the decision until July 2nd nor did I receive the check for the back pay until mid to late August. When they make a ruling in your favor, they will often call you to let you know. It still may take another month to get any supporting paperwork. One also has to have super supervisor   approve a win to make sure they’re not giving away the farm on some technicality. We saw a decision last year where the VARO screwed up and sent out a “You’ve just won the Publisher’s Clearinghouse Sweepstakes” notice- only to be followed by an April Fool’s letter saying “Not”.. The Court reversed and gave him his award. VA has been extremely careful since then. The VARO justice system was once described by a Vet as ” watching a python digest a dog -very time consuming”. Patience, sir. I suspect your case will be done sooner rather than later if it is indeed in ratings. 


     Take two of the capsules listed below and call my nurse in the morning. They work well for python gazing or when contemplating one’s navel. For contraindications, click on the Fukitol  link.

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menalteed
Registered: 09/08/09
Posts: 37
03/22/11 #19
Today I looked at my case on line at ebenifits, and noticed something new as of today, there was a new entry at phase one development for something I had no clue about. Called the SO and after much   searching he found the entry. What he told me was it was out of rating now with someone else and now it had to go back to all who handled my case for final signatures prior to being finished….He said something like it was now in PVSO or something like that. The last two letters were SO for signature authorization. Hope I hear something soon…peter
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NOD
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03/22/11 #20
Peter, from what you describe its patently evident that you have won something here and its larger than a bread box. Ratings does not need signature authorization (SA?) to send you a denial. A denial is signed off by a rater not the Decision Review Officer. Seattle’s DRO is named  Laura. I’ve talked to her.She’s not the brightest bulb in the chandelier. The gal who runs Appeals Coordination is the one who wears the pants down there in that section. So, the long and the short of it is you’re still in the winner’s column at Publisher’s Clearinghouse Sweepstakes so keep your eyes peeled for the Prize Patrol. If I’m wrong, I’ll buy you dinner. This claims process thing is not designed for Type A Tiger blood Vets or people with ADHD. It’s akin to spinning the Wheel of Fortune tonight and then having to wait until tomorrow night to say “T?” or “Pat. I’d like to buy an e”. Ex parte justice is not like Perry Mason. 
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menalteed
Registered: 09/08/09
Posts: 37
03/23/11 #21
Just received a letter from my Senator  about my VA claim today. From the VA to the Senator. Not verbatim but the jest was my claim was complex and a rating has been made but the rater wanted a review by the DRO. Gives me the willies as anything can happen at this point, don’t understand this, still worried…file changed hands again today form Mark Snow to Chris Webster…..peter
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NOD
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03/23/11 #22
When you win, as I mentioned, they have to make sure you’re not being given something you’re not supposed to have. I filed in 2/07. Did the QTC C&P 1/08. I was contacted in early May 08 as I look back in my records. VA rater named Victor called and said where’s all the medrecs? I quickly reassembled them all (my private ones) and raced to the post office. They rated it June 5th, 08 and I received the 8.5 X 11 rating suitable for framing on July 5th. I got my back pay on August 28th. It is a very slow process. There must be something unique that is provoking so much scrutiny. Pardon my memory, but what was the risk factor(s)? Jetguns, of course. But what else?
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menalteed
Registered: 09/08/09
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03/24/11 #23
Only other Risk factors were Hemoglobin shots received while in Korea, known risk factor and Blood while helping a person with a head wound in Korea and a little mistake with a girl leading to STD still in Korea….No risk factors while out of service …My doctors were aware of my risk factors. Also in basic training three beds down a person shot themself in the head and that made a mess and some of that mess landed on me but I forgot to mention that in my claim. I’m sure there must be records but never serched. Try not to think about it..peter
…
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NOD
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03/24/11 #24
     Jez. What next? A review of the review of the review? Something is not right. You have bona fide risks that would win it for multiple different reasons. One thing that always disturbs me when Vets go in for a claim is the nexus letter. A DRO sniffing around it is usually after a denial and prior to an appeal if you ask for a DRO review. 


      I just went through this process for one to tie my back injury to service. For one reason or another, when they did the C&P back in 1990, they failed to address whether or not it was related to service and the doctor was never privy to my military medical records. This was done at the VA by a VA doctor and was long before VA started outsourcing these things to QTC. In spite of the aforementioned defects and the absolute uselessness for rating purposes, they used it anyway and cited it in the BVA denial. I asked my private doctor (a chiropractor) to write one as he has been doing all my care for 20 + years. You can imagine how ignorant I was back then. Nobody knew and we didn’t have web sites like this to tell us. In spite of my carefully enunciating the requirements to make the nexus probative and withstand criticism from VA, he insisted upon tweaking it to meet his criteria. This resulted in a less than perfect product with the word “probably”. I went back and showed him the regulations for properly phrasing it and he grudgingly rewrote it to fit the program. This is the biggest error made by Vets once they get over the hurtle of discovering they actually have to have one. More than one Vet has stubbed his toe on the minutiae of nexus protocol. This seems to be the biggest bone of contention and one even VSOs are woefully ignorant of. Getting your contemporary military medical records and providing them to the doctor writing the letter is paramount to success. This is often where the VA’s “highly probative” nexus beats yours. They have your medrecs in their C-file. In fact, they also have your military records in most cases. If you were busted for smoking something besides cigarettes while in service, it will be in them. And that, Peter, is often where they play dirty and extrapolate that anyone smoking dope probably engaged in other willful misconduct. Result? Denial. 

     As I never saw your nexus letters and was apprised that some were a little shaky on the phraseology, I worry. VA might have been prepared to deny, but reconsidered based on the multiple verifiable risks. Oddly enough, I have seen cases where they denied simply because the Vet did not bring up a qualifying risk factor.

      When you file, it pays to study every facet of it from different angles prior to pushing “print”. Don’t laugh, but I put everything into a notebook next to the crapper and review it for a week or more every time I have occasion to visit to be sure I haven’t overlooked some salient point. My wife calls it the poop report. I apologize. I am usually not one for scatological humor.
Hopefully your letters from you doctors will not meet the fate of others and adequately support your contentions. I will pray on this matter. If my past is any measure, I doubt God will listen, but then I am an optimist. 
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menalteed
Registered: 09/08/09
Posts: 37
03/27/11 #25
While two of my nexus letter did say “highly plausible” and one contained all the right language the fact that when I went to C&P exam I asked the Doctor why she was not interested in where I received MY hep C. She said she was not asked to look into that but did in her report make a statement confirming my thoughts on the matter that it was service connected. I’m thinking that I have multiple problems stemming from my disease and listed ten of them, it may be a stumbling block.  Asking for AA at the same time  may have put some sand on the gears. Hoping it is something simple. They sure did shop me around through nine different raters and a coach which can’t look that good for them on appeal if it comes to that. I was sure hoping for a expedited process as my condition would warrant. One other factor when I called MY VSO was told the person working on my claim quit and was moving cross country, so from here on out it is just me and NOD and my best guess is we will win one if not for me for the wife. By the way no service pot smoking or drugs or anything like that….keep me laughing…peter
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NOD
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03/28/11 #26
Well, Peter. 

     Here’s what I do know about this process.When you put in a claim, the more items you list, the more they obviously have to investigate. When you file, VA goes through a process where they attempt to match up your perceived medical affliction to a corresponding disease/injury in their medical code. More issues equals more codes and different reasons for different diseases. This is why you will always see a VLJ’s decision phrased: The RO construed the Vet’s claim to be a request for AA or the VA interpreted his chickenscratch to be a claim for hangnails.


      If you had a problem list you added in or sublisted, these would be considered as secondary to the one root disease. They have to  be investigated both presumptively as well as directly. A good example-PCT (Porphyria Cutanea Tarda) is a disease both presumptive for Agent Orange exposure as well as 30% of  HCV positive Vets. If you claimed that as a secondary to Hep, they would still have to investigate the possibility that it wasn’t from AO as well in spite of what they did to me in 94. Giving them a sub-menu of  10 more would certainly slow things down appreciably. VA is thorough and will adjudicate them together. If the primary one is completed, they will set it off to the side to address all the sub problems and announce it all simultaneously.in one big Grant or a Blue slip ( the denials back in the nineties were always printed on an all blue paper hence the name). I’ll see if I can find one and attach it here. This will also tell you how long ago I started my fight with these jokers. You just have to be motivated and willing to invest some energy to win. I see you don’t appear to be lacking in that respect. You will prevail. Most importantly, your wife can pick up the flag now without having to refile from scratch if you depart sooner. That used to be a real claim destroyer in the past. Most spouses just didn’t have the heart to pursue this when faced with starting over from scratch.

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menalteed
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04/01/11 #27
One thing I was told is I had a preliminary rating decision that was sent to the DRO. No one at the VA told me this but the letter to my Senator stated this. The letter also said that my case would be expedited. Expedited in VA lingo seems to be just a word to placate a Senator and not a reality in anyway for me.  I was never told my claim was denied, just that a rating decision has been made and was being reviewed by the DRO. To me this just seems like a stalling process and sure was unexpected. I was under the impression that a DRO would be a choice I could use if I had a NOD but didn’t think the Local VA office would or could use this track.
I was thinking of getting my car on the same track by asking for a pre-determination hearing at the local office thinking this may speed things along.
My  problem is that I’m not sure if this is a reality that I can call for this hearing and if I did would they give me my C-file to study. “I would like to see the rating”. This brings up a couple of questions on pre determination hearings, are they required to grant me one in a reasonable time frame or would this track derail me to some sort of VA purgatory ….peter
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NOD
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04/01/11 #28
Peter, here is what I located on short order in the VBM:


There are certain important exceptions to the rule that hearings requested prior to an initial notice of decision must occur before a rating board. These exceptions apply when hearings are requested in cases of proposed decisions to reduce, suspend, or terminate compensation or pension benefits; to determine an incompetency rating; or to reduce an education assistance allowance or subsistence allowance as a result of the loss of a dependent. When a hearing is requested after a proposed decision to take one of these types of actions, a predetermination hearing is held before a hearing officer or Decision Review Officer (DRO) as discussed in the next section, instead of a rating board, even though the HO or DRO’s decision is in the nature of an initial one.
I have been told that you can present yourself at the VARO to review your C-File. I, for one, prefer to have my very own copy. I did so in early 2010 and was surprised at some of the things I found. If you ask for a copy during a claims decision process, they will stop everything cold to do so. It slows the claims game down dramatically which is something you can ill afford. As for your discussion of predetermination hearings, everything I have read indicates these are very rare nowadays. To put this in context, I filed in 89 for a back claim. They denied.   I  asked for a RO hearing to further plead my case and they granted it (not the claim). I lost again and appealed to D.C. I obtained some old civilian medrecs from a hospital in NW Thailand where I was taken after the plane crash and submitted them. They denied again and issued a SSOC. The BVA didn’t even remand it to obtain a full set of the civvie medrecs. That is currently the subject of a collateral attack as we speak.

 VA grants DRO reviews now, but only after an adverse decision has been made. They will also entertain a DRO hearing request. That can take months and months to schedule. Unless there is some new evidence or a facet of the claim that was overlooked, a speedy trip to D.C. is in order. The faster one can get his claim before a VLJ, the sooner one will obtain a docket date and real justice. I have no beef with VARO adjudication procedures. Other than the fact that they are sloppy, produce a questionable work product and are invariably rife with errors, they are what one could expect from an overworked staff.
     So, the long and the short of this is simple. You have evidence that some decision is in the wings. To request a PRE-determination hearing is a day late and a dollar short. As for a post determination hearing in the form of a DRO review? That is VA purgatory, sir. Absent new and material evidence as I mentioned above, a new decision (assuming you lost this one and I do not intimate that you have yet) would arrive about a year from now in the form of an SOC, I’m afraid. A DRO hearing would conservatively take 6 months to schedule absent a 20.900(c) filing. I suspect your claim is already operating on this precept now due to your precarious medical condition. JOVO.
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menalteed
Registered: 09/08/09
Posts: 37
04/02/11 #29
Thank you again for the responce. It was more or less what I was thinking. At this point I think my best bet is to stay positive, after all they did say I had a rating. I shall take this to mean it must be a positve to SC. I don’t think they would use that language if it was anything but a question of percentage. …peter
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NOD
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04/02/11 #30
     To while away the time, Peter, try my technique. I planted all the zucchini and summer squash seeds, the pumpkins for the grandkids and the tomatoes today. They’ll be up and I’ll probably be eating tomatoes before I see anything from the VA. You, slightly sooner, God willing. It takes your mind off the monotony and gives you a reason to live. It does me, anyway. Enjoy the colors while you’re out there. All the cherry trees are in bloom. Failing planting, take a drive for the colors alone. It’ll lift your spirits. Winter’s over. I heard the tree frogs without hearing aids last night. They don’t come out until the last frost is over. They know. Spooky, huh?
menalteed
Registered: 09/08/09
Posts: 37 
     04/21/11   #31
Well my compensation claim phase went back from decision #2 to development phase #1, disappointment for me for sure on ebenifits.va.gov.
Checked out what they were looking for and this came up.
“Tracking only”
SEQTC exam IMO-…4/21/2011….suspence date 6/20/2011
I wonder if this has to do with AA that the VV had me sign up for after the QTC doctor said I should. Hate to have my claim held up by AA, when really I have asked the VV to remove that several months ago and wait for my regular claim to finish, but they didn’t…peter
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NOD
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     04/21/11   #32
     We all had to go to college on this one, Peter. Thank goodness one of us had the common sense to sign up for this not ready for primetime Vet’s claim info service.For the rest of you who have not signed up for Ebenefits, this is an ongoing project that slowly adds functions as it is built. It’s on the third floor right now of a potential skyscraper. As such the plumbing isn’t quite finished  and the information is probably weeks out of date when someone remembers to post it. 


      Veteran  Menalteed has a claim before the Local VARO in his state. There are 4 phases of an initial claim. Stage one is the “Development” stage wherein the VA examiners look at your evidence and assemble everything needed to assure a fair decision is reached. Stage two begins when a claim appears to be ripe for a decision and ends when a decision appears on the  verge of being reached. This is paraphrased from VA’s definition but sounds like they are saying the same thing twice to us. So our long suffering Veteran has now seen his claim go backwards from Stage Two to Stage One. This would be cause for consternation in most quarters, but let’s look at the evidence.

<<SEQTC exam IMO-…4/21/2011….suspence date 6/20/2011>>
I parse this to be Service Entitlement QTC exam Independent Medical Opinion – 4/21/2011… suspense date 6/20/2011. What the VARO has done is to send this out for an IMO. I suspect they were on the verge of shitcanning it and denying Menalteed. Somebody said “Not so fast. Back the boat back up to the dock, Gilligan.” So they have sent this out for a much more thorough examination. All IMOs are done at the QTC Hq. located in Diamond Bar, California. The evidence is sent via snail mail. The IMO will be issued in the order received unless it is on rush.  It appears from the info supplied that QTC Hq. began a IMO of this case or received the evidence on 4/21/2011 which, oddly enough, is today’s date.. The suspense date is a reference date that QTC must have it decided and the evidence returned to the requesting VARO- e.g. June 20th, 2011. VA normally allows 90 days from date of mailing of medrecs to QTC for a final IMO report. That would yield a date of March 20th for transmittal, but we don’t buy this. Peter has mentioned he’s on a 20.900(c) fast track due to health issues. That would elicit a quicker turnaround date. No, it appears things are moving forward. Slowly, it would seem, but moving nevertheless. 
     VA does not send out for Chinese AA decisions . You have to be service connected with a rather high rating before this kicks in anyway. Any decision on the hep would just grant an earlier AA effective date. VA will not process an AA claim absent the SC to provoke it.
     If they were going to deny, they would not waste $835.00 on an IMO from QTC. Your case must be right on that cutting edge of equipoise and VA hates to let the scales tip in your favor if they can prevent it. Hence an IMO. The good news is your claim is still viable. As more doctors look at it, they tend to come around to your doctor’s point of view. Also, this is a quasi-independent IMO, not an in house VA-generated IMO. That would be an oxymoron, yes? The bad news is you may not hear about the outcome until about the first of July. And, as QTC is owned and operated by former VA secretary Anthony Principi, we always wonder about the independent nature of their IMOs…

     In all fairness to VA, I will say my QTC IMO sealed the deal for my win in 2008. VA obviously was sitting on the fence even though I had a good nexus wilh all the requirements. In spite of this and documented hep in service, they still sent out for the IMO. Peter, there just isn’t any rational explanation for this late breaking delay, but strap on the happy face mask because your boat is still afloat. The fat lady apparently has not finished her aria yet. She’s clearing her throat. 

     Here’s what my IMO from QTC looked like(see attached below). I believe the RO hit the wall on my claim and punted to QTC. Truth be told, Hep is confusing to raters. There are many versions besides A,B, C and D. There is also Autoimmune Hep. (AIH), steatohepatitis and chronic hep. B. There are probably more, but that is not pertinent to this discussion.
Attached Images:
IMO Page 1 
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menalteed
Registered: 09/08/09
Posts: 37 
     04/22/11   #33
This all has me wondering, if they are seeking a IMO shouldn’t I get another IMO myself with a Doctor suggested on the hcvets Delphi forum. That way the balance could stay on my side and I wouldn’t slip over the edge into the black hole of the appeal process at the BVA level. I’m not down and out yet and want them to know I still have some fight in me….peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654 
     04/22/11   #34
     Here’s how this plays out, Peter. It’s somewhat like Tennis. The ball is in their court right now so you cannot serve again until they return the first serve. You have to have a logical termination of evidence in order for them to make a decision. Now, should they decide to deny, you can have a second nexus letter ready to submit. You , by definition, cannot have an IMO as you are an interested party to this. That precludes you having anything “independent” to submit. You ostensibly signed a VCAA notice saying “that’s all I have. Please decide my claim.” No, what has to happen is a decision up or down first. Then, in the event of denial, you can submit new evidence in the form of another nexus. If they deny again in spite of it, you could ask for a Decision Review Officer to review it all over again. That takes another year and will usually result in another denial. At that point you would mount a substantive appeal and file your Form 9. 


     Until you receive a decision, you cannot  stir new evidence into the stew. The wait is almost unendurable. I know. I waited sixteen months from filing to decision in 07-08. That included an IMO request by VA to QTC like yours. Be strong. If you are worried, pursue a backup nexus by all means. It’s money well spent if it helps you win. If it isn’t needed, well, think of it like a fire extinguisher on the wall. We have them, but we don’t always need them. Its probably better to have than not. I didn’t quit the pursuit of evidence for my claim until the day I saw the rating with my own eyes. Then I commenced the fight for an earlier date than the one they gave me. 

     You will have to sit on your hands until you have a decision. Obtain the additional nexus as soon as possible. Think of this like poker. You have a pair. VA does too, and is trying to draw to three of a kind. Another nexus in your pocket may give you a full house and tip the scales in your favor. Doing nothing could be detrimental. Having that extra nexus as a hole card can only show you’re here to separate the ribbon clerks from the poker players. VA will take notice.
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menalteed
Registered: 09/08/09
Posts: 37 
     04/23/11   #35
Mr NOD! Surprise in the mail last night. I received a large envelope from the VA and after I opened it could not believe it, it said SC for hep C at 20% and reasoned that it is from air gun injections. It also stated that I have 100% for my liver cancer…..While there are other residual claims still to be worked out and they are scheduling me for another QTC exam, it sure is wonderful news for me at this time. Check will be in the mail by June First…..Thanks for all the great help and insight, couldn’t have done this without this site and HC Vets. I have more to add but that can wait for a few days as I relax some for a day or two….peter
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NOD
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Registered: 11/22/08
Posts: 654 
     04/23/11   #36
     Your good news is what helps other Vets who are just beginning this journey sustain themselves for the long struggle ahead. I know that when I refiled in 2007, I did so with great trepidation. I did not have this site to turn to. It was a lonely endeavor. When I filed in 1994, I was naive. I thought the VA was going to be there and help me. I thought my service medical records were complete. I thought a lot of things.  I was absolutely blindsided by their uncaring attitude and the adversarial nature of their insinuations. I honestly believed the 2007 filing was going to be a repeat of a very unpleasant experience like the reception I received in 94. I wasn’t too far off the mark, but at least I was more educated and prepared.


     Vets should realize that the Veterans Administration is not their “good buddy” and is there to defend the government-not assist the Vet. Over the last 20 or so years this has begrudgingly changed. The VA is assisting more in developing claims, but they still maintain an “Us against Them” posture. Perhaps via the new open society we have created with the internet, or for political reasons, we Vets are becoming more resourceful and aggressive in our pursuit of justice. It certainly helps (in a depraved sense) that we have two wars going with a third in the wings (Libya). The collateral damage from them creates an army of disabled candidates. 

     Sites like ours are narrowly tailored to a specific disease process. Trying to serve all Vets with all diseases wouldn’t be feasible for us here. For that, we would probably suggest one of the larger sites like VBN. I have had only one occasion to seek advice there and came away dissatisfied with both the veracity of the advice and their treatment of those seeking information. Being curt and borderline rude serves no useful purpose. Talking down, rather than to, Vets is another Bozo No-No in my book. Where HCV is concerned there are other associated symptoms such as depression and social  approbation about  how you contracted this in the first place. 

     HCV-positive Vets need a special forum for their fight. It’s very hard, under even the most optimum of circumstances, to attain service connection. Try throwing in a cryptogenic disease that often doesn’t rear its ugly head for 30+ years and then try to find a shred of useful evidence to buttress your contentions. Does this seem futile?  Yet Vets come here every day looking for the flashlight to illuminate the path. Sadly, we don’t have all the answers. What we do have is a wealth of tested evidence that does help. We don’t like to brag nor do we keep win/loss statistics. However we do seem to have a higher than average amount of Vets like Peter who return and inform us of their victory against what are unarguably insurmountable odds. I, for, one, believe this is more than just a coincidence or a statistical aberration. 

     VA has been rearranging the goal posts in this battle since evidence that something was afoot started to develop in the early 1990s. A closer inspection shows more denials as the science progressed. This was true up until the beginning of the millennium. Now we can ascertain what kind of hep people have had in the past and decipher old medrecs for signs of elevated liver functions. Each advance yields more wins.  VA responds by upping the evidentiary requirements.

     Peter’s win via jetguns is a prime example of success against demonstrably exorbitant odds. The VA’s Hepatitis Risk Factors Questionnaire doesn’t even list it as a potential disease vector. Now why is that? If I had experimented with shooting up junk several times in the military, unsubstantiated by anything other than my testimony, the VA would 86 my claim and point to this as my risk factor. But if medical personnel shot me up with a dirty, unsterilized multidose jetgun, why then, that was “a plausible” vector, but unsubstantiated. 

     Unlike many, we do look the gift horse in the mouth. I like to know why one man can succeed in this while another fails. For 17 years I wondered why I failed in my 1994 claim. One word-Nexus. I had none. I didn’t know I needed one and I had a VSO. The word “collusion” comes to mind, but we at AskNod do not subscribe to conspiracy theories.

      Peter entered this arena with a wealth of information we have accrued by trial and error. He is proof that it can be done. I do hope he will allow us to dissect his claim in detail and show others an easier path with greater odds of success. Congratulations are in order sir. Your perseverance has paid off handsomely. Welcome to the elite club of Disabled Veterans. I suggest you do not rest on your laurels just yet. The VA is now going to attempt to staunch the financial flow by impeding any meaningful effort on your part to solidify your gains. In order to protect your spouse’s DIC benefits, it will be necessary to shore up your defenses as soon as possible. It’s somewhat like the movie “Field of Dreams” but if you don’t build it, they won’t come. Meanwhile, put your mental feet up and take a breather. You have run a long race. And you won.
 

     

    
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cdneh
Registered: 01/20/11
Posts: 44 
     04/23/11   #37
That is absolutely wonderful news. Congratulations!
Well done that man!__________________
donnelly.kate@gmail.com
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menalteed
Registered: 09/08/09
Posts: 37 
     04/24/11   #38
For NOD. Will be as helpful as possible and I do have a lot of good information. I do think one of the good things I did have going;  a great Nexus letter.  You are right on that, also battle is not over for DIC…..peterWhould post to NOD but don’t know how to post to a reply except the last one in a thread, don’t see any other choices….but thank you “cdneh” for the hardy congradulations….peter
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AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94 
     05/03/11   #39
Just catching up on the goings on around here and see this wonderful news Peter.    It’s encouraging to all Veterans who are still on the hamster wheel, never give up.   Not ever.

I’ve been absent as I’m now utilizing the Chapter 35 benefits via my husbands 100% sc and attending school full-time.   Peter, you shall be a busy bee (just as NOD told me) for the next few months getting all the ducks quacking at the same time.    That 100% opens doors for you and your family, depending on the effective date of the 100& sc, you can go back and recoup out of pocket medical expenses for your family (and yourself, if you obtained them at a VA med center) —- I’m in the process of a 5 year submission of medical expenses.   Thats no chump change.   
Bravo to you that the VA finally did the right thing on your behalf, they would have dropped the ball if you had walked away….but you didn’t and you got it.   
AZeeJensMom
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menalteed
Registered: 09/08/09
Posts: 37 
     05/06/11   #40
I still have to get my diabetes service connected, plus my stage four and other related problems to get into a permanent status on my 100%. As of now they are going to evaluate again in December . Still have a bit of work to do. Truth is I’m running down a bit and hope most future snags are minor.
Thank you for the kind words….peter
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654 
     05/06/11   #41
I looked through your prior posts and do not see anything. Were  you in-country in Vietnam so as to qualify for AO exposure? That will give you an automatic presumptive. If not, you’ll need a nexus letter from the gastrodoc saying the DM2 is secondary to the Hep. This is very common, apparently. I’m lucky I don’t have it (yet). Of course I got PCT so its 6 of 1 and half a dozen of the other. I almost think the DM might be better than the PCT. At least I’m alive. If you have any other ailments (PN?) that you or your doc suspect are related to the Hep., file for them as well. It’s showtime, Peter. Get all the cards on the table now and do it once. JOVO.
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menalteed
Registered: 09/08/09
Posts: 37 
     05/06/11   #42
I was  transplanted in 1996 for liver failure and labs of that time showed no  problems or DM2. My sevrice was in Korea 1960 on the DMZ and the time line from then to transplant dovetailed me into SC, with no ther risk factors. Transplanted people are now known to get DM2 at a rate of at least 52% and that is what I will base my claim on. It all may be a mute point as I still have liver cancer and stage four which is also a side effect after 15 years post transplant. I have had Heart stints also post transplant and no proplems pre transplant. I think I will be allright with the claim if I can hang on.
No matter what I will out think them!….peter
 
Posted in General Messages | Tagged , , , | 5 Comments

Do I file or not? Form 9.

Posted on September 29, 2011 by asknod
track22
Registered: 02/02/11
Posts: 23
09/20/11 #1
We just recieved the SOC on a bunch of issues that the lawyer said they wouldn’t go after because they are handling the hepc and ptsd appeal and believe that will be sufficient to get the rating they want. Today I am needing to know if I send this appeal in on the 4 issues they denied because they are related to end stage liver disease plus the 1151 I had filed. Do I send these to my service rep and proceed or wait until they decide on sc for the liver?  The liver sc claim already has a form 9 filed. Will this hold up the others at BVA level or will it be best for them all to go together?  Will the VSO be able to do these while the others have my c-file?
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NODManager
Registered: 11/22/08
Posts: 654
09/20/11 #2
     If the secondary issues you mention were denied and you receive the SOC, you have 60 days to file the F-9 to preserve the claim date. In my mind, I would file it with the VSO. If they need your C-file to deal with it, they’ll make a duplicate of it to facilitate the process. From the way I see it, they will not adjudicate these issues simultaneously, but will hold back to see if you win the primary cirrhosis/hcv claim. I am anal about holding their feet to the fire. I have had no luck trusting VA to do the gentlemanly thing. The claims will not be delayed or delay anything. When you file, petition for advancement on the docket under Rule 900 if you haven’t done so already.
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track22
Registered: 02/02/11
Posts: 23
09/20/11 #3
Thank you..I am going to do as you say and I have peripheral nueropathy down and the gouty arthritis. I don’t know if I should proceed with the 1151 or not and the urinary problem. Although the kidney stones are down as calcified and that would be secondary to hep c also. I had better put that down also. The 1151 is all that I’m unsure about now. I asked for the rule 900 and the 1151 does have merit but I don’t have the time (yet) to sort it out.
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RDMURPHY
Registered: 07/31/10
Posts: 49
09/20/11 #4
File early and often
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track22
Registered: 02/02/11
Posts: 23
09/20/11 #5
I did it on all 4 things and we recently filed an original claim on the hcc. The nexus states that it is secondary to the hep c cirrhosis so it is already covered too..talked to the VSO this morning to ask why the new evidence submitted isn’t on this list of evidence recieved and he told me he would add it if it made me feel better. Then we were headed to the file to see what he had and he said he didn’t have the files and that they were sent because of 4 c&p exams that are coming up. He told me that was a good thing. So at least we will be getting updated medical evidence to head to BVA with.
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NODManager
Registered: 11/22/08
Posts: 654
09/21/11 #6
Good heavens. <<< he told me he would add it if it made me feel better >>>Is the man daft? Of course he should include it. That’s why you submitted it. The VA operates on all the info supplied it. The SO cannot pick and choose what or what not to submit based on his own whims. This is your claim, not his. If he wants to operate that way, he may not be the right person to entrust with this. Any probative info that will enlighten the process should be submitted. VA would be overjoyed to find you had failed to file a F-9 on the 4 other items. It would lighten their workload. Heed the admonition of  RD. Use the preferred Chicago method of voting with VA- file (vote) early and often. You can’t go wrong. The worst case would be VA telling you that you have filed out of order. That’s better than getting the letter saying “it’s too late because we didn’t receive anything within 60 days from you”.

 
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track22
Registered: 02/02/11
Posts: 23
09/21/11 #7
I am typing the add on for the 1151 but their evidence record dodn’t show the nexus, the transplant records from nashville or vanderbilt, the primary care physicians statement that said he was terminal, unemployable and needed expedition last year, nor do i know if the physicians staement stating that he has peripheral nueropathy is in there with a note to only take gabapentin if absolutely needed because of the liver. I know all of that is basically the important part of the claim. I read some of the posts on here and made a list. Maybe they realized there were no c n p exams ordered and the denial wasn’t based on current medical records. He is tired again and his liver enzymes are starting to elevate so we need that to be included.
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AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
09/21/11 #8
Track,

Right on point about making sure as much evidence is in the file “and listed” … NOD knows the right road for certain, no ifs ands or butts about it.
Imagine this, my Veteran husband and I arrived at a Board of Veterans Appeals hearing and found out the VSO had not forwarded updated medical evidence The Honorary Sir Judge needed to make a decision on my husbands claim !  I had sent it directly to them 6 weeks prior;  at that time we were 7+ years into the claim process and so I knew taking a copy of the new evidence would be a good idea.  The Honorary VLJ requested unnamed VSO to FAX it immediately as he sat there and waited for it to arrive to be added to the file.
VSO’s can be helpful but they are not worth anything if they don’t do the right thing in a timely manner.  It’s smart business to be actively involved in the claim and make sure everything you want in there is in there.  As NOD mentioned, its your claim and not the VSO’s.
Good  thoughts out to you for continued strength to manage each day, and to your husband.
AZeeJensMom
P.S.
We did eventually win his claim at 100% sc for the HepC on its own.  So, stay as positive as possible and reach out if you ever need to.  (((( hugs ))))
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NODManager
Registered: 11/22/08
Posts: 654
09/21/11 #9
    Something at this stage of game should be considered. To be totally safe, I would mail the records Cert. mail, Return receipt requested (CM3R) to the VARO myself. I had the misfortune to have the Ratings honcho call my in May 2008 and say “Dude. We’re getting ready to rate you but there are no current medical records for the last six to eight months. What gives?” My VSO, Military Order of the Purple Nurple, had failed to forward my nexus and latest medrecs after I handed them over.To fix this, I faxed them and mailed them CM3R mega pronto.Take no chances. 
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AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
09/22/11 #10
One more thought on this and NOD’s suggestion to mail them Certified Mail, Return Receipt Requested……

Include a short cover letter listing what you are sending the VA.   Just write something brief like:
September 22, 2011
Dear Sir/Madam:
The following evidence is submitted to be included in my claim file:
Dr. A – records June 2008 – July 2011
Dr. B – records September 2009 – September 2011
Buddy Statement, John Doe, dated August 12, 2011
Thank you.
Veteran Signature
And so on ……. Be sure to keep a copy of anything you send to the VA for yourself, as you probably already know.  Staple the sent receipt and the signed received green card to the cover letter and stack. A duplicate copy sent via FAX is a safety net for certain, if there aren’t alot of records which would cost too much $$$, or perhaps you have a FAX machine or know someone who does.  Either way, CMRR is cheap proof the VA received your package.
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RDMURPHY
Registered: 07/31/10
Posts: 49
09/22/11 #11
track22 you are getting excellent advice from nod and co. Allways assume the worst when dealing with VA. When I filed the 2nd time afte my transplant i sent complete records to houston varo. they transfered my claim to roanoke va as they were swamped. However they “frogot “to send all the supporting docunemtation. If I had not been birdogging my claim I probobly would have been denied or at least delayed. CYA is the order of theday. Also how do you tell if a SO or VSO is lying? His lips are moving. Have had very good help from DAV here in TX. Sadly had one NSO ask me point blank what did I want because in his mind I was close to 100% and I needed to be quiet and go home.Needless to say he will no longer even speak to me. no loss. Good fourtune to you and yours
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VA Math

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
09/18/11 #1
 This is a question for NOD or any of the moderators. Regarding the fuzzy math that they use to get to 100%, Does that sort of math continue after you reach 100% or do they revert back to regular addition above 100? thank you sirs and madam
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
09/19/11 #2
Fuzzy math is normal for VA. After you reach 100%, you can start counting fuzzy again until you get over 60%. At that point, they add another $320.00/month to your $$2823.00 if you are married. Our personal best was John Bisig who we helped go from 10% to 180%. 
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RDMURPHY
Registered: 07/31/10
Posts: 49
09/20/11 #3
Thank you for your response, sir. It appears I am sitting at 182% at this time as soon as they get their heads out. Thank you for clairifing
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CYA

Posted on September 29, 2011 by asknod

You always wonder why the VA is so cautious about granting SC? Look at this I found in a Vet’s medrecs from service. This was in 1974. Imagine what it’s like now. They are always worried you are going to take them to the cleaners for big bucks. This is classic CYA vintage 74.                                                                                                                                            

  

Posted in General Messages | Leave a comment

Thank You NOD for my success

Posted on September 29, 2011 by asknod

Aug. 30, 2010     Filed hep c claim. Blaiming Airguns and Herd Innoculations.

Feb. 11, 2011      C & P exam.

Mar. 7, 2011       Claim denied.

Apr. 6, 2011        NOD filed.

Aug. 3, 2011        sent 2 Nexus letters and other supporting  documentation to DRO.

Aug. 17, 2011   DRO Grants service connection – 40% – effective date Aug. 30, 2010. DRO states the claim denial is  “a clear and unmistakable error” four times.

Sept. 1,  2011   Disability payments start.

Thank You NOD.
The information on this site is very valuable.
Your work here is outstanding.
I owe my success to NOD, thank you so much for your time to develop this information. You went above and beyond the call of duty to provide this honorable service to veterans.
Thanks for your service; and thanks for helping vets.

CARRY ON

__________________
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Decision Review Option under 3.2600

Posted on September 29, 2011 by asknod

I had a private message from a member asking about the ins and outs of a Decision Review at the RO level prior to a filing of the Substantive Appeal and moving the claim to the BVA.


     My thoughts are not in harmony with others on this subject so I offer some insight. If the Vet has additional evidence to submit that he feels may save the claim, this is a good idea. It can actually be accomplished by asking for reconsideration of the original denial before a Decision Review request is submitted. When you receive your denial, they always offer the Decision review as an option prior to filing the Form 9. This is standard practice. Submission of new evidence before filing the appeal triggers 38 CFR 3.156 (b) and a new review of your recent denial is required by law automatically.

     Here is where the dichotomy, or schism occurs in our thinking. A DR will consume a minimum of 12 months of your time and advance your case 0 miles towards Washington, D.C. If you submit no evidence and ask for no hearing before the Decision Review Officer, you will lose and have also lost a year waiting for your turn in the docket line in D.C. That is 3 years right now assuming it rolls downhill properly. VA has nothing but time. You, on the other hand, usually don’t when you are dealing with this disease. The sooner you can get this adjudicated, the happier (and financially better off) you will be. VA is not vindictive. They do not have a grudge or a chip on their shoulder. No, Ladies and Gentlemen Vets, what we have here is apathy and lots of time. In my business building houses, when we called in for trusses, we had to have the house braced, plumbed and lined. If it was Friday afternoon at 4 and we weren’t ready, we stayed until we were. The Truss truck wasn’t going to sit there Monday morning at 0 dark thirty and waitfor us to do it. They’d throw the trusses on the ground and beat feet with an admonition that the second visit was going to be $135.00/hour. VA doesn’t live in that world. They will not hold your hat and coat while you fix it. They’ll “get back to you” when they please in the event of  a new submission of evidence. This means more delay before the potential DR. 

     A decision review is also only valuable as a tool if you have a golden tongue at the hearing you can request. That hearing will also set your eventual appeal back, too. It usually takes a minimum of 6-8 months from your date of request to get one. Then start adding the year or more for the actual review following it. 

     Use my claim is a yardstick- it was 16 months from filing to reopen to granting of SC. It was 13 more months from filing of NOD with request for a DR to denial and issuance of SOC on the hep. Another 8 months for the PCT DR. They were then both appealed to D. C. That took a year. Then the Travel Board hearing-3 more months (expedited, no less). BVA has had it since April 2011. So you can see how timeless this process is. If I was ordinary Joe Blow Vet without medical issues, I would be awaiting a April 2012 Travel Board Hearing and a 2 year delay for a docket after that.

     Sum total? 4 years and 4 months with the DR and still no resolution in spite of advancement on the docket. In retrospect, I would gladly have avoided the one year + detour for the Decision Review. We can’t always get what we want, but we damn sure can learn from our mistakes. VA will not suddenly “see it your way” absent some mighty strong evidence. Keep this in mind when considering the DRO route. It has its uses, but I’ll be damned if I can find them.

     Getting back to Joe Blow Vet, we could envision a 16 mo. delay from filing to denial. Assume no new evidence and there’s 7 months to the hearing, and a year for the new review decision denial. 3 years and finally a Form 9 filed. Another year to certification and transfer of records. A Board hearing a year later and there’s 5 years. 2 more for the BVA  docket and you’ve invested 7 years with what to show?  2 more for a CAVC appeal?

     I think the sooner you get this project  in front of a BVA Judge, the better your chances of success. The Regional Office  folks have a different mindset on claims. I suspect they have the word “deny” tattooed on the inside of their left upper arm like Hitler’s SS. JOVO

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The VA as an Insurance Co.

Posted on September 29, 2011 by asknod

The VA as an Insurance Company

  Most Vets view the VA as an extension of the military in that they take over responsibility for you and any issues relating to your service. This is true to a certain extent. The VA is also tasked with the job of providing health care for millions as well.  It is divided into two entities which are loosely connected. The VBA, or Veterans Benefits Admin. deals solely with the compensation and pension end of it whereas the Veterans Health Admin. is the medical arm. They work in tandem in that the VBA utilizes the VHA’s medical info accumulated on Vets to make compensation decisions. When Vets only use private medical providers, they must relinquish these records to the VA in order for a claim to be processed or sign a release of Information form.

Veterans have the unrealistic expectation that the VBA is compassionate, caring and created to help them. I’m sure it was at one time in the past. Due to the greed and competition among different agencies in D.C., there is always a fight over limited resources for Americans with “problems”. Be it the inability to work (SSD), retirement after 65 (SSI), extreme poverty (Welfare and Medicaid) or simply retirement from government (pension), the amount available is always being fought over.  Each agency wants to expand and be more powerful. The VA is no different. And like other agencies, they make no effort at economy of size or consolidation of services and assets. Faced with $26 billion a year, there is absolutely no incentive to be a good steward of the taxpayer’s monies. As there is always more where that came from, and they don’t have a conventional profit/loss sheet such as  private enterprise does, they feel no need to husband their resources. Would you? During fat years, VA spreads the largesse around to upper management on the theory that it’s “really hard to attract good help”. During the lean years, they turn the sweater inside out and say that any reduction in employee benefits will result in an exodus for the door to private employment. Huh? Right now there is no private hiring going on to mention. The private sector is in a holding pattern and anyone with common sense isn’t stampeding for the exit to obtain a six figure salary at a private law firm. Nevertheless, the bonuses to VLJs continue unabated.

The maximum most Vets can attain is $2823.00 per month with a spouse($33,876.00/yr.). He can, with an additional 60% or more in disability, obtain an additional $320.00/ mo (SMC-S). For more serious disabilities such as paraplegia, there are other compensation tables. In the event of the Vet or his spouse being severely incapacitated, there are Aid and Attendance allowances. The most remunerative is SMC R.2 which grants $7800.00 a month to a Vet and his spouse. A/A would be on top of that. This gives you an idea of the largesse that VA rewards us with for our disabilities. Ah, padewan. Tax free it is, Yessssss. But anyone in that tax bracket doesn’t pay taxes. Hell, they probably get earned income credits or a refund.  See tables below:

http://www.vba.va.gov/bln/21/Rates/comp01.htm

http://www.vba.va.gov/bln/21/Rates/comp02.htm

With that in mind, look at the remuneration afforded active employees of the VBA. For sitting at a desk as I am now and typing without utilizing more that 30% of my brain, most of those people pull down in excess of 66K/year. If forced to use an Adobe Acrobat pull down menu due to mental underdevelopment, and construct custom denial letters, the rate creeps up to $80K. A 20 year senior employee can expect $105K to 118K.  I do not wish to denigrate VA employees or their work product. Inflation has cut into wage figures harshly over the years and causes financial stress. I only ask you the reader to look solely at the amount tendered to someone injured in defense of his country. These sums are paltry and below the government’s minimum wage figures. That is defined as Poverty with a capital P. Think about the fellow recently awarded a CMOH for fetching a hand grenade and saving his buds. He lost a substantial chunk of his arm doing it. That will net him a 40% rating if he’s lucky. With retained shell fragments and scarring, he may hit 60%. That’s $974.00/mo. or $11,688.00 a year. Whoo-hoo! He won’t have to worry about that pesky slice he used to have. He’ll probably have to sell the clubs to eat eventually so its immaterial anyway.

     The VA would have us believe they are under siege and funds are at a premium. They wring their hands and say that government controls their purse strings. I understand the VA Secretary is a busy man and has a lot of responsibility. I agree that all his minions are similarly situated and have mortgages to pay. In fact, if put to it, I submit that all employees can probably justify their salaries and perks. I would ask them to explain and justify our pay scale in that same paragraph without changing the subject or digressing on how our medical needs are being met. Please spare me the theatrics.

     Like any insurance company, VA is tasked with separating the wheat from the chaff. For obvious reasons, there are those who seek a free ride. Unscrupulous Vets are apparently far more numerous that we were aware of judging by the numbers denied. According to statistics, 85% of you bozos file claims that cannot be substantiated or are patently false. Oddly, this figure is far higher than civilian insurance claims. Is the VA simply a convenient shopping place for deadbeats? Are Vets so financially challenged that they consider defrauding the government at the VA trough rather than the SSD one? Something is amiss.

   When analyzing data, one must realize how easily it can be manipulated. Binoculars actually work in two different directions. Depending on the end employed, the observation can vary. VA, and by extension VSOs, encourage us to file claims for injuries or diseases sustained in service. Unlike their civilian counterparts, we are not allowed legal counsel at this initial stage except for a service officer trained in the legal arts of the VA system. This is an oxymoron. There are none so trained. Were there any, the rate of success would climb dramatically. Stymied in the first instance, the VARO, as trier of fact, is allowed to pretty much run roughshod all over your claim. This they do with utter abandon. This is called ex partejustice. It consists of “show us what ya got”. They then proceed to craft a denial with no rebuttal. You are only accorded a voice at the end to protest or disagree. Occasionally (15%) you prevail. In the eyes of the VA, many of us win on a fairly regular basis. In their mind, we rarely supply the evidence needed to succeed. If you are not a litigious person and have poor legal counsel, it follows that this will be the outcome. VA states that they don’t view their claims process as particularly onerous or complicated, yet it takes them forever to adjudicate a claim because it is a difficult process. VA doesn’t focus on the 85% denied but rather on the 15% approved. An automobile insurance company that only paid out 15% of claims submitted based on the VA criteria would go out of business in short order. People would shop for another provider who provided a true umbrella. Faced with this dilemma, we get abbreviated justice. The BVA, also a trier of fact, permits legal counsel, but artificially limits the amount the attorney can recoup to 20%. It used to be $200.00 max. That was instituted in 1865 and didn’t change until the VJRA of 1988. We now have the EAJA (Equal Access to Justice Act) which, if you prevail, will also pay the attorney a little more. It’s no wonder that there are so few attorneys willing to represent Vets.  Why bother if the pay sucks? Ambulance chasing is far more lucrative.

     In summary, dealing with the VA Insurance Co. will require a change in mindset. Please press delete when caring and compassionate appear on the screen. Consider them a foe rather than your good buddy. If they smile and tell you everything will be okay, move your wallet to a front pocket and sit with your back against a wall. If you want legal help, please do not feel you will get it at a VSO unless you are already well-educated on VA law. There are exceptions to any rule, but experience shows otherwise.  And lastly, in the event you win your claim, do not automatically assume you will be granted a rating that is commensurate with your injury.  $974.00 a month for life-even tax free- for donating an appendage to America is small compensation for the trauma, both mental and physical, that a Vet went through. Trading in a liver to HCV along with the last 20 years of your life for $2823.00 a month is not compensation. We do not advocate for exorbitant  payouts. We simply feel current rates are woefully insufficient in this day and age much like the $200.00 max to an attorney was.  This isn’t the same as SSD which you paid into. Veterans paid with body parts and they have no price attached to them. Currently, they appear to have very little value. Wars do that.

     Unless and until America begins treating her Vets as an asset rather than a liability, we will soon see a marked recalcitrance towards serving. Artificially suppressing compensation pay while extravagantly rewarding employees will eventually be viewed as grossly unfair.  Until the news media focus on that, we are condemned to being viewed as welfare cheats and freeloaders by the VA.   

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board appeal

Posted on September 29, 2011 by asknod
RDMURPHY
Registered: 07/31/10
Posts: 49
07/27/11 #1
  when appealing a denied claim, must you wait for a statement of case before filing form 9 or can you file 9 directly upon denial?
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NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 654
07/27/11 #2
    The rule is this. You file a claim and get denied. You file a Notice of Disagreement (NOD) and await a Statement of the Case (SOC). Once you receive the SOC and not before, you may file your Form 9 which completes the Substantive Appeal process. You have 60 days from the date stamped on the SOC to complete this or the remainder of a year from the date of denial, whichever is later. If you submit new evidence with your NOD they must complete a new decision on the claim [3.156(b)].
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RDMURPHY
Registered: 07/31/10
Posts: 49
07/27/11 #3
 thank you sir
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No HCV in 1973

Posted on September 29, 2011 by asknod

  In this thesis (because I don’t like the word blog) I’d like to go over something with Vets that will help them immeasurably  with their filing of a hep. claim. You want to head this particular misconception off at the pass before it starts rolling downhill like a giant, cartoon-sized snowball getting bigger by the minute.  The best way to do it is to address it up front in your filing. Find an article on the internet that tells when (what year) Hep. C was definitively identified and the year they started calling it “Hepatitis C”. This is important. Then, when filling out your Form 21-4138 or on your 8 ½”X 11” Standard white computer paper form (SWF 8.5X11) state the history of the disease and that it most obviously will not be found in your military medical records (SMRs or STRs). Below I will show you just how prevalent this practice is and what a devastating effect it can have on your claim.  Remember that once they get this listed as “non-evidence” the rest of the crap they throw in there will seem natural. If you blow up the bridge, they can’t cross the river.

 

     Examine this one:  http://www.va.gov/vetapp11/files1/1109040.txt

The Vet in question was in the service from ‘66 to ’68 (he was drafted):

At the time of the March 2003 rating decision, the RO determined that hepatitis C preexisted service and that there was no evidence that the condition permanently worsened as a result of service.

At the time of the March 2003 rating decision, the competent evidence on file included the March 1966 pre-induction examination, which contains findings that the Veteran had a history of hepatitis C in May 1965 with no recurrence.  At the May 1968 separation examination, there is no abnormal evaluation referable to hepatitis C.  At the time of the March 2003 rating decision, there is no competent evidence that any hepatitis C began during service or was the result of service, or that any in service symptoms of the Veteran constituted a permanent worsening of any pre-existing hepatitis C.

Can you believe they handed this down as serious medical evidence? With a straight face, yet? These people are “finders of fact” and dead serious. $5 says they never tested him for HAV or HBV so they couldn’t testify that it could have been one of those. No sir. We wouldn’t want to conflusticate the narrative with all that.

Nexxxxt?    http://www.va.gov/vetapp11/files1/1108537.txt

You are going to love this one:

The Veteran served on active duty from June 1971 to June 1973.Also, as there is no competent evidence during service or since service that hepatitis C, was noted, that is, observed during service, the principles of service connection pertaining to chronicity in service and continuity of symptomatology after service under 38 C.F.R. § 3.303(b) do not apply.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)In November 2010, the Board obtained an expert opinion from the Veterans Health Administration (VHA).  The Board had asked the VHA expert, a specialist in infectious diseases, considering accepted medical principles and the medical literature and a review of the Veteran’s file, to express an opinion on the following question: Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), or an opinion is not possible without resort to speculation that the current hepatitis C was related to the Veteran’s exposure to blood and body fluids as a trainee in mortuary science in service?

In formulating the opinion, the VHA expert was asked to comment on the clinical significance that the ELISA test with western blot in 1987 was negative and whether the ELISA screen would detect hepatitis C.

In November 2010, the VA expert, a board certified infectious disease specialist since 1986 and a physician in the infectious diseases section at a VA Medical Center, after reviewing the Veteran’s medical records and a literature search, expressed the opinion that it was less likely than not that the Veteran’s current hepatitis C infection was related to service including exposure to blood and body fluids as mortuary science trainee in 1973.  The VHA expert explained that the negative result of the ELISA test in 1987, the first-generation screening test for detection of hepatitis C, had a sensitivity rate of 54 to 84 percent, citing three medical references.  And that the negative western blot, also a first generation test, made the sensitivity even greater.  The VHA expert therefore concluded that the likelihood that the Veteran acquired hepatitis C before December 1987 was low.

Houston, we have a problem. An ELISA test (even with western blot) is, and always has been a test for HIV, not HCV. So the “VA expert”, a board certified infectious disease specialist at a VA medical Center, has just demonstrated that he has HIV confused with HCV. We wonder what three medical references he cited. This caused our Vet buddy from Columbia, South Carolina to lose his case. Spookyshit, huh? Conspiracy? No, stupidity. Here’s the ELISA smoking gun. We certainly didn’t have any trouble finding it and about 20 others similar to it and we are not a medical expert in infectious diseases.

http://adam.about.net/encyclopedia/HIV-ELISA-western-blot.htm

Nexxxxxt  claimant, please?http://www.va.gov/vetapp11/files1/1100026.txt

The Veteran served on active duty from April 1972 to May 1973.

The Veteran contends that he is entitled to service connection for hepatitis C because it was incurred during service when the Veteran served as a medical corpsman. A review of the service treatment records shows no complaints or findings with respect to hepatitis C.  The service separation examination is negative for any findings or complaints withrespect to hepatitis C.

    The man was a tramp. He had sex with at least 15 partners whom we will assume were of the opposite sex. Well, there you go.  He couldn’t have possibly picked this up in service around all those bloody, wounded troops. Nope. No flies on him.  Besides, he was only in the service for 13 months so he obviously didn’t have time to get it there.

     So the pattern has been established. First, point out the obvious- no HCV reported in service; second, find a  post-service risk or two that fits in to his history like having sex (even once) and then say that it didn’t materialize for 30 years.  VA has to pole-vault over salient theories in order to get to the alien abduction risk. Once there, they can drag in homelessness, drinking more than one beer a day and smoking left-handed tobacco as risks, too.  This is the snowball we described above.

     I can’t remember whose operations manual its in (Air Force or Army) but to paraphrase the advice, it imparts: If you find yourself in a fair fight, you didn’t plan your mission properly. Do not expect this adventure you are going to enter to be fair. The people you encounter will all smile and treat you like their best friend.  You will think y’all are getting’ along like peas and carrots right up until the denial arrives. It’s a rude awakening- rather like a “Huh?” moment followed about 10 seconds later with a “That’s impossible. There must be a mistake”.  Armor up, bubba. You are in for one hell of a firefight. Following our advice on this just levels the playing field a little bit.  We don’t guarantee you a win-we just guarantee you won’t go into it  with that warm, fuzzy, stupid grin on your face.

     We picked the first three decisions randomly so as to make it impartial. If you think we’re kidding, proceed apace and start reading:

 http://www.index.va.gov/search/va/bva_search.jsp?QT=Hepatitis&SQ=vetapp11&RPP=100&LC=0&ET=&UA=Search

The site is littered with these mangled decisions based on shaky tenets. 

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