BVA-Victor Charlie Made Me A Junkie

Posted on September 28, 2011 by asknod
We certainly are no stranger to the “PTSD made me do it” school of HCV being a product of brainf*ck. However, this one is priceless. This poor, addled Vet, representing himself no less, is attempting to scale Mt. Everest barefoot. He has so many bozo no-nos in his resume that he will never win. This in itself is a sad situation, but he honestly believes he has a shot at it.  We  Vets on appeal must wait our turn for him to have his day in Court. You will note that this case is now in remand status so he will see the light of day yet again.  


      Oddly enough, something in the Risk Factors Questionnaire that we are required to fill out is never stated. The VA routinely holds that homelessness, incarceration for more than 3 days, alcoholism, smoking left-handed tobacco and “strange behaviour” are also documented risks for HCV.  Claiming the enemy baited the mousetrap is a new one on us. 
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BVA–AO and AMLEG

Posted on September 28, 2011 by asknod

What is it with AMLEG? If it was just one city we could blame the water but its three different ones. We have seen numerous VSOs use the HCV= AO argument and none have won. Perhaps it does but you could never get a sober doctor to write a nexus to that effect. Additionally, it’s not one of the diseases listed in the CFRs. This defense had almost died a natural death but like TB, it’s come back from the brink and found a whole new following at AMLEG and may be spreading to DAV.


We read about hemorrhoids (surgery) causing HCV but now we have hemorrhoids caused by AO. That AO is some nasty stuff. No doubt about it, but this Vet has a lot of medical research ahead of him in order to convince the BVA on this one.

Check these out. They are more proof of VSOs getting us to waste our ordnance on worthless targets. 

   
and HCV=AO for the General Custer “Let’s die on this hill” contingent...
And last but not least, DAV’s entries based on the “if nothing else works then blame it on AO” theory:
We notice that someone hasn’t been doing their homework on the Shedden elements aka the Hickson elements aka the Caluza triangle. Where’s the nexus thingymabobber?

Not to be outdone, the MOPH has to throw their hat in the ring to keep in practice. See Item #9…

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BVA- Eeny-Meeny-Miny-Moe

Posted on September 28, 2011 by asknod

Eeny Meeny Miny Moe

Where I got Hep. I do not know

This is an entertaining one from St. Pete. Everything from St. Pete is entertaining in my book. They must have a shitton of Vets in that neck of the woods or else everyone w/ Hep. goes there on vacation to file. This dude is unique. He is being repped by AMLEG so you know what that means. Yep. No nexus letter. Why confuse the poor Vet and get him all upset? Besides, VA will be providing one for him so what’s the difference, right? You can see where the Short Line Railroad is heading before this even leaves the station.

It’s a sad fact and one that seems endemic to VSOs, but the requirement for a nexus just doesn’t appear on their “to do” list when filing. This case is unique in one aspect only. Absent the nexus correlation, this gentleman attempts to prove his SC via a reverse logic scenario, or more concisely, a process of elimination with the smoking jetgun being the last risk standing:

The Veteran contends he contracted hepatitis C as a result of his military service. He says there are no other possible explanations for him contracting this disease than contamination of his blood from vaccinations from an inoculation gun using jet injectors that were administered upon his entrance into the military, during basic training, or during his treatment at a U.S. Naval hospital following an altercation in service. So he discounts any notion that there are other reasons for this infection.

This is a novel defense, but basically its all he has left absent a doctor’s letter that objectively nails it down to a known risk. The BVA really tried to work with this Vet but he was determined to do it his way:

The Veteran claims to have completed and returned a development letter sent by the RO in July 2005 entitled “Risk Factors for Hepatitis C Questionnaire.”  However, there is a blank  questionnaire in the claims file, attached to that July 2005 letter sent by the RO.  In lieu of providing the requested responses to this questionnaire, the Veteran has indicated he was  not exposed to hepatitis C through exposure to “tattoos, homo-sexual intercourse, needle stick in a medical environment, intravenous drug use or transfusions prior to 1992.”  See his VA Form 9, Substantive Appeal, dated in September 2006.  He  therefore believes he must have contracted this disease, instead, while receiving the vaccinations at entrance into the military, during basic training, or during medical treatment at a U.S.  Naval hospital.

Here the Board VLJ summarizes the whole enchilada and the seeds of his defeat. If Bozo had put half as much energy into getting a nexus, he’d probably be on Dollar Drive right now. As it stands he’s condemned to living in Penny Lane until he figures it out. AMLEG isn’t going to enlighten him, that’s for sure. Maybe he’ll find his way here and read this:

The Veteran essentially is trying to etiologically link his Hepatitis C infection to his military service by process of elimination, rather than by also having evidence affirmatively establishing this claimed correlation.  The Board is mindful of  the argument he has presented, including in his statements submitted in support of his claim, specifically his VA Form 9 denying any exposure to the above-mentioned risk factors, as to why his hepatitis C is related to his military service, if for no other reason, by logical deduction.  But he in effect is trying to legitimize this alleged correlation by merely theorizing there is no other possible cause, without instead offering any  supporting evidence positively establishing this required linkage.

Therein lies the reason he won’t prevail. This is sad because you will see and read about it again and again in BVA decisions. For lack of a nexus the battle was lost. I’d rephrase that to say for lack of a responsible VSO the claim was lost. But what do I know?

http://www.va.gov/vetapp11/Files1/1104734.txt

A bit of history attached below. My second of three Gamma Globulin shots @ Lima Site 20 Alternate (white paper) by the Flight Surgeon but attested to at the US Embassy in Vientiane, Laos on 9/22/70 ten days after a transfusion and 79 days before I came down with hep. on 1/11/71. It was given with a disposable syringe (new) rather than a jetgun. I got a cholera shot at the same time.


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HCVets- Not a VSO

Posted on September 28, 2011 by asknod

We don’t have a frivolous VSO forum to post this one in. I was half tempted to put it in Member’s Q&As but it didn’t seem to fit there.  One of our members attempting to beard the VA goat shared this with me yesterday. Either fellow Vets will break out in gales of laughter, shed some tears or simply point and say “I know that Service officer!”

     I promised not to divulge the name of this fellow nor the name of the Veterans Service Organization.  This happened in Oklahoma but it could have been anywhere.  Ignorance knows no geographical boundaries.

     Veteran gets sick. Vet goes to doctor and discovers what thousands before him have had the misfortune to be told.  I certainly don’t need to belabor the point. After the shock and denial wear off, the gentleman decides to seek redress from the party responsible. As our government has vested that duty in the VA, he knocked on their door. Before doing so, he made the pilgrimage to an organization that offers to do these things for free. That would be one of the 46 VSOs entrusted with this sacred mission. Shortly after going over the groundwork for the claim and filing, the Vet had occasion to return for more advice. He had visited our site and discovered to his horror that he had only one of the three prerequisites for filing- the disease. Lacking both a nexus and any manifestations of Hepatitis in service, he queried his assigned Service officer on how they should approach this. And this, fellow Vets, was where it began to get frivolous.

      Mr. SO began by explaining that HCVets is not a registered VSO and that we know absolutely nothing about the legal process. He continued to tell our fellow Vet that what we are doing here is illegal and that we can all go to jail for it. He then explained that our Vet was never going to be service connected for Hep. because there was no way to prove he contracted it in service. His rationale was impeccable. If you didn’t have it in the medrecs in service, then you weren’t going to get SC.  Period. Mr. Vet pointed out that there was no way it could be in the medrecs in 1966 because they hadn’t isolated and identified it yet.  Mr. Know it all immediately pounced on this as the smoking gun.  “Exactly, buddy. And that’s why you’re never gonna win.“ Isn’t it amazing how circular logic fits into trashcans so well? 

     Our Veteran attempted to discuss other facets of his claim but was met with the same defeatist attitude and HCVet’s lack of legitimacy. The SO said he had filed this claim even though he knew it was a “waste of time”. His feelings notwithstanding, he felt it was his duty to clear the air and set the record straight. As for that pesky nexus requirement enunciated in Caluza and Hickson? “A valid claim doesn’t need one, son.”

     I guess we’re supposed to just assume 38 CFR §3.303(b) will cover any contingency in that regard. This service officer is really no different from state to state or fellow organizations. I will say that Vietnam Veterans of America (VVA)seems to be more supportive, knowledgeable and caring. It does not make them immune to hiring chuckleheads such as I have illustrated above though. They are legion. They are usually impressed with themselves and their pseudo-knowledge of the inner workings of the VA. They will take up hours of your time explaining why you need them.  In short, they need you to stay employed.  They are a legend in their own mind and a rumor in their own room. 

     We are not a VSO. We do not put ourselves forward as one. We offer sage, well tested advice on a narrow range of VA subjects. We do not profess to be error free. We are, for all intents and purposes, a Do it Yourself outfit. If we wanted to get rich off you Vets, we’d form a 501(c)(3) Non Profit Corporation and make a killing doing this by selling advice. Because you people are not rich, lack Adonis DNA and do not have tiger blood running through your veins, we offer all this free. We belong to the Pay it Forward Club. Most of us have walked the walk already. One thing you will not hear here is “Wow. I never saw them do THAT before.” 

     Our Veteran friend decided, as of several days ago, to seek a new legal strategy. He has opted to go it alone and retrieve advice as he progresses from us. He said the SO had made the decision for him. He feels he can win this and that his claim has merit. Having a SO with such a cavalier negative attitude doesn’t fit in with his legal strategy. We offer no guarantees on winning, but we sure guarantee he will be the most knowledgeable self-represented Vet on the ins and outs of Hepatitis C and the regulations pertaining to it.  More than that, we cannot promise. I suspect it is more substantial than he would receive at the (name withheld due to low ratings). Of course, there is no substitute for a good lawyer. 

  As Charlie is fond of saying: “It’s lonely at the top, but the view is great”.   He’s serious. I’m joking. We’re a far cry from the top, and know it.

 

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BVA–No Tickee, No Laundly

Posted on September 28, 2011 by asknod

I remember that phrase at the Chinese dry cleaners my mother went to. And when a Veteran, with a nationally recognized Veterans Service Organization as illustrious as the American Legion representing him is told that on Appeal, what is he to do? Think about it. A Vet chooses a VSO for their knowledge    and because they cannot afford to take that 20% hit from the Lawyer (or prefer not to). They are settling for a not ready for prime time, notquitelegalzoom.com. outcome usually. Which is not to say the law doggie isn’t going to do a face plant in front of the judge. No siree. I’m simply quoting the percentages here. Please don’t shoot the messenger.

Which leads to this egregious example  from ROLA we see all too frequently:

Citation Nr: 1019406  Decision Date: 05/26/10

06/09/10  DOCKET NO.  06-21 138  )

On appeal from the Department of Veterans Affairs Regional Office in Los  Angeles, California

THE ISSUES

1.  Entitlement to service connection for Hepatitis C.

2.  Entitlement to service connection for a skin disorder, including porphyria cutanea tarda (PCT).

REPRESENTATION  Appellant represented by:   The American Legion

(excerpt)

In a written brief, which is also referred to as an Informal  Hearing Presentation (IHP) dated in May 2010, the Veteran’s  representative also listed the issue of increased rating for  right ear hearing loss as being on appeal; however, the Board  finds that the Veteran never perfected an appeal of the issue  of increased rating for right ear hearing loss.

…the Board is not herein dismissing an appeal based on the substantive appeal being inadequate or untimely; rather, the Board is finding that a substantive appeal on the issue of initial rating for right ear hearing loss disability was never submitted, and that the Veteran clearly intended to limit his appeal to the two issues that he listed, which are the issues listed above on the title page.

Ruh-oh, Rorge. The smart money here says the SO was in the driver’s seat. If fact, we’re willing to bet he even filled out the Form 9 Substantive Appeal for the Vet and had him sign it. After eliminating the invisible ink theory, we are left with the opinion that it wasn’t on the form as being appealed. Five years of work down the drain and with it went the effective date from the filing in 2004. I’m sorry? Oops? Hmm, I sure never made that mistake before. I don’t think those phrases adequately convey that poor Vet’s sentiments when he read this decision.

Adding these things in as you go isn’t permitted. The SO knows this, or…maybe he doesn’t. This is one of those times I get to use the “Who do you want answering that call at 3 AM in the morning?”. A Veteran is a unique claimant. He has offered his services and quite possibly his life for his country for a  period of time. When the time comes for remunerations for a service-connected injury, he rightfully places his trust in one of the 46 nationally registered VSOs approved by the Veterans Administration to represent him…

Again, we say Ruh-oh, Rorge! Doesn’t this begin to sound strange. You can only be represented by VSOs for free unless you want to cough up some baksheesh for the legal beagles. By extension, you cannot be represented by anyone but a VSO (or yourself) until you get the denial. We know VA doesn’t train them. Lord, that’s patently evident on its face. What, then, to make of  a third grade mistake like forgetting to write down a claim on the form? Collusion comes to mind, but I’m simply not a conspiracy freak. Sorry. No holes in the Poles. No secret alien bases in Wyoming. Just a poor SO who wasn’t up to this demanding task. Defending a Vet should be a sacred responsibility. If you aren’t knowledgeable, you should defer to someone who is. This machine gun spray and pray technique of legal representation should never happen yet it does every day-usually with dire consequences to the one who least expects it.

In conclusion, all we suggest is that you get a second opinion that what you are doing is feasible (and winnable so as not to needlessly clog the court calendar). Confirm as well that what you are claiming is what you have. Don’t try to diagnose yourself and refrain from allowing the SO to do so. He’s not a lawyer so it stands to reason he’s probably not an M.D. either. Find a Veterans legal forum and confirm with them independently that what your SO proposes is correct. Always obey the time constraints. SOs are notorious for filing late which is synonymous with not filing at all or forgetting to appeal all of the claim.

And if your SO is a Veteran, please thank him for his service to our great country. Attaboys for SOs seem to be in short supply these days and they need a few, apparently

http://www.va.gov/vetapp10/Files2/1019406.txt

Amen.

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BVA Increased Rating Attempt

Posted on September 28, 2011 by asknod

We counsel Vets to avoid diarrhea of the mouth around medical professionals or C&P doctors.. We do not counsel them to make sure they have the requisite illnesses and incapacitating symptoms of the proper duration. Perhaps we should. From that large hole in the ground west of Philidelphia…

The Vet in the link below, represented by an inattentive SO from the esteemed DAV, requisitioned the VA for an increased rating in excess of 20% .  His argument exposed a very large obstacle at the hearing. In order to qualify for 40%, the next rating above 20%, one’s incapacitating episodes in the prior 12 months must equal or exceed 30 days:

A 40 percent rating is warranted if hepatitis C is manifested by daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly (enlarged liver), or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period.  

     What, then, was the SO doing besides cleaning his fingernails when this choice sentence erupted out of the Vet’s piehole?

During a May 2009 DRO hearing, the Veteran testified that he had missed approximately 27 days of work in the past year due to his hepatitis C.  He experienced fatigue and vomiting and there were some days in which his symptoms were so severe that he was unable to leave the house.

    Hello? McFly? Is anyone on his team aware of the concept of lieing under oath? Incapacitating episodes, by their very nature, are just that. Leaving the house for a trip anywhere other than a  hospital under those circumstances is a not so subtle admission that the episodes are not very debilitating.

An “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician.  See Note 2 following 38 C.F.R. § 4.114.

     His wife, a registered nurse, apparently in an effort to ameliorate the Vet’s incongruous testimony, added this in a sworn deposition:

 In a May 2009 statement, the Veteran’s wife, who noted that she is a registered nurse, indicated that his fatigue and pain prevented him from engaging in physical activities.  The Veteran  had been prescribed large amounts of narcotics to alleviate his pain.  This disability has caused him to miss work for more than 30 days over the past year due to such reoccurring symptoms as pain, nausea, vomiting and fatigue.

 I just can’t resist. Having a mother who taught English is why. Our esteemed, well educated medical professional has just inadvertently testified that large amounts of narcotics to alleviate his pain have caused the Vet to miss work due to reoccurring symptoms such as pain, nausea, vomiting and fatigue. Rumor has it that mass quantities of narcotics will do just that to you. 

Some more salient facts pertinent to this decision:

A 40 percent rating is warranted with minor weight loss

An April 2005 private treatment summary indicated that the Veteran weighed 223 pounds.  He was noted to weigh 210 pounds in a January 2006 private treatment note.  His average baseline weight was therefore 216.5 pounds.

Veteran was noted to weigh 226 pounds in a September 2008

March 2009 the Veteran denied weight loss.

September 2009 VA examination report weight was stable.

The Veteran was noted to weigh 230 pounds in a January 2010 private treatment note and224 pounds in a second January 2010 private treatment note.

     Just for the edification of the reader and the yawning SO, a minor weight loss, as defined by the VA, is 10% of the baseline weight. This poor Vet experienced a net weight gain during the pendancy of this appeal. This, in conjunction with the disparity in the actual number of days being incapacitated, compromised this gentleman’s competency to testify truthfully in his own defense. A cursory inventory of the evidence prior to entering the courtroom would have revealed a major defect. This admonition is only congruent if the SO is privvy to the governing regulations concerning DC 7354. Absent this knowledge, the Vet would have been just as well served had he been accompanied by Mojo (Homer Simpson’s beer-fetching monkey) to his DRO review hearing. 

     There but for the grace of God go I(again). I had the great pleasure of Mojo’s presence not once, but twice at appeal. Somebody find this guy and give him a lifetime supply of Fukitol. Nevermind. On second thought, it appears he already has a prescription.

     I won’t spoil the anticlimactic ending for the reader.

http://www4.va.gov/vetapp10/files4/1030364.txt

(denied)

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BVA- DDD

Posted on September 28, 2011 by asknod

 

While this decision doesn’t have any connection with HCV, it illustrates an important precept for dealing with the VA. Here, the Veteran has wisely hired an attorney (and a very good one, we might add) to defend him in this claim. Virginia Girard-Brady is no stranger to the VA legal arena. We would hire her in a heartbeat with no qualms whatsoever.

The problem with this claim is VA’s propensity to route everything to the Veteran, often bypassing the lawyer. It has horrible consequences for this gentleman’s claim as you can see. In a nutshell, he has filed for Degenerative Disc Disease (DDD) which he quite honestly believes is a result of an injury in service. VA asked him to submit a Form 21-4142 to release medical info to help adjudicate his claim, but something went awry:

in April 2010 the Board remanded the Veteran’s claim specifically to locate private treatment records that the Veteran  mentioned during his October 2009 VA examination.  However, the  Veteran failed to respond to the RO’s request to submit an  Authorization and Consent to Release Information form.  In this  case, despite VA’s efforts, the Veteran failed to provide enough  information to identify and locate the records.  Because the  Veteran did not provide information regarding the names of the  physicians, and their addresses, there was nothing more that VA  could do to locate the private treatment records.  As such, the  Board finds that VA did all it could to locate records relevant  to the Veteran’s claim, and has fulfilled the duty to assist.

And:

Although the Veteran’s attorney requested that she be notified  pursuant to 38 C.F.R. § 3.159(e) if VA was unable to obtain the  records mentioned in the April 2010 letter, it is clear to the  Board, and common sense dictates, that the April 2010 letter was  sent to the Veteran precisely because VA was unable to obtain the  records without further information and authorization to release  this information from the Veteran.  In fact, 38 C.F.R. § 3.159(e)  notes that if VA becomes aware of relevant records before  deciding the claim, VA will notify the claimant of the records  and request that the claimant provide a release, and that if the  Veteran does not provide a release, VA will request that the  claimant obtain the records, and provide them to VA.  This is  exactly the course of action taken by VA, as the April 2010  letter expressly requests that the Veteran send VA the records of  the treatment he mentioned during his October 2009 VA  examination, or, if he wanted VA to obtain the records for him,  he needed to complete and return the Authorization and Consent to  Release Information forms.  It is clear from the letter that VA  did not have enough information from the Veteran to locate and  obtain the records; nor did VA have the authorization to obtain  the records even if VA had enough information to locate the  medical records.  In summary, the Board finds that VA did all it  could to assist the Veteran with obtaining additional medical  records pertinent to his claim.

This brings up an interesting contretemps, doesn’t it? What is the purpose of having an attorney represent you if the entity you seek remuneration from continues to go behind her back and deal directly with her client?  If you were a major insurance company and you tried this stunt, you would be sued to the ends of the earth and the law dog would win. You wouldn’t have a legal leg to stand on. Canons of law dictate what the does and don’ts are. Why, then, does the VA get a bye on this? We certainly hope she chooses to appeal this to the Court because it seems like one of the most clearcut and egregious examples of VA’s propensity to ignore established precedent, or, in the alternative, to imply that normal law doesn’t apply in the “Veteran friendly environment” of the VA justice system.

Let this be a lesson to all who entrust their claims to a VSO or private attorney. Make sure you send copies of everything you receive from the VA to them on the off chance that a scenario like this doesn’t develop. As you can see, VA’s take on this is simple- No flies on me!  It’s easier to correct this BEFORE the BVA pushes Print.

http://www4.va.gov/vetapp10/files4/1032007.txt

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BVA-Circular file

Posted on September 28, 2011 by asknod
     This is yet another tragic example of a VSO and, by extension, the service officer assigned, to understand the rules and regulations and their application to a claim for benefits. One must have evidence of an injury or disease, or, in the alternative, documented risk factors that point to possible injury or disease in service. Where Agent Orange claims are involved, the Vet must have proof of assignment to the RVN during his military service. There are a few cases that have been won involving Vets assigned to Guam, Okinawa, the Philippines, Korea and Thailand. These are very limited in scope and provide no precedence for the vast majority of Vets so we won’t go into that here. For a Vet with no record of assignment to the RVN between Jan. 9, 1961 to May 7, 1975, the chances of winning a claim for Diabetes, Type 2 on a presumptive basis 40 years after discharge are astronomical. If you didn’t have it in service and you come down with it in 2006, all it proves is that you are grossly obese,  have an incredibly poor diet or were genetically predisposed to it anyway. Every service officer employed by accredited VSOs and trained in the art of helping Vets should know this. They learn this stuff in Claims 101 or are supposed to. 


     Vietnam Vets are presumptively assumed to have been exposed to the herbicides and therefore are automatically granted service connection for a large number of diseases and cancers they manifest later in life. Veterans with no duty or visitation to the RVN during the aforementioned window of time are not afforded this presumption and therefore are not eligible for  this consideration. 

     So the question we pose is why is this Vet (with a host of other negative problems in service) before the BVA with a claim that is bound for denial? We commiserate with the gentleman and feel sorry for his poor life choices, but our sympathy is tempered by his and the VSO’s wasting of valuable judicial time better spent on claims with some merit. Every dog must have his day. Now, with that said, why don’t VSOs, during their training of service officers, try to teach them to counsel Vets about the chances of winning claims which are severely compromised? Worse yet, it appears that not all service officers are well versed in what the meaning of “is” is. We have reports of SOs telling Vets that tattoos will not be considered an HCV risk factor and that contraction of STDs in service is considered willful misconduct, and therefore not grounds for service connection for HCV. The most egregious example we have come across was the SO that handed a Vet claimant an application for TDIU who wasn’t rated for anything yet.  We cannot emphasize the importance of confirming what passes for good advice from someone who is not a lawyer. VSOs are a wonderful invention but the weakest link in the chain can often be the SO who is woefully inept at his profession.  So, from New York City, meet the Vet with the worst case we have come across in years…
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BVA-Do not pass GO!

Posted on September 28, 2011 by asknod

Help! File this case in the demented VSO box. The Disabled American Veterans organization has been around for quite some time helping Vets. With that said, why on earth did they let this one go up to D.C. for an appeal? If a Vet raises an issue in the first instance (even if its a request for an exam at the VAMC) it constitutes an informal claim and the VA must address it. DAV knows this. They do it countless times every day. This little stunt is now going to cost the poor Vet about 18 months of delay while it is sent back toConnecticutfor a de novo decision at the Hartford RO. If this isn’t enough to piss off the pope I don’t know what is. Veterans should not have to be subject to this kind of treatment. VSOs are not attorneys no matter how much they would like to be. Always get a second opinion on these things before you invest years into it. If your SO gets bent out of shape because you question his judgement, then perhaps you need to move on and investigate another VSO as a potential representative. Just one Vet’s opinion, mind you.

http://www4.va.gov/vetapp10/files3/1022836.txt

The proper way to go after this is to sign the waiver and let the AMC handle it. Why send it back to the RO? It’s been denied below and it’s not going to improve with ageing like wine. I’d prefer someone with a 3 digit IQ adjudicate my claim. As there is very little in the way of intelligent life at the RO, this is axiomatic.

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BVA–Dumb and Dumber Still

Posted on September 28, 2011 by asknod

Every once in a while we see a BVA or CAVC ruling that intrigues us and demands that we present it to you, the inquiring Vet. Usually these decisions are the product of a Veteran presenting his own claim (pro se) without the benefit of a VSO or attorney. What, then, to make of this decision? An attorney purporting to “represent” this Veteran, one Kathy A. Lieberman, steps forth and trips on her shoe laces before they even get to the R.O. Why on earth would one refuse to seek SC for the one disease (of three- HAV, HBV and HCV) that afflicts you. In the “ISSUES” section of this decision the Attorney asks the BVA to grant SC for any hep other than A and C. By process of elimination, we are left to infer she is applying for either B, D or conceivably Autoimmune Hepatitis . As the Vet had Hep in service and they had no way of discerning whether it was A or B in the sixties (and C had not been discovered yet), the smart money was to seek SC for Hepatitis-period. Who knows what flavor he had back then? Current testing can ascertain that info now. However, you will notice that because the Vet never seeks SC for HCV, the VA conveniently does not go there. They do not test him for it simply because he didn’t apply for that benefit. He obviously is suffering from some horrendous liver ailment but that does not concern the VA because it is not due to Hep B or D. This just reinforces the old “Field of Dreams” adage that if you don’t build it, they won’t come. Here the Vet has entrusted his case to an attorney who needs remedial education about different flavors of hep. If the Vet is seeking to reopen a claim for Hep A as stated in #1 below in the Issues section, why does he seek SC for hepatitis other than A (and incidentally, C) in #2? This makes absolutely no sense. For the record, Hep. A is acute rather than chronic and VA will not rate it as such.

http://www.va.gov/vetapp08/Files5/0838767.txt

Crazy, Huh? The attorney has effectively precluded the VA from investigating the possibility of whether the Vet has Hep C. One would assume they would automatically test for this as they love to poke into dark corners and come to the wrong conclusion. If something is going wrong in the liver box, shouldn’t they ask to reopen the 2006 Hep C claim? With the simple phrase “other than A or C” she has sunk this Vet’s boat before they left the harbor. Smart money would have dictated that this Vet apply for “liver disorder” and then push Print. File this one under Dum and Dummer because she doesn’t deserve a b after “dum”. Nobody can be that stupid, can they?


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