John Q. Public’s misconceptions about Hep C

Posted on September 29, 2011 by asknod

 01/23/09

People ask me if having a tattoo will destroy their chances of winning their jetgun claim for Hep. Yes. You read that right. Well, gosh, where should I start? If you have filed your claim, you must have filled out a Risk Factors Questionnaire by now. You may have noticed that they ask you about 10 questions and not one of them mentions jetguns. VA simply doesn’t consider that a risk. Don’t shoot me, I’m the messenger. I think it’s a viable path to infection. Hell, if someone took an air tool covered in blood in a garage setting and jammed it up against my arm and blasted me, I’d say that was pretty unsanitary. I’d say it stood a pretty good chance of pressurizing some blood subcutaneously into my flesh. If he had HCV or AIDS and I didn’t, then I’d be lying if I said I wasn’t worried. VA Examiners don’t see it that way. Now, how does that differ so much from a tattoo? Or shooting up heroin? Or sharing a bloody straw(?) whilst tooting Peru’s main export?

Unprotected sex is another avenue the VA recognizes. However, as with tattoos, the VA considers these vectors of transmission to be a 2 on a scale of 10. If you had unprotected sex with 10 or more partners then you are “at risk” in their parlance. What about the guy that only had 9 partners? Ne problemo? I don’t think so. VA says your chances of getting HCV with one exposure to IVDU a la shared needle are 100%. They say your chances of getting HCV with one Transfusion, which, I might add, involves 800 milliliters of blood, is greater than 60% if it happened before 1989. Do you know if you loaded up syringes of blood, how many it would take to make 800 milliliters? You got me there but it must be more than 200 to 300 syringefuls. Why the disparity in how this disease is transmitted? If you shared razors, toothbrushes, or fingernail clippers they will consider it a risk factor. However , when actually pressed, they will say it is a less that 1 in 10 chance of being infected. It’s actually just “unsanitary” in their book of risks, but they can and do occasionally cave in and hand out a rating for that.

Going back to the IVDU risk, why would you have a 100% chance of catching it the first time out? Or, if snorting coke, why a 100% risk sharing a straw? There is something wrong with the way these risks are assessed. It has a lot to do with morality and public perceptions. VA is not going to suffer bad PR if they turn down a Junkie VET, unless he has an CMOH hanging around his neck. Or a DFC, Bronze Star, Silver Star, CIB or PH. Most decisions involving IVDU that win seem to have a common thread- medics and heroes. If you were in combat, shot up daily, and your buddy managed to inherit the wrong end of a RPG round, you will get SC for picking up all his pieces and carrying them back to the meatwagon or dustoff. You and I know that if he had HCV, it would make sense that you were exposed to his blood, ergo stood a good chance of infection. But that’s a pretty big IF in their book. Fact is, that ugly habit of sticking a not so autoclaved needle in your arm every day was a much higher risk. But the Junkie Combat Vet gets a pass with the CIB. Why? PR and 38 USC 1154(b). Only 15% of us were actually in combat.  85% were thus support troops. John Q. Public is not going to have a problem with VA turning down 12,000 vets each year for HCV just because they were on the wrong end of a dirty jetgun in Basic Training.

The problem is now defined. How shall we HCVets go about convincing the rest of America we have a valid claim to SC? Good Question. I hope you Vets are as good at finding an answer to it as you were defending America. I have faith in you and expect you’ll find the solution. I will continue to find ways to get you SC in the meantime with the risks VA does recognize and new ones you identify. Good Luck, Band of Brothers.

By the way, recognize anyone in this picture? Operating Location Charlie, 1980th Comm. Sq.  1970.  Two of them had Hep in service within 2 months of this photo being taken. One is service connected (me, bottom right in Camo). I don’t know about the other one (right behind me standing looking right). I pray he didn’t come down with C, too.  Sgt. NOD

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BVA-Why not me? He got $.

Posted on September 28, 2011 by asknod
 Every once in a while we have to go back and reiterate certain principles of VA law that gradually become dim in claimant’s minds. This case is a refresher course . It was posted the other day and thus is brand new. Unfortunately it does not set precedence, something all BVA decisions have in common. BVA adjudications are valuable for one reason for Vets. It gives you an idea of what you are preparing to encounter and and a valuable place to pick up precedent setting Court panel decisions relating to your claim. Beyond that they are just paper and have recycle value.Here is an excerpt from this case that bears examination by all potential appellees:The Board also notes that the Veteran has submitted excerpts from two other Board decision pertaining to appeals of other veterans, in which their hepatitis C was found to be linked to in-service exposure to unsanitary air-jet inoculation guns.  The facts and findings in prior Board decisions pertain to those veterans’ cases and not to the case at hand.  While it appears that excerpts from prior Board decisions may indicate that other Veterans Law Judges accepted medical evidence showing a link between the other veterans’ hepatitis C and their in-service exposure to unsanitary air-jet inoculation guns, any finding in those prior Board decisions is based on evidence associated with the record of those veterans in the other appeals.  The Board is not bound by findings found in previous Board decisions.  Further, any finding made in a prior Board decision pertains only to the veteran who submitted that appeal.  Such a finding is based on the evidence related to that veteran’s medical records and the evidence in that veteran’s claims file.  Those decisions do not provide any specific findings or evidence to establish a link between this Veteran’s hepatitis C and any aspect of his period of service.

Keep the above in mind before you start typing your claim…

http://www4.va.gov/vetapp10/files5/1040550.txt

 

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BVA–Too many DD 214s

Posted on September 28, 2011 by asknod
    An observant reader sent us this one. It’s priceless. It must have cost VA a bundle to sort this one out, but sort it out they did. I give them credit for being thorough. This is why it takes so long to get a BVA docket date or anything else done at the RO for that matter. One does wonder what he was drinking or smoking to get his story line so messed up. For any of you out there thinking of trying this, remember the Green Berets didn’t refer to themselves as such. They were called Special Forces. Sgt. Barry Sadler was the one who brought us that term. 



Enjoy the read. I did.
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BVA– HAV = Nobucks

Posted on September 28, 2011 by asknod

 Boy, this is the mistake of a lifetime. Our Vet from New Jersey here, with his County rep. as a VSO, has unwisely elected to get himself service –connected for HAV, not HCV.  When asking for actual compensation instead of the goose egg he is currently receiving, the RO and BVA have decided to take Diagnostic Code 7345 literally and inform him that the standard rating for HAV, infectious hepatitis is 0%. Even assuming an extra-schedular exam, there can be no more. All of his ills that we associate with HCV are not recognized because he isn’t SC for HCV. They also gravitate to the first word “chronic” and point out HAV is an acute rather than a chronic condition- again no bucks.

Diagnostic code 7345

Chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C)

What we find interesting is latter day testing has revealed that the hep. this Vet had in 68-70 was HBV, as in viral hepatitis. Infectious HAV is transmitted through the oral-fecal route-as in eating food prepared by someone infected that went to the bathroom, failed to adequately wash his or her hands and has absolutely no clue how to operate the toilet paper dispenser. (I would like to make an aside and point out that these people are not underemployed but unschooled in hygiene).  They carefully point out that he is HBV immune by virtue of this prior infection but make no other conclusions or observations.  They were’t asked to consider this eventuality. As myopically as possible, they are narrowly focused on just an increase for his HAV. They  have also examined all his complaints and medical info. similarly. As it has nothing to do with HAV and virtually everything to do with HCV, he cannot be rated for it under DC 7345. They summarize it in the standard format. Rule #1 says HAV is a non-chronic form of hep. and therefore it is rated 0% when service connection is granted. Rule #2 says if you have HBV or HCV, then refer back to rule #1. Circular logic is so efficient and takes up very little space when explained and fits conveniently into circular wastebaskets.

     What makes this so tragic was the VSO was supposed to know this and build a case for the Vet that would get around it. By arriving in D.C. without it, this outcome was predictable and a waste of time. Every one of the participants (with the exception of the Vet) could see this coming like a tornado. Look at how much time he had invested. A hearing probably set him back a year or more on top of the denials.  The fact that he lied about his weight has no bearing on it. He could have lost 100 lbs. and been a candidate for the freak show at Barnum and Bailey but still wouldn’t have gotten an increase.  

     It appears it’s back to the drawing board for this guy. He’s claimed he’s unable to work, so he has several options absent another vigorous attack on a HCV rating. Didn’t anyone tell him about Groves v. Peake? Nexus letter?  38 CFR § 3.303(b)?

http://www.va.gov/vetapp11/Files2/1115068.txt

      Sometimes they piss me off.  I refer to both of them- VA and VSOs. They could have taken this ol’ boy aside and explained all this without stringing him out for three years. He probably had a bottle of Dom chilling in the garage refer just waiting for the big moment. Well, maybe Cold Duck or rack of killer IPA anyway. It’s somewhat immaterial at this point, anyway. Regardless, it just sucks what they do to us. 

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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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