Veterans Claims Help

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

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?

The veteran also has argued (as discussed by the RO in the
SOC) that his hepatitis C is a separate disability that is
secondary to his hepatitis B. However, since, as noted
above, the veteran is not entitled to service connection for
hepatitis B, he cannot be entitled to service connection for
a disability proximately due to, the result of, or aggravated
by this disability

Significantly, the Board notes that the only competent and
persuasive medical opinion to directly address whether there
exists a medical nexus between current hepatitis B and C and
service, or between hepatitis C and hepatitis B, weighs
against the veteran’s claims. The December 2007 VA examiner,
after a review of the claims file, did not find any evidence
of hepatitis B infection while in service, though he found
complaints of gastroenteritis. Though the veteran maintained
he was given a shot in service once he was diagnosed with
hepatitis B, the VA examiner found it was less likely than
not that this would have caused hepatitis C, which was found
later in the 1990s. The VA examiner also found that the
veteran had multiple risk factors for hepatitis at this time,
including past intravenous drug use, blood exposures with
needle punctures, possible sexual transmission, ear piercing
and a history of intranasal cocaine use. The examiner
further found that these risk factors could have occurred at
any time during service and that there was also evidence that
drug use and alcohol use continued post-service. The VA
examiner opined that the veteran’s hepatitis C infection was
at least as likely as not related to the IV drug use, though
it was difficult to determine when this occurred. The
examiner noted that hepatitis C is a chronic infection and
that he was unable to determine if this was caused during
service, when the veteran had these multiple risk factors, or
if it occurred post service. 

http://www.va.gov/vetapp08/Files2/0810084.txt

This fellow isn’t going anywhere with this. Very sad that his VSO encouraged him. This is where the power of positive thinking clashes with reality and the VA.

We could certainly file this one under Dumb and Dumber, but I suspect the file cabinet has other folders that would be equally amenable to it. If you have any doubt about what the VA is going to look at to make a decision on your claim, ask for a copy of your military and medical records BEFORE you file. It might save you some wasted time and postage. As an afterthought, if your certificate of Achievement from Uncle Sam hanging on the wall is a DD Form 258, that is an Undesirable Discharge which entitles you to Dreamdollars. A DD Form 259, Bad Conduct Discharge also known in Veterans conversation circles as the “The Big Chicken Dinner” again will get you Wishwampum from the VA. If the character of your service led to an early discharge for reasons other than Honorable, your chances of getting remuneration are very limited to none. If there is any doubt in your mind, check to make sure you have in your possession either a DD Form 256 or 257 prior to filing a claim. This will clear up any confusion on your and VA’s part prior to your submission of the claim. If you no longer possess this piece of paper, check your DD Form 214. It is listed there as well and, yes, the VA has a copy of that, too. White out will not fake out anyone but your friends.

http://www.va.gov/vetapp08/Files3/0823564.txt

We can file this one under C for Cognitive Brain Disorder. I know I forget a lot of stuff. My wife constantly reminds me of that. If you file a claim, you must have a game plan. An integral part of this should include a time line to refer back to every once in a while. This will aid in keeping your facts and the story line in sync with one another. One of the problems with not telling the truth is that you actually have to remember which lie you told to whom. Over a decade or two this becomes blurred and confusing. VA has come up with a handy analog repair order and it is generally infallible. They write it down. Everything you claim, everything you did that was medically stupid, drugs you used that were not prescribed, etc. was recorded for you in case your memory became fuzzy. Here, the Vet is being called out on it. It will cost him his compensation claim. More importantly, he will remember that he made a big boo-boo when he decided to take on the VA. On a good day,sober, you will have a hard time beating these jokers. Don’t try it after roasting a bowl with your buddies and then dragging out the 21-4138 and remembering it from your standpoint. Ain’t gonna happen. Wishwampum. Dreambucks.Dead in the water Dollars. Questions?

http://www.va.gov/vetapp08/Files3/0817946.txt

File this one in the Idiot’s Delight box. If you are going to claim an injury in service, you must still have the injury when you file. It helps if you bring a nexus to the VSO to include with the injury. These three items are often referred to as the Caluza Triangle, or the Golden Triangle, or the Hickson elements. However you wish to refer to them, the principle is that you have suffered harm while in the employ of Uncle Sugar. How this ever got to the BVA with no Dx of Hep. is way beyond me and probably VLJ George E. Guido, Jr. as well. It must have taken him about 5 minutes to figure this one out. It set back at least one VET’s legitimate claim a few weeks and probably numerous Vet’s adjudications were interminably delayed so that justice would be afforded this idiot. Please,Veterans, in the interests of time management, when filing a claim make sure you have a Dx’d injury before self-diagnosing and rushing to file for benefits. The Veterans in line behind you would be greatly appreciative of your consideration in this matter.

http://www.va.gov/vetapp08/Files1/0806500.txt