CAVC- Cogburn v Shinseki–Implicit Denial

Posted on September 27, 2011 by asknod

     Here’s a brand new one that has some interesting facets to it. Veterans who take their appeals up to the Court should realize that they have to have something unique to present; some theory of entitlement that has a new wrinkle to it. Simply arriving with a laundry list of  perceived slights and very little of substance won’t even get your foot in the door. Fortunately for Mr. Cogburn, he had much more. This means it provoked a panel decision rather than a single judge decision. To make a long story short, Mr. Cogburn had some verifiable issues that the Court recognized as having been overlooked by the Board of Appeals. Therefore they have vacated his denial decision and are ordering the BVA to readjudicate his claim on appeal with remand instructions on how to do it right.


     Most importantly, this decision illuminates an important adjunct of jurisprudence. The principle of “implicit denial” is actually very simple. When a Vet files a claim with multiple issues, related or not, the VARO may grant one, some or all. In the event they grant, say, one for instance, and deny the rest without actually addressing them, this is known as implicit denial. If you , God forbid, file an NOD and then a Substantive Appeal and never address these denials, you cannot come back and visit them later. They are dead in the water. Never mind that you happened to overlook them or spaced out. The Court and the Federal Circuit have ruled that it isn’t prejudicial. You’re supposed to be smart enough to figure out that if they didn’t grant it, then you were denied. So what if they forgot to actually write it down and tell you. A “reasonable” person would deduce that he didn’t get what he filed for. 

     Mr. Cogburn will get another day in court in front of the BVA, but they will address this overlooked denial this time around. As for whether he will prevail depends on how good his law dog is. 

     The Court in Cogburn had this to say about VSOs and I would hope every Veteran takes it to heart:

These are all veterans service organizations, and there is no indication that Mr. Cogburn was represented by an attorney at any point prior to his appeal to this Court.  See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009) (holding that “representation by an organizational aide is not equivalent to representation by a licensed attorney. Although aides from veterans’ service organizations provide invaluable assistance to claimants, they are ‘not generally trained or licensed in the practice of law.'” (quoting Cook v. Brown, 68 F.3d . 447, 451 (Fed. Cir. 1995))).
      Veterans may think we here have an ax to grind with VSOs and that may be true. Some of us here have had unfortunate, costly mishaps at the hands of these well-meaning gentlemen. We’re virtually positive that they meant well, but a Vet would be wise to heed the admonition of Clint Eastwood’s character Harry Callahan when he said: ” A man’s gotta know his limitations”. The road to VSO hell is paved with these sentiments. 

     Attached below is the Cogburn v. Shinseki record. There is also an interesting paragraph that addresses due process and how Veterans’ claims fit into that venue. Very good reading.

Posted in Important CAVC/COVA Ruling | Tagged , , | Leave a comment

CAVC–Equitable Tolling–Serious as a Heart Attack

Posted on September 27, 2011 by asknod

Keep this in mind if you appeal an adverse decision of the BVA to the CAVC. Mr. William E. McCreary went through a hurricane (Katrina). It damaged his house and belongings. In spite of his pleas to the CAVC to accept his NOA 7 days late, They turned him down cold. Well, not cold. They debated it for a couple of hours and then 86ed it. This was no ordinary case and mitigated for an exception in my mind.  Not to be. So, with this fresh in your memory, if you file late even by ONE day, your excuse must be pretty damn good and involve more than a dog and some homework. Remember, they also have the same excuse book you are trying to plagiarize from. 

Posted in Important CAVC/COVA Ruling | Tagged , | Leave a comment

CAVC–Edwards v. Shinseki–Don’t call us.(We’ll call you)

Posted on September 27, 2011 by asknod
       Every once in a lifetime, you run across the guy who just will not give up. I’m sure the majority of you know at least one of these Type AAA personalities. They are generally good souls, but often horribly, almost AAAnally retentive.Enter Mr. Howard F. Edwards. If you thought you knew the most obnoxious of them, this guy wins hands down. Not satisfied with waiting for the BVA to readjudicate a vacated and remanded decision from the Court, he goes up to the Fed. Cir. Judge and complains. It’s a short read, but long on headaches for Mr. Edwards. This guy seriously needs a law dog RFN.

http://www.uscourts.cavc.gov/documents/Order_Edwards_02-0937.pdf

 

Posted in Important CAVC/COVA Ruling | Tagged , | Leave a comment

CAVC–SJD– Hep. Ruling

Posted on September 27, 2011 by asknod

Here’s an interesting decision by a single judge(Greene) on the propriety of Mr. Curtis Scott’s  BVA decision denying SC for Hep. It seems the VARO, in its haste to deny him, overlooked two thirds of his claimed risk factors and instead glommed onto his jetgun assertions. When you fill out the risk factors questionnaire, it clearly lists high risk sexual activity and tattoos as presumptive risks. What, then, to make of the examiner’s apparent glossing over of these important facts and the ensuing denial? Thank God for the Court and their ability to analyze ALL the facts clearly. With out them, this Vet would have met the fate of thousands before him. Most Vets with claims before the Court are too young to remember or unaware that prior to the creation of the Court in 1989, an adverse BVA decision was the end of the road. With the declining quality and flawed jurisprudence being handed down there now, it is even more important that Vets properly appeal their cases to the Court to ensure they get justice.

     Mr. Scott also has been thrown a life ring by the Court. His remand allows him to submit more evidence to the Board in the first instance and sign a waiver  absolving the RO of another review. This might be an excellent time to seek a nexus to rebut the VA’s. He is being repped by one who is unarguably the best in the business-Virginia Girard-Brady.                                                                                                                                                                             At the risk of employing scatological humor (which I abhor), Ms. Virginia Girard-Brady poops ice cream and walks on water where Vets are concerned. She is a one-woman cyclone in the Court. Her win/loss record is phenomenal. Whether this is due to cherrypicking easy decisions is debatable.  I’m not a big fan of that hyphenated name business, but what the hey? Whatever it takes to win is okay with me. We see her name pop up frequently where hep. claims are concerned.
Posted in Important CAVC/COVA Ruling | Tagged , , | Leave a comment

CAVC– Shade v. Shinseki–New and material evidence

Posted on September 27, 2011 by asknod

Every once in a blue moon, the CAVC has to rebuke the VA Secretary and his gang of BVA and VARO lackeys for getting too aggressive in their rules interpretations. Like an Attention Deficit Disordered child, the CAVC panel is forced to make them take a time out. The Court rarely reverses decisions, preferring to set aside questionable rulings and remand them for a new decision. A decision reversed on Appeal is a declaration of gross judicial incompetence on the lower court’s ruling. Keeping in mind the Good Ol’ Boy nature of this network, a reversal is akin to your best buddy lying to you and then having his best friend, the VA Secretary, trying to help cover it up.

Mr. William (NMI) Shade has appealed a BVA ruling that was decidedly not in his favor to the CAVC (the Court). He attempted to reopen an old claim, as many of us do, and only had two of the three requirements needed to prove his claim. When he first filed in 2002, he had even less- just the proof that he had a disease in service and his testimony that he currently had it. VA gave him the wave off. In 06, he returns with two of the three, lacking only that all important nexus letter or some kind of proof to tie the claim to service. Keep in mind, Mr. Shade is simply trying to reopen the claim at this point. The VARO shoots him down based on the 38 C.F.R. § 3. 156(a) interpretation of “new and material “evidence. They claim he hasn’t presented any. He appeals this up the ladder to the BVA and they side with the VARO.

Mr. Shade wisely and timely appeals this to the Court and, lo and behold, he discovers to his joy, that the VA has not only screwed him, but potentially hundreds, perhaps thousands of other Vets in exactly the same manner for the last nine years.

To understand the magnitude of this decision, we’ll break it down into Dick and Jane Speak which is so much easier to read than Latin and a bunch of italics followed by numbers.

First of all, § 3.156(a) has been around since 1991, and perhaps earlier, in spirit if not in name. The Court was created in 1989 but had no precedent cases to refer back to other than civilian precedent. So the VA had to create a large body of VA rulings in as short a time as possible to cite for law purposes. Enter Colvin versus Derwinski in 1991. This cleared the air as to what was necessary to open a claim, reopen a claim and established baseline rules on what VA would permit and what they would deny re evidence. The Colvin test became a much used catch phrase as well as the “Bright line” rule. This is a throwback to the necessity to have some precedent when the Court was first inaugurated in 89. The Bright Line rule refers to a Federal Circuit Court decision in Chisolm v. Secretary of Human Health Services. In a nutshell, it posited that any new evidence introduced needed to produce the possibility that it would change the outcome. The Chisom decision was cited in Colvin and thus became an integral part of the Colvin Test. Therefore, if you wished to reopen a claim previously denied by the VARO or the BVA, you needed to produce 2 tangible things- evidence that was both new (never before submitted) and material to the claim (that bears directly on the claim and will aid in making a decision). The bright line rule created a third hurdle in addition to the first two:

The Court reasoned that this test was appropriate because, without its qualification, it would be possible for evidence to satisfy the criteria articulated in the regulation yet be of limited weight and insufficient probative value to warrant reopening and readjudication. Colvin thus created a test whereby newly submitted evidence must be determined to be new and material but also present a reasonable possibility of changing the outcome. (This from Mr. Shade’s decision).

Seven years later the Fed. Circuit shot down Colvin and instituted the Hodge ruling which is what we had until  2001:

The Hodge court stated that nothing more than the language of the regulation should be applied when determining whether new and material evidence has been submitted. The Federal Circuit noted that the regulation imposed a lower burden to reopen than the Colvin test, and specifically described the Colvin test as having “imposed on veterans a requirement inconsistent with the general character of the underlying statutory scheme for awarding veterans’ benefits,” which is “strongly and uniquely pro-claimant.”  The Hodge decision thus invalidated the Colvin test while acknowledging that the application of the appropriate standard is the responsibility of the Board or this Court in the first instance. (from Mr. Shade’s decision)

Everything settled down for a while. Vets were still required to present a well grounded claim (determined, of course, by VA) until the enactment of the Veterans Claims Assistance Act (VCAA):

The VCAA was intended to “reaffirm and clarify the duty of the [Secretary] to assist a claimant for benefits under laws administered by the Secretary, and for other purposes.” One of the specifically stated purposes of the act was to remove the requirement that a claimant submit a well-grounded claim before the Secretary’s duty to assist would attach. Following passage of the VCAA, VA proposed to amend § 3.156(a) to its present form. 66 Fed. Reg. 17834-01 (April 4, 2001) (stating that the purpose of the amendment to VA regulations was to “implement the provisions of the [VCAA]”).

The VCAA did move the goal posts forward for the Vet, but the Vet was still required to provide the three Caluza elements (current disease, disease in service, and a nexus letter to tie the two together.)

VA promptly revised  § 3.156(a) to comply (in the VA Secretary’s mind anyway) with the tenets of the New VCAA:

One stated purpose of the VCAA was to lower the bar for claimants attempting to avail themselves of the Secretary’s duty to assist. During VA’s rulemaking, the Secretary responded to several commenters who expressed concern over use of the words “must raise a reasonable possibility of substantiating the claim.” There, the Secretary responded: “With respect to other claims for benefits, the VCAA provides that VA assistance is required unless there is no reasonable possibility that this assistance would aid in substantiating the claim. We believe it is fair and reasonable to apply the same standard–thatthere be a reasonable possibility that VA assistance would help substantiate the claim–in determining whether a claim is to be reopened, triggering VA’s full duty to assist by providing a VA examination or obtaining a medical opinion.” 66 Fed. Reg. at 45629 (emphasis added). Thus, VA expressed its intent to use words substantially similar to those found in the VCAA as the “same standard” for the words found in the revision to § 3.156(a). However, it is clear to the Court that VA’s use of the language in § 3.156(a) to further define “new and material evidence” is capable of being interpreted in a manner that had the opposite of the pro-veteran result that the use of the similar language has in the VCAA. As previously noted, the purpose of this regulation is to explain what kind of evidence will qualify as “new and material.” There are three operative sentences in the current version of § 3.156(a). One sentence discusses only new evidence and another sentence discusses only material evidence. The regulation then concludes with a third sentence discussing new and material evidence that uses the phrase “reasonable possibility of substantiating the claim.” This language can be read to suggest that the evidence must affect the merits outcome of the claim. The language of the regulation indicates that newly submitted evidence must meet the new and material requirements as well as the general explanation laid out in the last sentence before a claim would be reopened. This language, however, must be read in light of 38 U.S.C. § 5108, which states that, in order to reopen a claim, submitted evidence must simply be new and material. Therefore, the words “raise a reasonable possibility of substantiating the claim” cannot impose some new requirement beyond that required by the statute without invoking an analysis of whether the Secretary had exceeded his rulemaking authority. However, such an analysis is not required in this case because the Secretary has, as noted above, provided an explanation of the language in the Federal Register. That explanation is not inconsistent with the underlying statute. However, it is necessary for the Court to emphasize that the phrase “raise a reasonable possibility of substantiating the claim” does not create a third element for new and material evidence. Rather, that phrase provides guidance for VA adjudicators in determining whether submitted evidence meets the new and material requirements.7 In particular, the immediately prior sentence discussing material evidence provides that, to be considered material, newly submitted evidence must pertain to “an unestablished fact necessary to substantiate the claim.” (from Mr. Shade’s decision)’

Which brings us to November 2nd, 2010 and this decision. The Court has decided that the VA Secretary is guilty of “mission creep” as they call it in the military. VA decided that they knew better what the rules should be and how they should be interpreted. Kind of like Congress deciding what kind of Health Care Bill we needed and then voting it in without even reading it. This Court said, in its conclusion, that the VA Secretary was wrong, wrong, wrong:

                                                     IV. CONCLUSION 

The Court having considered the parties’ briefs and the record on appeal, that portion of the Board’s September 9, 2008, decision finding that the private doctor’s report, which provided a current diagnosis of a skin condition, “does not relate to an unestablished fact necessary to substantiate this claim” is REVERSED. Further, the Board’s decision denying the appellant’s claim to reopen his claim for service connection for a skin disorder is REVERSED and the matter REMANDED for consideration on the merits.

What this means for us Vet munchkins is simple. We no longer have to arrive with a doctor’s nexus in our hands to open or reopen a claim with “new and material” evidence. A caveat is in order here. This also means that when you arrive without said nexus, that VA is free to supply their own “medical opinion” as they so often have in the past. To say VA’s medical opinions are probative, fair and balanced, and completely free of bias requires a stretching of the truth and an active imagination. Remember, VA examiners have linked alcoholism to HCV as a risk factor, too. Do yourself a favor and get a nexus before the party starts.

Nevertheless, this is good news for lazy VSOs everywhere. Now they won’t have to help you get a nexus. In fact, they can continue to fail to mention to you that you even need one and finally be in compliance with law. I’m sure they are all breathing a collective sigh of relief in between beers.

Ladies and gentlemen Vets, meet Mr. Shade…

http://www.uscourts.cavc.gov/documents/Shade_08-3548_published_opinion_11-2-2010.pdf

Posted in Important CAVC/COVA Ruling | Tagged , , | Leave a comment

CAVC–Rios v. Mansfield (2007)–Presumption of Regularity

Posted on September 27, 2011 by asknod

For years we have been telling Vets to mail important correspondence to the VA by Certified Mail, Return Receipt Requested (CM3R). There is a reason for this. I have personally had more than one service officer tell me this is a waste of time as VA can contest what you mailed to them. Not so. If you have recently received your SOC and are now filing a Form 9 Substantive Appeal and representing yourself pro se, this is an excellent method. The CAVC recognizes that you would not go to great lengths to mail the RO an 8 ½ X 11 glossy photo of your grandchild via CM3R at about the same time. It is far more likely that you blew the $6.45 on mailing the F-9. 

     That the VA received it is called the common law mailbox rule. This is an adjunct of its close relative, the presumption of regularity of the mail. If you can prove you mailed something via the USPS and you either have a witness who was with you when you mailed it, or you are really good friends (or even having an affair) with your local postmaster/mistress and they will testify in your behalf, then you can prove the common law method. If VA mails something to you (they almost never mail it CM3R) and they have your address correct, then it is assumed that you received it. So, basically Vets have to prove via receipt or testimony that they aren’t lying and VA doesn’t. Interesting concept, huh? We won’t go into why that law sucks today.

 

     Enter one Rafael G. Rios with a Notice of Appeal (NOA) to the CAVC who also mailed a copy of it to the Office of the VA General Counsel just to be safe.  He did all this through the Puerto Rico Public Advocate for Veterans Affairs (PRPAVA) who duly recorded the transactions in their books. Turns out this was a very smart move on Rafael’s part. The CAVC rules he didn’t send it, the VA Secretary jumps in and starts harping about how the PRPAVA once mailed an NOA to the wrong address in the past and that this is proof against Rafael’s assertion. Well, ladies and gentlemen, the CAVC promptly takes Mr. Mansfield aside and points out how he has the facts so confused that he should just shut up, sit down and start taking notes on what the Court is getting ready to tell him. Which he does. Smart move on Mr. Mansfield’s part.  He didn’t lose as much face this way. 

    All in all, this is a lovely decision that goes in the Veteran’s favor because Rafael was probably a Boy Scout and was prepared.  As we also mentioned, this is a perfect illustration of CYA. You, as the Vet, no matter how many times you hear the phrase “Veteran friendly environment”, should keep your wallet in your front pocket and sit in a corner so no one can get behind you. This is why this author and most of his moderator friends won their claims before the VA. We trusted no one to do it for us; we CM3Red everything we sent VA or hand delivered it and got a receipt; and we represented ourselves.  Which is certainly not to say that there aren’t some really super VSOs out there. Just because we haven’t met any yet doesn’t mean they don’t exist. Y’all believe in God, don’t you? I rest my case.

 

     So, without further ado, we present Rafael’s tete a tete with Mr. Mansfield…

 

http://www.uscourts.cavc.gov/documents/Rios_04-0354.pdf


     The part I like best is when Judge Kasold freely admits they actually lose things in the hallowed halls of the CAVC. Perish the thought! That stupidity should never happen at any level of the VA system-ever. With that admission of fact in mind, it is all the more reason to have proof of mailing to any VA entity. Forewarned is forearmed in this business. Trust us.

Posted in Important CAVC/COVA Ruling, Presumption of Regularity | Tagged , , | Leave a comment

CAVC– Bouton v. Peake (2008) Re: CUE

Posted on September 27, 2011 by asknod

    Here’s a decision that illustrates how CUE works. Keeping in mind that there are three ingredients needed to produce CUE, and that a manifestly different outcome would have ensued, read about Mr. John P. Bouton’s travails with VA Secretary James B. Peake.

http://www.uscourts.cavc.gov/documents/bouton-1494.pdf 

     Isn’t it entertaining how the Judges are polite as pie ,but manage to make the BVA judge look like a complete boob and the RO “ratings expert” appear about as intelligent as a sunflower?  This is a primary example of how flawed the lower echelons of VA justice are (or can be) and why it is imperative to see your claim through to the end. Oftimes, justice is delayed, but not denied in this system. If your facts and the record support it, you will win. Assuming, of course, there are no intercurrent causes that precipitated the injury/disease.

Posted in CUE, Important CAVC/COVA Ruling | Tagged , , | 1 Comment

CAVC–Fagre v.Peake (2008)–Appeal each and every claim

Posted on September 27, 2011 by asknod

 Here’s a wonderful type of decision that the Veteran will only see cited once or twice in a lifetime. Larry D. Fagre has appealed an adverse decision of the BVA. He asks for a “reconsideration” of his case and this is often done by the BVA in a panel format as opposed to a single judge decision. This also has to occur and be mailed to the proper address in D.C. within 120 sunrises and sunsets. Not one day more unless you can prove you were comatose in an ICU somewhere. The VA term for a Vet requesting an extension is referred to as equitable tolling. 

     What Mr. Fagre does not know is that the VA is preparing to pull a really neat hat trick on him. They interpret the rules and regulations a lot differently from you and me. My wife and the owner of this website will probably put a price on my head, but I go to sleep every night thankful that the VASEC isn’t a woman. Actually, that’s politically incorrect and a cheap shot. I apologize in advance. This time the VA Secretary chose to interpret the “reconsideration” clause as meaning you had to enumerate each and every item you were denied for that you wished to have the BVA Panel “reconsider”.  BVA is taking their lead from an old rule or decision (I’m too lazy to go look for it- trust me) where precedence dictated if you appealed an RO decision, you had to enumerate each issue you wished to appeal. And, God forbid, if they failed to rule on it and you didn’t catch it and file an NOD contesting it, they would claim it was dead because you didn’t complain. So, if the Vet is not savvy, legally speaking, then tough luck. You shoulda read the fine print, chump. 

     What Justices Kasold, Hagel, and Lance pronounce here  is a repudiation of the VA’s inherent propensity to promise the Vet they will make sure he is amply rewarded for his service. With a few prerequisites, qualifiers, and “except”s of course.  So our law school lesson today is list everything, every time, on every form and then VA cannot say “Yeah, well your Honor, we’re trying to give the poor Vet everything he’s entitled to, but he didn’t ASK for it specifically. The NOA (or NOD, Form 9, Answer to an SOC or SSOC) was SILENT for that subject so we interpreted that to mean he didn’t wish to appeal it. Therefore that issue is final. However, because we’re such swell guys and feel sorry for the chump, ahem, Veteran, we’ll reopen his case and take another look. Of course the effective date for financial compensation will be 2010, not 2001 when the Veteran failed to appeal the earlier decision.” 

     Get used to it. Be a Boy Scout and be prepared for this kind of treatment.  VA screws up 60% of what it does the first time and when the Court catches it, they sometimes make VA go back in time and “retrospectively” medically evaluate a Vet. Kind of like a CSI cold case reconstruction. But that is another fairy tale and not for discussion today. 

    Ladies and Gentlemen, please allow me to introduce you to poor Mr. Fagre, a true David against the behemoth VA Goliath. What you are about to read is in the nature of an ORDER from the CAVC, not a simple ruling, remand or vacatur.  In exalted legalspeak, this is akin to “Do not pass Go!. Do not collect $200. Comply with this or we’ll huff, and we’ll puff, and we’ll blow your house down.” 

http://www.uscourts.cavc.gov/documents/Fagre_07-1000_Panel_Final_.pdf

Posted in Important CAVC/COVA Ruling | Tagged , , | Leave a comment

CAVC–Barton v. Shinseki (2010)– SJD on Hep.

Posted on September 27, 2011 by asknod

This is one of those interesting reads that we love to post for you. In spite of the fact that it is a single judge ruling and has no precedence, it still is refreshing to see the judge lambaste the VLJ and the RO for their inherent stupidity regarding their adjudication skills.

Another thing the reader will find refreshing is the final realization by someone in authority that there were no tests available in 1972 to ascertain if one had Hep C. A CAVC judge has to explain this to a “ratings expert” trained in this art form. Additionally the judge has to finally ask the burning question we’ve all been waiting years to have answered. To wit, if a Vet smokes some left handed tobacco, or, perhaps has a “history” of a love affair with Jack Danials, that he somehow is more “at risk” of contracting HCV. The judge goes so far as to get in the examiner’s face and ask: “Where does it say that a Vet with a “racy lifestyle” that includes a few indiscretions without a raincoat on, is automatically at risk for HCV and therefore it is not service-connected?”.  This line of reasoning is circular. Remember, VA can say on Monday that sexual promiscuity has a very low risk percentage of transmitting HCV when you claim that as a risk factor, but on Tuesday the Vet probably contracted it from a wild, unprotected sexual lifestyle as evidenced by his venereal warts. And naturally, this all occurred after his time in service. How? Why it’s elementary VA logic, my dear reader. There was no report of venereal warts in his service medical records ergo he must have incurred them after service.

The Vet does have his work cut out for him. He is going to have to get off his duff and go farther afield to gather better internet articles in defense of his claim. The judge states as much, too. A decision on this will be interesting. I’m almost positive the VA Secretary will send this out for an IMO from the very best deniers at QTC. It will require the semantic policing by an expert English scholar as well as to get all the “not”s in the right places. When it is returned to the Court, the Vet very well may lose. If he does, I pray he asks for reconsideration by a panel and it breaks new legal ground.  Mr. Wayne R. Barton may become our new poster child if he pulls this one off. We certainly wish him all the luck in the world. He’s going to need it.

http://search.uscourts.cavc.gov/isysquery/372478c4-9864-41d5-b3a8-03021ef6e2a6/1/doc/

Ruh-oh, Rorge. Trouble in paradise. Pretty nice piece of work though, huh? Now, why can’t we get this cutting edge analysis at the BVA or RO level? Why does it always have to get to the Supreme frigging Court before someone acknowledges that the Emperor is naked and has been had by the tailor? Hello? McFly??

Posted in Important CAVC/COVA Ruling | Tagged , , | Leave a comment

CAVC–Mattern v. West (1999)–Holy Grail of Hepatitis Precedent

Posted on September 27, 2011 by asknod

This decision, decided in 1999, is something we have been searching for at AskNOD for quite some time. To wit, a decision on Hepatitis (and by extension, Hepatocellular Carcinoma) that set precedent. As you are aware, to set a precedent (or to sit a president for all of you from Chicago) requires a panel or en banc decision of the CAVC. A panel decision consists of 3 judges. An en banc decision is one decided by the whole Court- i.e. all seven judges.

While this decision is 11 years old, it in no way is out of date for judicial purposes. The meat of this decision is that the mere presence of the Vet in Southeast Asia was conducive to his contracting liver cancer (from Hepatitis). He had no seminal moment of infection, no medical records pointing to hospitalization, and nothing untoward that would set off alarms with his doctors. He simply fell ill about 40 or so years after service and subsequently died.  His wife filed for DIC and appealed all the way to the Court. She also did a very credible job of backing up her claims not only with nexus opinions from the Vet’s treating physicians, but with coherent, well posited theses on the prevalence of Hepatitis infections and HCC in indigenous SEA populations. This avenue of attack has never been used by Vets since except in unsubstantiated claims to that effect. This lady did her homework or else her attorney did. I suspect the former.

In any case, I feel it behooves the reader or any Vet considering filing to investigate this disease vector. Obviously, if the Court is willing to recognize it as a viable risk factor, then Vets should be utilizing it in their defense and citing the decision as established precedent. Any evidence you can submit in favor of your claim has to be rebutted or addressed by the RO and the BVA. If they consider this information and still deny you, you have even more ammunition with which to build your case. VA is not permitted to ignore CAVC precedent-setting cases such as this. Of further note, remember that the CAVC is NOT a division of the VA. They are a completely separate entity and often at odds with the VA Secretary and his minions. Witness this case and the ensuing favorable decision:

http://search.uscourts.cavc.gov/isysquery/3574ef27-1230-470c-bd11-19ff6e2dffbb/8/doc/

Posted in Important CAVC/COVA Ruling | Tagged , , , | Leave a comment