Veterans Claims Help

Here is a classic example of what happens when the gun goes off half-cocked. Nothing happens. In this case, the claim dies on the operating table for lack of merit. Had this Veteran read the Diagnostic Code in Part 4.114 for digestive diseases, he would have instantly realized his case had a hole in it. What’s worse is that he had a Veterans Service Organization (National Association of County Veterans Service Officers) who apparently was equally ignorant of the rules and regulations contained in Chapter 38, Code of Federal Regulations. They proceeded full bore even after the Regional Office denied this. To the uninitiated, when you receive a denial it clearly lists the reasons for the decision. Based on that, the VSO proceeded to appeal with no more ammunition. The Vet’s viral count was undetectible. By his own admission, he stated his symptoms were no more than mildly debilitating. He even evinced a knowledge of the VA laws concerning this. Witness the 3rd paragraph:

     The Veteran’s actions are also indicative of his actual knowledge  of the requirements for substantiating his increased rating  claim. The Veteran reported his current symptoms to VA treatment  provider and VA examiners and presented testimony of his  currently symptoms during the June 2009 Travel Board hearing.   Based on this evidence, the Board is satisfied that the Veteran  had actual knowledge of what was necessary to substantiate his  increased rating claim.  SeeDaltonv. Nicholson, 21 Vet. App.  23, 30-31 (2007) (actual knowledge is established by statements  or actions by the claimant or the claimant’s representative that  demonstrate an awareness of what is necessary to substantiate a  claim).

This is what frightens us at Ask Nod whenever we read decisions involving a Vet represented by a VSO. One would expect an inept defense from a Vet representing himself. How then to explain a National organization sending this fellow to the chopping block with no effective counsel.

We have heard many Vets tell us they met their Service Officer for the first time an hour or so before the Vet’s hearing. So much for justice-free or otherwise.

http://www4.va.gov/vetapp10/files4/1034418.txt

Is there no end to the lengths VA examiners will go in order to deny a Vet’s claim? We here at AskNod have seen more denials than we care to admit, but some jump out at you and scream “Can you believe this?”

This decision by a VLJ in D.C. at least rights the apple cart and gives the Vet SC for hep. However, the rationale for the RO denial is like something out of the Twilight Zone. The VA examiner is grasping at anything he can cling to in order to deny this gentleman. This, from the decision:

“The examiner noted that the Veteran’s only risk factors were exposures to shared razors and tattooing.  He then concluded that it is less likely than not that hepatitis C is related to service because there is no evidence of any exposure in the military. The examiner noted that the tattoo parlor the Veteran used had subsequently closed down.  He suggested that the ink used on the Veteran’s tattoo was not sterilized and that his wife, who was tattooed the same day, did not contract hepatitis probably because a different bottle of ink was used.  He also suggested that the Veteran’s “other exposures” were important etiologic factors. The examiner dismissed the letters from K.B. and H.C. as “sheer speculation.”  He stated that K.B.’s letters were particularly “suspect” because she initially stated that infection from shared razors was possible, and later the same day made a “dramatic change” by amending the letter to read “highly likely.”  He asserted that “doctors do not write two different opinion letters the same day.”  He suggested that K.B. changed her opinion because she had been asked to write a stronger letter in favor of the Veteran, and he said that both letters should therefore be discounted.”

Keep in mind that the Veteran listed 2 things as risk factors: Shared razors in service and a tattoo in 1996 with a sterilized needle. Now how in the Sam Hill did this examiner come up with the ink, “other exposures” and doctors who never write more than one nexus letter per day per patient? If that isn’t desperation, we don’t know what is. So, fellow Veterans, be advised that there is absolutely no depth that VA will not descend to deny your claim. The examiner even “opined” that said tattoo parlor was not in business anymore- indicating that someone with “boots on the ground” went out and determined this. Our guess is the implication that the parlor was out of business was a deciding factor that the ink was suspect.

To the VA examiners in Oakland, California we say: Read it and weep. And don’t forget to renew you membership in the Flat Earth Society next year.

http://www4.va.gov/vetapp10/files3/1028955.txt

Veterans everywhere should be heartened by this decision. This Vet, from Louisville,Kentucky, gets a thumbs up decision on his earlier effective date in spite of the RO’s incessant efforts to quash it. The Vet sells his house and moves. He informs VA of his new address to no avail. Some chowderhead at the RO with an impaired IQ pulls up the old address and mails his SOC for denial of HCV. When he inquires (after a period of time) about the claim, the RO says “You lose”. Failure to file Form 9. Do not pass Go!. But VA does allow as how they’ll reopen it as a new claim. Vet wins and then gets down to the serious business of getting justice for the address fiasco. The RO isn’t buying this, does it’s ostrich imitation and forces him up to the BVA in D.C.

Again, this is a classic teaching moment. Most denials with merit win in D.C. Just because you are subject to inertia, poor logic analysis, and general ineptitude resulting in denied claims at the AOJ doesn’t condemn you chances on Appeal. Several of our moderators can tell you from personal experience that they won at the appellate level because BVA Judges have college degrees and good deductive and inductive logic circuits.

Say I asked you if you would tell me where you were born. A deductive person would surmise I wanted to know what state or city. An inductively oriented person would realize I was asking if he would or wouldn’t tell me (a yes or no answer) where. Judicially speaking, We want to have our cases heard by one with both capabilities. RO “ratings experts” or “VA examiners” work from a book of rules with no flexibility. If A equals B, then proceed to C. If A is less than B, then go to D for deny. Absence of logic and common sense breed poor legal decisions. Vets will be condemned by this legal tangle until the quality and training of our raters increases. With that in mind, be prepared to go to D.C. and win there.

http://www4.va.gov/vetapp10/files3/1029835.txt

Occam’s razor dictates that the simplest explanation is often the most logical based on the known facts. The RO refused to acknowledge that to the Vet’s detriment. It cost him several more years waiting for litigation. How frustrating and avoidable. It’s unfortunate we can’t penalize these miscreants with a monetary fine for failing to use their brainbox.