CAVC- -Breedlove v. Shinseki– Assuming the claim of deceased

Every once in a while Congress enacts a law that affects Veterans. The laws are not always helpful but this one is priceless.  38 U.S.C. 5121A is a law enacted in 2008 that allows a spouse or other legitimate heir to take over a Vet’s claim in the event of his death. Prior to this, if a Vet passed away while he had a claim in progress or an appeal in the works, his claim died with him and his spouse had to start all over again. This was pointless and finally our congressmen and Senators passed  legislation that streamlines this process. Henceforth, a spouse or eligible dependant who seeks DIC or accrued benefits can assume the claim and be recognized by the VA as being legitimate without having to start over at square one.As usual, the CAVC has to get involved, analyze the legislation and decide whether it is legit. They have a right to do this and in this case, they find themselves in a pissing match with the VASEC. He is not very happy with the rule and seeks to limit the scope of it. Sorry, General. Not going to happen. The Gods on Mt. Olympus have spoken and you lose on this one.

http://www.uscourts.cavc.gov/documents/Breedlove_08-3059_published_order_8-10-2010.pdf

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CAVC–Hamer v. Shinseki–For all the TDIU

imagesThis is an interesting decision concerning TDIU that just came out on the 27th of July. It concerns a certain Mr. Hamer who had disabilities that rendered him virtually totally disabled in 1978, just 4 short years after his USAF service. He remained on TDIU until 1985, when either he admitted to, or VA discovered he’d been working. Consequently his TDIU was unprotected and terminated. He didn’t appeal, which, in essence, was an admission that he accepted the VA’s decision.

He returned in 2000 and requested TDIU again – effective on the date of his termination in 1985 based on Clear and Unmistakable Error (CUE) in that his rating was protected after five  or more years (from 1978 to 1985). Obviously Mr. Hamer had been dabbling in Veteran’s law in his spare time or one of his buddies down at the VFW bar was. The Gentle Reader can probably see where this is heading by now. As Mr. Hamer’s vocabulary is Latin challenged, he is (unbeknownst to him) heading for what he probably feels is a horrible miscarriage of Justice. The good news is he can appeal this decision to the Federal Circuit court. Pretend you’re a sheep and repeat after me—BA-A-A-AD idea.

If the RO denial in 2000 was merely interesting, 2007 is where it really became humorous. VA knew it screwed up back in 1985.  They sent out the private eyes and reviewed his Social Security earnings, medical records etc. Mr. Hamer was under the microscope now. They discovered he worked from 1990 to 2000 without any health issues. So, in the spirit of delay and deny, the RO 86ed the claim and booted it up to the BVA.  The VLJ tossed out the denial and agreed with him that, lo and behold, there was CUE in the November 1985 decision and promptly granted him TDIU from November 1985 up to when he started the new job in 1990.  However, they then denied him any TDIU during the decade he worked, from 1990 to 2000. Then they granted him TDIU again from 2000 to the present (2010). This was the cheapest way out for them and they artfully dodged the bullet. In essence, they threw out the old decision that he didn’t appeal in 1985, then decided to turn it into a staged rating (aka a Fenderson rating) with different ratings for different periods of time from 1985 to 2010. They could legally do this because, by granting the CUE, they discarded the original decision and substituted a brand new decision. Staged ratings, as a matter of law, are only permitted on original claims for benefits. The VA lawyers must have all been patting each other on the back and saying it was the most brilliant stroke of jurisprudence since King Solomon’s baby dilemma. I’m sure several, including the VLJ, got a nice bonus that year.

But no, this didn’t sit well with Mr. Hamer. With some poor legal assistance (from the bar?), he found himself standing in front of the CAVC with a bogus argument for why he was screwed out of all those benefits during that decade in the 90s. It’s an interesting argument, but you can see the VA Secretary’s fingerprints all over this one.  He tried to figure out how to make the mistake as inexpensive as possible. This is what caused them to investigate him so thoroughly, and investigate him they did. He quite obviously was defending himself pro se right up to the CAVC and then handed the reins over to some law dog. The VASEC made the VA judgment proof on this one when he instructed the BVA to grant CUE. They rightly concluded this case was headed up to the Court.

The CAVC is the Veteran’s best friend when it comes to getting a fair shake. They are wholly independent of the VA and quite frequently get into knock down, drag out fights with the VASEC. Nevertheless, if your legal theory is as solid as a screen door in a submarine, be prepared for a disappointing ending. The VASEC saw the writing on the wall and put the lipstick on the pig. All the CAVC could do was to agree that he had done no wrong, which they did.

Herewith, meet Mr. Steven W. Hamer and his erstwhile law dog and loyal sidekick, Kenneth M. Carpenter, Esq. In addition, please allow me to also introduce esteemed Judges Hagel, Moorman and Lance of the Court of Appeals for Veterans Claims (CAVC).

http://www.uscourts.cavc.gov/documents/Hamer_07-3181_published_opinion_July_27.pdf

This is part 1 of a three (at the moment) part judicial adventure. Here’s chapter 2 at the Fed. Circus.

https://asknod.wordpress.com/2011/11/08/fed-cir-hamer-v-shinseki-hes-baaack/

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CAVC–Vigil v.Peake(2008) re:38 CFR § 3.156(c)

 vetcourtappealspromoMost Vets have been told that they cannot reopen or revisit old claims that were unappealed. This is true-unless the VARO committed some grave procedural error and did not follow the letter of the law. Additionally, if there were files or records that were available to the VA that were never looked at while making the decision, that too, would be grounds for CUE(clear and unmistakable error). Winning a CUE claim is really difficult as there are many rules and regulations affecting it that are too numerous to mention here. If anyone is terribly interested in it, I will send you to the site that informs you of what is required. There are also several good CAVC decisions too that are illuminating to see how the Court actually rules on these cases.

The purpose of this message, however,  is a different avenue for attacking the finality of a prior, unappealed decision at the VARO or BVA level. The controlling regulation is 38 C.F.R. § 3.156(c). For clarification I will print it here:

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. [recently overturned]

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. [Fenderson staged rating]

See also 38 U.S.C. 5110

Vigil v. Peake was the first instance of a Vet claiming this defense at the Court. He was seeking an earlier effective date for his PTSD but the decision affects any claim regardless of the injury/disease. If you, the Vet, find any service medical records (SMRs) or old TDY orders that were never used in denying your claim, then you can use these to reopen your claim. Remember that they have to be “relevant service department records”. Old photos of you and your buddies standing over a pile of dead zipperheads with a jungle in the background do not constitute useful evidence for your claim. A lot of times, records don’t get filed in your folder that you (and VA) get from the NPRS Center in St. Louis. If you kept any old records of your TDYs or PCS movements, then they are considered official records. I have discovered that NO TDY records were ever included in anyone’s files. Medical records get scattered all over the place and never make it from Battalion Aid Stations back to your SMRs. This is another reason to request all your SMRs in addition to all military records when you file a SF 180 for your records. When I asked for my SMRs in 2007, I was informed that the only set had been sent to the VARO where I filed a claim in 89. Luckily, I got them back when I asked for an unredacted copy of my C-file. Winning your claim with VA is often a game of “Prove it”. VA will contend (often without looking) that there is no evidence to back up a claim you are making. Having your records is half the battle. Having records that aren’t on file in your mil/med. folders may mean the difference of winning or losing or getting your claim paid back to when you first filed it. Most Vets are not too savvy on how this appeals process works and neither are the idiots who you go to for help. VSOs constantly fail to appeal things for you until its too late. I see it happen quite frequently.

Here is a link to view the Vigil Decision:

http://www.uscourts.cavc.gov/documents/Vigil_05-3246.pdf

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CAVC– Vazquez-Flores v. Peake

As mentioned in various other places on this site, are descriptions of this decision. Up to this point, Vets were afforded a minimal amount of discussion on the effects of the disease/injury on their life and a decision was rendered that was usually grossly unfair and granted the veteran little as he had no incentive to go see a doctor and have “official” medical records record the downward spiral of his health and income. Vets don’t think like that. They pull back their perimeters, put their assets on their flanks for enfilading fire, conserve their ammo and grenades. They do not rush to the doctor and say “Please, sir. Record my ills as I will be applying to the VA in several years for SC.” At least I didn’t. Maybe I’m an anomaly. I retreated for 14 years and boy did I shrink my perimeter. When I refiled in 07, I had no assets to mention and no medrecs of my disease to prove much more than my liver had evaporated when I wasn’t looking. I expect there are many more out there like me. Therefore I take great pleasure in bringing you a decision from last year that gives the Vet the ability via lay testimony to introduce that which is intangible. One should not be forced to live in abject poverty and hold one’s hand out to the VA with a pitiful “Please ,sir. May I have another month’s worth of benefits?” or have to defend your need for the same. I will abbreviate this somewhat and try to concentrate on the high points of the decision. Vets can always go to the CAVC site and avail themselves of the unadulterated version. Keep in mind one thing here. This decision is essentially a Vet’s attempt to get a higher rating for his illness. The focus of the decision is on what was necessary to prove it.  Vasquez lowered the bar in the Vet’s favor.

http://search.uscourts.cavc.gov/isysquery/318081d3-235b-4bfa-baed-5b26edf61a61/1/doc/

Regardless of what you must think of the VA system in general, no Vet can say that the CAVC does not look out for his best interests. They have consistently righted wrongs that the VASEC tried to foist off on us under the guise of wise jurisprudence. The VASEC is not an attorney at law. His legal experience often involves no more than an occasional appearance in a traffic court for a speeding ticket. His attempts to give Vets imperfect justice or worse end up at the CAVC if the Vet has the stamina to protest. Most don’t. Let us now thank Mr. Vazquez-Flores for having the guts to go to the wall for all of us. Well done, Angel and Vets everywhere will thank you for decades to come.

———————————————————————

 6/05/09

Hello !
my name is Angel  Vazquez I’m the son of Mr. Angel Vazquez-Flores,we are still  fighting with the VA and the Supreme Court level here in DC. I will let you know any updates and if you need any infromation let me know.

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CAVC —2008 Hepatitis Remand

The CAVC only heard 13 hepatitis cases during the 2008 calender year. These were all Single Judge rulings and, as such, do not constitute precedent-setting opinions. However, they do show how any appeal you may attempt will be met. This one is priceless as it rips apart the VLJ at the BVA who adjudicated it. It revealed sloppy decision arguments, poor bases for rejecting Dr. Bash’s nexus, and a rotten attitude towards the Veteran. Read on…

http://search.uscourts.cavc.gov/isysquery/9d6286c0-01a4-45f0-89d2-d35f3e0e927c/1/doc/

A hint here. In order to view it naturally like a normal decision,  click on the “download” in the upper left next to “view”.

Don’t you love it when someone sees an injustice and rights it? VASEC Peake’s eyes probably bugged out when he read this Remand. I suspect it will be repeated again and again in the future on these types of claims. “Unconvincing”- my ass. Sweet. See you in D.C. at the BVA Courthouse again, Peake. Or will it be Shinseki? Hell, Shinseki might be smart enough to call off his law dogs on this one. I suspect Mr. Paulson may have already won and doesn’t even know it yet.

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BVA- Increased Rating Claim

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

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BVA–What’s in the water in Oakland, Calif.?

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

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BVA- Wrong address? Not final.

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.

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BVA– VSO flushes Vet’s Claim

Here’s another one of those decisions that makes your hair stand on end- and it isn’t even Halloween yet. Nope. Not static electricity either.

When you approach a VSO to represent you, you have to assume they are well versed in VA law. Right? I mean, that’s what they do unless they have a Bar/restaurant on site. In that case, justice can get pretty slippery. Witness the poor Vet who gets AMLEG (American Legion ) to represent him on a claim for HCV and HBV. Things start going south before he even gets out of the gate. He’s a Vietnam Vet w/ DM 2 so he’s getting probably 20% for a rating. The rep writes up the claim such that the HCV is claimed SECONDARY to the DM2 or, in the alternative, related to AO exposure. George Jetson’s dog Astro would be saying “Ruh-Oh, Rorge!” about now. For the uninformed, there is a specific list of arcane diseases that are considered “presumptive” as to AO. HCV is not one of them. Any claim for Hep C , secondary to DM2 or AO,  is dead on arrival. Period. Zip. Zero. Nada.  Mr. Service Officer, he of the AMLEG persuasion, would know this if he doesn’t conduct his business in the bar. Winning a claim for HCV requires many things to happen. Proper preparation is paramount for this or any other type of disease /injury. Going off half cocked, or worse yet, failing to load the gun, is inexcusable.

One risk factor for HCV is unprotected sex, high risk sexual practices or having multiple partners. VA actually considers this as a very low percentage of risk- in the neighborhood of 5-10 % while you were in service. Proof of this is required and evidence such as NGU, clap, gonorrhea, or genital warts in your service medical records would be excellent proof— if you get a doctor to write a nexus to that effect. However, if you engage in any of these practices after service, that same risk for HCV via the diseases mentioned, all of a sudden climbs to 51%– as in, “It is more likely than less likely that the Veteran contracted his HCV following service due to unsafe sexual practices”.

The Vet in the following case lost this before the C file ever leftNew Orleans. He certainly didn’t do himself any favors when he denied any contact with prostitutes in Cholon district. You don’t get the clap from dirty toilet seats. And besides, getting hosed by a lady of the night with an expired VD card is not willful misconduct. With a proper nexus letter from a doctor, arranged for by Mr. Knowledgeable VSO Service Officer, this Vet could have won this hands down. He has two different “penile events” that would give him presumptive risk for HCV. All this flies over the head of Mr. Knowitall.

One last observation. The Vet has had the Hep so long, his liver crapped out and he had to get a retread. It appears that one was defective as well. Rotten luck. Everything about this case is rotten. We cannot reiterate this enough to Vets preparing to file a claim. Ask questions. Get involved. Get a second and then a third opinion. If you can afford it, get a knowledgeable attorney that specializes in VA law exclusively. Your claim depends on it.

http://www4.va.gov/vetapp10/files4/1030693.txt

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BVA- HCV, not HBV

We hope this never happens to you. Imagine winning your fight for a Hepatitis rating in 84, Then imagine just normal VA checkups over the years until 2000 and a test for HCV. Here, VA does everything in their power short of cutting the poor Vet off until he finds a doctor to write a nexus saying he probably got B&C at the same time. this is exactly whhat happened to me in 70. I came down with “Hep” (no dx on type) 89 days after a transfusion for a GSW. Medrecs were left in “that neutral country just to the north ofThailand” that we were never in. Fast forward 23 years and VA turned me down cold. Reopened the claim in 07 and bingo- SC.

     VA would have loved to cut this Vet off and rescind his HBV rating if they could have. So, if you have a rating for HBV and actually have active, chronic HCV, be prepared to have VA reopen your case and try to find a reason for denial of compensation. It happens more frequently than you think.

http://www4.va.gov/vetapp10/files1/1008604.txt

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