Veterans Claims Help

Don’t tell me there is no such thing as luck. Read this piece of work. The VA examiner made the mistake of not slamming the door in the Veteran’s face with one of those “It’s at least as not likely as not least likely that the Veteran’s hepatitis is related to his service”. Dumbo left that box blank. The VLJ simply said Vet wins because VA didn’t say that that he loses(benefit of the DOUBT and the Vet’s best friend). This is not typical of decisions. Of course, that Army Commendation Medal went a long way in the Vet’s favor. Americans will only allow you to abuse Vets just so much. VA knows this. With that said,you, as a Vet would hope you were assigned this Examiner and this Judge. It’s a perfect recipe for a win. As I also mentioned, it’s an aberration. Too bad we all don’t get this treatment.

http://www.va.gov/vetapp08/Files4/0826063.txt

This is quite possibly one of the worst examples of how far the VARO “Examiners” will go to deny a Vet’s claim in spite of all the evidence to the contrary.He was then turned down at the BVA after a 3 year wait and appealed it to the CAVC. They overruled the BVA and remanded it in 2007. Obviously the Indianapolis VARO denied it again and it went back up to the BVA a second time. Here is the win after 6 long years. This also illustrates another pet theory of mine. If you are a constant nag, eventually they give you what you want if there’s some meat to it.

http://www.va.gov/vetapp08/Files4/0833161.txt

Let’s summarize this decision. Keep in mind all this “evidence” was available to 1) the Indianapolis VARO raters in 2002; 2) the BVA VLJ Cheryl Mason (above) in 2003 and 2005;3) the CAVC(who got it right)in 2007; and finally back up again from the Indianapolis VARO Idiots to VLJ Mason for a final stab at Justice in October of this year! She finally got the facts straight and granted this VET SC for his Hep. As you can see by reading it, the VHA “Expert” tried everything it his book of tricks and even resorted to casting the bones, reading tea leaves and the dreaded Oui Jui Board in an attempt to deny the poor man. I love the sentence where the “physician” opines that the Veteran’s service in Ethiopia was not a determinative factor in the contraction of this disease. The highpoint has to be that they tried to alternately say the Vet: 1) had hep before he entered service; and 2)if that theory didn’t float that even though he had Hep. not once, but twice, while in service, he somehow got it from IVDU or nose candy AFTER service. Hello? Anybody home? This really makes you wonder how this doctor gets his underwear on facing the right way every morning(Yellow in front, Brown in back?-Good to go).
After all the analysis and opining, the thing that saved this claim was that the Vet had only one kind of Hepatitis- that being C. Had he contracted A or B, I suspect the VHA doc. would have come out with yet another theory to dispel any chance of SC. Two insults to our intelligence are also apparent. VA is constantly reminding us that we were of sound mind and body when we were accepted into service. Here they tried to imply the Vet wasn’t. Secondly, The VLJ finally offers the “Benefit of the Doubt Theory” as being the deciding factor in the Vet’s favor. What an absolute crock of dog doo. I will grant you that this Gentleman was no saint and has vast quantities of negative information. With that said, the VA could not hang a denial on this man because the truth was that he incurred it in service-period. This decision has some salient teaching moments for all of you Vets preparing to do battle w/ VA. They will stop at nothing to besmirch your testimony and your good name. Be careful when you are in Indian Country.

This is the first claim submitted with the HCV included as the type of Hepatitis. Numerous claims have been submitted for SC over the years, but this is unique in that the Veteran specifically mentions the “C” variant. Up to this filing, the words Chronic, persistent, NANB, Non-A, Non-B, infectious, viral, and other non specific terms involving Hepatitis have been used. There was another appeal of a 1990 filing asking for an increase from 10 to 30% that mentions the “C”, but the original rating was for Hepatitis without the “C”. It’s nice to note that this case won. I wish it had been a harbinger for many more of the same. Our odds of winning have gone up dramatically since 1992. The win/loss ratio then was less than 10/100. Veterans’ success rates have gradually crept up to 16/100, but every case and outcome is unique. As we progress into 2009, it would be nice to see that increase further. Hopefully, Veterans can pick up useful information from these legal briefs and win their cases with careful preparation.

http://www.va.gov/vetapp92/files3/9228530.txt

One last note to Veterans. VA used to have a minimum of 3 VLJs on each decision and sometimes a panel of 5 for an important ruling. As you are probably aware, all decisions now are conducted and judged by one VLJ. I think this is grossly unfair. Imagine a decision rendered by only one judge at the Supreme Court level. The VET’S success, to some degree, depends on the bias the VLJ might have towards the VET if he has any “negative occurances” in his military or medical records(i.e. IVDU, alcoholism, etc.). Of course, we shouldn’t complain too loudly or the next thing will be decisions being issued from India.

This Veteran will attempt to go back and revisit his claim of 1978 which he filed within one year of when he left the military. The DRO decision of 2003 granting SC is unique in that VA granted his 1978 claim in spite of the fact that he never appealed that old decision. From a rating standpoint, it makes for interesting reading. The Fenderson v. West (1999) CAVC case made an important distinction between a claim for an initial rating and a claim for an increased rating. Read on

http://www.va.gov/vetapp08/Files1/0805499.txt

If this had been me, I would have filed with the CAVC. I have not seen this up there yet which is not to say the VET may never do so. When you are finally successful in your claim, you may ask for an effective date up to one year prior to your filing. This is covered by 38 CFR 3.400. If you filed in, say 1994, and lost-then refiled in 2007 and won, you can request a retroactive “staged rating” that encompasses the time in between. You got sicker, so it stands to reason there was a geometric progression in the symptoms of your disease. The trick is having documented evidence of the progression of the illness. If you never went back to the Doc. after 1994, and then go in in 2007 with raging jaundice, LFT’s off the map,prove your case and get the SC, they will grant the rating(and like this case, may go back to 77). But if you have no LFTs on record in between, then its tough luck,bubba. A true Fenderson Staged Rating would be a gradual increase in your % for the hep. from 94 to 07. Diagnostic Code(DC)7345 was in effect for all flavors of hep until 2001, when they started DC7354(Hep C). When you do get the SC, you only have one opportunity to exercise this right to Fenderson. If you accept your rating without an appeal, you have agreed with it. End of story and here’s your rating %. However, if you file a NOD after you get SC and say “Not so fast, homie. I want the Fenderson staged rating”. they will give it to you. Now, if you had that 94 filing, and they finally give the 07 SC, you could file an NOD asking for Fenderson back to 94. If you can corroborate your illness back to then, they may go back and rate from 94.They did it here but they screwed the VET by issuing a 0% from 77, which is the same as an empty lollypop stick. VA is famous for that. If they don’t, it’s time to file the Form 9 and send it up the ladder. Filing a NOD to protest an initial % rating is a whole lot different than filing a claim for an increase in compensation as this decision shows. Be careful what you agree to with these guys. Do not take VA’s advice on your claim. That would be like accepting the advice of the lawyer who represents that joker who rear ended you(“Excuse me,sir.Would you just sign this release of liability for me so we don’t have to pay you a Short Ton of $?” Not good. I always appeal now for more on everything to get it in front of them that I am not happy with the decision, the effective date, and the rating %. Do your homework on this stuff. You only get one shot at a disagreement with your decision.No appeal = thank you, sir and goodbye. An appeal does not require a lot of work. If you just appeal and don’t even put up a good defense(or no defense), it still represents an appeal and protects your right to revisit the denial any time in the future when you get deathly ill and have lots of time to tickle the keyboard. One thing I noticed in this decision that has recently been overruled is that a VET now can show by financial records that he has been harmed. Used to be just the medrecs, but the CAVC now says you can prove it w/ SSA records, too. Gentlemen, start your computers! Signed- Mr. Nod.

This claim is here for two reasons. This Vet needs to appeal this and get an appeal started to establish his effective date of May, 2002. He should have gotten a rating for 0% as they clearly state he had hep in service and there is no evidence of A or B serology. When his world comes crashing down in 5-10-20 years, he is going to be behind the 8 ball and have to start the claim from scratch. So, if there are any like minded Vets in Connecticut who belong to or are in regular touch with the AMERICAN LEGION, I would hope they would extend some effort to try to identify this Vet and inform him that he got the Bum’s Rush(as usual)from Uncle Victor. He may not be sick now, but there are no guarantees. The VET has until February 7, 2009 to object to this or he can try to fix it when he’s sick later. If you can help, I’m sure he would appreciate it. It shouldn’t be impossible to locate this guy. If you succeed, God Bless you. Or, in the alternative, God Bless you anyway, just on general principles. Asking God’s blessing is still one of those things that is priceless and hasn’t been taxed yet. Yet.

http://www.va.gov/vetapp08/Files1/0803421.txt

I love this appeal. The poor Vet went into this system without a clue as what he was getting into. Fortunately, he had a good relationship with the 2 doctors @ Landstuhl and was able to obtain several nexi. VA, on the other hand, thought they had this in the bag with a negative nexus provided free-no charge. It blew up in VA’s face when this Vet pulled out the stops and got his own evidence. As Vets, you were taught how to fight, how to think on your own two feet when left to your own devices, and be creative. When you go up against Uncle Victor Alpha, it’s no different. Be prepared. Think Boy Scout. Do not depend on your SO or his VSO. Finding evidence VA will accept is formidable, but not insurmountable. Witness this Vet’s success in the face of what must have seemed to be a claim doomed to failure.

http://www.va.gov/vetapp08/Files4/0831250.txt

This new decision(September, 08) is a breath of fresh air and at the same time disconcerting. That a VET would have to appeal a decision like this to DC for justice says a lot about how determined the VA is to deny claims for Hep. C. This VET is a COMBAT VET- he was awarded the CIB. That stands for Combat Infantryman’s Badge. You don’t find these in a Happy Meal at the fast food place.They are handed out for valor on the field of COMBAT. They usually are accompanied by other medals like Purple Hearts, Bronze Stars, Silver Stars, and on up to DSCs and, of course the coveted MOH. A VET who legitimately possesses one of these is deemed to be a stand up guy. To deny this gentleman his claim is the ultimate BITCH SLAP a COMBAT VET can receive. It honestly makes me see little red spots thinking some “RVSR” puke went through his checklist of behaviors and codes and determined the VET was not entitled to SC. There will be a special place in hell for that rater and others of his ilk. As I know I will be in the bleachers before he arrives, I will look forward to his arrival.

http://www.va.gov/vetapp08/Files4/0831250.txt