Veterans Claims Help

Imagine filing in 2002 for Hep. Okay, you get the VARO love letter and file the NOD. SOC, Form 9, SSOC and off to DC where you finally get the short end of the stick. About this time you put 2+2 together and figure out they couldn’t possibly be looking at your medrecs or they’d figure this out. Fact is, they probably did and still turned you down in hopes that you’d go away. This vet went up through the NOA and to the CAVC. THEY figured it out that he got screwed. He didn’t have any trouble convincing them . About this time, VASEC Peake says “We’re so sorry, son” and offers a remand for a redevelopment of the case. It’s as obvious as the Big Zit on Prom Night that this old boy isn’t going quietly into the night after 6+ years of doing the HOKY POKY and shaking it all about. The VLJ this time around is starting to get the picture that maybe them fellers down at the VARO in Waco weren’t giving the VET a fair shake. Again, fellow Veterans- SIX plus years of wasted time, energy and anguish. Does anyone see how easily this could have been avoided? Do you suppose anyone is the slightest bit embarrassed about hanging this gentleman out to dry for over six years? Perhaps the VLJ, but I suspect even she is becoming jaded and feels overwhelmed by a system that was designed to hinder a Veteran’s chances of being given justice. Thank your lucky stars we have this system. It’s not perfect, but it does have safeguards built in if you stay the course. But that is the trick, isn’t it? Stick with your claim and never give up. If your claim has merit and you persevere, you will be rewarded. God forbid you would have to wait as long as this poor Vet has. I would classify this as a crime if I were the Inspector General of the VA. I expect they have a different take on it.

http://www.va.gov/vetapp08/Files5/0837115.txt

It would be interesting to keep an eye on 2009 decisions to see if this comes back up on appeal. My guess is VARO Waco is going to punt and give him the 10% knick knack, paddy whack rating and make him fight another 3 or 4 years for a 20% or higher rating. Makes me ill to see Vets accorded this kind of “Justice”. Maybe they’ll fix it during course of this new administration.

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.