BVA–TATTOO TO THE RESCUE

This is not a tricky legal decision. It is strange that it wasn’t denied. No doctors got to do their “opine” thing. No drugs were involved , no unprotected sex. Nothing. The VET actually applied under what’s referred to as an 1151 claim. That’s the # for the statute(38 USC 1151) that says if you go to the VAMC, slip and fall down and get hurt, get medical attention and come down with HIV or HCV, or whatever – then you get SC for the VA screwup. Its like medical malpractice a la VA style. There is no big $4 mil. settlement, no new cadillac, skip the time share in Mexico. You top out @ $2527/mo for 100% if you’re lucky. You won’t see a lot of these 1151 claims after 1990ish because they started screening the Blood supply. But if you were in a VAMC for a transfusion during an operation, you can definitely win the SC with a doc. nexus. They won’t even argue with you. VA might get a bad reputation if they started injuring the same VETS they were supposed to be healing.

http://www.va.gov/vetapp06/Files3/0616001.txt

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BVA–THROW ‘EM UNDER THE BUS

This is unarguably one of the worst examples of a VET getting the bum’s rush out the door. The Veterans Administration should be proud of itself for saving the taxpayer’s hard-earned dollars. I see no offer of a liver biopsy to ascertain the age of the infection. Granted, the VET has no nexus letters. What do the VFW VSOs in Nashville do to earn their $ ? The closest the BVA came to giving this VET his day in court was the admission that he had hep in service and it wasn’t definitively diagnosed as A or B. A good nexus at this point would have put the $ in his pocket. Instead, The VET chose to let the VA make medical conclusions about where and when this hep occurred. 28 years after service his health started to decline and he discovered it. Does that sound familiar to any of you ? Why does the VA get away with using this as a reason to deny benefits ? The VFW should be tarred and feathered and run out of town on a rail. Blame should be placed at the door of the guilty. The VET came to the VSO for help because they understand the process, or claimed to. We can’t blame the VA. They are trained to do this like a pit bull. A VET’s legal options are severely limited in a claim for benefits ,no matter what you are told otherwise. VA, like a lazy cop, seized on the easiest evidence it could locate to solve the crime- a history of drug abuse. Nowhere in this decision was there any serious discussion of risk factors in service . A nurse practitioner gave a limp assessment without benefit of any SMRs or other records that might shine some light on the case. The VA sensed the weakness in this Dx and attacked accordingly. They went out and got an opinion that supported their decision to deny benefits and ruled that they have a right to chose one medical opinion over another. In legal terms, this is called an “outcome -based” decision. The VA decided the VET was not entitled to SC for his hepatitis and proceeded to gather the evidence needed to deny him benefits. When you file your claim for any disease or injury, please look in the mirror. This is the person the VA will be addressing. You want to deal from a position of strength. You need evidence to balance or refute their evidence. What you submit as evidence must be better than what they have in their records. They will not expend a lot of energy trying to deny a well-prepared and presented claim. That is why some VETS are successful in spite of evidence which is prejudicial to their claim. 85% of us are unsuccessful. This decision is just another sad example of why. Think Boy Scout.

http://www.va.gov/vetapp06/Files5/0636372.txt

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BVA–THE REMAND

This VET is going to be suffering the mailbox disease for quite a while. Did you see the reference to AMC? That stands for Appeals Management Center. We who know refer to it as Limbo. It’s the black hole for claims. The claim will escape eventually and make its way to the VARO from whence it arose. And several years from now, if the VET loses again @ the RO level, we will see his not so smiling face back here in DC in front of VLJ Joy A. McDonald, assuming she still is employed at the BVA. What I find interesting is the tortured phrases some maniac from the OGC(Office of General Counsel) dreamed up. The OGC is the Darth Vader of the VA. They are strong in the Force and know all the ways VETS will cheat in order to get their claims granted. If your claim sets some kind of precedent in the eyes of the BVA, the OGC will be making the decision . Now, roll this on your tongue after a six-pack of Adult Beverage: it is not at least as likely as not that the hepatitis that was diagnosed in 1971 in the service is the same hepatitis that he has today. It is at least as likely as not that the patient’s present hepatitis C is related to previous high-risk behavior including sex with prostitutes, tattoos, and most importantly history of intravenous drug use. Therefore, it is at least as likely as not that his hepatitis C is due to IV drug use. You need a flow chart to get all the pluses and minuses added up to figure if he’s ahead or losing. The VET really needs a nexus. The VSO has kicked him out of the boat in the deep end and he can’t swim. Again, the good news is that we’re reading about it. That means he appealed and can fight this battle again in the future with a MFR. Let this be a lesson also that the VA has an obsession with regards to adjudication. If there is anything wrong with the claim, they will REMAND it in a heartbeat — again and again and again. Sometimes you die waiting. When that happens, they don’t have to pay. Anybody starting to see a pattern here?

http://www.va.gov/vetapp06/Files1/0600007.txt

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BVA– LUCKY NEXUS

Thank you, VLJ Ormond, Jr. This decision is one that clearly demonstrates how justice should be administered-impartially. One of the first things you should look at is that a lowly nurse practitioner, one J.D., seems to know what’s going on here and writes it down coherently so no one else can screw it up or twist her meaning. The second thing is that this VET is shooting for 1978 and he has a Stage 2 moderate fibrosis. That 28 long years ago. Everyone’s disease progresses differently. Nurse JD talks about his risk factors as being many and varied and some being the wrong kind of bozo no-no. But she ascribes a TIME ASSESSMENT that is essential. Meet Dr. E. No ID tags here but smart money says this guy is the hired gun. He doesn’t mince words and pegs it on nose candy, IDVU or (long shot) tattoos. Remember, these risks are always listed in order of likelyhood with the strongest suspect first. It’s only speculation on the doc.’s part but they get to opine, not you and me. We VETS just get to sit in the peanut gallery and pick our noses. Now, Dr. E went on to say that he could not determine, given the records provided, the age of the disease. In the next phase of the decision(II. Analysis), The BVA VLJ does what all gov’t. employees do- He CYAs. He says : We asked you for evidence , nexus and proof. My ex-VSO called that the Golden Triangle, but only AFTER I figured out I was going to need it to win. You must have it. You will note the Judge weighs the evidence and says there’s nothing but the VET’s testimony to back up any blood nexus. VA has no dirt on this guy other than his admitted use in service. There is no mention of anything negative that happened after 1978. This VET did not develop a case of Chatty Cathy disease w/ the doctor/pa. So the VLJ decides that the Nurse is smarter than the doc. but still says it’s the benefit of the doubt . That’s legalspeak for: The guys @ the RO didn’t give me enough rope for a Texas Necktie party so you win . An ugly win is still a win . Most VLJs would send this out for a “medical expert” to reopine on. I am much more familiar with that form of VA justice. I wonder if they took this VLJ out behind the barn and had a chat about company policy and to not let it happen again. We can still call this a teaching moment: VET wins because VA forgot to bring nexus . Interesting point: no risks claimed for jet guns, shared razors, tooth brushes, poor hygiene, STDs, alien abduction, Bush’s fault. An ugly,sloppy victory like your dog licking your face. Go figure.http://www.va.gov/vetapp06/Files3/0617969.txt
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BVA Decision 6/30/06

This is what most claims today look like. You have here a vet who went active for a year and basically did stateside service. He claimed to have had hep before service and claimed he was sick in service with hep C as well. He has no medrecs to support his claim. Most importantly the VA asked him to submit evidence that would show his hep was SC, a nexus, something anything. He gave them SSA records that said he was disabled – but not by HCV. Dentist medrecs simply said he was difficult to treat because of hep. Not one bit of evidence he submitted said it was SC and no nexus. He gave them the pics of air guns, the internet stuff, and more. Not one thing said he got hep in service. Most notably, VA was quick to step in with a NEXUS of their own that said it was “not likely” he got it in service and that it was “most likely” due to his tattoo marks which he got before service. So, the VET got HCV when he was 14(in 1964) in Muskogee, Oklahoma from tattoos . It didn’t get worse and he was never ill during service. It got worse in 1997 and it has absolutely nothing to do with the VA. The last phrase of the VLJ is very telling of so many VA claims. In essense, what he said is that you the VET, cannot play doctor and diagnose yourself. You cannot repeat what the doctor told you about your illness. You can testify about nothing medical-period. Zip. Zero. NADA. Your VSO should know this. Most don’t seem to get it. It’s useless. The VLJ will let you sit there and testify until you are blue in the face and then say “Thank you for your testimony today, sir.” You get to read about Espiritu vs. Derwinski (CAVC- 1992) and how you wasted your time when they mail this decision back to you 6 months later. This gentleman had a shaky claim to begin with as he freely admits to hep before service. If that is true, the law(38 CFR) say the hep must have gotton worse in service or that service made the hep worse medically. He also would need a doctor to state that in a nexus letter. He tried to make a case with the jet guns but his doctor didn’t mention that. This claim mirrors lots of others you will read. I hope this helps more VETS get educated on this process and get the win ratio up to 50% successful.

http://www.va.gov/vetapp06/Files3/0618424.txt

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BVA Video Hearing

AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/05/09 #1

Hello…My husband has an active claim pending in the appeal process.
He was SC in April ’08 for diabetes and related medical conditions.The appeal issue is SC for HepC.   He had a videoconference BVA hearing on Nov. 21, 2008.   While in the hearing, the Judge asked what my husband was doing for employment now.  He advised the Judge he was 100% disabled through SSA and had been since May 2006 (he was 62 in Nov. 08).   Disabled due to many health conditions, including HepC.   My husband was a medical provider for over 30 years and due to HepC and 3 courses of therapy his thought process gradually declined and he felt he could no longer provide safe treatment for his patients, write reports, render diagnoses, etc. on top of just being tired and fatigued all the time.

He had to undergo a surgery in Jan. 06 that would take him over a year to recoop, and could no way go back into the profession he had for over 30 years with just the shoulder situations alone and, on top of that the HepC issues.

We applied for SSA Disablity for him effective on 12/31/05, the last day he stepped foot into the office was 12/30/05.   I had all of his medical records, etc. organized, in files, and dropped them off at the local SSA office on 1/6/06, the date of his shoulder surgery.   He was approved for SSA Disability in April 06 for benefits – no questions asked.   No denial.  Approved.

His original VA Claim was filed in Feb. 03.   Denied.  Went through the entire back and forth process with the VA.   Finally had to involve our Congressman’s Office in Nov. 06 as he had not even had an exam up to that point and no one could tell us what the *H* was going on with his claim.

Through the Congressional Inquiry of my husband’s file, it was determined that his claim “fell through the cracks” – Where was the VA’s “Duty to Assist”????    He underwent VA exam for his AO related diabetes issues in Feb. 08, his claim was approved and he received a 20% SC for the diabetes with an effective date of 1 year prior to filing his original claim due it being a presumed condition due to AO exposure.   Just to prove he had stepped on land in Vietnam we submitted documentation, Affidavits, photos, etc.   He was a Marine stationed onboard the USS Long Beach serving duty in the waters offshore of Vietnam, patrolling DMZ, etc.   His Duty Station was Orderly for the CO and he was REQUIRED to go everywhere with him, prepare his vehicle, drive him around, etc.   Top Secret briefings in Da Nang where no record exists that they even occurred, when they did was a big joke.   That in itself is another story….at least it is resolved now.  I’ll mention he did 2 WesPac tours to Vietnam, 17 months in all.

Effective Feb. 08 he is 70% SC for diabetes and additional related medical issues due to diabetes.

Now, here we are, almost 6 years later.   He just had his hearing with the BVA via videoconference.    At least a month prior to the hearing date, I gathered updated medical records, solid Nexus from his Gastro, etc. and submitted to the VA through The Americal Legion.  They sent the info off to DC which was where his file was sitting pending the upcoming hearing.  As of the date of the hearing, the Judge still did not have the additonal docs in the file.  I had sent everything to American Legion via Certified Mail, Return Receipt Requested so I had proof they did receive it.

The Hearing experience was unremarkable.  The Judge seemed compassionate to my husband’s case.   It was evident to him that he fell through the cracks of the system.

I wonder how long it will take the VA to obtain a copy of the SSA application.
I have a completed copy of the original SSA Disability Application.
I just wonder if I should submit this to the VA rather than wait another 6 years for them to get the information they need to adjudicate his claim.

Should I submit the SSA application to them to speed things up?
How long does it take to receive a decision on the BVA hearing?

Thank You for taking the time to read through this post.   I attempted to keep it simple and straightforward.

AZeeJensMom
P.S.

Should mention, my husband’s last liver biopsy was Stage 3/4 and he has gone through 3 course of Interferon Therapy and has proven a non-responder with total relapse.

NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/05/09 #2

Congratulations on navigating the maze known as VA Justice. I’m sorry to hear you have had your claim go awry. That is often the case with this system. You can always find out the status by going online at iris.va.gov and go to the “ask a question” function. Put in all your info and then ask your question and you will usually receive a reply within 5 working days, often much sooner. It’s almost unconscionable that you had to wait six years to reach this point. With that said, I would fire off a letter to Kim Brown, assistant to Sen. Patty Murray(who is on the Veterans Affairs committee) of veterans affairs and ask him to see if he can get the BVA to speed things up seeing’s how they managed to screw it up so badly and for so long.
Now, I am unable to prognosticate on how long the BVA will take to adjudicate your claim but it will probably hinge on how much evidence you gave them that is new and material to the claim. As for SSA info, mail it to them (BVA) directly and make sure you put your husband’s SSN at the top of any sheet of paper you send them. Send them a copy of the decision granting him SSD/SSA. That is far more important than the application. I would add that VA does not use SSA decisions to grant SC for anything. They merely peruse it and see if there is anything in it that is harmful to the Vet’s claim for SC(i.e. an admission of drug usage). The VA judicial system makes all it’s own decisions and does so based on military and medical records and the contents of the C-file. SSA records can be a source of additional info in making a rating,as I mentioned above, but will not be used in a decision making process in D.C.
Three attempts to scale Interferon Mountain indicates you husband is a die hard or an optimist. That is a very insidious drug and will aggravate every disease in his body(like diabetes). We at HCVets stand ready to help and aid you with anything we can to speed things up on his claim. Your weakest link is your VSO as they have nothing personal invested in your claim. You are a number that generated some $ to AMLEG when you signed the Power of Attorney. Any help you got after that was a fluke in my opinion unless you knew someone there personally. I’m sorry, but that is just my experience after 3 VSOs and 20 years in the paper jungle. I know all about FOIA and trying to prove I had boots on ground in RVN for 15 years. It’s an arduous process to say the least.
AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/05/09 #3

Thanks for the quick reply.One of the docs I submitted to BVA was the decision from SSA/SSD.
The new evidence was minimal, 2 recent liver biopsies, the Nexus, the SSA decision, a letter from a private physchiatrist he saw for a consult/2nd opinion regarding depression issues (we paid for the consult), he stated his mental conditions are directly related to HepC, 3 tx for HepC & diabetes.The risk factors he had were:

1 small tattoo on his upper arm noted at enlistment exam
2 tattoo acquired in service, on his right forearm
3 attempted removal via 7 surgeries of the in service tattoo
4 the usual innoculations, etc.
5 1 visit to a “House”

The VA doc who did his rating exam for the Hep C was not a gastro doc.   He had a bunch of errors in his report, ie…the pre-service tattoo  is on his left shoulder, he said right.   He said this tattoo was removed during service under sterile conditions so could not be a source of the contamination.   THAT is his opinion.   He was not there.    He said the tattoo was there on his exit exam.   We had previously submitted photographs showing the tattoo on his arm with his uniform on, clearly evident he was onboard the ship when the photo was taken.   My layperson opinion is this doc is misinformed, in a hurry, and didn’t pay attention to records and to the patient sitting in front of him.   I was present at the examination.

We completely corrected this with the BVA in the videoconference as my husband  showed the Judge the areas where the tattoo was on his forearm and all the scarring, the one the ships doctor tried to remove but could not.   He had to “cut it out” piece by piece and sew his incision each time as my husband has really tight skin.   Somewhere in his service records the VA said the “surgery to remove the tattoo was denied” – where that is, who knows.  We’ve never seen this document and, I have his personnel/medical records for his entrance and exit exams.    I will reserve my comment about the ships doctor who performed surgery when it was not approved as it’s a cosmetic proceedure.   My husband said after it was all done and his term was up, the Marine Corp asked him to re-up and they would “fix his excessive scarring up”.     He told them to fly a kite, he was done.

As for the VSO, you are so right.   We really had no help from them, except to file the initial claim and a Rep at the hearing.   I called WA State Vets and was advised that we could not change or remove the VSO during the appeal process.  Other than that, I would say they did zip for us.   Anything that did get accomplished was due to my perserverance and to Congressman Smith’s office.

6 years is a very long time.   Especially since the 1st exam he even received from a VA rating doc was in Feb. 08.

We both hope no other Vet should be forced to jump through rings on fire like we have been.

I will send a letter off to Kim Brown and put in an inquiry to the web-site you mentioned.

As for the SSA/SSD evidence, BVA received the entitlement letter in the packet we sent them a month prior to the hearing.

I will mention and praise the Office of Congressman Adam Smith for all of their help in getting this claim pushed to the point where it now is.    Congressman Smith is also on the Veterans Affairs Committee.

I’ll post an update when we receive any info.   Hopefully our story will help another Vet somewhere down the line.

Thanks for the support.

As for the 3 courses of Interferon tx, it played a huge roll on his health no doubt, and he is not the same man he was prior to that first injection.

NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/05/09 #4

Well, if you have an honest, upright VLJ, then we have nothing to worry about. From what I have seen, this is what I would expect: Risk factor #1) A VA examiner somewhere has probably already opined that this was a risk factor acquired prior to service and weighs against the claim. #2): Valid risk factor
#3)possible but is there enough documented info in medrecs?
#4)No help here.#5)House of “ill repute” as in Cholon District or House of Opium Den? If you had any NGUs or other STDs in the records, its a winner! and can tip the scales in your favor. The tat is the clincher, if you have the photo. That should be the winning ticket in its own right. An honest VLJ will see the tattoo for what it is. The absence of any negative evidence is positive evidence in their eyes.Keep in mind your husband is not allowed to make med. decisions and formulate reasons unless he has the M.D. after his name. Best of Luck.
AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/05/09 #5

SSOC dated 9/8/08    —   VerbatimSvc tx records contain enlistment exam 2/23/66 documenting a tattoo on left arm.   2/28/69 exam performed on release from active duty documents the same tattoo.   Clinical report dated 11/20/68 reports much of the tattoo had been excised.   Consult note 11/21/68 stated excision of tattoos not approved.   2/17/69 tx record reported all sutures removed from left arm tattoo, scar healing well.VA Exam 7/9/08 confirms dx of HepC with history of multiple courses of antiviral theray.   Svc records as well as med recs pertaining to the current dx of HepC were reviewed by a QTC physician to determine which risk factor is the most likely cause of the disease per VA’s guidlines for SC.   The physician determined at least as likely as not HepC is secondary to the confirmed risk factor of the tattoo in service.    He did not think the HepC was caused tattoo removal because that proceedure was performed under sterile techniques.   The physcian erroneosely stated the tattoos were acquired during service.

You provided a photograph pointing out a tattoo that appears to be on your right forearm.   Lay statements from former service members testify they recall your tattoo removal.   Only Mr. ***** stated you acquired the tattoo during service.

The evidence clearly shows you had a tattoo at enlistment.   The medical evidence does not document any additional tattoo was acquired during service.   The photograph you submitted inexplicably shows a tattoo on the right arm.  Mr. ***** testimony is so many years after the fact and contradicts the records so is not probative.   Since the medical opinion reports most like risk factor for HepC is the acquistion of the tattoo and not the rattoo removal, we conclude HepC was not incurred during service.

End of SSOC

Well, the tattoo on the upper left arm was there at enlistment.   The tattoo on the right forearm was acquired during enlistment.   The tattoo on the right forearm was the tattoo that was surgically removed during 7 proceedures, cutting out a portion, sewing it up, cutting out another portion and so on.  There are still remnants of the dye from the tattoo intermingled with the scars.

The photographs they refer to were provided by us.  My husband is in uniform onboard the ship and the tattoo is clearly visible.  The SSOC concurs with this.   The BVA Judge saw the scars on the right forearm.    The fellow serviceman who provided the Affidavits specifically recalled the tattoo on the right forearm, when and where it was acquired.

It’s interesting that the records indicate unapproved surgical proceedures to remove the tattoo and then on the exit exam they indicate there is a tattoo on the upper left arm.   They also clearly note the clinical record of 2/28/69 reports much of the tattoo had been excised and then state the scar is healing well, etc.   The SSOC states there was no other tattoo acquired during service.   So, if this is true (and it’s not) then what tattoo removal are they referring to that was an unapproved surgical proceedure??????

We could not have presented the facts of this claim any clearer.  The QTC doc fudged up the exam, the VARO fudged up the SSOC, the VA fudged up the in-service medical records.   They are the ones who contradict themselves.   Our evidence is clear.   Their evidence is not.

Besides, who can really pinpoint the exact moment of exposure unless it’s a well documented fact with a blood test that HepC was not present on one day, then the exposure occurs and HepC is positive.   Prior to 1989 it was Non-A/Non-B Hepatitis and the docs didn’t know what this HepC was all about.

And so we await the decision of the BVA Judge.   Let’s hope he is a fair man and we both felt he was.   He could clearly see the evidence in front of him.    And, with the additional documentation that was submitted just prior to the BVA hearing, he should have a very clear picture of the facts of this case.

Lori

NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/06/09 #6

So the question VETS are all dying to know is: Did he have to roll up his sleeves and show the VLJ the LUA tattoo, the area formerly known as the location of the RUA tattoo, the resulting scars, and submit glossy 8 1/2 X 11 Color photographs of same? I expect everyone would be able, at that point,to follow the arrow map with flow chart notes and powerpoint laser presentation. Your SSOC is almost a carbon copy of another tattoo case we’re helping a Vet with. Just exchange left with right in our Vet’s case and facts are identical except for the excision! Gives a whole new meaning to the phrase “triage” and “Tiger Team” remand crew. VA could take lessons from Willy W.’s lumpa lumpas.
AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/06/09 #7

The left upper arm tattoo is on the shoulder.   This is the tattoo the SSOC recs say was excised.   Nope.   Still there last time I checked.  It was there when he went into the Marine Corp. and was there when he checked out.The in-service tat was on the right forearm.  This is the tattoo the ships doc tried to excise during 7 surgical proceedures.    There are still remnants of the dye in the appx. 7×3 inch scar on his right forearm.And, the answer to the question is:

YES, he absolutely volunteered to show the VLG the scar on the right arm where the tat was.   Tom stood up, rolled up the sleeve of his shirt and bingo, there it is.    The VLJ saw the errors in the SSOC very clearly after he saw the scar with his own eyes.

Lori

NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/07/09 #8

Did you also have to bring rubbing alcohol to prove that the one on the left shoulder wasn’t Henna? You know how those tattoos move around when you’re not looking. Look at how they confused those poor GS-3s down in Seattletown. A whole new industry will spring up some day devoted to staging nothing but VA Traveling Board Hearing presentations. Your VLJ has a college education. That is what will save your claim- a deductive mind.
kosmikcowboy
Registered: 01/08/09
Posts: 3
01/08/09 #9

I went for my hearing with the appeals board in Washington DC via video. It was quite an experience. My SO very proudly proclaimed I was a Vite Nam era vet and that I served and was honorably discharged. Then he went on to expose the VA for what they are. The contradictions in my files was enough for the judge to see things our way. In my files he found where I went to my PC complaining of weight loss and appetite loss. I weighed about 119 lbs and I am six four. In the progress notes my PC wrote that I was a well defined healthy male with no distress. I was sicker than a dog! My body was fighting the HCV and no one diagnosed it especially when they had blood tests confirming my infection. This was 1999 and it was 2004 before the VA decided to tell me. That is when I filed for HepC along with my eating disorder and my anemia as kickers to the HCV. The judge also had me stand up and show her my build.Then we submitted my files from my private PC that confirms I have HepC and pernicious anemia. Along with his files( and by the way my private PC is also a VA doctor at our cramped up out patient clinic) and the VA MC,s contradictions to my health issues will be the ticket to getting SCC for my HEpC and anemia. The deal is the VA denies that I have HCV. But I have blood tests that dispute that. The VA denied me saying that there was no HCV RNA in blood! They say my body cleared the virus on its own. Yet my private PC gave results that are the exact opposite. He monitors me every three months and keeps a close eye on my liver. His nexus will be what gets me SCC.As Soon as I get a decision I will post up and let everyone know what went down. Wish me luck, I feel that I have a darn good chance to get what I deserve. Kosmikcowboy

__________________
Robert E Vaught

AZeeJensMom
Moderator
Registered: 01/05/09
Posts: 94
01/08/09 #10

Hello kosmikcowboy….We too are awaiting a decision on my husband’s BVA videocon that was heard this past Nov.    It’s been a very long 6 years since he originally filed his claim and we are hopeful for a positive decision from the VLG who conducted the hearing.When was your hearing date?

We look forward to an update from you.    Wishing you the best of luck in your appeal and health issues.   Keep on keepin on.

kosmikcowboy
Registered: 01/08/09
Posts: 3
01/08/09 #11

Hey thanks for the reply,,,yeah the VA here in OK has a bad rep. They deny me even tho I had a complete blood transfusion during service for an ulcer that was neglected by the infirmary doctors till it ruptured, despite numerous trips on sick call, that I cannot prove with documentation. While requesting all files pertaining to service all I would get was bits and pieces of what I was searching for. After three requests I still cannot produce any labs or consults from my surgery. Only the report on discharge and progress notes was all I could produce. But the contradictions in my files and my private doctors files will surely be all I need. My hearing date was December 17, 2008.Wish you guys all the luck! Peace,,,,Kos__________________
Robert E Vaught
Posted in Tips and Tricks | Tagged , , , , | Leave a comment

Denied HEP-C VA Claim

fedupvet4025
Registered: 01/08/09
Posts: 1
01/08/09 #1

Dear Gentlemen:My husband was in receipt of this message and we would like to know how to pursue this.My husband, who retired from USMC in August 1997, underwent HEP-C treatment for 2-1/2 yrs at the Fayetteville VA Medical Center, which didn’t work because of a rare geno-type.  He is currently being looked at to be placed in a HEP-C clinical trial at the Durham VA Medical Center, Durham, NC.    When he resubmitted his VA disability paperwork a couple of years ago, his claim was denied for HEP-C because they claim it was not “service-connected” when in his military medical records it showed through several medical tests completed through the military treatment facility, that my husband was experiencing “high liver enzymes” 5-10 yrs before retirement, but they never did any further tests–it was after he retired that the VA Hospital discovered he had HEP-C with a rare genotype.What are the next steps that you recommend we take now with the latest new ruling has come into focus?

Please advise…and thanks so much for this advisement.  We look forward to hearing back from you as soon as possible.

Mrs. Fedup Vet

NOD
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Registered: 11/22/08
Posts: 652
01/08/09 #2

Hell hath no fury…Gentle Reader,
You appear to have all you need to win. What you lack is guidance and a focus for your anger. I hope we have not arrived at the fire after it has consumed the claim. Our hope is first that you will tell us that the denial is current( less than one year old). We can help with the appeal info and the proper (or, perhaps as we see it, proper) way to approach with a winning game plan. It sounds as though you have all the things needed to win- 20 years in and medrecs to support your contentions. What did you list for risk factors on the questionnaire( and it has to be more than jetguns)? You will need one of the presumed risk factors to get your foot in the door.That being said, with 20 years(which will encompass 3 different war times, this makes your husband eligible for a 1154B rating consideration if he was in combat. That is an important asset with VA and improves what I think is a valid claim. We will assume there is no negative info or any UCMJ infractions that might muddy the waters. Failing that, We would question why you still have not been service connected. If you wish, send us your denial and we can ascertain what went wrong privately. Or you may wish to show the other Vets a teaching moment, attach it as a file to the end of your reply here and we can all dismember it and find the flaw. Please redact any SSNs prior to posting as we have plenty of them already.We also fervently pray that you have not made the same mistakes as legions of us before you and failed to file a NOD and a Form 9 to protect your rights to appeal. If you did, a moment of silence will commence and then it’s time to file anew. Never, ever throw in the towel. I have been filing and appealing for 20 years not be cause I enjoy it, but as info become available to substantiate my claims. Most of us are not the litigious type, so this gives us no solace. Justice is what we seek as we become unable to support ourselves and our dependents.

As we Vets are an inquisitive bunch, pray tell what would a rare genotype be? One of the 3s or a 7? With 20 years, I’m guessing Mr. Fed Up VET entered shortly after the Vietnam Olympics in 1977?

P.S. With a showing of high liver enzymes in service, a properly constructed nexus letter would be an easy ticket to service connection.

RobD1956
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Registered: 11/22/08
Posts: 31
01/09/09 #3

The first thing we suggest in a case such as this is get in touch with the NPRC and request his med rec’s you may think you have all of them . But sometimes certain items are missed. So we will ask now for specific files. First are the Blood tests all of them Blood donations drug screens, and any and every blood draw . This will hopefully show when the HCV  first introduced itsself to your husband. And decided to be come close friends . We will also need the Geno type this is quite important . It will help in proving a time line for the Virus. Please use the link below and fill out form SF–-180.  We will apply our best effort to try and correct this grievous error made on the part of the VAROhttp://www.archives.gov/veterans/military-service-records/get-service-records.html
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National Service Officer- DAV

chapkirk
Registered: 01/15/09
Posts: 4
01/15/09 #1

I am very unsure as to the qualifications of my NSO.  He seems hesitant and very unsure of himself.  I do not feel as though we are on the same team.I am told that the DAV will not reassign my file to another NSO.Any suggestions?

Chap Kirk

NOD
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Posts: 652
01/15/09 #2

Repeat after me: I am in deep doo-doo. I am in deep doo-doo. I am in deep doo-doo. I am in deep doo-doo. Keep saying that until you can say;”I hereby revoke my Power of Attorney.” Nod sez you do not have to go through this alone. It sounds like that is where you are heading. A NSO/VSO/SO is only useful if he knows 38 CFR better than you do and from front to back of Chapter 3 and 4 in particular. If Bubble boy has never set foot outside in the VARO world, your claim is headed over a cliff. You wanted a 4WD cadillac ,but you rented a edsel. B. careful. If the kid is younger than 25, I would be worried. Make him up a little test of CFR dos and do nots. WWVD? stuff. See what he knows. Is he a VET? Danger! Danger! Will Robinson! There are no really good VSOs. That’s an oxymoron! A non sequitur if you will. You are your own best rep. If DAV can supplement you without getting their nose bent out of shape when you assist, then keep them along for the ride , but do it all yourself. Make them think they’re driving! It won’t advance your claim one bit, though, with them along for the ride. It can, on the other hand, hinder your efforts if they do something stupid w/o asking you first.
chapkirk
Registered: 01/15/09
Posts: 4
01/16/09 #3

Thanks for your help.  I would like to be more in control than I feel I am now.  Unfortunately, most of this is relatively new to me.I do not know who to talk with at the VA and I am told that information from personnel at their toll free number is at best, unreliable.Any suggestion on effective communication methods will be appreciated.  I have requested a list of items in their file through IRIS.  It has been a week not so I am hoping to hear something soon.

Thanks again,

Chap

NOD
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Posts: 652
01/16/09 #4

Man, everybody would like to be in control of their claim or know where/ when it was and what progress they’re making. Okay. Here’s the game plan. DAP(Dial a prayer-the 800 #)) has finally become just that. They are good for a shoulder to cry on. They have 2 computers to deal with and the machines are slower than dialup and about as reliable. Here is the latest twist:iris.va.govYou get there and look for the ASK A Question, or my friend Rob tells me you can email the VA Ombudsman, too. They have a search engine at the top right on their page and the site is no too bad to navigate. I have done the Query/ question path about 20 times now, and they answer your request within 2-3 days or less. Amazing. The info they list is very good and very current. It will tell you if the claim is finished with prelims. and off to ratings, it will tell you if it has been decided and you will be receiving something soon. I had to wait a month once for my 100% rating decision which was the longest 30 days of my life.
The ombudsman thing might be faster . Rob said he put in his wish, went about doing some emails and in about 20 minutes he had hard info back in his hands. That is really amazing since I’ve been observing these chuckleheads in action for 20 years(1989)now. Fast is 6 months. Normal is 3 years. Slow is 14. Did my 14 and now like the idea of computers.

DAV will not change Your SO. They don’t want to hurt his feelings. They don’t care about yours. They have the Govt. money from you signing up/POA so they really don’t need you either. You are now inconvenient and getting in the way of the FNGs behind you. Any representation you get now will be because the guy is your next door neighbor and feels guilty if he didn’t do something or your dad is a big contributor to the Same Political Party in Office. You will get regular letters of condolence in the future telling as how the BVA did not smile on your endeavors and an offer to appeal it up to the CAVC. Lip service, sir, nothing more than lip service is what’s to be expected. That’s the good news, Chap. Hell, we’ll even give you hard questions to ask the turkeys to see if they even have a clue as to what they’re up to. They might tell you how to win if you ask them politely. Good Luck. We will help if you feel pregnant and alone. That’s why we’re here-to make life more interesting for Uncle Victor. The jury is still out on them!

RobD1956
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Registered: 11/22/08
Posts: 31
01/16/09 #5

Here is some new in formation that can be used and still keep your place in line as far as BVA. This is a link to the Ombudsman in D.C. they will be able to assist you on questions regarding your claim without losing your place in line.Don’t like to write? Phone 1-(866) 258-0341 But check the link anyway you might find something you like about it.http://www.va.gov/VBS/bva/contactbva.htm

__________________
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chapkirk
Registered: 01/15/09
Posts: 4
01/16/09 #6

If I understand correctly, the Ombudsman is to be used during any appeals process.  I am hoping I never have to file an appeal.  Please correct me if I am wrong.I had been diagnosed with infectious Hep while in service, and have a letter from my doctor providing proof that I am negative for total antibodies for Hep A, but that I have HCV, stage IV with cirrhosis.I (possibly naively) hope that they agree that my claim is valid.    I am just trying to guide the process to a quick conclusion.  Your help and expertise is greatly appreciated.

Thanks,

Chap

hcvet
Moderator
Registered: 11/22/08
Posts: 43
01/17/09 #7

Chap writes>> I am very unsure as to the qualifications of my NSO.  He seems hesitant and very unsure of himself.  I do not feel as though we are on the same team.Hi Chap we felt that way too, I think many do. The VA keeps everyone confused. Just look at the backlog … shredding of claims … , etc., etc….Most of us take control and educated the rep. But the bottom line is you’ll probable know more than he does. But make sure he is submitting what you request or just do it yourself.

The law says if you go to appeal you must be represented by a service organization or lawyer, even if they just sit there and say nothing. In other words, you now have a DAV rep, but you don’t have to use him, and you can change to another DAV rep anytime. First question I’d ask, “What is your experienc dealing with HCV claims?” See how willing he is to learn if none.

If the VA deny the claim, you can change from the DAV to another Veterans Service Organization then or get a lawyer.

Make sure the rep sees Groves V. Peake ruling and send him to HCVets.com.  I think this ruling applies to you. Seems to me your claim is a slam dunk because of it.

As for how long it will take … that’s a guessing game. This is a new ruling and I’m sure the VA is scurrying about trying to figure out a way around it. I’d say six months maybe longer. The only way to move this process along quickly is to involve your senator and show a hardship case. Like loosing your home.  I hope this helps!

Keep us posted!

NOD
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Posts: 652
01/17/09 #8

T500. The law says you can represent yourself pro se at all times . There is only one rule written about representation. If you start your claim and it goes up on appeal w/ a VSO, then you have to continue with that representation until the denial or approval of your appeal. If you decide Bozo boy is useless after BVA denies you, you can appeal to CAVC pro se (after properly disposing of them like a used diaper). Same for a VARO representation. You could $hitcan them after you lose in Waco before you file the Form 9 for substantive appeal. I 86’d the MOPH and took over mine after they refused to file my NOD for Tinnitus(effective date). That was in the middle of the hep. claim, so I ended up being my own lawyer for that and the PCT in October 08. You will be amazed at how fast a claim can proceed if you are actively engaged in presenting evidence, confirming its arrival, and For God’s sake always send your “VCAA adjudicate it NOW!” form in with it. Make copies of it and send it in with everything. Always. I will attach one below to end confusion on that question.If you do not include this hummer in your submissions, when it comes time to rate, and there isn’t one in the files, they will wait 180 days for additional document submittals before moving on to rate. Why wait? It’s your money. You need it now!
 
chapkirk
Registered: 01/15/09
Posts: 4
01/18/09 #9

You mentioned filing with a hardship.  I believe I may qualify for this.  Do I do this with the help of my Senators?  On a VCAA form?  Are there any known pitfalls in this process?Thanks,
Chap
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hcvet
Moderator
Registered: 11/22/08
Posts: 43
01/19/09 #10

Hi Chap,  right now the only releif I know is through your senator. He can contact the regional VA where the claim resides. He can move it along. There is not a form for that. The only down side I think would be if Regional didn’t like the Senator~~~ then it might take longer. Such a political game and Vets pay the price:( If you do not get a favorable responce I’d contact the Senate Vets Committe in DC.If the claim is denied this is what you can do…On January 13, 1999, the Department of Veterans Affairs (VA) published a final rule in the Federal Register , 64 FR 2134, implementing the provisions of section 1(b) of Pub. L. No. 105-111 (Nov. 21, 1997), which permits challenges to decisions of the Board on the grounds of clear and unmistakable errors or CUE. As published, the rules relating to CUE motions require that such motions be decided in accordance with their place on the Board’s docket. 38 CFR 20.1405(a) (Rule 1405(a)).

While appeals are subject to the same requirement, 38 U.S.C. 7107(a)(1), both section 7107(a)(2) and its implementing regulation provide for the earlier consideration of appeals in some circumstances, id. 7107(a)(2); 38 CFR 20.900(c) (Rule 900(c)). Generally, Rule 900(c) provides that a case may be advanced on the docket if it involves good cause. Examples of such good cause in Rule 900(c) include serious illness, extreme financial hardship.

I’m sure there is a form for this but don’t know it. I will try to find… But this is one thing your DAV rep can help you with, he can file it,  if it gets that far. Be sure to mention the “Groves” thing to the Senator:)

 

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hcvet
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Registered: 11/22/08
Posts: 43
01/19/09 #11

NOD writes>> You will be amazed at how fast a claim can proceed if you are actively engaged in presenting evidence, confirming its arrival, and For God’s sake always send your “VCAA adjudicate it NOW!” form in with it.Thanks NOD, good to know!
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NOD
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Registered: 11/22/08
Posts: 652
01/19/09 #12

Chapkirk—- Here’s the drill. If your claim is currently on appeal before the BVA right now, the correct procedure is as follows: Using standard form 8.5 X 11 (white, blank) sheet of paper, insert all your information on it and mail to the correct address in DC for the BVA. On it, ask for advancement on the calender due to either/or or both medical and/or financial hardship under 38 CFR 20.900(c). To prove this, you may and should include any medical and financial records you can assemble showing a medical condition involving terminal disease with no repair order, endstage liver disease with the requirements of 100% DC7354, a mortgage payment that is overdue. $20,000.00 worth of credit bills in overdue state, large, unpaid electrical and water bills, anything that shows you are headed towards a new address with a flexible zip code. VA has exactly 90 days to act on this request from date of receipt. This is the same 90 day requirement as TDIU determinations. It’s the law. They have to make the 900(c) determination and adjudicate the claim. If you can meet any of these requirements( and VA is not a hard ass on this reg.)your claim will get a pronto response. There is no form for this unless you are anal and really want to write it all up on a 21-4138. If your VSO is aware of your condition and that you qualify for this exception, or never suggested it to you or never mentioned anything about it then I would run over him in the parking lot. His job is YOU, the VET. He gets PAID for it. If you are 70% or over connected, he should be trying to get you TDIU w/o waiting for the 100% attempt/appeal. Hearing that Vets like you are going through what I went through for years and years makes my blood boil. We tend to act like bulls in the China shop on this site rather than pussyfoot around and ask politely for permission to go to the boy’s room. If you need anything else feel free to ask.
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NOD
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Posts: 652
01/21/09 #13

Here’s the actual verbage:Title 38: Pensions, Bonuses, and Veterans’ Relief
PART 20—BOARD OF VETERANS’ APPEALS: RULES OF PRACTICE
Subpart J—Action by the BoardBrowse Next
§ 20.900 Rule 900. Order of consideration of appeals.

(a) Docketing of appeals. Applications for review on appeal are docketed in the order in which they are received. Cases returned to the Board following action pursuant to a remand assume their original places on the docket.

(b) Appeals considered in docket order. Except as otherwise provided in this Rule, appeals are considered in the order in which they are entered on the docket.

(c) Advancement on the docket —(1) Grounds for advancement. A case may be advanced on the docket on the motion of the Chairman, the Vice Chairman, a party to the case before the Board, or such party’s representative. Such a motion may be granted only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown. “Other sufficient cause” shall include, but is not limited to, administrative error resulting in a significant delay in docketing the case or the advanced age of the appellant. For purposes of this Rule, “advanced age” is defined as 75 or more years of age. This paragraph does not require the Board to advance a case on the docket in the absence of a motion of a party to the case or the party’s representative.

(2) Requirements for motions. Motions for advancement on the docket must be in writing and must identify the specific reason(s) why advancement on the docket is sought, the name of the veteran, the name of the appellant if other than the veteran (e.g., a veteran’s survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual’s behalf), and the applicable Department of Veterans Affairs file number. The motion must be filed with: Director, Administrative Service (014), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(3) Disposition of motions. If a motion is received prior to the assignment of the case to an individual member or panel of members, the ruling on the motion will be by the Vice Chairman, who may delegate such authority to a Deputy Vice Chairman. If a motion to advance a case on the docket is denied, the appellant and his or her representative will be immediately notified. If the motion to advance a case on the docket is granted, that fact will be noted in the Board’s decision when rendered.

(d) Consideration of appeals remanded by the United States Court of Appeals for Veterans Claims. A case remanded by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action will be treated expeditiously by the Board without regard to its place on the Board’s docket.

(e) Postponement to provide hearing. Any other provision of this Rule notwithstanding, a case may be postponed for later consideration and determination if such postponement is necessary to afford the appellant a hearing.

(Authority: 38 U.S.C. 7107, Pub. Law No. 103–446, §302)

[57 FR 4109, Feb. 3, 1992, as amended at 60 FR 51923, Oct. 4, 1995; 61 FR 20453, May 7, 1996; 65 FR 14472, Mar. 17, 2000; 68 FR 53683, Sept. 12, 2003]

There is one thing that is not correct. You may file this with your local VARO if your claim is not in appeal status. Even though this regulation was written predicated on your claim being up in DC on appeal, they will still afford it the same consideration at the VARO level and move it to the top of the Rating pile. They are required to act on this within 90 days, period. No ifs ands, or buts about it. Failure to accomplish this in less than 90 days is not an option. VARO People will be forced to stay up all night on a holiday to get this 90 day rule accomplished on your claim. But then ,it will never come to that because they usually accomplish it in the 30 to 60 day window. I do know from experience that it takes at least 30 days to assemble all the parts and pieces to actually do the rating on the hardship itself. The resultant SC rating is the additional 30 days I mentioned.

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Question on EED

broncovet
Registered: 01/24/09
Posts: 9
01/24/09 #1

NOD.
My claim is in such a chaotic mess, the RO cant decide if my TDIU claim is pending, denied or closed.  April 08 RO decision says denied.  August 08 RO decision says pending. Recent  Iris Inquiry says TDIU opened January 07 “closed” July 07.  Yes, its at Cleveland RO, shreddergate headquarters.   Evidence shredded..Claims overlooked. Conflicting RO decisions!  Currently I am rated at 40% with NSC pension.
I am talking to a Veterans lawyer on Friday.  I have already won a BVA appeal back in 2004 which awarded me a “complete grant of benefit sought”.  My contention is that this BVA award (not a remand..even tho one of my RO decisions lists “BVA REMAND” in evidence section) includes benefits sought by the Veteran in 2002, but ignored due to RO errors/and/or shredding evidence.  (The RO considered only hearing loss, and I have evidence that I had sought depression, tinnitus, and TDIU).
Q1.  If I can prove to the judges satisfaction the RO committed errors/shredding, can/will the judge order the VA to pay my attorney fees?
Q2. Should I “seperate” my TDIU and EED claims?  That is, should I work on TDIU and not worry about the effective date, then, after it is approved (yea..Im an optimist) go back and file a NOD asking for an earlier effective date, or, go for six points and dont worry about field goals by asking (again!) for TDIU with 2002 effective date?__________________
broncovet
NOD
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Registered: 11/22/08
Posts: 652
01/24/09 #2

Wow, dude! The Honorable Drew Carey VARO-Recycling HQ for Amerika. I will tell you several things. It would be hard to say how the VARO will respond. Seattle VARO did the same thing to me. They said a claim(PCT=AO) had been “closed out” when it hadn’t. I reminded them they still hadn’t adjudicated it for a year(from 4/07) until after they rated me on hep(6/08). Finally, on 10/3/08 they gave it to me, after insisting on 10/01/08 it was closed out on 7/07. You just read that right- a 48 hour rating! So I would tell you to break each claim down and address them individually to the VARO. If you put all the claims in one mailing, and they need to send one to the hep guy, one to the TDIU guy and one to the tinnitus/hearing loss section, they will not make copies of the letter. They won’t tear it in three pieces. The letter will go to the TDIU people(Triage) They will get out the Bic lighter, set their hair on fire and run around in circles. You realize you are talking about government GS-3 to 5 employees, right? Meanwhile the letter falls on the floor and is LOST. Or else it mysteriously arrives in the Shredder Room…Your saving grace in all this is if you mail in a NOD and they never mail you an SOC, Time Stands Still until they send out an SOC. Period. The CAVC has reiterated that time and time again.If you had a claim decided at the BVA in 2004, ostensibly it would be sent back from DC to the VARO for proper implementation and rating after a successful decision(this is why you might have seen the word “Remand” in the evidence section). If the VARO failed to accomplish this(and from what you are saying, they did), then you need to complain about it to the BVA as they were the AOJ at the time of the adjudication. They still control the decision. They are the ones who can yell at Cleveland for you to straighten it out.TDIU decisions, like hardship filings, are a 90 day project. They have to be adjudicated in that time period. So if you mail them a TDIU request with other issues attached, guess where the other $hit sits while you are awaiting TDIU? It gets filed and forgotten after that unless you bring it up again. Your absolute best bet is to do the IRIS thing in my book. Write them a love letter for each issue. Ask for the current disposition of the claim, expected date of completion of rating and any other info they can provide. Always ask them to send you some supporting paperwork confirming the IRIS contact as well.

Concerning your 2004 BVA appeal, send that one to the VA Ombudsman(BUDMAN) as he is in charge of BVA decisions. IRIS only deals with local VARO adjudications.

On Q#1, I will say that you are not going to get any comp. from VA for attorney. The EAJA(Equal Access to Justice Act) deals with these issues at the CAVC level. I’ve seen remands back to the BVA where the VET took the CAVC-assigned law dog with him to do the BVA remand and then back up to the CAVC for final Adjudication. I have never seen them pay down to the VARO level-ever. Of course, I have never seen the VA resort to shredding(or get caught at it, anyway), so we are in uncharted territory here. You may have a good claim. No one’s an expert on that as it is new stuff. Your private VA law dog can only charge you 20% of any judgment he gets for you. He knows that if he’s a legal one and won’t try any funny business. Ask him what he thinks.

On Q#2, as We mentioned above, all TDIU/ hardships go to a special adjudication process on a RFN basis. If you have other stuff like the EED taped on, it’s gonna get misplaced or lost. Be an optimist on that EED, bubba. You are legally allowed to ask for an EED a year before any increase in a rating decision if you can medically support it. Just be careful on late NODs. Be really careful not to let these things go past the one year point, even if they are assuring you they are “pending”. They will “pend” you right out of a claim. If you have statements in to them (with a green card backup) telling them of their mistakes and/or failure to adjudicate, then you have viable proof to fix any “you failed to NOD” assertions by VA. There is something known as “presumption of regularity” of the U.S. Postal Service. That basically says that if they mail you something, it is assumed that you got it. It works both ways. If you have something sent RRR to them, you can be assured that the CAVC will rule in your favor should it come to it. Always CYA. The RO folks are chuckleheads, wannabe lawdudes, and people with low intelligence. They makes lots and lots of errors. That is why we have the Board of Appeals. Unfortunately, as you have experienced, it is sometimes necessary to go to DC to get it straightened out. By the same token, the BVA isn’t perfect and Vets have been forced to go on up the ladder to seek justice. The Drew Carey RO has a particularly bad reputation right now as you are aware. Trust them to do nothing right at the moment for you. I suspect they have quite a few Inspectors General running around there firing people or giving out Employee of the Month Awards. Hard to say with VASEC Peake in charge. You do realize that guy owns a $hit ton of QTC stock, along with his VASEC predecessor, Mr. Principi. Most people don’t realize Mr. Principi and 40 of his buddies started QTC and sold the VA on it. Amazing what you can find if you start digging in the right places.
With all that said, We wish you good luck on this and feel free to ask more if we failed to clarify any particular point.

Is Bronco a reference to an OV-10 as in FAC or just horse-busting in general? Idle curiosity from a GIB/Robin. NOD sends

P.S. I found this in 38 USC. Show it to your law dog.

http://www.law.cornell.edu/uscode/html/uscode38/usc_sec_38_00000503—-000-.html

broncovetRegistered: 01/24/09
Posts: 9
01/25/09 #3

Nod
Thanks..your post was informative and entertaining.
Part of my problem is I dont know WHICH court to be in..VARO level has shown to be a 7 year excercise in futility, the BVA level has been productive, but the BVA decisions do not make utility payments.   I do think you make a good point that it may make sense by asking the BVA to enforce the 2004 mandate (“a complete grant of benefit sought”) and actually award those benefits already given to me.
I filed a pro se Writ of Mandamus (at the CAVC) in November 2007 alleging the VARO ignored the Veterans 2004 NOD.
The court ordered the Secretary respond to my complaint.  The Secretary acknowldged my 2004 NOD but said it was “interpreted as a claim for benefits”.
However, I contend this “interpretation” reeks similar to  my tennis shoes after walking in my back yard because a 2004 claim for benefits would have, at a minimum, a DTA letter, and should, by all rights also  have either a benefit denial or award by now.  Further, the VARO manager testified they “did not hear” from the Veteran between March 2004 and January 2007.  However, that testimony reeks even worse than my tennis shoes, because I have copies of documents and IRIS emails sent to the VARO (stamped and dated “received” by the VARO) during the alleged “blackout period”.   I guess the management thought, when I got a 2007 copy of my C file, that I would also shred the same documents they shredded.  However, since they forgot to tell me which documents they shredded, I kept them all.  I have 4 “pending” NOD’s of which VARO has only acknowledged one.
Knowing that I have documentation that does not smell like tennis shoes, which court do you think I should be in?  VARO?  DRO?  BVA?  CAVC? VAOIG? Law Dog? Senator’s Office?  Or, should I “punt” and let the defense try to score the winning TD by waiting, and waiting.__________________
broncovet
NOD
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Posts: 652
01/25/09 #4

Okay, bubba. let’s look at this strictly from the standpoint of who’s on first, etc. The AOJ (Agency of Juristiction) will always be the defining rule on these things. You (or any properly POA’d law dog or, God forbid, a VSO)must determine this like unraveling a sweater coming undone. Keep pulling on it until you see where it leads. My technique is to follow it until it dies out. That’s who owns it. If they failed to finish the job, they are the guilty party. The BVA and CAVC always do the Macarena and figure out if they do, indeed, own the thing and have juristiction to act on it before they lift a finger and do anything.I do not have your C file in front of me so I’m trying to do this with binoculars. Let’s say you took a properly appealed SSOC/F9 to DC and got a proper BVA SC decision. BVA would have sent it back to your VARO for a % rating, and proper financial award. If they(VARO) failed to grant your $ and complete the directive from BVA, then you have to seek redress from BVA. They are still the AOJ for anything relating to that judgement. When the VARO was handed that, they should have given you everything you won –AND handed you another SOC to answer if you were not happy with the %, the ED, or the $. If they did not, then the adjudication is not complete. Go to DC, Go to BVA, Do not pass Go! Start that one there. No decision is ever “complete and final” until a period of one year has gone by without a NOTICE OF DISAGREEMENT. PERIOD.(38 USC)Having filed and received a WOM, technically the CAVC owns it now!Re the Writ of Mandamus in 11/07 regarding your 2004 NOD: I do not know where it stopped, nor do you say what it concerned or whether you received an SOC. A properly executed NOD, if properly labeled as such(be it on a 21-4138 or a piece of toilet paper)will always be a NOD-nothing more, nothing less. It would obviously have been sent to them by you following a letter they mailed you denying you some, or all of benefits you filed for. It could not be confused with a new claim unless you are incredibly verbally challenged or you had a VSO in charge of it. I concur with the feeling you have that an award or a denial would have arrived by now. I am going to assume that you are relatively intelligent and sent all the 4 NODs via Certified Mail, Return Receipt Requested? The presumption of regularity will attach to that. I also will assume you have not changed your address during the course of this adjudication? Seeing as its taken so long, it would not surprise me if you had one of those flexible zip codes. They will try to blame it on that if they can.
Were I in your shoes( and I may be soon as I have 7 claims in various states of completion spanning 20 years), I would be sending my complaints in the form of more WOMs to the CAVC. Make sure you send copies to BUDMAN and the OIG, too. If your senator is on the Veterans Affairs Committee, send him one as well. If he isn’t, send it directly to Sen. Akaka. Pretend you are explaining it to a kindergartener with ADHD.Do not punt unless you are incredibly rich and are using this for a non-interest bearing IRA! You need to get this on someone’s desk that you can physically talk to. You know as well as I how difficult it is to find a warm body with authority at that August Institution. You may accomplish the most by contacting the Service Center Manager if they still have anyone willing to admit to that Job description at Drew’s VARO. You can do this via the Dial A Prayer telephone #,or, failing that, a personal visit to the House of Horrors. Remember- no guns, knives, baseball bats or tactical nuclear devices are permitted. Leave the bad words at home.Lots of sad smiles are in order here. You are the aggrieved party and are long overdue for some Justice.

The one thing that disturbs me the most is the TDIU rating. If you have the requisite % to qualify(one disability rated @ 60% or more-or- one disability rated @ 40% with additional disabilities that combine to make 70% or more), VA is required to make a decision on that within 90 days of filing. That is the law and there is NO wiggle room on that rule. If you lacked those requirements, they still should have been polite enough to mail out out a denial letter.

Now, with that all said, you must have CBS, NBC, and ABC in your town. The locals always have a “fix it” ombudsman or a “You’re never gonna believe this $hit” dude that loves to discover injustice. This is the perfect storm for you. Nothing would put a bigger feather in Shinseki”s hat than to have you show up on his doorstep as he takes over. While you’re waiting, click on the attachment below,take two and call me in the morning… 

broncovetRegistered: 01/24/09
Posts: 9
01/26/09 #5

NOD
I am considering trying something REALLY CRAZY because I had a “Popeye moment”..”That’s All the VARO bull I can stand and I cant stand no more”  I figure I would bounce it off you first.  It goes something like this:VETERANS SUICIDE NOTE
The Veteran respectfully requests that this note be regarded as a suicide note, with intent or plan.  Copies of it have been sent to the CAVC, the BVA, the Police department, and, worse, my very angry wife with instructions to complain to the media, “How could the Regional Office let this happen?”
This Veterans suicidal ideations are “at least as likely as not due to military service” and have been aggravated by disgracefull treatment of the Veteran by the Regional Office.
I have elected NOT to tell you how, or when, OR EVEN WHO, this suicide will occur, because about 5000 other Veterans have already taken their own life, and according to CBS news another 120 Veterans will commit suicide this week.  I am speaking the voice of all 5000 of them..because they arent talking but I have had all your bull I can stand and I AINT TAKING NO MORE!!!!!!  GET IT?
My family and my doctors are sincerly hoping that I dont do this, but there is no doubt in my mind that Drew Careys RO in Cleveland is betting that I wont get any help and that I will be successful in my attempt.   THIS WONT “BLOW OVER”, THE BVA/CVAC wont fix your mistakes again, and asking for more C&P exams WILL BACKFIRE.   ANY Additional DELAYS are, well…..suicidal.
I will make a decision based on whether or not to “finalize” my decision contingent upon your action upon my claim.DO NOT PUT THIS DOCUMENT DOWN, but take it to your supervisor and tell them this Veteran is nuts and wants IMMEDIATE action on his claim.  If you are the supervisor, then dig the rest of my claim out of the shredder bin and apply the following congressional mandate to it: ‘fully and sympathetically develop the veteran’s claim to its optimum before decision on its merits.”  By the way, this Veteran is facing a LIFE THREATENING CONDITION and requests that a decision be rendered and sent in TODAY’s mail.
You do not have to approve the Veterans claim, but if you deny it you had better have some pretty good reasons as to WHY the Veteran is somehow not eligible for a 70% evaluation for depression and also TDIU, considering the evidence contained in this letter and the Veterans Cfile.  If certain evidence has been shredded, then you had better connect the dots “as if” that evidence was there because there is no time to order any more C&Pexams or other reports..the time limit expired on ordering more C&P reports 6 years ago.   Call the doc if you like. ..but if you get his message machine then apply the “favor the Veteran” rule.
After you complete this decision, then IMMEDIATELY PROCESS ALL other VETERANS decisions whose claims are MORE THAN FIVE years old..starting with those 30 years old or more, then go to the 20 year claims, then 10 year, 5 year, etc.  NO MORE VETERANS deserve the disgrace of having their claim sit in your office for MORE THAN 5 years since initial application, regardless of how many times the Veterans claim has been appealed.   If the Veterans claim has been shredded and cant be located then APPROVE it, because it is YOUR FAULT.__________________
broncovet
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/26/09 #6

I would probably like to sign my name to that, too. But, being a realist, I know they are praying I will “cross over” to be with Jesus and they won’t have to pay MY irate wife. With that said, I suspect I may have a better idea to elicit a response.You mentioned “life threatening illness”. Now, as I am unaware of just exactly how ill you are(that binocular issue again), let me illuminate you on a helpful rule. If you are in a financial or medical hardship situation, you qualify for a 90 day ruling on your application for said hardship. Just as they must adjudicate a TDIU claim in 90 days, so must they also do the same if you apply for 38 CFR 20.900(c)-{38 USC 7107}. If you can prove you are in danger of losing your home to foreclosure or your current medical condition is ratable at the high end of DC7354( HCV)and your relatives are making plans to plant you outdoors soon, you qualify for this codicil. Remember, you are required to prove these claims with facts from your med. provider, your mortgage company, etc. Mere bald assertion of these claims without backup paperwork will result in a denial. However, when they do grant your request (and they are fairly liberal on this), they will then move all your issues to the top of the pile and adjudicate your claims on an RFN basis. I guarantee they will not go home on the 90th day without completing the project. That is law. So, should you qualify for this dispensation, file immediately with the supporting paperwork. If you wish to quote the regulation, look to your left margin in the blue area for the Federal Code and look up 20.900(c). It discusses it in terms of an Appeal, but the reg. applies to the VARO as well.I used this method because my shelf life date suddenly changed after 1 dose of IFN (it started an AIH response and I can’t stop it). I filed it on Dec. 2, 08. After an Iris inquiry in mid January, I discovered that it(everything) was ready to rate as of 1/09/09. They have been toying with this since I filed a NOD in July and asked for a DRO review for 94 EED and a Fenderson rating to the present. Long and short is 1 month for the decision on the fin/med hardship and 30-60 days for the Fenderson adjudication.That is way faster than singing “The Letter” by the Boxtops to them. I am all for humorous and/or extreme measures. I was born one day before April Fool’s, @ 2349 hrs. I feel I personally induced Mom’s labor myself. My humor doth runneth over. I am the “Person with a disgusting sense of Humor” who created a fake $1,000,000.00 Publisher’s Clearing House Check on plywood and drove around in an unnamed low income housing area on April Fools with helium balloons and “PCH Prize Patrol” magnetic signs on the sides of my Brand new Ford Expedition in 2002 ( in a northwestern state named after our first President that touches the Pacific Ocean which shall remain nameless). I had a parade of vehicles following me around until we left for lunch. So, being no stranger to humor, I appreciate your ploy. I expect nothing would come of it other that Drew Carey’s Loompah-Loompah RVSRs accidentally shredding all the wrong files of terminally ill Vets in hopes of destroying the pertinent ones. Murphy’s Law usually prevails in these cases. You do realize that they may shred ALL the files as they have screwed over virtually every Vet they have come in contact with over the last 54 years since WW2?

I do still see the”Broncovet abused by VA for 6 years. News and film at 6″ being a viable ploy to get their attention. Bad news travels fast. Just ask that Governor 2 states to the left of Ohio about it. Bad news about govt. misbehavior travels exponentially faster. The hardship path, however, is guaranteed. If you qualify legitimately, go for it, sir. We stand behind anything you do. If it backfires,sue us. We’re judgement proof, as I assume you are. Hell, virtually all Stage 3-4 Vietnam Vets are. I have another news flash for you today, too. I lied. My last name isn’t Nod. I’m dead serious about that or will be soon.

I will go back to the CAVC site and look for your WOM this afternoon. Perhaps I can glean more info from that. Best of luck and let us know if you choose the Channel 7 option so we can keep an eye out for your 15 minutes of Andy Warhol fame, sir.

RobD1956
Avatar / PictureModerator
Registered: 11/22/08
Posts: 31
01/27/09 #7

Senator time. Are any of your senators on a VA committee? If so write him/her the same type of letter I’m responding to. Then If you get no response from him/her. Write a high ranking Senator that is on a VA committee. They will kick yours into gear I cant say this works all the time and for everyone but It reclaimed mine from the shredder and its now in process. If you have long distance phone service call em. They are starting to pay attention .We all must do our part to make them work instead of rip us off. And leaves us for dead.. Note this is just my opinion and it may or may not ruffle some feathers but like I said it worked to bring my file back from the dead. Do it know while the issue is starting to be come hot on the Hill. NOD has a lot of ammo to fire at the VARO’s and we are not afraid to shoot from the hip.
broncovetRegistered: 01/24/09
Posts: 9
01/27/09 #8

I think suicidal ideations would qualify as a “life threatening illness”, dont you?
In 2004, I was in danger of loosing my home.  I told the VARO that..and 19months later they finally got me about 29% of the benefits I was entitled to in 2004.  It was too late..I lost my home, my truck, and my wife filed for divorce.My problem seems to be one of accountability.  The VARO has their “interpretations” of the law.  They “interpreted” my NOD as a claim for benefits.  They “interpreted” a BVA award of a “complete grant of benefit sought” to mean a  remand granting me a 0% evaluation for one of 4 benefits sought, while completely ignoring the other 3.
They have “interpreted” the “favor the Veteran” rule to mean “forget the Veteran”.
I am aware there are regulations prohibiting the VA from doing this, but, they seem to have effectively manipulated and circumvented the regulations in the interest of their own agenda.
When the VA messes up, we are supposed to have a right to appeal.  But there is not anything preventing the Regional office from just plain shredding or disregarding the Veterans NOD, thereby nullifying any appeal rights.  The problem is the fox is guarding the henhouse.  It is wrong that we file a NOD with the Regional Office..that is like a gal who gets raped asking the rapist to represent her in a court to convict him. Its a conflict of interest.__________________
broncovet
NOD
Avatar / PictureManager
Registered: 11/22/08
Posts: 652
01/28/09 #9

Were I you, I would keep that date with the law dog. As I sent to you via e mail, there is no way to defend against this shy of congressional inquiry. Having your own legal representation in something this screwed up is paramount. As we do not specialize in this vein of VA Law, we find ourselves over our legal heads and suggest those things I mentioned above and in the private E mail. Good Luck, sir
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DIY Claim–Danger! Danger!

NOD
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Registered: 11/22/08
Posts: 652
02/10/09 #1

Here we have a Pennsylvania Veteran who has chosen to defend himself. We are going to dissect his Remand from the BVA and look at mistakes, errors, and ways to prevent you from doing the same. This is not to say you cannot defend yourself. Just make sure you are very familiar with 38 CFR prior to setting sail.Citation Nr: 0833916
Decision Date: 10/02/08 Archive Date: 10/07/08DOCKET NO. 07-07 212         )         DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh,
Pennsylvania

THE ISSUE

Entitlement to service connection for Hepatitis C.

ATTORNEY FOR THE BOARD

Gina E. Fenice, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1970 to
September 1971.

This case comes before the Board of Veterans’ Appeals (Board)
on appeal of a July 2005 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Pittsburgh,
Pennsylvania.

REMAND

The veteran contends that he is entitled to service
connection for hepatitis C because he was diagnosed with
viral hepatitis in service and his hepatitis C is
attributable to his being vaccinated with an air gun in
service. Though the veteran has other risk factors for
hepatitis, including three tattoos in 1994, 1995, and 1996,
he does not believe his hepatitis stems from them because his
low viral rate and high fibrosis score indicate that he has
had the disease for a very long period of time.

Stop. First of all, the Veteran is “contending” this. He is not a doctor and is now making medical conclusions as to where he picked up HCV. Wrong. That is referred to as “lay testimony” and will be thrown out with tomorrow’s trash. He has a good case, but he is going about it all wrong.

The veteran’s service treatment records indicate that he was
diagnosed with viral hepatitis with jaundice and
mononucleosis in service. Subsequent medical records from
private physicians indicate a current diagnosis of hepatitis
C in June 2003. The record does not contain any medical
opinion with regard to whether the veteran’s current
diagnosis is related to his in-service diagnosis, or any
other event in-service, including vaccination using an
airgun.

Stop. The veteran lost this at the VARO level and it is on appeal here to the BVA. What’s missing is his nexus. He doesn’t have one. This is the “lipstick on a pig” moment. Without one he will get an exam, be run through the program, and end up losing again. VA is going to provide him with one because they are very helpful. I guess I don’t need to tell you what their nexus will say. 

In 2003, Dr. Brian Berk proposed that the veteran’s
symptomatology might be suggestive of chronic viral
hepatitis, but the opinion does not link the symptomatology
to service or provide any conclusive answer
.

Stop. Remember, for a nexus to have validity, the doctor has to show a cause and effect with the disease to the Veteran’s time in service. Apparently, this doctor has simply stated that the Vet has chronic hep-period. So what? That and $4.50 will get you a really dynamite Latte at Starbucks. It doesn’t help to prove any correlation between hep now and hep in 1970.

VA’s duty to assist the veteran includes obtaining a thorough
and contemporaneous examination where necessary to reach a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2005). See also Snuffer v. Gober, 10 Vet.
App. 400 (1997). In light of the veteran’s service treatment
records supporting a diagnosis of viral hepatitis, and the
veteran’s current diagnosis of hepatitis C, the Board
believes that the veteran should be afforded another VA
examination to determine the etiology of the disease and
whether it is related to service. 

Here comes that VA nexus, ladies and gentlemen.

The Board also notes that in his VA Form 9, the veteran
stated that he had applied for disability benefits from the
Social Security Administration (SSA). Records in the
possession of the SSA could be supportive of the veteran’s
claim and should therefore be obtained.

Accordingly, this case is REMANDED to the RO or the Appeals
Management Center (AMC), in Washington, D.C., for the
following actions:

1. The RO or the AMC should undertake
appropriate development to obtain any
outstanding medical evidence pertinent to
the veteran’s claim.

2. If it is unsuccessful in obtaining any
pertinent evidence identified by the
appellant, it should so inform the
appellant and his representative and
request them to provide the outstanding
evidence.

3. The RO or the AMC should also obtain a
copy of any SSA disability determination
for the veteran and a copy of the record
upon which the determination was based.

4. Then, the veteran should be afforded a
VA examination by a physician with
appropriate expertise to determine the
etiology of the veteran’s hepatitis C.

The examiner must review the veteran’s
claims folders, and any indicated studies
should be performed.

Based upon the examination results and the
review of the claims folders, the examiner
should provide an opinion as to whether
there is a 50 percent or better
probability that the veteran’s hepatitis C
is related to any incident of his military
service. The rationale for the opinion
must also be expressed.

And, lo and behold. Here is the request for that same nexus to be proffered free of charge, courtesy of your local VAMC or QTC.

5. The RO or the AMC should also
undertake any other development it
determines to be warranted.

6. Then, the RO or the AMC should
readjudicate the veteran’s claim. If the
benefit sought on appeal is not granted to
the veteran’s satisfaction, he and his
representative should be provided a
supplemental statement of the case and an
appropriate period of time for response.
The case should then be returned to the
Board for further consideration, if
otherwise in order.

By this remand, the Board intimates no opinion as to any
final outcome warranted.

No action is required of the appellant until he is otherwise
notified but he has the right to submit additional evidence
and argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans’ Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).

_________________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans’ Appeals

Now, on the face of it, it would appear that the Vet is being accorded every legal avenue to defend himself. You might even come to the misguided conclusion that the VA is going to make all this right and get it straightened out for the poor man. A simple misunderstanding, right? He did have hep in service so it will all all get straightened out and the truth will be told. Not. This is what is going to happen right about now as I type this. He has had his exam and sure enough, he has hep c. As to where and when he got it is decided by the the VA Examiner. They have by now turned his life upside down and checked for any criminal records, SSA records, and any VAMC records. He will or already has received a polite denial saying “after careful review, the examiner has determined that it is not at least as likely as not that the veteran contracted this in service.” He probably has gone on to say that the viral hep in service was A or B, that it was acute rather than chronic, and therefore is not related to the hep the Vet currently suffers. And the Vet is free to appeal this decision back up to the BVA. The problem is that now there is a nexus on the record. If the vet is smart he will immediately go out and get not one, but two nexi to refute the VA, and some really good medical info to back up his theory. With any luck, the doctors never typed him for an HAA test in 1970. If that is the case, then he can say GROVES V. PEAKE and he will win. Remember, if they didn’t diagnose the hep in service then your hep C now could presumptively be the same hep you had then. I hope he does. If anyone in Pittsburgh recognizes this Veteran, tell him to contact us and we’ll tell him what he’s going to need. 

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