Veterans Claims Help

This is an example, in our minds, of what the VA wishes it could do with all our claims. We know there are a few caring souls in the system and they work hard to see justice done. Unfortunately, justice is as uneven as an unpaved road. The decision below is a classic example of a Vet fighting for his claim for years and years, only to die towards the pendancy of  it. His battle began in 03. He was finally granted SC @ 0% in 05. The battle continued for 5 more years with a rating that certainly didn’t match his medical situation. Finally, in 08, the RO begrudgingly assigned him 40% for the HCV and 70% for cirrhosis. At the top of the decision, under “THE ISSUES”, the reader will note the appeal is for “an initial rating” of a higher percentage. This is an important distinction. It indicates the Vet had been appealing the original 05 decision as well as the newer one. Had it been an appeal of a denial for an increased rating request, it would have been phrased differently.

Judging by the fact that he punched out in the middle of the claim before he could get 100%, the reader is left with the distinct impression that he must have been pretty ill. This illustrates what is wrong with the system. Taking years to adjudicate a Vet’s claim deprives him/her of financial security (or what VA would have us believe is adequate remuneration) until the time of their choosing. In this case it had quite an impact on his bottom line. It likewise stands to reason that the stress associated with this didn’t help his medical condition. Our hearts go out to his family.

The Veterans Benefits Improvement Act of 2008 fortunately will allow his spouse to pick this claim up where he left off and hopefully she will get her DIC . It would seem that there is a better way to run this railroad. Perhaps these injustices will soon become a thing of the past. We here at AskNod certainly hope so.

http://www4.va.gov/vetapp10/files4/1035595.txt

We are attaching a series of decisions that deal with the “What if” of passing before one’s claim is accomplished. This situation leaves the battle for DIC in the widow’s lap. The first decision here is what we call a negative objective in FAC parlance. The widow loses because the Vet was not service connected for the hepatocellular carcinoma (HCC).  These are included to illustrate what occurs after the Vet sets off to the Happy Hunting Grounds. Unlike trying to shop for a favorable nexus, the VA is bound by autopsy results in rendering its decision. Period.  If this Vet had had a claim pending for Hep. or was already rated for it and the cause of death was Hep. or one of its ancillary disease processes, the widow would have prevailed.

http://www4.va.gov/vetapp10/files4/1038652.txt

This next decision highlights what happens if you wait too long and marry shortly before your spouse’s death. You must have been married for a year or more prior or have had children with the spouse at any time prior to death.

http://www4.va.gov/vetapp10/files3/1026355.txt

The decision below is an example of what will occur should the Vet pass away during the pendancy of the appeal or before the the BVA has an opportunity to remand the case to the AOJ for a rating.

http://www4.va.gov/vetapp10/files3/1022414.txt

We include the following to foster understanding of substitution:

38 U.S.C. § 5121A has this to say on the subject:

§ 5121A. Substitution in case of death of claimant

(a) Substitution.—

(1) If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121 (a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.

(2) Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations.

(3) Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe.

(b) Limitation.— Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title.

We probably should have posted information of this nature sooner. We apologize for our tardiness in doing so and hope it has not caused any undue stress on anyone seeking the information.

Imagine you filed a claim in 84 for Hep and they granted it. Non specific, good old generic Hep. Not A or B specifically. Certainly not C.

Fast forward to 2002. A new test and a new diagnosis of HCV. The ratings “expert” decides to deny this based on the fact that its a new claim, not a claim for an increase of the SC hep. This, gentlemen, is an ominous decision that may come to haunt more of our claims in the future. When VA starts getting picky and letting examiners make doctor diagnoses we have a serious problem. When they then hire the guy back after he gets his Crackerjacks Certificate and let him opine on a prior ruling, it becomes suspect. The examiner cum doctor now has to rationalize his defective decision. Instead of recusing himself, he decides to compound his crime with another defective decision. Only a doctor or an ARNP can provide a nexus letter that will survive the light of day. What, then, to make of a GS-5 deciding that the hep you had in 83 was B and nothing more?  Absent a test for it (C), this becomes a post hoc rationalization on his part. Watch out for this kind of circular logic. VA is fond of employing it to lethal effect on your claim.

This Vet was lucky. The VLJ saw through the ruse and ruled in the Vet’s favor. It could just as easily gone the other way absent an insightful judge.

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

This is part of the decision. It makes your hair crawl to think the “examiner” is now an M.D. and still comes to the misguided conclusion that the Vet couldn’t have gotten both Hep B and C at the same time. So much for inductive logic.

 The Veteran had another VA examination in March 2006 by the  same examiner, now an M.D.  The examiner noted that blood  tests were positive for Hepatitis B surface antibody,  indicating prior infection with Hepatitis B, since resolved.   Moreover, a liver biopsy confirmed the presence of Hepatitis  C, Type 1A.  The examiner noted a test in September 1971 that  was HAA positive, explaining that that test was used to  determine infection with Hepatitis B in that era.  The  examiner stated that Hepatitis B could not morph into  Hepatitis C, and further elaborated that Hepatitis B is a  double-stranded DNA virus, while Hepatitis C is a single- stranded RNA virus.  In addition, the examiner said there was  no evidence in the medical records to support the Veteran’s  contentions that he had a blood transfusion during service,  so the examiner could not determine the date of onset of  Hepatitis C without resort to mere speculation.  Although he  mentioned the Veteran’s contention that he was exposed to a  wounded comrade’s blood, the examiner did not address that  incident, if true, as a possible source of Hepatitis C.  The  examiner noted that the modes of transmission of Hepatitis B  and Hepatitis C are very similar, but did not render an  opinion as to whether the source of the Veteran’s Hepatitis B  contracted in service could have also been the source of his  Hepatitis C.

May, 2002 to March 2010. Two months shy of 8 years to win his claim. My daddy once said there was no difference between trees and corn, but  you had to be patient because trees take a little longer. In the context of VA Law, think trees and you won’t be disappointed.

P.S. Look at the Code of Federal Regulations § (Section) they are quoting here.

CONCLUSION OF LAW  Resolving all reasonable doubt in favor of the Veteran,  Hepatitis C was incurred during active service.  38 U.S.C.A.  §§ 101, 1101, 1110, 5103A, 5107(b) (West 2002 & Supp. 2009);  38 C.F.R. §§ 3.102, 3.303 (2009)

They insinuate that it is solely a benefit of the doubt grant and the evidence is in equipoise (§ 3.102). But look right after that and one sees § 3.303. Now, §3.303 deals strictly with chronic disease in service and proof of same later in life. That’s a completely different animal in the VA zoo.:

b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

This is really why he won. But why try to hide or disguise it? It’s well published Law and has been Code for a very long time. Is it that VA doesn’t want HCV positive claimants to know this a viable path to a grant?

The IQ of VA examiners (or lack thereof) is legend. A recent Congressional hearing revealed that 34% of them have college degrees. So why is it that so many decisions are won on Appeal? These gentlemen are ostensibly well educated and supervised by older, more experienced examiners. They are trained to do this and nothing else. We at ASKNOD suspect that they slept through the class on inductive and deductive logic thought processes. It is a sad testimonial to the quality of education available today. Less than 15 years ago, if an adverse decision was handed down and one asked for a DRO reconsideration, an older, more knowledgeable examiner would review the claim and often correct any defects. Claims examined today are confused with other’s facts and usually have doctor’s names and dates wrong. Witness this poor Vet’s predicament:

http://www4.va.gov/vetapp10/files1/1003111.txt

From that Religiously Challenged city in Texas where they burn down churches (Waco) comes this quintessential case. Vet applies for chronic Hep. B in 2002. Vet gets the bum’s rush.Vet fails to file NOD and appeal. Vet applies for Tinnitus in 2005. Claim denied. Vet fails to appeal. In 2007, The DAV represented him with more success. He obtained his medical records from the NPRC in St. Louis and submitted some showing hep. in service. Since these are new and material evidence, the RO had to reopen his claim. Now, the interesting part is that these are no run of the mill medical records. These are contemporary “Official Service Department” records. As such, they permit the 2002 decision to be vacated as if it had never happened. This lucky Vet may win his hep. claim with effective date of the original 2002 date. Stinky, dude. Nine years of back pay if he wins and gets a Fenderson rating. We certainly hope he wins this one.