BVA– Horse Trading At The BVA Corral.

Posted on September 26, 2011 by asknod

We see this ploy more and more now as resources become more dear. Someone higher up has finally started paying attention to funding and realizes the VA is getting ready to get slammed with a lot of claims that the Vet will win. Response? “Well, hell, Bubba. Let’s you, your rep and me have a little off the record talk back here in my office. Coffee? We’re prepared to give you 100% on the brainfuck, 60% on the Ischemic Heart Disease from the AO and SMC-S of $320/ mo. and you drop the hep claim, the TDIU and everyone goes home happy. We’ll remand back to the AOJ and you can take up the earlier effective date of 2006 with them ’cause we don’t own that one. So, whatdya say? We got a deal?”.

When you matter-of-factly pull out the Claymore, slowly and securely anchor it into place, check one last time that you have correctly positioned the “face this side towards enemy”   and start laying out the wire for your actuator you suddenly get their undivided attention. At this point they wish to start a “dialogue” with you.

The VA has long had the General George Armstrong Custer habit of Dieing on the Hill for no good reason. When defeat is inevitable, they will soldier on as one to the end. This monolithic, stoical behaviour is futile, economically unfeasible and generally results in a lot of appeals these days. Veterans as a class have become more and more savvy the older they get. With the advent of the internet and access to the bowels of the VA’s ratings habits, we are discovering, like the Emperor, we too have been naked all these years.

The VA, in splendid isolation from the public, has been getting away with judicial murder for decades and more. With the exposure the internet provides, they can no longer do this. I suspect you will see a lot more of this in the future where Vietnam Vets are concerned. The writing is on The Wall.

http://www.va.gov/vetapp11/Files1/1106191.txt

Right after I posted this, I came across another example. The Vet below is AO exposed. He’s sick and will not be around for a lot longer. The tradeoff is simple. The VA is sick to death of this HCV vs. jetguns controversy. They can see some inevitable writing on the wall, but are trying to stave off disaster financially. What better way than to divert attention away from it? The expedient thing to do is to grant for the Prostate issue w/ a high % rating which he will win anyway and give him the wave off on the Hep. Vet gets $ and VA gets closure (denial) on HCV claim. Win-win for VA.

http://www.va.gov/vetapp11/Files1/1101080.txt

One thing Vets can take away from this decision is another way of being able to prove boots on the ground in Vietnam. VA is fond of denying squids and wet foot Marines for AO based on their never touching land or not being able to prove it. This may be true if they sailed over from America on the U.S.S. Mayflower, but not all did. Some traveled by air and landed at our favorite airpatch (Tan Son Nhut) in Saigon and then deployed to the fleet. All Brown water squids did this. So keep that in you bag of tricks if they try to sandbag you. Chances are you didn’t sail on the S.S. Minnow to Sydney for R&R either. Most of us flew there- from the Saigon Airpatch. And that, gentlemen, is boots in that sweet, red clay which means presumptive exposure and an invitation to join the Nehmer party (already in progress.).

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BVA–New JetGun Win W/ 2 Nexi.

Posted on September 26, 2011 by asknod

Here is a Lady Vet with her act together. She came armed and dangerous to this shindig. It had to go to the BVA to be won, but we expect that nowadays. The VLJ used some cutting edge logic to cut through the poor reasoning of the VA examiner. These paragraphs caught my eye:

The only other medical opinion on this question was that of the  November 2007 VA examiner.  She reviewed the claims file, noted  in-service hepatitis A and B diagnoses, and concluded that she  could not “make a determination without mere speculation” as to  the current hepatitis C was caused by service.  She noted that  there were no positive markers for non-A, non-B viral hepatitis  infection, that the Veteran had separate infection of hepatitis A  and hepatitis B, and that hepatitis A is a self limiting viral  infection and does not lead to hepatitis B.  The examiner  concluded that, although the risk factors for hepatitis B and C  are similar, hepatitis B does not convert into hepatitis C.   In weighing the above medical opinions, the Board notes that each  are flawed.  Drs.   Carrera and Frenette each erroneously noted that the Veteran was  diagnosed in service with non-A, non-B hepatitis.  However, it  appears to the Board from the context of their remarks that they  meant to indicate that diagnoses of hepatitis A or hepatitis B in  service could have been erroneous diagnoses of what was actually  hepatitis C.  The November 2007 VA examiner’s statement that  hepatitis B does not convert to hepatitis C is beside the point,  as there is no argument that such a “conversion” occurred, but,  rather, that the hepatitis B diagnosis was in fact an erroneous  diagnosis of what was actually hepatitis C.  Moreover, in Jones  v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before  the Board can rely on an examiner’s conclusion that an etiology  opinion would be speculative, the examiner must explain the basis  for such an opinion or the basis must otherwise be apparent in  the Board’s review of the evidence.  Id. at 390.  It must also be  clear that the physician has considered “all procurable and  assembled data.”  Id (citing Daves v. Nicholson, 21 Vet. App. 46  (2006)).  Finally, the physician must clearly identify precisely  what facts cannot be determined.  Id.  the November 2007 VA  examiner’s conclusion does not appear to meet these criteria, as  she did not indicate that she had considered the evidence  regarding jet gun injections or the possibility that the  hepatitis B diagnosis was an erroneous diagnosis of what was  actually hepatitis C.  In regard to the comment that there were  no markers, we are unable to determine whether there were markers  that were negative for non-A non-B or that there was an absence  of testing for markers.

She used the Nevada Office of Veterans Affairs (Reno). Seems like they are the go to people for VSOs judging by this.

http://www.va.gov/vetapp11/files1/1105990.txt

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BVA–No Nexus=Dreambucks

Posted on September 26, 2011 by asknod

I had to search for a perfect example of this to illustrate the folly of filing a claim without a nexus. This Veteran could have, and most assuredly should have, won this claim. We won’t go into why his Service Officer from VFW let him get to court without it, nor why he was dissuaded from having a Travel Board hearing or a Videoconference one.

This case illustrates a train wreck in slow motion. The BVA summarizes all the evidence in Lawspeak and we watch helplessly as the fellow’s claim disintegrates in the bestHollywoodslow motion. The tattoo in question that is the precursor to the destruction probably did occur during service. To use a different recollection of events as the evidence to prove his testimony is unreliable is very flimsy.  However, it does reveal how far the VA will go to find a chink in your armour.

The reader will notice also that the Vet had a viable risk factor despite the lack of a recorded tattoo. He was a combat engineer-as in Gee, let’s go build a road through a free-fire zone without any support. We can always call Superman with our Jimmy Olsen high-pitched whistle slash wristwatch. Combat engineers were part insane, part macho and very good shots in that “conflict”. They had to be in order to avoid becoming a Charles Darwin statistic.

The VA decided to can this with a VHA opinion. So much for an Independent Medical Opinion.  The VHA examiner dutifully wrote a well-reasoned treatise on why this gentleman came down with HCV slightly later than a year after service. The incubation period was too long. The blood of wounded soldiers he came in contact with was free of HCV.

This was the positive evidence against his claim.  Now, what wasn’t done to develop the claim that might have proved his contentions? You will notice that in spite of being mentioned, there was no testing done to ascertain if the Veteran was seropositive for Hep A or B. If he was exposed to B, he very well might have contracted C at the same time. That was one of the theories my doctor explored in his nexus for me. B and C can only be transmitted via direct blood exposure. Hep. A is a food born illness only. Often, what wasn’t explored as a risk is as telling as what was. For instance, there’s no mention of the jetgun until appeal. Too late in the Board’s eyes. Besides the Vet has no medical training, so this seems to be a last ditch defense volunteered by none other that Mr. Veteran’s untrained legal representative.  How about deciding not to have a hearing? Buddy statements confirming the tattoo was applied in service? All of these were missed or overlooked. We won’t go into the Monday morning Quarterback mode and analyze the could ofs, would ofs and should ofs. If we’re reading this now we only hope our Vet friend appealed up to the Court. It’s too late to introduce new evidence, but never too late to claim failure to assist.

These two paragraphs speak volumes to the loss:

This VHA medical opinion appears to have been based on a thorough review of the record, including the Veteran’s comprehensive treatment records, and a thoughtful analysis of the Veteran’s entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”].  The Board therefore finds the July 2010 VHA opinion to be probative as to the issue of medical nexus.

Also of record as to the issue of medical nexus is the opinion of the September 2006 VA examiner.  Specifically, the VA examiner stated that “the Veteran’s hepatitis C infection is as likely as not related to previous history of hepatitis in 1971, tattoo left upper arm in 1968.”  Critically, the VA examiner provided no rationale for this conclusion and also failed to provide an opinion concerning the relationship, if any, between the Veteran’s hepatitis and his in-service blood exposure.  See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence].  Accordingly,the Board finds the September 2006 VA opinion to be of little probative value.

It is obvious from the above that the Vet had won this and someone higher up overrode the rater. How else could there be a positive finding of SC?

As we all know, or should, HCV travels on its own schedule and manifests itself very differently from one individual to another. Witness that I just lost a friend May 11th eight years my junior to this. He had it when he came out of service in 1988 and was granted a 10% rating by VA. When he started to slide downhill in 2006, he filed for an increase.  After two years of denials, he finally came here and we got him lined out on a game plan. He was awarded 180% in early 2009 but it was too late to enjoy. He went from Stage 0 to complete portal hypertension and cirrhosis in 24 years. I’m still relatively vertical after 40 years of this and am Stage 3.5.  Johnny was no Mormon, but he wasn’t a lush.  The important thing in retrospect here is that confounded nexus or the lack of an independent one.

Take this to heart when you file. Get the groundwork done and a good foundation laid prior to building a claim on it. If your chances of winning are 15%, then having all the Hickson elements sewn up before filing will bring the odds up considerably. Make it so, Number One.

http://www.va.gov/vetapp11/files1/1102254.txt

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BVA–NGU = Service Connection

Posted on September 26, 2011 by asknod

Something that needs to be expressed more frequently is that sexual promiscuity in service was not willful misconduct when we were in. I assume that is still the case but I don’t keep up on that kind of thing. It may come to pass that with the end of DADT and permissiveness of having gays openly serving, that we will experience an uptick in HIV/HCV cases. That remains to be seen as the military hasn’t yet completed the changeover. Wait until the menage a trois rage hits the military. Imagine nametags that have several hyphens and take up two or three lines above the fatigue pocket?

     I have had Service officers who profess that it is willful misconduct to come down with the clap in service. My MOPH rep. even went so far as to say tattoos were, but we know that isn’t the case. There’s not enough room at Fort Leavenworth to incarcerate 75% of the enlisted Navy and Marines who were guilty of that.  I won’t go into it any further than to wonder why you’d put something permanent on you when you’re inebriated. It shouldn’t come as a surprise when you wake up and find it. The problem seems to arise 20 years later when your spouse wonders who the chick with big tits named Patsy is/was.

     Getting back to clap and all things VD, we can blame it on alcohol just as easily as being caught out without protection. I do know that you were welcome to help yourself to as many protective devices as you desired when I was in sunny Southeast Asia. I and many of my friends availed ourselves of this generous policy to install them on the ends of our CAR-16s, the occasional Thompsons and especially shotguns.  They worked very well for the purpose. I suppose they were also useful for preventing the spread of disease. I had several incidents of “non-gonococcal urethritis” (NGU) which I attributed to failure to observe that protocol. What? You think Mr. NOD was a complete saint? I’m not proud of it, but I foolishly depended on ladies of the night having a current, up to date, stamped VD card saying they were free of these things. Alcohol can impair your eyesight from what I have read.

     The military used to do everything in their power short of confining us to base to reduce the numbers. We had lectures and photo slide shows of the horrors of it. Somehow that never dimmed our desires. When I was eventually seconded to AirAm there were no lectures. They really couldn’t punish me for it even though that may have been their policy. I was still technically in the Air Force regardless of the fact that my ID said United States Agency for International Development (USAID). The fiction was that I was a “French teacher”.  We had no bases per se, just operating locations. The prostitution trade was 160 klics south in Vientiane. One did not consort with the local maidens at risk of becoming married to them. Shotgun weddings were still the norm for any so foolish and our government did little to dissuade us other than to admonish us not to.

     I have seen many ratings at the BVA that were denied at the RO under the mistaken belief that it was willful misconduct or “less likely than not”. ROs are fond of denying Hep.  If  your STD occurred in service and was fully documented. Their rationale is that it is very rare.  Conversely, if it happened after service and you mentioned it in your risk factors questionnaire, VA will focus on this risk being the most salient to the exclusion of all others except drugs. VA doesn’t explain the dichotomy of European and Asian STDS being HCV-free nor do they explain how VD in America is rife with it. The below decision is an example of this.

     So, with this in mind, if you do have SMRs that document Winky getting dirty, you should list it as a risk factor. You won’t win at the RO, but you sure will at the BVA. They may call it the benefit of the doubt, but who cares? Service connection is a bitch under the best of circumstances, so all’s fair in love and war (no pun intended).

http://www.va.gov/vetapp11/Files2/1118033.txt

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BVA–Read and heed: 100% ratings

Posted on September 26, 2011 by asknod
      All Vets filing or still appealing for a higher rating on an existing claim should read this decision. It was well done by the Vet. He did slip on the DM2 nexus , but will probably win if he uses his noggin.He just needs his hep. doctor to state as much.

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BVA–1151 Claim-Contaminated VA Transfussion

Posted on September 26, 2011 by asknod

As we have current member(s) fighting VA over this issue, I include this as the latest BVA word on the subject. Valuable info is always gleaned from these even if there is nothing precedental about them. For those of you from Yorba Linda, that means it won’t set a President.

     Interestingly enough, the Veterans Law Judge who decided this is the one assigned to my case- Mark D. Hindin. I think the man has character and is well-versed in VA law. He’s been there since 1995 in one capacity or another. He seems conversant on VA hep. law as well. Now, If they would give my case to him for adjudication instead of ditzing around with it…


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BVA–Hep/Cirrhosis dilemma–pyramiding quandary

Posted on September 26, 2011 by asknod

Here’s a horror story I’m sure some of you Veterans have encountered by now. Imagine filing for SC for hep and cirrhosis and winning. Your med recs support it and you are most definitely entitled to it. One little problem. You are still healthy enough to soldier on and the cirrhosis hasn’t progressed to a decompensated liver yet with all the attendant side effects so common to the disease. VA rates you at 30% for the cirrhosis (D.C. 7312) and 20% for the Hep (D.C. 7354). So far so good? Not quite. Let’s just say for argument’s purpose that you are slowly going down hill and your health is starting to become an issue. It happens slowly as we all know but it happens. When it does, you usually motor on down to your AMLEG or VFW post and tell the VSO what’s up and they put in a claim for an increase in your rating.

Unfortunately, due to the way 7354 is set up, you are at a strategic disadvantage for rating purposes if your hep is complicated by the cirrhosis factor. At the bottom of the 7354 rating are several notes that basically state you cannot pyramid your claim. That term means you cannot use the rating criteria for cirrhosis issues to up your rating percentage for hep and vice versa.  If you are SC for both then you will be rated on a percentage basis for each individually with extra caution on VA’s part not to duplicate the symptoms of one with the other. It looks good and reasonable until you get to the percentage of disability. VA will do what they did to this Vet with a 20/30 % for hep /cirrhosis even though his true disability picture is higher.  This happens so frequently now that it is really starting to interfere with Vet’s rights to a compensation % commensurate with their true illness.

We at AskNod don’t advocate how Vets should present their claims. We do try to illuminate problem areas you may encounter and this is a big one. We suggest you focus on the real culprit first which is Hepatitis. Get your SC and a rating for this. If your disability picture is extreme, concentrate on a 100% disability rating. If it hasn’t risen to that level yet, then settle for the 60% and never forget that TDIU is now on the table automatically since the Rice v. Shinseki (2009) ruling at the CAVC.  The high Court in AB v. Brown (1995) found that a Vet is automatically seeking the highest compensation he can get when he applies for SC. This just confirmed what we all knew for all these years. Why would a Vet put in a claim for hep and request a 10% rating if he were entitled to a 20 or 40% one?  He wouldn’t and AB v. Brown affirmed that. The Clemons case added the caveat that if TDIU was appropriate then if should be considered automatically without the Vet having to beg for it separately.

Once you have attained the absolute highest rating you are entitled to for the Hep, the matter of cirrhosis should be considered. Trust me, assuming you never attained SVR via Interferon/Ribavirin therapy, Hepatocellular Carcinoma (HCC) is definitely in your future. Your liver will almost always degenerate slowly and eventually become decompensated. When this happens you have reached Stage 4 cirrhosis. Either you get a transplant or you die eventually. That might sound brutal but it is a medical fact. There usually is a period of stability from having a compensated (or functioning) liver and a decompensated (or non-functional) one once you’ve been diagnosed as cirrhotic.

This is the time in our minds for you to file for 7312. Even if you are rated 60% for Hep, you’d need a 90 % rating for cirrhosis to attain a 100% scheduler rating. Let’s imagine they gave you 30% for cirrhosis.  That would simply advance your rating to 70%. A 50% rating would only get you to 80%. Granted, you would probably be granted a TDIU, but you must realize you have to report annually for an exam to ascertain that you are still eligible for it. No, the 100% scheduler rating for the hep is still the advisable course if your symptoms support it.  Or, if you are late to this game and get SC when you have already hit the wall with cirrhosis, a 100% rating for that would be a good choice, too. We will tell you that you have to be pretty sick to get 100% total cirrhosis rating though.

With all this new knowledge, witness the poor Vet below defending himself pro se who has just stumbled across this dilemma. Accordingly, meet the poor Vet from San Juan, Puerto Rico who is preparing to be introduced to VA’s “non-adversarial judicial system” where the benefit of the doubt always accrues to the Vet…

http://www.va.gov/vetapp10/Files1/1002416.txt

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BVA- Boldly Going Nowhere

Posted on September 26, 2011 by asknod

Is it just us, or do other Vets who read the BVA’s decisions get a feeling of deja vu after reading about, say,  two or three denials? We like to scour these documents in search of meaningful and useful information that can aid in the defense of our brothers’ and sisters’ claims.This is an ongoing process as we have discovered that no sooner do we discover a new wrinkle or viable defense, the VA is onto it like white on rice and erects yet a taller barrier to service connection. Please observe this case closely. There are several things we are going to point out that will prevent you, the Vet, from a guaranteed loss. You may not win at the RO (AOJ) level, but the ammo we provide here will certainly stand you in good stead at the BVA and Court level.

It is unfortunate that the Vet we are analyzing here is defended by a VSO who is definitely not at the helm of the NCC-1701. As such, this starship is headed for the wormhole known as denial. It is even sadder because a Vet is expecting a lot more from his SO than a disinterested hitchhiker oblivious to his surroundings. There is no evidence of the SO’s fingerprints anywhere here. One could rightfully characterize this as a VSO “ghost” defense. The American Legion might as well have been in the Neutral Zone because they had no input or judicial advice that would have mitigated for a remand. Just the fact that this gentleman had the clap inVietnamalone was a major risk factor. That, combined with the knowledge that he was in a theater known for its incredibly high incidences of hepatitis A and B (and now C), were never even presented as evidence in his favor. We all know the old saw about jetguns and FAST letters, but this too was remarkably absent.

The VA court system is fond of trotting out the Maxson v. Gober (Fed. Cir. 2000) decision which holds that a disease or injury that goes untreated or has no medically documented history for a lengthy period, mitigates against its being service connected. While Maxson has many instances of being applicable in disease processes such as arthritis, heart disease and the like, it has absolutely no place in hepatitis C litigation. HCV has been repeatedly described by even the VA as being a “stealth” disease that does not manifest itself for 25 to 35 years. Yet in decision after decision, the reader will find regular references to Maxson as if it were Gospel. Vets would do well to take note of this now before reading it in their denial from the BVA. Your VSO, lawyer or you, if you are defending yourself pro se, must address it in your substantive appeal and remove it from consideration before it is used against you. Defending your claim should never be a reactionary process to adverse evidence used against you to your detriment. This is one reason we harp continuously about obtaining your service medical records prior to filing to avoid being blindsided. Find and address the perceived negatives and use them to your advantage.

When you file your claim it should be a well-reasoned, logical document with an A=B, B=C and therefore, A=C format. You cannot legislate on the fly. I often hear the argument expressed by Vets we’ve helped that if their first theory or effort fails, they can always come back with a new claim and say” See? Here. Look at this. It must have been this”. Justice doesn’t work that way. Every time you fail to make your case with the VA, any new attempt is a re-open of the old claim. Resubmitting old evidence is prohibited insofar as being the prime reason for reopening. Each attempt must present new and material evidence that a fair minded person would see is new. The laws for reopening a claim now are much more liberal than they were 20 years ago.

We’ll cherry pick a few paragraphs from this decision and it will leave you scratching your head as to why this poor fellow ended up on the short end of the compensation stick:

 ISSUES

Entitlement to service connection for hepatitis B and hepatitis  C, to include as secondary to service-connected diabetes mellitus and herbicide exposure. 

This is what provokes the thought that this gentleman is “Boldly Going Nowhere”. This is the essence of his claim! This is what he is betting his money on. The AMLEG Service Officer has to know this is not going anywhere but the circular file. You cannot hang your hep on DM2 and Agent Orange. Everyone in the VSO world knows this. Or do they? It has been attempted tens of thousands of times with not one scintilla of success.

The record shows that the Veteran’s reported risk factors for  hepatitis C includes carrying wounded and bloodied soldiers and  high risk sexual practices.  VBA Letter 211B (98-110), November  30, 1998.  The Veteran’s service medical records show that in  July 1969 and August 1969, he experienced burning pain on  urination.  In May 1970, he suffered fever, chills, headaches,  and nausea.  He had been ill for two days and was unable to keep anything in his stomach.  He was taking the malaria pill.  There were no significant findings.  Later that month, he had urethral discharge, and was diagnosed with gonococci.

Really? Wow, nothing gets past them pecker checkers. And here, gentle reader, is the smoking gun, the Holy Grail of service connection was right there in his med recs. All he needed now was the Nexus letter.

On May 2000 VA examination, the Veteran reported that his  hepatitis C began in Vietnam.  He denied risk factors including  intravenous drug abuse, prostitute exposure, or blood  transfusions.

It really makes one contemplate the possibility than venereal disease can be transmitted by simply sitting on a contaminated toilet.  Additionally, aspiring claimants should note that the Vet has now put an M.D. after his name and diagnosed the onset of his HCV as beginning in RVN. That’s against the law in 48 states.CaliforniaandHawaiiare exempt. Should you the Vet be tempted to buy a toy stethoscope and play Dr. Kildare, keep in mind that one can only report the symptoms one can see, hear, smell, taste and determine by touch. If your skin is yellow (jaundiced), that would qualify. Testifying that the doctor told  one he had hep is hearsay and treated as such.

In October 2001, a fellow serviceman submitted a statement  recollecting that the Veteran was hospitalized towards the end of his tour of Vietnam with hepatitis at the 71stMedivacHospital in Pleiku.

More Doctors. This time they’re buddies. A useful statement would have said that he was hospitalized,his skin looked like orange juice, he had projectile vomit that would make Linda Blair proud and slept a lot.

On October 2001 VA examination, the Veteran reported that while in Vietnam he had some exposure to prostitutes…

When your story changes and you start recollecting differently from what you recollected earlier, VA will decide that you are no longer a credible historian and suddenly all your “recollections” are compromised and worthless.

The examiner stated that the Veteran’s diabetes did not cause his hepatitis B or C, or his cirrhosis, because diabetes did not cause those conditions.  The Veteran was subsequently service connected for diabetes mellitus secondary to herbicide exposure.

This is what we call the “Nick, nack, paddy whack, give the dog a bone” moment. VA has now given Mr. Vet a 20% rating for DM2 and a $200+/mo. check to see if he’ll fade in the night and go away gently. They have also explained medically how it is impossible to contract HCV from DM2. It doesn’t appear to have sunk in.

On April 2002 VA examination, the Veteran’s past medical history was summarized as hepatitis C, status post liver transplant, with recurrent abnormal liver function tests, and rule out current hepatitis C infection.  It was not clear how he was infected with hepatitis C.

Here VA is hoping that no one will notice the 800 lb. gorilla with HCV sitting on the living room sofa. Vets must realize that if they fail to point to a risk and say “I got it from Suzi Wong. I had a hundred missions over her and was only shot down once. That’s when it happened.”, then VA sure isn’t going to help you figure this out.

On May 2007 VA examination, the Veteran reported that the current effect of medication on his hepatitis was limited.  He reported that he realized he had hepatitis C when the cause of his cirrhosis was being investigated in 2000.  He reported that until 2000 he drank about five to six bottles of beer on a daily basis.  He was taking Sirolimus for his liver disease without significant side effects.  He denied any risk factors for contracting hepatitis.  He was status post TIPS surgery, with no more ascites.  After physically examining the Veteran and reviewing recent laboratory testing, the diagnosis was cirrhosis, status post liver transplant. 

Nothing like giving VA more ammo to deny you. Incidentally, this also bolsters the Catholic Church’s claims concerning Immaculate Conception. If one can get pregnant without having sex, it follows that one could get hep without any risk factors.

In an April 2008 addendum opinion to the May 2007 VA examination, the examiner reviewed the discrepancy in diagnosis between the private medical records indicating the cause of cirrhosis to be the hepatitis C virus, and the VA antibody test in May 2000 that was negative for hepatitis C virus.  After review of the claims file,  the examiner determined that there must have been a laboratory error on the part of the VA, and that the correct diagnosis had always been hepatitis C.  The examiner also concluded that it was not likely that the Veteran’s in-service gonococoal infection caused or aggravated his cirrhosis.  The examiner explained that while gonorrhea could cause hepatitis or perihepatitis, such a condition was very rare, especially in a male patient.  That being said, it was unlikely that the gonnorhea caused cirrhosis.

I’m at a loss to decide which is more tragic; the VA’s inability to correctly diagnose this poor guy or the VA examiner donning the M.D.’s white robe and opining that the clap isn’t responsible for the the hep. One will notice that the cirrhosis has now evolved into a separate entity, for all intents and purposes, and also is divorced from the hep.

In August 2008, a different VA examiner reviewed the file and  stated that there was no possibility that the Veteran’s in- service gonorrhea infection caused or aggravated his current  hepatitis C.  The examiner explained that there was only a remote relationship between hepatitis C and gonorrhea, which was the possibility that both could be spread through sexual relations.  It was, however, very rare that hepatitis C was spread through sexual relations.

I’ll bet the Veteran was measurably relieved to get that important point settled. So we now have two separate non- doctors who have weighed in with their opinions. Number one is blowing bubbles about gonorrhea causing cirrhosis which the Vet never claimed. The second expert proceeds to inform him that there’s absolutely no connection between gonorrhea and HCV. VA has more non-theories in the air than an experienced juggler at a Ringling Bros. circus. Noticeably, not one of these attempts to address his misguided theory about DM2. It’s just as well because this is going nowhere fast.

On February 2010 VA examination, the Veteran reported no  significant risk factors for his hepatitis, though the examiner  noted that the Veteran had been treated for various sexually  transmitted diseases in service.  That being so, the examiner  stated that contraction of hepatitis from sexual practices was  very rare and therefore not likely the cause of his current hepatitis.

So there you have it, Johnny. The birds and the bees get it on together with the stork dude, but this doesn’t cause hepatitis. We don’t know where you got it from and we really don’t want to know. We know you didn’t get it in service because clap doesn’t cause hep and that’s the important point. Now, was there anything else we can do for you? Aspirin? A cab? Liver #3?

The first clinical evidence of record of a diagnosis of hepatitis C is dated in May 1998, approximately 28 years after the Veteran’s separation from service.  In view of the lengthy period without treatment, there is no evidence of a continuity of treatment, and that weighs heavily against the claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Thus, absent any indication that the Veteran was diagnosed with hepatitis C while in service, and because his hepatitis C was first diagnosed many years after service and has not been related to his service, the Board finds that service connection for hepatitis C is not warranted on a direct basis.

Pretty slippery, huh? Gosh, buddy. You didn’t go to a doctor 24 years ago and get tested for Hep c. Oh, yeah. We forgot. There was no testing for it until 92. So, you didn’t go in 92 and that was like a way long time ago, dude. Like, you didn’t go for 8 years after the test was available. Dude, you are like soooo screwed. What were you thinking?

And last but not least, the final word:

The examination reports show that although there was a risk factor with regard to risky sexual practices, as stated by the Veteran and documented in his service records in the form of urinary infections, the likelihood that those practices would result in the transmission of hepatitis C were found to be very slim and unlikely.  The VA examiner did not find that it was at least as likely as not that hepatitis C was related to the Veteran’s service.

The Oracle at Delphi has now spoken. It’s official. Game, set and match. AMLEG and the Vet have presented no evidence in their defense. In the absence of a nexus letter from the Veteran’s doctor, the VA has thoughtfully supplied not one, but three. In addition, the VA has hung this man out to dry for 10 years and blithely characterized Gonorrhea as nothing more than a “urinary infection”!  AMLEG has likewise foolishly encouraged him to fight the good fight and has offered to hold his hat and coat. The BVA  remanded this several times to develop more info., so it cannot be said that they didn’t give him every opportunity to be heard. This gives new meaning to the phrase”You have the right to remain stupid.”

Unfortunately, there isn’t much here to appeal other than the Maxson v. Gober misogynist abortion. To win, you have to have a plan. You have to have assets (not financial ones). Your claim has to have merit. But most importantly, you cannot involve anyone with it who does not have a vested interest in winning. Depending on them for support can be fatal. This case could easily have been won, but failed for lack of effort, knowledge and discipline. Don’t let yours suffer the same fate.

This Vet filed in the underwater city of New Orleans (Nemoland). If you know this guy or a Service Officer at the NO AMLEG, find him and tell him what we discussed here. He can win. He just needs a coach because his SO sure was a few dilithium crystals short of what Scotty considers adequate to go anywhere-boldly or not.

Here is the link to the decision:

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

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BVA–Win-Tiger Team Remand Aug 5, 2003

Posted on September 26, 2011 by asknod

 In the beginning, we had such high hopes…

DEPARTMENT OF VETERANS AFFAIRS CLEVELAND REGIONAL OFFICE 
Tiger Team Remand Unit P.O. Box 998020 Cleveland, Ohio 44199-8020
Rating Decision August 5, 2003

INTRODUCTION

The records reflect that the veteran served during the Vietnam Era in the Army from August 25, 1967 to April 17, 1971. The Board of Veterans Appeals remanded the case on December 27,2001; and based upon a review of the evidence listed below, the following decision(s) were made in the claim. .

DECISION
Service-connection for hepatitis C is granted with an evaluation of 10 percent effective April 17,2000. .

EVIDENCE
. VA Fonn 21-526, Application for Compensation and/or Pension received April 12, 2OO2′


Page2

  • .Service Medical Records from the National Personnel Records Center
    Outpatient treatment reports from the VA Medical Center, Buffalo for the period of August 1999 through October 2000
    Medical Records from 1996 through 1999 DD Form 214 ,
    Article submitted entitled “Risk Factors for Hepatitis C Virus Infection in United States Blood Donors”,
    Statement received from the Veteran on January 29,2001 Board of Veterans Appeals’ Order dated December 27,2001
    VA Form 4138, Statement in Support of a Claim received January 8, 2002 with attachment .
    Medical Records .from for’ the period of May 30, 1995 through March 22, 2000
    Response from the National Personnel Records Center (NPRC) dated August 2, 2002 .
    VA Examination dated June 5, 2003 and Hospital for the period of ‘

……….REASONS FOR DECISION

Service-connection for hepatitis C.

Service-connection for hepatitis C has been established as directly related to military
service. -This decision is based upon the VA examiner’s opinion dated June 5,2003
coupled with the supporting evidence of articles relative to jet inoculations submitted by’, .
the veteran. ,Specifically, the V A examiner provided a causal relationship finding that the
veteran’s hepatitis C currently diagnosed was incurred in service as a result of the jet
inoculations given therein. Moreover, the examiner relied upon these articles which note
that due to cross-contamination, anyone who had inoculations with Jet injectors were at
risk for having hepatitis C and should be tested.'” Further, the veteran denied having
incurred any of the known risk factors subsequent to service, such as N drug use; blood
transfusions; tattoos; surgeries, or needle sticks. Accordingly, service-connection is
granted as a result of the evidence of record. ‘An evaluation of 10 percent is assigned from
April 17, 2000. This date is being used, because it is the date of the veteran’s original claim
for service-connection that was subsequently denied, and timely appealed
to the Board of Veterans’ Appeals. .

An evaluation of 10 percent is assigned for chronic liver disease without cirrhosis; but with
intermittent fatigue, malaise, and anorexia, or; incapacitating episodes (with . symptoms
such as fatigue, malaise, nausea, vomi1ing, anorexia, arthralgia, and right upper quadrant
pain) having a total duration of at least one week, but less than two weeks, during the past
12-monthperiod.

Page 3

In this case, the most recent VA opinion of June 2003 was merely a review of records
contained in the claims file, and thus, no objective or subjective evidence was obtained
that could be used for evaluation purposes. However, the medical records o coupled with
the outpatient treatment records from the V A Medical Center, Buffalo do provide such
evidence. Specifically, these records demonstrate that prior to inception of the claim, the
veteran was placed on Interferon, but due to complications of the medication, it was
.ceased. . Subsequently, between 1998 and 1999, he remained asymptomatic for the
disease. However, right around inception of this claim in 2000; the. notes indicate that the
veteran’s viral load started to rise. Subsequently, he was placed on Infergen, 15
mg three times per week. A note of September 2000, indicates that, at that time, the
veteran complained of incurring flu-like symptoms for a day after the shot is given. Also,
between March 2000 and September 2000, he had lost 20 pounds of weight due to these
problems. Accordingly, based upon these complaints, an evaluation
of 10 percent is assigned. .

A higher evaluation of 20 percent is not warranted at this time, because there has been no
evidence submitted demonstrating that the veteran suffers from chronic liver disease
without cirrhosis, but with daily fatigue malaise and anorexia (without weight loss C?r .
hepatomegaly), requiring dietary restriction or continuous medication, or; incapacitating
episodes (with symptoms such as fatigue; malaise, nausea, vomiting, anorexia, art a1gia,
and right upper quadrant pain) having a total duration of at least two weeks, but less than
four weeks, during the past 12-month period.

REFERENCES: .

Title 38 of the Code of Federal Regulations, Pensions, Bonuses and Veterans’ Relief
contains the regulations of the Department of Veterans Affairs which govern entitlement
to all veteran benefits. For additional information regarding applicable laws and .
regulations, please consult your local library, or visit us at our web site, http://www.va.gov.

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BVA–Win- 2008- Materials used to clean guns

Posted on September 26, 2011 by asknod

2008’s first Jet gun win. It’s a very narrow ruling. It was very well presented. The Veteran( a woman) was very articulate and the Board Member, VLJ Shane Durkin described it thus: ” The Board finds her a credible witness”. NOD says this is a fluke. It unfortunately does not set precedent. You may use it as a template for your own claim, but be aware that your results may differ from this. Every claim is unique as are the facts surrounding it. Printed forewith for Veteran perusal:

http://www.va.gov/vetapp08/Files2/0814816.txt

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