SPECIAL CIRCUMSTANCES

Posted on September 26, 2011 by asknod
12/06/08 #1
Special CircumstancesFrom: Posted by NOD
Category: What to do when filing a claim
Date: 09/08/08

Special circumstances
Okay. Let’s say that somewhere along the line you stepped on your necktie. I won’t tell you its not an issue-it is. It’s a big issue.In order to prevail, you are going to have to repair the damage to your reputation or satisfactorily explain what the meaning of “is” is. This is always easier if you’re the President, but we’ll assume you’re not. For our purposes here, we are going to hope you’re not the recipient of the Big Chicken Dinner. I can’t help you on that one. Even if you somehow managed to upgrade your discharge to a general, VA still will never grant you SC. It’s the law. They’re not being unreasonable in spite of what you think. I am printing here the pertinent parts of 38CFR 3.301 for all of you to read:
1) Venereal disease. The residuals of venereal disease are not to be considered the result of willful misconduct. Consideration of service connection for residuals of venereal disease as having been incurred in service requires that the initial infection must have occurred during active service. Increase in service of manifestations of venereal disease will usually be held due to natural progress unless the facts of record indicate the increase in manifestations was precipitated by trauma or by the conditions of the veteran’s service, in which event service connection may be established by aggravation. Medical principles pertaining to the incubation period and its relation to the course of the disease; i.e., initial or acute manifestation, or period and course of secondary and late residuals manifested, will be considered when time of incurrence of venereal disease prior to or after entry into service is at issue. In the issue of service connection, whether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as willful misconduct or as not in line of duty will not govern.(2) The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. (See §§21.1043, 21.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.) (Authority: 38 U.S.C. 501)(3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin. (Authority: 38 U.S.C. 105, 1110, 1121, 1131, 1301, and 1521(a))
(d) Line of duty; abuse of alcohol or drugs. An injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. For the purpose of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. (Authority: 38 U.S.C. 105(a)) Cross-References: In line of duty. See §3.1(m). Willful misconduct. See §3.1(n). Extended period of eligibility. See §§21.1043 and 21.7051. Periods of entitlement. See §21.5041. [26 FR 1579, Feb. 24, 1961, as amended at 37 FR 24662, Nov. 18, 1972; 54 FR 31951, Aug. 3, 1989; 55 FR 13530, Apr. 11, 1990; 60 FR 27408–27409, May 24, 1995]Having stared at this for the better part of this year, I can summarize the high points for you. If you hadn’t noticed, VA does not write in Dick and Jane format. If you were not adjudicated a perennial drug addict in the military, and you have the biopsy criteria mentioned above, you basically should not be denied a rating. After service, you needed a cooling off period of 15 to 20 years before you started that new career of trying to park a Maseratti in the nose garage. If you started misbehaving in the 80’s or 90s, and the biop. says Stage , 3Grade 3, its a safe bet you didn’t get it in 1990. However, if you walked out the front gate in 1972 and continued putting a major dent in the annual production of Burmese Heroin, you have a problem. Usually, when the drugs wear off and you go to detox, you have that “Come to Jesus” meeting I mentioned above. You probably don’t even remember it or what was said. VA does. You may even have bragged about how many ounces you sold in a week, or that you were crowned the Speedball King of Brooklyn in 1988. No matter. You would be well advised to sashay on over to the Social Security Office and put in your claim there, RFN. VA is not going to get all warm and fuzzy and embrace you with open arms.
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SUMMARY SO FAR

Posted on September 26, 2011 by asknod

Summary so far

From: Posted by NOD
Category: What to do when filing a claim
Date: 09/08/08
Comments

So, to summarize, you want the gold standard. Most likely is going to put the chicken in the pot. More Likely Than Not is good, but not great. the More Likely Than Less Likely is useable, the At Least As Likely As Not will get you there and most have been won with the evidence in equipoise( evidence in favor balanced by evidence against), as measured by the yardstick of the VA. I have read decisions where the Vet had a MLTN and the BVA said it was in equipoise. The guy won and he had no black marks on his record. Go figure. These different degrees of nexus can become very important . If you have the equipoise version, the VA may get one of their examiners to opine that MLTLL that it isn’t SC. So they win because 60% against is bigger than 50-50. Or, let’s say you’ve got MLTLL and they don’t like the fact that you had a little drug hanky panky and ended up at the Long Binh Stockade for an all expenses paid month long vacation. They run out and get the “Liver Specialist” from Syracuse VAMC to say “its unlikely (20%)the hep was incurred in service”. Bingo. You’re down the tubes. Keep in mind that they go out and get their expert AFTER you have submitted all your evidence. You won’t have an opportunity for rebuttal until you get to the appeal. What you need is more than one nexus when they are “iffy” . Two ALLNs will beat a LLTML. See where this is going? Now, if you arrive with 4 of a kind(ML), they won’t even mount an offense. however if you’re sitting on 2 pair and bluffing with an internet article and a picture of some guys in underwear waiting for a date w/ a jet gun, that emboldens the VA to see you and raise with another Hexpert. The moral of this story is simple: Always bring a gun to the rocks ,paper, scissors game. Better yet, a hand grenade. You’ll always walk away a winner.. There’s no law that prevents you from bringing more than one nexus to the decision making process. The VA has so many copies of that jet gun pic. they could paper the White House with it. They have enough newsprint to start the NY Times. At the end of the day the poker game will be won or lost with the nexus, not the newspaper. Any medical evidence you submit must apply to you, personally, not a class action group. BVA nods sagely and pretends to weigh the internet stuff but that’s just for show. If everyone in the Mormon Tabernacle Choir came down with the flu because they got a flu shot with the same jet gun, it would not advance your theory one bit that you got the flu from a jet gun ,too. You just have to trust me on this one .I can’t make this any more elementary. I assume most vets are educated so I won’t dwell on the subject. If you need help getting a nexus, contact HCVets@aol.com

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THE MUST HAVE NEXUS

Posted on September 26, 2011 by asknod

The MUST HAVE Nexus

From: Posted by NOD
Category: Nexus-Nexus-Nexus
Date: 09/08/08

You now go to the doctor and present him with the problem. You need help. Don’t offer to split the settlement. That is right out. Hopefully you have developed a camaraderie w/ your doc. If he has had time to observe your disease progression or has known you forever, this is the easy part. If not, you will have to ask politely. Most docs are really skittish about putting their reputation on the line with a nexus if they don’t know your history. Nobody wants to testify to the bona fides of a guy and find out later he’s a drug user. Develop a positive relationship. Don’t appear desperate. Don’t preprint it and stick it under his nose with a pen when you come in for an appointment. You want it in his lingo on his letterhead. I found a template on this website and gave it to my doc to use. It worked just fine.http://hcvets.com/data/transmission_methods/Nexus/liver_specialists_of_texas.htm Now, there are certain words that must be used or you will be SOL. Lets all do this one time and be successful. The words “may have, possibly or probably” or any derivative thereof are not acceptable. You will lose. If you don’t believe me, try it. Better yet, read the plethora of denials that contain those phrases.. VA now works with a word/% formula. This whole process is speculative. That means no one is 100% sure where you got this bug so everyone (sorry, just the doctors) is going to offer an educated guess as to where it popped up and when. Your opinion is worthless. You do not have any medical expertise and ,therefore, anything you offer in your defense is considered useless. You are allowed to testify about the color of your skin, if you felt sick, and whether it was dry season or monsoon. Your testimony on any of this is considered to be truthful unless or until you are caught in a lie. Testimony at a Traveling Board Hearing is recorded and transcribed for the BVA to peruse during the decision process. I strongly recommend you avoid opening your mouth and inserting your foot. Let your medrecs and your nexus speak for you. You are not Perry Mason. You will inevitably feel obligated to fill in all those pregnant little pauses the VLJ leaves between questions with small talk. Don’t do it. Here is the VA formula of phrase = % of probability as near as I can ascertain: Most likely=80%. More likely than not=70%, More likely than less likely=60%, At least as likely as not=55%. The evidence is equipoise=50% (38 USC 5107) Less likely than more likely=45% and who cares below 50% anyway because you are screwed!!!!

Attached here at the bottom is my Doctor’s winning nexus from Jan. 2008. We were unaware that Groves v. Peake was right around the corner in May. I strongly suspect that is why I was granted SC. Additionally, VA did not believe my doctor so they sent it out for a C&P with QTC. That doctor agreed with mine. VA still would not take that as a yes so they sent it out for an Independent Medical Opinion (IMO). I attach that below as well.

 sanitized Nexus

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THE MEAT OF THE CLAIM

Posted on September 26, 2011 by asknod

The meat of the claim:

You have a problem. What’s the repair order? Get your military and medrecs from the NPRC in St. Louis, Mo. if you have never filed for compensation with the VA.

This link will get you started. http://www.hcvets.com/data/va_news/FilingClaims.htm

Otherwise, if you have, request them from your local RO or the RO where you filed your claim if it is different.

Get all of them, charts, labs, x rays, anything medical. Your doctor will need them to create a nexus letter stating your disease (s) were connected to your service.

Start now. It takes time which is something you will find you have lots of as your illness progresses. A wonderful ploy by VA is to wreck your nexus by saying your doc. was not privy to all your military and medrecs so his Dx/nexus is not as valid or valuable as the VA examiner’s nexus. The military records are necessary to ensure the doctor can see you had no drug charges (IVDU or intranasal) against you (UCMJ). VA will remand your file if the doctor does not clearly state that he has reviewed ALL the rec.s-both mil. and med.

Often, you will get into a pissing war as to who’s doctor has the most “board certified”s after his name. Relax. You want private doc nexuses, if possible.

They make $200K a year and are way bigger/better that the $89K VA docs like Dr. Habib Haboob. Besides, they work for you.

Would you ask to be represented by the attorney of the guy who rear ended you? If you have always used private medical care, chances are you’ve been going to the same gastrodoc or hepatologist for years. They are well versed in your medical condition.

If you have been using the VA as your medical provider, all is not lost. Your personal doc is valuable if he is knowledgeable about your disease and its progression. He must, however be able to access all your military/SMRs. That is a prerequisite for the nexus to have medical validity.

Most docs. don’t have a dog in the fight. VA cannot fire your VAMC doc for providing you a nexus. Most feel empathy for you even if you were/are a raging junkie.

If you don’t drink or smoke, you float higher in the sympathy column because you’re not actively engaging in the destruction of your liver. It goes without saying you’d be better received if there was no drug hx at all but we are not all saints. By the same token, anything you tell your doc. is fair game against you.

Again, be honest with the docs. If you tried to bed every babe in Cholon and came down with Syph or the clap in service, that is not willful misconduct. In fact, if its in your medrecs, its evidence in your favor as are tattoos received in service. I never met any vets who engaged in acupunture in service, but that, too would be okay.

A dx of Non-gonococcal urethritis(NGU) can be proof of forgetting to put on the old raincoat. I used most of mine to keep the dirt out of my M-16 barrel. However, if you came home and developed a history of arrests for patronizing  prostitutes for 10 years before finding that significant other, that would constitute evidence against your claim.

Any tattoos received after service are reasons for denial of your claim. There is no reason to have a “Come to Jesus” meeting concerning anything you did after service. If you have been incarcerated (some would prefer to call it being a guest of the state)at the Graybar Hotel for any period of time, the VA will use that against you .They may suspect that you became Jim Bob’s “girlfriend” and that, gentlemen, is a risk factor.

Some RTs are prejudiced. Don’t be surprised. There are just so many $ available to Vets. Any claim that can legally and medically be denied will be. The current success rate is 12 %.

VA is no different than an insurance company. Consider them as such. They are not on your side. You should have a biopsy by now. If not, go get one RFN. Ultrasounds are too speculative and don’t show bridging necrosis.

If you had a love affair with Johnnie Walker Black, and its in the medrecs, you’ll surely need one just to disprove alcoholic hyaline cirrhosis. Your biopsy must show, and I stress MUST, at least a Stage 3, grade 3 liver with 3/4 fibrosis. This is an indication that your liver has been diseased for at least 30 + years.

As you can see, my advice is directed at male Vietnam vets with a window of service from 1962 to 1975. A biopsy for a Gulf war vet would not show this. But for Vietnam vets, sorry, if your biopsy is Stage 1 or 2, it means your hep started in the 80s and means denial.

Your doc., however, will be the final arbiter of this. The more power to you if you can get a later nexus. If you can obtain more than one nexus, it will really improve your chances of winning, especially if your claim is dicey because of a prior risky lifestyle. Remember, no claim is dead in the water  if you can get a nexus. That is the secret to SC.

Remember always- some examiner from the VA is going to “opine” that it is “more likely than not” the hepatitis you’re claiming is not SC. They use anything to reach this end. Everything you did after service is fair game- police records, private medrecs, anything you ever said to a doc, welfare clerk, job applications incarceration records, DUIs, SSA records- anything. If a private dick can find it, they can.

They are going to give you a form (21-4142) to submit to all your health care providers(private) requesting your medrecs. So be honest. It’ll bite you in the ass if you don’t address it. I don’t know how many claims I’ve read that said the Vet said this and the medrecs contradict it.

They will give you a risk factors questionnaire to fill out listing all the VA recognized vectors for contraction of HCV. I am not, repeat not, going to tell you how to fill this out. One observation I will make is I don’t believe some of those factors constitute risk. I am not a doctor. I am not qualified to make that assessment.

The form will become your report card for this disease. Anything you check off will be used in a decision on your claim. Think through it before you fill it out.  You can win. Just remember that you have to prove everything you check off on.

The odds are better than Reno if you can find the supporting evidence. That might be the hardest part.This claim process can and should be buttressed by additional risk factors such as jet guns as we all were subjected to that indignity. It is obvious to everyone except the VA that they posed as great a risk as IVDU .One other risk which is now being recognized by the Court is a duty assignment in Vietnam, Thailand, Cambodia or Laos. This theater had and still continues to have a documented history of high incidences of HBV and now HCV. As such, it is a risk factor in its own right and should be listed.
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A GOOD FOUNDATION

Posted on September 26, 2011 by asknod
11/22/08 #1

A Good Foundation

Let’s begin. You must have Hep if you’ve made it to here. That can be, but is not limited to Hep. A,B,C, D, E, chronic hepatitis, NASH and autoimmune hepatitis. Residuals medically associated with these are : Porphyria Cutanea Tarda, fibromyalgia, cryoglobulinemia, and Diabetes Mellitus to name just a few. These are medically accepted, though.

You will be asking the VA to grant you SC for hep and possibly some of the others as secondary to the hep. You must be specific as to what you are asking for. The gentlemen at the RO cannot divine your intentions. For instance: “Entitlement to Service Connection for Chronic Residuals of Hepatitis”. I would personally leave out the flavor (A,B,C). You are not a doctor. You don’t know what flavor it is. What if you claimed C and it turned out to be Autoimmune? You’d have to start over because You didn’t claim that. Picture Cosmo Kramer’s attorney on the TV show “Seinfeld”. Next: “Entitlement to PCT secondary to Hep.” etc. until you have listed all your ills. We recommend you file for Hep first and attain it prior to seeking the secondaries.

To really CYA, I would include “and entitlement to a compensable rating”. You might become the unfortunate, sick Vet who is awarded 0% SC for your hep and have to fight another long battle for the $. Why not tell them up front what you want? If you want to be anally specific, it would be permissible to include “(effective date of your claim)”. I have seen claims granted w/ 0% back to 1972 because the vet didn’t specifically ask for a “Compensable” rating.Remember the old adage-Be careful what you ask for?Every claim submitted is unique. Circumstances, places, your MOS/AFSC ,combat environment, blood exposure etc. will combine to paint a unique picture that will govern the adjudication of your claim. Not all of you will be successful. Some have a history of drug use. That can sometimes be overcome and will be discussed more fully below.AO does not cause Hep. Don’t file for it. RTs might have been born at night but they weren’t born last night. Don’t lie on your claims form . The military were very thorough in examining you upon entry into service. They know how many/where the tattoos are. They know where your scars were upon entry. You may forget that you filled out an extensive medical history form about yourself when you entered. They still have it. It behooves you to get a copy of them pronto.

You had to pass a piss test to DEROS after 1970. If you flunked it, they remember. If you got an Article 15 for drug possession, IVDU or whatever, they still have the records. In fact, they know everything bad about you and your service and they have a nasty habit of bringing it up AFTER you tell your rosy version of events.

If you have “negative events” in your career, paint a limited, cheerful picture of them. If you try to hide, lie or in any way minimize your negative history, it will constitute evidence that impugns your credibility for purposes of testifying under oath. Allow me to rephrase that: They won’t believe a word that comes out of your mouth and your claim will get 86ed.

If you were caught smoking that big ol’ thai stick w/ 4 papers around it- oh well. That’s a far cry from getting caught stealing the morphine styrets out of a dustoff. VA regs allow for limited use to experience the effects, even if you contract hep from it. Constant or frequent use is considered willful misconduct and will not be rewarded.

If you had a BCD or an Undesirable, you are SOL. If you had hep in service before 1973, chances are your doc didn’t dx the type (A or B). That, with a proper nexus letter from your doctor, is almost a guarantee of getting SC. One note. With the technology now, it is possible to ascertain whether you had A or B at any time in the past. Because A is not chronic, you’ll never win that way. If you have the antibodies for B and had Hep before 72, you have an excellent chance of winning. As for C, there was no definitive test worth a damn until 89-90. The RNA test of 92 was the first one that really was accurate.

Do not try to provide your own Hx of Dx. You are not a Doc. If you try to act like one, you will be informed during the denial, of why that doesn’t work. Tell the truth. You believe your hep occurred in service. Medical science appears to back you up if you are a Vietnam era veteran. Let the doctors explain the medical minutiae.

I write this from that perspective- two tours back to back in Laos and Thailand with several TDYs to RVN. My knowledge does not speak to later wars, so please don’t use this info for the Afgan/Iraq Olympic Games.

There is anecdotal evidence that 3A and 3B  genotypes were endemic in SEA. I think any flavor with a biopsy of Stage 3 Grade 3 should be capable of SC with a supporting nexus. Most Vets have 1A or 1B which is found mostly in America. Jet guns, anyone? Still others have 2A and 2B and were stationed in Japan, Okinawa and Korea. There is a geographical correlation here that will help you win.

VSOs have told Vets for years that they can never get SC for hep. Don’t listen to them. You will get SC if you, along with your doctor, can put together a concise, complete history of your risk factors and a supporting nexus. You were there. The RT wasn’t. Neither was your Doctor. This is speculative, at best, subjective at worst.

Your initial claim must state what you feel were your risks, why you believe that, and all the evidence you can compile to verify it occurred the way you say it did. You get one shot at this. If you change the facts, the location, the dates or anything medical later on, you’ll run into the credibility issue.

Honesty always serves the cause of Justice. That was stated by none other than your President. I don’t think he was referring to what we hope to accomplish here, but it is a useful thought.
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Introduction

Posted on September 26, 2011 by asknod
 

Introduction

If you are filing a new claim there are several things you should do in no particular order. The info is designed with the idea that you will file this claim Pro Se( by yourself). The format won’t change if it is done with a VSO .

They have VA forms to submit your claim on but it is not written law that you do so. One guy hospitalized in a VAMC wrote his NOA on Kleenex. The Court accepted it. You need an 8 1/2 x 11 sheet of paper , a pen, (no pencils) 10-12 months, and a boatload of patience. A pair of binoculars is useful to keep an eye on the mailbox.

The following link VA Abbreviations are included for your convenience.

Before you begin your claim you should have all of the following: a disease or injury (current diagnosis), medical proof of the same disease or injury in service (if possible) or a buddy statement from a fellow vet you served with, attesting to your exposure/risk factors, and most importantly, a doctor’s letter stating quite clearly that the disease/injury you are claiming was most likely incurred in service.

This is simply a preface. More will be said about these requirements later. There will be references to VA requirements as well.

It must be stressed that no two claims are alike. Yours must be tailored to your circumstances. Try to avoid sending them any evidence of a general nature that does not apply to you specifically. They only have so much file cabinet space. They also have a gazillion pictures of the jet guns. The BVA and the VARO will not consider BVA legal decisions as evidence in your claim so do not submit them. CAVC panel or en banc opinions, if they are pertinent, will be considered. Single judge rulings are not considered precedent setting and thus are as useless as BVA decisions.

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BVA- Oops! He died.

Posted on September 26, 2011 by asknod

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

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BVA–DIEING BEFORE YOUR CLAIM IS DONE

Posted on September 26, 2011 by asknod

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.

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BVA–Wait! I’m SC 4 hep

Posted on September 26, 2011 by asknod

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?

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BVA–The IQ of VA Examiners

Posted on September 26, 2011 by asknod

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

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