LZ CORK–THE DeLOREAN CFR BACK TO 1970

Posted on October 12, 2019 by asknod

§3.156(c) filing vehicle

38 CFR §3.156(c) is an oft-misconstrued aberration in the adjudication of Veterans claims. I freely admit I read it very broadly to benefit us munificently in the beginning when I first ran across it. The more precedence I read, the more it appeared to shrink in its judicial reach. In Butch’s case here, I’ll show you why he falls into the Perfect Storm of §3.156(c). But first, let’s examine what it is, what it isn’t and why it may, or may not, benefit you-Johnny Vet.

§3.156(c)

First, let’s take a gander at what the Secretary attempted to “give” us. The meat of §3.156(c) was originally found in §3.400(q)(2) safely hidden from view. With the advent of the Internet, all you lynx-eyed, wannabe VA detectives started theorizing on just exactly what this offered and how to get a can opener into it. I’m going to bold the most important parts-i.e. the ones VA strives to disregard. I’ll discuss them below.

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding  paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2)Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))

§3.156(c)2) was added on Sept. 6, 2006 84 FR 169; with the change to the AMA, §3.156(d) was added:

(d)New and relevant evidence. On or after the effective date provided in § 19.2(a), a claimant may file a supplemental claim as prescribed in § 3.2501. If new and relevant evidence, as defined in § 3.2501(a)(1), is presented or secured with respect to the supplemental claim, the agency of original jurisdiction will readjudicate the claim taking into consideration all of the evidence of record.

Get out the notepad and a pen. Starting with (c)(1):

This is how your claims posture had to present if you think you’re going to reopen your claim filed when you got out in 1968-72. It can be a shit ton of money but you have to have the perfect confluence of events. Using Butch as the example, let’s investigate how Butch is going to win this at the Court. He filed for four items when he got out:

  1. Perforated ear drums
  2. Perforation right cornea
  3. SFW Rt. hand and right arm & side
  4. SFW Rt. side of head

Long filing 6-14-70

Below the list of injuries, Butch clearly identified where the records could be located (Chu Lai Army Field Hospital; Da Nang Air Evac. Hospital and Camp Zama, Japan. This is important as VA will surely use it to try to deny you. Had they been in the c file, §3.156(c) would not be for application. In Butch’s case, the absence of these records laid the foundation for his filing 46 years later. They weren’t at the NPRC or they would have magically burned up. My guess is they sat at Camp Zama for about 20 years and finally were archived at NARA in St. Louis at the NPRC.

Knowing full well that you can use Moody and its progeny (Roberson) for a sympathetic reading of your plea-irrespective of whether you had legal counsel, it would seem logical to drag out the old “inferred or informal claim” microscope and see what else Butch was up to with these four specific claims. At his c&p, old Butch was far slicker than most of us. He actually sidestepped that VSO idiot and vocalized further on his four problems that day. VA put it down in quotation marks so there can be no doubt he was talking about his current claim. Hell, he even signed it.

Long 1970 C&P pg 1 REDAC

We contend he either complained further on the symptoms of his “conditions” or else filed an informal claim much like a VAF 21-526b. Please note Page One of the VA Form 21-2545 Comp. and Pen. examination of 8/10/1970 above. All the “symptoms” mentioned  in Box 17 PRESENT COMPLAINT relate directly back to one of his four claims contended in the 26-page VA Form 21-526-i.e. “residuals” and in Box 15 above it.  This is why they named it the 526, incidentally. To wit, his claim for SFW rt. hand and right arm & side (4) relates to  his thumb and right arm complaints. The reference to the “no problem with the right side” was in reference to the vast quantity of retained metal fragments that were gradually beginning to come to the surface (on the right side of his body). “I have been having headaches” related back to the enormous chunk (3mmX3mm) of retained metal embedded in his skull in the temporal area where he was having the headaches. “My right eye is blurry” referred to the SFW through the right cornea and the remaining 9 retained fragments. The complained-of earaches, recurrent infections and “I have ringing in my right ear” referred to the claim for perforated eardrums. In short, what we have here is a classic case of TBI referred to in 1970 as an organic brain injury-except Butch didn’t have it.  To accept the VA version, he had bad 0% hearing is all.

Butch never considered these to be informal claims but what if they were? He’d already filed a 526-the only one you are ever required to file at the time of your original claim. Any subsequent claims back then could be filed on a paper towel or a McDonald’s hamburger wrapper. To be sure, they could also be filed on a VA Form 21-4138 which, at the bottom states you are telling the truth so help you Johnny Vet and signing it with your John Hancock. But what of the VAF 21-2545? It’s an official VA VBA form (note the 21 predesignator) and it contains the proviso for swearing you are telling the truth about your health along with you wet-ink signature just like a 4138. So, I ask, what’s the difference? The BVA VLJ insists it is not a claim, formal or informal or anything of or having to do with the 1970 claim. Seems old Butch just had diarrhea of the mouth that day and was talking smack about something-but not about his claim. More about this later.

The JSRRC

VA, for a while now, has used the Joint Services Records Research Center (JSRRC) to retrieve military reports of battles and skirmishes in order to identify Vietnam Veterans’ PTSD stressors. If you disremember when you were at An Loi  during the convoy ambush and can’t remember within 60 days one way or the other of the April 21st, 1969 ambush, VA will claim they cannot employ the JSRRC panacea due to your forgetfulness or dismal memory. The Court has officially frowned on this and thinks they should survey a broader time frame. I’m sure VA will eventually get the email but until then, sharpen your wits and try to be aaaaaanally specific if you can about when it happened. One trick I use to remember what happened to me was “Was it Dry season or Monsoon?”

VA will often disremember the prequel to (c)(1) “at any time” or try to segue into a reopening under §3.156(a) instead of a de novo reconsideration of the old decision. Keep your eyes peeled for that hat trick. They’ll also try to adjudicate it as a CUE which is infinitely harder to win-and the wrong legal standard of review.

As the Secretary and Congress were slackers when they wrote this one, there came to be a belief that you had to have been denied in the old decision before you could “reach back” for the reconsideration. In fact, they tried to game both ends and say if you filed again in 2017, three years after you found new §3.156(c) records, you could not go back and  ask for reconsideration. Bullshit, my friends. See Emerson v. McDonald (2016) 

The Secretary argues that the issue of the applicability of § 3.156(c) is not properly before this Court because Mr. Emerson, despite being represented by counsel at the time, failed to raise the issue below. Secretary’s Br. at 12-14. The Court disagrees.

Emerson picks up where Blubaugh left off. Blubaugh picked up where Vigil v. Peake (2008) left off.  It was long overdue because §3.156(c) law has never been adequately fleshed out at the Court. Each case is horribly unique with the majority of the precedential decisions to date centered on JSRRC records. Rarely, if ever, do Vets or their representatives have access to the VBMS or the old claims file and have time to spot these errors. VA doesn’t send you a Western Union telegram announcing they are going back to 1970 because they just found  your Chu Lai/Da Nang/ 248th Camp Zama records that vindicate your new claims filing…in 1969.

However, subsection (c) establishes an exception to these rules, the purpose of which is “to place a veteran in the position he [or she] would have been had . . . VA considered the relevant service department record before the disposition of [the] earlier claim.” Blubaugh, v McDonald, 773 F.3d 1312, (2014); New and Material Evidence, 70 Fed. Reg. 35, 388, 35, 389 (June 20, 2005) (proposed rule) (stating that revised § 3.156(c) will “allow VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government”); see also Pacheco v. Gibson, 27 Vet.App. 21, 32-33 (2014) (en banc) (Pietsch, J., concurring) (noting that subsection (c) “is an exception to finality”). Emerson supra

§1154b

§1154b states:

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

Just think about that legal standard of review-

“may be rebutted by clear and convincing evidence to the contrary.”

Clear and convincing evidence is the same standard required for a CUE claim-e.g. clear and unmistakable error. The old reasonable minds can agree standard of review. That’s a pretty tough nut to crack. Unless or until VA can prove Butch was funning them and wasn’t really filing an informal claim, then they can’t prevail with their incredible contention. Occam’s razor (and a nonadversarial interpretation) would argue he was just giving them more information of the residuals of his four claims (as in “present complaint”) in reference to the stated claims in Box 15 (Narrative History) .

To cement the Secretary’s error in interpretation and to prove the combat presumption was not granted in 1970 is simple. All you need is a DRO with a room temperature IQ. Her rationale for why Butch didn’t get SC or a rating for his tinnitus is because it wasn’t caused by a head injury or concussion. But, But, but…§1154b?

Butch SOC 5182018

Ever been to a live Hollywood set? They have a crew called continuity. VA needs a buttload of continuity but it’s too late. You can’t submit more evidence when you get to the Court. I packed this c file to the brim. The 2018 DRO says the 1970 rater didn’t grant SC  for ear ring because he didn’t have a combat injury. The VLJ argues differently saying he didn’t get SC for it -or anything- because there was no claim. Well, there goes Clemons v. Shinseki out the window. Butch told me he’d never heard of the term Tinnitus in 1970. Or ’80, or ’90 or until about 2015. Or… we have a case of Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (explaining that “litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for prior agency action”). In DickandJanespeak, that means if you keep changing your story about how this fustercluck went down, the Court can feel free not to believe a word you say.

The Matter of First Impression

Where Emerson falls short, and what makes Butch’s appeal a matter of first impression, is the addition of a wild hare. Two facets of §3.156(c) are present here. Remember, I fought long and hard to get Butch’s Purple Heart and CIB awarded before he filed his reopening in 3/31/2015. Since he had no medals showing combat in 1970, he could never have been accorded the combat presumption. In fact, all VA had were records showing he’d been in Letterman hospital. Nary a record existed from Vietnam. That was simply “combat history” supplied by Butch himself. Now, in retrospect, not only is the VA required to reconsider all the evidence, including the missing 105 pages of service hospital records from the 312th Air Evac, the 95th Air Evac and Camp Zama, but they must also view it de novo through the lens of the combat presumption. Everything Butch said regarding his headaches, his ears and his eyes et cetera has to be accepted at face value like the Oracle at Delphi unless the VA can rebut the new §3.156(c) evidence as not being probative or instrumental in granting a compensable headache rating, a compensable tinnitus rating and a compensable rating for the eye. We’ve already nicked them for one CUE on his right arm for 10% back to 1970. Here’s why…

I might have been born at night but I know who I’m dealing with. Being a busy little adjudicator, when I hit the wall on the residuals of the 1970 filings in 2017, I set to work on those additional contentions implied in 1970. We filed for (and won) TBI, headaches and a compensable rating for the right eye due to restricted field of view-but all were awarded with 2017 effective dates. Now, with the new service department records and Emerson exquisitely on point, we fight for the §3.156(c) using the additional §1154b cudgel. Going up to the CAVC with this dynamite is akin to attending a knife fight with two Uzis and a bandoleer of M26s. It’s rocks, paper, scissors, gun.

What amazes me is how a VLJ can logically say with a straight face that Butch went to a c&p exam for his four contentions where he (allegedly) complained about nine “other contentions” and those were immaterial/unrelated to the original four. Nevertheless, according to a Law Judge, they definitely were not claims as defined in §3.155 (1970). Let’s see, they would have to be in writing, refer to specific injuries or symptoms and evince a desire for entitlement to same… at a c&p exam for all of it… naw. No claims here. Move along Butch. Nothing to see. Must have been a fig newton of your imagination. I can almost hear Foghorn Leghorn addressing Butch the chickenhawk… Claims? Claims? Who told you you had a claim? Who put in them claims? I don’t see no claims. What you been smokin’, Butch?

How about this (below). Four days after he mentioned he had (continuous) ringing in his right ear, VA conceded he had tinnitus at his EENT c&p but failed to rate him for it. This is CUE but it can be resolved via the §3.156(c) and §1154b. I find it interesting VA says he didn’t claim tinnitus when it is the hallmark of a traumatic, explosive audiological event. So, VA doesn’t rate him for perforated eardrums but instead the residuals of the injury-i.e. neurosensory bilateral deafness-but only at 0% mind you. How, pray tell, do you step over the compensable diagnosed tinnitus to get to another residual? Only at the VA folks.

Long C- File Prime 161 C&P Hearing and R Eye

As for granting the combat presumption, I ask if reasonable minds can concur that the combat presumption was not considered in his 1970 rating. I don’t see any mention of it. Butch said he has headaches. Ergo, by operation of §1154b, he has headaches. Ditto tinnitus and blurry right eye problems.

Long Rating sheet 1970 pg 1

Long Rating sheet 1970 pg 2

Here’s the BVA decision. I see no mention of the definition of an informal claim- nor any discussion of same, §1154b or any sympathetic reading of the evidence. I see no proper application of §3.156(c) to the evidence of record. The 105 pages of service department records are replete with all manner of discussion of SFW injuries to the right side.  Nevertheless, Judge Crawford insists there was never a claim for SFWs of the right side. Aruuuuuuu? My take is Butch was sold down the river because the VA is adamant they are not going to cough up a shit ton of shekels. I forgot to add-a spouse and 4 dependents in the intercurrent period from 1970 to 2015 would be for application here too.

Butch BVA decision redacted

What a wonderful case to break my maiden on at the CAVC. To be sure, I’ve had the honor of winning two there with Bob Walsh. This will be my first solo outing as First chair (GIB). I actually look forward to an oral presentation before a panel. This is so cut and dried as to demand reversal. Arbitrary and capricious is a masterpiece of understatement. This was egregious hit-and-run justice. The DRO even conceded tinnitus in 1970 but said  “In 1970, tinnitus had to be severe and continuous, and a symptom of a head injury or concussion before service connection could be granted.”  I guess 60 mm mortars or satchel charges landing on top of your bunker giving you TBI aren’t included in the “combat/head injury or concussion” column.  The SOC  also used the wrong legal standard of review. The DRO chose the CUE standard rather than the more lenient §3.156(c) path. In fact, there simply is no mention of §3.156(c) or §1154b for that matter. If “at any time” hasn’t happened yet, when will it? We’re praying somebody at the Court will finally make that call.

Posted in All about Veterans, CAVC Knowledge, CUE, Duty to Assist, Inferred claims, Informal Claims, Inspirational Veterans, KP Veterans, LZ Cork, Tips and Tricks, VA Agents, VA Attorneys, VA Medical Mysteries Explained, Veterans Law | Tagged , , , , , , , , , , , , | 4 Comments

CLEAR PROP! PULL CHOCKS! GUNS ARE HOT, GENTLEMEN.

Posted on October 11, 2019 by asknod

11Bravo10 Sam

I do so love flying. Not the crashing part but the actual flying. I have rules. I plan on one more rotary wing foray and then will forswear them for good. A good friend of our Hepatitis C survivors club- Sam- got some bad news on his surgery last week trying to eradicate his liver cancer. It’s said they didn’t get it all. Cancer sucks. Sam is probably not going to opt in to the 6 months of radiation/ puking to gain a year more pseudo-quality life. Ditto any chemotherapy, I suspect.

One temporary cure for these doldrums and certainly one for the bucket list is chopper hog hunting with a M-16 chopper-i.e. full auto.  My son was slated to do this with his buds for a bachelor party but it never materialized. Wild horses couldn’t drag me away from this project. Costs be damned. I’m bringing tracers for this gig if they don’t have any.

Helicopter Hog Hunting

ca. 1969, near Xuan Loc, Vietnam

I  represent four door gunners from different eras of Vietnam before the VA. The oldest at 83, was flying in C-21s in 1963-64. The youngest is my age and from the more recent Huey era. One was a Marine in the old H 34s up in the north in a country that rhymes with “Mouse”. It’s pretty enervating flying at treetop level with a M 60 in a target-rich environment.  I remember one door gunner in 1970 who will remain nameless saying it rather coarsely like discussing fishing- “Either sex and no size restrictions, Bubba!”.

Well, now you can relive that era and stop trying to remember what it felt like. The best part is you’re doing a favor for plenty of disgruntled Texas farmers and helping the economy to boot by buying oodles of 5.56mm X 45mm ammo. It’s a win-win gig and no guilt. And shoot (no pun intended), if you like bacon, well boy howdy did you ever come to the right party. They ought to give their companies catchier names like  Will Fly For Bacon or Bacon R Us.

You sure can’t have much guilt doing this unless you’re just a dyed-in-the-wool mugwump who dislikes guns and prefer being a vegan. The downside is you’re going to need to rent an industrial freezer for all them pork chops, pork loin, pork shoulder, ribs and pork belly-especially if you’re a good deflection shooter and know/remember how to lead your target.

We’ll call it the Hogfest or the Hog Hugfest for Sam. Either way, I’m going to do this. Brad seems to be all in, too. There’s something timelessly enervating about having your feet planted back on a skid and more than a d-ring to hold on to again.

Incidentally, to all my Hugfesters who are still alive- we- Brad and I- had an impromptu Hugfest here this fall when we squeezed our apples. I didn’t advertise it and should have. Brad now lives in mid-Oregon and comes through fairly frequently so it was not a big, preplanned deal. This is the good picture. The rest were Brad pretending to try to kiss me. We’re like peas and carrots, me and Brad.

I’ll leave you with this lovely vignette. Image training the FNG how to fly and he’s a wee bit deaf.

 

Posted in 2015 Hugfest Gig Harbor Wash, From the footlocker, HCV Health, Humor, KP Veterans, Vietnam Disease Issues, Vietnam War history | 1 Comment

PICKLES DOB 2/05/2019–2.0

Posted on October 11, 2019 by asknod

3 weeks

Jez. Pickles gets more mail than I do. She has asked me to make sure you know her personal pronouns are she, her, Hey you, and whatzerbutt. She states she does not identify as transgendered even though she has had a hysterectomy. I  had to take her down to meet Butch and Barb of LZ Cork fame yesterday. More about him in a new post. Yep. We struck out at the BVA. They don’t understand the correct application of §3.156(c) nor how §1154b might be for application in 2015 when it wasn’t in 1970. Onward to the CAVC. One of my clients and his wife insisted on coming over to discuss their claim with the proviso they’d get to meet Princess and take their picture with her. Where does it end? To prevent a lot of oil stains on my driveway, I’ll publish the pictures. I don’t get no respect.

Pickles 1.0 (eight weeks)

We picked her up right after we got back from Spring NOVA in Nashville. That blanket is now three blankets.

Pickles 1.01- chameleon hair at 8 weeks

 

Here’s a great shot of her at 10 weeks. Every shoe or boot you see in this picture has been reduced to small, digested pieces by now. To say she has frequent, colorful feces is a gross masterpiece of understatement.

People laugh when they come into my mudroom. Above the boots and shoes in this photo is my cubby. Yep. I framed it in when we built the hacienda in 2005-a carbon copy of my old one in Northside Elementary School in Albany Georgia from 1955. I used formica instead of white oak for the seat but other than than, it’s a dead ringer. You laugh. It’s a great place to throw the Honey do’s and put on your boots whether you’re 5 or 65. I hear they’re becoming all the rage in retirement homes, too. It’s a regression thing. Women wouldn’t get it.

We began to worry about Princess’ IQ shortly after the coming home adoption ceremonies. She never looked where she was running nor understood the dynamics of immovable objects

She still had her baby blue eyes at 12 weeks. And yes, that shoe on my left foot is now history.

Studying in the law library

waiting to chew on 38CFR

Here’s Princess at three months old:

And four months…

Pickles is slow-witted. Cupcake and I have come to realize not every dog marches to the beat of the official dog drummer. She enjoys smelling things-sometimes for ten minutes to the exclusion of all other sensory inputs. If you tell her to sit and give her a treat, she does. The problem is if you walk away. Several minutes later, you realize she’s missing. This is nerve-wracking. I’m afraid someone may try to kidnap her and hold her for ransom. I run back to where I saw her last and she’s still sitting there. You have to beg her to get up and follow you. Conversely, you have to scream at her to keep her from rushing to greet our mail person… or any person or vehicle other than us.

We gradually began to find more imperfections one by one; here’s the tail discoloration. Now there are white splotches at the color transition.

Princess on spay day in her new surgical suit which survived almost 3 hours. We went out to eat Mexican and came home to find the undigested parts on the floor. I should have read that look. It bespeaks pure disgust and several ounces of future revenge.

Pickles 2.0 is now spayed, 55 lbs. …  and counting. She was the runt of the litter and chosen specifically for that reason.  Being the runt doesn’t seem to equate with a ladylike figure or appetite. What she lacks is altitude. She’s the epitome of the Randy Newman song. But we decided to keep her.

She was a bit bummed when we closed the pool  several weeks ago. The muzzle was to protect the pool for reuse next spring. And my new tennis shoes and work boots and Cupcake’s high heels (the three new pairs I bought to replace the chewed ones).

Never have I owned a new puppy that has caused more financial damage in such a short time. Nevertheless, I wouldn’t trade her in for a brand new Corvette. I will also never ever get a new puppy again. This is almost more work than I have the stamina for.  Pickles turned 8 months on the fifth and has all her adult teeth. I do wish someone would explain it to her  in dogspeak.  There’s simply no reason to keep chewing up the world.

Posted in Pickles | Tagged , , , , , , , , , , , , | 4 Comments

“Service connection for melioidosis is granted”

Posted on October 4, 2019 by Laura

Burkholderia pseudomallei, (B. pseudomallei) is a bacteria found mainly in the tropics; it  sickens and kills humans and animals.  Anyone directly exposed to tropical soil and water can become infected if there is an opening in skin; ingestion (food/fluids); inhalation (soil dust or water droplet); person-to-person via infected blood and bodily fluids.  Or by subcutaneous inoculation (shots).

Bp isn’t usually diagnosed by imaging alone; it can be cultured from skin, blood, pus, rectal swabs, throat swabs, respiratory secretions, and urine.  Why aren’t veterans being routinely screened for “The Vietnamese Time Bomb?” (LINK)  Researchers believe it is grossly underreported because Melioidosis mimics many other diseases–localized and systemic.

Military personnel exposures were and are impossible to avoid.

“As helicopters deposited troops throughout the tropical nation, their blades kicked up dirt, exposing soldiers and pilots to hidden pathogens in the soil.” (LINK)  Major General Spurgeon Neel stated that after 1967, the Surgeon General set up melioidosis treatment centers (PA, and CO).

L—O—N—G latent periods–BVA has learned about them with HCV and didn’t waste this veteran’s time.  Between 1975-1976, the vet was stationed in Korat Royal Thai Air Force Base and had not traveled out of the country since then.

Citation Nr: 19123328 Decision Date: 03/27/19 (LINK–BVA)

…In August 2015, the Veteran was hospitalized and melioidosis was diagnosed. He has not been afforded any VA examination to ascertain the etiology of melioidosis. However, the Board does not find that an examination is warranted. An August 2015 private treatment record notes the Veteran was seen by an infectious disease physician during his hospitalization for melioidosis. The physician noted that melioidosis is found in Southeast Asia, has an incubation period of many years (described as 20 or more years) and can present at any time in the future. 

This next case, reported in 2005, takes infectious disease latency periods to a whole new level (LINK).  Incredible–it struck 62 years later when the veteran was 82 years old.  “His present medical problems include diabetes, hypertension, osteoarthritis, chronic renal insufficiency, benign prostatic hypertrophy treated with transurethral resection of the prostate, and coronary artery disease.”  And now, after all these years, with his immune system plum tuckered out, this new nightmare?  

Cutaneous Melioidosis in a Man Who Was Taken as a Prisoner of War by the Japanese during World War II

In the [medical] literature, there are only two case reports of reactivation of melioidosis after primary exposure to a region where melioidosis is endemic after 18 and 28 years in a Vietnam veteran and a World War II veteran, respectively (, ). We report a case of reactivated melioidosis in a World War II veteran 62 years after exposure.

J Clin Microbiol. 2005 Feb; 43(2): 970–972. FREE to read. Ngauy V et. al

What might symptoms look like?

Table 1 (LINK)
“Clinical presentations of melioidosis

Commonest acute presentations
Pneumonia
Pneumonia with septicaemia

Septicaemia

Other presentations

Soft tissue infection: cellulitis, fasciitis, skin abscess/ulcer
Bone and joint infection: osteomyelitis, septic arthritis
Genitourinary: prostatic abscess
CNS infection: cerebral abscess, meningoencephalitis,
encephalomyelitis
Facial: suppurative parotitis
Ocular infection: conjunctival ulcer, hypopyon, orbital cellulitis

Incidental finding
asymptomatic seroconversion”

Bp can infect blood;  swell tissues, cause ulcers and abscesses in the liver, spleen, kidney, lungs, brain, muscles, bones, GI track (heavy colonization), prostate tissues, anywhere–visible or invisible.  And it can hide for decades.

More resources:

Electronic Code of Federal Regulations   (LINK current as of September 30, 2019)

Title 38 → Chapter I → Part 4 → Subpart B → §4.89

  • Title 38: Pensions, Bonuses, and Veterans’ Relief
    PART 4—SCHEDULE FOR RATING DISABILITIES
    Subpart B—Disability Ratings

§4.88b   Schedule of ratings—infectious diseases, immune disorders and nutritional deficiencies.

6318   Melioidosis: Evaluate under the General Rating Formula.

  • Note 1: Confirm by culture or other specific diagnostic laboratory tests the initial diagnosis and any relapse or chronic activity of infection.
  • Note 2: Rate under the appropriate body system any residual disability of infection, which includes, but is not limited to, arthritis, lung lesions, or meningitis.

General Rating Formula for Infectious Diseases: For active disease- 100

After active disease has resolved, rate at 0 percent for infection. Rate any residual disability of infection within the appropriate body system.

This case from 2004, decided in the vets favor, shows how broadly the bacteria attacks human body parts:

  • Citation Nr: 0404516 Decision Date: 02/18/04  (LINK)
    SC granted to Vietnam vet, secondary, degenerative joint
    disease (DJD) of the cervical spine, lumbosacral spine, right and left knees, and pulmonary embolium

The takeaway–If you know someone who has EVER set foot in Southeast Asia or anywhere in the CDC map bp danger zones, who has a condition that eludes a diagnosis, get tested for >>

melioidosis.  The lesions may not be visible like those in the above photos.  If a veteran has served in endemic areas, and has melioidosis, and hasn’t vacationed in endemic tropical areas, chances are good that SC can be granted depending on health status.  Screening might also solve some current elusive medical mysteries.

It would be a good idea for screening at the time of death by a medical examiner even if a veteran didn’t serve in a danger zone because the veteran may have had a blood transfusion or shot.

Why? The Red Cross doesn’t test blood for melioidosis. (LINK-List infectious disease

markers

Continue reading →

Posted in All about Veterans, Blood info, BvA Decisions, General Messages, Guest authors, medical injections, Medical News, Tips and Tricks, Uncategorized | Tagged , , , , , | 4 Comments

OVERHEARD AT THE UN ONE DAY

Posted on September 30, 2019 by asknod

The Iranian Ambassador to the UN had just finished giving a speech and walked out into the lobby of the convention center’s grand foyer where he was introduced to a United States Marine Corps General.

As they talked, the Iranian said, “I have just one question about what I have seen in America.”

The General said, “Well, is there something I can enlighten you on?”

The Iranian whispered, “My son watches this show called ‘Star Trek’ and in it there is… Kirk who is Canadian, Chekhov who is Russian, Scotty who is Scottish, Uhura who is black, and Sulu who is Japanese, but there are NO Muslims. My son is very upset and doesn’t understand why there aren’t any Iranians, Iraqis, Afghans, Egyptians, Uzbekis, Palestinians,  Saudis,
Syrians, or Pakistanis on ‘Star Trek’. Why is this?”

“The General leaned toward the Iranian Ambassador, and whispered back in his ear, “Well, sir. That’s because it takes place in the future…”

Posted in ASKNOD BOOK, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

VARO–TDIU WITH A SIDE OF CUE

Posted on September 29, 2019 by asknod

Sometimes when you review a 60-s-70’s-vintage claims file, you run in to all manner of errors immortalized now in VBMS. Not only that, they are in living color. That old C&P exam on the vintage VA Form 10-2545 is still in glorious living color (yellow). All the VAF 21-6796b  ratings sheets are still in that lovely, light blue color.  The combat code was always correct and you could almost guarantee the rating did not exceed 10% unless you were missing body parts.

Rating sheet 1

Rating sheet 1970 2

Meet my neighbor right down the road Ms.  MEC.  Back in 1976, she was stationed down at McChord AFB.  One day, she needed some kind of workup and they sent her over to the superiorly-equipped American Lake VAMC.  They overmedicated her for the treatment and let her walk out the door. And drive back to McChord. She didn’t make the right turn from Veterans Drive onto Gravely Lake Drive and rolled over a few times. It was obviously LOD. The VA doctors had turned her loose and said she was good to go. Nobody argued that.  I felt this motor vehicle accident (MVA) would be akin to a TBI. Nowhere in the records does  it show she got a psychiatric/neurological workup either after the accident or at her first VA claim when she separated six months later.

In 2008, she finally got around to it and filed for headaches. VA said she’d only mentioned having headaches once during service. I looked it up. They were right-sort of. She mentioned about a year after the accident that she’d been having headaches… for about a year. She complained they were getting worse. Chronic? Well, not at VA, baby.

another headache STR

CUE HEadaches denied

I think, or should say I thought, it was a legitimate CUE claim. I still do. Unfortunately, I did not know, nor was I told, that the client had had additional automobile accidents and a head trauma in the intercurrent period following service. That’s really immaterial for my purposes. There’s a method to my madness. The claim was legitimate in every respect. The motive was purely ulterior.

Ms. MEC had filed several times in the last decade for TDIU but been mysteriously denied each and every time. She was easily TDIU material at 80% combined. She had a solid 70% for MDD and a 20% and 10% for back and right wrist injuries from the MVA and we all knew her and her employment travails very well.

I finally met her in person several years ago but she never evinced an interest in fighting VA for the final assault on Mount TDIU. The final catalyst was the gal that cuts Cupcake’s hair. Men don’t call them stylists or beauticians. She’s my barber (barbrist?). Traci for short.

Traci laid into me in no uncertain terms. She figured if anyone could cut the Gordian Knot, it was probably me. I’m drowning in claims but agreed to do it. I’m glad I did. It was very rewarding. It took six months of throwing more and more claims at them and turning up the heat. I began by filing for increases on all three of the SC conditions. Next, I served up a VAF 20-0995 for headaches secondary to TBI in the MVA and the icing on the cake was a 526EZ CUE on the headaches back to 2008.

Well, that got everyone’s attention. Ms. MEC had a passel of records archived at the American Lake VAMC going back to 1976 as they could clearly see. It took them almost this long just to hunt them all up out of a warehouse somewhere. The result? TDIU.

Without so much as increasing a single rating, without granting a single new claim or granting CUE, they finally sent up the white flag. This is the reason I do this. MEC, of all the folks I’ve ever done this for, was the most obvious candidate for IU. She hasn’t worked since 1998. I even had her go down to the SSA and get a printout of her earnings history to submit. The businesses we sent the VAF 21-4192s to had gone out of business years ago. There was no proof to find in the way of employment. Yet all these years someone had been dogging it. If I didn’t even have an iota of psychiatric acumen, I would still have opined she was a candidate. Check it out.

MEC Permanent and Total

This will mark a first. VA sent us a rating that essentially says “Absolutely nothing has changed, Ms. MEC, but we now think you qualify for unemployability. We really have no explanation why we stiffed you for the last 15 years but we’re gonna make it up to you now.” I usually go through a carefully orchestrated dance- a reduction, a fight to get it restored, an increase on something else and finally a TDIU after 2.5 years, so this is actually a welcome relief.

The teaching moment here is to do what I sometimes warn others not to. If you are filing for a big, brand new rating, it’s a bad idea to turn it into an 18- wheeler pulling a double trailer of secondary contentions. On the other hand, in this case, when you’ve been hitting a brick wall and can’t get any traction for years, the best advice is to get an agent or attorney to come in and start firing both barrels of the shotgun and let them know you’re going to make adjudication life absolute hell for them until they make it right. You don’t have to say so in as many words but your actions will speak for you.

The neat thing about this one is Ms. MEC gets everything behind Door #3. Because VA has granted her claim for TDIU, there is no appeal or Notice of Disagreement. She owes me nothing and I’m happy with that. Remember, the object of this game is the Veteran. It’s not about being paid for the work. It’s the joy I find in screwing VA over again. If they had simply admitted I had served in Vietnam in 1994, I wouldn’t be the thorn in their side now. But they ignored my evidence… and here we are.

As you can see, today’s show is brought to you by the letters T,D, I and U. And that’s all I’m going to say about that.

 

Posted in TDIU, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 4 Comments

Before and After: Hepatitis C screening

Posted on September 26, 2019 by Laura

My, my, my–what a difference a few years and the new direct-acting antiviral (DAA) make in influencing public health policy.  In 2013, the U. S. Preventive Services Task Force (USPSTF) HCV  recommended one-free screening for Woodstock-loving Baby Boomers born between 1945 and 1965.  Now USPSTF (LINK) recommends that ALL adults ages 18-79 get screened:

Patient Population Under Consideration

This recommendation applies to all asymptomatic adults without known liver disease.

The public commenting period has closed.  The CDC has not updated/reviewed their HCV page (LINK) since October 15, 2015 as of today.

HCV is still transmitted by dirty injections including by drug diversions, a criminal form of “health-care associated” infections.  In a recent case from Utah, a former nurse pleaded guilty of infecting seven of her patients in a plea deal. During the free screenings offered by the hospitals that employed the nurse, 37 more cases had been identified but many with different strains.

Historic health-care associated routes for HCV transmission are still played down in the veteran populations–most notably exposures via vaccinations by the jet injectors.  There are acknowledged cases of HCV transmission by multi-vial misuse, routine injections, and surgical and dental procedures in medical literature regarding veterans.

The official VAntage Point blog published a rare sympathetic 2015 post by VA employee Terry R. Bentley (LINK) entitled Treating Hepatitis C: One Vietnam Veteran’s story (LINK ) in which the veteran discusses the “air guns” and his exposure to blood in combat situations.

A new type of “choice” for veterans

But there is a health-care associated route for HCV transmission that is being adopted by veterans in dire need of new kidneys–the transplantation of kidneys which are HCV-positive. Facing death or transplantation with a HCV-positive kidney followed by HCV treatment afterwards, some vets are opting in, risks aside.  Dr. Daniel Katz (LINK) said,

“The high cost of hep C treatment may hinder rapid adoption of this practice in the private sector, where the transplant center may not be reimbursed for the hep C treatment… even with the hep C treatment, though, there will be cost savings over time by removing patients from dialysis.”  

Some VA transplant centers may also be able to offer HCV-positive livers and hearts to some veterans.  This seems counter-intuitive but might give someone many more years of life.  Time will tell.

About HCV, the Utah Department of Health states, “It is extremely contagious and can be spread by people who have no symptoms.” (LINK)  Besides being “extremely contagious” the way this virus changes and hides in human tissues, besides liver tissues, is going to be the subject of ongoing research for years.  As is the search for a vaccine to provide long-term immunity.

Laura (Kiedove–guest author)

Posted in General Messages, Guest authors, HCV Health, HCV Risks (documented), hepatitis, medical injections, Medical News, Uncategorized, VA Health Care, vA news, Vietnam Disease Issues | Tagged , , , , | Leave a comment

VBA PORTLAND–ED THE LRRP

Posted on September 5, 2019 by asknod

Wowser, I thought I had a good week with three wins but now I find it was four. Nothing gives me greater pleasure than to announce my squid/grunt/doorgunners’ success over the Eeeevil Goliath VA. You Veteran clients don’t realize it but you are one of those statistics that VA keeps track of. A chicken dinner winner (100% or TDIU) occurs exactly 12% of the time at the VARO level. The percentage jumps up to 22% at the BVA and to 74% at the CAVC counting all forms of set aside/reverse/vacate. Even better, when broken down, VA attorneys and the Great Unwashed Agents account for a whopping 35% of wins at the Board level alone. I’m appalled. It should be 100% of the time. 

Seriously, folks.  I’m just a JohnnyVet myself and new to this claims game but if the claim has merit, you can win it. I look at my early, feeble efforts to fight my own appeals. Like most of you, I foolishly relied on VSOs who couldn’t find their derrieres with a methane detector. It took me 18 years of defeat before the VA Rosetta Stone gave up its secrets to me.

CONGRESSIONAL INFLUENCE

What set this story off was US Congressman Derek Kilmer helping me get my medals 43 years after they were awarded in 2013. In 2015, a close neighbor’s old platoon company got together and helped him get a long-overdue Silver Star. Naturally, Congressman Kilmer (who helped immensely) was there to pin it on him. For reference, a Silver Star is one step below the Medal of Honor. Usually, the Company Commander, a 90-day wonder with slats, is the big winner and the enlisted underlings get a Bronze Star- maybe even one with a “V”. Or an ACM…or nothing

Anyway, Ed was having big problems with his VA claims. Congressman Kilmer called in his chit and asked me to represent Ed. What could I say? Kilmer’s Krewe can prestidigitate NARA records from Vietnam out of thin air in less than a week. That’s an important asset in this day and age of trying to get a Monday Morning Report showing your client present and accounted for at Phu Cat Air Base, RVN 96368 (Binh Dinh) on TDY. Yep. Becoming a member of the Nehmer class is getting that difficult.

Ed didn’t have to worry too much about proving he was in-country. He was a two-year ARPAC idiot like me. He also racked up a BS, a PH, and an Air Medal. Ed was a LRRP. He managed to eat a hand grenade or the better part of one up in I Corps. Army guys like shrapnel scars. It makes them feel tough. Ed’s  problem was he had plenty of shrapnel scars but he didn’t have enough ratings to get a TDIU. He was certifiable after two tours in country but 20 years as a LA County Sheriff  and Lieutenant really amplified the Bent Brain Syndrome. The bigger problem in my mind was the Ischemic Heart Disease. Ed had the Big One (Myocardial Infarction) back in 2005 and  some  important muscles died. And, knowing cops, he probably ate his weight in donuts 5,000 times over which didn’t help the coronary artery circus in his chest.

Ed the LRRP circa 1968

 

Ed the LRRP’s problem was identical to my Ed the Huey Doorgunner who won last week. See  https://asknod.org/2019/08/25/phu-hoi-the-128th-aviation-co-assault/. He had the same exact balance of  60% for IHD and 70% for Bent Brain. After I lit the fuse correctly, it was just a matter of time for the win for Ed the doorgunner. We just stirred in a call to the WH hotline to bring it to a boil.

Ed the LRRP went down the exact same road. I patiently guided his PTSD up from 50% to 70%, His IHD had fallen to 30% based on his METS score but he was blowing less than 50% on his Left Ventricular Ejection Fraction (LVEF). That deserved a 60% rating which I got- but they denied the TDIU. This is Portland VBA 348. They are some kind of hard asses down there.  Even the CMA is a dick. It must be depressing with all the Antifa/White Supremacist riots. Why do all these yayhoos have to congregate in the Northwest?

Somehow, the Portland Poobahs had gotten this misguided impression they could deny based only on the IHD. I filed a NOD and pointed out the denial only discussed the IHD disability to the exclusion of any mention of the PTSD  rated at 70%. The combination of the two disabilities, in concert, were simply too much to overcome in seeking meaningful employment. That cush job selling Hawaiian timeshare condos for $12,000 a week just wasn’t going to be in Ed the LRRP’s cards during his current incarnation.

Now, we all know about Hart v. Mansfield, 21 Vet App. 505(2007). Hart held that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination. Id. at 508 (emphasis added). Well, I guess the folks in Portland never heard of Hart-let alone Messieurs Mariano and Kahana. They already had baskets full of medical evidence and VR&E reports from shrinks saying Ed the LRRP was incorrigible. He enjoyed kicking ass and taking names. The VA “examiner”  proceeded to hammer two VES doctors (a shrink and a ARNP gal) to “modify” their diagnoses. Was mitral valve prolapse really part of IHD? Was having a raging anger management problem really an issue to sedentary employment out of the home? This went on for about three months. Then two more. Then another month. Each point where I expected this to bust open, another c&p was scheduled.

Finally, two years later I draw a pair of Eds. Identical ratings. Identical TDIUs. Both started out in my neighborhood and both were in the Army. Ed the LRRP moved down to Oregon which is why his took so long. And two Hepatitis C wins. Same war. Different continents. It ‘s a small world but I’d hate to have to paint it- as a good friend put it once..

Ed the LRRP’s TDIU:

TDIU redacted.

Cool Beans.

And that’s all I’m gonna say about that.

Posted in Agent Orange, All about Veterans, C&P exams, KP Veterans, PTSD, Tips and Tricks, VA Agents, VA statistics, Veterans Law | Tagged , , , , , , , , , , , , | 2 Comments

LAWBOB SQUAREPANTS HUMOR

Posted on August 30, 2019 by asknod

My mentor and sensei, who chooses to live in urban Battle Creek, MI sends me humorous stuff on occasion. As he’s a Grunt Vet from the 173rd AB with boots on the ground, I obviously can’t publish everything he sends. This, however, fills the bill. It had me going to the end.

The Cowboy Story 

A successful rancher died and left everything to his devoted wife. She was a very good-looking woman and determined to keep the ranch, but knew very little about ranching, so she decided to place an ad in the newspaper for a ranch hand.

Two cowboys applied for the job. One was gay and the other a drunk. She thought long and hard about it, and when no one else applied she decided to hire the gay guy, figuring it would be safer to have him around the house than the drunk.

He proved to be a hard worker who put in long hours every day and knew a lot about ranching.

For weeks, the two of them worked, and the ranch was doing very well.

Then one day, the rancher’s widow said to the hired hand, “You have done a really good job, and the ranch looks great. You should go into town and kick up your heels.” The hired hand readily agreed and went into town one Saturday night.

One o’clock came, however, and he didn’t return. Two o’clock and no hired hand.

Finally he returned around two-thirty, and upon entering the room, he found the rancher’s widow sitting by the fireplace with a glass of wine, waiting for him.

She quietly called him over to her.

“Unbutton my blouse and take it off,” she said.

Trembling, he did as she directed. “Now take off my boots.”

He did as she asked, ever so slowly. “Now take off my socks.”

He removed each gently and placed them neatly by her boots.

“Now take off my skirt.”

He slowly unbuttoned it, constantly watching her eyes in the fire light.

“Now take off my bra..” Again, with trembling hands, he did as he was told and dropped it to the floor.

With a cruel sneer, she looked at him and said, “If you ever wear my clothes into town again, you’re fired!”

Posted in Humor, Vietnam War history | Tagged , , , , | 2 Comments

BVA-LONG NIGHTS, IMPOSSIBLE ODDS, KEEPING MY EYE TO THE KEYHOLE

Posted on August 30, 2019 by asknod

Happy Labor Day weekend, campers. Here’s a lovely tale of the impossible. My friend Steve tasked me with my biggest challenge yet in VA claims. Image a triple whammy- no Service Treatment Records, no IMO and a free admission that he had sniffed the white lady in the late eighties. Sounds like the perfect storm for a denial…forever. This is just my cup of tea. The VA didn’t claim the records burnt up at the 4th of July ’73 NPRC barbecue. They just shrugged their shoulders and said “Bummer,dude”. The folks down at VFW and DAV laughed so hard they pee’d their pants…right before they told him to get lost. He finally came to me and asked if it was even worth the paper to file. 

Having now survived an airplane mishap, congestive heart failure and Hep C myself, I thought his chances were better than even. The glass is always half full here at asknod. Of course, I was sure I was bulletproof right up until I wasn’t, too. Optimism is a disease. I agreed to file this because I’d want someone with a positive mental attitude to do it for me if the shoe was on the other foot. What the hey? The worst that could happen was a loss.

Steve filed a pro se claim I ghosted for him and predictably lost. The VA examiners were so lazy they just copied and pasted the VAMC Nurse’s pronouncement out of the VistA records. No attempt was made to even paraphrase it. “Hep C infection due to snorting cocaine with shared bloody dollar bill”. One time. Just like that. Boom. I’m surprised they didn’t throw in sharing toilet seats with others in public restrooms post-service as a risk factor as well. That’s pretty flimsy. In NOVAspeak, we call it raw data and conclusions with no supportive rationale.

We had eleven pages of ophthalmological evidence and a few Air Force Personnel records-hardly enough to cobble together  anything probative in his favor. Our saving grace is that in the absence of evidence that would normally be there, VA is required to offer a heightened review of everything you do present-such as lay testimony and a heaping helping of 38 USC §1154a. These chowderheads were so sure of themselves they violated about everything related to evaluation of evidence.

I got an abbreviated IMO from our  good friend Dr. Bennett Cecil but it did no good. I believe the denial said something smarmy like Dr. Cecil didn’t have the benefit of reviewing the STRS and the entire c-file. Fat chance. I sent him everything or what there was of it. We bided our time and finally got the VA 8 certified to the BVA. I obtained a killer IMO from Mednick Associates and marched into the BVA Travel Board Hearing on March 28th, 2019.

Veterans Law Judge Matthew Blackwelder ushered us in personally and commented off the record that he had reviewed this appeal and we had a better chance of winning the Powerball Lotto with the BIG number. I laid out the case and then flopped the new IMO on the desk. We now had two IMOs to VA’s pathetic copy and paste.

Several weeks before the hearing, Steve belatedly informed me he’d contracted gonorrhea while in Southeast Asia. He hadn’t thought to mention it as he wasn’t aware it was a potential risk factor. I  read up on STDs and discovered that they, like Hep C, leave antibodies in your blood forever. I asked to hold the record open for 90 days while I grabbed a blood test to show he still had the antibodies. Judge Blackwelder said that wouldn’t be necessary as he had enough evidence to make a decision. Boy howdy did that let the wind out of my sails. All I could hear was “Fat chance, GI.”

Until last Wednesday. This proves we have a new paradigm afoot at the BVA. No longer are they (VLJs) at the beck and call of the VA Secretary. They actually have become independent thinkers. I was sure we’d be filing our NOA to the Court in short order. Win or Die summarizes this succinctly.  God sends the Right.

Here’s the hearing brief and BVA decision for all you wannabe law dogs and pro se folks. Feel free to plagiarize.

Steve redact. brief

Steve BVA Win redacted

It’s all in how you present it to the judge. Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures.

Posted in All about Veterans, BvA HCV decisions, HCV Epidemiology, HCV Health, HCV Risks (documented), Humor, Lay testimony, LOD and willful misconduct, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 6 Comments