WHEN SEX ENTERS THE HUNTING EQUATION

Posted on September 5, 2017 by asknod

Oh girls, they wanna have fun

Bruce Almighty, our east coast Ambassador, and surely the asknod Ambassador of anything worth being the Ambassador of, sends me this conundrum. Paradoxes r us and we love to answer them.

Imagine this scenario.

It’s Fall. You set out afield and have a doe tag. Hell, in Georgia, unless I’m mistaken, they hand out deer tags for either sex like plastic beads on Fat Tuesday in New Orleans. Let’s choose another state such as mine here in Washington as an example.

Our aspiring hunter, holding said doe tag, inadvertently snuffs the 3-point buck just behind his intended doe because he misestimated the range and held too high. Now, to the burning question. Can our hypothetical hunter claim the buck wasn’t really a buck? Can he put forth a viable, post hoc rationalization that perhaps the buck always wanted to be a doe, but through no choice of his own he was born with the physical attributes of a male?

Perhaps this hypothetical buck associated almost exclusively for his three years on earth strictly with the opposite sex and indeed, was terminated in the presence of same. Wouldn’t an argument that, on the inside, this putative buck had always felt he identified more closely with other does? Could it not be said that any buck, in the virtual absence of social media outlets for deer to express their true sexual LGBQRST persona, and by virtue of their propensity to fraternize with other does, in essence was actually  a doe trapped in a buck’s body?

I’m just wondering if a body could get the game warden to buy that bullshit, because society and the Supreme Court already do.

Humor abounds here as most know.

Happy Labor Day.

Posted in Humor, KP Veterans | Tagged , , , , , , , , , , | 1 Comment

OUR CONFEDERATE BROTHERS IN ARMS

Posted on August 26, 2017 by asknod

Bruce Almighty of the Georgia clan recently sent me this thought-provoking article. I knew its contents but share them with you. I was born south of the fabled Mason-Dixon Line and am only too familiar with the War of Northern Aggression as we called it. No one mourns the loss of slaves. No one aspires to see the old South rise again from its ashes. Morons abound in this world. A flag does not a political statement make. A statue of Lt. General Robert E. Lee is not eternal testimony to slavery. A soldier, regardless which side he fought for, does not a racist make-then or now. 

As for kicking and spitting on antique, inanimate statues-let alone tearing them down- I fail to see the satisfaction gained or what political statement has been vindicated or refuted. As we’re fresh out of living Confederate soldiers to hang for their crimes, I submit we are now reduced to beating images of long-dead Veterans on equally dead horses-neither of which had any druthers on slavery. Welcome to the 21st Century.

Congressional Support for Confederate Soldiers

     At the turn of the nineteenth and twentieth centuries, a move in the North was made to reconcile with Southerners. President McKinley was instrumental in this movement. When the Spanish-American War concluded successfully in December 1898, President McKinley used this as an opportunity to “mend the fences”.
     On 14 December 1898 he gave a speech in which he urged reconciliation based on the outstanding service of Southerners during the recent war with Spain. Remember, as part of the conciliation, several former Confederate officers were commissioned as generals to include former Confederate cavalry general, Wheeler. This is what McKinley said:
    “…every soldier’s grave made during our unfortunate civil war [sic] is a tribute to American valor [my emphasis]… And the time has now come… when in the spirit of fraternity we should share in the care of the graves of the Confederate soldiers…The cordial feeling now happily existing between the North and South prompts this gracious act and if it needed further justification it is found in the gallant loyalty to the Union and the flag so conspicuously shown in the year just passed by the sons and grandsons of those heroic dead.”
     The response from Congress to this plea was magnanimous and resulted in the Appropriations Act of FY 1901 (below).
 
Congressional Appropriations Act, FY 1901, signed 6 June 1900
     Congress passed an act of appropriations for $2,500 that enabled the “Secretary of War to have reburied in some suitable spot in the national cemetery at Arlington, Virginia, and to place proper headstones at their graves, the bodies of about 128 Confederate soldiers now buried in the National Soldiers Home near Washington, D.C., and the bodies of about 136 Confederate soldiers now buried in the national cemetery at Arlington, Virginia.”
Remarks: More important than the amount (worth substantially more in 2000 than in 1900) is the move to support reconciliation by Congressional act. In 1906, Confederate Battle flags were ordered to be returned to the states from whence they originated. Some states refused to return the flags. Wisconsin still has at least one flag it refuses to return.
 
Congressional Act of 9 March 1906
(P.L. 38, 59th Congress, Chap. 631-34 Stat. 56)
     Authorized the furnishing of headstones for the graves of Confederates who died, primarily in Union prison camps and were buried in Federal cemeteries.
Remarks: This act formally reaffirmed Confederate soldiers as military combatants with legal standing. It granted recognition to deceased Confederate soldiers commensurate with the status of deceased Union soldiers.
[Editor’s Note: I might also add here that the opening ceremonies off every Sons of Confederate Veterans Reunion always include a welcoming address by the commander of the Grand Army of the Republic descendent organization…jim dean]
 
U.S. Public Law 810, Approved by 17th Congress 26 February 1929
(45 Stat 1307 – Currently on the books as 38 U.S. Code, Sec. 2306)
     This law, passed by the U.S. Congress, authorized the “Secretary of War to erect headstones over the graves of soldiers who served in the Confederate Army and to direct him to preserve in the records of the War Department the names and places of burial of all soldiers for whom such headstones shall have been erected.”
    Remarks: This act broadened the scope of recognition further for all Confederate soldiers to receive burial benefits equivalent to Union soldiers. It authorized the use of U.S. government (public) funds to mark Confederate graves and record their locations.
 
U.S. Public Law 85-425: Sec. 410 Approved 23 May 1958
(US Statutes at Large Volume 72, Part 1, Page 133-134)
     The Administrator shall pay to each person who served in the military or naval forces of the Confederate States of America during the Civil War a monthly pension in the same amounts and subject to the same conditions as would have been applicable to such person under the laws in effect on December 31, 1957, if his service in such forces had been service in the military or naval forces of the United States.
     Remarks: While this was only a gesture since the last Confederate veteran died in 1958, it is meaningful in that only forty-five years ago (from 2003), the Congress of the United States saw fit to consider Confederate soldiers as equivalent to U.S. soldiers for service benefits. This final act of reconciliation was made almost one hundred years after the beginning of the war and was meant as symbolism more than substantive reward.
     Additional Note by the Critical History: Under current U.S. Federal Code, Confederate Veterans are equivalent to Union Veterans.
U.S. Code Title 38 – Veterans’ Benefits, Part II – General Benefits, Chapter 15 – Pension for Non-Service-Connected Disability or Death or for Service, Subchapter I – General, § 1501. Definitions: (3) The term “Civil War veteran” includes a person who served in the military or naval forces of the Confederate States of America during the Civil War, and the term “active military or naval service” includes active service in those forces.
Researched by: Tim Renick, Combined Arms Library Staff, Fort Leavenworth, Kansas. Member: Brigadier General William Steele SCV Camp 1857.
Gee, does this mean we have to tear down all those Union statues too? The Washington Monument and the Jefferson Memorial? How about we impeach Gen. U.S. Grant posthumously?  Where will it end? Idiot’s delight. 
 Post Script: I found this on FB by one Debbie Warren:

Your history lesson for the day.

Robert E Lee was married to George Washington’s granddaughter. He worked with Grant during the Mexican-American war and became a decorated war hero defending this country. He believed slavery was a great evil and his wife broke the law by teaching slaves to read and write. After the civil war he worked with Andrew Johnson’s program of reconstruction. He became very popular with the northern states and the Barracks at West Point were named in his honor in 1962. He was a great man who served this country his entire life in some form or other. His memorial is now being called a blight. No American military veteran should be treated as such. People keep yelling, “You can’t change history.” Sadly you can. This is no better than book burnings. ISIS tried rewriting history by destroying historical artifacts. Is that really who we want to emulate?
As they tear down this “blight” keep these few historical facts in your mind. No military veteran and highly decorated war hero should ever be treated as such. This is not Iraq and that is not a statue of Saddam.

IN ADDITION:: Lee was also very torn about the prospect of the South leaving the Union. His wife’s grandfather, George Washington, was a huge influence on him. He believed that ultimately, states rights trumped the federal government and chose to lead the Southern army. His estate, Arlington, near Washington DC was his home and while away fighting the war, the federal government demanded that Lee himself pay his taxes in person. He sent his wife but the money was not accepted from a woman. When he could not pay the taxes, the government began burying dead Union soldiers on his land. The government is still burying people there today. It is now called Arlington National Cemetery. DO THEY WANT TO TEAR THAT UP ALSO ??

Posted in History, vA news | Tagged , , , , , , , , , , , , | 12 Comments

BVA BACKLOG–WE JUST BOUGHT THE BROOKLYN BRIDGE

Posted on August 26, 2017 by asknod

Over most of the last 44 years of my alter persona as a Veteran (yes, I capitalize it proudly now), I remained aloof. I was refused admission to the VFW in 1973 and accordingly shut up and moved to the back of the bus. Apparently, it wasn’t a war but a “boundary disagreement”. There must be a magic number of how many have to die before the asshats officially ratchet it up and accord it the sobriquet of an official war. It seems 58,000 ± a few hundred was a wee bit skinny to qualify back then.  

Afterwards, I relished being a spectator on the sidelines. I got to hear a lot of different views from a lot of different Veterans who served in the same theatre of RVN/Indochina. I talked to repatriated “Canadians” who voted with their feet  to be all they could be up there for a spell. I listened. I kept my peace- and my distance from all things Veteran- until I became very ill and realized what all the small print on that Contract I signed guaranteed me. My now 28-year marriage between the cabinet level agency promulgated to help all Veterans-not just myself- is a case study in how to not run a railroad. What transpired in Reno last weekend is one of the better-orchestrated Dog and Pony shows the VA has pulled off in many decades following the VJRA.

John Basser, Jerrel Cook and I did a radio show for Hadit.com Thursday evening last regarding the latest VA version of the panacea for the BVA backlog.  I apologize but my feed lot owner Andy (20-year Marine) showed up with a load of hay and I had to bail out early.  I would like to explain, as I did on the show in DickandJanespeak, what Congress just pawned off on us as a repair order for the 470,000 + queue of appeals and the chokepoint of only 120 Veterans Law Judges accomplishing 1.5 claims per day/per five-day work week times 180 working days a year (assuming no vacation time).  Excuse me. Do the math, all ye VA beancounters. With 40-50,000 new appeals arriving annually, I don’t see it ever getting better. If anyone detects an anomaly in my math, please enlighten me.

Now to the problem. Let’s follow Johnny B. Veteran’s typical claim path in 2017. He files (in round figures) January 1. He now does all the old VA work of obtaining and filing (duty to assist) his intercurrent medical records, providing a privately-obtained nexus letter tying his disease/injury in service with his present one, and sits back to wait. 125 days later, he gets his denial (as do 85% of you). He goes to a DRO review a year  or two later and submits nothing new because he’s getting free representation at the _________ (insert VSO here). Nobody told him about the nexus letter so he loses a second time. He appeals and arrives at the BVA and loses again. At some point, Johnny Vet figures this poker game out and gets the letter and wins. It may take 20 years before he figures it out. After he wins, he’ll spend another eight years getting the correct rating after even more appeals.

THE NEW AND IMPROVED SYSTEM

And boy howdy here comes the new VA three-card Monte system. Three new pathways are now open to you soon (eighteen months to rollout) with the misnomer of the Fully Developed Appeal. I wrote about this jokingly several years ago and wish I’d never given VA the idea. They even stole my moniker for it.

The first new pathway described is “you can take your appeal directly to the BVA” as the article puts it. Yes and no. You can take your claim to the BVA with no new evidence -as is- and ask them to reverse the local yokels at your Fort Fumble. No hearings, no discussion. No DRO review. No more evidence-essentially a drive-thru window the VSO can use to expedite your appeal to DC. If you’re missing the main ingredient (the nexus letter), all the VLJ’s men and all the VLJ’s horses at the BVA can only return one verdict-denied. Duh? Basically, this is nothing new. Take a minute and read a few BVA decisions here and you’ll get that deja vu feeling that this is a repackaged, sped up version of what we have now- with fewer protections. Read the following. The Vet is not a doctor and he doesn’t have a nexus letter…

https://www.va.gov/vetapp17/files4/1724557.txt

The second pathway is “request a higher-level VA adjudicator” to hear the case. Deja vu strikes again. We have this function already. It’s nomenclature is more commonly known as a “Decision Review Officer (DRO) review”. We opt for this when we check the box for DRO Review at the time we file a NOD. Maybe Congress didn’t know this and VA pawned it off as a brand new way to do things. Shit, bubba. We’re talking VA here. They make this up as they go along or until the BVA or the CAVC clothesline them and make them obey their own regulations. It also appears here that they are intimating that you are asking for nothing more than a DRO review based on the same evidence you lost with. Repackaging it in a new review will simply result in a new denial. Again, no viable path to a ‘fair’ adjudication.

Lastly, a third new pathway is offered. An appeal or request with new evidence to the same rater who denied you from the get-go is the new pathway. Can you imagine losing a Hep C claim for jetguns and dental and “repackaging it” with a new nexus letter? I don’t think so. To date, I have yet to guide a single Vet to a jetgun win at their local Puzzle Palace. We win fairly regularly at the BVA where the backlog is but that is a 3-4 year path as it stands now and growing by the minute.

WHAT IS WRONG WITH THE SYSTEM?

What appears to me is no one will look at the current defect to identify where the prologue to the backlog begins. Remember the big pileup in claims in 2009-2014? The Local ROs were storing c-files in boxes on the floors under their desks. They were up to their asses in paper alligators. Under Secretary Hickey employed Secretary Shinseki’s new ‘paperless claims’ mandate and began the massive overhaul of the system culminating in DBQs and the VBMS. It wiped out the backlog at Fort Fumble but merely swept it downstream to the next logjam at the BVA. Does anyone think the CAVC will be immune from this incipient tsunami?

It’s not a f-up until you can’t fix it was one of my daddy’s observations on life. So let’s analyze this. If 74% of claims at the CAVC are vacated, set aside and remanded back to the BVA or AOJ to be “repaired” doesn’t that point to the guilty party? I submit that from statistics, it appears 64% of returned claims are approved or denied with an automatic appeal back to the BVA once the mistakes have been rectified. Imagine what would happen if  this litany of errors had been avoided in the first place? The backlog of remands from the BVA would subside and they could get to work on claims properly ready for appeal rather than spending endless hours reviewing and remanding them for legal sufficiency.

VA touts a turnaround of 125 days for new claims with a 94% rate of accuracy but there is nothing there to support this bald contention. If 74% of your work is returned as defective, how is it that  94% can be correct? I”ll tell you how. If you deny 85% of claims and 94% of  that 85% contingent of Veterans denied fail to appeal, then you can legitimately claim that your decisions were correct. The 6% who appeal and win are the remainder of the statistic.

The VA managed to eliminate the backlog at the AOJs by developing a Fully Developed Claim (FDC). You did all the work assembling the evidence. All VA had to do was get out the denial stamp. Oddly, the 85% denial rate remained static as could be predicted. With an extraordinarily efficient RO operating at peak efficiency, the large backlog was absorbed assimilated, adjudicated and the problem shoveled downstream to the BVA. VA can play Musical Chairs all day within their system but when they begin shipping them out and piling them up on the ninth floor of 625 Native Americana St. NW, there will be a new brouhaha afoot. I can’t wait.

If they ever begin doing it right the first time, I’m out of a job.

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

 

 

Posted in All about Veterans, KP Veterans, Lawyering Up, Nexus Information, VA Agents, VA Attorneys, VA Conspiracies, vA news, VA statistics, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 20 Comments

HADIT.COM RADIO SHOW TODAY

Posted on August 24, 2017 by asknod

As is customary, I wait until the last moment to inform you of an event. Such is the disease of putitoffuntillaterism. I hate that when that happens. This afternoon I’d like to discuss several subjects to include herbicide exposure in Thailand, the new rules on the VA Appeals system and whether unicorns fart.

 

We all have numerous burning questions about claims and Jerrel gives me great leeway in digressing to answer these as they arise. What the hey? That’s what Veterans claims are all about. Every one of you has a most unique story that differs in marked respect to others. No single instance of advice offered will ever be tailored exclusively for all of you which really makes this line of work extraordinarily interesting.

Same time, same channel. Thursdays at 1600 Local on the Left Coast and 1900 on the (L)east Coast. I hope to teach some of you about why you lose and what you can do to win.

To call in and listen:

347-237-4819  

To speak, press 1

Seen in Oregon recently. Jez, there’s some of us left out there.

unnamedFarting unicorns, anyone? How about Six-figure salaried Asshats paid by you Veterans clapping for your loss of legal rights?  Drive-thru windows at BVA now? Remember, I predicted this in an April Fool’s spoof in 2015…

https://asknod.org/2015/04/22/bva-announces-fda-fully-developed-appeals/

Clowns to the left of me   Jokers to the right

Here I am          Back in the middle with you

I hate to even think the improbable but when Veterans see how they have been bamboozled again, the suicide numbers will go up. It’s like changing the Lotto game from 44 to 59 numbers… and now adding a Powerball requirement on top. BVA Claims-In by ten- out by thlee, like Chinese Dry Cleaners. They even call them Fully Developed Appeals at one point in the Senate Bill.


Posted in Agent Orange, All about Veterans, AO, Medical News | Tagged , , , , , , , , , , , , , | 2 Comments

The Vietnam War by Ken Burns and Lynn Novick PBS Premier: Sun. 9/17

Posted on August 22, 2017 by Laura

 Difficult to know if this 18-hour, 10-part documentary will please or anger. The byline “No Single Truth” may not go over well in 2017 since a fair slice of the population prefers to see things in tunnel vision.  I’ll be surprised if the doc. spends more than a few minutes on post-war injuries in any depth.  

The soundtrack CDs (Link) looks fantastic.  The series, a ten-year project, is free to watch on TV or online.  

Links:

The Vietnam War website:  (LINK)

#VietnamWarPBS Twitter   (LINK)

Facebook (LINK)

Reviews  (Link)

Vietnam War PBS  Instagram  (Link)

Image by David Burnett from Vanity Fair article. Ken Burns and Lynn Novak

The National Park Service manages the memorial (LINK).

The memorial includes the names of over 58,000 servicemen and women who gave their lives in service in the Vietnam Conflict. The memorial also includes “The Three Servicemen” statue and the Vietnam Women’s Memorial.

Posted in Food for thought, History, Military Madness, Vietnam War history | Tagged , , | 5 Comments

BEFORE AND AFTER

Posted on August 14, 2017 by asknod

Cupcake spotted this and I feel it is more than à propos in this day and age of nonstop warfare with only more on the horizon.

 

 

 

 

Posted in Humor | Tagged , , , , , , , , , | 5 Comments

MALCOLM IN THE MIDDLE–PART IV-KARMAGEDDON

Posted on August 5, 2017 by asknod

Once upon a time in the Land of nod (September 27th, 2011), on the second day of my new website, I published a CAVC decision about one Malcolm H. Melancon. It was the beginning of a long story much like my five-year odyssey with Butch Long.

 https://asknod.org/2011/09/27/cavc-melancon-v-shinseki-2011-dude-they-dissed-me-in-91/ 

Along about my birthday on April Fools in 2013, who should show up? Why none other than Malcolm in the Middle. He even introduced himself as the same. By September, we were like peas and carrots. It’s amazing to me, frankly, seeing who shows up here sometimes following my ramblings. Cupcake  isn’t a major fan of asknod after that little têt-à-têt with Wounded Wallet Project a piece back. She now just shakes her head and mumbles Tourette’s but I’d like to think I’m part idiot savant, too. And besides, being politically incorrect is such a nebulous concept these days. Who’s to say? Look at the White House.

Malcolm and I tried, via appeals with a very good attorney but it was ineffectual. I’ve always held, for the last six years, that the error in 1991 had to be resolved via a CUE claim (or a Motion to Revise in VAspeak) first before trying to unravel this fustercluck. No one wanted to take it on and quite frankly, even though Malcolm had stumbled all the way to the Fed. Circus pro se, this needed a keen legal mind to dissect the claims file looking for that smoking gun of error. I never thought it would land on my desk.

Melancon 13-1534

It didn’t pan out with St. Mary as you can see.

In VA law , and probably US law in general, as far as I know- which isn’t much- we have what is called the standard of review. In DickandJanespeak, it translates into if A=B, then C happens. In anal legal terms, it means a statute and its counterpart at Agency (VA) level requires X conditions exist as evidence of record, and, if met, all resultant entitlements that can be awarded legally, will be. However, if the pertinent statute or regulation  was ignored and some arbitrary new set of metrics were used to adjudge it which were unsupported by statute and regulation, that would be the wrong standard of review. Here, it occurred in a medical conclusion back in 1991. Mr. M-in-the-M failed to object within a year. Undoubtedly his DAV rep. encouraged him to take the two 0% ratings and beat feet. I had one do it to me in 1992.

Here’s the document that began this whole shenanigan. Malcolm has given me permission, in writing, to do this so as to not endanger my VA accreditation. Before achieving Agent status, I could discuss these things at length. With accreditation, absent that written permission, I would be endangering his privacy and God only knows what other sins. Most of what I draw on is in the public domain at the CAVC or the BVA. Some documents, as I illustrate here, are from Malcolm’s claims files and are suitably redacted to protect his  private info. This is a contemporaneous 1991 standard Combined Rating Decision from which his award was promulgated. Highlighted in yellow is the hepatitis decision and the reason. Herein lies an incorrect standard of review.

The  rater was partially right. The Hepatitis B was acute and was gradually resolving-but it would take several years. Unfortunately, the Hepatitis C was not acute and severely disabled Mr. Melancon over the next decade. And here is the glaring standard of review error staring us right in the face. Diagnostic code (DC) 7345 (1991) clearly and unequivocally grants service connection for infectious hepatitis at the 0% compensation rate  for Healed; nonsymptomatic. Page 2 above boldly declares DC 7345 Hepatitis (cured) aka resolved, aka nonsymptomatic. I feel like donating my Roget’s Thesaurus to the Houston raters.

The standard of review is not that it was “acute and resolved”, but that it occurred in the line of duty, on active duty while in the service of his country, no willful misconduct was involved and that he had a discharge under honorable conditions. 

After you have arrived at this juncture, the next standard of review is to refer to the pertinent regulation in 38  CFR §4.114 Diagnistic Code 7345 and discern which rating he would be entitled to… and lo, there is one that fits him to a ‘T’. His symptoms are healed and non symptomatic (aka acute and resolved) ergo the obvious choice is 0%.

38 CFRs §§ 3.1(l), 3.4(b)(1) and 3.303(a) are the proper standard of review. If the disease was acute and resolved, that would be the second step of review in determining what ratings percentage was due. Obviously the hepatitis B is service connected because the preponderance of the evidence says so. That is not in dispute. His DD 214 shows an honorable discharge. He filed within a year of separation. Bingo. Service connected. Healed and asymptomatic? Cha-ching! $0.00 dollars per month but you get free gastrointestinal medical visits for life at the VAMC nearest you.

As a side note here, Malcolm also was granted two other 0% ratings which were identical which requires a 10% rating under §3.324! Gee, two CUEs for the price of one.

What is a screaming hoot is what has transpired in the interim since 1991. Remember, old Malcolm was not Clarence Darrow and was not expected to be. What he is, however,  is doggedly determined and undeterred by “What part of ‘No!’ don’t you understand?” VA has conceded over the last two decades or so that:

a) Yessssssssssssssss, indeedy.  Mr.Malcolm had Hep B in 1991 (acute and resolved, mind you) but he failed to appeal. Too late. No one at the Houston VARO or the DAV said “Pssst. File a CUE claim, young man”.

b) Well, not exactly. Actually, he never had Hepatitis B and all those tests were false positives over the years. He actually had Hepatitis C from tattoos and unprotected sex and thus was service connected but -yep- at 0%. Funny this one isn’t acute and resolved as well.

c) Well, we’d allow as maybe he had both but there’s no proof of that because the Hepatitis C test in 1991 said negative. (Unfortunately, there was no Hepatitis C test available at Balboa in 1991 and probably wouldn’t be for several years to come). Hell, even the Red Cross didn’t have  the test available for protection of the blood supply nationally until 1992-and they were the first to get it.

d) a VA RN opined in 2004 that as time moves on, we lose those little Hepatitis B dumoflotchies in our blood and it makes it look like we’ve never had it-ever- so it really isn’t remarkable. Malcolm used to show HBV markers but now he doesn’t. Move along, folks. Nothing to see here. Amazing the medical manure that emanates from the mouths of VA Examiners who let their mouths overload their asses.

Just for shits and grins, I had him tested for HB Surface Ab and HC Core Ab in 2015. Both came back positive showing exposure or resolved Hep. B. Maybe those VA blood testing components on 2004 were expired. Watch Carmen Mascarenhas, MD moonwalk right over this HBV enigma.

Well, actually Carmen, you never lose the surface antibody. You have that one confused with the surface antigen. Time to fly back down to the University of Grenada for an MD refresher course in gastroenterology.

Or- this is where you earn your money doing this forensic research- you notice a lab test that says  henceforth after 5/19/2004, all Hep B testing will include the antibodies test and not just the testing for ACTIVE Hep b (HB Sag HB SAB). The problem is that the specimen was collected on 02/02/2004– three months plus before the new test came on line. Et Voilà!  No hep. B!  Malcolm got lucky on this one. He got a copy of his c-file way back when with this “work copy only” in it. The recent 2013 one is MIA. But I get it. It was just a work copy and not a permanent, incriminating record. I guess that means VA isn’t required to “keep it”.

So, we have the hepatitis B that wasn’t service connected in 1991 still isn’t. However, the evidence has gradually evaporated into thin air anyway and there really is no proof now one way or the other. But there is proof of Hep C and he had tattoos so it’s SC but it’s only SC for 0%.  But the HCV test in 91 was negative. But the Hep B in 1991 during active service aboard the USS Reasoner out on the Bounding Main of the Pacific Ocean wasn’t SC because -and I get lost here-why? Two different hepatitis viruses (virae?) with two different Diagnostic Codes, both of which provide for healed, asymptomatic disease at 0%, and he is now SC for HCV in 2004 but not to HBV in 1991 but freely acknowledged in 2004 as being contracted in service. Is it just me or is this a speshul kind of VA stupid? Do these people even read the file or make it up as they go?

Here we are in 2005

But wait. We’re not going to see your Hep B and raise you to 0% for Hep C and call.

So, what’s a poor ex-squid in the middle supposed to do? Why, wait four years for his friend to get his accreditation and ask for representation. What else? Herewith, we dropped this conundrum on Houston. I think they have a problem.

All these years it was denied based on the wrong standard of review. The error continued all the way up to the CAVC and even Saint Mary Schoelen’s staff attorneys missed it. Veterans Law Judge Keith Allen missed it. Everyone missed it until I thought to myself last week “Shit. Look at all the guys who got (and still get) the double ought of 0% for hearing loss and 0% for tinnitus ( or hemorrhoids, or flat feet or hammertoe or…). I looked through our current VA Schedule of Rating Disabilities (2017) and found 156 instances of 0% ratings from head to toe inside and out. If that isn’t enough. 38 CFR §4.31 allows you to fashion one out of whole cloth for any Diagnostic Code.

Here is Mr. Melancon’s new pièce de résistance  through counsel. I have lived, breathed and slept Malcolm’s claims file for five years and it never bit me on the ass about the “acute and resolved” being the wrong standard of review. I’m pretty dense, huh?

Melancon CUE redacted

The NOVA lawdogs agree. It’s going to go off at 6-1 odds at the VBAHOUS 362, 2-1 at the BVA  and 5/9 at the CAVC. I’d hate to see it go to the Court but as I said, this one is a speshul kind of stupid even I have rarely seen. I guess I’ll be having to apply for privileges at the CAVC if it goes up there. I can recite this in my sleep now but you just know it would sound sweet with Ken Carpenter doing the oral presentation or the Rule 33 meeting.

And after all these years, Cupcake and I finally had the most excellent pleasure of meeting Malcolm in San Antonio this April at Spring NOVA. Welcome Home, Malcolm.

Malcolm and me April 23, 2017 San Antonio, TX Hyatt Riverwalk.

 

Posted in All about Veterans, BvA HCV decisions, CAvC HCV Ruling, CAVC Knowledge, CUE, Earlier Effective dates, HBV, HCV Epidemiology, HCV Risks (documented), Lawyering Up, Tips and Tricks, VA Agents, VA Attorneys, VA Medical Mysteries Explained, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

NEW MILITARY MOVIE FOR THE AGES

Posted on July 31, 2017 by asknod

Our Southeastern Coast Office checked in today with this latest Hollywood release of high-interest to military movie afficianados. While not quite John Wayne calibre, it certainly will resonate with many -both pro and anti-military. We live in troubled times and a small dose of reality set in a fictional but persuasive medical context will enthrall many a cinema fan. Very moving tale. Bring a hankie.  Coming soon to an IMAX near you. We give it a solid  ΘΘΘ ¼.

asknod is like a box of chocolates. It’s my Tourette’s acting up. Happy August to all.

Posted in All about Veterans, Humor, KP Veterans, VA Medical Mysteries Explained | Tagged , , , , , , , , | 3 Comments

Cases when inactive HBV might wake up

Posted on July 23, 2017 by Laura

HBV:  “The virus has four genes (or open reading frames), designated S for the surface antigen protein, C for the protein that covers the inner core and encloses the DNA, P for polymerase enzyme responsible for replication…, and X for the X protein involved in transcription and possibly, the carcinogenic properties of HBV. “

(Blumberg, B. S., Hepatitis B. The Hunt for a Killer Virus, Princeton University Press, 2002, 2004).

 

Hepatitis B was discovered in 1965 by Baruch Blumberg et al..(LINK).  Alex has written some posts on “B” topics and claims– I like this one from 2013:  Malcolm in the Middle-What did they know and when did they know it ? (LINK). 

There is a HBV vaccine, but no cure.

“…if a person has never gotten Hepatitis B, then the vaccine will protect them against the disease. However, if a person has been infected and recovered, they are immune to Hepatitis B and do not need the vaccine.” CDC flyer, p.2 (LINK)

Those not so lucky to achieve natural immunity become chronic carriers;  the current antiviral medications only suppress HBV; they are given long term.  This can lead to drug resistance and a manifestation called Virological Breakthrough (Link).

Hepatitis  C–formerly the mysterious “non-A, non-B” viral hepatitis (NANBH)–was discovered in 1989 by Choo, et al.  There currently exists no HCV vaccine but a cure was found in 2013.  An acute case of resolved HBV can lead to immunity or the chronic state. An acute case of HCV can also be resolved by the immune system but the person is susceptible to reinfection.  If not cured, they can become a chronic carrier of one or more HCV genotypes.

Of course, a person can also be infected with different combinations of HBV, HCV, and even HIV at the same time.  Now if a person can achieve an inactive carrier state, when the virus is not harming the liver, that’s a good thing.  But if the patient is also infected with HCV, his HBV could become reactivated by the new DAA medications with awful results.

When patients are unaware that they have HBV, nor are tested for it, are treated with DAAs to cure their HCV, wham-o, HBV attack their livers with gusto.  Therefore the press and world governments have issued warnings:  check HBV status before proceeding with HCV DAA treatments.

Frank has found some articles about this horror for us:

https://www.hhs.gov/hepatitis/blog/2017/1/17/hbv-reactivation-during-hcv-treatment.html

https://www.ncbi.nlm.nih.gov/pubmed/28230928

http://hepatitisc.hcvadvocate.org/category/hbv-re-activactivation

http://www.journal-of-hepatology.eu/article/S0168-8278(17)30249-0/fulltext

That a “thing,” with only four genes, can do so much damage to humans is astonishing.  As we can see in this recent WHO map, HBV remains a serious infectious disease in Vietnam and other Asian countries.  It’s not surprising that our servicemen, who were not chaste goody-two shoes, picked up this STD.  And no, you don’t have to prove you had unsafe sex in-service by also picking up a different STD like gonorrhea that required immediate attention by medics!

Click image to see map larger.

Posted in Food for thought, Guest authors, HBV, Medical News, Uncategorized | Tagged , , , | Leave a comment

CAVC–BELL V McDONALD–NEUTRAL EVIDENCE IS NOT NEGATIVE EVIDENCE

Posted on July 22, 2017 by asknod

Welcome to the CAVC. Meet Saint Coral Wong Pietsch (pronounced peach) or abbreviated to St. Coral. She’s a member of the Holy Order of the Sisters of 625 Native American Ave. NW APO 20004 (Ninth Floor- Women’s Lingerie/Sundries). With the large number of vacancies (five), and a President endeavoring to look more presidential and less like a skirtchaser, I’m guessing we’re going to see some more lady juris doctors ascend to the throne. I’d personally like to see Amy Odom or Jeanny Mark up there. 

Chief Justice of the Court of Appeals for Veterans Claims Davis

Meanwhile back to James W. Bell. Jimbo signed up at the cusp of the end of the Southeast Asian Olympics and Indochinese Boundary disagreement in 1972. He signed up for three years and served honorably. In May 1973, however, he contracted what appeared to be Hepatitis (not otherwise specified) and it is presumed it was acute and resolved. Being ignorant of Hepatitis C, they presumed wrong. I’d like to interject a side note here. Using the Metavir Scale to rate the progression of Hepatitis C, the age of the disease is easily determined by the stage of progression. Mr. Bell had a liver biopsy in  August 2001 that revealed Stage 4, Grade IV (4) with cirrhosis-meaning he’d had it for a very, very long time. Most gastroenterologists , if interested in the etiology of such things, would determine the genotype and Metavir Scale and look back 30-40 years for an event that might presage it. Et Voilà! May 1973 jumps out and bites your eyeball if you were a nonadversarial, cutting edge VA examiner.

Bell CAVC decision:

BellJW_15-1793 Hep C -jetgun.

Here’s VLJ U.R. Powell’s take on it:

Bell BVA

After mulling it over for nine years, Mr. Bell filed for Hep C and blamed the jetguns from Basic Training. Fortunately for him, two things can be said. He did not have any legal help (VSOs don’t count) and he’s not a doctor. He cannot say what bit him and gave him the virus. You can actually point to Groves v. Peake (2008)    as a good precedential Fed Circus decision to lean on. Walker v. Shinseki might have obliterated §3.303(b) but §3.303(a) is still intact. In that sense, Groves is on point.

This case should never have reached the Court for any number of reasons.  But then we’d be unemployed and idle hands are the Devil’s workshop. Fortunately for all of us leagle beagles, the VA will never get it right. We have job security for as long as they remain paralyzed from the neck up. Besides, think of all the cirrhosis Attorneys and Agents avoid because they have no time to hang out in bars. It’s a win-win combo for all of us.

Mr. Bell’s problems began in September 2010. His VA examiner (gosh that sounds so exalted a title for a R.N.) got conflusticated with the vapors and declared she simply could not “offer any opinion” about whether the appellant’s disorder was related to his active service “because any opinion would be  speculation”. She might  well have added that the terms of her contract ensured she’d lose her job and that 2010 Christmas bonus if she did say it was related to service.

From here on, it was the same old comedy of errors. Obviously Mr. Bell had not brushed up on what the VBA considers unacceptable verbiage for a valid nexus. Dr. Belur S. Sreenath (probably his VA doctor in that golden era before they had been forbidden to opine on etiology) opined that the “appellant’s disorder is probably related to the airgun injections that he received during his active service”.

Well boy howdy is that right out. Probably, possibly, mighta, coulda, shoulda looked in the mirror, my Uncle Earl died of that and other “equivocal” definitions won’t put you on Bucks Boulevard. To get to Dollar Drive, your doctors have to use those “unequivocal” statements like “at least as likely as not” or “more likely that less likely” etc.  In addition, you can’t just spout like a whale. You have to explain why it is that you have come to that conclusion. VA would like to think they came up with the perfect foil for telling the truth by simply declaring it to be “too speculative to venture a guess. When we were kids, that was the equivalent of yelling “Not it!”

St. Coral

St. Coral has to gently explain to Veterans Law Judge U.R. Powell some of the finer points of law as she seems to have glossed over the subject in law school. Fortunately for Veterans, Congress, in its munificence, recognized in 1988 that some BVA folks with law degrees slept through some of their lessons. Not wishing to denigrate them directly by insinuating they were raised by wolves, Congress wisely set up an Article I court of review which some legal scholars say has more the reach of of  an Article III court if they so choose it.

A conceptual misapprehension pervades the Board’s analysis. The September 2010 examiner’s opinion “provides neither positive nor negative support for service connection.” Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). “Therefore, it is not pertinent evidence, one way or the other, regarding service connection.” Id. The Board, however, labeled the September 2010 examiner’s opinion a “negative nexus opinion.” R. at 9. The Board later stated that the examiner opined that “it would be speculative to medically attribute the [appellant’s] current hepatitis C to the in-service injections via air gun.” It should have stated that the examiner opined that she could not answer the medical question presented to her without resorting to speculation, a subtle but important difference. In general, the Board chose to view neutral medical evidence as medical evidence against the appellant’s claim. That erroneous view of the evidence colored the Board’s ultimate conclusion. The Board found that the “most probative evidence of record does not show that it is at least as likely as not that the [appellant’s] current hepatitis C is etiologically related to his active service.” R. at 12. For that reason, it concluded that “the preponderance of the evidence is against the claim.”

St. Coral offers one lovely last parting shot.

The Board made two important findings: (1) the nexus question must be answered by a person with medical expertise (Colvin); and (2) it can never be answered by a person with medical expertise without resort to speculation. R. at 5 (finding that the September 2010 examiner’s report is adequate and that VA need not make any additional efforts to assist the appellant).

Always remember, when VA makes a finding of fact, it cannot overturn it without first declaring it a clear and unmistakable error (or CUE). Since  VA hates to contradict itself or admit error (or appear stupid), they will cling to this finding and go down with all hands before admitting they goofed. That’s why this is at the CAVC-because some asshat Appeals Coach in St. Petersburg was too lazy or terrified to grant SC to Jimbo when it was clearly due. The Hepatitis in service was a dead giveaway. The hepatitis now meets the chronic clause. What’s the problem? Sadly, the problem is a denial mentality. It is not expected that VA will win every time. A few minnows always get through the net. Here, St. Coral had to cut a hole in the net to perform the necessary VA catch and release. Boy, howdy do I love reversals. Make it so, Numba One! And see that you’re quick about it or I’ll box you about the ears.

You have to pick your fights carefully. VLJ U.R. Powell’s  staff attorneys prepping Mr. Bell’s Texas Necktie Party should have rethought this one for any number of reasons. I reckon the last thing you can throw at this one is…

You can’t fix stupid.

At the VA, they promote you.

Dan Curry

P.S. A big thank you and an immense attaboy to Danial G. Curry, Esq. and his firm for his legal acumen on this one. Excellent work, sir.

P.S. Just spotted this in the news feed from a reader:

Trump also nominated Michael Allen, Amanda Meredith and Joseph Toth to the U.S. Court of Appeals for Veterans Claims, which hears cases from veterans who think their claims for VA benefits were denied unjustly.

If confirmed, Michael P. Allen of Florida will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Michael P. Allen serves as a Professor of Law and Director of the Veterans Law Institute at Stetson University College of Law in Gulfport, Florida, where he teaches courses in civil and constitutional law, as well as veterans’ benefits law. Professor Allen is a recognized expert on the law of veterans’ benefits and has testified before Congress and published widely in the field. Before joining the Stetson law faculty sixteen years ago, Professor Allen spent nine years as a civil trial attorney at the law firm Ropes & Gray in Boston, Massachusetts. Professor Allen received his B.A. in American history and political science, summa cum laude, from the University of Rochester, where he was elected to Phi Beta Kappa, and his J.D. from the Columbia University School of Law, where he was a Harlan Fiske Stone Scholar.

If confirmed, Amanda L. Meredith of Virginia will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Amanda L. Meredith serves as the deputy staff director and general counsel of the U.S. Senate Committee on Veterans’ Affairs, chaired by Senator Johnny Isakson of Georgia. She previously served as general counsel to the Senate Committee on Veterans’ Affairs and as benefits counsel to Ranking Member Richard Burr of North Carolina and Ranking Member Larry Craig of Idaho. Prior to her service on the Committee, Ms. Meredith served as director of the Task Force for Backlog Reduction for the United States Court of Appeals for Veterans Claims and as a law clerk and executive attorney to Chief Judge Kenneth Kramer, United States Court of Appeals for Veterans Claims. Ms. Meredith received her B.S. from the State University of New York at Buffalo, summa cum laude, and her J.D. from the State University of New York at Buffalo, magna cum laude, where she was a member of the Buffalo Law Review.

If confirmed, Joseph L. Toth of Wisconsin will serve as a Judge on the United States Court of Appeals for Veterans Claims.  Joseph L. Toth is a veteran of the Judge Advocate General Corps of the United States Navy. In 2011, he served as a field officer in the Rule of Law Field Force Afghanistan (ROLFF-A), where he was stationed with the U.S. Army’s 10th Mountain Division in the Zhari District of Afghanistan. In Zhari, Mr. Toth partnered with Afghan prosecutors to establish the rule of law in the district where the Taliban was formed, and he was awarded the Joint Service Commendation Medal for his service. He also served as Senior Defense Counsel in Pearl Harbor, Hawaii, where he defended Sailors, Marines, and Coast Guard personnel at courts-martial. Following his military service, Mr. Toth clerked for Judge Daniel A. Manion on the United States Court of Appeals for the Seventh Circuit and Judge Robert J. Conrad of the United States District Court for the Western District of North Carolina. Most recently, he served as an associate Federal public defender in Milwaukee, Wisconsin. Mr. Toth received his B.A. from the University of Chicago and his J.D. from the Ave Maria School of Law.

One slot left….

Posted in CAvC HCV Ruling, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, HCV Epidemiology, HCV Risks (documented), Jetgun Claims evidence, KP Veterans, Medical News, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , | 4 Comments