State (N.J.) v. Dr. Albert L. Weiner

Posted on October 3, 2016 by Laura

 Albert L. Weiner, O.D., began practicing osteo­pathic neuropsy­chiatry in the 1940’s; he made it into the Guiness book of records as the world’s fastest psychiatrist after his greedy conduct was made public.  According to court commentaries, when he wasn’t teaching classes, or giving electro-shock therapy, he injected up to 40 patients per day (in four treatment rooms) with drugs like sodium surital, sodium amobarbital, atropine, methapyraline, hormones, vitamin B, and methan phetamine.  He used about four to five dozen needles and syringes which were reused each day after sterilization–even after treating several jaundiced patients.

The assembly-line ended, temporarily, when a large serum hepatitis outbreak (41) left many dead.  He was indicted (5/1/61) on 15 counts of manslaughter. After an eight‐week trial, in which 135 witnesses were called, he was convicted on 12 counts and sentenced to two to four years in prison and fined $12,000.

Dr. Weiner's practice.

From January 1, 1960 to March 18, 1961, 41 alleged cases of serum hepatitis, 15 of them resulting in death, occurred in Dr. Weiner’s practice.

Dr. Weiner appealed to the Supreme Court of New Jersey and won

(State v. Weiner, 194 A. 2d 467 – NJ: Supreme Court 1963). On Oct. 21, 1963, the State Supreme Court set his conviction aside and ordered a new trial. The court also ordered the New Jersey Board of Medical Examiners to restore Dr. Wei­ner’s license to practice “with­out prejudice.” (link).

Only one dissenting judge, Vincent HANEMAN (Link), himself the son of a doctor, really understood this case.

That there has been an increase in the recognized incidence of serum hepatitis since World War II is a substantiated scientific fact which has received much general publicity. In spite of the minimal information about serum hepatitis it is medically indisputable that the disease is transmitted solely by the introduction of the virus into the blood stream, and that the spread of the infection during the course of intravenous injections or infusions can be prevented by the use of aseptic instruments and medication.

We come then to the crime for which defendant was indicted in 15 separate counts involuntary manslaughter in connection with the death of 15 persons, all of whom allegedly died of serum hepatitis with which they became infected as a result of defendant’s criminal negligence.

During his injections and infusions, defendant had available two methods of instrument use. He could have (1) employed new disposable needles, syringes, Ven-O-Pak tubing, and bottles of solution in the injection and infusion of each patient and thus have made certain that those instruments or equipment were uncontaminated with the serum hepatitis virus, or (2) used the same needles and syringes repetitively but only after proper sterilization to destroy the virus which possibly could have contaminated the needle and syringe by prior use upon a patient….The defendant elected to pursue the second of the above alternative courses

http://law.justia.com/cases/new-jersey/supreme-court/1963/41-n-j-21-0.html

Sales of disposable syringes increased after the tragedy of Dr. Weiner’s unlucky patients.   This case involved multi-dose vials, re-use of medical devices, poor or no sterilization, assembly-line rushed medical interventions and bad hygiene.  There was no way to know if the serum hepatitis in Weiner’s practice was B or some other agent because science hadn’t advanced enough.  Dr. Baruch Bloomberg’s (Navy WWII vet) Nobel lecture (Link) gives some details about his discovery of HBV in 1966.  Alex has written about the Australian antigen previously.  But scientists had been working on the problem of hepatitis for decades prior to the 1960s–including experiments with human subjects.

It’s a pity this widely-reported case didn’t inform and reform the medical practices of the DoD in the future.  Dr. Weiner may not have been an addict sharing needles with other addicts, but his methods made him a super-spreader of hepatitis.  Similarly, the DoD’s past medical practices made it the–the what?; MEGA epidemic/pandemic hepatitis/virus spreaders?54_1416_mchampions? Or should the U.S. Public Health Service deities of that era so be crowned?  Alice says, ‘Congratulations, share the crown–because you all knew what could happen after insulin was used to treat diabetes.’  

Posted in Blood info, General Messages, Guest authors, hepatitis, medical injections, research, Uncategorized | Tagged , , | Leave a comment

PROFILES IN MEAT COURAGE #8

Posted on October 3, 2016 by asknod

downloadHaving short bowel syndrome can be a blessing and a curse. The upside is you have to eat to stay alive on a meal-by meal-basis. The downside is Cupcake crying and saying it just isn’t fair that she can gain weight from brushing her teeth. 

People laugh when I say ‘eat’. We’re talking losing two pounds if you miss a meal. Doctors tell me to graze like a cow in a measured cadence. They don’t get this. It’s difficult to steer when the lip of the feedbag gets up in your line of sight. In fact, you’re supposed to have your hands firmly planted at 10 and two o’clock if the matter be known. I don’t see that much now. With my bum left arm, I use a suicide knob at 2 o’clock.

In my continuing Profiles in Meat Courage, I share the agony of having to wade through a 3-pound Flank steak. I’d take this cross to bear over being a boy named Sue any day. People laugh derisively but they don’t know about the suffering from a sore jaw muscle after chewing that much Prime Beef. And let me tell you- that leaves quite an experience in the loo which means I have to pack around the Poo-Pourri (see above) like an American Express card. Cupcake is adamant about not leaving home (with her) without it.

Don’t let this go too far. I guess I don’t mind letting you in on this but I’ve put a few Starbucks and Paneras out of business for days when I forget the spray. It’s gotten to the point where Cupcake won’t even go in with me unless I promise not to visit the loo. The worst one was up in Silverdale when they called in the bomb squad and the dog alerted on me. Said I smelled like ANFO. That’s embarrassing.

I prefer Home Depot®  stores, personally. It’s always at the back of the store so folks don’t have use the fire escape doors that set off the alarm. Lowe’s® restrooms are always at the front and presents a security issue when all the cashiers run out and leave their tills unguarded. I’m not trying to cause problems and Poo-Pouree™ helps solve the problem for everyone. Be careful not to get any of it on you. It’s like getting hit by a skunk.

Anyway, for meat afficianados, this report is for you.

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Posted in Food for thought, Humor, KP Veterans | Tagged , , , , , , , | 4 Comments

THE GREAT BIG SNAKE STORY

Posted on October 1, 2016 by asknod

download-2Having been born and raised in the South, seeing a big black snake that dang near spans two lanes of a country road isn’t a stretch. They love that heat in the summer coming off the macadam and often crawl out there to enjoy it. This explains why you see so many black snake road pizzas in May. Since there weren’t any black-colored poisonous snakes I was aware of, it was always safe to grab one to scare the girls with. I liked to put them in a burlap bag and turn them loose at the Drive-in just before dusk so I could whack it up ‘side the speaker pole and “rescue” some gal from imminent danger. Hey, it got you to first base in Sumter, South Carolina in 1968. 

When I got to sunny Southeast Asia in 1970, I didn’t see a lot of snakes first off. My buddy Craig blew a Malaysian Pith Viper into twenty .223 pieces with his CAR 15 about six inches from my ear one morning at the beginning of Monsoon. Did any of you know your ears bleed when your eardrums blow out? I couldn’t hear him say that sarcastic “You’re welcome” for several weeks after. I don’t think I’d even paused to think about poisonous snakes over there up to then. Who knew? I was looking for poisonous gooks. We were over the fence up at Alternate (Long Tieng, Laos.)

Since being in service is not always glamorous, the guys with fewer stripes on their sleeves always get the jobs cleaning up and policing the trash. One Spring Saturday morning in 1971, Craig and I drew short straws and were elected to clean out a commo building. Someone had left the door open and a lot of rats had gotten in. They were chewing on our arsenic-coated 25-pair cable we had stored there and the arsenic wasn’t having any effect. Craig and I waded in with our Montagnard-issue crossbows and were making great headway when I noticed about 24 inches of black snake tail sticking out from under a pallet of field telephones. Without even thinking, I reached down and grabbed it and pulled him out-just barely six feet of him. Before he could even blink, I stepped on his noggin, grabbed him behind his neck and shoved him up next to Craig’s face.

blackcobra2Craig wasn’t a snake guy and didn’t cotton to my humor. What he did find funny was that I was currently holding one of the biggest black cobras in captivity in that province and no game plan for disposing of it. That’s when I noticed the fangs. Since I’d never found myself in this predicament before, I asked him what he suggested “we” should do. Seemed like the smart thing. He was my commanding NCO, right? Craig was from Mississippi and his laconic, slow drawl answer was “What you mean “we” Kimosabe? Looks like you two fellers are the ones holding hands.” That must be one of those Mississippi humor things.

We walked outside into the sunlight and thought for a moment. Being Air Force, we instantly had a foolproof plan. I’d throw the sucker down on the 3/4 inch minus gravel and stun him. Craig grabbed my .357 S&W out of my shoulder holster and stood ready to apply the coup d’ grace. Ne problemo. Well, not exactly.

I hucked that puppy down with all my might and he bounced back off the gravel almost two feet high. He sure didn’t act stunned.  That’s when his umbrella-sized king cobra hood suddenly expanded outwards. Up to then, I had a death grip on his neck and he couldn’t flare his hood. Craig laid down six rounds in the air space formerly occupied by him- each time a millisecond behind where he’d been. Mr. Cobra ignored him and concentrated on me. I had no idea how fast these suckers were, either. I pai lao’d back into the shack and he came roaring in after me. Craig was screaming for more ammo for the pistol and I was shaking like a leaf on a tree and stumbling backwards blind.

My right heel hit on a 4 foot piece of 2 by 4 dunnage and down I went. Mr. Cobra was now gaining on me as I valiantly tried to skid backwards on my ass away from him. He rose up one last time to strike and Craig grabbed the 2×4 like a a NBA batter and caught him right below the neck. It’s a good thing he was dead because he landed on top of me. I don’t mind telling you I peed my pants a little. I’m a man and can admit that now at 65 but I sure didn’t say anything then. Nonplussed in the least, Craig said ” Wow. Them suckers are fa-a-a-ast. Next time, give me your speed loader before you throw him down, okay? It took me a bit getting the feel for how he swayed.”

I don’t reckon I picked up another snake of any flavor for about twenty years. I like to think of these things as teaching moments on how to stay alive. Of course, Craig had to tell all our friends how I was screaming in fear for my life (I wasn’t) and how he saved my bacon. Considering what he did to my right ear and that Malaysian Pith Viper, I reckon I’m glad I didn’t give him any more ammo or I might have been wearing it.

War is Hell. Snake combat is something entirely different. They bartered us down to 2,000 Kip for it in town at the market. I think that was about 12 1/2 cents. We were robbed. I wanted to hold out for 15.

 

Posted in Humor, Vietnam War history | Tagged , , , , , , , , | 3 Comments

ILP–LAST CALL FOR SILVER QUEEN

Posted on September 30, 2016 by asknod

img_0079The flavours of Fall are subtle but welcome. A slight chill in the air or the new-found fog are just the hallmark of a September morning. I think the sun has rose-tinted goggles on that cast a glow on everything in the late afternoon. The urge to grab the camping gear, load up the rig and grab a .270 Mag out of the cabinet is equally strong. The end of the outdoor growing season is always cemented with the harvesting of the last of the corn, pumpkins and Butternuts. Tomatoes will fester on until it rains and then be lost but the Silver Queen is the true harbinger of the impending winter. I always feel like Squirrel Nutkin about now.

ILP UPDATE

img_0094Of equal interest is the Seattle VA VR&E’s sudden interest in “reaching closure” with me on the greenhouse-something that that has eluded them up to now. If you will recall,  on August 25th, 2016, Judge Margaret Bartley of the CAVC instructed the VR&E to push ‘print’ on the greenhouse RFN and she did not want-nor expect-to ever hear about it again or have it darken her front stoop. It was pointed out that I had not exhausted all my judicial remedies inasmuch as the July 13th, 2016 Meet and Greet at the “Area soon to be known as the greenhouse” had resulted in a stalemate. This provokes an automatic 90-day review (38 CFR § 21.98 (b)) where the VR&E counselor ostensibly goes back to the Ouija board to reconfigure the plan. 90 days runs out on October 13th, 2016. In VAspeak, that’s a year off in a warm, fuzzy unicorn-infested future. In CAVCspeak, it’s 13 more days. Boy howdy does thirteen days go by like a Don Garlitts AA/Gas dragster.

When apprised of the necessity to make haste, Mr. Holloway hasn’t made great inroads. He did call Farmtek last Monday at my suggestion and discuss “Independence in the activities of everyday living as it relates to a greenhouse metric.” He started asking Miz Karen what size she thought a “normal’ greenhouse  should be and other nonsensical questions. The whole gist of his conversation was one of “How much can we de-supersize Mr. Graham’s and still make it workable?” Since the Farmtek rep doesn’t speak M 28ese, she was slightly put off at the line of questioning. We talked this morning and she wanted to know which psychotropic family of drugs he was on. Cannabis, being legal in our Soviet Socialist-styled Evergreen State, comes to mind. Wait a minute. Evergreen State. There’s a lot of Marijuana PR built into that one. Name recognition it has. Yesssssssssssssss.

farmtekAn Independent Living coordinator like Farmtek’s Karen Meister is in the business of providing avocational solutions to medical disabilities and creating a seamless product ready for use. A Vocational Rehabilitation Specialist from VR&E is in the business of arriving with a list of all the things proscribed and a menu of Dollar Store solutions for personal hygiene or simple food preparation. If you say what about an avocational videography work studio, they will be laughing at you, not with you. Get it?

img_0095Those of you who aspire to a big ticket ILP such as a greenhouse or woodworking shop should study these techniques. Mr. Boyd and Mr. Holloway, who now belatedly admit they have no training or expertise in horticulture, have spent the last six years denying me based on their own unsupported horticultural conclusions. Once a BVA judge ruled in my favor, they spent six more months ignoring me (and him) until I went to the CAVC. Only now do they see the need for urgency. Suddenly the phone is ringing and Mr. Boyd is distraught at my unwillingness to sit down and mutually come to a consensus on a “reasonable” size request. In his own words “Mr. Holloway and I are going through a lot of stress and anxiety over this.”

The ILP teaching moments are many here. I’ll try to go over the salient ones for Veterans to put in the tool pouch.

  1. VA never built the ILP with me (the Vet) as a stakeholder. Violation. They are now begging to.  Hole card-Use it to advantage.
  2. VA has yet to provide their own Horticultural Disability Specialist with a competing ILP plan to contradict Farmtek ILP. In VAland, that is a VA Examiner with no opinion whatsoever- and most certainly not a negative one. No ammo. He’s bluffing.
  3. VA refused to look at the current total disability picture and tried to focus narrowly on the original 2011 request. No HE grenades left. Just smokies.
  4. VA is ignoring OGC Precedents 34-97 and 6-2001 and attempting to fashion a plan that won’t exceed X dollars and can be administered locally without VA Central Office oversight. VA Central office has told him he’s on his own and to fix it. Air support just got scrubbed. No performance bonus for 2016.
  5. Mr. Boyd doesn’t seem to be aware I can view his Declaration made under penalty of perjury and see exactly what his game plan is(n’t).  ComSec breakdown. We’re reading his commo in real time.
  6. If VA doesn’t have their own ILP game plan in place and signed by me on October 13th, 2016 at sundown, they are “arbitrarily refusing to act” and subject to an Extraordinary Writ of Mandamus to enforce compliance (again).  Expiration of Truce means hostilities will commence again in earnest.
  7. The 90-day reset of the clock for a new ILP under 38 CFR § 21.98 is not open-ended. Remember, this was already approved on appeal. The grant of ILP services has already been determined as a statutory entitlement and is no longer pending. We’re just arguing about the electric ass scratcher wattage and the location the Martini bar will be facing.

binford-tool-time-more-powerOnce it has been determined you need an ILP and an Individualized Independent Living Plan (IILP) is drawn up, the dog and pony show begins in earnest. You have to have a physical and a Vocational workup to see how strong/weak you are. Determination of weight-lifting capabilities, activities that involve reaching over your head, et cetera are all examined to see if you can be flunked out or restricted in some way. Boy howdy does that come into play when you’re talkin’ greenhouses. Smart money is to go get your own Voc Rehab workup from a private outfit and file for ILP with that in your hand. Nothing like showing up with a Nexus letter in one hand and a picture of that herking new Binford™ 5550 Rotomaster HD built up with oversize brushes on the hi-rise 120-Volt turned and balanced commutator in the other, right? The shit-eaten grin from ear-to-ear ought to clue them in that you know what you’re doing.

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Oddball

I read a lot of letters, emails and bottles in the Hadit.com ocean on ILP and no one even seems to realize the wealth at hand if you just say “No!”. You cite the broken rule(s) and you file the NOD even if they won’t give you a denial. Ask for an Admin Review. File it on paper early. Think of Donald Sutherland’s Oddball in Kelly’s Hero’s with his perennial outburst “What’s with those negative ways all the time?”.

This must be your ever-present command thought in your noggin. You are going to win. That much is inevitable. Just exactly when is the question. I took six years so far but what is time? In that time I’ve grown a lot of veggies and watched my kids and grand kids grow up. I have a feral kitty named Ambush I’ve watched grow from barely weaned at my 2011 NOD to a 2016 Mouser supreme. When you engage the VA, it is a slow, balanced dance like unto that between cobra and mongoose. Realize yourself as the mongoose and relax. Instant gratification is a nonstarter at the VA so erase that philosophy.  Think of it like growing corn. It just takes longer than 90 days. A win at the VA is a win for all of us. Asknod what your country can do for you.

Ambush' natural Halloween attire

Ambush’ natural Halloween attire

Each action VA takes can be used to defeat them down the road. Emails are particularly damning. Do not use IRIS towards this end. Most VR&E employees have telephone numbers that don’t end in 827-1000 so this is actually easier than it looks. Persistence is what will win. Each denial is a block you use to build your win. Remember also, that a liberal reading of 38 CFR §3.103(c)  on “hearings” could be stretched to mean a sit down meeting at your hacienda when you are first interviewed about an ILP. Why not ask them outright what evidence is necessary to win for that metal detector or woodworking shop? What the hey? That ought to roll their socks down. By law, the outcome of any decision is not that the Government shall win but that the Veteran shall be awarded any grant he is entitled to by law. Newsflash- 38 USC §3120 is law. So is VA Office of General Counsel Precedent. The M28 R Manual is an adjudications “guide” that tells them how to say no. That doesn’t make it legal. You have to do that by proving they are breaking the law and regulation. That’s all I’ve done here for the last five years. The BVA judge agreed with me. St. Meg seconded it last month.  Next Tuesday, VA will be gently reminded they have nine days left to Bingo fuel.

A VA VR&E Officer in a certain southern state just north of Florida stated the reason the VR&E had gotten all sour on ILP greenhouses and lawnmowers was because a certain RO in America had a very liberal policy on handing them out willy nilly.  Soon every 100% disabled Vet in Bugtustle County was driving theirs to lawnmower races and even to their local VFW Bars to avoid getting a DUI. Ungrateful bastards. Probably growing dope in them greenhouses, too. Well, faster than you can say Deep Water Horizon, that program dried up and the VRC found himself writing IILPs in Fort Harrison for ” selfie anal wiping aids”- after appropriate retraining at the Baltimore ASPIRE Academy, of course. Getting a win since has been like gambling at a Native American Casino- lottsa lights and action but no chingaling.

img_0125 As I said, the big day is Tuesday next-Bat time will be 1000 hrs  San Francisco  Local.  Cupcake is going to stay home from work and personally greet insult Mr. Boyd at the front door. I’m locking up her .38 just in case. My good friend and neighbor Mark Tolomei will be there to witness it again as well. For some reason, Mr. Boyd and company are looking at me to come up with my own IILP. What I know about hydroponics you could hide under a mosquito’s jock strap. David and Kris know that. They, too,  admit they are totally clueless about gardening yet ask me to propose a solution somewhere between an empty 15′ X 20′ structure and a 24′ X 48′ one full of “lights and hydrophonics”[sic]. Ah, what comes out of the mouths of babes and VRCs. And no. I did not say I was hooked on hydrophonics although the Tourette’s moment was one of the hardest I ever suppressed in memory. I will be at extreme risk of  Post Tourette’s Distress Order for quite some time. I can feel it coming on.

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The ice-bath after blanching

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If any of you keen-eyed prognosticators can tell me- to the ear -how many ears of Silver Queen you see here in this wheelbarrow, I’ll throw another $100 dollars into the Thanksgiving Turkey buy for our food bank in your name. Hell, that ain’t much of a bet. Cupcake will do that anyway. I’ll make it two yards.

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Second and third ears on 2016 Silver Queen

Happy Flavours of Fall to all of you. May your cornucopias all overflow this season. And don’t worry about that election. If you honestly think things will change for the better if your candidate wins, then you still believe in the tooth faery and the Santa Clause. And that’s all I’m gonna say about that.

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Posted in All about Veterans, Food for the soul, Independent Living Program, KP Veterans | Tagged , , , , , , , , , , , , , , , , , , | 5 Comments

VARO DENIAL–THE VERY FIRST STEP IN SOLVING THE PUZZLE

Posted on September 26, 2016 by asknod

logo-that-others-may-winI am constantly amazed at finding there are many, many Veterans unaware of the vast wealth of knowledge only a fingertip away from them on the Internet. I get links every day from many of you that lead me to yet to another site with valuable information. Hadit.com and other “big name” sites with a quiet atmosphere are where Vets can delve into VAspeak and separate the wheat from the chaff. 

More Veterans come to Hadit.com (and occasionally my site)  and repeat the same story over and over. “Gee. I sure wish I’d looked into this more at the beginning. I just got my denial. I don’t get it. How can they deny me? It’s right there in my records.” The common theme is the same. Denial. 85% of you will get that Dear John letter. With the number of filings going up and the subsequent overflow of appeals at the BVA creating a 3-year bow wave into the future, one of the VA’s wishlist of repair orders is to fast track you through the BVA by limiting the admission of new and material evidence and allow a de novo adjudication -actually nothing more than a rehash of your RO denial. Come on. How many of you get the denial letter, file your NOD and then a year to sixteen months later get back a SOC saying exactly the same thing with about 40 cites to 38 CFR, that while they looked at it all, nothing there was enough to change their minds?

That first denial will always be the springboard to success because it essentially tells you why you lost. A denial is that defining poker moment when  the dealer flips over his hole card to show 20 and you held at 17. Many of you use a nationally recognized VSO and their service representatives to handle your claims. You soon begin to find out this is far more complicated that it appeared in the beginning. No one is there to tell you about Independent Medical Opinions (IMOs) and the dire need for one. No one is there to consult legally which sometimes backfires when they file for tinnitus in each ear for 20% bilaterally. I actually read one recently where Johnny Vet went all the way to the BVA with his DAV-filed claim for an inevitable denial. .

The interesting thing in all this is the Federal Courts above treat Veterans represented  by VSOs as pro se Vets-i.e. Vets with no representation whatsoever. This is both a blessing and a curse. On appeal to the CAVC, most of the judges look at precedence and instantly put on the white kid gloves. This occurs frequently in the Extraordinary Writs arena where many Veterans get a front-row seat and a rude introduction to justice.

A denial at the VARO level allows you much latitude in trying to revise it and get the correct rating. Some claims are never going to be made at that level. I speak of Jetgun claims and Presumptives for Agent Orange extended to Thai Vets. These will never be answered at the local level. The smart guys just file the NOD and ask for a traditional review. This allows time for more IMOs and proper development of the claim(s). Vets usually give me a glazed expression and say why bother. Try to pretend its a reaaaaally long Monopoly game but you own Boardwalk and Park Place. With Hotels. If you build it, they will pay… eventually.

With the 38 CFR §3.103(c) regulation requiring the DRO to “spill the beans” and tell you what you need to win, A DRO review and hearing should be all that is needed to resolve the problem. VA sometimes forgets US Supreme Court Jurisprudence when they deny. It is not expected that the Government shall always win, but that a Veteran shall be accorded due process.

Veterans should not be overwhelmed by a denial. It’s virtually inevitable the way the system is set up. You still read about some Veteran with the Navy Cross and a few OLCs on his Purple Nurple getting denied for PTSD at the Oakland RO. Those are becoming rarer as the VBMS system matures and the M 21  computer is better trained to spot the real malingering Veterans.

Disassemble your denial and categorize each ailment against denial logic. Look for key words such as ‘history’ and how it is used in a sentence. “History” as defined by a Veteran is hearsay and unsupported. “History” as a medical term showing chronicity is what you need. Too many wishfully impart far more meaning into “possible” or “could have” rather than the magic “at least as likely as not”. Why not go back to the doctor and explain how VA has it’s head up it’s collective ass and is using it’s belly for a porthole? Ask him to rewrite it in DickandJanespeak for the sub-100 IQ RVSR at the Regional Office.

After more denials than I can count since 1989 (actually seventeen), I see an eventual win for those with some meat on the claims bone. It may take a number of assaults on the mountain to scale it but every Vet I’ve helped win has always had a legitimate, underlying claim. Time becomes our enemy when we realize we suddenly have a finite amount of it to correct a wrong. Keep that in mind when you stand on the banks of the Notice of Disagreement River and debate diving in.

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Posted in KP Veterans, Nexus Information, SOCs and SSOCs, Tips and Tricks, VA Agents, vARO Decisions, VARO Misfeasance, VBMS Tricks | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

HUMBLE AIR FORCE HUMOR

Posted on September 22, 2016 by asknod

unnamed-6When something needs to be done in war, it usually falls to the Air Force to either get the ball rolling or the assets in place to accomplish the mission- or simply do it ourselves. You realize they did teach us to shoot in Basic so it was a well-rounded education. Sometimes we share and call up our fellow service members  in the Army and Marines and ask them if they want to play too. We don’t like to hog all the medals and there’s usually plenty of excitement for everyone. Buuuuuuut….. we were the creme of the crop back in our day. 

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Posted in Humor, KP Veterans | Tagged , , , , , , , , , | 2 Comments

HADIT.COM RADIO SHOW 9/22/16–THE ILP WRAP?

Posted on September 19, 2016 by asknod

haditlogo2007Jerrel and the Bugtustle crew invited me over to do a show at Hadit.com on Thursday. Airtime commences a 1600 Hrs Local Pacific and 1900 Hrs Eastern. Standard practice will be to check my political correctness at the door and give you the insider report on the Agency you dream on. Lots of news to report on ILP. We’re ‘pushing the envelope.’

The best is that today, on day 1,967 of my filing, one year and 14 days after the BVA grant, the VA VR&E guy who drew the short straw called to get the bid number from Farmtek. For the greenhouse. We chatted for one hour and 18 minutes. He knows a heap more about ILP now than he did this morning.

Be there or be square. the call in number is 

347-237-4819 (push #1 to talk)

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And as for you who think all us Air Force types had it easy, remember we’re the new kids on the block. We’re always testing our limits-and the Navy’s. That’s what makes us tick.

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Posted in ASKNOD BOOK, Independent Living Program, KP Veterans | Tagged , , , , , , , , , , , | Leave a comment

VAMCs… WHAT IF?

Posted on September 18, 2016 by asknod

14322247_1276374675759141_4927986291961620399_nI was sent this – oh hell, these. Without taking sides, I do think they involve a profound sense of humor rarely seen anymore. This isn’t political hit photojournalism. This is high art Twenty first Century style. 

 

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I received this from another member who asked to remain nameless. I’m betting a Veteran owns that business. When we began asknod, I voted for WWVD or What Would a Veteran Do? I was outvoted for ask Notice Of Disagreement? That’s not even proper English. Nevermiind. I get it.   Asknod what your country can do for you. Right?

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Posted in Humor, KP Veterans | Tagged , , , , , , , , , , , | 2 Comments

BVA–I NEVER PROMISED YOU A ROSE GARDEN

Posted on September 17, 2016 by asknod
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Veterans Law Judge Vito Clementi

Having sat, chatted and engaged in a colloquy with Veterans Law Judge Vito Clementi for an hour one day in 2015, I know how hard it must have been to bite his tongue and write the denial below. Of all the Judges I have ever met or had dealings with, he was the most forthright and pro Veteran as one could hope for. Quite possibly because he is one himself.

This case involves an enigma and no one, not even the Philly Puzzle Palace tea leaf readers, seems aware of the miracles of modern day science. To begin with, the VA examiners were blowing these bubbles:

Upon VA examination in March 2012, the VA examiner noted that the Veteran has a current diagnosis of hepatitis C. The VA examiner also indicated that the Veteran was diagnosed with infectious hepatitis during service, but it was unclear which specific type of hepatitis was diagnosed (hepatitis A, hepatitis B, or hepatitis C). Following examination, the VA examiner indicated that she was unable to provide a medical opinion without resorting to speculation because specific tests were not performed during service to differentiate between the different types of hepatitis.

In 1970, infectious hepatitis was Hepatitis A from contaminated water. It lasted about 5-7 days and the jaundice disappeared within 20 days. If he was diagnosed with Infectious Hepatitis, it would be HAV and that would be the end of the query.

Here’s the problem. Nowadays we can identify the presence of a healed Hepatitis A infection via the presence of antibodies which give you immunity to it. Next, we can identify either antibodies to Hepatitis B or an active (chronic) infection of Hepatitis B. Lastly, we can identify the presence of Hepatitis C viral infection and even count the number of viral replicas via polymerase chain reaction (PCR). Or, we can see the virus is not present via treatment with one of the new Direct Acting Antivirals (DAAs).

So, it is childsplay, and has been for about ten years, to differentiate between whether one has, or ever had, Hepatitis A, B or C, a combination of two or just one and whether one currently has any of them actively or has achieved a seroviral response (SVR).

In fact, when I was slated to begin Interferon in April 2007, the first thing was to be tested to find out if I needed a vaccine for Hep A or B. They didn’t want me coming down with either one during the treatment for C as it might kill me. It was at that time I discovered I had never had HAV.

Next, a simple liver core biopsy will reveal the degree of liver fibrosis and the current stage of the disease. Divided into 5 stages from 0 to 4, with zero meaning a perfect liver, each stage is ten years ± 2 years. Ergo, stage two means twenty + years since the inception of the disease. Most of us who got it back in the late sixties or early seventies are either healed or dead from it. Some, like me, quit drinking and smoking and hunkered down to wait for a cure. It gives a whole new meaning to keeping your powder dry. I was cured at forty three years and not a moment too soon.

A core biopsy yields a Metavir Score and this is the perfect yardstick to figure out how long you’ve had it. If you served from 66-69 and got it in Vietnam, by 2009 you were feeling a mite winded and had a touch of nausea. Your Metavir rating would probably be pushing the beginning of F4 like me. Funny (now) but I can point to the exact day and hour I got mine.

Colvin v. Derwinski

Judge Clementi is not allowed to be a doctor. The Pennsylvania National Association of County Veterans Service Officers were driving this bus for Johnny Vet. When you accept a POA from a Veteran, that is your duty-to help him win. Well, not exactly if you’re a VSO but that’s a story for another day.  Nowhere is an IMO to be seen or inferred here. The dog didn’t eat the nexus homework so I give up. This Vet was claiming it was associated with his Agent Orange exposure towards the end of his BVA hearing. He’s not a doctor either. Ever since Mario Caluza tried to smoke the Manila RO in ’88 on some bogus nexus letters, the Court, the BVA, the VSOs-Hell- even Micky Mantle’s mom knows you need a nexus letter from a doctor to win a VA claim. Well, apparently almost everybody except the ones expected to know.

From talking about this with other Judges, I understand the frustration of having to bite your lip and pseudo-sarcastically point out in the decision ( a year later) that there is nothing there to help his case and certainly nothing from a doctor in his favor. Denying the claims after a Vet has been led into the barn for slaughter with no legal advice or help would be a bitter pill to swallow. Welcome to ex parte justice.  Read about 200,000 BVA decisions and you will see VSOs still haven’t gotten the email on the need for a nexus letter. I think it’s criminal.

Imagine a justice system where you might know the repair order to help the defendant out but you’re legally precluded from leaning over and whispering the way to do it? 38 CFR 3.103(c) (2) states, in part:

It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.

Being a liberal Southerner, I’d stretch that to say Judge Clementi might have written something on the back of an envelope and slipped it under the table to the County VSO Rep. saying ” Hellooooooooooooooooooooooo? ASK ME FOR A REMAND! Get new C&P with core biopsy and PCR.  Run, Forrest! Ruuuuuun!” But then we know he can’t do that beyond the BVA hearing.

forrest_gump_running_alabama_jenny-2556

 

 

 

 

 

Posted in BvA HCV decisions, Jetgun BvA Decisions, KP Veterans, Nexus Information | Tagged , , , , , , , , , , , , , , , , | 5 Comments

BVA-BLOODY JETGUNS– THE YIN/YANG OF EVIDENCE/CREDIBILITY

Posted on September 17, 2016 by asknod

635646931319099161-veterans-administration-logoIn the madcap world of VA claims, character assault is a common technique employed by our adversaries in the 56 Fort Fumbles across the fruited plains and oceans. In VAland, when you say something different in 2016 than what you said on the same subject in 1968, it creates a bow wave of doubt that you can’t remember anything clearly. Once you allow VA to let this camel’s nose in under the tent, the game is up. Anything you say is presumed incredible. They don’t call you a liar. They don’t have to.

The following BVA decision I use to illustrate this is a BVA jetgun win for Johnny Vet out of our Heavenly RO located in St. Petersburg . Authored by Vet’s Law Judge “SS” Toth, most Vets  would mentally be expecting Waffen SS treatment and a strict taskmaster. Boy howdy would you guys be off the paper. Judge Toth is mindful of what real justice is, not what VAROs have corrupted it into.

downloadA warm thank you to our sister American Legion VSO reps out in Florida for whatever moral support they provided. It’s not impossible they didn’t have a sharp rep. there who knew what he was doing. But look at the fingerprints. Johnny Vet didn’t win with the Caluza Triangle, the famous Shedden requirements, the Hickson “elements”. No. He won because the VA could not find a chink in his credibility to drive in a piton of doubt.

Witness how clearly Judge Toth synthesizes this into the decision:

In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence.

See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

Click to access 13-7085.Opinion.5-7-2014.1.PDF

I’m going to add color so you can keep track of formers and latters.

Competency of evidence differs from weight and credibility.

The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.

See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

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The Board notes that the April 2010 and January 2016 VA examiners did not identify non-service related risk factors for the development of hepatitis C. Additionally, the Veteran has provided competent and credible testimony of receiving “jet air gun” immunizations in service that are recognized by VA as a “biologically plausible” means of transmitting hepatitis C. The 2010 examiner also noted that with regard to the most commonly identified risk factors, only one applied to the Veteran, assuming that the injector may have been bloody. Accordingly, while the examiner indicated that an opinion could not be provided without resorting to speculation, the examiner’s explanation for the opinion appears to indicate that it is at least as likely as not that hepatitis C is related to the one commonly known risk factor the Veteran experienced. The Board finds no reason to doubt the Veteran’s statements as to having been exposed to blood during the injection. Having found the Veteran’s testimony credible, including as to the “jet air gun” immunizations in service, and after reviewing the medical opinions, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s hepatitis C was related to his active service.

Competency of evidence is what can be considered in a claim. Just like Judge Judy, hearsay is not permitted although it sometimes seems to seep in. Phil Cushman got bushwhacked on that one when some enterprising VA jokester/examiner started penciling in addendums to his C&P afterwards. VA is often caught dragging in red herrings to a Hepatitis C claim. Drugs are first and foremost the major downfall. Johnny Vet smoked pot and had an Axis 3 ETOH issue wider than the Mississippi River. Johnny Vet got Hep C. Denied. Next. We had Robert from LA. His VistA medrecs. actually show the penciled in “Yeah, and he admitted to snorting coke a lot.” I’m sorry. That’s why we have computers so you can’t go in the back door (Like VACOLS) and rearrange the furniture to better stage the crime scene. Robert won on a Cushman violation and got his 100%. Robert most assuredly did not snort coke, either. He is deeply religious and always has been.  And a warm thank you for not giving up, Phil. You left a magnificent due process argument  for eternity for all of us.

Assuming the competent evidence is entered and nothing can be found to use as a smoking gun for the denial, phase two begins at the Regional Office- It would be pure speculation as to what it could be. Fortunately for us, Mr. Benito C. Layno, much like Phil Cushman, blazed a trail ahead of us for all who followed in his footsteps.  We are now allowed to testify with credibility as to what comes to us via our five senses. Thus, Johnny Vet from sunny southern Florida is competent (read credible) to opine as to what he (and a gazillion or two others of us) saw on the end of a jetgun being used to administer shots to him. Anything that comes to you via your five senses are viable statements admissible in this game. The only test is to pass the credibility hurdle. 

In instances like this, VA breaks out the Pinkerton Detective Agency and hires extra bloodhounds. Johnny Vet’s journey post-military is examined. A $39.95 Criminal background check would turn up that two years at Texas’ Greybar Hotel for the misunderstanding at the gas station deli late one night in 76. Bingo. HCV due to incarceration. Denied.

But what is the RO to do? Our Johnny Vet from St. Pete’s is squeaky clean and has given a Layno-approved answer. VA has merely stuttered saying it would be speculation to opine. Bingo.

Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

download-13Credibility is a Veteran’s best friend. It’s right up there with the Presumption of Soundness. It’s the essence of 38 USC 1154 in many cases that gets you a win. Johnny would never have gotten a win out of any RO based solely on jetguns. They don’t have the authority to grant the claim. Not one jetgun claim to my knowledge has ever been won at the AOJ- including WGM’s in Texas. Face it, even if you have three IMOs categorically stating it was jetguns and they won’t grant, you can figure having another one from Jesus wouldn’t even pass muster.

One thing Vets will note is the brevity of this decision. The whole thing fits on one VA SF8.5×11(w). Amazing.

One thing I am beginning to see at the Board of Veterans Appeals that is very refreshing is the gradual disappearance of some of the Hang ‘Em High judges. In their place, I’m beginning to see a new breed of lawgiver with a far more fair and balanced approach than what I’ve been accustomed to. There still is the occasional wild hare like Mark Hindin who acts as though he’s never met an above-board Vet- and convinced he never will. I could name a few more but the good news far outweighs the bad. And besides, I might have to present a claim to one of them in the future. That’s all I’m gonna say about that.

Nodster

 

Posted in BvA HCV decisions, HCV Risks (documented), Jetgun BvA Decisions, KP Veterans, Nexus Information, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments