BVA–METAVIR SCORE– STAGE 1≠ 1972

Posted on December 7, 2015 by asknod

 FROM THE FT. SUMTER MEMORIAL REGIONAL TOWER OF BABEL

Here’s an interesting decision that illustrates the aging of Hepatitis C. Just like a good single malt from Scotland is carefully aged, Hepatitis C bakes your liver at a slow rolling boil just below the level of perception and annoyance. Come to think of it, both of them do! Fatigue and vague digestive issues are your only overt indicator until the trapdoor opens and the bottom fall out of your life.

I’ve long taught and advised doctors and attorneys about this simple way of dating the disease. Gastroenterologists, and their hepatic digestive specialists called hepatologists, long ago devised a simple carbon dating system for liver boxes. Since there are several distinctly different methods of expressing it in numbers, I like to use the Metavir Scale for several reasons. The foremost is it is also used by the VA. There is no need to cross-rate it from the Child-Pughs Scale and it is far simpler to express in numbers. It is gaining much wider acceptance as the universal measurement much like meters over miles.

As an example of one of the reasons I won, my doctor cited to my rather advanced disease based on a core biopsy performed in January of 2007. Expressed in Metavirese, I was Stage 3 (F3) and Grade 3 (A3) and headed to Hell lickitysplit without some immediate medical intervention pronto.

Each stage of fibrosis is approximately ten years. It can stretch to 13-14 if you don’t drink or smoke (tobacco). The jury is still out on how hootch affects it. If you drink a lot of coffee, that will cleanse the liver. If you were/are a naturopathic imbiber of Milk thistle, you could also retard the inevitable. Eventually, nothing will hold back the tide and your liver will succumb to cirrhosis and a transplant will be in order. Or, you get hepatocellular carcinoma (HCC) and they tell you to get lost and die.

downloadAfter you get a liver biopsy, you can begin to mark time geologically based on the results. You can march back in time 10-12 years for each of those stages of fibrosis to get a chronological dead reckoning of the beginning of the problem. You may or may not recognize any significant medical  event that began this either. That is immaterial. The biopsy cannot lie as to the age of the infection. Which brings us to Johnny Rebel here from the Columbia, South Carolina Puzzle Palace. Here’s Johnny’s tale of woe and an interesting observation by a VA examiner.

From the get go, the Johnster has an intriguing story of his Welcome To Germany greeting by his barracks mates. I disremember a lot but I sure don’t think I ever was greeted like him when I got to Udorn. I remember the Singha ETOH greeting with a Jack Daniels back. And considering I never left home without a Model 19 and my American Express card, throwing a blanket over me might have been a very short-lived blanket party.

[t]he Veteran provided a statement dated in April 2012 regarding an assault in service which he contends caused his hepatitis. Specifically, the Veteran reports he was sent to a duty station in Mainz, Germany. When he arrived, he went to take a short nap following the long flight. At that time, soldiers in his room attacked him, pulled the covers over him and held his arms and legs down. He was surrounded with smoke and a needle was stuck in his arm with chemicals.

The VA examiner ( the ARNP poobah) at Fort Columbia allowed as:

“The Veteran had hepatitis in the military which appears to have resolved by 1973. He had no further issues until a diagnosis in 2003. He had stage I fibrosis in 2007. If he had hepatitis consistently since 1972, his liver damage would be much more pronounced than Stage I only”.

This is interesting on two fronts. Obviously, VA teaches how to do these claims from a nationwide perspective and the same medical/M 21 handbook of denial. So why is it that one VA examiner (here) can opine that a Vet was diagnosed in 2003 and include probative medical knowledge supported by proven core biopsy but… Within the last year or three, I have read numerous ” VA examiners” opine just as vociferously that a Vet was “first diagnosed” with it in 2003 and that is the “date of infection”. Nary a mention of Metavir or Child-Pugh grading is to found in their nexus to identify the approximate date of inception.  Either they have a pre-denial mentality with a fill-in-the-blanks program to support it or they are far more knowledegable than they are letting on.

First, without tarring and feathering Johnboy, I will mention two words -Army and Germany. For most who went to Germany for the duration of the Vietnam Boundary Dispute, it was a rather cush job. Lots of Hashish, heroin and German ladies of the evening. Lots of drug use/abuse and lots of Hepatitis B-then known as viral hepatitis.

The viral version, as opposed to the food borne infectious (hepatitis A) variety, was a blood borne disease. If you got it in Germany, you were probably shooting up. Again, probably. If you worked in a medical setting, I would grant that a needle stick was an equal opportunity infection vector. But absent any combat blood exposure like we encountered in Southeast Asia or the jetguns in Basic and AIT, risk factors in Germany were few and far between. Chances of getting it (hepatitis B) from sex were infinitesimal. Even more identifiable would be the local European HCV genotype in 1972. It was almost exclusively 1b in that era. With modern air travel, the genotypes are far more homogenized on all continents now. Nevertheless, the common denominator would be a Stage 3 Metavir. Johnny’s is far newer. Stage 1 indicates about 1995 ish at the earliest.

The Johnmeister from Jermany has also made the mistake of putting on the House, M.D. garb and strung a stethoscope around his neck. He profoundly believes the hepatitis in 1972 is the same identical hepatitis filed for here. The lack of nexus is certainly his downfall but he could have logically made this argument and won but for the Metavir revelation.

Building a claim for VA compensation requires lots more than what Johnbo brought to the table. You need Jacks or better to open and a risk factor that doesn’t include fanciful tales of being assaulted with a hypodermic syringe by unknown assailants. I don’t know that he could have made better headway with a VSO or an attorney but he sure didn’t think it through based on medical theory.

Posted in BvA HCV decisions, HCV Health, HCV Risks (documented), Jetgun BvA Decisions, Jetgun Claims evidence, Medical News, Nexus Information | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

BAD NEWS FOR CUPCAKE

Posted on December 5, 2015 by asknod

HCV imageAnd the envelope please? I just received my results of the one-year HCV viral load and ultrasound for HCC. The bad news is Cupcake is stuck with me for eternity unless Agent Orange rears its ugly head. Attached below are the results of the ultrasound and the PCR RNA  viral load tests.  Hooooooooooooooooo, doggies. I might have to buy another horse. 

Again, I have Cupcake to thank. When it became painfully evident that Interferon was my Hemlock in 2007, my twentieth century fox told me to hunker down and preserve what I had left of my health. I was Stage 3 + and grade 3 on the Metavir scale and circling the drain. We went hard core and  inspected everything that went into my body. In spite of it, I still augered in April 23, 2009. From 2010 through my slow recovery, Deb controlled the vertical and horizontal on the diet and the drugs. It was ugly.  If it wasn’t grown on site, I pretty much didn’t eat it. No more Burger Kings and Dilaudid for lunch. The idea was to huddle in place until a new drug came out… like Sovaldi.

Today marks the 363rd day since I completed my 168-day treatment for Hepatitis C. December 7th, 2015 marks the one-year anniversary of the last pill. I had reservations about clearing the virus when many of my contemporaries  who did Interferon relapsed 3-5 years later. I received the ultrasound results confirming no Hepatocellular carcinoma (HCC) last week. The polymerase chain reaction tests are, to me, the confirmation beyond the shadow of a doubt that the dragon is dead.

Negative viral load or HCC

Cupcake fainted. I get that. 28 more years of me is going to be a hard pill to swallow. The good news is that Tourette’s syndrome can be controlled with proper medication-so she has that going for her.

images (1)

 

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ASKNOD NEW BOOK

Posted on December 5, 2015 by asknod

Asknod's VA Book LogoI’ve received a few calls asking what I’m up to because many of you are not seeing the usual number of posts here. Relax. I’m writing my new book and completing what was unwritten after my last BVA hearing in April 2011. As many know, I lost and had to go to the CAVC on appeal. There, the VA eventually discovered they were wrong. I traveled to DC again this January  for the Mother of all Extraordinary Writs of Mandamus and prevailed once again. 

The new book will be sold as a batch of chapters on the generalities (8) and then focus on individual disabilities with all the tips and tricks I have assembled to win them. Obviously, not all of you need to know about hammertoes or hemorrhoids. Some are going to want to know about the ins and outs of Special Monthly Compensation and filing Extraordinary Writs.

The book will be online only in a .pdf format. It will be sold through Amazon. You can pick and choose among the subjects to find the ones that are pertinent to your circumstances. I will try to keep them as cheap as possible. All proceeds will go to retire the debt on my first printed book which it seems everyone bought in the electronic format for the most part. If it turns into a best seller, we’ll donate anything we make to Fisher House. As most may remember, Cupcake was allowed to stay at the Seattle House for almost two months when it was touch and go in May-June 2009. For that, I owe them an eternal debt. 96% of their donations are plowed right back into the charity because they don’t need the money for exorbitant salaries and funny hats. They don’t have “alumni” other than the wives of Veterans. They don’t send you fancy hats for contributing. In fact, they don’t drown you in requests for more money once you donate.

I did scrounge through all my old photographs to find some period stuff from the war. All print and no color is boring. It surprises me what I managed to keep from over there all these years.

Here’s a sample chapter to get a feel for what’s on the horizon.

New Book Chapter 3- Evidence

This is one of the “basic” chapters rather than an in-depth chapter on a specific subject.

Posted in ASKNOD BOOK, Electronic Filing of Evidence, research, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , | 4 Comments

VARO CHICAGO–JUST ANOTHER MANIC MONDAY

Posted on December 1, 2015 by asknod
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Area of Operations (AO)

Did you ever wake up at 2 AM in the morning and become angry with VA? Or more precisely, what they were doing to another fellow Veteran? Several weeks ago, Cupcake and I attended a fundraiser for The Kitsap County Chamber of Commerce. We live here on the Kitsap Peninsula and her business is located there so it was a natural fit. Before attending, my twentieth century fox also mentioned she had a gal our age with a VA problem who would be attending. She asked me to look into it. To me, this is what I live and breathe for. Sugar hates the VA more than I do after what they did to me at the Seattle VAMC for a year. 

After getting the 2 AM briefing on the Veteran, I was a little taken aback that he would need my help. After all, he was in the capable hands of the local Disabled American Veterans VSO and their service officer should have been able to do this one in his sleep. Lenny was a World War II combat vet who ran around and collected the popsicles off the battlefield before they spoiled and went over. He did this towards the end of the war on Okinawa which explains why he’s still alive. Lenny is a spry 93 and still hitting on all eight cylinders mentally but he was very young and a FNG when he came ashore at Naha. He wasn’t acquainted with the rigors of rigor mortis. He wasn’t mentally prepared for the horrors of war at 17 and he has suffered for decades from all this. I guess you know VA’s take on it was skeptical- which is odd when you consider the homicide rate there with firearms. The city is veritable war zone from what I read. VA raters must eat, sleep and breathe combat daily.

He has approached VA numerous times and the best he could come away with was a 50% pension for PTSD because VA doesn’t believe it could be caused by combat-or more precisely- his combat experiences. Psychiatrists have now come to universally believe that mental anguish accrues through life and becomes more noticeable when all life’s jobs are finally accomplished and retirement is on the horizon. At that point, the mind is relieved of many of the chores that normally keep it occupied. The psyche is now free to roam around and what does it find? All those ugly, unresolved, suppressed memories of dead folks- friends and foes alike. That’s a fairly fertile ground for PTSD.

PTSD doesn’t have to encompass those you knew or served with. Pretzel brain is a phenomenon that accrues like interest in a savings account- bit by bit. Eventually, you see it piled up and notice it isn’t such a small thing. Now imagine amortizing that ever since 1945. That’s 70 years of interest on a bad dream you had to live day in and day out for a year. Make no mistake about it. Okinawa was Japan’s last stand and it was messy even by Life magazine’s standards. Many of Okinawa’s civilian populace threw themselves off cliffs fearing American retribution for four years of shoddy treatment of our prisoners.

Lenny’s daughter (Cupcake’s friend) was uncertain how to deal with this. She felt he was in good hands with a Veterans Service Organization but they could never seem to cement the deal. Nothing ever coalesced after all the visits to the shrink and the ink was on the record about his documented PTSD. She finally decided to go back to Chi-town and get to the bottom of it all.

When she asked me to review the paperwork she had, it was painfully evident what was amiss. Lenny had called up the VA and said he no longer drove. He said his wife was not in good health, and without a babysitter to look after his most precious possession, he was sadly unable to attend the scheduled C&P. Note that he did not refuse outright. He merely explained why this was going to be a challenge to accomplish under the existing circumstances. His take was to await a better time or a situation that covered his concerns for his wife’s well-being.

lenny

No one from the VA or the DAV stepped into the breach. No one scheduled a DAV service van to take him from Rockport to downtown for the C&P. Somehow, a 93-year old on his last legs with poor vision was expected to materialize at the QTC at the appointed hour or risk being denied. No excuses, Lenny. Be there or be square. A warm thank you to DAV’s mental midgets for their foresight and far-thinking.

Lenny didn’t make it. He was subsequently denied by “QD” at VARO 328- the Chicago “Veterans Service Center”. I suggested to the daughter that if she were going back to Illinois to help sort this out, she could employ one of my favorite ploys. Most who know me are aware that I am inordinately confrontational with VA. To date, it has served me well.  Some see it as a deficit. I brandish it freely and smile while doing so. They won’t let us take guns or small tactical nuclear devices into Regional Offices anymore. Far too many of you are inherently timid and shun the idea of getting in someone’s face. VA is no more intimidating than a rude store clerk at Macy’s. The sooner you accept that and shape your attack offensively around it, the sooner you will receive that which is your due. Look no further than my carefully planned bushwhack set up over thirteen months prior to the filing of my Extraordinary Writ of Mandamus in January of this year. In forty five days, I accomplished more than in the prior twenty one years of fighting VA. In fact, by September 4th, I had won everything and am now writing the sequel to my first book on how to do it on the new electronic battlefield.

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Who’s the fool tool.

 

Lenny’s daughter took my advice because she had no preconceived notions of how to deal with this rude behaviour. I pointed out the most obvious factors first. 493 Veterans of World War II are dying each day. They are becoming rarer than hen’s teeth. Were she to walk into the Chicago offices of Fort Fumble pushing Lenny in a wheel chair before her, she was going to be tackled by many helpful GS-12s in short order. They would be tripping all over themselves in an effort to stay off the six o’clock evening news. At 93, you get the Platinum service and don’t have to stand in line anymore. Age, rather than rank, now has its privilege. Being a living, breathing combat Vet of WWII is about as platinum as one can get these days at VA.

Tactical timing is also everything. I urged her to employ the “First-Thing-Monday-Morning” air strike.  They haven’t even settled in yet. Watching coffee come out the nose in a fine spray is an excellent measure of how important Lenny suddenly is.

As with any good recon, you want fresh intelligence reports. It serves no useful purpose to arrive with a bitch and have no idea who’s to blame. Enter the asknod “Who’s the fool, fool?” tool. Over the years I have discovered all manner of shovels to excavate the culprit at my local puzzle palace. No one on the 800-How can we help you? number is going to cough up the bozo that denied you. One thing most of us discover to our dismay is VA is an “incognito” outfit. They leave the minimal footprint behind of their shenanigans. I get that. If you’re error prone to the degree they are (65%), you do not want a trail leading to your desk. Towards that end, I finally found the above device to unearth them. Anonymity is now a fig leaf they can nay hide behind.

I gladly shared this little tidbit with his daughter. In less than three minutes I translated “QD”, the author of Lenny’s denial (again) into a real flesh and blood human being.

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Ladies and gentlemen Vets, meet Quandale D. Davis. Unless he had a chipmunk in his pocket, the “we” in “We made a decision” is a fig newton of his imagination.

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A man’s name is his magic talisman in life. Everyone will come to know him and respect him if he’s unique and honorable. Quandale was an anomaly. I’ve never come across anyone with the moniker. Being a GS-11, he was pretty small potatoes around there and not really in charge. Lenny’s gripe rested far higher but Quandale was a viable starting point.

Lenny’s daughter marched in smartly and asked to speak to with him which caused ripples of consternation at the reception desk. How was it she knew Quandale? In short order, she and Lenny were seated in the Director’s office and engaged in a spirited conversation on why it was Lenny was getting the shaft. A retired Marine who works as a Service Officer there was immediately drafted and detailed to take personal care of this historical artifact and to make sure he and his daughter had all the necessary assets with which to accomplish a Compensation and Pension exam-including transportation and babysitting services if necessary-RFN.

I expect to hear that Lenny will be at 100% permanent and total in short order. Sadly, his wife may never get DIC but will be eligible for A&A and many other benefits in the near term that have been withheld by the Quandale’s of their VA life. If his death can be linked to PTSD, she will. If she outlives him, she will still be entitled to a war widow’s pension and continuing Aid and Attendance.

And that, folks, is how VA justice is extracted from these gomers. Never be shy with VA. Never be worried that somehow you may “piss them off”. Don’t get mad. Get even.  The Department of Veterans Affairs was created to serve you-not obstruct you. Once you absorb that metric, a whole new consciousness will be born in you and the righteous indignation at being ignored and delayed in you mission will begin to rise in your breast. It’s an exhilarating experience, I guarantee you. VA lawyers experience this “high” frequently. I know I sure do. Perhaps that is what drives the best of them to do it. Helping others who are helpless or unknowledegable is a noble endeavour and richly rewarding.

One small step for Vetkind…

 

 

Win or Die VA

 

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BVA HCV CLAIMS FROM 1992-2015

Posted on November 30, 2015 by asknod

635646931319099161-veterans-administration-logoInteresting statistics on HCV claims. Since record keeping began at the BVA in 1992, we can see the rise and fall of HCV claims which indicate a win, loss,  death, cure or giving up. It can mean no DIC. It can mean some never were treated who subsequently died. I know a few too many.

1992— 149 results — searched 29,796 total appeals

1993—133 results — searched 21,561 ”             ”

1994—179 results — searched 23,406  ‘                   ”

1995—192 results — searched 26,307   ”                 ”

1996—325 results — searched 37,389   ”                 ”

1997—442 results — searched 43,170   ”                    ”

1998— 534 results — searched 38,177  ”                   ”

1999—573 results — searched 36,270  ”                   ”

2000—640 results — searched 34,102  ”                  ”

2001—543 results — searched 27,807  ”                ”

2002—472 results — searched 18,850  ”              ”

2003—817 results — searched 36, 924  ”             ”

2004—975 results — searched 34,495  ”             ”

2005—1,150 results — searched 35,250  ”             ”

2006—1,147 results — searched 40,304  ”            ”

2007—1,291 results — searched 41,025  ”           ”

2008—1,380 results — searched 44,970  ”         ”

2009—1,464 results — searched 49,136  ”           ” High Water mark

2010—1,384 results — searched 45,775 ”            ”

2011— 99 results —searched 47,490  ”                 ” ??????

2012—1,154 results — searched 40,814 ”            ”

2013— 769 results — searched 33,453  ”           ”

2014—1,186 results — searched 52,538  ”          ” High mark of claims

2015—968 results — searched 42,436 to 12/1/2015

A decision announcement can be a denial, a grant, a remand for more information/development or a DIC claim for a determination of death decision. I should add that some are a grant of permission to reopen an old claim based on new and material evidence that might help win.

Note two things if you will. After a gradual decline from 2009 to the inception and full application of the new VBMS and the Fully Developed Claim (FDC) mode in 2014, the number of  total claims on appeal jumped from 33,453 (2013) to 52,538 in one year. Most statisticians would have a field day with that. Most, but not VA’s bean counters.

I find 2011 disturbing. VA seems to have misplaced a number of claims. Depending on how you search, you can get zero to 99 claims out of a total of 47,490 received and decided at the BVA. If one statistic is patently in error, all are. If it seems irregular, it is irregular and the presumption of regularity does not attach.

turkey camo

Posted in BvA HCV decisions, Food for thought, HCV Health, HCV Risks (documented), Medical News, Nexus Information, VA Health Care, vA news, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , , | 1 Comment

JETGUNS DON’T KILL PEOPLE-BUT JUST IN CASE…

Posted on November 28, 2015 by asknod

635646931319099161-veterans-administration-logoBy now we’ve read about a gazillion articles about how guns don’t kill people. The problem is that sometimes people use guns to kill people. They also show a marked proclivity to use bathtubs, 2X4s, knives, cars and a plethora of other devices. Nevertheless, death is the inevitable result of the mayhem.

The other inevitable conclusion is the ages-old argument that man’s propensity to harm his fellow man is in direct proportion to his urge to improve our lot. Let’s take that argument and apply it to jetguns. For the sake of argument, I’m sure they (the military) meant well. In the famous FAST Letter of 2004, VA carefully explained that jetguns had never been proven to be the source of cross contamination via blood for many diseases such as Hepatitis C. We assume they also threw in HIV and that family of diseases as well for arguments’ purposes. What was never a bone of contention (nor mentioned) was that a clinic in Brazil had a mishap where 57 people were cross-contaminated with the hepatitis B virus. Since this was not the deadly ‘C’ variant, it was argued there was no correlation between the two (in VA’s mind). VA did make the magnanimous gesture of saying that “while it was plausible, no current evidence was available to condemn the jetgun itself”. However, that has since been refuted. Please see the Wikipedia discussion in “Concerns”. Specifically the reference to the mice and the calf.

Matters have stood at this crossroads until today. Nurse Sylvia, our resident collector of all things jetgun, today sent me what has to be the single most damning piece of evidence to date arguing for the proposition that jetguns are inherently dangerous to your health. Note the the language is couched in the same cautious ” We have no definitive proof… but” language. The major difference is the conclusion at the end of the statement: ...but since we have no conclusive proof that jetguns do not transmit blood borne viruses or have the inherent danger of cross contamination of successive subjects, we can no longer in good faith sell or service them.”

To many of us who were inoculated with these deathguns, it was patently obvious in retrospect. If standing line watching the troops in front of us bleeding after a botched inoculation was not enough evidence, the follow-on change in sterile protocols of the last twenty to thirty years would have to be the wake-up call.  A visit to the dentist today is vastly different than one in 1970-90.

disassembly for autoclaveVA has steadfastly maintained the sterility of the jetguns were inviolate in the face of a disintegrating argument but we have never been able to unearth the actual focal moment when the CDC said “Enough!” Today that barricade fell. With the discovery of the below article, no one in good scientific standing, or in good conscience, can defend the VA’s excesses in this patently ridiculous argument. If the manufacturers of the device had no confidence in it’s sterility, that would have to be a potent argument for discontinuance of its use. And, lo, it came to pass. That was eighteen years ago.

The military, faced with a rebellion by the manufacturer (who feared a class action lawsuit), was forced to discontinue their use because they were being withdrawn by consensus as being inherently unsanitary. Add in that no new parts would be forthcoming, it signaled the death knell of the jetgun. As with most similar situations where liability is at issue, everyone was careful to couch it in language that absolved all involved in the travesty. With nothing more that a whimper, the military was forced to give up a cheap medical device and squander untold sums on brand new plastic disposable syringes and needles. Up to then, they had complained for years they could ill-afford this added expense. Suddenly they could. With the flourish of a pen, jetguns were quietly retired and nothing more was said. Nothing, that is, until the flood tide of inevitable jetgun claims that began in 1992 upon discovery that Hepatitis C was virtually incurable.

jetgun ejection 1ccThe CDC, being an adjunct of the US Government, was in a precarious position. Were they to condemn (and implicate) jetguns as being a ground zero for disease propagation, they would impugn the Military (and by extension the VA). The only way to discontinue use was with an innocuous-sounding press release that they could no longer in good conscience condone the use of the devices. This avoided the more ominous declaration of their documented danger to one’s health. All in all, it was a win-win for everyone but the former unwitting recipients. It was too late for them and there was no going back for a do over. Besides, the costs to the government (read VA) would be exorbitant. If you think that the Denver hospital is a financial fiasco, just imagine a hoard of Vets descending on their respective “Veterans Service Centers” demanding remuneration for the government’s desire to save money on inoculations fully well knowing their potential for deadly disease transmission.

With the advance of genome sequencing and the ability to determine specific genotypes, it is now possible to test all who were exposed and subsequently contaminated by a VA medical technician who was responsible for a new Typhoid Mary outbreak. With this sure knowledge, VA still assumes the stoic posture of one unconvinced by science’ ability to prove HCV’s plague potential.  To cite to a position paper authored over eleven years ago that clings to the belief that Hepatitis B is far more “robust” than Hepatitis C flies in the face of medical science. It has now been determined that HCV can survive in a dried blood form at room temperature for three (3) (trois) (sam) (san)(ba) months and still  be capable of infecting you.

Imagine how easy it would be to assemble a roster of Veterans from a basic training company or squadron and get a blood sample from all. Imagine two or three were/are infected with the same identical HCV genotype and they all have names that fall roughly in alphabetical order. Would that be damning enough to provoke even more studies? Would it satisfy the Veterans Administration’s high standard  that the correlation between jetguns, similar genotypes and cross contamination was just a wee bit more than plausible? I doubt it. I also doubt VA will ever author, or permit to be authored, such a study under their auspices. The outcome would be nothing less that having to grant presumptive awards to any Veteran infected with HIV/HCV before  December 1997.

autoclave parts

jetgun parts susceptible to contamination

Nevertheless, I firmly believe this document is definitive proof that the jetgun can no longer be blameless in the transmission of the HIV/HCV disease in a herd inoculation setting. In that respect, I strongly suggest that it be included in each and every claim for Hepatitis C where the jetgun is implicated as a risk factor in the transmission and/or acquisition of the disease. One thing is certain. It cannot harm the claim. Quite the contrary, if the manufacturer of the device no longer has confidence in it and is busy distancing itself from further production or servicing of the device, it can be said that there was/is a distinct danger. When they go so far as to send a registered letter, return receipt requested, showing proof of receipt to insulate themselves from litigation, you can assume their attorneys had a hand in the authorship. Furthermore, when they advise you (the military users mentioned specifically by name and location) to cease and desist with the usage, that is a very strong message only a fool would choose not to heed.

Thank you Sylvia for you perseverance. Now we have a document to point to when we hold up the jetgun and ask a VLJ if he would feel comfortable being inoculated with a sterile saline solution right after you or me.  Relax, sir. I’m SVR since December 7th, 2014. Nothing to worry about. It’s merely “plausible”. There is no definitive evidence that it can transmit HCV-only HBV. Non? Mais Porquoi? Oh ye of little faith.

Here’s the cease and desist Pedojet letter and the Paris Island letter as a nice bookend to it.

1997 Ped-O-Jet letter to DoD

Paris Island jetgun contamination report.

Veterans ask me how they can credibly present this to a Veterans Law Judge. Assuming you have not been tarred and feathered as a drug addict or been caught in a lie about all this,  you are still considered to be credible as a witness in front of the VA. You are allowed to offer lay testimony as to anything you see, hear, taste, feel or smell. This is called the Layno v. Brown codicil that permits you to discuss anything that comes to you via your five senses. You are not, however, allowed to make the next assumption that the blood of the guy ahead of you in line that was now all over the jetgun was the cause of your HCV. You can only say they injected you without wiping it off, or, if they did, they did not insure sterility. Here’s another tidbit that would blow a hole in VA’s argument. I never saw them stop the injection line and resterilize/autoclave a gun in the four times I went through-in spite of  incontrovertible blood contamination. Note that this was published in 1962 so it was already well-known that cross contamination was endemic to the use of the gun. This was fully 35 years before their withdrawal from usage for the very same reason…

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Onward through the fog. Happy Turkey Day.

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Posted in Jetgun Claims evidence, Jetgun Manual, Medical News, Nexus Information, research, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 12 Comments

CAVC–MITCHELL v McDONALD–THE NEVER-ENDING BERAUD REDUX

Posted on November 23, 2015 by asknod
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St. Meg throwing the unsportsmanlike conduct on Kasold

Ever since the Bond v. Shinseki dustup that had to travel to the Fed. Circus for clarification, we see the VA’s continued intransigence toward the concept of new evidence submitted in that golden window either with the NOD or within the ensuing year following denial to perfect one’s appeal. Beraud v. Shinseki (2013) and it’s companion Fed Cir. decision in Charles v. Shinseki (2009) pretty much put a fork in the idea of being able to blow off Veterans like me who show up and ask what happened to the new and material evidence we filed in 1994.

The concept is boringly simple. You file. You lose. It dawns on you that they don’t have everything they need to decide your claim. You send in the new stuff that supports your version and…silence. Nothing. You start over several years later and reopen the claim. You lose again. You are not a lawyer so you don’t notice they never finished the first claim by looking at the new evidence you sent in. At some point, you hire a savvy lawyer who spots the error and the wrong is righted on appeal to either the CAVC or, in the case of it arriving in front of a CAVC judge enamoured of the VA, to the Federal Circuit Court above. There, they actually read the c-file and do the timeline investigation of what happened when and what was supposed to happen subsequent to that.

Each step in jurisprudence at the lowest level is controlled by regulations that are designed to protect the Veteran against arbitrary injustice. Often we see the mission creep of 38 CFR twisted to “fit” the circumstances so as to leave you, the Vet, outside the wire. Bond and Charles were established case law when Leonard Beraud showed up with a vaguely similar contention. How Judge Lance and Coral Wong could screw this up with so much case law to lean on speaks volumes about IQ. Saint Meg of the Our Sisters of Indiana Avenue NW Order fortunately put forth the correct argument in her dissent that carried the day at the Fed. Circuit. When remanded, the Commandant of the CAVC, then Kasold, was too embarrassed to assign the same panel to correct it. Instead, he pawned it off to St. Megan and she quickly set the record straight for all to use as the primer on 38 CFR §3.156(b) henceforth. Or so we thought.

Granted, Leonard Beraud’s contention was somewhat a duty to assist argument in that he insisted he had medical records stashed at a Nasty Guard base or his weekend warrior outfit. VA ignored him, gave him no time to retrieve them and equally made no effort to assist in locating them. This effectively put the claim on hold while the evidence was fetched. VA never sees things this way. Most of the errors I see in this vein share the same circumstances. When viewed twenty years later, VA looks in your c-file for the documents and doesn’t find them. Therefore, they surmise that they did their duty and you did not. If the documents in question are there but no resolution was arrived at, they claim you never perfected the appeal with the Form 9. This excuse is the oldest one in the M 21 Cliff Notes® denial book.

No Bozos

No Bozos

The correct procedure has always been to review the new evidence ( or pretend to) and then send out the SSOC “redenial” saying “What part of ‘no’ don’t you understand?” At that point, if you (or your VSO) have not been proactive, you have 30 sunrises and 30 sunsets to get your Form 9 in with proof of mailing.  Messieurs Beraud, Bond and Charles  were ignored in similar situations and no SSOCs were forthcoming. VA continues to misinterpret the idea that finality attaches to a RO decision in this circumstance. It doesn’t. That is the problem. If you send in new and material evidence in the course of the claim after the denial and before the claim is certified for appeal, VA is required to review it and make a new ( de novo) decision. If they do not perform the review, the claim goes into the deep freeze and awaits a new decision or until a SSOC is forthcoming.

The only way finality can attach to this would be if it was adjudicated at the BVA and denied. Were that to happen, that’s all she wrote. The big if would be “if they included the evidence previously overlooked” The only way to get a can opener into it afterward would be via CUE or the introduction of new service department records that had never seen the light of day as defined in § 3.156(c).

§ 3.156(b) is a handy dandy little tool in jurisprudence because it keeps the VA from going off half-cocked. Well, it’s supposed to. This explains why we are experiencing déjà vu here in the Mitchell case. What concerns me is that the Office of General Counsel dialed this one in way back in 1995 and issued VA General Counsel Precedent 9-97 which describes this to a T.

Read this holding first:

VAOPOGCPREC 09-97 (2)

Now read the case law I unearthed to show VA’s continued, purposeful misconstrual ever since on what § 3.156(b) stands for.

9-97 Cases- Very imp. info 4 both of mine

Now for the meat of the decision. This is the first outrightly hostile assault by one CAVC Judge on another for their failure to grasp VA Law. Sister Meg goes off on Kasold for his off-the-wall concept of an “interlocutory” decree- a temporary decision that is subsumed by follow-on decisions. § 3.156(b) cannot be abrogated by a subsequent decision that failed to address the underlying new and material evidence submitted. That violates every precept of law-both civil, criminal and VA’s version of joke justice. Simply ignoring a contention or evidence and hoping that it will go away is a gross violation of far more than just §3.156(b). It cuts to the heart of due process.

DickandJane Vetspeak can boil this down for the legally challenged thusly:

If you submit new and material evidence after a denial but within that golden window of one year after the denial, and VA never addresses the new and material evidence, the claim remains on the books until it can clearly be seen that they reviewed the new evidence and gave you an up or down on that specific evidence. Even subsequent decisions (including BVA decisions) cannot subsume a claim where the evidence submitted was never reviewed in a de novo decision.

CJK

Bu-bu-but Beraud is wrong!

Mitchell is powerful ju-ju, Vets. It illustrates a situation where a dissenting CAVC Judge [Kasold] says he doesn’t buy into the majority opinion simply because he doesn’t respect and adhere to established Federal Circuit precedence already on the books. This is asinine. Being a judge entails reading the law and obeying it. You can argue until you are hoarse on what you think the interpretation is in a vague unexplored situation but you can never base your dissent on the mere fuzzy feeling that you think Bond or Beraud were decided in error. That’s what we used to call being a poor sport and unhappy with the outcome of a game because you lost. Justice doesn’t work that way. Either the decision is clearly and unmistakably correct-or it isn’t. You cannot have two disparate opinions that are equally correct.

Saint Megan knocked this one out of the park in what will undoubtedly resonate for years to come and be quoted endlessly in future dissent arguments (assuming this degree of animosity between justices becomes the wave of the future).

Click to access Mitchell_13-1245.pdf

In sum, Cook is not in conflict with the precedent of this Court or the Federal Circuit, both of which have held that § 3.156(b) is an exception to the rule of finality. Beraud, 766 F.3d at 1404; Bond, 659 F.3d at 1367; Young, 22 Vet.App. at 466; see also AG, 536 F.3d 1310 n.8. At bottom, the dissent is based on its author’s [Kasold’s] belief that Beraud was wrongly decided by the Federal Circuit. Witness, for example, his continued emphasis on the facts that Mr. Mitchell could have appealed the September 2003 decision, challenged its determination that new and material evidence had not been submitted, and raised the fact that VA never responded to the December 1973 audiogram, but failed to do so, even though the Federal Circuit explicitly rejected almost identical objections in Beraud, see 766 F.3d at 1406 n.1. Predicated on the—as we have explained—unnecessary belief that Beraud and Cook are in conflict, our dissenting colleague calls upon the Federal Circuit to take this case en banc and overrule Beraud.

This case, however, must be decided on the law as we find it, not on the law as we would devise it. See United States v. Microsoft Corp., 253 F.3d 34, 118 (D.C. Cir. 2001) (en banc) (per curiam) (“Appellate decisions command compliance, not agreement.”).

We note that the Secretary [McDonald] filed a petition for rehearing en banc in Beraud, and, on April 16, 2015, the Federal Circuit issued a per curiam order denying that petition.

download (1)

Sister Meg.

If the Feds denied Call me Bob’s petition to rehear Beraud, that pretty much means it is solid case law. If that isn’t bright line law and easily absorbed, then the Brucemeister needs some CLE big time. It must be a bitch to have been the big cheese for 10 years up at 625 Wagon Burner Lane NW and suddenly have some whippersnapper babe still wet behind the ears from the NVLSP show up and teach him what he should have already learned in law school aeons ago. Worse, Coral Wong is nodding her head in full agreement as well and she’s the FNG. Hell, at least she learned from her Beraud error.  If we get another pro-VA judge in the future, the Court is going to become a fun place to take our appeals. I like to think we have four who are “enlightened” at the moment.

Veterans do not aspire to have justice subverted to win. We expect to win on the correctness of our contentions. All we ask is that the regulations be interpreted in a fair manner and not one where being born on a Thursday in a leap year is a prerequisite for winning.  §3.156(b) was not written to be a “gotcha” against Vets. Quite the contrary, it was to allow us to submit new and material evidence to improve our chances of defining our claims and aiding in the eventual decision-up or down while still at the Agency of Original Jurisdiction. It doesn’t put the thumb of justice on one side of the scales in our favor. It just insures that all that we submit actually will be reviewed. I think the Congressional term in 38 USC controls-“One decision on appeal.” That certainly doesn’t encompass picking and choosing which evidence will or will not be reviewed nor when. When the VA becomes truly nonadversarial, you will see less of these frivolous OGC attempts to define the meaning of what “is” is.

Mitchell is going to be enshrined in the pantheon of important CAVC decisions alongside Buie, Bradley, Fenderson, King and the like. With all Kasold’s caterwauling, I expect Call me Bob will be knocking on the Fed. Circus’ door and asking for a do over. On what grounds, I haven’t the faintest. Maybe because it was unjustly influenced by two women with the vapors- or they were at that time of the month…

Win or Die VA

Posted in 38 CFR § 3.156(b), CAVC ruling, Important CAVC/COVA Ruling | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

BVA–WE FIRED OUR GUNS AND THE GOOKS KEPT A’COMIN’

Posted on November 21, 2015 by asknod

From the Johnny Cash Memorial 

VARO in New Orleans, Louisiana

VAEvery once in a while you read a decision and you ask yourself “What was this Vet thinking?”  Trying to blow bubbles about your service is all well and fine, Trying to revamp history after you’ve already told your version of the story is going to create a niggling doubt in the Veterans Law Judge’s mind-and anyone else reading the narrative.

http://www.va.gov/vetapp15/Files1/1502307.txt

Our Johnny Vet either disremembers a lot of his prior service life or else he’s trying to rebuild it with the assistance of the Joint Services Records Research Center (JSRRC). The eleven able-bodied employees down there in DC might be slow but they are precise. If you say a guy got blown off the flight deck and drowned, you have to pretty much stick with the story or fold up and go home when they discover you are lying.

This poor boy is caught out so many times that he’s an embarrassment to Vetkind. His DAV rep. must be shitting bricks and trying to figure out how to spin this. In spite of it, VLJ Shane Durkin tries to keep a straight face and remand it for more info. What kind of info is no longer in doubt. Chances are we’re going to read about this again in a year after the JSCCR inveighs and says no sailor on the USS Kitty Hawk was cut in half by the arrestor cable.

Consider these anomalies.

The Veteran served on active duty from Feb. 1976 to August 1977.

That means he missed the boundary dispute that officially was called on account of our US Embassy no longer being staffed by us after May 7th, 1975. Actually, we bugged out on the 29th of April. Maybe his DD 214 is in error.

The Veteran has alleged that he contracted hepatitis C through air gun inoculation in service. At his July 2013 hearing before the undersigned, in reference to potential avenues for contracting hepatitis C, the Veteran provided contradictory statements concerning whether he had used intravenous illicit drugs, at first testifying that he only had contact with needles when he was inoculated in service and never using drugs with needles. He subsequently asserted that he was inoculated by air gun in service when so questioned by his representative. He then conceded, when confronted at the hearing with the fact that treatment records provided a history of intravenous drug use and snorting cocaine, that he had indeed previously snorted cocaine and had previously “a few times” used intravenous illicit drugs. He qualified this changed narrative by asserting that he had only used intravenous drugs with “a brand new needle.”

Sure, that’s how it was. Brand new needles. I bought them by the six pack- but just once.  And when I did the White Lady, see,  I used my own brand new straw because I’m like-you know- an obsessive/compulsive kind of guy and a clean freak. That’s why I didn’t mention it.  Nope. No risk factor there either.

At his July 2013 hearing, the Veteran testified to witnessing a fellow soldier whom he did not know cut in half by a cable when an airplane landed on the USS Kitty Hawk sometime in 1977 in the Pacific Ocean on a cold day most likely in the winter.

While the Veteran in his October 2009 submission also reported that he witnessed a fellow soldier cut in half by a cable, the RO made no query to the JSRRC for verification of that incident. The RO must attempt to verify this reported incident upon remand.

 

images VLJ Durkin has now remanded to see if this stressor exists. My guess is Johnboy had no idea they could find out what was happening on the Kitty Hawk back in 1977. My second guess is that Shane and the JSRRC gang are not going to find any sailors in two pieces. Navy’s OSHA guys are pretty strict about doing the Macarena around the arrestor cables during air operations.

The Veteran also testified [at the hearing] to witnessing a fellow soldier being blown off the ship and being saved. This is notably a changed narrative from the Veteran’s written submission in October 2009, when he asserted that the soldier who was blown off the ship was ‘pronounced dead.’ Following the Veteran’s October 2009 statement the RO made a stressor query to the JSRRC concerning a fellow being blown off ship in July 1977, and the reply indicates that two soldiers were blown off the USS Kitty Hawk that month and both were recovered by rescue swimmers and by helicopter. The RO in an April 2012 Statement of the Case noted this information from JSRRC contradicted the Veteran’s report of a fellow soldier being pronounced dead following being blown overboard. The Veteran may have changed his narrative in light of this JSRRC report.

Gee. Ya think?

In a request for assistance from his U.S. Senator and received by VA in July 2014, the Veteran asserted that he “almost died” in service, though he failed to provide additional relevant details except to note “Vietnam.” The Veteran has not elsewhere alleged almost dying in service, and absent additional details there would not appear to be a specific stressor to be verified. The record does not reflect that the Veteran served in Vietnam or that he had service in the Vietnam Era.

I think the Senator misunderstood me. You guys took it out of context. We were in the South China Sea off the coast of Vietnam when I almost died. That was when I was having nightmares about being blown off the ship. I swear my heart stopped while I was dreaming and I thought I was gonna die. I never said I fought in Vietnam. Where did you get that from?

Poor Johnny is going to have some mighty tall explaining to do when JSCCR comes back with no arrestor cable deaths. I note his 4-year enlistment ended after a mere seventeen months but there is no discussion on that. It’s probably still classified.

Posted in BvA HCV decisions, Frivolous Filings, Jetgun BvA Decisions, Jetgun Claims evidence | Tagged , , , , , , , , , , , , , , , , , , | 1 Comment

A COMBAT VETERAN’S THANKSGIVING

Posted on November 20, 2015 by asknod

 th (1)Arliss,  the wise old Eleven Bravo Vietnam Vet  had six stars on his VSM and was getting on in his years. By now, he was a year-around resident with his high school sweetheart wife in Phoenix. Prodded by his wife, he picked up the phone Wednesday morning early, calling his son Zeb in Nashville to inform him of the impending divorce…

“Have you lost your senses? That’s impossible. You and Mom are like peas and carrots. You better think this over. This is way too abrupt. It isn’t like you, Dad. Are you depressed? What is it?”

Arliss paused and sighed “We can’t stand the sight of each other any longer, I guess. Your Mom ain’t exactly an Oprah Winfrey of conversation, you know. We’re sick of each other, and I’m sick of talking about this, so you call your sister in Chicago and tell her.” He promptly hung up and consulted his watch.

Frantically, Zeb texted his sister in Chitown, informing her of the imminent breakup. In a flurry of thumbs, moments later Nadeen texted back ” F*** tht noise. Lik hell they r. Pak ur bags. We re going to fenix. Im bookng for both of us. See u ther tomro pm. Luv n”.

Nadeen deftly switched to voice and called her parents’ number from memory. In her haste, she had to redial it twice. Her shaking thumbs refused to obey her commands.

“Dad, you’ve had a stroke or something. Relax. Don’t do anything until we get there tomorrow. Zeb and I will be flying in and we’ll get a rental car so you and Mom can just sit tight. We can work this out. You guys have almost 50 years invested in this. Don’t do anything rash. Promise me?”

Arliss sagely nodded his head in agreement and and allowed as how he and Cupcake could try to be civil to one another for a day or so more maybe but there were no guarantees in life. He mentioned an address at the local Holiday Inn if she arrived and found him gone. After exchanging tearful endearments with one another, they hung up.

Hanging up the phone in the front hall, Arliss yelled to Doreen in the kitchen.

” Three and a half minutes. Damn, you won. They’ll both be flying in tomorrow afternoon and they are paying their own airfare. Jez, you had that dialed to a T, Sugar. I wonder how many times we can get away with this?”

Thank you to lifelong Marine and genuine Vietnam Veteran Tom (180%) of the Win or Die Club for this one. Happy Thanksgiving from one corn dog Veteran to all of you Veterans.

th (2)

 

 

 

Posted in From the footlocker, Humor, KP Veterans, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , | 2 Comments

HOW TO PICK A GOOD VSO SERVICE OFFICER

Posted on November 19, 2015 by asknod
th

1815 New Orleans Turkey Shoot

Well, kids. It’s degenerated to that point in the twenty first century where the actual majority of all claims going to the BVA for adjudication are riddled with errors. Instead of just by Regional Office personnel, it’s clearly becoming apparent that Mario Caluza, Arthur Hickson and Jerry Shedden have not yet become household names around the VSO universe. 

Ever since that dawn of the New Orleans defeat for the British in  January 1815 ended the war of 1812, so too has it been a oxymoron that you had to have proof you were damaged in service for the claim to prevail. VA had done a pretty good job of hiding the requirements up until Mario Caluza tried to smoke the VA with a really lame claim.  The difference this time was Westlaw. It got published. The new Veterans Reform of Justice Act of 1989 allowed any who wished to go up to a new Court a fairer shot than the judges on the VA Secretary’s payroll. Funny how once you get out from under that umbrella, the judicial weather improves vastly

Caluza finally vocalized what everyone knew but had never summarized in public. To Veterans, it was the Holy Grail. The Rosetta Stone. Like graduating cum laude from an EST retreat in the Nicaraguan jungle. Enlightenment. The secret password with magic handshake all in one. The “knock” on the door.  Caluza made it common knowledge to all VSOs on April 12, 1995, just in case they hadn’t been getting the wire feed from the War Dept. who used to run this gig. In order to win a claim. it required three things. This is cast in stone and immutable.  After 1995, it was called the Caluza Triangle. It’s so old, Abraham Lincoln was in diapers when it was invented.

  1. disease/injury/ risk  in service
  2. disease/injury now.
  3. letter from doctor say the two are related and why.

When Arthur Hickson showed up pro se in August of 1998, the Court rightly tossed it because Art had no nexus- just bunches of hunches. Caluza was trotted out and cited as the controlling precedent. That was 15 years ago and if the VSOs had missed it before now, it was a clear shot across the bow to them. The Caluza triangle was rechristened The Hickson Elements. The VSOs never dialed in on it or never saw or heard it (again).

Jerry Shedden showed up in August of 2003, five years after Arthur. He was claiming CUE for a number of reasons why his PTSD was denied illegally. Unfortunately, he too fell victim to the desperate need for the IMO requirement. Ken Carpenter couldn’t even fix it. They gussied it up and added two more obvious elements and renamed them the Shedden requirements. Six of one and half a dozen of another. VSOs everywhere were holding annual conventions and getting extremely trashed or hammered but again. nary a Shedden requirement was shared.

No Bozos

No Bozos

Twenty years and some change later, 50,000 appeals are en route to the BVA sponsored and represented by the 96 VSO service officers. All these fine upstanding ladies and gentlemen are certified as trained professionals by their respective VA-chartered Veterans Service Organizations. All are presumed capable of their jobs. Yer more than half of the 50,000 claims lack that Caluza triangle. Qu’est-ce que c’est ?

Today we offer you, Johnny Vet, a “test quiz” you can download at the bottom of the article. It is a simple ten-question test that even the most claims-challenged service officer should be able to pass with flying colors. Remember, he can’t consult the VBM or 38 CFR. This is not an open book test.  As usual, Cupcake suggested this.

Closed Book Test For Potential VSO Service Rep.

Q #1) What are the three ingredients for a successful VA claim?

Q#2) Would having VD in service be considered Willful Misconduct ?

Q#3) What is the maximum compensable VA rating for tinnitus? Is it for each ear or both?

Q#4) How many days are you permitted to file your VA Form 9 after receipt of the Statement of the Case?

Q#5) Does the clock run from the time you get the SOC or the date on the SOC document?

Q#6) Does VA guarantee they will get all my civilian records if I sign a VA Form 21-4142 requesting and authorizing them to do so? (assuming they are readily and locally available).

Q#7) What are my rough odds of winning here locally if I am right and can prove it?

Q#8) Have you ever heard of the VR&E’s IL Program? What does it stand for?  Do you know what the IL program actually does under 38 CFR 21.160? Have you ever handled a VR&E claim for an IL Program? Has your VSO ever handled one?

Q#9) What is your win/ loss ratio on claims you have personally handled?

Q#10) What was your personal best biggest win on a compensation (not pension) claim based on rating percentage and effective date? This is a question for the representative, not the whole office. There’s no “we” in service representative.

Those are the bedrock questions. If the prospective representative still sounds intelligent, we’ll move to the bonus round. If s/he misses more than four, it is suggested you thank him/her very much and note you are late to pick up your Cupcake at work.

 

Here’s the download to print.

VSO service officer Questionnaire

My guess is 50% of the service reps will throw it right back at you and make you sign a POA before they pick up their pen and look at it.

 

Posted in All about Veterans, Nexus Information, VSOs | Tagged , , , , , , , , , , , , , , , , , | 6 Comments