"Ask NOD"

BVA- Be Careful What You Ask For

From: Posted by NOD
Category: -
Date: 09/13/08

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Citation Nr: 0612641 Decision Date: 05/02/06 Archive Date: 05/15/06 DOCKET NO. 03-32 701 ) DATE On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Whether new and material evidence has been received to reopen the claim of entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion INTRODUCTION The veteran served on active duty from May 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2003, a statement of the case was issued in September 2003, and a substantive appeal was received in October 2003. The veteran testified at a Board hearing at the RO in March 2005. FINDINGS OF FACT 1. An unappealed September 1989 RO decision denied entitlement to service connection for hepatitis. 2. In October 2001, the veteran submitted a claim of entitlement to service connection for hepatitis C. 3. The evidence added to the record since the September 1989 RO decision relates to an unestablished fact necessary to substantiate the claim for service connection for hepatitis C. CONCLUSION OF LAW Evidence received since the September 1989 RO decision that denied service connection for hepatitis is new and material, and the claim for service connection for hepatitis C is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's original claim of entitlement to service connection for hepatitis was denied by the RO in August 1970. He has attempted to reopen the claim several times, and the RO has denied the claim each time. The most recent prior final of the claim occurred in September 1989. At that time, the RO denied the claim as there was no evidence of hepatitis demonstrated on VA examination. The veteran was informed of the September 1989 RO decision via correspondence from the RO dated in the same month along with his appellate rights. The veteran did not appeal the denial of service connection for hepatitis which became final in September 1990. The evidence of record at the time of the September 1989 rating decision which denied service connection for hepatitis consists of the service medical records, VA and private clinical records, private hospitalization records, and reports of VA examinations. The service medical records reveal that in February 1970, the veteran was found to have probable hepatitis. The veteran's February 1970 separation examination includes the notation that he was mildly jaundiced from hepatitis. A report of a July 1970 VA examination included a pertinent diagnosis of history of hepatitis without residuals. Private hospitalization records reveal that the veteran was hospitalized from March to April of 1971. The discharge diagnosis was chronic persistent hepatitis. A report of a VA examination which was conducted in July 1971 includes a diagnosis of history of hepatitis, residuals not found. Private medical records include a May 1989 record which references the presence of persistent hepatitis. It was noted that the veteran had hepatitis in 1968, which was more than likely hepatitis A when he was in the Army as a medic in Viet Nam. The disability was not linked to the veteran's active duty service. A June 2001 VA clinical record indicates that the veteran was receiving an injection for hepatitis A. A September 2001 VA clinical record includes an assessment of hepatitis C which was diagnosed five years prior. In April 2003, the veteran completed a Risk Factor Questionnaire indicating that the only risk factor he admitted to was being a health care worker who had been exposed to contaminated blood or fluids. He annotated to report to indicate that he had been an Air Force medic for 4 years. In March 2003, a VA psychiatrist wrote that the veteran had serious health problems including hepatitis C. The author opined that it was quite likely that the veteran had cognitive and mood symptoms related to or exacerbated by the viral infection the veteran had for many years. The veteran testified before the undersigned in March 2005 that he currently has hepatitis which he opined was due to his service as a medic while on active duty. The Board finds that the veteran has submitted new and material evidence to reopen the claim of entitlement to service connection for hepatitis C. The VA clinical records and the report from the VA psychiatrist are competent evidence of the current existence of hepatitis C and the psychiatrist's letter also indicates that the veteran experiences current residuals of the disability. The claim was last denied as there was no competent evidence of record indicating that the veteran had residuals of hepatitis. This evidence addresses one of the specified bases for the denial of service connection, and thus constitutes new and material evidence. See 38 C.F.R. § 3.156(a). Accordingly, the claim is reopened. The Board further finds, however, that additional evidentiary development is required prior to adjudicating the reopened claim of entitlement to service connection for hepatitis C. The additional evidentiary development required is set out in the Remand portion of this decision below. ORDER New and material evidence having been received, the claim of entitlement to service connection for hepatitis C has been reopened. The appeal is granted to that extent only. Accordingly, the claim of entitlement to service connection for hepatitis C is hereby REMANDED for the following actions: 3. Schedule the veteran for a VA examination to determine the nature, extent and etiology of any hepatitis found on examination. The claims folder, to include a copy of this Remand and any additional evidence secured, must be made available to and reviewed by the examiner prior to completion of the examination report, and the examination report must reflect that the claims folder was reviewed. Any indicated studies should be performed. Based upon the examination results and a review of the claims folder, the examiner should provide an opinion as to whether there is a 50 percent or greater probability (as likely as not) that any current hepatitis had its onset in service. The rationale for all opinions expressed must also be provided. 4. The case should be returned to the Board after compliance with requisite appellate procedures. The veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). This decision is interesting for several reasons and I will address all of them. The first is the boilerplate phrase in the last paragraph of the decision.-"must be handled in an expeditious manner". These boys must not eat ice cream at home. It would never get there frozen. The case was decided May 2, 2006 and the VET will not be SC 'til 2008-09. Now, the real reason to look at this claim is the fact that the VET put in a legit. claim right when he got out (8/70)but didn't realize the paper/medical jungle he was entering and got lost. He failed to appeal and that decision is dead in the water unless he gets a good lawyer. I did something similar to this ,too. It was a crime then and still is today in my mind. No one seems to want to provide meaningful assistance to us. They file our claims, bob their heads up and down knowingly and make tut-tut noises. They tell us this is mostly a time process and that we have a chance of picking the winning ticket. Sometimes they tell us we don't stand a snowball's chance in hell. There seems to be no nuts and bolts talk, no success ratios, medical requirements/records needed. They file the claim and send you on your way. Don't call us, we'll call you. NEXT? This goes on every day-today-2008. As we speak. The second thing that I want you to look at is WHAT THE VET ASKED FOR. His claim here was if enough new information to reopen his old 1970 or 1989 claims had been submitted. The ACTING VLJ agreed that enough new stuff had been submitted and REMANDED this back to the RO. An acting VLJ is just that -a substitute teacher. He/she has not been given the standard briefing from the Head Honcho on denying this crap. So Acting Judge Simpson granted exactly what the VET requested- that is- whether enough evidence was submitted to grant a new trial. The BVA in this procedure above is now what we call the Agency of Juristiction(AOJ). The VLJ now controls this case and could have rendered a decision up or down on SC if all the evidence had been submitted correctly. But most of all the VSO from AM. LEG. should have asked for the SC- i.e. it should have been the "Whether new and material etc." and followed by 2.) Entitlement to a compensable rating for Hepatitis. What happens now, and this was 2006, mind you, is that the REMAND sends it back to Columbia, South Carolina for development and examinations. After all that and a rotten nexus provided courtesy of the RO's examiner, it is sent back to D.C. to Acting VLJ A. P. Simpson, who, by now is no longer an acting VLJ but a full fledged VLJ. He will make his decision and issue it. If the VET is granted SC it still has to go back to the RO for a C&P exam and over to ratings for your 20 or 40% ripoff. So, in summary, this poor VET will be lucky to see some $ by Sept. 2008 which is now-2 YEARS later. That is what the VA considers "handled in an expeditious manner". You may die before they give you the $. If you do, they don' t have to pay you, your wife or your children under 18. Have any of you ever seen a three card Monte game? How about which walnut is the pea underneath? Be careful what you ask for. VA will grant that which you ask if you have proved your case-and not a dime more. Some would call this process having the deck stacked against you. The VA calls this a Non-Adversarial Judicial Forum in which the benefit of the doubt is accorded the VET. Their motto must be: "Justice delayed is better than Justice denied". It's bait and switch justice in my book, but my lay testimony has no probative value and is therefore meaningless. To Opine here would be useless.

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From: milfinvaders?aff=skankfree
Category: General Info
Date: 08/21/09

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From: bangamommy
Category: General Info
Date: 08/21/09

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