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Va Accepted My Evidence!


tugger50

Question

I am a Vietnam Blue Water Sailor. I copied the report of "Dioxin on the Carriers" and submitted it along with my claim. To my surprise they listed it as evidence in my file

.

I had a huge tumor on my prostate removed in 2006. The doctor said it had been growing for more than 20+ years. Thankfully it was non- cancerous. That to me does not mean that Agent Orange did not cause it. Prostate cancer is listed as a presumtive condition. Could it not as well have caused the Tumor?

It will be interesting to see if the report has any bearing on the adjudication of my claim for Agent Orange exposure, especially since I am not presumtive by the current standards.

I am to be scheduled for a C&P exam coming up in the near future. I have other issues as well which I hope will go my way.

Thank you to HADIT.com for all you do.

DIOXIN ON THE CARRIERS2.pdf

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This is sad, but I think this great as far as some compensation. Even if the tumor is non cancerous. Agent Orange has cause all kind of health problems. VA will try to find away out of this?

Great Vietnam Blue Water Sailor!

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  • HadIt.com Elder

In theory, the VA "had" to list the report as evidence. What they don't have to do (by their rules) is give it significant weight,

I'd agree that in the absence of anything to the contrary, the VA is required to rule in a vet's favor. However, the VA's logic in this area involves considering the absence of "positive" evidence as negative, and then using it to offset existing positive evidence. Don't forget that if you hold such things as a "Combat Ribbon" (CR or now CAR), The law (in theory anyway) requires that the VA "refute" any level of positive evidence. The VA often has forgotten to factor in the "relaxation" of evidentiary requirements that apply to "combat veterans".

Individual "Blue Water" claims have been won in the past, despite the VA RO's reluctance to award them.

I believe your claim is now dependent on a C&P examiners findings, specifically that one or more of your current medical conditions is at least as likely as not related to or caused by A/O exposure.

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I have posted the full VA AO Ships list here in the AO forum, as it gets updated by the VA periodically.

Have you checked the list?

VA will concede AO exposure for any vet whose ship is on that list.

Of course,

that means nothing unless the veteran has a current documented AO presumptive disability.

Have you checked over the AO presumptives carefully?

Do you have any other disabilities that could be AO presumptive? or awarded on a direct SC basis?

Did the VA list the report as "Evidence" in a Statement of the case, denying the claim? or did they just put it into your file?

Chuck is right.

We have a wealth of Blue Water info here and please check out BlueWaterNavy.org.

I seem to think you do not have a current prostate disability based on what you said.

We have SVR radio shows here in the SVR archives with Blue Water Navy.org President , John Rossie and Carol Olzenacki, BWN advocate.

I am a civilian member of Blue Water Navy Vietnam Veterans Association.

I think you need to begin to look into all the Blue Water Navy info here and at the above web site John Rossie started years ago.

Edited by Berta (see edit history)
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Thanks Berta. I am a member of both Blue Water Navy & The Blue Water sailors of the Vietnam War. (formerly VASVW).

I get lots of info off of both sites. Thats where I got the report on Dioxin on the Carriers.

My tumor removal made me ED so maybe I'll get "Loss of Creative Organ". At least i can really go potty now!

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  • HadIt.com Elder

Most of us Vietnam vets who were somehow exposed to AO and can prove it will very probably die from an AO related disease. Consider that DMII, IHD, Lung Cancer, Prostate Cancer and many other cancers are presumptive for AO the odds are that we will die from AO. All my close buddies from Nam have DMII and one is dead already. We were all healthy young men. I guess we need to tell the spouse to make sure we get the doctor to do an autopsy and consider our AO diseases as at least contributing factor in our deaths.

Also, for the guys out there with a spouse start saving for a fund for your spouse so that she/he has at least 10,000-20,000 to live on while they wait for DIC, SSA survivor benefits, insurance etc to start.

I think about this alot and I don't want my wife to be worried and in grief at the same time.

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Roger on the DM2. I missed that party but got the Porphyria Cutanea Tarda. You are right on the etiology of death for most of us. Of 2.3 million who kissed the red clay, there are only 867,000 left. Think of the untold numbers from Thailand, Clark AFB, Naha and Kadena, Anderson in Guam, etc. There weren't many of us over the fence in Laos but they dumped more AO and AB up there than anywhere in RVN.

Of course the VA accepted your evidence. They would be remiss if they didn't acknowledge you sent it in. I'm sure you green-carded it and left a paper trail. Having them accept the evidence is half the battle. Do you have a doctor to write the magic paper? Remember, just having a presumptive does not a claim make. Here, you don't even have that. I fought VA on PCT for 18 years and they ended up giving me 40% based on it being a secondary to HCV. A win is a win, but I had a nexus that covered both eventualities (direct for HCV like Combee v. Brown and presumptive a la Nehmer). VA ignored Nehmer and went for the Hep.

One thing I have learned in this business is that VA's default setting is deny. I don't want to piss on the fire but without a nexus you are barking in the dark. Even with one, VA may try to trump you with their own IMO from their "VHA independent medical expert". I've seen them use a podiatrist to say less likely as not for a back injury. The Vet's law dog wisely called them on it and asked for his bona fides and specialty. Busted! They finally got a real ortho guy and he won. BVA used a infectious disease specialist to opine about a Vet's hep last year and said his positive on a Western Blot test was evidence of HCV after service. One problem. Western Blot only determines HIV, not HCV. A Northern Blot is used for HCV. Just because he's a VA doctor means nothing. In fact, by being employed by VA, one can hardly say he's independent or unbiased. If they come out with an expert opinion, don't buy it. You have a short time to contest it at the BVA and have to be on it like white on rice. You'd be lucky if you got 60 days to contest it-if you catch them doing it. Remember, you cannot fight that at the Court. The RBA is sealed and no new evidence will be admitted in most cases once the BVA has spoken.

If you can get your contemporary SMRs from service and let your doctor peruse them prior to writing the magic paper (and state he did), you stand a lot better chance of putting your claim in equipoise for a BOTD decision. The Haas decision means you are starting out like the race between the tortoise and the hare. Every ploy you can use will be needed to get over this.That's how they got the first win on DM2 in Thailand- a really well-reasoned nexus letter that eliminated all other theories. Shape your claim to look like a cattle chute with "granted" at the end. When you fight this type of claim, you have to have one opinion, one conclusion and only one logically designed argument that pokes holes in anything VA may try to use to defeat it. The claim has to be as slick as a pig at the county fair.

Entertain all manner of offense. Search for more info on dioxins. Don't stop and rest on your laurels. I got 40% for PCT (DC 7704 Polycythemia Vera) because VA only has one rating that mentions phlebotomies. They rate by analogy only when forced to. They tried to sub DC 7815 and say here's 10% for scarring but we really mean it to be for the phlebotomies. I NOD'd and submitted 7704. 17 months later they finally agreed. I'm sure they spent many long hours trying to find a way around that conundrum. This is an example of what they are going to try to do to your claim. Best of luck, sir and thank you for caring enough to go play in the Tonkin Gulf. Most of America didn't share your enthusiasm.

Check out the picture below. All that bare ground around our runway was red clay. It was hosed with AO poured out undiluted with no diesel by 8-10 year old Hmong kids. They used bleach bottle scoops. I saw pictures of it from 1998 and it all grew back. The runway is closed and few live there now due to the pollution. I'm sure those kids have way more problems than any of us if they're even still alive.

post-12899-0-39311300-1357630157_thumb.j

Edited by asknod (see edit history)
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If you can get your contemporary SMRs from service and let your doctor peruse them prior to writing the magic paper (and state he did),

you stand a lot better chance of putting your claim in equipoise for a BOTD decision.

ask,

I am glad you posted the part above in your reply.

IMO the BOD is one of the very best regs we have going for getting

claim issues granted.

With the reg for BOD - all a claimant has to do is get the danged evidence of record

into relative equipoise leaning towards their favor, even if just by a hair -

BAM - and SHAZAM, application of BOD . . .

No further need to keep jumping thru hoops and/or keep up the fight.

I can't seem to post enough on relative equipoise and the BOD reg.

I say utilize this reg at every chance - just be sure first, that the evidence

both for and against - is in fact within the criteria for relative equipoise.

I would also include the BOD reg with the evidence - even tho the VA peeps already

know the reg - including it in submissions just shows that the claimant ALSO knows the reg

and WHEN and HOW it is applicable.

Doesn't hurt to put the reminder right there at the decision makers finger tips

AS they are factoring in the evidence of record.

JMHO

Hope this helps a vet.

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Carlie, I agree on paper that 3.102 is a Godsend but I find in reality that even a totally bulletproof claim can go up on the rocks due to the most minor glitch. I've had Vets lose due to lack of continuity and many on credibility when all the evidence said otherwise. BOTD (or BOD) is often quoted as a reason when everything literally points like a compass to the north. The fact of the matter is that no claim is in the bag until it is. I cannot begin to count the heartbreak so many have suffered when insulted by these bozos (and denied.) For 13 years they denied I was in Vietnam and suddenly one day I was there. The evidence had been there all along but no one looked any further than my 214 which was devoid of any information on the subject.

Never depend on 3.102 as an underpinning to your claim. Never assume that will be the factor that tilts the scale in your favor. This is why I strongly advocate that Vets build a seamless claim with one eventuality-success. Always assume your 16 will jam, the M-26 will be a dud, and the PRC-25 will die. Always have a backup and redundancy. I have never had anyone lose who had two well-reasoned nexus letters. VA usually doesn't even mount a defense in these circumstances yet they are renowned for stating that "giving the benefit of the doubt to the Veteran, we find it is at least as likely as not...".

Breaching the walls of the Haas decision will require a doctor to go way past speculation and state that there is simply no other way that Tugger50 could have come by this. That's a tall order and one that will entail some excellent cites (plural). VA's propensity to denigrate internet articles is legend. He will need good, supportive medical treatises that eliminate any supposition or rank speculation. It has been done by a few and the wall is crumbling. Witness the fellow who won his Chloracne claim who never left the States. Evidence is king; lay testimony is marginally influential. If he had buddy letters from fellow shipmates with similar diseases from 3.309(e), he may hit a home run. Nevertheless, I 'd bet even money his win would say BOD!

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I believe the start of my claim was unusual. I filed with all the usual paperwork. My DD214 said "served in Vietnam". I had other issues and did not check the Agent Orange box, I was Blue Water and did not have any proof of my TAD in country.

About a month later I get a call from the Seattle RO. He says I see you served in Vietnam. I said yes and he said we need to get you up to the VAMC for an Agent Orange screening. So, I went to it. Mostly a question & answer session. He did list my other issues. They did a blood draw to confirm the AO claim for HCV.

I then submitted a 2141 claiming Agent Orange.

My SMR's finally showed up and they can clearly see where I got HCV from surgery at the Army Hosp. Maybe even from the shot guns. I did'nt even know I had HCV until a blood draw in 2006!

So I wait gathering evidence. I'm not counting on much for the AO claim. Maybe the BOD will weigh in my favor. Time will tell.

Thanks everyone for the feedback.

My deepest respects to all.

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Arlington, Wa? Shoot, we are almost cousins. I live in Gig Harbor. I'm 32-2 getting Vets SC for Hep. Most are now P&T ot TDIU. No affiliations with VSOs. Strictly a DIY guy. You can get a nexus free from Dr. Ben Cecil for the hep. Shoot. I used to deer hunt down in Verlot in the 70's-80s. Email me at asknod@gmail.com. I'll set you up with Dr.'s email and any other assets if you need them. HCV is a bitch to win short of documented transfusion/STDs/tattoos. I've had one Vet in Houston who sandbagged them with 76 pages of jetgun literature and three nexus letters supporting it. He had 2B and was in Korea 70-71. They ignored the jetgun stuff and denied by saying 6 cases of clap was willful misconduct. He CUE'd them in the NOD and they were stuck with the finding. He just got P&T in August. Winning a hep claim is getting easier but few occur at the VARO. I did but mine was via txfusion and I had a nice thru and thru in the leg to rebut them. That and 3a genotype which is indigenous to the Indochinese peninsula almost exclusively. Technique Tugger. You can find the assets. The HCV will be easier to win unless you can prove you arrived by World Airways at TSN in country and thence to the boat. There are a lot of ways to skin a cat. R&R meant going ashore to catch a flight to Vung Tau or Sydney. You sure didn't take the SS Minnow.

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ASKNOD says it like it is, men and women!

........I hope everyone here listens up to his posts.......as we are getting new members every day..... As VA continues to make extraordinary claims errors every day.

Shape your claim for the BVA, not for the clowns at the R0s.

Relative Equipoise means the evidence only has to be Equally for and Against the claim , I posted part of my my BOD BVA 2009 decision here, only because BVA stated it was “at least in Relative equipoise” instead of stating the claimant had provided a s--t load of probative and compelling evidence , which I hoped they would have done and then I wished BVA had revealed more of my evidence in the decision, as it sure would have helped others......

but as I have stated here many times over the last 10 ??? years

VA Kicks the statue of Blind Justice in the knee, so that she cannot properly hold and weigh the scales evenly ,in regards to disability claims, the scales that VA thinks they OWN.

Try to send in enough evidence to go beyond "for" the claim.

Sometimes, as in my experience, the most probative evidence I had, suddenly 'disappeared' from the C file.I found that I had met the MF. (the Mysterious force employed by the Veterans Administration)

Knowing that was the VA's MOs for many of my claims, to hide, loss or make vanish my best stuff, I made sure I sent enough strong evidence to stand alone ,so that it would not matter what disappeared (which VA finally acknowledged anyhow)

I think many of you have picked up on my more aggressive way of replying to some questions here lately.

I think I have become disturbed by a few claimants I know off the board who are awaiting a Miracle.......from the VA.

It is a waste of my time to deal with unreality.

Evidence wins claims..... wishing doesn't.

Listen to the interviews with James Cripps here at SVR, first CONUS and I just posted the Elgin AFB AO award. Re: what asknod means.

Yes he is correct Haas walls have been breached ,but only after lots of leg work on the claimants part.

I have talked with Cripps many times and maybe interviewed him here or maybe it was another radio station.

This vet took the “due diligence' point from the BVA case, that I made recently in a different post seriously.

There ARE a lot of ways to skin a cat and one of our recent SVR shows with Dr Bash, Jon and John ,

(I think Jon Brown said that too on the show) is true when a veteran is willing to go the whole 9 yards and manifest Due Diligence.

Tugger said

“Maybe the BOD will weigh in my favor. “

BOD is up to you to achieve.

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Hello All,

Berta and Carlie,,,, I could not agree more with the use of the Benefit of a Doubt (BOD) and what both of you have said. Asknod is on target.

I have made several post concerning the BOD and it is without question one of the Veterans most powerful laws. However it almost always is utilized in the BVA arena and very , VERY seldom even acknowledged in the RO level except to say it does not apply.

It is used by the RO to just ignore the evidence until remanded by the BVA or CAVC and the importance of it pointed out to the RO. Its like "Ohhhh you mean we do have to look at the Veterans evidence in equipoise". They know it.

I am also amazed at some veterans lack of evidence to support the BOD rule and why they think they should be awarded. It is all about evidence, that means ....buddy statements,,,,,,, Hard IMOs.......... Medical reports............. Scientific evidence............ Medical Rational....... Service records....... .

A claim is not going to be won on luck or without preparation. Even with the help of a lawyer , the Veteran has to prepare claim and make sure the table of evidence is there to be put into play. Remember , even the best lawyer cannot make it happen unless the Veteran can provide all the evidence. It is almost impossible for a Veteran to win if he or she does not get involved and hands on with their claim.

I would also like to say that taking advice here at Hadit is a team effort. Its a safety cushion to not try and Maverick a claim on methods that are not proven, but rather using the tools here of other Veterans that have been there and done that. Its all about cutting the time off of a claim without having to live in the Remand box or even worse the AMC hole.

I also believe that if a Veteran could have these tools of advice and the GREAT Archives we have here, we would not see such a HUGE backlog. My point here is as some of you have pointed out ...the claim could have been perfected better the first time around. We have so many veterans that have gotten either bad advice or bad representation that have lost valuable time with delays not necessary. If only they had found this place or one of the folks here to help.

I think the advice here to all Veterans is to try and do it right the first time with as much evidence as possible. Connecting all the dots. Closing the loopholes as best as you can.

If Carlie, Berta, John , Asknod, Kelly have pointed out, they all have been thru the process and each one including myself is saying the same thing. We all are hoping that another Veteran does not have to go thru what we have.

Tugger, I hope you can hang in there and to tell us soon a success story.

As always evidence is necessary to win coupled with an attitude of NEVER GIVE UP. God Bless, C.C.

Edited by Capt.Contaminate (see edit history)
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  • HadIt.com Elder

If Tugger's DD214 has "Served in Vietnam" on it then I think he will win his AO claim. My AO journey started about 14 years ago and I was really shocked when the AO exam showed I had problems. I am not shocked any more. The most important disease to get SC'ed for if you have it is DMII. It can lead to many other problems including heart problems,kidney, Liver and PN.

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  • HadIt.com Elder

Thanks Captain. I am 63 and feel it every morning when I finally wake up and try and get out of bed. Where are these golden years I read about? I read today in obits about a 57 year old Vietnam vet, and I could not figure out how he could be that young, but he was a Marine so maybe he was at an embassy. Two dead RVN vets in the obits today. Now I read the obits. I see people younger than me and people much older. The Addreall I took to stay awake is sort of driving me crazy as you can tell.

John

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  • Moderator

Tugger, you have gotten some of the very best advice available on the Net. ASK NOD and Berta are, well thy know the VA law inside and out.

I can add only this:

While having your evidence "accepted" is certainly good, it does not necessarily mean it will be probative or compelling. That is yet to be determined. The VA may well try to "refute" your evidence with evidence of their own in conflict with yours.

Since the stakes are high, you can likely expect the VA to do just that: try to refute your evidence. Unfortunately, the Va has more resources than you do, and 600 lawyers on staff whose job it is to make your lawyer look bad and his evidence "unpersuasive".

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