Is it just us, or do other Vets who read the BVA’s decisions get a feeling of deja vu after reading about, say,  two or three denials? We like to scour these documents in search of meaningful and useful information that can aid in the defense of our brothers’ and sisters’ claims.This is an ongoing process as we have discovered that no sooner do we discover a new wrinkle or viable defense, the VA is onto it like white on rice and erects yet a taller barrier to service connection. Please observe this case closely. There are several things we are going to point out that will prevent you, the Vet, from a guaranteed loss. You may not win at the RO (AOJ) level, but the ammo we provide here will certainly stand you in good stead at the BVA and Court level.

It is unfortunate that the Vet we are analyzing here is defended by a VSO who is definitely not at the helm of the NCC-1701. As such, this starship is headed for the wormhole known as denial. It is even sadder because a Vet is expecting a lot more from his SO than a disinterested hitchhiker oblivious to his surroundings. There is no evidence of the SO’s fingerprints anywhere here. One could rightfully characterize this as a VSO “ghost” defense. The American Legion might as well have been in the Neutral Zone because they had no input or judicial advice that would have mitigated for a remand. Just the fact that this gentleman had the clap inVietnamalone was a major risk factor. That, combined with the knowledge that he was in a theater known for its incredibly high incidences of hepatitis A and B (and now C), were never even presented as evidence in his favor. We all know the old saw about jetguns and FAST letters, but this too was remarkably absent.

The VA court system is fond of trotting out the Maxson v. Gober (Fed. Cir. 2000) decision which holds that a disease or injury that goes untreated or has no medically documented history for a lengthy period, mitigates against its being service connected. While Maxson has many instances of being applicable in disease processes such as arthritis, heart disease and the like, it has absolutely no place in hepatitis C litigation. HCV has been repeatedly described by even the VA as being a “stealth” disease that does not manifest itself for 25 to 35 years. Yet in decision after decision, the reader will find regular references to Maxson as if it were Gospel. Vets would do well to take note of this now before reading it in their denial from the BVA. Your VSO, lawyer or you, if you are defending yourself pro se, must address it in your substantive appeal and remove it from consideration before it is used against you. Defending your claim should never be a reactionary process to adverse evidence used against you to your detriment. This is one reason we harp continuously about obtaining your service medical records prior to filing to avoid being blindsided. Find and address the perceived negatives and use them to your advantage.

When you file your claim it should be a well-reasoned, logical document with an A=B, B=C and therefore, A=C format. You cannot legislate on the fly. I often hear the argument expressed by Vets we’ve helped that if their first theory or effort fails, they can always come back with a new claim and say” See? Here. Look at this. It must have been this”. Justice doesn’t work that way. Every time you fail to make your case with the VA, any new attempt is a re-open of the old claim. Resubmitting old evidence is prohibited insofar as being the prime reason for reopening. Each attempt must present new and material evidence that a fair minded person would see is new. The laws for reopening a claim now are much more liberal than they were 20 years ago.

We’ll cherry pick a few paragraphs from this decision and it will leave you scratching your head as to why this poor fellow ended up on the short end of the compensation stick:

 ISSUES

Entitlement to service connection for hepatitis B and hepatitis  C, to include as secondary to service-connected diabetes mellitus and herbicide exposure. 

This is what provokes the thought that this gentleman is “Boldly Going Nowhere”. This is the essence of his claim! This is what he is betting his money on. The AMLEG Service Officer has to know this is not going anywhere but the circular file. You cannot hang your hep on DM2 and Agent Orange. Everyone in the VSO world knows this. Or do they? It has been attempted tens of thousands of times with not one scintilla of success.

The record shows that the Veteran’s reported risk factors for  hepatitis C includes carrying wounded and bloodied soldiers and  high risk sexual practices.  VBA Letter 211B (98-110), November  30, 1998.  The Veteran’s service medical records show that in  July 1969 and August 1969, he experienced burning pain on  urination.  In May 1970, he suffered fever, chills, headaches,  and nausea.  He had been ill for two days and was unable to keep anything in his stomach.  He was taking the malaria pill.  There were no significant findings.  Later that month, he had urethral discharge, and was diagnosed with gonococci.

Really? Wow, nothing gets past them pecker checkers. And here, gentle reader, is the smoking gun, the Holy Grail of service connection was right there in his med recs. All he needed now was the Nexus letter.

On May 2000 VA examination, the Veteran reported that his  hepatitis C began in Vietnam.  He denied risk factors including  intravenous drug abuse, prostitute exposure, or blood  transfusions.

It really makes one contemplate the possibility than venereal disease can be transmitted by simply sitting on a contaminated toilet.  Additionally, aspiring claimants should note that the Vet has now put an M.D. after his name and diagnosed the onset of his HCV as beginning in RVN. That’s against the law in 48 states.CaliforniaandHawaiiare exempt. Should you the Vet be tempted to buy a toy stethoscope and play Dr. Kildare, keep in mind that one can only report the symptoms one can see, hear, smell, taste and determine by touch. If your skin is yellow (jaundiced), that would qualify. Testifying that the doctor told  one he had hep is hearsay and treated as such.

In October 2001, a fellow serviceman submitted a statement  recollecting that the Veteran was hospitalized towards the end of his tour of Vietnam with hepatitis at the 71stMedivacHospital in Pleiku.

More Doctors. This time they’re buddies. A useful statement would have said that he was hospitalized,his skin looked like orange juice, he had projectile vomit that would make Linda Blair proud and slept a lot.

On October 2001 VA examination, the Veteran reported that while in Vietnam he had some exposure to prostitutes…

When your story changes and you start recollecting differently from what you recollected earlier, VA will decide that you are no longer a credible historian and suddenly all your “recollections” are compromised and worthless.

The examiner stated that the Veteran’s diabetes did not cause his hepatitis B or C, or his cirrhosis, because diabetes did not cause those conditions.  The Veteran was subsequently service connected for diabetes mellitus secondary to herbicide exposure.

This is what we call the “Nick, nack, paddy whack, give the dog a bone” moment. VA has now given Mr. Vet a 20% rating for DM2 and a $200+/mo. check to see if he’ll fade in the night and go away gently. They have also explained medically how it is impossible to contract HCV from DM2. It doesn’t appear to have sunk in.

On April 2002 VA examination, the Veteran’s past medical history was summarized as hepatitis C, status post liver transplant, with recurrent abnormal liver function tests, and rule out current hepatitis C infection.  It was not clear how he was infected with hepatitis C.

Here VA is hoping that no one will notice the 800 lb. gorilla with HCV sitting on the living room sofa. Vets must realize that if they fail to point to a risk and say “I got it from Suzi Wong. I had a hundred missions over her and was only shot down once. That’s when it happened.”, then VA sure isn’t going to help you figure this out.

On May 2007 VA examination, the Veteran reported that the current effect of medication on his hepatitis was limited.  He reported that he realized he had hepatitis C when the cause of his cirrhosis was being investigated in 2000.  He reported that until 2000 he drank about five to six bottles of beer on a daily basis.  He was taking Sirolimus for his liver disease without significant side effects.  He denied any risk factors for contracting hepatitis.  He was status post TIPS surgery, with no more ascites.  After physically examining the Veteran and reviewing recent laboratory testing, the diagnosis was cirrhosis, status post liver transplant. 

Nothing like giving VA more ammo to deny you. Incidentally, this also bolsters the Catholic Church’s claims concerning Immaculate Conception. If one can get pregnant without having sex, it follows that one could get hep without any risk factors.

In an April 2008 addendum opinion to the May 2007 VA examination, the examiner reviewed the discrepancy in diagnosis between the private medical records indicating the cause of cirrhosis to be the hepatitis C virus, and the VA antibody test in May 2000 that was negative for hepatitis C virus.  After review of the claims file,  the examiner determined that there must have been a laboratory error on the part of the VA, and that the correct diagnosis had always been hepatitis C.  The examiner also concluded that it was not likely that the Veteran’s in-service gonococoal infection caused or aggravated his cirrhosis.  The examiner explained that while gonorrhea could cause hepatitis or perihepatitis, such a condition was very rare, especially in a male patient.  That being said, it was unlikely that the gonnorhea caused cirrhosis.

I’m at a loss to decide which is more tragic; the VA’s inability to correctly diagnose this poor guy or the VA examiner donning the M.D.’s white robe and opining that the clap isn’t responsible for the the hep. One will notice that the cirrhosis has now evolved into a separate entity, for all intents and purposes, and also is divorced from the hep.

In August 2008, a different VA examiner reviewed the file and  stated that there was no possibility that the Veteran’s in- service gonorrhea infection caused or aggravated his current  hepatitis C.  The examiner explained that there was only a remote relationship between hepatitis C and gonorrhea, which was the possibility that both could be spread through sexual relations.  It was, however, very rare that hepatitis C was spread through sexual relations.

I’ll bet the Veteran was measurably relieved to get that important point settled. So we now have two separate non- doctors who have weighed in with their opinions. Number one is blowing bubbles about gonorrhea causing cirrhosis which the Vet never claimed. The second expert proceeds to inform him that there’s absolutely no connection between gonorrhea and HCV. VA has more non-theories in the air than an experienced juggler at a Ringling Bros. circus. Noticeably, not one of these attempts to address his misguided theory about DM2. It’s just as well because this is going nowhere fast.

On February 2010 VA examination, the Veteran reported no  significant risk factors for his hepatitis, though the examiner  noted that the Veteran had been treated for various sexually  transmitted diseases in service.  That being so, the examiner  stated that contraction of hepatitis from sexual practices was  very rare and therefore not likely the cause of his current hepatitis.

So there you have it, Johnny. The birds and the bees get it on together with the stork dude, but this doesn’t cause hepatitis. We don’t know where you got it from and we really don’t want to know. We know you didn’t get it in service because clap doesn’t cause hep and that’s the important point. Now, was there anything else we can do for you? Aspirin? A cab? Liver #3?

The first clinical evidence of record of a diagnosis of hepatitis C is dated in May 1998, approximately 28 years after the Veteran’s separation from service.  In view of the lengthy period without treatment, there is no evidence of a continuity of treatment, and that weighs heavily against the claim.  Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000).  Thus, absent any indication that the Veteran was diagnosed with hepatitis C while in service, and because his hepatitis C was first diagnosed many years after service and has not been related to his service, the Board finds that service connection for hepatitis C is not warranted on a direct basis.

Pretty slippery, huh? Gosh, buddy. You didn’t go to a doctor 24 years ago and get tested for Hep c. Oh, yeah. We forgot. There was no testing for it until 92. So, you didn’t go in 92 and that was like a way long time ago, dude. Like, you didn’t go for 8 years after the test was available. Dude, you are like soooo screwed. What were you thinking?

And last but not least, the final word:

The examination reports show that although there was a risk factor with regard to risky sexual practices, as stated by the Veteran and documented in his service records in the form of urinary infections, the likelihood that those practices would result in the transmission of hepatitis C were found to be very slim and unlikely.  The VA examiner did not find that it was at least as likely as not that hepatitis C was related to the Veteran’s service.

The Oracle at Delphi has now spoken. It’s official. Game, set and match. AMLEG and the Vet have presented no evidence in their defense. In the absence of a nexus letter from the Veteran’s doctor, the VA has thoughtfully supplied not one, but three. In addition, the VA has hung this man out to dry for 10 years and blithely characterized Gonorrhea as nothing more than a “urinary infection”!  AMLEG has likewise foolishly encouraged him to fight the good fight and has offered to hold his hat and coat. The BVA  remanded this several times to develop more info., so it cannot be said that they didn’t give him every opportunity to be heard. This gives new meaning to the phrase”You have the right to remain stupid.”

Unfortunately, there isn’t much here to appeal other than the Maxson v. Gober misogynist abortion. To win, you have to have a plan. You have to have assets (not financial ones). Your claim has to have merit. But most importantly, you cannot involve anyone with it who does not have a vested interest in winning. Depending on them for support can be fatal. This case could easily have been won, but failed for lack of effort, knowledge and discipline. Don’t let yours suffer the same fate.

This Vet filed in the underwater city of New Orleans (Nemoland). If you know this guy or a Service Officer at the NO AMLEG, find him and tell him what we discussed here. He can win. He just needs a coach because his SO sure was a few dilithium crystals short of what Scotty considers adequate to go anywhere-boldly or not.

Here is the link to the decision:

http://www4.va.gov/vetapp10/files4/1030693.tx