Just when you think you have all the answers and the best or safest way to tackle a hep. claim, along comes a BVA decision that makes you sit up and take notice. Granted this has no precedence and cannot be cited by other Vets, but the information about the inner workings and the thought processes of VA examiners is extremely revealing.
Witness this gentleman from sunny, westernFlorida. He’s being repped by the Florida Dept. of Vet affairs. They are a reputable, no-nonsense bunch of state employees who help Vets obtain SC. Makes sense. It keeps them off the State’s welfare roles. Definitely a win-win for the Vet and the state.
He had some other baggage that put a wrinkle in this story. He smoked hash and drank booze and got caught while in the service.. Well, there you go. Risk factor and willful misconduct. How you can get Hep from the business end of a hash pipe or the mouth of a beer bottle is obvious to the VA. Because he arrived without his own nexus, VA felt sorry for him and decided to provide him one courtesy of their very own VA medical personnel. The ARNP, in January of 2006 opined that it was simply impossible to speculate on whether it was from being a medic (big risk), smoking hash and swilling beer (medium risk) or his post service drug addiction( major risk). That was January. In March she had a change of heart and opined that the etiology was less likely than not the 1 ½ years of being a medic or the UCMJ beer bong infraction, No, the smart money was now on the fact that he had a twenty year history of IVDU after service and that was more likely than less likely the cause. Now, stay with her on this. Here’s the unvarnished rationale:
She explained that the Veteran’s in-service diagnosis of infectious hepatitis was mostly likely hepatitis A as evidenced by symptoms of abdominal pain, jaundice, and an inability to digest food. Supporting documentation consisted of an April 1973 treatment note, in which the Veteran denied drug use, thus making it more likely that he contracted hepatitis A, not hepatitis C while in service.
VA examiners are real Dick Tracys. Sherlock Holmes would feel like a mental midget next to these sleuths. He denied using drugs which automatically ruled out Hep C! Which begs the question of what exactly she was smoking to arrive at that conclusion. Keep an eye on these April, 1973 treatment notes. We haven’t heard the last of them.
In November 09 on appeal, the Board remanded for another VA exam- this time for any possibility of secondary service connection. Oddly enough, they asked the same ARNP to do this…
On this occasion she noted the Veteran’s risk factors of a tattoo prior to service, blood exposure and shared razors during service, and IV drug use after service. Consequently, the examiner was unable to resolve the issue of whether hepatitis C was due to or a result of infectious hepatitis without resorting to mere speculation. Her only rationale was that the etiology of hepatitis C could not be isolated to one specific cause as the Veteran had multiple risk factors for the disease.
The Board was beginning to feel confused now. Here the RO had three shots at coming up with an etiology for the HCV and they couldn’t commit on two out of three. In addition, VA’s highly-trained ARNP “examiner” is somehow trying to graft the HCV onto the HAV. So the Board called in the Hexpert…
For further medical comment on this issue, the Board requested a VHA medical expert opinion in April 2010 from a hepatologist. The Board received the expert medical opinion in September 2010. After reviewing the claims folder, the hepatologist concluded that it was at least as likely as not that the Veteran’s service-connected infectious hepatitis was associated with an acute hepatitis C infection and caused his current chronic hepatitis C infection. In discussing the rationale of the opinion, the hepatologist noted that the infectious hepatitis of April 1973 became chronic, i.e. there was evidence of persistent abnormality in his liver enzymes (“abnormal laboratory exam, an elevated SGOT of 148″) a year later in August 1974. He also noted that the Hepatitis A virus does not cause a chronic hepatitis infection. In addition, the Veteran was diagnosed with drug abuse in September 1973, admitting to smoking hash and drinking alcohol.
The hepatologist went on to explain that, regardless of the Veteran’s report of lack of exposure to needlesticks or intravenous drug abuse, it was his opinion that the acutehepatitis infection in April 1973 was at least as likely as not acute hepatitis C and that the subsequent natural history would be the development of a chronic hepatitis C infection in most affected individuals.
Now, the Board summed up the positive and the negative to do the benefit of the doubt dance. Yes, they do that at the Board. You may never see it at the RO, but that doesn’t mean anything. Their mission is to bag ’em and tag ’em and let the Board sort it out.
The positive evidence of record consists primarily ofthe VHA medical opinion, from a board-certified hepatologist, which reflects a full review of all medical evidence of record, including the prior VA opinions, and bases his opinion on professional and personal experience, as well as the traditional risk factors for hepatitis C. On the other hand, the negative evidence of record consists of a January 2006 addendum in which a VAnurse practitioner was unable to provide a definitive opinion. However, in a March 2006 opinion, the same VA medical professional determined that the Veteran’s service-connected infectious hepatitis did not play a significant role in the development of the current hepatitis C. She articulated a credible opinion regarding etiology, and supported that opinion with clinical rationale and citation to the Veteran’s medical history.
What no one (besides the Hexpert) is admitting here is the glaring fact that this Vet had a AST (SGOT) of 148 a year after his “ acute, resolved HAV infection”. If the AST was cooking at 148 you can bet the ALT was about 170. The Board does mention it in passing, but it is not addressed in the positive-negative powwow. This is the smoking gun. How is it the ARNP, assigned this job not once, no, not twice, but three times, managed to overlook this little tidbit. It was right there in his SMRs. VA examiners are paid very handsomely for their expertise. That’s all they do. They didn’t run down to the VAMC and grab her out of the gastroenterology clinic. She was on staff at the RO. This is the St. Petersburg VARO. The smart money says she still works there and is currently denying HCVets on a fairly regular basis.
Finally, in the last paragraph, we find the real reason the Vet won. It turns out a Board certified hepatologist is a full house whereas an ARNP is two pair.
In this regard, the Board acknowledges that neither the negative March 2006 VA opinion nor the September 2010 positive VHA opinion referenced medical literature to support the medical conclusions contained therein or to reject any opposing conclusion but that both opinions were based upon a complete and thorough review of the claims folder. However, the March 2006 negative VA opinion was rendered by an advanced registered nurse practitioner, and the September 2010 positive VHA opinion was rendered by a doctor who specializes in gastroenterology and hepatology (indeed the Chief of the Gastroenterology and Hepatology Department at a medical facility).
This further illustrates the “white wall”. The gastrodoc didn’t say the ARNP twit was all wrong. He didn’t ask how she could come to the horribly misguided conclusion that the HAV was acute. An AST of 148 a year later is not just a smoking gun- its a smoking 155mm Howitzer. He made his own case without disparaging hers. They should revoke her license to opine, but they won’t. She works for VA and does what she’s told, even if it conflicts with the truth.
We at AskNod do not subscribe to conspiracy theories about how VA seems intent on denying our claims with the flimsiest of evidence. We do not produce complicated plots that require hours to explain. We don’t have to when evidence like this surfaces. We do not believe this constitutes a coincidence. VA personnel are employed to do this for a living, not a side job. This is all they do. We, as Vets, would like to hear the VA’s tortured explanation for why they suffer this 70% error rate in ratings.
Here’s the link to the BVA decision. It really wasn’t even close in spite of how the VLJ characterized it.