BVA–New JetGun Win W/ 2 Nexi.

Here is a Lady Vet with her act together. She came armed and dangerous to this shindig. It had to go to the BVA to be won, but we expect that nowadays. The VLJ used some cutting edge logic to cut through the poor reasoning of the VA examiner. These paragraphs caught my eye:

The only other medical opinion on this question was that of the  November 2007 VA examiner.  She reviewed the claims file, noted  in-service hepatitis A and B diagnoses, and concluded that she  could not “make a determination without mere speculation” as to  the current hepatitis C was caused by service.  She noted that  there were no positive markers for non-A, non-B viral hepatitis  infection, that the Veteran had separate infection of hepatitis A  and hepatitis B, and that hepatitis A is a self limiting viral  infection and does not lead to hepatitis B.  The examiner  concluded that, although the risk factors for hepatitis B and C  are similar, hepatitis B does not convert into hepatitis C.   In weighing the above medical opinions, the Board notes that each  are flawed.  Drs.   Carrera and Frenette each erroneously noted that the Veteran was  diagnosed in service with non-A, non-B hepatitis.  However, it  appears to the Board from the context of their remarks that they  meant to indicate that diagnoses of hepatitis A or hepatitis B in  service could have been erroneous diagnoses of what was actually  hepatitis C.  The November 2007 VA examiner’s statement that  hepatitis B does not convert to hepatitis C is beside the point,  as there is no argument that such a “conversion” occurred, but,  rather, that the hepatitis B diagnosis was in fact an erroneous  diagnosis of what was actually hepatitis C.  Moreover, in Jones  v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before  the Board can rely on an examiner’s conclusion that an etiology  opinion would be speculative, the examiner must explain the basis  for such an opinion or the basis must otherwise be apparent in  the Board’s review of the evidence.  Id. at 390.  It must also be  clear that the physician has considered “all procurable and  assembled data.”  Id (citing Daves v. Nicholson, 21 Vet. App. 46  (2006)).  Finally, the physician must clearly identify precisely  what facts cannot be determined.  Id.  the November 2007 VA  examiner’s conclusion does not appear to meet these criteria, as  she did not indicate that she had considered the evidence  regarding jet gun injections or the possibility that the  hepatitis B diagnosis was an erroneous diagnosis of what was  actually hepatitis C.  In regard to the comment that there were  no markers, we are unable to determine whether there were markers  that were negative for non-A non-B or that there was an absence  of testing for markers.

She used the Nevada Office of Veterans Affairs (Reno). Seems like they are the go to people for VSOs judging by this.

About asknod

VA claims blogger
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