I had to search for a perfect example of this to illustrate the folly of filing a claim without a nexus. This Veteran could have, and most assuredly should have, won this claim. We won’t go into why his Service Officer from VFW let him get to court without it, nor why he was dissuaded from having a Travel Board hearing or a Videoconference one.
This case illustrates a train wreck in slow motion. The BVA summarizes all the evidence in Lawspeak and we watch helplessly as the fellow’s claim disintegrates in the bestHollywoodslow motion. The tattoo in question that is the precursor to the destruction probably did occur during service. To use a different recollection of events as the evidence to prove his testimony is unreliable is very flimsy. However, it does reveal how far the VA will go to find a chink in your armour.
The reader will notice also that the Vet had a viable risk factor despite the lack of a recorded tattoo. He was a combat engineer-as in Gee, let’s go build a road through a free-fire zone without any support. We can always call Superman with our Jimmy Olsen high-pitched whistle slash wristwatch. Combat engineers were part insane, part macho and very good shots in that “conflict”. They had to be in order to avoid becoming a Charles Darwin statistic.
The VA decided to can this with a VHA opinion. So much for an Independent Medical Opinion. The VHA examiner dutifully wrote a well-reasoned treatise on why this gentleman came down with HCV slightly later than a year after service. The incubation period was too long. The blood of wounded soldiers he came in contact with was free of HCV.
This was the positive evidence against his claim. Now, what wasn’t done to develop the claim that might have proved his contentions? You will notice that in spite of being mentioned, there was no testing done to ascertain if the Veteran was seropositive for Hep A or B. If he was exposed to B, he very well might have contracted C at the same time. That was one of the theories my doctor explored in his nexus for me. B and C can only be transmitted via direct blood exposure. Hep. A is a food born illness only. Often, what wasn’t explored as a risk is as telling as what was. For instance, there’s no mention of the jetgun until appeal. Too late in the Board’s eyes. Besides the Vet has no medical training, so this seems to be a last ditch defense volunteered by none other that Mr. Veteran’s untrained legal representative. How about deciding not to have a hearing? Buddy statements confirming the tattoo was applied in service? All of these were missed or overlooked. We won’t go into the Monday morning Quarterback mode and analyze the could ofs, would ofs and should ofs. If we’re reading this now we only hope our Vet friend appealed up to the Court. It’s too late to introduce new evidence, but never too late to claim failure to assist.
These two paragraphs speak volumes to the loss:
This VHA medical opinion appears to have been based on a thorough review of the record, including the Veteran’s comprehensive treatment records, and a thoughtful analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. The Board therefore finds the July 2010 VHA opinion to be probative as to the issue of medical nexus.
Also of record as to the issue of medical nexus is the opinion of the September 2006 VA examiner. Specifically, the VA examiner stated that “the Veteran’s hepatitis C infection is as likely as not related to previous history of hepatitis in 1971, tattoo left upper arm in 1968.” Critically, the VA examiner provided no rationale for this conclusion and also failed to provide an opinion concerning the relationship, if any, between the Veteran’s hepatitis and his in-service blood exposure. See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. Accordingly,the Board finds the September 2006 VA opinion to be of little probative value.
It is obvious from the above that the Vet had won this and someone higher up overrode the rater. How else could there be a positive finding of SC?
As we all know, or should, HCV travels on its own schedule and manifests itself very differently from one individual to another. Witness that I just lost a friend May 11th eight years my junior to this. He had it when he came out of service in 1988 and was granted a 10% rating by VA. When he started to slide downhill in 2006, he filed for an increase. After two years of denials, he finally came here and we got him lined out on a game plan. He was awarded 180% in early 2009 but it was too late to enjoy. He went from Stage 0 to complete portal hypertension and cirrhosis in 24 years. I’m still relatively vertical after 40 years of this and am Stage 3.5. Johnny was no Mormon, but he wasn’t a lush. The important thing in retrospect here is that confounded nexus or the lack of an independent one.
Take this to heart when you file. Get the groundwork done and a good foundation laid prior to building a claim on it. If your chances of winning are 15%, then having all the Hickson elements sewn up before filing will bring the odds up considerably. Make it so, Number One.