Imagine you filed a claim in 84 for Hep and they granted it. Non specific, good old generic Hep. Not A or B specifically. Certainly not C.

Fast forward to 2002. A new test and a new diagnosis of HCV. The ratings “expert” decides to deny this based on the fact that its a new claim, not a claim for an increase of the SC hep. This, gentlemen, is an ominous decision that may come to haunt more of our claims in the future. When VA starts getting picky and letting examiners make doctor diagnoses we have a serious problem. When they then hire the guy back after he gets his Crackerjacks Certificate and let him opine on a prior ruling, it becomes suspect. The examiner cum doctor now has to rationalize his defective decision. Instead of recusing himself, he decides to compound his crime with another defective decision. Only a doctor or an ARNP can provide a nexus letter that will survive the light of day. What, then, to make of a GS-5 deciding that the hep you had in 83 was B and nothing more?  Absent a test for it (C), this becomes a post hoc rationalization on his part. Watch out for this kind of circular logic. VA is fond of employing it to lethal effect on your claim.

This Vet was lucky. The VLJ saw through the ruse and ruled in the Vet’s favor. It could just as easily gone the other way absent an insightful judge.

http://www4.va.gov/vetapp10/files1/1008604.txt

This is part of the decision. It makes your hair crawl to think the “examiner” is now an M.D. and still comes to the misguided conclusion that the Vet couldn’t have gotten both Hep B and C at the same time. So much for inductive logic.

 The Veteran had another VA examination in March 2006 by the  same examiner, now an M.D.  The examiner noted that blood  tests were positive for Hepatitis B surface antibody,  indicating prior infection with Hepatitis B, since resolved.   Moreover, a liver biopsy confirmed the presence of Hepatitis  C, Type 1A.  The examiner noted a test in September 1971 that  was HAA positive, explaining that that test was used to  determine infection with Hepatitis B in that era.  The  examiner stated that Hepatitis B could not morph into  Hepatitis C, and further elaborated that Hepatitis B is a  double-stranded DNA virus, while Hepatitis C is a single- stranded RNA virus.  In addition, the examiner said there was  no evidence in the medical records to support the Veteran’s  contentions that he had a blood transfusion during service,  so the examiner could not determine the date of onset of  Hepatitis C without resort to mere speculation.  Although he  mentioned the Veteran’s contention that he was exposed to a  wounded comrade’s blood, the examiner did not address that  incident, if true, as a possible source of Hepatitis C.  The  examiner noted that the modes of transmission of Hepatitis B  and Hepatitis C are very similar, but did not render an  opinion as to whether the source of the Veteran’s Hepatitis B  contracted in service could have also been the source of his  Hepatitis C.

May, 2002 to March 2010. Two months shy of 8 years to win his claim. My daddy once said there was no difference between trees and corn, but  you had to be patient because trees take a little longer. In the context of VA Law, think trees and you won’t be disappointed.

P.S. Look at the Code of Federal Regulations § (Section) they are quoting here.

CONCLUSION OF LAW  Resolving all reasonable doubt in favor of the Veteran,  Hepatitis C was incurred during active service.  38 U.S.C.A.  §§ 101, 1101, 1110, 5103A, 5107(b) (West 2002 & Supp. 2009);  38 C.F.R. §§ 3.102, 3.303 (2009)

They insinuate that it is solely a benefit of the doubt grant and the evidence is in equipoise (§ 3.102). But look right after that and one sees § 3.303. Now, §3.303 deals strictly with chronic disease in service and proof of same later in life. That’s a completely different animal in the VA zoo.:

b) Chronicity and continuity. With chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.

This is really why he won. But why try to hide or disguise it? It’s well published Law and has been Code for a very long time. Is it that VA doesn’t want HCV positive claimants to know this a viable path to a grant?