When you reach the appeal stage of your claim and have an opportunity to submit your Form 9, you will be accorded a space on the form to rebut (VAspeak) why you disagree with your denial. If you claim a jetgun risk, you will need this. Not that it can’t be won, mind you. It just requires some finesse.

I was looking at a claim up on appeal to the BVA recently. I was struck by some of the logic employed and how it warps and bends. I will get to this in a moment and show you how to use their logic against them to write a proper statement on your Form 9 before they use this to your detriment.  Anticipate it and use it to your advantage.

Consider this and then you can pick through it at your leisure to see numerous examples of it throughout the decision:

http://www.va.gov/vetapp11/files1/1101080.txt

I will copy and paste a small portion of a paragraph and illustrate the defective logic employed. First, note the time of service. This is important when gauging the age of the disease and the context of the claim plus risk factors, claimed or not.

The Veteran served on active duty from March 1963 to March 1965  and from August 1965 to March 1969.   

From the hep C Analysis:

Hepatitis C

The Veteran has alleged that he has developed hepatitis C as a result of his military service. Specifically, the Veteran has  alleged that he was exposed to bloody linens and towels as a  launderer aboard the USS Repose and as a result, contracted  hepatitis C. Service treatment records are void of any complaints or diagnosis  of hepatitis C. A service treatment record dated in November 1964 shows that the Veteran was diagnosed with urethritis, acute, due to gonococcue (sic). The Veteran presented at sick call with complaints of urethral  discharge of two days duration.  The Veteran admitted to sexual exposure in France.

The Vet has claimed only the bloody linens risk. He has SMRs that show a STD was contracted in service. VA is required to look at all theories of a claim, not just the one claimed  The STD is a major risk for HCV, but the Vet needs a nexus letter to say that. 

A September 2001 VA treatment record shows that the Veteran was seen for a physical to re-establish care.  The Veteran indicated  that his ex-wife had hepatitis C and he asked to be checked for  that condition.  An October 2001 addendum shows that the Veteran  tested positive for the virus that caused hepatitis C.  The  Veteran was referred to the liver clinic.    A December 2001 VA treatment record shows that the Veteran was  referred for evaluation of his hepatitis C.  His viral risk  factors include sexual promiscuity in years past, IV drug use,  blood transfusions, and tattoos.  The Veteran admitted to  drinking 1 to 2 pints of whiskey per day for 6 or more years, he  quit 17 years ago.  He also indicated that he used IV heroin in  the late 1960’s.  The Veteran was assessed as having probable  chronic hepatitis C with multiple risk factors.

Here VA has announced that an STD is a risk factor. Mr. Vet is brutally honest to a fault about the ex-wife.. This should be a good indicator that his testimony is not only competent but also credible. This is a very important concept in VA law. Remember it later in this denial . He has also admitted to IVDU in the late 60s which presumably dates the drugs after service. He has filed for comp.- probably in 9/01when he went to VAMC and met his MOPH representative who will be his legal help. Help!

A January 2004 VA examination report shows that the Veteran  reported current treatment with pegylated interferon weekly  injections and epoetin injections which he just started about 3  weeks ago.  The Veteran reported a history of significant alcohol  use in the past but no alcohol since 1983.  He does not smoke  cigarettes.  He has smoked marijuana in the past occasionally.   His liver biopsy revealed that he had grade 3 changes.  There  were no other causes of liver injury on his liver biopsy other  than hepatitis C.  He was then started by GI on therapy for his  hepatitis C.  He is asymptomatic as far as chronic liver disease.   There are no extrahepatic manifestations of hepatitis C.  He has  abnormal transaminases.  Again, the liver biopsy performed in  March 2002 revealed significant liver disease.  The examiner  indicated that he was asked to furnish an opinion about the  relationship between the current HCV infection and confirmed or  supported risk factors.  The only risk factor that he confirms is basically that he worked in the ship’s laundry on a hospital ship  and was exposed continuously to bloody towels, drapes, and  sheets.  They wore no protection in those days to prevent what  was then unknown as hepatitis C.  He was not using IV drugs.  He  was not sexually promiscuous, although he did visit houses of  prostitution from time to time.  The examiner stated that he  believed that there was a significant chance that the Veteran’s  current hepatitis C infection was related to exposure to bloody  drapes, towels, and sheets.  This is known to be a high risk  factor in these days, but in those days, during the Vietnam War,  hepatitis C was an unknown entity, and no protection was really  worn to prevent any infection.  Therefore, I believe that his  current hepatitis C is related to that particular risk factor.   This is not speculation or conjecture.  He did work with bloody  linens and that is indeed an exposure factor.

This is not a treatment record. It is a C&P exam.  You will notice  the biopsy results reveal this is not a new infection. He never said what the dates of the marriage to Mrs. Ex-HCV were but the VA will make that point moot soon. The record reveals he is a responder and is clear of the infection but then proceeds to say his AST/ ALT (SGOT/SGPT) are elevated. The BVA cannot have it both ways. Either you are healed and the liver is all happy inside again or… there is significant, long term damage that the VHA is not copping to. Nevertheless, at the end of the paragraph, the VA examiner says Yep! It happened in the service.  Looks pretty stinky, dude. He won, right?  Not so fast. The VA supervisor read it and probably blew Coca cola through his nose all over the decision. Which brings us 3 months further to the next paragraph. The above was  January 2004  so the claim was two years and 3 months old and still at the VARO…

The January 2004 VA examiner provided an addendum opinion in  March 2004.  The examiner stated that the most common risk factors for contracting hepatitis C are intravenous drug use and  blood or blood product transfusions before 1992.  (1) IV drug  abuse-60-80% of all IV drug users have hepatitis C infection  because they share needles (2) blood transfusions-blood banks  did not test the blood supply for hepatitis C before 1992 (3)  sexual promiscuity-high risk sexual behavior, especially having  multiple sexual partners, is associated with and (sic) increased risk  of getting hepatitis C (4) hepatitis C infected ex-wife- hepatitis C is not easily spread through sexual intercourse.  The  examiner indicated that the risk factors are listed in order of  highest to lowest risk of infection.

So. Mr. VA Examiner has been “re-educated” on his duty to be impartial and look at all risk factors . The prognosis has changed to the IVDU being the most likely culprit. I would have bet that they’d pin it on the woman. I still think like a dinosaur and can’t get my head wrapped around political correctness. Notice also how sexual promiscuity/high risk sexual activities has been listed as a very high probability of disease vector but in the next phrase its “Naw, he didn’t get it from the unprotected sex with his infected ex-wife all those years. Its way too hard to transmit that way”.

Now, there is a hiatus of 5 years. I surmise it has something to do with waiting for a Travel Board hearing and docketing of the appeal. Knowing how far behind VA is, that would be about right.  Now watch closely as the VA employs one of their most lethal tactics- denigrating your evidence because it’s not in the records.  Ignore the fact that handling bloody linens would never be in your SMRs, the VA nonetheless uses this as conclusive proof that it didn’t happen…

A March 2009 VA examination report shows that the examiner  reviewed the Veteran’s claims file.  The examiner noted that  there were no documented instances of the Veteran handling bloody  linens while he was in the military.  The Veteran’s documented  viral risk factors include IV drug use, blood transfusions,  tattoos, and sexual promiscuity.  The examiner noted that in  January 2004, Dr. R.K. stated that the Veteran was not using IV  drugs and was not sexually promiscuous while he was in the military.  In December 2007, T.M., NP stated that the Veteran did  say that he had a history of IV drug use.  The examiner indicated  that the hepatitis C virus is transmitted mainly by contact with  blood and blood byproducts.  Sharing of contaminated needles  among IV drug abusers is the most common mode of transmission.   Using a needle to inject recreational drugs, even once, is a risk  factor for hepatitis C.  It was the opinion of the March 2009 VA  examiner that it is not as likely as not that any hepatitis C had  its onset during the Veteran’s military service or is otherwise  medically related to the service.

All the “nexi” in this claim are provided by VHA doctors, not private ones. How is it anyone can overlook the man’s clap in 1964? By tiptoeing by this the VA can now focus on the risk most often employed to deny Vets. Note the December 2007   medical record by Nurse Practitioner T.P. alleging IVDU. What isn’t stated? The chronology of when he engaged in IVDU is absent. This is an attempt to compromise his credibility to testify. The Vet denied IVDU use in service and nothing has changed that would contradict his assertion. Nevertheless, it has morphed into much more now. The claim, for all intents and purposes, has now been denied and it is simply a matter of   publishing it.  The new VA Examiner has gone to the Wall and seen the Light. In VAspeak, he’s been “re-educated”. It’s IVDU alright, but now it’s after service not during. That’s an important distinction. How, you ask, can he possibly know? Ah, Glasshoppah. Watch and you will learn these VA tlicks. Notice also this is the Vet’s second C&P.

A November 2009 VA examination report shows that the examiner  reviewed the Veteran’s claims file.  The examiner opined that the  Veteran put himself at risk for contracting hepatitis C when he  got tattoos and used IV drugs.  The fact that the Veteran worked  in the laundry of a hospital ship, in a war zone, is verified.   The examiner explained that the hepatitis C virus is transmitted  mainly by contact with blood and blood byproducts.  Sharing of  contaminated needles among IV drug users is the most common mode  of transmission.  The use of contaminated needles from tattooing  is also a mode of transmission. It is as likely as not that the  hepatitis C could have been caused by anyone (sic) of these risk factors.  It would be pure speculation to attempt to determine  which risk factor likely caused the hepatitis.

Finally. An honest assessment. After considerable review, and this one being the fourth in a continuing saga, the Vet now has another risk factor acknowledged- the tattoos. This throws a monkey wrench into it you say? Benefit of the Doubt?   “Not exactly” as they say in the  Avis commercial. Armed with nothing more than rank speculation and  an examiner unwilling to deny, they retreat and regroup for a new “impartial” judgement.

Two more months transpire and then TA-DA. An addendum is born (#5) and added:

A January 2010 addendum to the November 2009 examination report  states that it is the opinion of the examiner that the IV drug  use is more likely than not the cause of the Veteran’s hepatitis  C.  It is not likely that the hepatitis C had its onset during  military service.  The medical literature states that the most  common mode of transmission is IV drug use and needle sharing.

This is priceless. Let’s keep changing the reason. We at the VA can do this in our official capacity as triers of fact. If you attempted to advance this many diferent theories, they would say your credibility was shot. As in Liar! Liar!. Pants on fire!.  Hell, if its any consolation, I wouldn’t believe you either. So why is the VA accorded a by on this? The Vet’s list of risk factors for contracting this in service tilts the table in favor of the Benefit of the Doubt rule. We have tattoos, documented proof of  unprotected sex with prostitutes, jetguns (strangely absent) and working in a hospital ship’s laundry  which is an exorbitant risk in its own right yet there is no meaningful discussion of these.

It doesn’t end there. Opinion #6:

A June 2010 VA examination report shows that the examiner  reviewed the Veteran’s claims file as well as the January 2004 VA  examination, the March 2004 addendum opinion, the March 2009  addendum opinion, and the November 2009 opinion.   

The examiner diagnosed the Veteran with a history of hepatitis C  virus, treated with interferon and erythropoietin, now in  remission, and opined that the Veteran’s former hepatitis C was  less likely as not caused by or a result of his service in the  ship’s laundry on a hospital ship.  It was noted that the  Veteran’s recent laboratory tests indicated normal hepatic  function and no evidence of hepatitis C antibody, thus, medical  treatment with interferon and erythropoietin effectively  eliminated the hepatitis C infection, and it is now in remission. The examiner provided a thorough rationale for his opinion.   Hepatitis C virus is transmitted by exposure to the blood of an  infected person through contact with mucous membranes or breaks  in the skin (including cuts, accidental needle sticks, and sexual  contact), blood transfusion, and IV drug use involving use of  shared needles.  Medical history reviewed does not indicate an  occupational exposure to hepatitis C virus while in service-that  is,although the Veteran may have handled bloody linens, intact  skin is a barrier to infection, thus preventing actual exposure.   While it is possible that there may have been some incidental  occupational exposure in service through minor skin breaks or  abrasions while handling bloody linens, the medical history also  indicates potential sexual exposure and IV drug use.  In the  United States, IV drug use is the most frequent and likely means  of acquiring hepatitis C virus infection.  Thus, the medical examiner concurs with the findings of the GI consultant who  concluded multiple risk factors, as well as previous compensation  examiners who noted such multiple factors and were unable to make  a conclusion regarding the causal factor.  Given that the history shows risk taking behavior (illegal drug use resulting in  discharge from the service, and heavy alcohol use), potential  occupational exposure (undocumented) sexual contact resulting in  venereal disease, and IV drug use, it is impossible to state that  the Veteran’s service in a hospital ship’s laundry alone caused  or resulted in the previous hepatitis C infection.

You will notice that in spite of the elevated LFTs, the man was healed and walks among us today upright. Where are the tattoos? They have mysteriously disappeared as a risk and are no longer examined as a causative factor. I grant they briefly gloss over the sexual exposure, but again no mention of the dirty dick disease in France. Do you see the pattern here yet?  It’s like the old shell game with 3 walnuts and a pea. Keep your eye on the VA Examiner Ladies and Gentleman. Sleight of hand is their forte and disappearing risk factors are their specialty. The examiner will take you further afield and start quoting statistics about how one’s biggest risk factor for contracting HCV in the US is IVDU. Wait. The Vet was in the Naaa-vyyy, dude. He got the clap in France, dude. He got the prostate cancer he’s claiming from AO in Vietnam, dude. He went to Australia for his R&R, dude. We will assume he got his tattoo abroad, too. But mostly, he worked in a Hospital ship’s laundry ! So what does all this have to do with IVDU in theU.S.? Ah, yes indeed, Glasshopper! The magic time machine reveals he got this just about 5 minutes after he stepped off-base in Long Beach,California- as a civilian. To combat this, reverse logic is essential:

it would be impossible to state that the Veteran’s service in a hospital ship’s laundry with concurrent exposure to bloody linens didn’t cause or result in extensive liver damage evidenced by current high LFTS.

Here’s that sleight of hand trick. This examiner finally (and subtly) inserts the fact that the USS Repose is a hospital ship. Hello? McFly? What better place to pick up a nasty bug like hep? Notice this tidbit was mentioned (and used) as the basis for initially granting the claim by the January 2004 examiner!  Our erstwhile  Vet would have fared better if he’d enunciated  the fact that the USS Repose was a hospital ship at the beginning of his claim so it was on the record.

I want you to read this paragraph carefully for what it does and doesn’t say:

The June 2010 examiner noted that the Veteran’s medical history  reviewed does not indicate an occupational exposure to hepatitis  C virus while in service-that is, although the Veteran may have handled bloody linens, intact skin is a barrier to infection, thus preventing actual exposure.  The board has carefully  reviewed the Veteran’s service treatment records and notes that they were void of complaints of cuts, scrapes, or other skin  injuries while in service.

Okay, Johnny Vet. You had your hand up first. What’s the problem here? Yep. What do you call that thingamajiggy that they used to poke a hole in that intact skin? Right. A jetgun. And we all know what potential for germs that had on it. So, the Vet handled bloody linens and never rubbed or scratched his nose when it itched. He probably never scratched or cut his hands on anything because its not in his medrecs. (again-it’s what’s not in the records) His contact with the French madame du noir is uncorroborated even though he came down with the clap. The tattoo seems to be extraneous info at this point. And last, but not least, we have a report that he admitted IVDU after service, but that is absent and after only one mention it became the salient cause. Remember that VA has to look at all risks? What about the jetgun risk? I never saw it mentioned anywhere. Additionally, we have the tired excuse that the medrecs are silent for cuts, scrapes and other skin injuries. A serviceman would be laughed out of sickbay if he arrived with a small cut  on his finger. VA started using this ploy recently to deny claims and its becoming well-known up at the Court. What? You shared razors? Hmmm. Nope. It’s not in the records. You have an active imagination, son.

The final summary is A=IVDU and B= No nexus. You lose. Now, if the fellow’s legal help had coached him a little bit on this and he’d obtained a nexus from an independent source that couldn’t be impeached or coerced into changing their story, the Vet could have won this in spite of his “imperial entanglements” with drugs. If VA honestly believed he’d gotten this during service from IVDU, they would have played the “willful misconduct” card.   And how can they assume the Vet had no cuts or abrasions on his hands all the times he was handling bloody linens? What if he had cut himself shaving and it wasn’t quite scabbed over when he came on shift? This decision amply illustrates VA’s habit of resorting to its latest ploy of conjectural logic.

Now you can see the way these things metamorphose right before your eyes. Facts are introduced and promptly whisked away to be replaced with other extraneous information until the poor reader (not to mention the Vet) can’t follow the plot. When reassembled and put under the microscope, it paints a picture of bait and switch. It also implies that not everyone in VAland is on the same page either and they have to be gently prompted (or admonished) to write it again correctly until it follows the approved policy.

It follows that the Vet must head off these assaults by pointing out the  RO’s mistakes. By using reverse logic and pointing out the failure to mention a theory, you  eviscerate the defense’s arguments. You have to do it before it gets to the BVA on appeal. You can’t let all those examiners get their two cents in without your rebuttal. Admittedly, a lot of these “VA examinations” occurred after the case was docketed and that can be problematic, but if the Vet had listed a litany of risks including the jetguns, it would head off this insane “intact skin” hogwash. If you do have to take it up to the Court on appeal, the intact skin theory would get a really good laugh and the Judge would eat them alive. It may be too late for this guy unless he can get the Court to vacate on some technicality. The Reasons and Bases for this decision has so many holes in it he should have no problems. If he succeeds he could then run out and get a nexus for the remanded decision. It would have been so much easier had he obtained one in the first place, but that is why we started this forum…