Jones v. Shinseki examines what to do when, after numerous tries, the VA examiners are stymied as to the cause of your disease or whether it is service-related. This is usually summed up somewhere in your denial. It will say that after much construing, prognosticating, opining and interpreting, the poor fellows are unable (or unwilling) to grant your claim under the umbrella of any attempt being speculative. Invoking the word has been successful in the past. Here, Mr. Michael H. Jones, the appellant, appeals the practice of denial based on being unable to figure it out.

Funny how this problem rarely arises where Hep. is concerned.  Seems the Boys at the VARO have it all figured out before you get there and simply fill in the blanks with your name, rank and airspeed.  Jones set forth a rationale that supports this denial via speculation. They used McLendon v. Nicholson (2006) to hang their hat on but it wasn’t completely on point for this argument:

 Of particular significance to the matters at hand, the McLendon Court stated that “when a nexus between a current disability and an in-service event is ‘indicated,’ there must be a medical opinion that provides some  nonspeculative determination as to the  degree of likelihood  that a disability was caused by an in-service disease or incident to constitute sufficient medical evidence on which the Board can render a decision with regard to nexus.”  Id. at 85 (emphasis added).  The Court also noted that medical evidence that is too speculative to establish nexus is also insufficient to establish a lack of nexus; McLendon v. Nicholson (2006) (emphasis mine).

Mr. Jones’ defense put forth a different proposition. His major contention was that the VA should not prevail simply because they could not make an informed nexus statement. He advocated for as many attempts as necessary until the jury wasn’t deadlocked and hung.

The appellant raises a new question, however, with which this Court deals today.  How should the Court treat a situation in which an examiner’s opinion is unclear or silent as to whether all information that reasonably bears on a medical analysis has been gathered or the reasoning behind the inconclusive opinion is absent?  Stated another way, how thoroughly must an examiner develop and describe the information gathered and explain the essential medical reasoning before the Board may rely on his or her representation that an opinion cannot be rendered “without resort to mere speculation”?  This phrase must not become a mantra that short circuits the careful consideration to which each claimant’s case is entitled. Jones supra. (emphasis mine).

This is what makes this case so interesting to Vets seeking SC for Hep. We all know when the jetgun theory is laid on the table, the examiners sharpen their pencils and start doodling the word “speculation” and “plausible”.  They might as well be interchangeable terms.

This passage is what disturbs us as litigants:

While VA has a duty to assist the veteran by providing a medical examination in certain situations, that duty does not extend to requiring a VA physician to render an opinion beyond what may reasonably be concluded from the procurable medical evidence.  Notwithstanding the duty to assist, it remains the claimant’s responsibility to submit evidence to support his claim.   See 38 U.S.C. § 5107(a); see also Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009) (interpreting section 5107 and stating that the duty to assist requires VA to bear the “primary responsibility of obtaining the evidence it reasonably can to substantiate a veteran’s claim for benefits”). Jones supra

So the Court has simply put off for another day any cutting edge precedence which might be useful to our situation.  His remand will be based on poor wording and an incomplete verbal assassination.  Chances are the VASEC will feel emboldened enough to deny yet again. They’ll give him the tinnitus. That’s a throwaway issue for 10%. Oddly, the hearing, even if Mike won, will be worth 0% until he’s deaf as a post in one ear and well on his way in the other.  But any decision the BVA renders de novo will be non-speculative this time – I guarantee it. As for the SMC K (erectile disfunction), my guess is it’ll go to an IMO at QTC and he’ll get a good nexus. One thing is for certain. This gentleman is going to be eligible for Social Security, if he isn’t already, years before he sees a meaningful resolution to all this.

http://www.uscourts.cavc.gov/documents/Jones_07-3060_published_opinion_3-25-2010.pdf

And here is the beginning of the fallout from this non-decision. The BVA is already citing it before it has been resolved.  Say all after Jones, over?

http://www.va.gov/vetapp11/Files1/1107350.txt

In this case, the September 2007 VA examiner’s opinion was of the type specifically noted by the Court in Jones, where the record yielded multiple possible etiologies with none more likely than not the cause of the Veteran’s hepatitis.  Moreover, the Board finds it significant that the IV drug use and 1993 blood transfusion were both post-service events.

The Board notes that the Veteran emphasized in both his September 2005 statement, and at his May 2010 hearing, that he only used clean needles for his IV drug use.  In other words, he did not share these needles with anyone else.  However, he did not provide any evidence how that would affect his case, as IV drug use itself is the VA recognized risk factor without reference to shared needles.  Moreover, the September 2007 VA examiner was presumed to be aware of this fact as it was documented in the September 2005 statement that was presumably reviewed along with the other evidence contained in the VA claims folder.

This is where the Vet has to be on his toes. Simply stating that you didn’t share your hardware doesn’t cut it now. Remember about 40 or 50 posts ago where I admonished the reader to be careful about VA’s propensity to come up with new ways to deny? I rest my case. We will spend another year of two before something like this finally gets a hearing before a Court judge or Judges.  Seeing it here now is useful so you can close that avenue of denial before you get there. Ex parte justice has a propensity for getting away from you. Trying to repair an error is time-consuming and requires a lot of paper and postage. Once the BVA has spoken, the only avenue is a NOA, not a NOD. More time is wasted and resolution is pushed out several more years when this occurs. Knowing full well, that what you do not include in your claim will be seized upon as the causative factor, its almost axiomatic that you become more anally retentive than they are. I know that’s almost impossible like attaining the speed of light, but you will have to learn how.

Our teaching moment is obvious. Simply stating a lay fact does not influence a VA examiner’s assessment of risk in this. You have to be specific and explain why to them- as in: “Because I didn’t share needles, the risk of contracting hepatitis from this vector was avoided. And to keep the record straight, I did it once or twice and never did it to the point of addiction. It was isolated and infrequent and it had no deleterious effects on me.” Then shut your friggin’ pie hole. Better yet. Write it all down and avoid having to do it in front of a judge unless you can honestly look him in the eye and convey your credibility and sincerity.