When I spot a jetgun win at the BVA, I really dissect it from every different angle. They are still rare, but yield a plethora of valuable information for others. Sometimes something as minor as a physician’s note in the file, an absentminded remark by a VA examiner or an intuitive judge will be the dernière crie on the subject.  The decision below was an amalgam of several of these.

From the marijuana-free city ofMuskogee, we are treated to a win for Vetkind. The fact that he was represented by the DAV can be looked at as either a plaudit for them or a testimonial to one individual who has done his homework and impressed the VLJ. The man had a video conference with his wife at his side. This is a positive thing. It implies she stands by her man. I guess it could equally imply she was a conniving welfare cheat and wanted a shot at Monty’s Cookie Jar, but as you watch this develop, you will see my first supposition is more likely.

The Court has spoken on the private physician treating rule. They held that this opinion is to be given no more weight that anyone else’s- including the fractured reasoning of the VA examiner. This case partially contradicts that. His private doctor has been treating him for over 15 years and is well-acquainted with his illness. He has been the Vet’s caregiver to include a liver transplant in 2004. Having been around the block with him, the doctor’s observations about a risky lifestyle would be apparent after this amount of time. The lack of a “history” combined with little or nothing in the way of risk factors other than four sexual encounters and jetguns weighs heavily in his favor. The VA is prepared to poke a hole in this, but cannot find a purchase. The boy is simply as slick as a pig at the County fair contest. Examiner after examiner tries to inject doubt or lack of evidence in an attempt to create “negative evidence”-all to no avail.

With regard to hepatitis C risk factors, the Veteran has consistently denied IV drug use or the receipt of any blood transfusions prior to 1992.  The Veteran reported having had four sexual partners in his lifetime, none of which have been diagnosed with hepatitis C.  The Veteran is not a combat Veteran; he was not a military corpsman or medical worker; and his post-service occupation was as a postal worker, so there is no occupational exposure.  Finally, the Veteran denied having any tattoos or body piercing.  As noted, the Veteran contends that he contracted hepatitis C as a result of exposure due to the air gun used to inoculate the Veteran when he started active duty service.

Witness the fact that the Vet doesn’t prevaricate. He sticks with his contention that it was jetguns from start to finish. He doesn’t meander off target and mumble about sharing razors and toothbrushes. His story is monolithic and unchanging. Vets would benefit by taking notice of this. When you file, you will be asked (even though you have no medical training) to opine on the etiology of your disease. If you choose to contribute a theory, keep it the same and never vary. Don’t add to it later in hopes that the “spray and pray” technique will hit some resonant chord. Once you become equivocal your credibility is irreparably compromised. You will be accused of being a “poor historian”. You can also say you don’t have a clue, but that isn’t advised. They may say you don’t have a viable reason to attribute it to service.

Vets will take notice that in jetgun claims, the VA will fight tooth and nail to deny. This case is no exception.  The accepted wisdom in Caluza and Hickson was that you had to have a nexus letter. Later they started adding even more verbal baggage about having reviewed the service medical records. When that requirement started to become well-known, they moved the goalposts yet again and said we had to have a “probative” analysis that discussed the pros and cons of all the risks and why the one claimed was most likely the culprit to the exclusion of all others. This evolved yet again into a discussion in recent years about how “speculative” a nexus was or wasn’t. As of 2011, we have graduated to the point where arriving with a nexus from your private treating physician is almost as useful as tits on a boar hog.  They will still deploy their examiners in the “circle the wagons” plausible defense. I’m sure you’re familiar with that one-the 2004 FAST letter that said “Yeah. We let one slip in under the wire, but that’s it. There’s no proof jetguns do this.”

In an August 2007 VA examination, a VA examiner stated that transmission of hepatitis C with air gun injectors is possible in theory, but noted a lack of scientific evidence to document the transmission.  He then stated, in essence, that because the Veteran had no other risk factors for hepatitis C, he would be unable to give an opinion about the etiology of the Veteran’s hepatitis C without resorting to mere speculation.

So, after scratching their asses and picking their noses, they decided to renexus three years later:

Given the speculative nature of the August 2007 VA examiner’s opinion, the Veteran was afforded another VA examination in July 2010.  The July 2010 VA examiner reviewed the entirety of the Veteran’s record as well as research regarding the likelihood of hepatitis C transmission through an air gun.  The examiner noted that the Veteran did not have any of the other risk factors and that transmission of hepatitis C with an air gun is biologically plausible, however he opined that as there is no scientific evidence that a transmission of hepatitis C from an air gun has ever occurred, the Veteran’s hepatitis C is less likely than not causally or etiologically related to the Veteran’s service or the inoculations received therein. 

Lay statements submitted on the Veteran’s behalf attest to the fact that the Veteran did receive inoculations during service via an air gun.  The Board acknowledges the various statements in support provided by the Veteran’s fellow servicemen.  Each letter verifies that the Veteran did receive his inoculations by an air gun injection.  Although, the Board notes that none provide evidence that anyone else was infected with the hepatitis C virus as a result of the inoculations by air gun injection that they received.

The Board acknowledges that the Veteran also provided internet research to support his contention that he could have contracted hepatitis C from an air gun.  The information provided stated that there is scientific proof that hepatitis B can be contracted through the use of the air gun.  The July 2010 examiner responded to the information by noting that hepatitis B virus is heartier and more readily transmitted than hepatitis C and that while there is at least one reported case of hepatitis B being transmitted by an air gun injection, thus far, there have been no case reports of HCV being transmitted by an air gun transmission.

Mr. Muskogee here has a really well-reasoned nexus from no less than his doctor of 15 years and the VLJ sits up and takes notice. If Mr. M was a reprobate, the doctor would never go to the floor for him. Most doctors have high moral standards. Most doctors, mind you. The ones at the VA apparently can be suborned, but we won’t discuss that today. Of more import is the obvious re-examination of the evidence (rebuttal) by the July 2010 examiner that trots out the old “HBV is heartier that HCV” nonsense. Notice this surfaces after it goes up to D.C. when the Vet can no longer rebut it? If they believe you can get HCV with only one exposure to IVDU (with or without a shared needle), why is it suddenly unproven science that you could possibly pick it up from a jetgun that 47 others whom you first met three days ago recently used? The VA loves to bandy about the word “speculative” right up until the Vet employs it against them. At that point the argument reverts to the term “plausible but unproven”. Where is the scientific study that conclusively proves the transmission via IVDU 100% of the time by the admittedly “less hardy” HCV?  Who’s the fool, fool? I submit the whole process is speculative and the medical professional who can keep the straightest face comes out the most probative.

The Board notes that the record contains a positive nexus opinion, a negative nexus opinion and a speculative opinion.  In this regard the Board refers to the previously noted positive nexus provided in the April 2007 letter from the Veteran’s private treating physician which stated that the Veteran’s hepatitis C is as likely as not caused by the air gun injector, given the absence of any other risk factor; the negative nexus opinion provided by the July 2010 VA examiner stating that although a relationship is plausible, the Veteran’s hepatitis C is less likely than not causally or etiologically related to service, including the inoculations, because there is no scientific evidence that supports transmission of hepatitis C by air gun; and the speculative opinion provided by the August 2007 VA examiner.

So the score is:

1) Yep. It was the guns.

2) Nope. It’s plausible, but we don’t buy it.

And last but not least

3) Beats the shit out of me. It would be too speculative for me to say he got it in the service,  and I was paid well to say this.

The VLJ, S. L. Kennedy, deductively reasoned this one out as being a rocks/ paper/scissors decision. Throw out the wet paper and the dull scissors and you are left with a rock solid nexus. Game, set and match.

While it can be said that you are precluded from using these decisions in an effort to prove your case, you can plagiarize to your heart’s content from them. That’s why I post them.