Here’s a well-done production by a Pro Se Vet. You can figure this out easily. There is no REPRESENTATION line in there for the attorney of VSO. The judge, like most there at the BVA, is no spring chicken.
Vito Clemente is a seasoned judge and one who has had to remand poorly prepared or outrightly flawed jurisprudence much in the past. Quite a bit judging from this remand decision. His 12 little dwarves who assist him have delved deeply into the meanings and nuances of what HBcAv and HBsAg actually represent. One problem. Colvin v. Derwinski prevents Vito from ruling in the Vet’s favor. He has to send it back to the VARO chowderheads and, get this, order them to perform no less than 19 separate actions. If in the course of those actions, the VARO should find in the Vet’s favor then they should figure out a rating and send it back up to be reviewed. Rarely would we see such detailed “if…, then…” in a remand instruction unless old Vito had been given many the bum’s rush by the RO in the past.
Back in the days, there were no Australian antigen tests. If there were, the test tubes weren’t available where we were. If you were puke sick, not hungry and you had yellow eyes, you had hepatitis. If you ate a lot of vitamin pills and laid low for a week or ten days and pulled out, you probably had HAV. If you were toast for 6 weeks and came out looking like you’d been drug through a knothole backwards? Probably HBV. As there was no way of testing for HCV, it didn’t make any difference. It was very dirty in Southeast Asia. It still is. Scientists have all but dubbed the entire Indochinese peninsula the Hepatitis Capital of the World. People there have genuine immunity to this in a lot of cases. We should be looking there for the cure.
In the early 70’s the Australian Antigen test became widely available and an active case of HBV would easily be discernible. A negative finding meant HAV. Of course it could equally be said that it might have been Steatohepatitis or Autoimmune Hep. There is no test for AIH other than a liver biopsy that they send out to the AFIP (Armed Forces Institute of Pathology).
In the early 90’s Scientists discovered how to interpret HBV surface antigens, core antibodies, etc. to ascertain if you ever had it and if you still had it. This Vet still had it and had not developed an antibody to combat it. That is what they are talking about in the remand section.
Something this pro se Vet is really good at is the English language and English composition. His introduction manages to encompass HAV and HBV as an either/or possibility. This is good because his HAV tests are positive, too, showing prior infection as well as immunity. VA isn’t going to give him doodly squat for HAV, but it shows he was in the vicinity of a lot of hepatitis which is positive evidence. The fact that he’s HBV active is a big plus for SC. The reader will notice he has listed HCV as well in a different request. This is good, too. He’s throwing a lot of spaghetti on the wall in hopes some will stick.
What the Vet needs here is his own nexus from a friendly doctor instead of Dr. V.A. Demento. Only a VA doctor could rationalize that the Vet couldn’t possibly have contracted HCV at the same time he contracted HBV because there was no test for it in 1974. Yet this is what the bozo signed his John Hancock to:
Additionally, it appears that the Veteran was diagnosed with hepatitis C in approximately July 2006. The May 2008 VA examiner has expressed the view that the Veteran may have been infected with hepatitis B and hepatitis C concurrently. He expressed the view that it is less likely than not that the Veteran contracted hepatitis C during service, but the reasoning seems limited to the fact that there was no known test for hepatitis C at that time(in approximately 1974), so that during those years it would be diagnosed as non-A non-B hepatitis.
Vito did not come over on the Nina, the Pinta or the Santa Maria, nor was he born last night. He’s not going to be taken in by this kind of shenanigan. Issuing a remand much, much longer than the discussion phase of a decision indicates that the VLJ has little confidence in the RO examiner’s ability to stay on track. Much like an ADHD-afflicted adult, Vito is going to take this poor man to task and enumerate each and every thing he wants done and the order in which to do it. Bravo Vito.