BVA–§1151-HCV Reasonably Foreseeable?

I always search BVA and CAVC decisions for medical validity and to see how the VA approaches these things. While reviewing this decision, I noticed, as did the VLJ, that a VA physician opined that the risk of acquiring an HCV infection via transfusion in 1982 was entirely foreseeable.

The VLJ analyzed the evidence and noted that HCV wasn’t identified or recognized until 1989. This was the difference between winning and losing this claim. Yes, I hear the chorus of naysayers. Sure, the Vet could have won this on appeal to the Court, but the fact remains that he shouldn’t have to resort to a higher tribunal to obtain justice. Physicians who set themselves up as knowledgeable, go-to specialists must be above reproach. This is very sloppy work for an expert. The fact is, we are seeing more and more of this in a rush to deny claims. Accepted practice dictates handing this off to a VHA employee who does nothing but opine. It is no surprise that virtually all of these “opinions” seem to come down in favor of the VA and against the Vet.

I wrote up a long treatise about another VA phyician who was asked to submit a “Independent Medical Opinion” (IMO) regarding the etiology of a Vet’s HCV. That chucklehead quoted all manner of incorrect medical procedures for identifying the hep using 1987 AIDS testing protocols. This is more of the same. The fact is, ladies and gentlemen, VA will use anything or anyone to deny your claim initially absent concrete proof presented by you. Do not expect them to collect this proof for you. In fact, expect them to use outdated protocols, inexact science and outright tomfoolery to deny you. Always examine a denial for several things. Among them, look for a dichotomy between accepted medical knowledge and when it was discovered.

Most importantly when denied, be sure to make sure VA addresses every possible risk you bring up. We are starting to see a plethora of denials based on one facet such as jetguns even though the Vet also claims other risks. VA will focus entirely on one risk to the exclusion of all others. There will be no discussion about these other risks and you will lose. VA is obligated to address all risks whether you bring them up or not. They rarely do this.

Here, where a Vet brings a truly viable claim to the table, the VA resorts to rounding up a pliant doctor who will say what he is paid to say. Fortunately the opinion blew up in their faces, but what if it had been couched in medicalese such that no one but another doctor could call bullshit on it? This gentleman was represented by the DAV and I have no confidence in their abilities to uncover what amounts to medical malpractice.

Veterans expect to be given a fair shake, but the evidence seems to come down more and more frequently proving otherwise. This decision exposes yet again the VA’s propensity to deny with no accountability. When exposed, the guilty party is not penalized. He/she can continue this practice for years aided and abetted by continued employment at the VA. In a civilian arena, this would be cause for remedial training or termination due to gross negligence. Witness:

In October 2009 a VA physician opined that the most likely 
cause of exposure Hepatitis C was the February 1982 
blood transfusion. She explained that Hepatitis C was
 commonly spread by blood transfusions prior to 1992. 
 Since then, a blood test has been developed to accurately 
screen the disease. The examiner opined that the Hepatitis 
C infection did not involve carelessness, negligence, lack 
of proper skill, error in judgment, or similar instance of 
fault on VA's part. She also opined that it was reasonably 
foreseeable. She did not provide further explanation for 
her opinions.

I hope Vets can take advantage of this adjudication for their own claims as it is a model of brevity and honesty. Sometimes the BVA gets it right.


About asknod

VA claims blogger
This entry was posted in BvA HCV decisions, Introduction-Read these first and tagged , , , , , . Bookmark the permalink.

3 Responses to BVA–§1151-HCV Reasonably Foreseeable?

  1. Robert G says:

    I am a victim of the same “deny, deny, deny.” mentality of the VA. However in my case I was victimized by a so called “VSO” The California Department of Veteran Affairs, Los Angeles CA. I was denied in 2001 because the CDVA refused to represent me with all due diligence as they are required. Today I have 4 very good “CUE” claims in limbo waiting the traveling dog and pony show. I tried to make the CDVA accountable for their negligence mal-practice on my case. I contacted everyone I could. My elected representatives, Bob Filner, President Bush, Govenor Terminator, State Senators. My inquires amounted to less than nothing. VAwatchdog told me that it’s “impossible” to sue or hold any VSO accountable for mal-practice. So where does a veteran go for relief and justice? In my case it made me pray harder and get over the bitterness. I developed an acute hatred of anyone who says they can represent a veteran without being held accountable. Since I joined this site I have come to a better understanding of the VA system and how veterans are treated. My Ex always told me “don’t get mad, get even”. I know now that anger and pain can be an impetus to solve this problem. Isn’t there power in numbers and unity anymore? The mind is willing but the body is not. My prayer is that this system will somehow get fixed. My old troop battle slogan was “no quarter asked-no quarter given”. WhooRahhh

  2. asknod says:

    There are not enough gigabytes of space on this site for me to publish every BVA decision where they blithely state “A careful search of the claimant’s SMRs from 1969 to 1973 do not reveal any complaints or treatment for HCV. In fact, nowhere is there any mention of any hepatic malady while in service.” The same can certainly be said about AO disorders. I came home after two years there coughing up blood and the USAF doctor told me I smoked too much. Always remember, if you are at Stage 3 in this disease process, it didn’t suddenly start in 2002 when they first diagnosed it. That’s another ploy we see frequently.

  3. Randy Nesbitt says:

    It is my opinion that the Department of Veteran Affairs is once again showcasing their ignorance in this decision. The same scenerio reared its’ ugly head when dealing early on with Agent Orange in that every claim was denied as so much of a hysterical attempt to collect comp from Uncle Sam for “normal” maladies due to advancing age. Once a large sector of the Vets had expired and they knew the payout was going to be smaller then they suddenly announce how gregarious they are going to be in awarding claims based on exposure. With the sudden realization that tens of thousands of vets were GIVEN this insidious disease through their own hands, albeit blindly due to no test being available at that time, they continue to practice the deny at all costs mentality which leaves many, including myself, with another battle to be fought.

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