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 In fact, expect them to use outdated protocols, inexact science and outright tomfoolery to deny you.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.