Here’s another one of those Nashville Cats who won. I couldn’t believe this. It’s enough to make you want to move to Nashville and file there. I had to look and see which VLJ had written a perfectly phrased Benefit of the Doubt argument that came down on the Vet’s side. This just doesn’t happen. Apparently, Acting Veterans Law Judge Tara L. Reynolds hasn’t gotten the briefing on how this works. In time, with plenty of good coaching, she’ll see the light and get with the program. Until then, I hope every one of you who has to go up on appeal gets this fine lady for a judge.
Listen to this prose. It’s like milk and honey without a tuba blaring at the end.
In order to resolve if his hepatitis C is related to service, the Veteran was afforded a VA examination in September 2009. Such an assessment is complex in nature and required a professional medical opinion. The VA examiner reviewed the claims file and the Veteran’s risk factors. His drug use (during service), tattoos (after service), sexual history (during service), and claimed exposure to blood (during service) were considered. The examiner stated that combat activity producing minor abrasions in the presence of a blood environment increases the Veteran’s chances of exposure (to hepatitis C). In addition, other factors, such as an unprotected sexual encounter, intranasal cocaine use, and tattoos can each serve as factors in transition. The examiner stated that the military combat exercise and the other aforementioned potential causes of exposure increase a probability of exposure.
The Board notes that the VA examiner basically included all reported risk factors as causes of the Veteran’s hepatitis C. Since the examiner did not indicate that one cause was the sole etiology of the Veteran’s diagnosis, the Board must accept that they all played a role. In addition, the Veteran must be afforded the benefit of the doubt. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for hepatitis C is warranted.
In my mind, a military “combat exercise” is not combat with its attendant exposure to blood. This judge is cognizant of all the facts and carefully avoids stepping over the Colvin ditch and making a decision medical in nature. The VA examiner(Rater +Coach) signed off on their version of all the possible etiologies but left the conclusion column blank. Yes. You read that right. They listed all the risks without quantifying them and then stated equivocally that any one of them (or all of them) might be responsible. What’s going on here? Is this guy some Senator’s son? Who does he know that will get him a bye from this Judge?
Most VLJs would remand the thing for an explanation instead of an RO shrug of the shoulders. There is no nexus, or to be more exact, there are four with no rationale. I notice she wasn’t as forgiving on the other claims when she denied them. With the large number of risks and some after service (tattoos), the VA examiner is somehow avoiding what normally involves 3 trees worth of paper- a long winded explanation of why the drug usage in service cannot be remunerated due to willful misconduct. Miraculously there is no discussion of it and cites to § 3.301. Now why is that? If you hold this decision up to the light there is so much right with it that it stinks. VA doesn’t operate like this. Neither does the BVA.
There’s more afoot here but I don’t have the C-file to figure it out. It’s one of the few times I’ve been stumped when reading a decision. Veterans occasionally get a screw up like this. Let’s call it an aberration rather than a mistake. I’m glad Johnny Nashville won. I wish we all could or that we at least get a fair shake. It so rare to see the BVA playing fair that it takes your breath away and you have to look for some ulterior motive. I say either the Vet is the VLJ’s sugar daddy boyfriend or he’s her father. Anyone have a better idea?