Veterans would do well to analyze this decision and realize the argument is specious. The BVA and it is companion RO have gone to great lengths to bandy words about in such a way as to semantically hide the truth.

Here is the unvarnished truth. The Vet has a long history of being in the military. Granted, it is not continuous but the timeline indicates he’s been associated with the system off and on over thirty years. While that in itself is not a harbinger of infection, let’s look at the facts. He has tested positive for the virus. He has it. There can be no parsing of what the meaning of “infection” is. I suppose the VA could characterize this as being a little bit pregnant, but it’s not expected to blossom into full-blown birth. This is pure conjecture and a medical conclusion on the part of the Board. That’s a Bozo no-no and has been since Mr. Colvin brought the matter up at the Court in 1991.

The fact that there is a 0% for HCV in DC 7354 shows that the VA has contemplated the need for a rating where the symptoms do not rise to the level of a compensable rating. This is for a reason. You could conceivably be “cured” of HCV via IFN treatment where your symptoms do not rise to the level of monetary compensation. Therefore logic dictates that a person who has been diagnosed as a carrier, regardless of ulterior symptoms, is infected in the truest sense of the word. It also stands to reason that the disease could manifest itself later to a compensable degree. If the Veteran did not pursue a claim now, he’d have to do it later. We have seen that the Maxson v. Gober (1999) decision weighs heavily against this approach. The longer you wait, the more inclined VA is to ascribe your problem to intercurrent causes.

This is from the decision:

  Service treatment records and a VA treatment record indicate the presence of hepatitis C in the Veteran’s blood. Service treatment records dated from the early 1990s indicate that the Veteran had tested positive for the hepatitis C antibody. Moreover, in a February 2009 VA treatment record, which also served as a letter to the Veteran, it is stated that a recent blood test was positive for the hepatitis C antibody. The letter also indicated that the Veteran had an active hepatitis C infection. 

Of more concern is the fact that the VLJ refuses to consider testing positive for HCV as being synonymous with having the disease. If the American Red Cross will not accept your blood because you test positive for the bug, it can safely be said that you can transmit it. If you can, then you have it and have the potential to suffer from it at some   time in the future. This is an important distinction that the Board member never addressed.

What may now ensue is a future claim filing when the disease suddenly goes active. Does the VA then grant SC? Does all of the prior evidence come into play or do they erect the old “new and material evidence” standard of 38 CFR §3.156(a) barrier and demand you “reprove” your contentions? This is fraught with danger and any Vet who fails to obtain the 0% now cannot then claim a secondary illness as a residual of the HCV. This may be PCT or some other disease known to be associated with hepatitis. It also may be needed in the event of the successful completion of IFN and disease processes secondary to that treatment

I find it unfortunate that VA has done this because it will incur a lot of hard work later on for this gentleman. It would cost VA absolutely nothing monetarily to grant SC. Keep this in mind if you find yourself in a similar situation. Throwing in the towel early on is not advised. It may seem like a futile 0% endeavor now but may be smart money invested in the long run.

Another analogy that should be considered is the one related to hearing. This is where VA stands tall. They are frequently in the habit of assigning a 0% rating to hearing loss rationalizing it as being less than debilitating. The fact is the hearing issue is not going to improve for the most part. Tinnitus similarly is not going to magically resolve itself. Where is there a remarkable difference as to whether you “have” a hearing disability if it’s not bad enough to warrant compensation? The important thing is to get a rating even if it is 0% to begin your baseline towards a rating in the future. Waiting to buy the fire extinguisher for the kitchen fire is foolish. For the VA to use this rationalization of a denial is disingenuous at best and criminal at worst. Don’t fall for it. It will make excellent precedence at the CAVC if you go there. You can even have your fifteen minutes of Andy Warhol fame, too.

From our prestigious Religion-challenged Regional Office in Salt Lick City, meet Mr. Brigham Young’s  ancestor:

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files5/1144862.txt