BVA– MAKING THE HAJJ TO ST. PETE


As  near as I can tell there must be a sweet spot in the Force around Tampa that lends itself to successful claims. Here’s another one. Capt. Courageous has one private doctor’s nexus on board saying he got it from IVDU. Great. I thought private Docs   wrote the winner. Not. He files in 07 and finally get a VA C&P. Again, no dice. This time its because he can’t prove the transfusion.

Now, in spite of the AmLeg representation, he manages to get a five star private gastrodoc’s nexus saying conclusively that it was the knock down, drag out fight where he got kicked in the face following his Tequila-chugging contest. The good captain has been visiting Veterans’ help sites or has friends at the VA coaching him. The 2008 VA Dog and pony doctor makes a crucial error. He can see the private doc’s nasty nexus and so he figures he’ll do the “too speculative to figure it out” ploy. This backfires when the VLJ throws them both out.

Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert’s qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). 

The Board is inclined to place less probative value on the January 2002 private medical opinion and the September 2008 VA medical opinion. The January 2002 private physician noted that the Veteran had a history of intravenous drug abuse and multiple blood transfusions but opined that the probable mode of hepatitis C infection was intravenous drug use. The Board finds that the January 2002 medical opinion is not supported by adequate rationale, as the physician did not explain why he thought that the probable mode of hepatitis C was intravenous drug use rather than a blood transfusion. If the examiner does not provide a rationale for the opinion, this weighs against the probative value of the opinion. Sklar v. Brown, 5 Vet. App. 140 (1993).

The September 2008 VA examiner stated that he was unable to attribute the Veteran’s hepatitis C to events that occurred during service without resorting to speculation because although the Veteran reported receiving a transfusion during his first surgery after being assaulted in service, there were no operative reports to review from Jackson Memorial Hospital. Because the VA examiner was unable to provide any opinion on the etiology of the Veteran’s hepatitis C without resorting to speculation, that examination amounts to nonevidence, neither for nor against the Veteran’s claim because service connection may not be based on speculation or remote possibility. Bloom v. West, 12 Vet. App. 185 (1999) (medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty); 38 C.F.R. § 3.102 (reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). Additionally, the Board finds that in rendering the opinion, the September 2008 VA examiner failed to consider the Veteran’s lay statements regarding in-service exposure to his disease from a blood transfusion and instead stated that there were no operative reports to review from Jackson Memorial Hospital. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion). 

Capt. Pete scores big on his nexus because he did the homework and got it just right. Private gastrodoc read his SMRs,  confirmed he he did, read his chicken bones and then said this is why it’s SC.

The Board instead assigns greater weight to the April 2011 private medical opinion relating the Veteran’s hepatitis C to his period of active service. In placing greater weight on the April 2011 medical opinion, the Board notes that in rendering the opinion, the Veteran’s treating private physician explained that the Veteran’s injury in service had required a blood transfusion, which was the most likely source of the hepatitis C exposure. The Board therefore finds that the opinion is probative and persuasive based on the physician’s familiarity with the Veteran’s medical history, adequate rationale, and consideration of the Veteran’s lay statements in regards to his disability. 

The GC must be apoplectic that this one got away from them. They truly had it in the bag 2-1,  only to see the DQ flag on the last turn. Its a great teaching tool about nexus DOs and DON”Ts, isn’t it? The law says there shall be no deference given to a Vet’s personal doctor’s nexus. That’s often referred to the Treating Physician Rule. Here, as you can see, the judge ignored it and focused on the fact that Cappy’s doc was far more familiar with the case and willing to go out on that limb about the transfusion.  Result ? Vet 1-vA 0. One small step for Vets…

Pop the top on an  icy IPA and get out the Wheat Thins and Gouda.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files4/1135812.txt

About asknod

VA claims blogger
This entry was posted in BvA HCV decisions, Nexus Information, Tips and Tricks and tagged , , , , , , . Bookmark the permalink.

1 Response to BVA– MAKING THE HAJJ TO ST. PETE

  1. Kiedove says:

    1964–“he was not diagnosed with hepatitis C”–Well, how could he have been since it was not known. Why can’t they just add for clarity in these rulings so it doesn’t look as if the veteran’s should have known what the science hadn’t recognized for what, another 26 years?

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