This is a great decision. It’s not a defining moment in Solomon-like judicial arbritration but it is refreshing to see a VLJ with an open mind. So many act like sheeple and fail to do their homework on these. When handed them, they do a peremptory once-over and sign them. You can always see the ones that demonstrate a grasp of the law and a refusal to blindly punch the ticket.
The record contains a number of medical opinions regarding the etiology of the Veteran’s hepatitis C. First, the Veteran’s treating physician, a hepatitis specialist, submitted opinions dated in October 2001 and May 2003 which suggest a possible nexus between the Veteran’s duties as a medical corpsman and his current hepatitis C. Unfortunately, such opinions do not indicate knowledge of the Veteran’s other high risk activities (i.e., IV drug use during and after military service). Thus, this opinion is of limited to no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the relevant inquiry when assessing the probative value of a medical opinion is whether the opinion reflects application of medical principles to an accurate and complete medical history).
Here’s Nieves-Rodriguez: Nieves-Rodriguez v. Peake. This is just the beginning.
Also of record is a May 2001 VA medical opinion which discusses both the Veteran’s in-service IV drug use and his exposure to blood products while serving as a medic. The examiner opined that hepatitis C is “as likely as not caused by his activities during his military tour of duty.” Unfortunately, the VA examiner did not specify which activit(ies), IV drug use and/or medical corpsman, may have “caused” hepatitis C. Such distinction is important because, as previously discussed, no compensation shall be paid if the disability is a result of the person’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303.
There’s a minor error here. 38 USC § 1110 below is the correct statute for this but the regulation quoted is wrong. The correct one is 38 CFR § 3.301.
For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs.
Next we have the nexus from anyone with a M.D. after their name who was on call for this. These are always slanted one way and this one was no different. Surprise, surprise, surprise.
A May 2004 VA opinion indicates that the Veteran’s hepatitis C “is less than likely due to military duty, as he was a corpsman exposed to blood products,” that “[i]t is more likely than not that hepatitis C was induced by his use of IV drugs,” and that “one cannot completely rule out that he was not exposed to hepatitis C while on active duty as a corpsman.” The Board found these statements unclear and ultimately conflicting; thus, it requested a new medical opinion in March 2008. The new opinion, dated in December 2008, acknowledges that blood exposure and IV drug use are both “possible” causes of the Veteran’s hepatitis C. The reviewing physician concluded, however, that “it is not possible to determine the cause of . . . [the Veteran’s] . . . hepatitis C without invoking conjecture or speculation.” The December 2008 VA opinion was provided by a physician board-certified in cardiology and internal medicine; there is no indication that he had any background or training in hepatology.
In sheer frustration, the VLJ, Robert E. Sullivan, sent out for a real nexus opinion in the form of a Independent Medical Opinion (IMO) . Here, they did just that and threw the rest out. As we all know, no one can definitively opine as to the absolute cause of this infection with 100% certainty. What you can do is assign a percent of probability verbally as to the possibility it is service connected or attributable to intercurrent causes following service. That decision is actually much easier to arrive at. As the risk factors in service far outweigh those afterwards, the focus should be there. With that in mind, the argument becomes one of weighing just the service risks. They balance out and that is why this comes down in the Vet’s favor.
Noting that all of the above opinions were either based on an incomplete factual history, did not provide an answer to the relevant question(s) on appeal, or were from a physician of the wrong medical specialty, the Board, in January 2011, requested a medical opinion from a gastroenterologist who specializes in hepatology pursuant to its authority under Part 20 of Title 38 of the Code of Federal Regulations. See 38 C.F.R. § 20.901 (2010) (stating that the Board may obtain a medical opinion from an appropriate VHA health care professional on medical questions involved in the consideration of an appeal when such opinion is needed for equitable disposition of an appeal). The resultant opinion, dated in April 2011, acknowledges that it is not possible to determine with 100 percent certainty when and how the Veteran became infected with hepatitis C due to factors such as a lack of symptoms with acute infection and an absence of serological testing for hepatitis C in the 1970s and 1980s. Relevant to this appeal, however, the reviewing physician stated that both the Veteran’s service-related healthcare work and IV drug use both during and after service constituted reasonable risk factors for hepatitis C. In terms of which risk factor is likely responsible for the Veteran’s current condition, the physician indicated that it cannot be determined “which [risk factor] is more likely.” In other words, it is at least as likely as not that the Veteran’s hepatitis C is the result of exposure to blood products while performing the duties of a battery aidman and medical corpsman in Germany from March 1972 to September 1973.
Notice if you will, that Sgt. Paul and the Raiders (the VVA) began this tea party in 2000. He got the wave off in May 2001. He had his BVA hearing in 2003. Don’t you think the VA ought to have put this on roller skates and given it a push? Twelve years waving the lantern is a bit much in my book. Depending on the VA for a penetrating, on point, objective nexus that is unbiased is unmasked here in all its ugliness. VA would have us believe this is an across the board,on the up and up, benefit of the doubt and the timeworn “We’re really trying to find a way to grant this but we find ourselves stymied at every juncture. Is there anything else you can pull out of your hat that might prove your “contentions”? Reality is far different. By giving ambiguous and desultory responses at every remand, the VA is actively praying Paul, and any other Peters and Marys similarly situated, will give up and go home. Do any of you honestly believe this is all a horrible misunderstanding? That the VARO just didn’t “get it” and therefore fumbled the nexus phraseology?
VLJ Sullivan’s hands are tied, He doesn’t have much judicial clout other than to keep remanding it for development and a concise, well constructed nexus that grants a modicum of credibility to the Veteran’s contentions. Given the recalcitrance to do so, he sends it out for a VHA IMO which, as you can see, was authority granted to him via 38 C.F.R. § 20.901 (2010).
Here, the Board finds the April 2011 VHA opinion to be the most comprehensive, and thus, the most probative, opinion of record on the subject of whether the Veteran’s hepatitis C is related to military service. The opinion is written by a physician who has “managed viral hepatitis patients and studied viral hepatitis pathogenesis,” it is based upon a review of the entire claims file, including the various other etiological opinions discussed above, and it contains a reasonable explanation for why hepatitis C is at least as likely related to exposure to blood products during healthcare work. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Evans v. West, 12 Vet. App. 22, 30 (1998) (stating that the Board is free to favor one medical opinion over another provided it offers an adequate basis for doing so). Therefore, in light of this opinion, and with consideration of the benefit-of-the-doubt rule, the Board concludes that service connection is warranted for hepatitis C. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 C.F.R. § 3.102.
Now, with all that said, how do you like VA’s reason for denying the cirrhosis secondary to the hepatitis? Why, shoot, bubba. Alcohol. Good ol’ ETOH abuse. It couldn’t possibly have anything to do with the hep. Where y’all been? Our VA doctor said this is obviously from when he was a tender young’un of 14.
As previously discussed, the Veteran contends that he developed cirrhosis of the liver as a result of hepatitis C. Contemporaneous medical records indicate, however, that treating physicians suspected that his cirrhosis was the result of heavy alcohol use since age fourteen. Nevertheless, such physicians acknowledged that hepatitis C could not be excluded as a causal or aggravating factor.
Following a review of the Veteran’s claims file, the VHA specialist opined in April 2011 that “it is highly likely that cirrhosis of the liver is caused by [hepatitis C] as well as alcohol.” In providing such opinion, the reviewing physician noted that hepatitis C can cause liver cirrhosis, typically after one to two decades of chronic infection. Therefore, given that it is at least as likely as not that the Veteran was infected during service (i.e., the 1970s), it is not unreasonable to not find a diagnosis of cirrhosis until the 1990s. Also relevant to the physician’s opinion was the absence of alcoholic hyaline in the Veteran’s liver (per the contemporaneous record) as well as the fact that his liver enzyme profile “showed a consistent ALT>AST pattern, unlike the AST>ALT pattern typical in alcoholic hepatitis.” Finally, the VHA specialist noted that alcohol is a known accelerant of hepatitis C-associated liver disease, thereby explaining the role alcohol plays in his current condition.
Personally, I think Sullivan was tapped on the shoulder in the hallway and quietly told to go ahead and grant. If this annoying patriot hasn’t gone away after 13 years of remands, it’s safe to say he’ll be pestering the CAVC next spring after a BVA denial. You and I both know they didn’t need to go out and get a competent gastrodoc to make this connection. Hyaline cirrhosis is easy to detect and for a bunch of Bozo doctors to contend it was alcohol in the absence of hyaline liver pathology is patented proof that VA is playing with a stacked deck. No doctor would opine on it being due to ETOH without orders to do so in this scenario. When you are abusing alcohol, your AST result will be far greater than the ALT. Conversely, when HCV is the culprit, ALT will far exceed the AST. This is rudimentary MD 101 lab work. Perhaps the VLJ ascertained this and decided to do the right thing. Think Flying Pigs.