Member Mike writes me and tells of VA “misconstruing” his evidence.

DEAR Mr. Nod,

I just got my denail. I had hepatitis in service in Cu Chi in Nam. It’s in my medical reords. 1968. It says infectous hep. clay colored stools, schlera ictera  and other stuff. I was in the hospitel at Saigon for 3 weeks. VA says I didnt have any hep C in service and that was different hep. I filed in dec. 2010 and they just now denied. Oh yeah my VA office is Lincoln, Ne. Can they do that. How do they know? What should I do. I have a DAV officer but he is hard to find  he doesnt call me back.

This is what VA is permitted to do. They can announce a finding-right or wrong- and it stands for the truth until a new “finding” holds otherwise. Thus a mistruth or fact that is unsupported by records can exist until it is proven to be “no longer an operable statement”.  You sir, are a victim like WGM. As you may not be aware, WGM filed based on a jetgun defense. VA chose to ignore that and made a finding that he obtained it over the course of his enlistment from his cherchez les femmes forays. Having picked it up from the ladies, he was also denied compensation based on it being willful misconduct. That part of the decision was flawed but they did say it occurred in service. After a long tortured review, it was acknowledged that having a dose in the service was a case of poor judgement, but was not willful misconduct. Therefore, their “finding” had to change. Change it did and WGM joined the chosen 15%.

A finding is a fact of law. It cannot be overturned after the fact unless it can be proved that the decision process was flawed and the finding was clearly and unmistakably erroneous. Thus, VA has chosen to make a flawed (in my mind) decision on your claim because

a) they can

b) they usually do.

c) they are making a decision based on very incomplete medical information, and

d) I’m betting that you didn’t even get a C&P that could have proven your case one way or another.

VA has a policy of virtually automatic denials on HCV. Many’s the Vet who gets no exam and/or a cursory one if they do. That often consists of a blood test for HCV and sometimes another for liver functions test (LFT). Here’s the lowdown. A comprehensive exam would test for HAV, HBV and HCV. This can determine what you have had in the past and what you currently have. If  your hepatitis in 1968 was truly infectious, that is now called HAV. If it were true, you would have immunity to it and possess the antibodies. The same applies for viral hep. now called HBV. There was no testing for HAV/HBV until the advent of the Australian Antigens test of 1972. Any opinion of  what you had in service was pure conjecture in 1968. VA can and will declare those contemporary service records as being correct until proven wrong. On appeal, VA will give you a C&P and test you for the other flavors. What you need to watch out for is an appeal that goes to the BVA in D.C. without that C&P exam. The VLJ will just remand it back to Lincoln for the exam. It’s the law. This will add a year to your appeal. VA doesn’t care. If they did, they’d never send the appeal up without one.

Now- about the C&P. If it shows you never had HAV, they will have to change their story. The important thing is that they don’t have to act until forced to.  Chances are they will default to a finding of HBV in service if the blood tests show that.  There was no way to ascertain HCV until 1992 commercially. VA will continue to maintain that there is no evidence in your records of HCV infection and that it clearly mentions infectious. HAV is passed via poor hygiene and ingested through the mouth. HBV (and HCV) are blood born and cannot be transmitted any other way. Many Vets picked both of these up in RVN -some at the same time like me. Statistics reveal that Vietnam Vets are 60% more likely to have/had one or more of these viral infections.

The medical records clearly describe known symptoms of hepatitis. Clay-coloured stools are a hallmark as are the jaundiced, yellow eyes (sclera ictera) mentioned. Somewhere there will be mention of SGOT and SGPT which are blood test measurements of the liver functions. Normal is 5-35ish for both. Abnormal is in the 50s or higher. With a hepatitis infection, readings into the 300-500 range are seen.

VA examiners are not doctors. They are advised by “medically trained doctors/nurses” at the VAROs who opine as to the etiology of the infection. Knowing the VA default setting is Deny, they start from there and try to work towards Grant. You see the problem? The record clearly states “Infectious” and infectious it will stay until a finding is issued that declares it  inoperable and substitutes a new “finding”. After a definitive blood test this finding may change to viral and they will continue the denial. HBV, except for rare cases, is acute like HAV.  VA will cling to this as proof until you get a doctor to say it is likely that the hep. in service is the same as what you have now.

I’m going to go out on a limb and guess that the DAV representative you  have representing you may have neglected to mention that you need a nexus letter. Please look to the right and click on blog labeled the same. This will give you a better grounding in the requirements for winning. When you arrive without a nexus, VA denies, saying you haven’t proved your claim. In the event you do show up with one later, they will find a way to denigrate it and issue their own nexus saying the exact opposite.

You now have 12 months to file your NOD contesting this. Fighting it is not difficult. Getting VA to look at your logic and evidence is going to be the problem. VA have made their minds up and changing the finding is the hurtle. Your evidence refuting it is the key to a win but it cannot be done without the nexus letter. Worse, they are stuck on the infectious word and feel no need to find out otherwise.

38 CFR  in earlier days permitted VA to forego a C&P if they felt the claim had no merit or chance of winning. After the laws on well-grounded claims were changed in 2001, if you had hep. in service it was a pretty good indicator that more testing should be done  to determine which one it was. With the advent of PCR testing, there is no grey area anymore. Tests will show what is present. Unless your representative pitches a bitch, VA will undoubtedly “forget” to give you one.

I don’t know what your capabilities are for going it alone on your claim so I will not suggest it. VSOs are the only avenue to legal representation other than doing it yourself. Now that you have been denied, you can legally seek an attorney to represent you. He is entitled to no more than 20% of your settlement if you win. Look in the phone book or on the internet for VA attorneys in your area. We can give you advice here as well. Depending on how much free time you have to devote to this and your willingness to learn what you need to win, you can conceivably do it yourself. Having lost the first battle is a setback but not the end of the road.

Read up about the process here and get a better understanding of it. If it seems overwhelming, I would suggest an attorney rather than your present arrangement which seems to be dysfunctional. From what we have seen and heard, VSOs are like children-seen but not heard. Best of luck with this and do not hesitate to ask for assistance. While I know it sounds repetitive and redundant, thank you for your service to America. It has come around full circle and bit you on the buttocks. No good deed goes unpunished. Welcome to the club.