As I get older, I read BVA HCV decisions and see errors so egregious they make my hair stand on end. What passes for Independent Medical Opinions requested by BVA VLJs to facilitate adjudications is going downhill rapidly. The following decision is a classic example.

When you go through the grinder, one thing you assume is that the VA will at least use viable, truthful medical science to deny you. Summonsing hocus-pocus jibber jabber and framing it as cutting edge literature on the subject never crossed my mind. Would it yours?

Let’s start with the possibility that the Veteran could have picked this up in service. Is it plausible? Was he involved in something that could foreseeably herald a risk? The Vet had a background in Mortuary science-as in dead people being put in boxes. I’d give him a pass so far. He even claimed needle sticks which I would say qualifies him, too.

If you are unfamiliar with ELISA Tests and blots, I will give you a brief education. Dr. Edwin Southern, a molecular biologist, discovered the technique and perfected it. It was called the Southern blot in his memory. Further experimenting resulted in a “western blot” which was used to identify the DNA sequences for AIDS, mad cow disease (BSE) , HBV and lyme disease. In a crowning triumph, the northern blot isolated RNA molecular material which was instrumental in finding HCV. The reason is simple. HCV is an RNA-based virus. HBV and AIDS are DNA-based viruses. Therefore, you will never identify HCV by using western or southern blot-whether in conjunction with the ELISA test or not. Simple? Painfully so.

Southern Blot

Western Blot

Northern Blot

So what should surface  in this Veteran’s decision but the following.

In March 1985, the Veteran was treated for venereal disease. In December 1987, while in the Reserve, an ELISA test with western blot was negative. In March 1988, the Veteran tested positive for venereal disease.

In November 2010, the Board obtained an expert opinion from the Veterans Health Administration (VHA). The Board had asked the VHA expert, a specialist in infectious diseases, considering accepted medical principles and the medical literature and a review of the Veteran’s file, to express an opinion on the following question:

Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability of 50 percent), less likely than not (probability less than 50 percent), or an opinion is not possible without resort to speculation that the current hepatitis C was related to the Veteran’s exposure to blood and body fluids as a trainee in mortuary science in service?

In formulating the opinion, the VHA expert was asked to comment on the clinical significance that the ELISA test with western blot in 1987 was negative and whether the ELISA screen would detect hepatitis C.

As most of us know, competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion (38 C.F.R. § 3.159).  Thus it is very disturbing to see this Vet’s claim go down in smoke due to an “expert’s” testimony.

In November 2010, the VA expert, a board certified infectious disease specialist since 1986 and a physician in the infectious diseases section at a VA Medical Center, after reviewing the Veteran’s medical records and a literature search, expressed the opinion that it was less likely than not that the Veteran’s current hepatitis C infection was related to service including exposure to blood and body fluids as mortuary science trainee in 1973. The VHA expert explained that the negative result of the ELISA test in 1987, the first-generation screening test for detection of hepatitis C, had a sensitivity rate of 54 to 84 percent, citing three medical references. And that the negative western blot, also a first generation test, made the sensitivity even greater. The VHA expert therefore concluded that the likelihood that the Veteran acquired hepatitis C before December 1987 was low.

As we all know, VA will use any evidence of risk post service as the most likely reason for the disease. Knowing full well that the risk via sexual congress is extremely low (but not inconceivable), the VHA expert jumps in with both feet.

The VHA expert also found that the Veteran had tested positive for venereal disease in 1988 and that unprotected sexual practice was a risk factor for hepatitis C.

Were this a truly “independent foray” in IMOs there would seemingly be more discourse on this mode of transmission-perhaps a study or clinical paper with something to gnaw on? Nothing. Just an unsupported, conclusory statement with nothing to back it up. The Court, incidentally, has ruled this style of evidence inadmissible.

From this, the Board concludes that the VHA expert applied valid medical analysis to the significant facts of the case to reach the conclusion reached in the report. This evidence opposes, rather than supports, the claim.

This, ladies and gentlemen Vets, is why you will never get a fair shake at the hands of VHA “experts”. Who writes the paycheck?  To whom is their allegiance owed? Who endangers their future employment if they come up with the “wrong” analysis of the evidence?

I do believe you can get (or could in the recent past) a fair IMO from QTC if VA sent out for it. They are at least one step removed from the process. The VHA, on the other hand is at the beck and call of the VASEC. To cross swords with him is to invite problems best left sleeping like the oft-referred to dog in the proverb.

The teaching moment here is obvious to anyone. Do not, under any circumstances, accept the pablum handed down by experts. With our certain knowledge of all things via the internet, it is extremely easy to ferret out these untruths and misconceptions and counter them on appeal. You may not be a doctor or specialist, but you can readily ascertain whether the specialist inveighing on your claim is full of hooey or not. What is also a crime is that the VLJ bought it hook, line and sinker. Most do not know that VLJs have a cadre of 10-12 munchkins who do nothing but preparatory groundwork and research for him and present a decision that needs virtually nothing more than his review and signature. In this case, that’s exactly what the poor hapless vet got- a review and a signature with nothing in the way of confirmatory or corroborating evidence. This is VA Justice. Prepare for it. Expect it. Make plans to counter it. Assume it will happen.

http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp11/Files1/1108537.txt

Munchkins are also future VLJs in training. God help us.