When I filed for hep again in 2007, I learned how to operate a computer. Let me rephrase that. I became so sick by early 2008, that I had a lot of time on my hands. This led me to learn how to use a c-box. One of the first things I did was look at BVA decisions on this for guidance. I started with 1992 as that is as far back as their claims go. I progressed through each and every one to find a common thread. Why did one fellow Vet prevail and another lose? Keep in mind that this was before Mr. Caluza, Mr. Hickson or Mr. Shedden made their appearance.
Winning a claim-any claim- in 1992 hinged on many things. For the most part, vA relied on the precept of continuity as embodied in 38 CFR §3.303(b). This was the standard of proof of chronicity for years. Where HCV was concerned, a different set of criteria was needed but there was none. Thus the vA falsely relied on any hepatitis in service as being either HAV or HBV. Since both of these were considered to be “acute and transitory” with no long term debilitating effects, vA got a bye on them for years. Some Vets however, were showing up with the new C variant. To these unfortunate souls, the door was slammed shut. The excuse? Why, acute and transitory in service and what they had now was due to intercurrent causes after service. Always remember, prior to 1992 and the inception of the ELISA test with Northern Blot, there was no test for HCV. Period. If anyone tells you differently or drags out the Western Blot theory (HIV detection) prior to then, politely inform them they know not whereof they speak.
Nevertheless, the vA continued this perfidy for years in spite of medical tomes that said otherwise. Cecil Textbook of Medicine still maintained this:
According to Cecil
Textbook of Medicine, 768, 1992:
“Both post transfusion and sporadic
hepatitis CA are associated with both an
apparent carrier state (inferred from the
fact that it may be transmitted by blood
from apparently healthy donors) and
chronic hepatitis. The incidence of
chronic hepatitis after post transfusion
hepatitis C approaches 50 percent. In
some of these patients the disease is
mild and may spontaneously subside or
remit after a year or more. In others, a
‘carrier’ state may evolve or the process
may exhibit a progressive course and lead
to cirrhosis and liver failure….”
vA continued the practice for years. Any hepatitis mentioned in SMRs became infectious ( acute HAV) or viral (serum HBV). Since they were both considered to be acute and most Veterans’ records reflected no symptoms at discharge, they always lost their claim. Many were granted SC but at 0% . Here’s a contemporary case around that time.
The record contains no current clinical indication that the
veteran has chronic hepatitis as a result of the 1971
infection. No recurrences have been documented over the
years, and the March 1991 laboratory workup and June 1991
examinations were negative for liver disease. It may
reasonably be concluded from these findings that the veteran continues to be a “carrier” of the virus, but no other indications of liver pathology are shown. The veteran contends that he experiences various symptoms such as fatigue and indigestion, but the record contains no medical authority for atributing such symptoms to hepatitis. Thus, the evidence is sufficient to preclude a finding that any such symptoms are due to liver dysfunction.
Once the HCV juggernaut began to appear, vA had to become more creative. They would say with great certainty that it was unproveable or absent from the records. This began the new phase-one in which it was proven by SMRs that a Veteran never suffered from it. In the below case, the vA early on admitted that testing was impossible for this. After this case, few if any decisions discussed these facts.
As the veteran points out, specific blood tests concerning
hepatitis were not conducted during his separation examination in March 1954. Unfortunately, the current methods to distinguish the various types of viral hepatitis by specific serologic testing were not available at the time of the veteran’s episode and, as the pertinent medical literature notes, prior to the availability of these tests all viral hepatitis cases were labeled either as “infectious” or “serum” hepatitis. Harrison’s Principles of Internal Medicine, 1326 (12th ed. 1991). In most cases of infectious hepatitis, clinical recovery is complete in 3 to 16 weeks, although liver function studies may be abnormal for a longer period, but most such patients go on to complete recovery. Current Medical Diagnosis and Treatment, 504 (1992).
Following hard on the heels of new testing protocols that could distinguish what a Veteran had suffered in the remote past (HAV and HBV), vA had to come up with a new story for the denial. One that gained ascendancy for a while was the “Gee, buddy. You filed for infectious Hepatitis which is HBV and you have HCV. Your claim was denied, but if you’d like to, refile for HCV this time and we’ll take a look at it.”
The next trick became one which was used off and on for quite a while. The Veteran would file for several issues and the vA would defer a rating due to “intelligence gathering”. Meanwhile the Vet would go up on appeal for the other denials and let the hep. deferral slip. vA would also do the same and the issue would fade into the night. When brought to their attention, they’d say the issue was dead. Nobody ever fought to get it so it was never a bone of contention for years at the COVA.
One of the next tricks in the vA’s never-ending circus was the misconstrual for lack of a better word. You file for hepatitis and they say “Got it. You’re filing for “infectious”. They’d waste six months and deny. When you came back with the chronic HCV NOD, they’d trot out the “We are so sorry. We thought you meant HAV. Please refile and we’ll get right on it.” Espiritu v. Derwinski (1992) should have precluded this because we’re not doctors. “Should have” is the non-operable phrase in that defense. This reached new heights as late as 2010 when a Vet filed for PTSD. vA denied and when it got to the Court, vA came up with the lame excuse that that he had schizophrenia, not PTSD. Poor vA. How were they to grant PTSD when his illness was something different? Perhaps if he’d filed for schizophrenia in the first place this could all have been avoided. A simple misunderstanding? I don’t think so. These jokers have been inventing excuses and denials since the War of 1812. They do it well. If you thnk they could misunderstand something, then why do they have 500 pit bull law dogs on leashes just waiting to turn them loose on you?
I think most Veterans’ attorneys thought the idea embodied in Groves v. Peake (2008) would cover this contingency. That wonderful precedent held that a disease in service equals a present disease absent anything else to distinguish them. It made no reference to Hepatitis but the inferral was obvious.
Medical nexus evidence demonstrating an etiological link is not necessary to prove service connection when evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and that he still has the same chronic condition. Groves v. Peake, 524 F.3d 1306, 1309-1310 (2008). See also 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a).
Here’s another one.
The next logical way to deny was a reversion to the old one. “Gee, sir. We’ve gone through everything in the SMRs and there’s simply nothing there that even remotely resembles a diagnosis of HCV in 1970.” This finally arrived at the Court in 2010 in a single judge decision. It ended in a remand to redo the denial. The judge correctly ascertained that one wouldn’t expect to find evidence of HCV in the records in 1970 considering medical science hadn’t picked up on this until 1989 other than to say there was some form of pernicious, chronic hepatitis afoot and it wasn’t A or B (non A, non B or NANB).
The next big sea change was to focus on willful misconduct after service. Any tattoo, STD or substance abuse that was documented in medical records became the vehicle for denial. Smoking Mother Nature’s finest became grounds for denial. How the blood borne virus transmitted itself via a joint is still a mystery but that didn’t stop the vA. A Court case finally made it’s way up the ladder a year ago where the Vet patiently explained that smoking crack cocaine, while bad for the health, was still not a risk factor for this. vA steadfastly maintained that if a Vet would smoke anything other than tobacco, he probably was doing other nefarious drugs that did involve risk of infection. This was enunciated clearly in the M-21 manual in the chapter under “Drug abusers of all feathers flock together.
With the advent of all the jetgun claims, vA has adamantly fought the tide with their staid response that there are no studies indicating that HCV can be transmitted via a gun. I don’t see a rush to do a medical study on the correlation any time soon either. This simple precept was guaranteed to hold the line against bogus claims in this regard. What they didn’t foresee was doctors bearing nexus letters implicating the guns as being filthy dirty and unsanitary.
Which leaves us with the excuse of last resort. I speak of speculation. This is the new operable term. vA will study your claim from inside out looking for holes. If you leave any, they will jump on the speculation bandwagon. They will take two or three years to do this too. If you cling to life they will trot this out. When you submit new and material evidence rebutting their speculation, they’ll do the dance again. Speculation has been around a long time as an available excuse but only recently employed in the war against hep. claims.
I won’t waste my breath and my fingers discussing Benefit of the Doubt. That dog won’t hunt and never has. The closest I’ve seen is a definite diagnosis of hepatitis after a documented vA hospital transfusion in 1988. vA’s take after seeing the “most likely” private nexus letter was “Since that avenue is a recognized disease vector, benefit of the doubt is in order and it is at least as likely as not that the Veteran contracted HCV in this manner”.
If members have any new iterations on this old game, please share them with us so we can include them for entertainment purposes. I strive for accuracy to include all the possibilities, but I may have missed some.
Looking for answers: Where should I keep my original Durable Power of Attorney for Healthcare
It depends on what type of format it’s in. Mine was embedded in the VA VISTA computer when I had my first operation. My wife asked for a hard copy of it and they gave her a CD rather than a paper copy. She keeps it in our gun safe.