BVA–GENOTYPE 3A, VIETNAM MEDIC AND HE LOSES


Trust Squidley to find the back door to the BVA decisions. The second one in disturbs me. Here’s a Vietnam Vet, combat medic with a tattoo in country. Now throw in Genotype 3A and you have the perfect storm for a win. Right? Not. Willful misconduct rears its ugly head and no matter what his risks, he’s toast. This is the classic example of “What benefit of the doubt?”

If he picked this up before he willfully misconducted himself, then he’s scot free. That’s the asknod legal theory that if you’ve done nothing wrong (up to a point)and contract the disease before misbehaving, the vA should not be allowed to make the willful misconduct retroactive. Apparently you’re guilty before you actually committed the crime by this reading of the regulation. I think it would make for a great case before the CAVC.

Since we know this will evaporate if I simply attached the link, I’ll cut and paste in its entirety the juicy parts:

Citation Nr: 1222166
Decision Date: 06/25/12 Archive Date: 07/02/12

DOCKET NO. 06-10 740A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1. Entitlement to service connection for hepatitis C.

2. Entitlement to an effective date earlier than October 15, 2004 for the grant of service connection for PTSD.

REPRESENTATION

Appellant represented by: Veterans of Foreign Wars of the United States

ATTORNEY FOR THE BOARD

L.M. Yasui, Associate Counsel

INTRODUCTION

The Veteran served on active duty from February 1966 to September 1968.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction over this claim is currently with the RO in Portland, Oregon.

In December 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington DC. for compliance with the April 2010 Board Remand. Those actions completed, the matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). A complete analysis of the RO’s compliance with the Board Remands is included in the Duties to Notify and Assist section below.

In evaluating this case, the Board has not only reviewed the Veteran’s physical claims file, but has also reviewed the Veteran’s file on the “Virtual VA” system to ensure a complete assessment of the evidence.

The issue of entitlement to an effective date earlier than October 15, 2004 for the grant of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

The Veteran’s hepatitis C did not have its onset in service and is not otherwise etiologically related to his active service.

CONCLUSION OF LAW

The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this case, the record shows that the Veteran served as a medic in Vietnam. Therefore, he is presumed to have been exposed to blood and other bodily fluids in performing his duties. The Veteran has also indicated that he used recreational intravenous drugs during his service. In this regard, while the Board fully respects the problems associated with service as a medic in Vietnam, the law states that direct service connection may only be granted when a disability was incurred or aggravated in the line of duty and was not the result of a claimant’s own willful misconduct. In addition, for claims filed after October 31, 1990, as in the present case, direct service connection may not be granted for a disability that is the result of a veteran’s abuse of alcohol or drugs. 38 C.F.R. § 3.301(a) (2011).

The Veteran’s service treatment records are negative for a diagnosis of hepatitis C or any complaints of, or treatment for, symptoms of this disability. Indeed, a separation report of medical examination from September 1968 indicated that the Veteran had normal clinical evaluations of all his systems.

VA treatment records indicated that in June 2004 the Veteran tested positive for hepatitis C. At a January 2005 physical examination conducted in conjunction with a Social Security claim, the Veteran reported that he had not had a liver biopsy and did not think he was having many symptoms of hepatitis C. The Veteran’s diagnoses from the examination included hepatitis C, not currently in medical treatment, using nutritional supplements.

The Board notes the lengthy period between the Veteran’s separation from service and when he was first diagnosed with hepatitis C. Indeed, there were no complaints of, or treatment for, any hepatitis C or symptoms of such a condition in post-service treatment reports. This long lapse of time (approximately 36 years after separation from active service) is some limited evidence against a finding that any current hepatitis C had its onset during service or is related to his service. See Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000) (holding that it was proper to consider the veteran’s entire medical history in determining if service-connection is warranted, including a lengthy period of absence of complaints).

Beyond this fact, the Board must note that the Veteran, in multiple, sometimes conflicting statements throughout the record, has indicated recreational drug use both during his service and post-service. As discussed in further detail below, drug use, as noted in the record, constitutes a strong risk factor for this disability, providing factual evidence against this claim.

Nonetheless, based on the Veteran’s assertion that as medic in Vietnam, he was exposed to blood on active duty, he was afforded a VA examination to determine the etiology of his current hepatitis C.

The Veteran underwent a VA examination in May 2005. It was noted that he had a long history of alcoholism and drug abuse, which continued to the present. He currently reported using cocaine. He was not receiving any treatment for hepatitis, although he felt that his general fatigue and weakness were due to hepatitis C. He denied chronic liver disease. In addition to the clear use of intravenous drugs in service and exposure to blood as a medic, it was noted that the Veteran had received a tattoo during his active service, although the examiner felt that the intravenous drug use and exposure to blood were more likely to have caused hepatitis C. The examiner felt that physical examination showed no signs of liver disease and that, based on the examination, it could not be said that the Veteran has any chronic liver disease.

Although the May 2005 VA examiner felt that the physical examination showed no signs of chronic liver disease, the examiner did not offer an opinion as to the etiology of the positive hepatitis C test. Indeed, more recent treatment records indicated abnormal liver function tests.

In a December 2008 hepatitis C risk factor questionnaire, the Veteran wrote that he had used intravenous drugs in and out of service, that he received one tattoo in Vietnam and two in the United States, and that he was exposed to contaminated blood or fluids as a medic in Vietnam.

Liver function tests from June 2009 VA treatment indicate that the aspartate aminotransferase and alanine aminotransferase readings were high. August 2009 VA treatment records indicate that the Veteran had genotype 3a, with chronically elevated transmissions but no cirrhosis. He had not received any treatment for this, because of his alcohol use.

Based on the above and the May 2011 VA examiner’s failure to opine on the etiology of the positive hepatitis C test, the Veteran was afforded another VA examination in January 2012, pursuant to a December 2011 Board Remand.

In this regard, the Board must note the fact that one part of a medical opinion may be inadequate (or arguably “insufficient”) does not make the entire examination report “void”, particularly dealing with the Veteran’s relevant history (to include his admission of intravenous drug use during and post-service and cocaine use post-service), reported by the Veteran at the time of the May 2011 examination.

The January 2012 VA examiner indicated his review of the Veteran’s claims file two days after his physical examination of the Veteran and prior to rendering his medical opinion.

At that time, the Veteran reported that he underwent alcohol rehabilitation in September 2009 and upon repeated questioning, he was clear that this was the only alcohol treatment he had ever undergone. As to risk factors for hepatitis C infection, the Veteran reported that his record originally indicated that he was “shooting up and getting tattoos in Korea, which he never did.” The Veteran also reported that he was incarcerated in the mid-1980s for six months. The examiner noted his in-service exposure to blood as a medic in Vietnam for two tours. He admitted getting three tattoos, all acquired post-service and again denied getting any tattoos anywhere overseas.

The examiner noted that the Veteran “says (and confirms on repeat questioning) that he NEVER DID ANY [INTRAVENOUS DRUGS] IN THE MILITARY.” The Veteran reported using heroin only once in 1971, after service, and began using cocaine in the early 1980s. The examiner again questioned the Veteran about his drug use in the military and at that time, admitted that he had smoked marijuana but did not like it. He denied sharing toothbrushes, razors, or other personal items and did not have piercings.

The examiner confirmed the Veteran’s diagnosis of hepatitis C and provided a list of risk factors, including accidental exposure to blood by health care workers (to include combat medic or corpsman), intravenous (IV) drug use or intranasal cocaine use, and other direct percutaneous exposure to blood, such as tattooing. The examiner also noted that the Veteran had been married five times and recalled once having sex with a prostitute in service.

The January 2012 VA examiner ultimately opined that the Veteran’s hepatitis C was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service event. His rationale, in its entirety, is as follows:

C-file was received and reviewed 2 days after the veteran was examined.

First, note is made that the [veteran’s] reported history on examination today is considerably different than that found in the VA records. He denied IV drug use in the military to me yet the record seems replete with heroin use in [Vietnam]. He stated only using heroin once as well, and didn’t like it. He stated on exam that he always used IV cocaine while the record seems to indicate snorting as well. He indicated on exam today that he never had any kind of alcohol treatment prior to 2009 at Boise VA, yet a Jan 14, 2004 Pueblo VA note indicated he wasn’t interested in alcohol treatment programs because “I’ve done that before and it never helped me.” As well, there appears to be some discrepancy on the extent of legal difficulties over the years.

The Veteran has multiple risk factors for Hepatitis C.

The risk factor most strongly associated with Hep C in this veteran is IV drug use. Other less strongly associated factors are blood exposure either by remote transfusion or mucosal contact, snorting cocaine, incarceration [more than] 48 hours, sex with multiple partners, or sex with a prostitute. Less strongly associated are tattoos, piercings, sharing of razors or toothbrushes. The risk of acquiring hepatitis C from tattoos is controversial but generally felt in the literature to be quite small, and perhaps related to number of tattoos, size of tattoos, and acquiring of them in prison. The veteran indicates that he acquired his tattoos after the service, and separation exam seems to confirm this.

Regarding [veteran’s] combat blood exposure as a risk factor for hepatitis C, a study at the San Francisco VA indicated that combat vets do indeed have a higher risk of hepatitis C compared to the regular population. In that study of veterans from 1999 the relative risk of having hepatitis C as compared to a population WITHOUT the specific risk factor was:

history of IV drug use…24.7 times higher
incarceration [more than] 48 hours…3.37 times higher
combat blood experience…2.47 times higher

A separate study of veterans done in 2000 at the Palo Alto VA found that 81% of veterans positive for Hepatitis C (60% of who were Vietnam era) was associated with IV drug use. Other risks were “unknown” 11%, blood transfusion 3%, sexual/household contact 2%, and tattoo 1%. They concluded that intravenous drug use was the major risk factor for hepatitis C in veterans in their study.

The weight of the medical literature regarding veterans as well as non-veterans is that IV drug use is the largest risk factor for transmission of hepatitis C. Based on likelihoods, the veteran appears about 12 times more likely to have acquired his hepatitis C from IV drug use [than] from combat blood exposure in the military. It appears that his risk of hepatitis C was 50% higher from his post-service incarcerations then from his combat blood exposure. His risk from his single encounter with a prostitute in the service is unknown but appears generally felt to be quite small (2% of veterans from the Palo Alto VA study, compared to 81% with IV drug exposure).

The veteran denies IV drug use in the service to me. He denies getting a tattoo in the service. The totality of the [veteran’s] exposure to IV drugs occurred after the service per his history given to me.

I found one meta analysis of the effect on hepatitis C infection after the provision of clean needles. It appears that even among a population of IV drug users ostensibly using clean needles (not sharing), the incidence of hepatitis C only drops by about 50%…[i.e.] they remain at approximately 12 times as much risk of getting hepatitis C as non drug users, and by inference would remain approximately 6 times as likely to have hepatitis C as veterans with only combat blood exposure.

The evidence does NOT support the contention that the [veteran’s] hepatitis C was caused by or etiologically related to his active service excluding the [veteran’s] illicit drug use (which the veteran currently denied using in the service).

This opinion weighs heavily against the Veteran’s claim for service connection for hepatitis C as it not only fails to establish the requisite nexus between his current hepatitis C and his active service, it contradicts that relationship with clear facts that do not support this claim.

In this case, the Veteran has repeatedly argued that his hepatitis C was incurred in active duty as he was directly exposed to blood as a medic in active duty during Vietnam. As such, the Board notes that the Veteran is competent to make such an assertion as he has demonstrated some limited medical expertise. Thus, the record contains two medical opinions (one favorable and one unfavorable to the Veteran’s claims), which address whether the Veteran’s current hepatitis C is related to his service. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board’s province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated:

The probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches…As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators.

So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner’s opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

Here, the Board has taken the medical opinions, both favorable and unfavorable to the Veteran’s claims, into consideration and finds that the opinion provided by the January 2012 VA examiner is more probative than that provided by the Veteran himself.

The record reflects that the January 2012 VA examiner is a medical doctor and that the Veteran was a medic in service, suggesting that the VA examiner has a higher level of medical expertise than the Veteran. In addition, the Veteran undoubtedly has a self-interest in asserting that his hepatitis C is related to his blood exposure in service. The Veteran provides no rationale for his conclusion, only to argue that the only time he was directly exposed to a significant amount of blood was during active service.

As previously mentioned, this is contradicted by the Veteran’s own conflicting statements. The May 2005 examination report explicitly indicated the Veteran’s use of intravenous drugs during service from 1966 to 1968 while in Vietnam and his current use of cocaine, while he denied any such use during the January 2012 examination. The Veteran’s reports, as found during the January 2012 examination, are incredible given the earlier dated evidence, indicating his report of in-service IV drug use and current cocaine use. Indeed, the Veteran’s credibility is challenged by his contradicting statements, providing factual evidence against his own claim for VA benefits.

In this regard, the Board must emphasize that there is a question regarding the Veteran’s reliability as an historian of his exposure to blood and risk factors for hepatitis C. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony.)

In contrast, the January 2012 VA examiner’s opinion was supported by a detailed rationale and he relied on current medical literature in his analysis. He took the Veteran’s entire history into consideration, including his extensive history of intravenous drug use, snorting cocaine, sex with a prostitute, sex with multiple partners, incarceration, and tattoos.

In short, the VA examiner’s medical opinion evidence is based on a more comprehensive review of the Veteran’s medical history and considered the Veteran’s high-risk factors for hepatitis C infection. As such, his medical opinion is more probative than the opinion given by the Veteran. Indeed, the Board has not ignored the Veteran’s medical qualifications; it is simply finding that his medical opinion regarding the etiology of his own condition is entitled to lower probative weight. The Veteran’s opinion is clearly outweighed by that of the January 2012 VA examiner and the post-service treatment records.

Beyond the above, based on the facts of this case, the Board finds that the risks factors that cannot form the basis of a grant of this claim are more likely than not the cause of the Veteran’s disability. When one considers the risks factors caused by service, as oppose to the risk factors caused by factors outside of service, the Board must note that there are clearly many more factors outside of service that make it more likely that these factors were the cause of the problem at issue. The post-service treatment records are found to fully support this finding.

Accordingly, for the reasons detailed above, entitlement to service connection for hepatitis C is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011).

Significantly, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Hence, no further notice or assistance to the Veteran is required to fulfill VA’s duty to assist the Veteran in the development of the claim.

ORDER

Entitlement to service connection for hepatitis C is denied.

______________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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5 Responses to BVA–GENOTYPE 3A, VIETNAM MEDIC AND HE LOSES

  1. KC says:

    OMG… the following excerpt REALLY bothers me. Why on earth did they even have to add this? Just in case any of us Vets have the gall to file without proof in our records?? Here we go again…

    “The Veteran’s service treatment records are negative for a diagnosis of hepatitis C or any complaints of, or treatment for, symptoms of this disability. Indeed, a separation report of medical examination from September 1968 indicated that the Veteran had normal clinical evaluations of all his systems.”

    How could it?? They had no means of even diagnosing it much less detecting it.

    • SquidlyOne says:

      There are rat droppings all over this case that the board was “playing” doctor:

      “The Board notes the lengthy period between the Veteran’s separation from service and when he was first diagnosed with hepatitis C. Indeed, there were no complaints of, or treatment for, any hepatitis C or symptoms of such a condition in post-service treatment reports. This long lapse of time (approximately 36 years after separation from active service) is some limited evidence against a finding that any current hepatitis C had its onset during service or is related to his service.”

      I’m sure VLJ Mr. Crowley’s sphincter puckered a bit when the CDC came forth recently to have all boomers tested without giving a reason as to why.

  2. Robert G says:

    A separate study of veterans done in 2000 at the Palo Alto VA found that 81% of veterans positive for Hepatitis C (60% of who were Vietnam era) was associated with IV drug use? This sounds like bullshit to me. I was in a 6 month IFN study in 1995. The chief monkey told me vietnam vets were catching up to prison HCV numbers. He was also the chief monkey for a prison IFN study done by the Loma Linda Health Care System. This number was around 30% if I remember right. So I am assuming the numbers of vietnam veteran HCV increased to 81% in 5 years? BULLSHIT…
    This guy got the fickled finger of fate here. Reading this case does hurt…..

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