Follow this twist of logic. You have a painful back. You use drugs to alleviate the pain. Lots of drugs of all different flavours. As many drugs as you can get your hands on. For many, many years until one day you discover all that shooting up to kill pain has some consequences. You file for SC for bad back with HCV as a secondary. You win.

Yep. Those Nashville cats are back again and this time even I reread this again and again in a vain attempt to follow the logic. I’m still not sure I do. Someone either removed the page on willful misconduct or they came to a new conclusion about what the meaning of “is” is.

I’ll cut and paste the header but I’m going to paste the meat and ignore the “I was born in 1951” part.

Citation Nr: 1214243
Decision Date: 04/19/12 Archive Date: 04/27/12 

DOCKET NO. 08-20 316 ) DATE 
On appeal from the 
Department of Veterans Affairs Regional Office in Nashville, Tennessee 

THE ISSUES 

1. Entitlement to service connection for hepatitis C. 

2. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease, lumbar spine (low back disability). 
FINDINGS OF FACT 

1. Service connection is in effect for low back disability. 

2. Resolving all reasonable doubt in the Veteran’s favor, hepatitis C had its onset in service. 

CONCLUSION OF LAW 

Hepatitis C was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2011). 
 

The service treatment records show that the Veteran was treated for his low back problems and at separation his spine was found to be abnormal. Indeed, the Report of Medical Examination at service separation reflects that the Veteran reported, “My back bothers me from an injury when I fell last summer. Especially when I do hard work [sic].” The examining physician noted that the Veteran had injured his coccyx and was treated for continuous symptoms. The examiner added that the Veteran’s treatment had “fair results.” 

In November 2011, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA), which was received in January 2012

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

Additionally, under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

In Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), interpreting 38 U.S.C.A. § 1110 in light of its legislative history, held that VA compensation benefits are available for alcohol or drug-related disability, here hepatitis C, that arises secondarily from a service-connected disorder, here low back disability. Id. at 1370.

There you have it. I shot up in service because my back hurt. I continued to do so for years. I have hep. You SC’d me for my back. If I hadn’t hurt my back in service, I would never have been forced to self-medicate and run the risk of getting Hep. You owe me.

I don’t for a minute think the DAV dreamed up this defense. It has more holes in it than O.J. Simpson’s.

VA treatment records dated from 2005 to 2007 show treatment for hepatitis C. A hepatitis C risk assessment in October 2005 includes risk factors of multiple sexual partners, past or present; tattoo or repeated body piercing; and intemperate alcohol use. VA treatment records in March 2007 show that the Veteran reported at that time that he was diagnosed with some kind of hepatitis in the 1970s; and that in 1995 he stopped drinking alcohol and stopped intravenous drug use (cocaine) that had included sharing of needles. 

In November 2011 the Board requested a medical expert opinion from the Veterans Health Administration (VHA) to determine whether it is at least as likely as not that any hepatitis C is related to or had its onset during service, to specifically include whether it is due to a right upper arm tattoo obtained in service or in-service immunizations. In a January 2012 responsive advisory medical opinion letter, a medical specialist physician who reviewed the Veteran’s medical record history, provided an opinion as to whether there was an etiological relationship between the Veteran’s claimed hepatitis C and his active service. The specialist reviewed the clinical history during service and thereafter. The specialist noted that hepatitis C was diagnosed in about 2005, that the records showed that the Veteran had stopped intravenous drug use in 1995 and that there had been sharing of needles as reflected in a March 2007 gastroenterology physician note. A January 2006 psychiatry physician note stated that there was a “25 year cocaine habit.” The examiner noted that the Veteran stated that he used intravenous drugs and shared needles while in service and noted that he had received a tattoo while in service. 

The specialist noted that the first symptoms of hepatitis C, if they appear at all, will usually be many years after the infection. The specialist opined that the Veteran’s risk factors for hepatitis C were his tattoo, intravenous drug use, and possibly, though not proven as a cause, vaccinations with contaminated injectors while in service. The specialist opined that the Veteran’s strongest risk factor for hepatitis C was his long-standing history of intravenous drug use with sharing of needles, which was documented in the medical record as a 25 year history of intravenous cocaine use that ended in 1995. 

The specialist opined that it was likely that the Veteran’s hepatitis C was related to the drug use but opined that it was less likely than not related to service because the long-term drug use involved only 2 years of in-service drug use as opposed to 23 years of post-service drug use. 

Here, the Veteran’s competent statements, which the Board finds to be credible, indicate that during service and for a long time thereafter he used drugs to self-medicate for the low back pain associated with his service-connected low back disability. In light of that factual background and the VHA specialist’s opinion linking the Veteran’s 25-year use of drugs to the onset of his hepatitis C, the Board finds that the evidence supports the Veteran’s claim. As such, given the opinion offered by the VHA specialist, the Board finds that the Veteran’s hepatitis C is proximately due to his service-connected low back disability. 

See what happens when you train these VHA specialists to say “Yep. He did it in the military. That’s what happened. ” The intended result was the Willful misconduct etiology and ensuing denial based on it. Seeing where the Judge was headed, the VA examiner came out with the  “Nope. It occurred somewhere in that twenty three years after service, not during the two years during service. ” This was a forlorn attempt to get the IVDU on the proper side of the fence so as to preclude having to pay.

Now who among you doctors or aduccers of chicken entrails can tell me the exact moment the dragon entered the syringe and traveled up the needle to his veins? Anyone? Just to throw gas on the fire, what would have happened if they said they didn’t believe he shot up while in the military?

“It appears the Veteran is a poor historian and no one can remember what they were about 40 years ago. We believe the claimant contracted it shortly after service separation. There is no history of IVDU or drug abuse in his SMRs therefore his testimony is unsupported.”  Now keep in mind if you even mumbled in your sleep that you smoked dope or drank booze to avoid picking up dysentery, you’d get tarred and feathered as a junkie and it would be all over. No, this reeks of everybody being on the wrong page at the wrong time and trying to reinvent the wheel.  Absent that my second theory is that the guys was some Senator’s son.

Those VLJs. You just can’t figure what they’ll do next. I fully expected an Acting VLJ with 4 days under his belt to whistle this one or our latest Phonics winner April Maddox.