How many times are we told we do not have the medical expertise to opine on the etiology of where our disease came from or what particular risk was the culprit? Try this one on for size. Vet partied hearty before service and got Hepatitis (probably A). Lists it at beginning of service. Probably donated blood a gazillion times “voluntarily” while in service with no problem. Vet separates and donates blood about a year after service. HAA test on donated blood reveals HAV or HBV. Vet files for HCV in 2006.

Fast forward to the VA examiner in 2010 who figures it all out. Gifted with prescience, the examiner correctly opines that any Hep the Vet is filing for in 2006 was HCV that predated  service. Whoa, show me the test. Stop. The Vet says he was told he had it before he went into service but there are no private medical records and its basically hearsay. Add to that the Vet isn’t a doctor and is not allowed to comment on things medical in nature such as diagnoses. What if he acquired HAV innocently from the hand-dug well too close to the outhouse when he was a sweet innocent boy (before drugs)?

The logic here is akin to a surgeon armed with a chainsaw doing an amputation.

In this case, the Board finds significant evidence to rebut the presumption of soundness with respect to hepatitis. As indicated above, although the Veteran’s enlistment examination did not diagnose the Veteran with hepatitis, he self-reported at that time that he did not know whether he had a history of jaundice or hepatitis. The report of an April 1977 physical examination, signed by 3 physicians, included the finding “has hepatitis agent, notice 1972, NCNS.” While he was not aware of his hepatitis infection until he tested positive while attempting to donate blood after the military, the physicians at that time determined his hepatitis dated back to 1972, prior to his military service. At the September 2007 RO hearing, he testified that he was aware that he had been diagnosed with hepatitis in 1972, prior to service, and that he did not experience any flares of that condition in service. At the December 2010 VA examination he conceded a history of high-risk behavior prior to his military service, to include intranasal and intravenous drug use.

But wait

The only evidence indicating that the Veteran may not have had hepatitis prior to entering service is his own statement on the enlistment examination that he “did not know” whether he had a history of jaundice or hepatitis. His subsequent statements, both as sworn testimony at the RO hearing and as made to the December 2010 VA examiner, are to the contrary.

Does the reader not find it interesting that if this were an attempt to associate it with service, he would be denigrated as having a poor memory and all his testimony should be viewed skeptically with an eye towards not being credible. Here his testimony is to be believed totally. Interestingly enough, he (and all Vets) always seem to end up on the wrong side of the fence when testifying. Hence, if its positive testimony, its incredible and so remote in history as to be beyond the Vet’s ability to recall it. Similarly if its negative evidence that tends to implicate him/her and imply willful misconduct, it is perfectly believable and should be allowed in unabridged because it is probative and the Vet said it out of his own piehole.

Anything you say can and will be held against you unless it’s favorable.

Anything vA says about you can and will be used against you including hearsay.

Anything you failed to say or disremember can be used against you.

Anything you finally remember cannot be credible because you just now remembered it.

Any hepatitis in 1972 occurred before service because that’s when you partied.

Any hepatitis you might have had in service has been dismissed as incredible. You are not a doctor. You can only testify about drug usage. If you didn’t do drugs in service then it’s not service connected.

Absent a PCR test showing HCV in service, a Hepatitis Australian Antigens (HAA) test in 1976 after service is adequate proof of HCV before service even though it was only good for discerning HAV or HBV.

Is this Tijuana School of Medicine logic? You could bust this wide open and drive a Hummer through it. But will he appeal it to the Court? He had until August 5, 2012.