FROM THE VERNON W.

HOWELL MEMORIAL VARO

IN WHACKO, TEXAS

Before I begin, let me say that this decision is flawed for any number of reasons. The definition below is for RPR, a diagnostic tool for syphilis. In no way shape or form does it pertain to HCV or any hepatic infection. Notice the spelling of reagin versus vA’s version.

Rapid Plasma Reagin (RPR) refers to a type of test that looks for non-specific antibodies in the blood of the patient that may indicate that the organism (Treponema pallidum) that causes syphilis is present. The term “reagin” means that this test does not look for antibodies against the actual bacterium, but rather for antibodies against substances released by cells when they are damaged by T. pallidum.

In addition to screening for syphilis, an RPR level (also called a “titer“) can be used to track the progress of the disease over time and its response to therapy.

Trust those vA examiners to get to the bottom of this one. I do hope the gentleman drops the DAV and gets real legal help before he goes to the Court.

The Veteran’s service treatment records reflect that on the Report of Medical History portion of his January 1974 enlistment physical examination, he answered “don’t know” with regard to whether he had a history of jaundice or hepatitis. There is no discussion of hepatitis in the examination report, and it is noted that serological tests were “non reactive.” There was no diagnosis of hepatitis in service. On the Report of Medical History portion of his separation examination in April 1977, the Veteran answered “yes” to the question of whether he had a history of jaundice of hepatitis.” The examiner at that time noted that the Veteran “has hepatitis agent, notice 1972, NCNS.” A rapid plasma regain (sic) (RPR) test was noted to be non reactive.

So. The Veteran answered yes to a question as to whether he had “hepatitis” in 1977 during his separation physical.  He mentioned as much again in 2007. These are not supported by medical records and, as such, are just hearsay. If you came into court with this at Judge Judy’s, you’d be rode out on a rail. Hearsay. Supposition. Conjecture. All these words come to mind. Do you see the words “under oath” anywhere in all that? I reported the same thing in 1973 on my discharge physical. vA ignored it and said it was “history” unsupported by fact. Johnny must have been more morally upright than I was back then. They pretty much believed everything he said.

In 1992, Mrs.  Jovita Espiritu came to town and put forth an interesting proposition about the etiology of her dead husband’s diseases/injuries incurred in service. Neither she , nor any of her neighbors were doctors yet they tried to make medical diagnoses on numerous occasions over the course of the claim. Thus Jovita was rightfully ensconced in the COVA Hall of Fame along with Norman Gilbert and the others. What Johnny Whacko has done is no more than the same. Perhaps less. All he has testified to is that he”thought he had hepatitis in 1972″. As he isn’t graced with an MD after his name this is simply a subjective assessment with no corroborating evidence to support it. Here’s the the gist of the basis for the necktie party.

 At a September 2007 RO hearing, the Veteran answered “yes” to his representative’s question as to whether he was diagnosed with hepatitis in 1972, prior to entering service. The Veteran further testified that he did not have any flare of or receive any treatment for hepatitis in service. He indicated that he was not aware that he “really had hepatitis, other than, the, I guess the virus,” until six months to a year after service when he attempted to donate blood and was told he had hepatitis.

This says much. It informs us that he was diagnosed with “some form of hepatitis’ detectable by the only test in the western world at the time-the ambiguous Hepatitis Australian Antigens (HAA) one. If it was positive, you had HBV. Negative was taken to mean HAV.  Diagnosis was impossible for HCV. However, if you had visible symptoms and Liver Function Tests (LFTs) that revealed a raging, ongoing jaundiced adventure, it was often said you had Non-A, Non-B hepatitis (NANB). Strangely absent from this medical misadventure is any mention of testing to determine if he has antibodies to HAV or HBV which might illuminate what disease was active in 1972 to the present. Absent this analysis, a doctor (or vA examiner) would be hard pressed to say otherwise. Since Johnny is being accorded so much knowledge, its seems axiomatic that he should be able to opine as to which flavor it was, too. Isn’t that what vA is purporting to hypothesize?

He does a credible job of shooting himself in the foot over his extracurricular activities prior to service but that cannot be considered willful misconduct if it preceded service. Very poor life choices are just that. Until he held up his hand and said I do, he was not violating  38 CFR 3.301 or the UCMJ. He was never arrested for it or had any documented medical proof of disease prior to service so it’s –yep- hearsay. Elevating it to sworn, documented history in the contemporaneous record  doesn’t whitewash it and make it admissible.

He reported at a December 2010 VA examination that prior to his military service, he “never missed a party” and used a lot of drugs, to include intranasal drugs and intravenous drugs. In contrast, he does not recall or identify any similar risk factors in the military. He denies sharing razors or toothbrushes in the military. The Veteran recounted the same history to the examiner of learning he had hepatitis when he attempted to donate blood after service.

So what? I told everyone I was related to Santa Clause when I was 19.  It was a good throw away line for picking up babes. All we have here is a party animal who claims to have shot and snorted a bit prior to service. Nevertheless, he was declared fit for service and,  his vague assertions aside, unsure if he did or didn’t have the dragon prior to service.

 The Veteran’s service treatment records reflect that on the Report of Medical History portion of his January 1974 enlistment physical examination, he answered “don’t know” with regard to whether he had a history of jaundice or hepatitis. There is no discussion of hepatitis in the examination report, and it is noted that serological tests were “non reactive.” There was no diagnosis of hepatitis in service. On the Report of Medical History portion of his separation examination in April 1977, the Veteran answered “yes” to the question of whether he had a history of jaundice of (sic) hepatitis.” The examiner at that time noted that the Veteran “has hepatitis agent, notice 1972, NCNS.” A rapid plasma regain (RPR) test was noted to be non reactive.

The examiner here is referring back to the 1974 statement in the entrance physical. NCNS stands for No complications, No sequelae. “Hepatitis agent” is not a recognized medical term. He concluded that no less than three physicians in 1977 pointed to hepatitis (no particular flavor) based not on medical evidence but on a self-reported history. Would that it was so easy to recite our past to vA and be believed with absolutely nothing to substantiate it. Even more amazing is that Johnny Whacko is now a doctor. Jovita has nothing on him. And, of course, he doesn’t have any evidence of syphilis according to the RPR test. In fact, there is absolutely no mention of syphilis in this whole thing so why the big RPR hoopla?

Even more amazing is the ability to utilize the DeLorean with Mr. Fusion,  capable of venturing back in time and figuring out that this wasn’t any normal hep but the dreaded C.  “How did do do dat?” as my son used to say when he was knee high to a nine inch bottle of Schlitz.

The Board finds that the Veteran’s hepatitis clearly and unmistakably preexisted service based on his own testimony that he was told he had hepatitis in 1972 prior to service; the notation on the April 1977 in-service examination that the hepatitis agent was noted in 1972; his self-report at the December 2010 VA examination of high risk behavior before service; and the December 2010 VA examiner’s conclusion that hepatitis clearly and unmistakably preexisted service.

We see evidence every day of the perfidy and outright pretzel logic utilized to deny claims. I have to admit this is one of the better thought out ones but it reaches too far. If they expect him to never appeal it to the CAVC, then they can rest assured it’s bulletproof. If he appeals, this whole thing is going to come down like the two houses of the legendary pigs under a little huffing and puffing. This is the essence is “absence of evidence is negative evidence”. Worse they take the absence of evidence and build a complete house out of a phrase from a Veteran untrained in the medical arts. Johnny is now a noted gastroenterologist with F.A.C.S. hepatic credentials and credible in all his recollections. vA  seems content to fill in where he gets fuzzy on the etiology.

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.

Any time you or I mangle the timeline of facts in our recitations of memories forty years old, we are called poor historians and our testimony is declared compromised and of little probative value. The more vague Johnboy becomes in his recollections, the more credible his testimony in their eyes-the antithesis of  vA’s usual shtick. How can it be that he knows nothing at entrance to service and gradually is flush with the art of opining  over time? How come Jovita was not accorded similar treatment?  Remember Ben Layno?  The Court  told him categorically that his observations were limited to his five senses (hearing, sight, smell, touch and taste). Thus the mere mention of “Well… I’m not sure, exactly. What does jaundice mean?” would be a good indicator that Johnny Whacko wouldn’t have a clue what hepatitis of any flavor was if it came up and bit him on the ass in 1972-or 2012.

Admittedly, Johnmeister arrived without the nexus somehow. We all know how that works.

a) The dog ate it.

b) Nobody at DAV told him he needed one.

c) Being a doctor, he can provide his own

d) The vA, being standup guys, offered to provide one free of charge because Dr. Bash wanted $6,000.00 for his.

e) All of the above

Nevertheless, after all is said and done, they explicitly believe all he said in 1974, the 2007 discussion (not under oath) with the vA caregiver and the RO hearing in 2010 . How can it be that the BVA comes to this misguided analysis? One might think they had an agenda.

 The Board has considered the Veteran’s testimony and other submitted statements. The Veteran candidly concedes he engaged in high-risk behavior prior to his military service, but that he did not know he had hepatitis until after his military service. To the extent the Veteran himself is opining that his hepatitis C was incurred in or aggravated by service, the Board does not find his opinion probative as he lacks the medical training to offer an opinion with regard to etiology. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659-60 (7th Cir.1991).

Well, his opinion is highly probative- right up until it isn’t. This pretzel looped back on itself three times before heading south. The Johnster has provided much of the hemp needed for his new Western-style, Bolo tie but suddenly becomes suspect when he says the ” it musta happened in service” phrase. Notice he doesn’t point to any risk? Notice DAV is holding his coat and letting him carry the water? Notice the lack of any meaningful legal help? Johnbo had until August 5th to get his NOA in to the Court. Let’s hope he did and that he finds this.