FROM THE FILES

OF THE DREW CAREY

MEMORIAL VARO

This is one of those priceless “which hep is on first?” decisions that had to end in a remand to keep the room from spinning.  Joebob Vet has a problem here and the VLJ finally consults Dorlands’s Illustrated Anatomy to ascertain what kind of hep they’re talking about.

I really hate to spoil the story but this great stuff.

 The May 2008 VA examiner has expressed the view that the Veteran may have been infected with hepatitis B and hepatitis C concurrently. He expressed the view that it is less likely than not that the Veteran contracted hepatitis C during service, but the reasoning seems limited to the fact that there was no known test for hepatitis C at that time (in approximately 1974).

And this

The Board does not have sufficient medical expertise to understand why the lack of a test for hepatitis C in 1974 renders it unlikely that the Veteran contracted hepatitis C as well as hepatitis B during active service.

And the bottom line?

The May 2008 VA examiner indicated he had no VA records of treatment to review and that he had insufficient medical information to determine whether the Veteran experienced chronic hepatitis B from active service forward.

So, if I have this right, the AOJ VA Examiner decided that no evidence was negative evidence. Claim denied. In the alternative, just because he had HBV in service ( and we’re not admitting he did), it’s almost inconceivable that he was also co-infected with HCV at the same time because we didn’t have a test for it?

There has been much discussion on HAV, HBV and HCV over the years. What did they know and when did they know it? Here’s a brief history.

1972– the HAA Hepatitis Australian Antigens) test comes out commercially. It determines by process of elimination which, of HAV or HBV, you have. If the test is positive you have HBV. If the results do not register, it’s HAV.

Newsflash– There never was a test for “Non A, Non B Hepatitis. This term materialized in the 80s. People were coming down with all the symptoms of hepatitis for a short duration mimicking a HBV (acute) infection that resolved. However, the scientists got no results for the HAA test. They knew they were looking at Hepatitis but it simply didn’t register on the HAA test.

1989– Dr. Southern develops the first test to detect HCV.

1992– Commercial HCV test is made available.

1992– Scientists come out with a sensitive RNA test that determines the presence of antibodies showing prior infection of HAV or HBV.

1999 — the HCV PCR version comes out with 100% accuracy.

There you have it. No testing available equals you never had it in service. I’d give my eye teeth to see where (and how) that’s written in the M21.

What isn’t mentioned here is the spectre of autoimmune hepatitis (AIH) or even Chronic HBV which is rare but not unheard of. I’m sure they’ll send it into the AMC “Black hole” and we’ll hear from it again in a few years. Let this be a lesson to all of you. The VARO Ouija Board raters are lost on this stuff. Groves v. Peake had it sorted out at one point in 2008. VA chooses to profess Alzheimers. If it was hep (NOS or not otherwise specified) in service in 1970 , its assumed to be the same hep in 2006. Groves used PTSD/MDD as a springboard but numerous other VLJ s have used it generously and generically to decide these styles of cases. Just as often,  others have ignored the precedent and meandered down the Maxson v. Gober road and ignored the cryptogenic propensities of HCV to hide itself until 30 or 40 years later.

VLJ Vito A.  Clemente is a past master at this. I’ve read more than one decision where he pulls this rabbit out of his judicial hat. After reading one of these, you often remark “How could he NOT arrive at this same conclusion? Well, pilgrim. Look whom you’re dealing with.

Taken at Udorn 8/1970. We flew down to get all the red clay out of the gas tank over at the AirAm AOC (codename Waterpump). We were “Laotians” that day according to the Lao Erawan on the side. Most times if we weren’t crossing an international border (such as from Laos to Thailand) we went naked with no logo. They were stick-ons and peeled off  very easily. We also had AirAm and Thai Roundels available. Oddly, we had no AF insignia we could apply. The tail number on this one changed a lot too. Most began with an “O” for Obsolete. This meant they were no longer in the AF inventory.