VA Examiner (RN)

I have heard innumerable Vets who were told by their VSOs that VA will take care of the nexus. Most don’t even say that much if you don’t ask. Nowhere is it written that you would be advised to do it yourself (obtain the nexus). VA certainly doesn’t discuss this in DickandJanespeak.

This causes immense confusion and denied claims for the most part. The following is a classic example of relying on a VA examiner to do the right thing. Johnny Vet from the land of Lincoln, Nebraska runs into this wall when he applies for hep. Notwithstanding he had documented exposure to it in service, VA is quick to denigrate the evidence. Analyze this for a moment. How many decisions have you read here on this very site where the VA says “gee, bubba, there’s nothing in the records ergo it never happened.” ?This time around the Vet has all that and more but VA has a new attack: ” Gee bubba, tattoos aren’t proven to be a cause of hep. C. And besides, just because he was exposed to a lot of blood risks and hep in service doesn’t prove much.” So at what point do the scales tip towards the fabled benefit of the doubt-if ever?

As to the hepatitis C claim, the Board notes that VA has recognized the following activities as known risk factors for hepatitis C: intravenous (IV) drug use, blood transfusions before 1992, hemodialysis, intranasal cocaine, high-risk sexual activity, accidental exposure while a health care worker, and various kinds of percutaneous exposure such as tattoos, body piercing, acupuncture with non-sterile needles, shared toothbrushes or razor blades. See VBA letter 211B (98-110) November 30, 1998. A VA Fast Letter (FL) issued in June 2004 (FL 04-13, June 29, 2004) identified “key points” that included the fact that hepatitis C can potentially be transmitted with the reuse of needles for tattoos, body piercing, and acupuncture.

Wisely, or fortunately in this case, the VLJ is conversant with the risk factors questionnaire and Johnbo Vet wins on the tattoo if nothing else. This illustrates the blatant disregard or outright ignorance of VA examiners. Whether they’re just lazy or ignorant is immaterial. The catastrophic effects of  forcing a sick Veteran into a prolonged three year appeal is almost criminal. The financial ramifications alone are often enough to provoke homelessness in some cases.

…the December 2009 VA examiner opined that it is highly unlikely that the Veteran’s hepatitis C was caused by one of the risk factors he reports from service. The examiner thereafter opined that the Veteran’s exact risk factor is undeterminable and no alleged risk factor is more likely than another to be the cause of his hepatitis C. In support of his opinion, the examiner opined as to the Veteran’s exposure to waste water and sewer flooding, that he could not find any documentation that states that this exposure could cause hepatitis C. As to the tattoos the Veteran received while on active duty, the examiner opined that tattooing has not been “extensively proven” to cause hepatitis C. As to the Veteran’s other claims regarding in-service blood exposure holding dressings on injured sailors, the examiner opined that under current guidelines this is not a major cause of hepatitis C.

Kind of makes you wonder what planet these fellows have been living on for the last several decades. Probably the same one as The Old Medic over at Yuku’s VBN.

The Board does not find the December 2009 VA examiner’s opinion probative because the examiner disregarding VBA letter 211B and the VA FL issued in June 2004 which specifically found that tattoos, like the three the Veteran received while on active duty, are known risk factors for hepatitis C. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Lastly, the Board does not find the December 2009 VA examiner’s opinion credible because the examiner did not appear to apply the “at least as likely as not” standard but instead applied a higher standard such as “extensively proven” and “not a major cause.” Id.

Remember that last sentence above. VA is fond of raising the bar so high you cannot overcome it. We are held to the standard of “at least as likely as not” to win. When denied, be sure to peruse the language they use and the rationale. As here, it is often illegal as sin and they do it every day. The decision is also correct if you do not appeal. That happens far too frequently due to the ineptness of VSOs who wouldn’t recognize a legal violation if it was typed out and taped to a naked lady. The VSO would be far more likely to appeal based on a new review and benefit of the doubt being overlooked.

Never depend on others to build your case. Do not do as I did and expect the facts to be uncovered and exonerate you. It just doesn’t happen. Here, an injustice was averted by a watchful and knowledgeable  VLJ. The results could just as easily have gone the other way. This Vet had a nexus and VA still kicked him in the teeth in spite of it. All the more reason to get the two nexus/IMOs I advocate you obtain.

One last point would be that this Vet, now ably represented by a lawyer, did not have the wherewithal to challenge the medical qualifications of the VA examiner who erroneously screwed him over. VA often talks about quality control and getting multiple signatures before pushing print. I don’t see it.