HCV breeding ground

As we read all BVA decisions regarding HCV studiously to see if we can find new techniques for success, we often spot new trends. VA is never blatant about hepatitis risk factors. To the contrary, they tend to discount risks everyone in the medical community feel are glaring. Witness the hard time they are having relinquishing the idea that HCV should somehow be listed in your 1960s STRs when in fact it was not medically identified until 1989. 

Which is why I was shocked when reading this decision. Here, in black and white, is a new risk factor being discussed as if it has been around for years. Vietnam-era Vets are twice as likely as their civilian counterparts to have HCV. Actual in-country Vets, with boots on the ground, are 66% more likely than just the “Vietnam-era” Vets. We know this and it’s been rather common knowledge for almost a decade but the VA has never acknowledged it legally. In fact, their Risk Factors Questionnaire (RFQ) is woefully incomplete and reads more like a risible “fat chance” list than any cutting-edge, medical investigative tool.

Continuing to insist that the earth is demonstrably flat in 2013 has more adherents compared to doctors who consider the RFQ to be a useful tool for ascertaining where you got the bug. One thing that provides us endless entertainment is the idea that alcohol or marijuana are risk factors for HCV. When called on it up at the Court of Appeals last year, the Judge asked the Secretary (on remand) to please explain in detail just how and why booze and pot cause HCV. I haven’t seen that one come back up the ladder yet. My pet theory is that if you became extremely trashed or hammered (while stoned) you might fall down in a puddle of infected blood. Perhaps sharing a bottle of Scotch or a joint transmits this not-so-hardy virus via the saliva. VA can be so vexing and vague sometimes when it comes to denials. Perhaps this is why we end up appealing more often than not.

Here’s the phrase that caught my eye:

In December 1990, the Veteran had an abnormal liver function study. In March 1991, he had a normal liver function study. The Veteran was diagnosed with chronic hepatitis in June 1991; it was noted that its etiology was not yet determined. In April 2001, he underwent a hepatitis C risk factor screen and denied undergoing a blood transfusion prior to 1992, using intravenous drugs, exposure to blood, hemodialysis, having tattoos and/or body piercings, using intranasal cocaine, abusing alcohol, having an unexplained liver disease, having an unexplained abnormal ALT (SPGT) value, and being a Vietnam era veteran. He did not answer in the affirmative to any risk factors for hepatitis C. In April 2005 and July 2010, he tested positive for hepatitis C. The first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253.

As an aside, look at this incisive, nuanced timeline and the dates.

December 1990- Hepatitis (NOS) problems detected

March 1991- No hepatitis problems. Immaculate recovery

June 1991- Chronic hepatitis now apparent with no known etiology and no attempt to make any effort to find out who,what, where, why and when.

TEN YEARS GO BY…

April 2001- Somebody at VA decides to investigate how he got HCV even though he has not been diagnosed with it. (Anybody see a problem as to why you would investigate why someone has a disease they aren’t even diagnosed with yet?)

FOUR MORE YEARS GO BY…

April 2005- Someone decides to ascertain if he actually has HCV

July 2010- Someone decides to confirm this is still the case

Even money says they tested him for it in 2001 and never told him he was infected. This would be the VA Dick Tracy scenario. If he files, we’ll test him “officially” and declare him ill.

So we now have a new, recognized risk to add to our list. With the avalanche of new information coming out at the CDC and other medical research outfits, it’s apparent that the VA’s RFQ is as outdated as yesterday’s newspaper. VA still clings desperately to the “plausible but highly improbable” theory and the antiquated belief that HCV can only survive  outside the body for a few hours. Which brings up the burning question of why dirty toilet seats in gas stations are not on the list.

One other fact that is mentioned here is grossly inaccurate.

The Veteran’s STRs are negative with regard to liver problems, including a diagnosis of or treatment for hepatitis. The earliest diagnosis of abnormal liver function is December 1990, three years after separation from active duty. Significantly, the Veteran denied having risk factors for hepatitis C in April 2001. Further, in June 2009, the RO requested the Veteran identify any risk factors that applied to him and he did not identify any in his July 2009 response. No risk factors were documented in his STRs. The Veteran has not made a specific assertion as to why he believes that his hepatitis C is related to service. The second element of a service connection claim, medical or lay evidence of an in-service incurrence or aggravation of a disease, is not met.

Our Vet here would have been hard-pressed to opine on his infection vector in 1990-or any time. Need we explain to the VA that they constantly remind us we were raised by wolves with absolutely no medical training?  As for the specific denial of risks in April of 2001, I might point out that VA had no printed RFQ form in existence at the time. Here again we see the “No HCV in 1968 STRs is proof he never had Hep” logic. Any discussion of risks in April of 2001 would have been oral and recorded in VISTA medrecs. It might be a good time to do some sleuthing and find out what is really in the VHA records.

Be careful if you find yourself in one of these denial predicaments. Analyze VA’s arguments and you will see the defective logic, the “cart-before-the-horse” proof  and an attempt to find the Veteran at fault for why he lost.  Remember also, that in 1991,  Caluza, Hickson and Shedden had not been decided. A Vet would have been clueless that he/she needed the three Hickson elements to prevail.

My relatives celebrating Dad’s graduation from Medical school.