In my continuing search for information on Malcolm in the Middle’s quest for more definitive proof of injuries due to untreated HCV for 12 years, and his later Interferon prophylaxis that damaged him further, I came across Mr. David L. Mapa’s case. This is a treasure trove of assets the likes of which are rarely found in one case.
The CAVC has inadvertently given us much to use in our own defense by publishing VA’s own articles about this disease. In spite of clever arguments to the the contrary by VA examiners, the damning evidence is chiseled in stone by their own hand. I cherry pick these gems from the decision to emphasize my point:
Here, the 2003 VA medical opinion dismissed the appellant’s statements regarding jet-gun injections by referring to a 1999 article on the devices and stating that “injectors can be used safely . . . [with] proper training and sterilization procedures.” Without addressing the substance of the article or analyzing its application to the facts of the appellant’s case, the medical examiner merely stated that “[i]t is unlikely based on this
information that the hepatitis C was transmitted by jet injector device used for immunization on this patient.” There is no explanation as to why the examiner believed that the jet injectors were used properly or were adequately sterilized in 1974. In addition, the examiner failed to recognize that the article supported the appellant’s claim, as well. First, the article states that “as with any reusable device, [jet injectors] may have the potential to spread pathogenic viruses and bacteria.”
Second, it states that
the report of an outbreak of hepatitis B virus . . . transmission following use of one type of multiple-use nozzle jet injector in a weight loss clinic and laboratory studies in which blood contamination of jet injectors has been simulated have caused
concern that the use of multiple-use nozzle jet injectors may pose a potential hazard of bloodborne-disease transmission to vaccine recipients. This potential risk for disease transmission would exist if the jet injector nozzle became contaminated with
blood during an injection and was not properly cleaned and disinfected before subsequent injections.
Another passage from this decision which I find will help many of you on jet gun claims:
Further, the 2003 medical opinion is inadequate because it relies on an inaccurate factual premise. To support the conclusion that the appellant’s hepatitis C is not related to his service, the
examiner referred to an article that found that “approximately 40% of patients with hepatitis C lack identifiable risk factors.” Reliance on this statistic is flawed, since the appellant in this case actually has identifiable risk factors: jet gun injections and shared razors. see also Hepatitis C Basics: How is hepatitis C spread?, U.S. DEP’T OF VETERANS AFFAIRS,
http://www.hepatitis.va.gov/vahep?page=basics-04-00 (listing “sharing . . . razors, toothbrushes, and other personal health items” as an example of a risk factor). Neither the Board nor the medical examiner raised doubts as to the veracity of the appellant’s statements with respect to his receiving inoculations by jet gun injection or sharing razors while hospitalized for hepatitis A in 1974. Because this opinion placed such significant weight on an inaccurate factual premise, it is of “questionable probative value.” See Mariano v. Principi, 17 Vet.App. 305, 317 (2003) (stating that flawed methodology in a medical report renders the report of “questionable probative value”); Bielby v. Brown, 7 Vet.App. 260, 269 (1994) (finding a medical opinion lacking in evidentiary value where it fails to consider the correct facts documented in the claims file).
Note the bolded in red above. The CAVC has now taken judicial notice of the fact that jet guns are considered a risk for HCV. Very important!
Another argument you absolutely need to introduce in your appeals is the nature of the disease and it’s latency.
In addition, both the medical examiner and the Board emphasized the 20-year time span between the appellant’s active duty and his diagnosis of hepatitis C. In general, the
Board may consider a “significant time delay” between service and diagnosis as a factor arguing against service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
However, the emphasis on the time delay here is unjustified. As noted by the appellant in his testimony and in the medical literature evidence he submitted in 2002, hepatitis C was not known until 1988; see also Lewis v. West, 16 Vet.App. 454 (1999) (table) (taking judicial notice of a 1999 VA news release stating that “the virus was characterized by the name hepatitis C in 1989”). In May 2001, VA published a final rule amending 38 C.F.R. § 4.114, adding a separate diagnostic code for hepatitis C and noting that “the course of these liver diseases is commonly slow and prolonged.” 66 Fed. Reg. 29,486, 29,488 (May 31, 2001) (preamble to final rule, 38 C.F.R. § 4.114). VA’s own informational web page on hepatitis C states that “[t]he disease generally progresses slowly, over the course of 10 to 40 years.” Hepatitis C Basics: Long-Term Effects, U.S. DEP’T OF VETERANS AFFAIRS, http://www.hepatitis.va.gov/vahep?page=basics-06-00. Thus, the Board’s emphasis of the 20-year time span between service and diagnosis was misplaced.
Of course, if you attempt to visit this informative VA page above, you will discover “page not found”. My, how convenient. Relax, you have it right here to cite to as well as the reference in the Federal Register. Very important info and extremely valuable in your defense. Nothing like having the prosecution give you the ammo to shoot them with.
While Mr. Mata’s is a single judge case and not a precedent-setting one, the information in it can be pointed to and judicial notice must be taken of it when citing to it. It’s not like St Mary Schoelen of Indiana Ave. NW never said this. Or Judge Farley before her in 99, for that matter.
Now, for further citation, here’s Loretta E. Lewis v. West 1999 cited above for whom we owe so much. If Loretta hadn’t gotten this in, we’d all still be pissing on a flat rock.
There you go. More ammo for your idiot’s delight fight.