For years and in my book, I’ve tried to impress on VA claimants the absolute necessity for continuing to pound home the appeal-even if it involves remand after remand after Joint Motion to Remand. Here it paid off in a unique decision all of us can utilize. Print it up and hand it to you nexus doctor. Several passages are gold for our claims. To wit:
The Veteran’s attorney submitted an October 2012 statement from a private physician. This physician disagreed with the findings of the August 2012 opinion of the physician’s assistant. He reported a brief explanation and history of Hepatitis C infection, noting that it is usually asymptomatic. He reported that the virus was initially isolated in 1989 and a reliable test was not developed until 1992. He stated that the virus is transmitted blood to blood, usually by tattoos, infected needles, razors, blood transfusions, etc. He added that the acute phase was 6 months and that the person was usually asymptomatic. Further, in approximately eighty percent of infected individuals, the antibody is detectable about 3-15 weeks after infection. He also referred to April 2000 medical testimony presented before the Subcommittee on Benefits on Veterans Affairs, which noted that one out of every 10 veterans were infected with Hepatitis C virus (HCV)), which is a rate five times greater than the 1.8 % infection rate of the general population. In addition he noted a 1999 Veterans Health Administration Study that found that 10 percent of veterans were infected with Hepatitis C.
This physician also noted that you need only one drop of blood of infected blood to come into contact with the blood stream, which can happen with a small nick of a razor or with micro tears in the gums of your mouth. The virus does not have to be directly injected into the veins. He reiterated that the Board conceded that he was exposed to blood while on active duty.
He stated that he disagreed with the findings of the VA examiner in August 2012 regarding the absence of documented treatment for Hepatitis C for an extended period of time after service discharge. He noted that a reliable test for Hepatitis C was not developed until 1992. Moreover, Hepatitis C does not manifest as an acute illness upon contraction of the virus and is usually not detected until decades later when there is late stage liver damage. As such, the VA finding that the lack of a diagnosis of Hepatitis C for nearly 35 years should not apply.
In addition he disagreed with the VA examiner’s reference to the Veteran’s post service high-risk activity. He stated that the Veteran would have had to share intranasal devices contaminated with Hepatitis C and have an open portal of blood entry in his nares. The physician found that there was a much higher chance of contracting Hepatitis C from such in-service activity as multi-injection air gun than any intranasal transfer from drug use. Finally he disagreed with the VA examiner’s statements regarding the fact that the Veteran’s military service represented approximately five percent of his adult life. He argued that regardless of the percentage of time the Veteran spent in the military, he was exposed to blood (as conceded by the Board), then it is just as likely as not that he contracted Hepatitis C while in-service. He stated that “[it] would be impossible for anyone to say specifically which route caused his Hepatitis C infection. There is no way to pinpoint one of those modes of transmission as the only factor.”
Well, there you have it. The first admission by a medical professional that a jetgun is far more lethal than a coke straw. Well, duh.
RO Denial in 2008
BVA remand in 2009
BVA denial in December 2010
Court JMRs the BVA in April 2011
BVA remands again in September 2011
BVA denies again in December 2012
Court vacates BVA denial and JMRs to the Board again in August 2013
BVA reverses and approves SC May 2014.
Now, just imagine if he had not had Rule 900 and an advancement on the docket? This old boy would either be dead or still sitting at St. Pete’s awaiting the first of those BVA remands from back in 2009. Ain’t justice a wonderful thing when it works?
Bookmark this one under “One Drop of Blood”. It’s about time they realize what a lethal disease factory we are. With ten pints of blood, you could theoretically contaminate every man woman and child in America. At the VA, you could only infect yourself if you shot up or snorted the Devil’s dandruff.
And a warm thank you of appreciation to Kathy Lieberman, Esquire for her bang up job of rainmaker for this gentleman Vet.