The BVA just put up the last of their decision for this year. Quite a few that were favorable for HCVets finally on the jetguns. It seems there must have been some reason the US Military decided to up and quit using those spiffy jetguns back in 1997-98. We all know that cheap expediency and budgets drive choice in the military medical. Thus, if someone in the Puzzle Palace poohbah level decided to quit the jetgun program which was very cheap to inoculate with and begin using plastic disposable syringes with individual needles, it means something was afoot.
Sanitary protocols have since been shown to be nonexistent and unattainable with jetguns short of building a disposable one-shot which would be prohibitive financially. Nevertheless, there was no comment when they converted-merely a new day and a new way.
BVA judges are also beginning to notice that the 2004 FAST letter also said it was “plausible” that jetguns could transmit HBV,HCV and HIV. Transmitting HBV was not only plausible but actually happened at a weight loss clinic in Southern California. Justice will continue to evolve on this until one of two things happen. Either we all die of it and solve the litigation enigma or the new protease inhibitors like Harvoni etc. cure us all. Either way, the CDC and the VA are never going to do their homework and commission a study to find out the truth at this late date.
And wonder of wonders. I got old LawBob Squarepants involved in Hep claims and he won one! Besides mine, of course. http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files6/1448280.txt
Likwise, there are some horrible decisions still coming down that are classic examples of rational fact finding gone berserk. Here’s a decision from the guru of HCV claims-none other than Virginia Girard-Brady. She appears to have hit the proverbial wall many of us do who find themselves plumb out of evidence with which to reopen our claims with. What she and her claimant have overlooked was a liver biopsy. It is one conclusive way to win a claim by showing the age of the infection via the Metavir or a similar medical classification.
Sometimes we can’t see the forest for the trees. Here Ms. Brady is focusing on a losing proposition. Submitting new and material evidence is going to have to consist of SMRs or some medical link to the contemporaneous situation at the time of service. Bolstering the c-file with the current progress of the disease is pointless. Also, one can see the fingerprints of VVA or another gomer VSO all over this. Hep C from AO? Come on. That went out with the Alien abduction theory.
The newly added evidence, in pertinent part, consists of VA treatment records which document treatment for hepatitis C. See, e.g., a VA treatment record dated October 2013. While these medical records are undoubtedly new, as they were not of record at the time of the April 2004 rating decision, these records essentially replicate the medical evidence which was of record at the time of the April 2004 rating decision, namely that the Veteran has hepatitis C. Such evidence is not new and material, since the existence of the disability was known in April 2004. See Cornele v. Brown, 6 Vet. App. 59, 62 (1993); Mintz v. Brown, 6 Vet. App. 277, 280 (1994) (stating that medical evidence that merely documents continued diagnosis and treatment of disease, without addressing the crucial matter of medical nexus, does not constitute new and material evidence). These records do not document hepatitis risk factors during service or establish or suggest that the Veteran’s hepatitis C was incurred in military service, to include herbicide exposure. There is no evidence which has been added to the record subsequent to the April 2004 RO denial which suggests that the Veteran’s current hepatitis C is related to his military service or that he was exposed to hepatitis risk factors during service.
A liver biopsy is indisputable medical proof of the age of a HCV infection. No one can refute this. It falls into the category, as does a new nexus, of truly new and material evidence that has immense bearing on the etiology of when the infection was acquired. As such, it is the winning ticket for this battle. Unfortunately, this must be produced at the AOJ or BVA before a decision is entered. Ms. Brady is going to be hard-pressed to add new evidence should she take this to the CAVC. In fact, I doubt a JMR would be attainable here because the BVA Veterans Law Judge sewed this up tight. Her legal game plan may have to involve refiling if she and the Vet hope to attain service connection.
Here’s another attorney’s futile effort in the same vein. It really should not be so hard to put these things together cohesively and win them if the biopsy is a matter of record and supports the proposition.http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp14/Files6/1446754.txt
Most Vets do not comprehend that all the evidence has to be in by the time you get to the CAVC.
Here’s a good one on jetguns: