Well, good to see there were only 1006 more than the last, positively, no more end of the year, last minute rocket dockets from hold back files. And VA did it smartly within a two week period of the New Year. Would that they could do so well with our claims.
Ever notice that seal to the right has a rope around it? Yep. They’ve been advertising their specialty right under our noses all these years.
Having reviewed the majority of the 2014 decisions, the ardor for helping Vets with HCV via a jetgun, has abated in the last quarter. It was hoped that their “glasnost” signified a new day. Unfortunately, there is none nor has there ever been any. Move along, folks. Nothing to see. Keep moving.
Here’s a Hepatitis CUE win for the end of the year. And here’s Johnny Vet with gonorrhea and he still lost. His brother is a retired Army Col. and a physician and wrote what is possibly the worst nexus letter ever penned.
The service personnel records show that from October 1973 to August 1974 the Veteran was at Udorn, RTAFB Thailand. The service treatment records, including the entrance and separation examinations, contain no complaint, finding, history, treatment, or a diagnosis of hepatitis C, or of a tattoo or of ear piercing. On separation examination in January 1975, history included gonorrhea in 1974. On physical examination for identifying marks, scars, and tattoos, there was a single entry of a 3 inch transverse scar on the lateral aspect of the left leg. After service, private medical records document hepatitis C in May 2002. The private medical records contain no history of the etiology of hepatitis C.
How can Penny Rentanurse say that HCV is not sexually transmitted or, in the alternative, how can she say it would be far too speculative to conjecture on it because it gave her the vapors. Proof of a STD stands out in your medrecs (or STRs). “Gram positive” is the dead giveaway. The CDC acknowledges it. Looks like he’ll have to squander 50 George Washington coupons to get a nonadversarial trial.
As for the favorable medical opinion, the Veteran’s brother, who is a retired Army Colonel and a physician, stated that the Veteran acquired hepatitis while on active duty and that after service the Veteran had manifestations of hepatitis. The Board finds that the opinion is not persuasive evidence on a material issue of fact, namely, exposure to hepatitis C during service, because the opinion assumes that an airman or a sexual partner with whom the Veteran shared the tattoo and piercing instruments was already infected with hepatitis C. As there is no way to determine or to know on the evidence of record that one participant had hepatitis C infection, it is simply a matter of conjecture, that is, an opinion based on speculation or stated differently an opinion based on insufficient evidence to ensure reliability. Evidence based on mere speculation or remote possibility does not rise to the evidentiary standard of reasonable doubt. 38 C.F.R. § 3.102. As for the unfavorable medical opinion, the VA examiner assumed that the Veteran’s statements were factually correct about the risks factors in service, namely, getting a tattoo, ear piercing, sexual contact, sharing of toiletry items, or air gun injections, but unlike the favorable opinion the VA examiner concluded that the risks were limited and there was no way of stating with any certainty that the risks were in fact exposure to hepatitis C. The VA examiner stated that it was impossible to render any meaningful probabilities of infection as other risks, pre-dating and post-dating the Veteran’s period of service, were not known. Although the VA examiner concluded that an opinion could not be rendered without resorting to speculation, the VA examiner adequately supported his conclusion that actual causation of hepatitis C could not be selected from several potential causes. See Jones v. Shinseki, 23 Vet. App. 382, 390, 91 (2009) (a medical examination is not inadequate because the medical examiner cannot reach a conclusion without resort to speculation). The Board finds that the VA examiner’s opinion, which is evidence, opposes rather than support the claim and outweighs the favorable medical opinion.
There you have it. A medical examiner saying it’s too speculative to decide trumps a MD’s actual nexus that confirms it. We’ve come a long way baby. I could have sworn that “absence of evidence is not negative evidence.”
So we have a Vet with no credibility with an STD recorded as occurring in service. His brother, a physician said he got it in Nam. His biopsy points to that era in the number of years of liver degeneration. And the examiner can’t come to the conclusion that it was the clap because no one knows whether the prostitute(s) had the clap. They’re telling the Vet to round up the other six Tattoo/ear piercing party participants from his days at Udorn and submit their blood tests in the vain hope that one of them has HCV of the same genotype. I’ve never heard of bloody buddy letters other than the Vet in Texas to whom it was suggested that he find the whole company he was in the jetgun shot line with in 1967 to find out if it was the same genotype. That’s a shit ton of folks to sift through but would never be considered adversarial, ne c’est pas?
Remember that there are three outcomes to these travesties of justice-a remand for the RO to test out their new clothesline rope; a win with a remand to “Write ‘er up!” or the soft dulcet tones of “we tried ever so hard to see it your way, but….”