Here’s a wonderful single judge decision on Hepatitis C/HCC (hepatocellular carcinoma) jurisprudence. Ms. Dwyer should never have been subjected to this effrontery. The BVA weenies sent this thing out to get a clarification on “at least as likely as not” and the VA’s whizbang “hepatologist”, who was probably a EENT guy, couldn’t get the wording right. Not once but twice. Judge Hagel has to remand this to fix it but it should be a cut and dried reversal in Vetworld.
We get one shot at getting our nexus info correct. VA still manages to denigrate it and make it sound as if everyone the Vet asks to opine is medically challenged or has less than the requisite credentials to be probative. VA is fond of trotting out the talisman that their doctor has read the c-file and is far more informed. Here, Mr. Dwyer’s c-file has “burned up” in the miraculous Friday the 13th Of July 1973 fire. Perhaps it didn’t and they just wanted to see if it would catch air.
Meet Meridyth Dwyer, ably represented by one Sean Ravin, Esq. who is no stranger to 625 Wagon Burner Lane NW. Ms. Dwyer has been flogging this dog since her beloved William moved on to the next plane of his existence in 1995. VA has just as vociferously been telling her to get lost that long. Everything she did was futile because VA suspected they could blow her off. They did for a number of years as you shall read. It took a sleuth like Sean to go in and disassemble it to find VA’s fatal flaws. When you deal with the Katzenjammer Kids at BVA, you never know what kind of justice they’ll pull out of their hats. In this case, the OGC was desperately trying to get Hagel to just shut up, quit finding more and more things wrong with the denial and let them get it back to the BVA judge for a fresh horse, a new rope and a tall tree to hang her from.
Mr. Dwyer filed in November 1994 and punched out four months later in March 1995. Mrs Dwyer promptly stepped in and picked up the reins within the magic year for DIC and accrued bennies. In July 1997, she finally got a BVA hearing in front of a Judge. The claim stalled there until March 2004 for an IMO. Think about that, folks. Seven years and six months delay to have a learned hepatologist peruse the record and opine from Mt. Olympus. Most VA remands from the BVA come with a RFN codicil. Seems Ms. Dwyer wasn’t on the A-list. Perhaps Vets’ spouses don’t get this consideration. Imagine how long this would take at VARO Detroit.
The major error was the BVA twit, Mary Gallagher and her staff attorneys didn’t perform due diligence and make sure the IMO from Dr. Aytaman (of India) was properly constructed. We live in the benefit of the doubt world so a decision must rest on whether it is “at least as likely as not” (50.000000001%) that Mr. Dwyer contracted this from jetguns in the service. Dr. Aytaman, as most doctors are prone to do, just had to put his own personal imprimatur on it with wording of his own choice. He chose a much higher standard of “more likely than not” which is against the law at the VA– but only if you actually get caught trying to pull this stunt.
However, the prevalence of [hepatitis C virus] infection in the 1950[s] was quite low, and the risk of nosocomial transmission from improperly sterilized reusable needles is also quite low. Therefore, we cannot say that the acquisition of [hepatitis C virus] in [Mr. Dwyer] is more likely than not related to vaccinations.
In this case, however, we cannot determine the origin of the [hepatitis C virus] infection, and therefore, we cannot say it is more likely than not that the patient died as a complication of illness acquired during military service.
Almost a year later, in January 2005, when called out on it, the good doctor asked for another 30 pieces of silver to correct it. The second time was no better than the first because doctors are soooooo pigheaded. They think regular rules do not apply to them.
the incidence of [hepatitis C virus] in [World War II] era or pre[-]Vietnam era veterans remains low and not higher than seen in general population. Review of available records does not allow us to conclude…
with the . . . records [available] to me hepatitis C infection during service is not very likely.“
I keep waiting for his pet chipmunks to pop up out of his pocket and begin singing about the nexus in three-part harmony somewhere here. The inclusion of numerous “us”s and “we”s leads me to believe he might have suffered a schizoaffective disorder and had some of his “friends” in the office with him as he composed these opuses. If I’d been old Sean, I’d have been asking for some clarification on Alvin’s, Simon’s and Theodore’s last names so he could bring them in for questioning. If it was a consensus nexus, it would only seem fair to round up the other
suspects doctors who were party to it.
Nevertheless, many more errors were made but current CAVC rules say it only takes one good one like this to derail the denial. Meridyth and Sean get to head back to St. Petersburg and sharpen their pencils again. The VA may decide to throw in the towel but it looks iffy. My money is on the third coming of Dr. Aytaman for his “third time is the charm” nexus where he sounds it out with Phonics (and a lot of coaching from the OGC). You can almost hear Leigh Bradley reciting ” The rain in St. Petersburg at least as likely as not falls on the plain”.
It’s sad that we as Veterans can’t have a waiver of endless review at the Court that forbids VA to keep sending out to “fix” claims so they stay denied. I look forward to the day when Judge Meg Bartley gets to say “Well, I mighta remanded it for just the screwed up IMO, but when you dolts claimed that Miz Dwyer’s Registered Nurse didn’t have the benefit of perusing the c-file nor was she the treating physician, you stepped on your necktie. You already said Mr. Dwyer’s records were not available so what was so probative about what Dr. Aytaman read that the registered nurse didn’t, pray tell? And I don’t see any evidence that Dr. Aytaman ever set eyes on Mr. Dwyer while he walked among us so why would that entail dragging in the contention that the registered nurse was somehow less informed. She actually saw and talked to Mr. Sullivan before he passed.”
I personally would welcome a poker game at the CAVC where your two nexus letters beat a defective VA doctor’s febrile attempts at hornswogglology. In my mind, Dr. Aytaman and his singing chipmunks have demonstrated misfeasance by trying to appear objective too many times. Judge Hagel should have been allowed to say “Sorry, Will. You can’t resurrect a fallen soufflé. Ain’t gonna happen”.