With the amazing blood tests for liver diseases in this day and age, buttressed by liver biopsy showing age of the infection, there is simply no reason on earth for a BVA decision like the one I describe here. The only logical test to differentiate between Hepatitis A and Hepatitis C is ignored. This evidence is presented and accorded zero probative value. On top of that, the American Legion is not covering Johnny Vet’s back. No nexus of any kind, in spite of the avowed Holy Writ that one cannot win without it, is presented.
In the last twenty years or more, we have advanced medically such that we can ascertain without any doubt whatsoever, the medical history of all flavors of Hepatitis in any given individual. If you ever had any of the three (A,B or C), blood lab testing can tell you not only if you had one or not, but whether you currently have it. There’s no Voodoo medicine involved. In fact, there is nothing complicated about it. If you have never had Hepatitis A, for instance, doctors tend to vaccinate you against it nowadays before they even consider the newer treatments of Sovaldi or Harvoni. The same applies for Hepatitis B. That test (Australia Antigen) has been around since 1970. Nevertheless, the newer Immunoglobulins test that encompasses IgA, IgG and IgM nails it down unequivocally. So why is it not being presented here in more detail and blowing this denial out of the water?
Reading through BVA hepatitis C decisions is not for the light of heart. It will break yours. I see far too many Vets march smartly to their VA claims funeral with a name brand VSO holding their hat and coat while they duel. Here, we have another Johnny Rebel with his VSO in tow. It looks suspiciously like he’s onto the right blood test showing no evidence of ever having been infected by the HAV (formerly called infectious) ever in his life.
In May 2008, the Veteran underwent a VA examination. The examiner noted the Veteran’s history of treatment for a “previous infectious hepatitis, type unknown.” At the time, the Veteran reported hepatitis C was discovered in 1999 on a routine physical examination and lab screening. Blood test results were set forth in the examination report. It was noted that hepatitis A virus IgM Ab was not indicated.
So VA was puzzled as to why HAV antibodies were not detected if the hepatitis in service was “infectious” as documented. Let’s parse Hep A IgM Ab in the search bar and see what it turns up. Ta-daaaaa! No less an authority than the Mayo Clinic is well aware of the significance of this test so how is it the VA Judge affords it no value?
With respect to the Veteran’s arguments, the Board finds that the specific, reasoned opinion of the medical examiner is more credible and of greater probative weight than the lay assertions of the Veteran that he had hepatitis C, rather than hepatitis A, in service (including the assertion that negative hepatitis A results in 2008 indicate the Veteran did not have hepatitis A in service). This finding is based on the medical examiner’s greater training, knowledge, and expertise than the Veteran in discussing medical etiologies. We also note that the examiner reported that individuals could have antibodies that are not detectable (detectable antibodies have disappeared).
This is disturbing news for any number of reasons. Ignoring the simple fact that the above highlighted in red is patently false, why is it that the finding is allowed to stand? One does not come down with a virus, heal and not obtain life-long immunity to it. This is especially true in Hepatitis A and B infections. If you have never had them, there can be no antibodies to them in the system. Conversely, anyone who has ever been infected carries the antibodies for life as well as immunity to any future infections. This is medical science 101.
VA has adroitly allowed the conversation to degenerate into a he said-she said argument as to whether it was Hepatitis C in 1971. There is no need to make that determination and Johnny Vet is not educated enough to make the call anyway. The simply blood test showing no Hepatitis A infection makes the whole decision an exercise in Bozo medical nexus letters. My apologies for taking Bozo’s name in vain.
I only hope this decision can illustrate just how flawed VA law is and how it is allowed to run rampant over legitimate claims. This is also a lovely example of what you get with your “free” legal representation from VSOs.
Here, although the Veteran was hospitalized with “hepatitis, infectious” during service, the July 2008 VA examiner determined that the type of hepatitis was that of hepatitis A. The Board finds the July 2008 VA medical opinion to be highly credible and probative evidence against a finding that the Veteran had hepatitis C in service. The opinion was well reasoned, based on a review of the record, and rendered by a medical doctor with a master’s degree in public health. The medical opinion indicated that one of the more common causes of acute hepatitis is the hepatitis A virus. The examination report also indicated that since the application of accurate serologic investigations in the 1980’s, the epidemiology, clinical manifestations, and natural history of hepatitis A have become apparent. Thus, the Board finds that the Veteran was hospitalized with hepatitis A in service.
So, they said it was HAV in 1971. Since that has already been determined (in the absence of a simple blood test to prove the contrary), there is no need to go any further in this discussion. This is the famous VA bait and switch technique we see quite frequently. You are arguing no Hep A apples and VA is countering with no Hep C coconuts. The arguments are inapposite but that is what you get without proper legal help.