Many of you who approach me and ask for help with your VA claims for Hep C have already pissed in the well and have a higher level of burden of proof to overcome. One thing I see repeatedly is the taint of drugs and therefore the willful misconduct hurtle. While many consider this insurmountable, they do not comprehend the nature of VA jurisprudence.
Here is yet another case of the same. This one could easily be reconciled with the Veteran’s list of known risk factors.
[T]he evidence supports some in-service risks for contracting hepatitis C. The Veteran asserted exposure to hepatitis C in service through boxing with blood contact, vaccines and jet injected inoculations, unprotected sex, drug use, improperly cleaned dental equipment, Lyme disease, and herbicide exposure. Service treatment from February 1968 notes a painful, swelling nose from boxing, and treatment from April 1969 shows a lower lip laceration. This evidence and the Veteran’s reports show that he boxed in service with the possibility of blood contact. Service treatment records also document vaccines and immunizations. Service records show treatment for sexually transmitted diseases supporting the contention that the Veteran had unprotected sex while in service.
Veterans soon discover that the VA will zoom in on any drug use and focus on it to the exclusion of all other risks. Having admitted it and recognizing it was a risk is done willingly with no thought of hiding it. This speaks loudly to credibility. However, to focus on this risk-indeed, to categorically declare it the reason to the exclusion of all others- is myopic at best and adversarial at worst.
When weighing risks, VA will always endorse any substance abuse as being the culprit. The CAVC has looked askance at this shotgun approach to any form of drug abuse in the past and has vacated and remanded like cases for an explanation of just how alcohol abuse could ever be a risk factor for Hepatitis C. I suppose if you shared a pipe while smoking Tangueray or a straw when snorting a line of Bourbon it could make the case. Since we know Hep C is transmitted by blood, we can use VA’s favorite analogy and say there is no evidence in the service medical records of a Veteran sharing a bottle of whiskey with another who had an open cut on his lip. VA regularly says we should be able to find this kind of evidence of Vets who shared razors or toothbrushes in the STRs. My favorite is one VA examiner’s innocent observation that a medic who claimed he was stuck with needles repeatedly over several years was not a credible witness because the needle sticks were not documented in the STRs.
If a Vet engaged in boxing and ended up with a bloody lip, that would be an enormous risk for HCV exposure. Here, the VA examiner gives it short shrift-along with multiple exposures to unprotected sex, and, indeed the subsequent STDs associated with it. In sum, what we have here in service is the Perfect Storm of risk factors. Nevertheless, the VA examiner discards all of these as low-risk in favor of the ones post-service as well as the potential drug taint. When all else fails, throw the willful misconduct flag.
Regarding drugs, there is conflicting evidence on the extent of the Veteran’s drug use. During July 2004 VA treatment, the Veteran reported using cocaine in the past, smoking opium in Vietnam, and continuing to use drugs after Vietnam. In a November 2011 statement, the Veteran again confirmed the use of cocaine and opium in-service. Although the Veteran struggled with alcohol abuse, more recent VA treatment records show that he was not using drugs. The last confirmed incident of marijuana use was 2006. October 2004 treatment records note a report of IV drug use in the 1970s. In the November 2011 statement, the Veteran denied ever using IV drugs, stated that the treatment records were wrong, and that he requested a transfer from the provider who created the false record. With IV drug use aside, the evidence shows that the Veteran began using drugs and alcohol in service and continued after. He later had significant treatment for substance abuse. As such, the Veteran’s use of drugs and alcohol in service was not isolated and infrequent but instead substance abuse outside the line of duty.
Please note the non sequitur. Johnny Vet has acknowledged he used toot and smoked the O in service. Those two, in and of themselves, are not a dealbreaker for one primary reason. They are simply two of several enumerated reasons which include boxing and sexually transmitted diseases. Given the pool of risks, no single one can be definitively proven to be the culprit. Merely seizing on the drug usage as the most likely doesn’t give the Veteran the benefit of the doubt that his HCV might have been innocently acquired by a defective cherchez les femmes technique or boxing while bleeding.
Johnny Vet’s loss here is clearly attributable to one missing ingredient- an IMO (nexus) that could link his STD’s to HCV. A nexus letter is so powerful that when properly constructed, casts doubt on any one risk factor being the culprit. Considering this is all horribly conjectural in the first instance, for anyone with a smattering of medical knowledge to gaze into the crystal ball and definitively diagnose the Vet with HCV due to willful misconduct is ludicrous. Ignoring the documented STDs is a classic VA technique often employed in the absence of a nexus letter . The VA examiner would never attempt this had Johnboy arrived with a note from his doctor.
A well-reasoned IMO would categorize each and every risk as an equally weighted item. The use of gunsha or smoking O do not rise to the level of risk. The consumption of mass quantities of adult beverages alone could never rise to that level. To use each and every one of these as precursors or to cast them as behavior that would automatically lead to risky drug use via injection of drugs is pure supposition. Using the same line of arguments, a good case could be made for a flat earth.
Sadly, even the Alabama Dept. Of Veterans Affairs appears to be no more talented than the major league VSOs in this game. Allowing a Veteran to go to the BVA gallows pole without a nexus of any kind is gross negligence on its face. Considering Mario Caluza taught us the wrong way to go about this back in 1994, it would seem that information would have been disseminated widely by now and the error would be almost non-existent.
As my daddy once said, a mistake made twice is a conscious decision. I couldn’t agree more.