The lengths the VA will go to in order to deny a claim are impressive. Sometimes they resort to inundating you in extraneous facts that have absolutely no bearing on the decision. The further afield you go in an effort to rebut their voodoo medicine, the further astray you go in defending the right logic. Here’s a classic case. No flies on Veterans Law Judge George Senyk. He performed his job admirably but accepted a horribly flawed Independent Medical Evaluation (IME) which was anything but independent.
Here’s the decision. Sadly, Johnny Vet had AmLeg for legal representation.
Yesterday, on the Hadit Radio show with John and Jerrel, I pointed out an important facet of VA law. Veterans continue to misunderstand the difference between an Independent Medical Opinion (IMO) and an Independent Medical Evaluation (IME). Very few of you have, or ever will, go through an IME. If you do, you won’t be there for it. Unlike a Compensation and Pension Examination (C&P), your presence is not required.
WHAT IS AN IMO?
A proper IMO, which few of you will ever receive if self-represented or using a VSO, consists of having your treating physician or another you hire for the purpose opine on the cause of your disease/injury. In order to visualize it in its entirety, it requires reviewing your contemporary medical records from the military. This is why we tell you to obtain all records pertinent to the disease/injury to make them available to the doctor you ask to investigate it. S/he cannot simply take your word for it. If you say you had hepatitis in the service or shortly thereafter, that is considered medical history unsubstantiated by evidence. Judge Judy calls it hearsay. VA treats it like self-serving fiction recited to get their money. VA’s “examiner”, however, will always profess to having read your records. On the other hand, if you do not state the same, the BVA will ascribe more trust in the examiner’s decision than yours solely predicated on the examiner saying they did.
An IMO has to be thorough and discuss all avenues of potential risks. Thus, if you were in combat and have a Combat Action Ribbon from the Marines, that, in and of itself, identifies a risk (blood exposure). Being in Vietnam was another risk. Jetguns were a big risk. In sum, risks for Hepatitis C were many in the 60s and 70s-far more than now. Add in the imprecise method of testing and the total absence of any test for HCV and you have a rather small tool bag to resort to for answers. Any IMO for HCV should include not only a liver biopsy that dates the infection via the degree of liver fibrosis, but also a test for the actual genotype. In the 60s-80s, many genotypes were indigenous to certain areas and no others. This can’t be said now as air travel and immigration have geographically dispersed the various types. Using genotype, you can narrow down the probable area of infection. Since the disconnect from infection to the manifestation of physical symptoms varies so greatly from Vet to Vet, no one can categorically state when you were infected without a liver biopsy. Being diagnosed in 2009 doesn’t mean you got it in 2008. Similarly, having an “acute” attack that resolves in 1976 as in this case I describe, doesn’t mean it was contracted three months beforehand. It simply means the Veteran’s normal immune processes were compromised to a degree sufficient for the HCV to manifest symptomatically. The disease can resolve with no symptoms whatsoever, disappear and gradually resurface and make itself apparent 30 years later, too.
Building an IMO thus requires the big picture. Occam’s razor is a useful tool in this hunt for an answer. The simplest answer is invariably the correct answer in most cases except alien abductions. Using this theorem, the number and intensity of risk factors can be weighed versus what most normal civilian counterparts might encounter in the same time frame of life. That metric weighs heavily in our favor-or should. For years, back in the 90’s, VA jurisprudence hewed to the later Maxson v. Gober 230 F.3d 1330 (Fed. Cir. 2000) theory that time produces normal wear and tear on the body. If it didn’t manifest to a compensable degree in service or the golden year after, then it was normal wear and tear or simply old age. VA rarely resorts to the Maxson argument now re HCV.
An IMO needs to discuss each and every risk and either elevate it or discount it as being the infection vector. We know how VA does this. 85% of the time it is not service connected either because the time interval from service to diagnosis (Maxson) is so great that it becomes speculative-especially with jetguns. Given the number of risks for Vietnam-era as well as true Vietnam Veterans with real red clay between their toes, an IMO need be very comprehensive. A two liner from Dr. Feelgood saying “Johnny Vet got it in service. I suspect a jetgun or sharing razors/toothbrushes as the culprit”. is not a winning nexus (IMO). VA examiners are no better but since so many Veterans never appeal a rotten denial, VA chalks it up as a win and it encourages them to keep using the same flawed technique.
WHAT IS AN IME?
An Independent Medical Evaluation (IME) is far different from an IMO. You obtain an IMO by asking for it from your provider or hired gun. An IME is what the VA resorts to in order to rebut your IMO. It is often required when two opposing IMOs (yours and the VA examiner’s) are either horribly defective or both have a modicum of merit and the Veterans Law Judge (VLJ) finds him/herself in a quandary as to who is right. The only mechanism short of a remand is to send out for an IME. Since VA is cheap and has an ample supply of silver, handing out thirty pieces to some compliant VA Judas doctor with a concerted desire to continue his/her employment is a piece of cake. “Independent”, as a descriptive adjective, is a bald-faced lie. In all my years, I’ve seen what I perceive to be a truly independent nexus only once- my own.
My doctor’s IMO stated I had Hep in service which was not otherwise specified (Hep A, B or C). He opined that since my genotype was 3A, solely indigenous to Southeast Asia, that Occam’s Razor implied I contracted it there. I had no record of a GSW but I did have a ripsnorting good through-and-through scar on my upper right thigh. My stage three, three quarter fibrosis biopsy reflected a very longstanding infection. I tested positive for both Hep B and C. You would think that set of parameters would suffice. You don’t know the VA. They sent it down to Diamond Bar, California to QTC’s Headquarters for “speshull” treatment. Even their folks couldn’t demolish it and I won. This was done at the Regional level so it doesn’t constitute a true IME per se. However, it does illustrate the meaning of “independent”. A truly independent IME, to most of us, would be to send it out to a noted hepatologist well-versed in the science. Our knowledge of HCV is expanding by leaps and bounds. VA once insisted that HCV was not very “robust” and couldn’t be transmitted nearly as efficiently as Hepatitis B. We now know it can dry and sit at room temperature for three full months and still infect you.
In the BVA case I speak of here, the Vet’s IMO by Dr. Chabala was good but not great. Any discussion about acute versus chronic is a non-starter. Virtually all cases of Hepatitis C rarely have any overt symptoms thus rendering the VHA IME moot. The mere presence of the HCV is the paramount issue-not whether it was acute versus chronic. As I mention, this is just a smokescreen denial that never performs the Occam’s Razor test. If he had no overt risk factors other than military service, and he came down with it less than six years after, it’s axiomatic given what we know that he got it in service. A genotype test under these circumstances was almost a given. Any medical specialist in infectious diseases would use every tool at their disposal to unearth the truth- unless they fear retribution for coming up with the wrong answer. I suppose we could consider ignorance as an excuse, too.
In December 2015, a VHA expert (a physician section chief in infectious disease) responded that based on a review of the claims file, there was a less than 50 percent chance that the Veteran acquired hepatitis C during his period of active duty service. The consulting specialist acknowledged the common and less common risk factors for hepatitis C, and the fact that the Veteran denied all of them. She explained her conclusion – with a detailed discussion of symptoms and clinical and laboratory incubation periods – that when the Veteran presented for care in February 1976, he had acute, and not chronic, hepatitis C at that time. (She described how the Veteran’s symptoms and laboratory pattern in February 1976 supported a diagnosis of acute hepatitis C rather than chronic hepatitis C.) Further, she asserted that given the Veteran’s presentation with acute hepatitis C in February 1976, it would have been “highly unlikely” that his exposure to hepatitis C occurred during active duty because the clinical latency period of acute hepatitis C was up to three months prior to the onset of symptoms. Thus, she opined that his exposure to hepatitis C must have been in the last three months of 1975. She commented upon the other medical opinions of record, to include that of Dr. Chabala, who she stated had failed to make a distinction between acute and chronic hepatitis C, thus allowing him to “ignore clinical incubation periods that are critical to the conclusion” and leading him to invoke hepatitis C risk factors “that can hardly be proven to exist, such as mass injection with an air gun and swimming in the Mekong Delta many years before.” She provided a list of medical references relating to the study of hepatitis C.
THE AFTER ACTION REPORT
Given that this Vietnam Veteran did not rebut the IME after being presented it for comment, I fault the VSO rep. Given the meagre knowledge any VLJ possesses of HCV, I cannot condemn VLJ Senyk. They can only act on what is presented before them. Having talked with VLJs both on and off the record, I do know most feel equally frustrated when a Veteran arrives with little or no preparation and no IMO/nexus tying his illness to service. There are undoubtedly two schools of VLJs. The older ones are either jaded and indifferent to Veterans due to burnout or vindictive. The younger ones are still enervated and have that innate sense of fairness so essential to a equitable adjudication. And then there are oldtimers like Vito Clemente who are Veterans themselves and recognize we are not well-served by VSOs.
Doctor Chabala, had he been apprised and willing, could have easily demolished the pseudo-IME with a follow-on IMO that rebutted this heresy. Many of us who contracted Hepatitis never manifested anything more than slight flu-like symptoms- if at all. Given the tests that showed no evidence of Hepatitis A or B, the investigation remained mired in controversy. Obviously, in retrospect, VLJ Senyk should have rejected the IME and remanded for a more complete C&P. But that was the job of Johnny Vet’s VA “claims specialist” from American Legion. File this one in the “I shoulda got a law dog” folder.
I suppose the good news is Johnny Vet can appeal this one to the CAVC if he acts before July 16th, 2016 and files a Notice of Appeal. I think the avenue for a vacate and remand hinges on this one paragraph. VLJ Senyk wisely handed him a life preserver to keep him afloat.
The probative value or evidentiary weight to be attached to a medical opinion is within the Board’s province as finder of fact. The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, whether the opinion is the product of reliable principles, and whether the opinion applied valid medical analysis to the significant facts of the case in order to reach the conclusion submitted in the opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). A mere conclusionary[sic] opinion is insufficient to allow the Board to make an informed decision as to the weight to assign to the opinion against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007).
Valid medical analysis would show this IME to be worthless. Nowhere can it be found that there is a concrete rule of medicine that HCV manifests within 3 months of being contracted. Were that the case, every one of us would be able to point to the day our buddies looked at us and said “Dude, your eyeballs look like orange juice.” Further, Johnboy here relapsed several months after attaining remission-hardly a common occurrence with Hepatitis B and never for A. Infection with either confers immunity forever. Of note in the decision was VA’s vain attempt to poke holes in this and prove via blood tests that it was Hep A or B. That dog would never have hunted. He was negative for both which is what provoked this acute versus chronic Hep C hogwash.
Obviously, with the backlog out the door and down the block like Black Friday at 810 Vermin Ave. NW now, if you show up with a plausible IMO that holds water medically, your VLJ is so under the gun that he’ll grant it without further ado. This is why I stress Vets have several IMOs and keep one in reserve that can rebut any bubbles the VA examiner blows about how his nexus is more probative than your doctor’s.