As in baseball, adjudicating claims at the VA or the BVA requires constant attention and a myopic focus. Far too often, Veterans Advocates find themselves fighting a battle for (or against) an extraneous subject far from what was claimed. Here, Attorney Barbara Hanna, of Cowardin, Kim and Riddle had to saddle up and get accepted to practice at the VA in order to fight this one. After that, she had to fight a battle to prove Johnny Vet’s 1977 Hepatitis and subsequent cirrhosis were the primary ingredients that led to eventual death in order to prevail. She should never have had to.
Here’s the decision and a great Picture of VA Dragonslayer Barbara Hanna
Far too often we find ourselves fighting a straw man argument of a 1977 diagnosis in service of Hepatitis (not otherwise specified or NOS) that ‘was acute and resolved’ having no connection whatsoever to a present infection. Sadly, that is the case in virtually all VA claims involving Hepatitis C. Absent any contemporaneous testing, when this virus rears its ugly head again in 2005 or so, VA is fond of trotting out Maxson v. Gober and claiming it’s all one big old-age coincidence with no correlation. Alternately, they cotton to the “Well, he wasn’t diagnosed with it until 2002” as if he contracted it in 2002. Precisely when a disease is identified has no bearing on its initial inception. VA knows that.
One big hurtle that enters following these preliminary denials is science. Nowadays, we can determine exactly what you did have (A,B or C), what you never had (A or B) and how long you’ve actually had Hep C. Yep. You read that right. A simple liver biopsy with a core sample shows degree of activity (Grade) but most importantly – degree of fibrosis – conveniently converted into 10-year F cycles called Stages-i.e. Stage 1 is ten or more years old; Stage 2 is twenty or more years old et cetera. Johnny Vet here had hit Bingo and crossed over from Stage 4 (full blown cirrhosis) into Stage 5 (death). This is known as the Metavir Scale and is the most widely used. VA will never biopsy a guy from Vietnam to ascertain the F scale of 3 .8 to 4. They won’t even acknowledge they have the ability to (and usually do) test for the Genotype and find out if it is the American strain (Genotype 1A) or the Indochinese Peninsula variant indigenous to that neck of the woods (Genotype 3A). VA is amply aware of this technology but will only use it to deny you-never to corroborate your claim. In Johnny Vet’s case here the local Korean Genotype was 2A or 2B. Again, an easy test.
Likewise, VA is extremely fond of trying to muddy the waters and say a Vet, as in this case, died due to metastatic adenocarcinoma and try to ignore the second half of the rationale of record. This is the straw man conundrum. He died from cancer. Period. So what if he had a raging case of Hep C and liver “irregularities”. He was going to die of the cancer regardless. 2 docs said it. In fact, he even admitted he didn’t have any risk factors for Hepatitis C in service so it can’t be service connected -so he didn’t die from getting clap in Korea.
Absent from this cart-before-the-horse convoluted logic is the predicate. Had his liver not been so severely compromised, he might have had a fighting chance at conquering the cancer. Here, due to the overwhelming medical complications of a compromised liver, he was incapable of even considering a course of chemotherapy. VA would prefer you ignore that facet as it tends to undermine their rationale for denial. The CAVC calls this “post hoc rationalization” produced after the battle to buttress the denial when attacked. You will see this frequently so look for it.
When filing claims, and especially claims for service connection for cause of death, it is important to take a good long gander at 38 CFR §3.312-Cause of Death. In fact, had the VA Examiner paused to read his own regulations and guidelines on this -specifically §3.312(c)(4), I doubt the matter would have risen to this level at the BVA and consumed scarce judicial resources. To wit,
(4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.
Here, VA has chosen to ignore the well-known cumulative effects of Hepatitis C untreated. Since Hep C infection is subtle and gradual, it often goes undiagnosed for decades. By the time it is identified, it often is incurable or a contributory factor in a myriad number of comorbidities. VA is well aware of this but chose to fight this widow to the mat over something they freely acknowledge in all their own literature on the disease.
Acting Veterans Law Judge Michael J. Skaltsounis wasn’t buffaloed into going along with it. I hand him the asknod.org Acting VLJ Hep C adjudication Award of 2016 for standing fast.
The Veteran’s death certificate reflects that he died in April 2010 as a result of metastatic adenocarcinoma due to liver cirrhosis due to hepatitis C. At the time of his death, the Veteran had no service-connected disability. The Veteran’s service treatment records indicate that in 1977 he was treated for hepatitis which was later determined to have been hepatitis C, and thus, his hepatitis has been shown to have its onset during active service.
And here is the straw dog argument of which I speak:
VA physicians in September 2011 and September 2012 have essentially stated that the Veteran’s hepatitis C “was not the cause of the cancer that killed the Veteran.” The September 2012 VA physician supported his opinion on the basis that “hepatocellular origins for the Veteran’s malignancy were absent.” The Board notes that neither of the September 2011 and September 2012 VA physician opinion providers addressed the issue of whether the Veteran’s hepatitis C had contributed to the Veteran’s death.
This is, in essence, diagnosis by purposeful omission. Doctors are trained to ferret out causes and all possible etiologies. VA doctors are trained to do and say what the party line dictates. Here, the clear directive was to find that Johnny Vet died of cancer-period. Any further investigation was deemed unnecessary as it would cause VBA a financial loss. This is not an anomaly. It happens every day. Being able to separate the wheat from the VA chaff is essential to winning this type of claim.
Parse every sentence of a denial or VA Examiner rationale in a claim and you will invariably discover the moment of ‘peccible’ logic. VA will take you on a merry ride over hill and dale in a Nantucket sleigh ride far afield. Soon, you are unable to focus on the true cause of death and the logical ‘A=B and B leads to Cancer thus A is the predicate for C’. VA will have you immersed in the √C and feel they have made their case. As the Veterans Advocate, it isn’t your job to quash all these errant theories. The focus must remain entirely on the evidence and avoid reaching out in an attempt to rebut VA’s logic. Ignore them. Remember, you do not have to refute a bogus VA examiner nexus so much as to enunciate a clear rationale based on your own evidence and the pronunciations of the doctors. The more that VA Examiner babbles on in the remand, the sillier it’s going to sound.
Far too many of us feel we have to introduce Internet articles to support our contentions. Articles are personal opinions and VA FAST Letters do not win claims. Independent Medical Opinions do. When they refute paper-thin VA ‘speculative’ pronunciations, they prevail. Here, the deafening silence on the part of two intelligent VA physicians to even opine on the correlation results in a win for Ms. Hanna and her Vet.
While the matter of whether the Veteran’s hepatitis C had contributed to his death was not addressed by VA medical professionals, the claims file does contain information that supplies clarity in answering the question. In this regard, the Board notes that the physician (Z.Z., MD) who completed the Veteran’s death certificate appeared to indicate that hepatitis C and liver cirrhosis were, if not the actual cause of the Veteran’s cancer, at least contributing factors to his death. According to the appellant, Dr. Z treated the Veteran for the final month of his life and obviously was aware of the Veteran’s terminal medical history.
Vet advocates, although constantly reminded judicially that VA attaches no importance to the ‘treating physician rule’ , should take note of the above in purple. Believe you me, it has import. They also tell us that if the doctor providing the IMO has not reviewed the claims file, it will have no measurable bearing on the outcome. I strongly suggest you avoid putting that in your pipe and smoking it either.