Once again, Veterans Law Judge Ursula R. Powell and her staff attorney(s) have struck out on Hepatitis C. Why is it so difficult to arrive at a nexus/IMO in this subject? With the wealth of knowledge we have accumulated over time, PCR DNA microtesting and Metavir scoring via biopsy to determine the probable age (give or take 5-10 years), why is it those VA Examiner sleuths continually claim it’s a speculative enterprise? Could it be they have already arrived at a denial but lack a probative risk that qualifies as willful misconduct?
To begin with, let’s look at VLJ Powell’s medical assessment and how she arrived at this “medical misepiphany”:
Schafrath v. Derwinski . 1 Vet. App. 589; 1991 declared in the dawning days of the new COVA that if you offer a C&P to the Vet, it better be an informed one that will stand up to inspection. It can’t be has-affed and slipshod. More importantly, it cannot create more conundrums than it hopes to solve.
VA began this “speculative” venture in the early to mid 2000s and almost exclusively used it to deny Hepatitis C claims. It stood the test of the BVA who went along with it part and parcel. Their reasoning was poor overworked VA examiners had worked themselves into a lather and had blisters on their fingers from searching far and wide for something- anything- to exonerate the poor Vet. Alas, nothing was forthcoming and after much soul-searching, a decision was made that, short of flipping a coin, it was just too complicated and there wasn’t enough evidence pro or con upon which to formulate an opinion. Well, hey. That worked out so well, they began mass producing the speculative theorem for application to everything. Pes Planus? Whoa, pilgrim. Waaaaay too speculative to go out on the little branches and attribute it to nasty, ill-fitting Army combat footwear. 173rd Airborne with a Master Parachutist’s badge? It would be speculative to attribute a compressed spine to any event in service. And so on.
As with any mission creep, when the repair order becomes a universal fix for denials, careful introspection of the HAL 9000 logic circuits is called for. Judge Coral Wong Pietsch disassembled this and found the logic so defective that it essentially proved just the opposite- that our poor Mr. James W. Bell more likely than not should be service connected for his Hepatitis C. First of all, Powell had to step over Groves v. Peake 2008 to make this ruling. To add insult to injury, she had to somehow mentally arrive at the conclusion that a speculative declaration was really camouflage for “not at least as likely as not” service connected. This speaks volumes to a) her powers of reason, and b) her definition of equipoise. A quick trip to Meriam Webster’s to determine if they changed the definition of speculative last night while we were sleeping reveals all’s well. Mission creep it was. Yessssssssssssssss.
If this keeps up, Judge Coral Wong Pietsch (pronounced Peach) will be officially canonized and receive her Sainthood. Imagine how simple this was and yet it still went off the tracks. Jetguns were in heavy usage in 72-75. The FAST letter said it was plausible. He had a Dx of “resolving hepatitis” in service affording him Groves protection. Lastly, he had two nexi albeit nexi that would give most attorneys pause before they introduced it into evidence. It’s fairly common knowledge to everyone outside the VSO arena (who still haven’t read about Mario Caluza’s misadventures in the Philippines), that a good nexus cannot contain coulda, mighta, probly, ruled out, possibly or my Uncle Earl had that same thing and it turned out to be Hep C. Sadly, it appears VLJ Powell myopically dialed in on that one “probably” of Dr. Sreenath’s and tossed the other one in the trash as there was no MD after the name.
A conceptual misapprehension pervades the Board’s analysis. The September 2010 examiner’s opinion “provides neither positive nor negative support for service connection.” Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009). “Therefore, it is not pertinent evidence, one way or the other, regarding service connection.” Id. The Board, however, labeled the September 2010 examiner’s opinion a “negative nexus opinion.” R. at 9. The Board later stated that the examiner opined that “it would be speculative to medically attribute the [appellant’s] current hepatitis C to the in-service injections via air gun.” It should have stated that the examiner opined that she could not answer the medical question presented to her without resorting to speculation, a subtle but important
difference. In general, the Board chose to view neutral medical evidence as medical evidence against the appellant’s claim.
I do not propose to make the leap of logic that all BVA Veterans Law Judges are this lazy or logic-challenged. I know several and their powers of observation are not nearly as compromised. However, in the arena of Hepatitis C law, I see far more defective decisions than correct ones. Sadly, the fault lies in most cases with a VSO rep. who lets the Veteran advance to the BVA with no nexus whatsoever rather than a poor one. It might be noted that Mr. Bell actually had an attorney holding his coat at the BVA- one Peter J. Meadows, Esq. I also see he wisely resaddled his horse with one far more knowledgeable (Danial C. Curry) who is far more well-versed in the subject of Hepatitis.
Generally, in Hep C jurisprudence, absent any other risk factor than jetguns in service, it ought to be an open and shut case if the service medical records show a dx of hep even if it is not otherwise specified what flavor it was. In 1972, the state of the art amounted to the Australia Antigens Test. A positive test result indicated Hep B and a non-reactive result reflected Hep A. Unfortunately, Hep C often caused a positive reaction. Worse, Hep C would not be identified until 1989 and a commercial test available until 1992. Imagine how many have been crucified on the cross of “We don’ see no Hep C in your 1972 medrecs bubba. All it says is Hepatitis”. A litmus test for all the wrongly decided BVA decisions would be to see how many invoked Maxson v. Gober.
Ladies and gentlemen Veterans, I give you a classic reversal well-reasoned and a well-earned bitchslap for legal ineptitude. Meet Mr. James Bell, newly service connected and an unwitting member of HCVets .
In the words of Ron White”can’t fix stupid”