Having sat, chatted and engaged in a colloquy with Veterans Law Judge Vito Clementi for an hour one day in 2015, I know how hard it must have been to bite his tongue and write the denial below. Of all the Judges I have ever met or had dealings with, he was the most forthright and pro Veteran as one could hope for. Quite possibly because he is one himself.
This case involves an enigma and no one, not even the Philly Puzzle Palace tea leaf readers, seems aware of the miracles of modern day science. To begin with, the VA examiners were blowing these bubbles:
Upon VA examination in March 2012, the VA examiner noted that the Veteran has a current diagnosis of hepatitis C. The VA examiner also indicated that the Veteran was diagnosed with infectious hepatitis during service, but it was unclear which specific type of hepatitis was diagnosed (hepatitis A, hepatitis B, or hepatitis C). Following examination, the VA examiner indicated that she was unable to provide a medical opinion without resorting to speculation because specific tests were not performed during service to differentiate between the different types of hepatitis.
In 1970, infectious hepatitis was Hepatitis A from contaminated water. It lasted about 5-7 days and the jaundice disappeared within 20 days. If he was diagnosed with Infectious Hepatitis, it would be HAV and that would be the end of the query.
Here’s the problem. Nowadays we can identify the presence of a healed Hepatitis A infection via the presence of antibodies which give you immunity to it. Next, we can identify either antibodies to Hepatitis B or an active (chronic) infection of Hepatitis B. Lastly, we can identify the presence of Hepatitis C viral infection and even count the number of viral replicas via polymerase chain reaction (PCR). Or, we can see the virus is not present via treatment with one of the new Direct Acting Antivirals (DAAs).
So, it is childsplay, and has been for about ten years, to differentiate between whether one has, or ever had, Hepatitis A, B or C, a combination of two or just one and whether one currently has any of them actively or has achieved a seroviral response (SVR).
In fact, when I was slated to begin Interferon in April 2007, the first thing was to be tested to find out if I needed a vaccine for Hep A or B. They didn’t want me coming down with either one during the treatment for C as it might kill me. It was at that time I discovered I had never had HAV.
Next, a simple liver core biopsy will reveal the degree of liver fibrosis and the current stage of the disease. Divided into 5 stages from 0 to 4, with zero meaning a perfect liver, each stage is ten years ± 2 years. Ergo, stage two means twenty + years since the inception of the disease. Most of us who got it back in the late sixties or early seventies are either healed or dead from it. Some, like me, quit drinking and smoking and hunkered down to wait for a cure. It gives a whole new meaning to keeping your powder dry. I was cured at forty three years and not a moment too soon.
A core biopsy yields a Metavir Score and this is the perfect yardstick to figure out how long you’ve had it. If you served from 66-69 and got it in Vietnam, by 2009 you were feeling a mite winded and had a touch of nausea. Your Metavir rating would probably be pushing the beginning of F4 like me. Funny (now) but I can point to the exact day and hour I got mine.
Judge Clementi is not allowed to be a doctor. The Pennsylvania National Association of County Veterans Service Officers were driving this bus for Johnny Vet. When you accept a POA from a Veteran, that is your duty-to help him win. Well, not exactly if you’re a VSO but that’s a story for another day. Nowhere is an IMO to be seen or inferred here. The dog didn’t eat the nexus homework so I give up. This Vet was claiming it was associated with his Agent Orange exposure towards the end of his BVA hearing. He’s not a doctor either. Ever since Mario Caluza tried to smoke the Manila RO in ’88 on some bogus nexus letters, the Court, the BVA, the VSOs-Hell- even Micky Mantle’s mom knows you need a nexus letter from a doctor to win a VA claim. Well, apparently almost everybody except the ones expected to know.
From talking about this with other Judges, I understand the frustration of having to bite your lip and pseudo-sarcastically point out in the decision ( a year later) that there is nothing there to help his case and certainly nothing from a doctor in his favor. Denying the claims after a Vet has been led into the barn for slaughter with no legal advice or help would be a bitter pill to swallow. Welcome to ex parte justice. Read about 200,000 BVA decisions and you will see VSOs still haven’t gotten the email on the need for a nexus letter. I think it’s criminal.
Imagine a justice system where you might know the repair order to help the defendant out but you’re legally precluded from leaning over and whispering the way to do it? 38 CFR 3.103(c) (2) states, in part:
It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.
Being a liberal Southerner, I’d stretch that to say Judge Clementi might have written something on the back of an envelope and slipped it under the table to the County VSO Rep. saying ” Hellooooooooooooooooooooooo? ASK ME FOR A REMAND! Get new C&P with core biopsy and PCR. Run, Forrest! Ruuuuuun!” But then we know he can’t do that beyond the BVA hearing.