Veterans Claims Help

Few people, let alone doctors, seem capable of understanding a disease (or diseases in this case) and the chronology in which they occur. Additionally, with similar diseases, confusion seems to arise as to which one was acquired when- and sometimes as to whether it was acquired at all.  To add insult to injury, doctors who have no knowledge of this often pretend to be experts and inveigh on etiology. This is where we find Malcolm after twenty two years.

A short history of  the Hepatitis of Malcolm is in order. Malcolm came down with it in service (1991) and continued to suffer the effects of it for years. This is not acute Hepatitis A  Virus (HAV). It might have been Hepatitis B virus (HBV) or indeed HCV. Testing in 1991 was limited. In fact, little more than being able to distinguish whether it was HAV or HBV was available to researchers or lab technicians. HCV would not be readily identifiable with any degree of accuracy for several more years.

Nevertheless, VA insisted Malcolm did not have a chronic liver condition in 1991. They continued to maintain that until 2004 when they suddenly decided that he had HCV in 1991. They were not prepared to make it right though. To add insult to injury, they maintained that by virtue of Interferon, Malcolm had gone through Immaculate Remission and no longer suffered adversely from his thirteen years of infection. The liver biopsy showing a Stage II, grade 2 liver was not remarked upon. His recent acquisition of Diabetes Mellitus, type II was not considered extraordinary even though Malcolm was a puny little 140 pound , 5’8″ rapscallion. His other problems of malaise, muscle ache, vision issues and headaches were considered unrelated. Malcolm was just a typical, post-HCV gentleman with various medical aberrations-none of which had anything to do with his prior HCV or Interferon treatment. This is how VA looks at it.

Now, let’s analyze what doctors and researchers knew(and didn’t know) in 1991. In 1991, about the only thing they could determine was if you had ever had HAV or HBV. They had no clue about HCV yet other than if you were yellow and puking, then you suffered from a new, as yet unnamed version called Non A, Non B Hepatitis (NANB). This was determined by negative testing for HAV/HBV above. A negative on both tests in the presence of a major hepatic liver disorder meant something was afoot. There were autoimmune hepatitis (AIH), steatohepatitis, alcoholic hepatitis (hyaline) or NANB to choose from. An Antinuclear Antibodies test could isolate the presence of autoimmune markers in the body and rule out the AIH. Excessive use of a medication such as acetaminophen was often the case for a diagnosis of steatohepatitis. Obviously, a blood alcohol content level of .23 for a decade would provoke hyaline cirrhosis. Lastly, any history of cryptogenic (untested) hepatitis -not otherwise specified (or NOS) from an era when there were  no tests would leave NANB on the table and demand comprehensive testing or at least the investigation of an unknown disease process. Well, anywhere but the VA. VA does not care. They are not in the traditional “wellness” business. If you feel shitty, it’s not because of something VA did (or didn’t ) do.

VA has tested us for HCV on and off over the years without telling us. Ask Kel here about his finding it in his VISTA records from about 2007. VA never bothered to inform him at the time. Robert from LA-same story. I could spend half this article listing all of you.

Now, let us energize the flux capacitor and go back in the DeLorean to witness the most defective, circular logic ever seen. Here’s case number one in point, circa, 1992. This case arrives via VARO San Diego. VA examiners there puzzled over this one and finally sent out for Chinese and an IMO/IME because they couldn’t wrap their brains around it. Unfortunately, the Whizbang experts couldn’t either. I suspect this is one of those proctologist cum hepatologist IMOs we hear about. You know what I mean. VA desperately grabs the first guy with an  MD after his name and asks him to opine for the record. The good doctor complies even though what he know about hep is going to be misquoted directly out of Cecil, Book of Medicine or Dorland’s.

Our 1992 San Diego Vet resembles Malcolm in many ways. He has a case of what appears to be acute, resolved hepatitis in service. Let’s ignore the dichotomy of the drug entanglement for a moment. Malcolm has no such problem. Our Johnny Vet here applies for Hepatitis Not Otherwise Specified that appears to be chronic. He is intelligent enough to know it is chronic because he continues to suffer the effects. It’s 1992 and there is no true test for HCV yet. Using the Braille method, VA is going to employ that unique brand of logic they are so famous for. They will pronounce the hepatitis in service as being

a) HAV, acute and resolved then change and say

b) HBV, acute and resolved then change and say

c) Hepatitis,  undocumented, weird offbeat, unknown flavor caused by drugs and alcohol but completely acute and resolved by late 1971. Never to be seen again. Wasn’t HAV because he never had that. Wasn’t chronic so it can’t be HCV. Could have been most any kind of hepatitis. Too bad they never tested him, huh?

They will then declare he came down with HBV around 1989,  it was acute and has resolved. One problem with this is inescapable. If you get HAV and recover, you have a permanent immunity to it. Same for HBV. You get it once and you’re done …unless it’s chronic HBV. However, Johnny San Diego and Malcolm have never had HAV. They simply do not have the antibodies for it showing a past infection. They both, however, have antibodies showing past infection with HBV. Since HBV is a blood borne pathogen like HCV, the two are often transmitted simultaneously. VA doesn’t subscribe to this philosophy. Each flavor of hepatitis is viewed as a separate event.  And according to the VA, they do not obey normal rules of medicine. To add insult to injury, VA maintains that somehow Malcolm’s HBV, which is now no longer evident in blood labs, was actually HCV all along.

From Johnny San Diego’s BVA decision:

In this case, the veteran’s service medical records reflect that he was seen on sick call while in Vietnam in February 1971 with a 10-day history of malaise, anorexia, upper abdominal pain, dark urine and jaundice. A diagnosis of infectious hepatitis was made and he was admitted to the hospital in Vietnam. However, the treatment records from that hospitalization are not among his service medical records.

The above in blue reflects that the Australian Antigens Test was either not employed or was unavailable. It would have determined what flavor hepatitis Johnny had.  It would not determine HCV because that would not occur commercially until 1993 or later. VA started buying the test in 1997. As for the above in red, VA knows full well that all inpatient medical records for Veterans are kept in a separate file (identified by hospital) at the National Personnel Records Center in St. Louis. The fact that the inpatient records are not associated with his C-file is no mystery. VA has chosen to ignore them even though they know of their whereabouts. The truth is VA never went looking for them. What? You’re shocked? Read on.

In 1985, the veteran was admitted to the VA Medical Center in San Diego, California, with fever, chills, sweats, headache and a 20-pound weight loss. In March 1989, the veteran was again treated at that facility for chills, nausea and diarrhea. During that hospitalization, serologic testing was performed. Hepatitis B surface antigen was negative, hepatitis B core antibody was positive, and hepatitis A antibody was negative.

So there you go. March 1989 sets the day that VA knew beyond the shadow of a doubt medically that Johnny had never had HAV and that he did have HBV at some time in the past. It doesn’t tell us when but simply that he has had HBV and recovered from it. If it was chronic HBV, his HBV surface antigen would be positive-forever.  Chronic HBV is incurable and it will kill you- no ifs ands or buts. A positive HBV core antibody means he has had HBV and recovered. He cannot come down with it again-ever. This has now been cast in stone. VA calls this a “finding”.

This is where the medical malfeasance begins. VA isn’t stupid. The only way to get out of this tar baby is to “create” an acute disease and make it acute twice. HAV is now off the table. HCV isn’t but since they don’t know enough about it yet, they hesitate to go off and make some stupid statement that can be refuted.

The BVA panel (they had panels of three judges back in 1992) then proceeded to summarize what was known about hepatitis in 1992:

Hepatitis A, also called “infectious hepatitis”, is defined as a viral infection of the liver which occurs sporadically or in epidemics, is usually transmitted through the fecal-oral route, and has an incubation period of 2 to 6 weeks. It does not have a carrier state, and does not result in chronic hepatitis. S. A. Schroeder et al, Current Medical Diagnoses and Treatment at 500-503 (1991) (hereinafter Schroeder). The presence of antihepatitis A virus (hereinafter HAV) activity indicates previous exposure to HAV, noninfectivity, and immunity to recurring HAV infection.   Hepatitis B is defined as a viral infection of the liver usually transmitted by the inoculation of infected blood or blood products. It is known to be spread by sexual contact and intravenous drug use, has an incubation period of 6 weeks to 6 months, and can have a carrier state.  Hepatitis C is responsible for the majority of cases of post transfusion hepatitis, and can lead to chronic hepatitis.  In this case, the only record of serologic testing performed was that performed in March 1989, wherein the hepatitis B core antibody was positive, the HAV was negative, and the B surface antigen was negative. As noted in Schroeder, supra, if the veteran had previously been exposed to HAV, it would have been detected in the serologic testing.

The above mentions that HBV can have a carrier state. This is true. You can infect others with your blood but you cannot reinfect yourself. You suffer acute symptoms once and only once and then the infection resolves. Of course, some die from it if left untreated, but that is rare. Note also the green above. That is the most important sentence you will read in this decision. It freely admits that only HCV can lead to chronic hepatitis. That is the the one and only mention of chronic hepatitis with respect to a type of hepatitis in the whole decision. The gross implication was that “serologic testing”  can and would have revealed HCV when the limits of science could deduce only two. Since the serologic testing on March 29, 1989 did not reveal any HCV antibodies (because the test had not been invented yet) it became a VA finding in 1992 that no HCV antibodies capable of producing chronic HCV had been recorded. This is old hat. VA does it all the time. I call it looking for a left front quarter panel for a ’67 Mustang in a junkyard in 1953. This is not an accident. VA used this to deny Johnny boy. 

As you can see, the knowledge of HCV at this time is woefully sparse as the citation shows. Notice there is no mention of an HCV carrier state? VA has now summarized the history of all known forms of hepatitis circa 1991. Now watch the obfuscation, bait and switch and the three-card monte game begin.

It starts innocently with a requested Independent Medical Expert’s synopsis and summary of what is suspected. This is pure speculation based in part on what is known. The specialist opines that yes, HBV and HCV could be acquired simultaneously. It examines the risks of intravenous drug abuse. It discusses acquisition via sexually transmitted diseases yet pointedly ignores tattoos or unsanitary dental work.  The problem arises when this gastroenterologist who is supposedly conversant with all forms of Hepatitis goes off the reservation and begins discussing how an acute, resolved case of HBV (and/or HCV) becomes acute a second time- 18 years later. This article tells us all about HBV. One thing it discusses is the definition of “acute” i.e. a period of six months where the disease is active and transmittable. The article also points out that if HBV is not chronic, then it resolves  granting the bearer permanent immunity. S/he does not need a Gamma globulin shot to prevent infection. S/he is permanently immune and requires no vaccine-ever. In fact, if the HBV is chronic, there is no cure. Let’s see how that comports with our expert’s take on it all.

In summary, the medical record does not support the diagnosis of chronic viral hepatitis in this patient. It appears that he developed acute hepatitis during his tour of service in Vietnam and that he recovered from the hepatitis. (yes but what “acute” kind?)  Evidence of recovery is noted during his admission to the Veterans Administration in 1985, when his liver function tests and liver ultrasound were normal. (but gee- what about  “In 1985, the veteran was admitted to the VA Medical Center in San Diego, California, with fever, chills, sweats, headache and a 20-pound weight loss.”? Where’s the serologic test that hasn’t been invented yet?) Therefore, in response to your first question, it is my opinion that the patient had acute viral hepatitis, specific viral etiology unknown, during his tour of duty in Vietnam. It  should be noted that in 1971, specific virologic testing for hepatitis was probably unavailable at most field stations in Vietnam. In response to your second question, I do not find any evidence to support the contention that the patient has chronic hepatitis at this time. (Because there isn’t a test for it yet.) The medical record does not provide any specific information to suggest that the veteran has evidence on physical examination or serologic testing of chronic hepatitis. (but the serologic testing will be available in several years) Given the patient’s history of long-standing drug abuse, the most likely reason for his acquisition of hepatitis B in 1989    STOP (here’s the malfeasance -an acute HBV infection cannot reoccur later) was sharing of needles during intravenous drug abuse. He also may have suffered some liver damage from his chronic drinking.

So we have an acute, resolved disease that has defied medicine and is now acute yet again contravening everything we know about HAV and HBV. Next, we have lab results showing:

…March 11, 1989, when the patient was seen in the Veterans Administration in San Diego with chills, nausea and diarrhea. Liver function tests at this time indicate an SGOT of 45 and SGPT of 108.

The noted gastrodoc is now telling us that on top a resolved disease you can only catch once, his liver test show he was at least abusing alcohol. Any self-respecting doctor, let alone a gastrodoc, knows that hyaline cirrhosis, grossly evident upon liver biopsy, has an entirely different footprint in the blood labs. The SGOT (AST) of 45 with respect to the SGPT (ALT) of 108 clearly shows the liver was being assaulted by a virus rather than alcohol. Had this been alcohol-induced, the numbers would have been transposed and the SGOT (AST) would be far higher like 150 than the SGPT (ALT). This is not a recent revelation. Doctors have looked to  high AST numbers for years to prove recurrent ETOH abuse. It’s a standard tool for VA to deny with. SGPT (ALT), on the other hand, has long been a tool to show a presence of a virus or liver disorder.

So, in true circular logic, which the BVA (and by extension, their compatriots at the VARO) is renowned for, Johhny Vet here has suffered a non-chronic disease ((but not HAV or HBV) while vacationing in Vietnam. He came home and, defying all medical science, managed to become infected with HBV (merely acute and not chronic, mind you)  which he apparently did not have in Vietnam. Applying medical logic to this, the only thing we can surmise is that he had HCV in Vietnam and it was not chronic in spite of what all those doctors say these days.  Secondly, his HBV was caused by alcohol and drugs after service but not by tattoos or poor dental hygiene practices. Think it through. Two episodes of hepatitis. Neither one was chronic. They were both acute and resolved. Neither episode was HAV. You can only get HBV once. What’s wrong with this picture?

So little was known when Malcolm contracted his “acute” HBV. Even noted specialists are misinformed as the “expert” above was. Hepatitis of all sorts were poorly diagnosed and even more poorly understood. If a specialist can surmise that Johnny did not have a chronic hepatitis condition, then pray tell what did he have? HCV was a virtual unknown then and VA has used a post hoc rationalization in Malcolm’s records to say he was tested for HCV in 1991 and none was found! Even this group of BVA gomers didn’t go out on the little branches and make that pronouncement.

Unfortunately, VA uses the cheapest, most pliant doctors they can round up. They are remunerated with their 30 pieces of silver and disappear. Unless you vociferously contest their credentials, any IME is suspect. It is not unheard of for an ARNP with no gastroenterological experience to opine on matters hepatic. They bust out the Dorland’s manual and cut and paste with no regard for accuracy. Here, in 1991, a documented specialist lied through his teeth for his 30 pieces of silver. I doubt Malcolm fared any better. The only difference is the 2004 VA examiner concurred that it was undoubtedly HCV in 1991 but made no effort to go back and right the applecart for Malcolm.

We aim to fix that. Malcolm won all by himself at the Dead Circus this summer so it’s time to crack the books and set the record straight. One of the best ways , to me, is to prove that the whole Presumption of Regularity, that Holy Writ of VA, that all medical opinions are correct, is untrue. VA talks through the top of their hat 90% of the time. The problem is we do not contest it on appeal. When we do, they trot out their experts to make a mockery of medical science.

The teaching moment here is “When is a resolved, acute, non-chronic, hepatic disease actually capable of defying science and becoming acute again at a later date but not be chronic?” Why, anytime at the VA, pilgrim. Haven’t you been paying attention?  Rephrasing that old Traffic song:

Make your own Hep up if you want to

Any old Hep that you think will do.