FROM THE HEAVENLY RO

IN SAINT  PETER’S BURG

Over the course of five years, I have made it a point to read every HCV decision from either the Court or the BVA- pro or con. In addition, I have been privy to many an RO rating for or against a claim for HCV provided by those who come here willing to share their experiences. This one is a thirteen year nightmare of “speculation”.

One thing that is endemic to all these decisions is the proclivity of the VA examiner, or someone drafted to write an IMO, to obfuscate and digress to the point of never addressing the request. The ploy most often used is  the “Woe is me. I cannot speculate with this paltry information.” Speculation, apparently, is in short supply at the VA when required. Since this technique is not a decision but merely a diversionary tactic to wear down the claimant, VA can use this for years to put off any meaningful denial that can be appealed from. Beware of this.

Here, we have an interesting contretemps. The claimant in question is an Army corpswoman-one intimately acquainted with the human body and capable of opining on matters medical. VA would have her believe she is a dunderhead and incapable of diagnosing a bruise.  Layno v. Brown (1994) taught us that we can look at our arm and say with some degree of certitude that if it bends the wrong way and is extremely floppy that it may be broken. If the pain is enough to make you go into shock, that too is admissible as a lay observation. When your eyes turn yellow,your pee is the color of apple cider and you have lost 20 lbs. without signing up for Jenny Craig, I think it’s safe to say there is something amiss in the liver box. VA says that is speculative.

Tampa’s latest winner reported (and her STRs backed her up) that she had multi-symptom problems indicative of hepatitis while in service. Somewhere in my memory’s chords I recall the Groves v. Peake (2008) decision that said mental problems in service are the same mental problems now, absent a nuanced discussion rebutting the premise. Substitute Hepatitis for mental and you have the legal gist of this argument.

Nevertheless, the VA was unable to “see” it. The very first examiner did in a 2002 C&P but VA buried that report and subsequently ignored it.

The service medical records show that right sided abdominal tenderness was noted in March 1981, and there is a February 1982 notation regarding possible hepatitis based on July 1981 symptomatology of weight loss, jaundice, and dark brown urine.

The first VA diagnosis of hepatitis C is found in a record dated in April 2002, at which time it was noted that the Veteran’s risk factors included multiple exposures as a paramedic and firefighter for the past 20 years. It was also noted that the Veteran had multiple exposures as a hemapheresis tech and had received “needle sticks.” In her assessment, the reporting VA registered nurse opined that the Veteran had hepatitis C virus that was “likely due to exposure from line of work.”

Score? Miz Tampa 1, VA 0. This kind of thing doesn’t faze the VA. It merely means they get to ignore it and find a more willing accomplice in the denial crime.  Five years after this positive nexus , in 2007, VA sent out for the Chinese nexus- the speculative variety. Apparently this is perfectly acceptable to everyone except the claimant. Limbo is what it feels like. You cannot provoke a decision when this happens. You have to wait for medical knowledge to progress to a point where they can decisively determine it. Don’t hold your breath. Miz Tampa couldn’t appeal because she had no denial all this time. Recite after me: Justice delayed is not justice denied.

Feeling that perhaps the 2002 examiner had the vapors, VA elected to blow the dust off and revisit it.

In June 2007, the Veteran’s claims file was forwarded to a VA examiner (C&P #2) for an opinion as to whether it was as likely as not that the Veteran contracted her hepatitis in active service. The examiner to whom the Veteran’s claims file was forwarded did not offer an opinion, stating that she was unable to provide an opinion as to the most likely etiology of the Veteran’s hepatitis C without resorting to speculation. The examiner did not explain why she was unable to provide an opinion without resorting to speculation.

From the tenor of the this written decision, you can almost see the smoke coming out of the  VLJ’s ears. What, exactly, do we pay VA examiners to do? If he/she is incapable of making an informed decision, does that not imply they are ill-qualified for the job they were hired to do?

In July 2009, a medical opinion (C&P #3) was submitted by the Medical Director of Compensation and Pension Service of the North Florida/South Georgia Health Service. However, that physician concluded that she could not provide an opinion on the etiology of the Veteran’s hepatitis C without resorting to mere speculation. The physician noted that there was not a scientific or laboratory mechanism by which to discover which of the Veteran’s risk factors caused her hepatitis C. The physician further stated that there was no objective evidence that the Veteran’s hepatitis C was due to active duty.

So, in summary, the physician refused to do her job but nevertheless stated there was no objective evidence of SC. So, is this a speculative assessment that there was no objective evidence or merely a personal opinion purchased with thirty pieces of silver? Now Miz Tampa is in to this eight years-still no closer to VA providing a meaningful nexus pro or con (and hence a decision from which to appeal). Well, if you discount the first one in 2002, that’s true. Nota bene the word above describing this rocket gal as a “physician”.

Here’s the icing on the cake. After some prodding from the RVSR, the same VA examiner decided to get more “speculatively specific”. I’d call this the “lighter shade of pale” speculative theory. Envelope # 4, please?

In November 2010 (C&P #4), the same examiner provided an additional written opinion that she could not resolve the issue without resorting to mere speculation. The examiner noted a review of medical literal (sic), medical records and clinical experience. The VA examiner noted that there was no objective evidence of a needle stick or any other blood-blood contact during service, that there was no objective evidence of a diagnosis of hepatitis C during service, and that it was the Veteran’s unsubstantiated statement that she was exposed to infected blood associated with her duties as a hospital corpswoman. The VA examiner then discussed how hepatitis C is transmitted. The examiner stated that the Veteran was potentially at risk prior to, during, and after military service. The VA examiner concluded that determination of when or how the Veteran was infected could not be resolved without resorting to mere speculation.

Hmm. Anybody think about a liver biopsy to determine the age of the infection? The Metavir Grading scale of Fibrosis? What stage of cirrhosis? Liver function tests showing SGOT/SGPT? Lay testimony being credible? Benefit of the doubt? Gee- how about those STRs describing hepatitis (not otherwise specified as A,B or C). VA must not teach these facets of gastroenterology in Proctology classes. A plaque stating “Ignorance is Bliss”  must hang above every VA examiner’s desk in ROs. Either that or “We refuse to speculate unless ordered to do so”. Back to the drawing board for C&P #5.

Finding that the November 2010 opinion was still deficient in not providing an adequate rationale, including not considering the Veteran’s lay statements concerning her exposure to certain risk factors for hepatitis C as a corpswoman and paramedic, an additional opinion was obtained in July 2012. After recognizing that the Veteran had been exposed to multiple post-service risk factors such as tattoos and blood transfusions, and the Veteran’s report of in-service exposures, based on the lack of “objective evidence of diagnosis, or treatment for hepatitis C during service,” the examiner concluded that the Veteran’s hepatitis C was less likely as not caused or incurred in service. Although this examiner provided an opinion, the Board finds it just as deficient as the previous opinions since it did not consider the Veteran’s in-service exposure to risk factors associated with hepatitis C and relied on the lack of objective evidence in the service medical records. That is not a proper basis to support an etiological opinion. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran’s report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion).

Dalton, I might add, was decided during the pendancy of Miz Tampa’s claim. I guess VA can be excused for not updating the M-21 for 3 years. These things unfortunately happen. What isn’t explained is how (or why) VA would ever resort to the “no evidence is negative evidence” in the first place. Do we or do we not inhabit a nonadversarial environment in which to adjudicate our claims where the benefit of the doubt is accorded the Veteran in every instance and his/her lay testimony is accepted at face value and assumed to be credible? I disremember. Let’s do a standard VA fact check and weigh the evidence.

FOR:

>Hep in service or something damn similar to it supported by contemporary STRs.  √

> Lay testimony of same. √

> Current disease. √

> Positive  C&P nexus from VA nurse.  √

These are the three Clauza elements required for a claim to be granted. Or used to be in the pre-speculative era.

AGAINST:

Nothing.  √

Speculation.  √

Negative evidence  √

Decision? Denied based on not being able (capable ?) of making a decision. Twelve years and appeal to come to what was unarguably the correct decision arrived at in 2002. VA would have you believe this is perfectly normal with nothing untoward. I call it Idiot’s delight. Miz Tampa might have a polysyllabic word slightly more abrasive beginning with the consonant “B” in mind. The only thing I see as an anomaly is her choice of the Disabled American Veterans but that is probably why it languished for thirteen years in Limbo. More’s the pity. Too bad she didn’t find us in 2008.

Depending on a VSO to produce and submit probative evidence to support your contentions is paramount in this business. Sadly, you will never receive it. You have to carry your own water if you expect to win. Simply relying on the STRs did not avail Miz Tampa either. VA ignored them.  Having what most would call a “viable” nexus (provided by the VA, no less) certainly was not the panacea she expected. For the DAV to let this fester for so long speaks volumes to their commitment (or lack thereof) to Vets. I can’t say I’ve seen a better example than this to illustrate what’s wrong with the VA.

Kudos to VLJ Harvey P. Roberts for his insightful assessment of this miscarriage of justice. It more than explains what is wrong with the system and why the backlog continues to accrue.