Here is an interesting case where a Vietnam Vet comes down with a raging case of Autoimmune Hep (AIH). As usual, the VLJ stares up at the ceiling and says “Hear no evil, see no evil, and therefore its not SC- besides, he just came down with it in 2004 and he left RVN in Feb. 70. So… no flies on the VA- claim denied.”
I want to point out something in the decision I spotted that simply isn’t true. The VLJ stated that there is no conclusive evidence of AIH being related to AO. Well spoken. If you never investigate something then it didn’t happen. Right? Back the boat back up to the dock, Gilligan. I, myself, am living, walking proof of Hep C+ AIH. I spent two years eating AO and AB (Agent Blue). MY AIH didn’t appear until right after my first and only encounter with good old IFN in 2007. I won’t say it provoked the AIH as I am not a doctor. But I do find it interesting that this form of Hep seems to be popping up more and more frequently in, of all places, Vietnam Vets, but not Veterans from Germany or stateside service during the Vietnam era. Coincidence? The Vet in this BVA decision does not have any exposure to Hep A, B,C or E. He simply has AIH. He wasn’t a junkie, nor did he chase the White Lady. He has only what I have- an exposure to AO. The Defense Dept. over the years since Vietnam consistently denied any connection between AO and ANYTHING. They held that position until 1990 when the house of cards started to cave in. They begrudgingly started to acknowledge that perhaps some of these really strange diseases we were coming down with WERE related to AO. However, the list was very short then. It grew and grew like Pinocchio’s nose in succeeding years. I was dx’d with Porphyria Cutanea Tarda in 92, even though I had been suffering the effects of it since returning from SEA in 72. Tough titty, bud. The claim was denied because I didn’t claim it within one year of returning from Nam! Talk about a Catch 22! They didn’t even acknowledge it was related to AO until 92- 20 years later. My kingdom for a time machine! Anyway, here is the decision rendered by Uncle Victor. I took the liberty of removing about 90% of the legalspeak so the Gentle Reader can get to the crux of this stupidity. From the hallowed halls of Paul Revere’s Regional Office….
Citation Nr: 0926566
Decision Date: 07/16/09 Archive Date: 07/22/09
DOCKET NO. 05-40 571 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for acute autoimmune
hepatitis, status post liver transplant, including as a
result of Agent Orange exposure.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESSES AT HEARING ON APPEAL
Veteran, Veteran’s Wife
ATTORNEY FOR THE BOARD
Nicole Klassen, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1967 to
November 1971, including service in the Republic of Vietnam
from February 1969 to February 1970.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from a May 2005 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts, which denied the above claim.
FINDING OF FACT
The preponderance of the evidence shows that the Veteran’s
acute autoimmune hepatitis was not present in service or
until many years thereafter and is not related to service or
to an incident of service origin, including exposure to Agent
Orange.
CONCLUSION OF LAW
The criteria for service connection for acute autoimmune
hepatitis, including as a result of exposure to Agent Orange,
have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1131,
1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307 (2008).
II. Service Connection
The Veteran contends that his acute autoimmune hepatitis,
which first manifested in December 2004, was incurred in
service. Specifically, he contends that this condition
developed as a result of 1) exposure to Agent Orange while
serving in Vietnam, 2) vaccinations using unclean or un-
sanitized air guns, and/or 3) exposure to blood following the
bombing of an airbase post office while helping to recover
survivors.
Service connection for certain listed disabilities may also
be established based upon a legal “presumption” where a
Veteran served on active duty in the Republic of Vietnam
during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(iii). Such
a Veteran is presumed to have been exposed to herbicide agent
(Agent Orange) during service unless there is affirmative
evidence to establish that the Veteran was not exposed to any
such agent during that service. Id.; McCartt v. West, 12
Vet. App. 164, 166 (1999).
The Veteran served in the Republic of Vietnam from February
1969 to February 1970, and there is no affirmative evidence
in his claims file indicating that he was not exposed to
herbicide agents, therefore, he is presumed to have been
exposed to such agents. 38 C.F.R. § 3.307(a)(6)(iii) (2007).
Accordingly, he is entitled to the presumption of service
connection based on exposure to herbicides used in Vietnam
where VA has found a positive association between the
condition and exposure.
Under 38 C.F.R. 3.309(e), VA has determined that a positive
association exists between exposure to herbicides, including
Agent Orange, and the subsequent development of the following
conditions: Chloracne or other acneform disease consistent
with chloracne; Type 2 diabetes (also known as Type II
diabetes mellitus or adult-onset diabetes); Hodgkin’s
disease; Chronic lymphocytic leukemia; Multiple myeloma; Non-
Hodgkin’s lymphoma; Acute and subacute peripheral neuropathy;
Porphyria cutanea tarda; Prostate cancer; Respiratory cancers
(cancer of the lung, bronchus, larynx, or trachea); Soft-
tissue sarcoma (other than osteosarcoma, chondrosarcoma,
Kaposi’s sarcoma, or mesothelioma); Leiomyosarcoma;
Epithelioid leiomyosarcoma (malignant leiomyoblastoma);
Rhabdomyosarcoma; Ectomesenchymoma; Angiosarcoma
(hemangiosarcoma and lymphangiosarcoma); Proliferating
(systemic) angioendotheliomatosis; Malignant glomus tumor;
Malignant hemangiopericytoma; Synovial sarcoma (malignant
synovioma); Malignant giant cell tumor of tendon sheath;
Malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant Triton tumor),
glandular and epithelioid malignant schwannomas; Malignant
mesenchymoma; Malignant granular cell tumor; Alveolar soft
part sarcoma; Epithelioid sarcoma; Clear cell sarcoma of
tendons and aponeuroses; Extraskeletal Ewing’s sarcoma;
Congenital and infantile fibrosarcoma; and Malignant
ganglioneuroma.
VA has also determined that the following diseases are not
associated with exposure to herbicide agent: Hepatobiliary
cancers; Nasopharyngeal cancer; Bone and joint cancer; Breast
cancer; Cancers of the female reproductive system; Urinary
bladder cancer; Renal cancer; Testicular cancer; Leukemia
(other than chronic lymphocytic leukemia); Abnormal sperm
parameters and infertility; Parkinson’s disease and
parkinsonism; Amyotrophic lateral sclerosis; Chronic
persistent peripheral neuropathy; Lipid and lipoprotein
disorders; Gastrointestinal and digestive disease; Immune
system disorders; Circulatory disorders; Respiratory
disorders (other than certain respiratory cancers); Skin
cancer; Cognitive and neuropsychiatric effects;
Gastrointestinal tract tumors; Brain tumors; Light chain-
associated amyloidosis; Endometriosis; and Adverse effects on
thyroid homeostasis. 68 Fed. Reg. 27, 630 (May 20, 2003).
Because acute autoimmune hepatitis is not one of the
conditions VA has determined has a positive association with
herbicide exposure, the Veteran is not entitled to the
presumption of service connection based on exposure to
herbicides under 38 C.F.R. § 3.307(a), and must establish
that his acute autoimmune hepatitis had its onset during
service or is related to an in-service disease or injury.
The Board notes that, in regard to claims for service
connection for hepatitis C, VA recognizes certain risk
factors, including intravenous drug use, intranasal cocaine
use, high risk sexual behavior, hemodialysis, getting tattoos
and body piercings, sharing toothbrushes and razor blades,
acupuncture with non-sterile needles, blood transfusions
prior to 1992 , and healthcare-worker exposure to
contaminated blood and fluids. See RO letter dated in March
2005. However, as discussed in more detail below, the
Veteran has not been diagnosed with hepatitis C, and as such,
discussion of these risk factors is not pertinent to his
claim for service connection for acute autoimmune hepatitis.
Moreover, the Veteran has specifically denied exposure to any
of these risk factors during his time in service.
The Veteran’s service treatment records are devoid of
evidence of treatment for hepatitis. Post-service, the
evidence of record indicates that his autoimmune hepatitis
symptoms began in November 2004, more than 30 years following
separation from service, when he had a flu-like syndrome,
dark urine, fatigue, and jaundice. In December 2004, the
Veteran was admitted to UMass Memorial Hospital with
jaundice, and a computed tomography (CT) scan was performed,
but showed no cholelithiasis. Additionally, a CT-guided
liver biopsy was obtained, which showed inflammation,
question autoimmune nature, with active hepatitis and a
bulging necrosis with early fibrosis. The Veteran was noted
to be negative for hepatitis A, B, C, and E. The Veteran was
transferred to University Hospital and started on prednisone
for presumptive autoimmune hepatitis. He was discharged in
January 2005 with a follow-up scheduled in the liver
transplant clinic. A report dated later in January 2005
indicates that the Veteran had a course of sub-fulminate
hepatic failure, which was deemed to likely be secondary to
autoimmune hepatitis. He presented to the emergency
department two days later for a liver transplant. A January
2005 surgical pathology report following the liver transplant
contains a diagnosis of end-stage liver with chronic active
hepatitis, marked cholestiasis, bile duct proliferation, and
cirrhosis.
In May 2005, the Veteran was afforded a VA liver, gall
bladder, and pancreas examination. The examiner reported
that the Veteran was in no acute distress, but noted that his
skin was darkish. The examiner also noted that the Veteran
did not have palmar erythema or spider angioma. The examiner
reported that a liver biopsy and ANA antibodies suggested
symptoms consistent with autoimmune hepatitis.
In March 2009, a VHA medical opinion was obtained regarding
the etiology of the Veteran’s acute autoimmune hepatitis.
The VHA specialist indicated that he had reviewed the
Veteran’s claims file and noted that the Veteran had a
history of testicular seminoma, status post ochiectomy. He
also provided a summary of the Veteran’s autoimmune hepatitis
symptomatology since November 2004, noting that the Veteran
reported being healthy prior to his presentation to the
hospital in December 2004. The specialist explained that
autoimmune hepatitis is a necro-inflammatory disease of
unknown etiology, and stated that it is believed that one or
more genes, acting alone or in concert, increases an
individual’s susceptibility to autoimmune hepatitis. He also
indicated that environmental factors, such as drugs,
chemicals, and viruses are thought to trigger the development
of autoimmune hepatitis in genetically pre-disposed
individuals. He also indicated that autoimmune hepatitis may
present with the non-specific symptoms of fatigue, lethargy,
malaise, nausea, abdominal pain, or itching. The specialist
went on to state that an extensive review of current
literature failed to suggest any association between exposure
to Agent Orange and autoimmune hepatitis in humans, and noted
that there are few reports of hepatitis C-related autoimmune
hepatitis in Vietnam Veterans. Finally, the specialist
stated that, as opposed to hepatits B and C, autoimmune
hepatitis is not known to spread via contaminated needles or
blood products, and hence, it was very unlikely that
unsterile methods of vaccination or contact with blood could
have spread the Veteran’s autoimmune hepatitis.
Because the assessment of the March 2009 VHA specialist
constitutes the only competent medical evidence of record
addressing the etiology of the Veteran’s autoimmune
hepatitis, the Board finds that the preponderance of the
evidence is against the claim, and thus, service connection
for this condition must be denied.
In reaching this determination, the Board does not question
the sincerity of the Veteran’s belief that his autoimmune
hepatitis is related to service. As a lay person, however,
he is not competent to establish a medical diagnosis or show
a medical etiology merely by his own assertions because such
matters require medical expertise. See 38 C.F.R.
§ 3.159(a)(1) (Competent medical evidence means evidence
provided by a person who is qualified through education,
training or experience to offer medical diagnoses, statements
or opinions); see also Duenas v. Principi, 18 Vet. App. 512,
520 (2004); see also Espiritu v. Derwinski, 2 Vet. App. 492,
494-95 (1992). There is no competent medical evidence of
record relating the Veteran’s current autoimmune hepatitis to
his active service, including exposure to Agent Orange,
unsterile air guns, or contaminated blood. Rather, the March
2009 VHA specialist specifically found that current
literature failed to suggest any association between exposure
to Agent Orange and the subsequent development of autoimmune
hepatitis, and provided the opinion that it was very unlikely
that unsterile methods of vaccination or contact with blood
could have caused the Veteran’s autoimmune hepatitis. His
opinion was based upon review of the claims folder, as well
as a review of current literature, and is found to carry
great weight.
Accordingly, the criteria for service connection have not
been met. In reaching this conclusion, the Board has
considered the applicability of the benefit-of-the-doubt
doctrine. However, as the preponderance of the evidence is
against the claim, that doctrine is not applicable. See 38
U.S.C.A. 5107(b). Therefore, the Veteran’s claim is denied.
ORDER
Service connection for acute autoimmune hepatitis is denied.
____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans’ Appeals
Did you notice how the “VHA Specialist” kept trying to compare AIH with Hep C? Trust me. This Veteran is going to be pushing up daisies by the time VA decides that AIH is probably related to AO or any of the other rainbow defoliants used in the RVN. I would venture to guess that if the VA went back to the country formerly known as RVN and did extensive testing on the population that survived AO, they might get “more current literature” and possibly more up to date “medical evidence” of nasty side effects due to AO. I’m just shooting in the dark here, mind you. What do I know? I consider this another attempt to suppress a claim that might have a connection to AO. Remember, if you don’t investigate it(guess who’s in charge of that?) then there’s no evidence in your favor and you lose. Rather convenient if you ask me. Do you Vets sometimes get the impression you’re pissing into the wind when dealing with VA? Don’t feel pregnant and alone. You are.
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Bethanie Spangenberg
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robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 