Veterans Claims Help

Just when you think you have all the answers and the best or safest way to tackle a hep. claim, along comes a BVA decision that makes you sit up and take notice. Granted this has no precedence and cannot be cited by other Vets, but the information about the inner workings and the thought processes of VA examiners  is  extremely revealing.

Witness this gentleman from sunny, westernFlorida. He’s being repped by the Florida Dept. of Vet affairs. They are a reputable, no-nonsense bunch of state employees who help Vets obtain SC. Makes sense. It keeps them off the State’s welfare roles. Definitely a win-win for the Vet and the state.

He had some other baggage that put a wrinkle in this story. He smoked hash and drank booze and got caught while in the service.. Well, there you go. Risk factor and willful misconduct. How you can get Hep from the business end of a hash pipe or the mouth of a beer bottle is obvious to the VA. Because he arrived without his own nexus, VA felt sorry for him and decided to provide him one courtesy of their  very own VA medical personnel. The ARNP, in January of 2006 opined that it was simply impossible to speculate on whether it was from being a medic (big risk), smoking hash and swilling beer (medium risk) or his post service drug addiction( major risk). That was January. In March she had a change of heart and opined that the etiology was less likely than not the 1 ½ years of being a medic or the UCMJ  beer bong infraction, No, the smart money was now on the fact that he had a twenty year history of IVDU after service and that was more likely than less likely the cause. Now, stay with her on this. Here’s the unvarnished rationale:

She explained that the Veteran’s in-service diagnosis of infectious hepatitis was mostly likely hepatitis A as evidenced by symptoms of abdominal pain, jaundice, and an inability to digest food.  Supporting documentation consisted of an April 1973 treatment note, in which the Veteran denied drug use, thus making it more likely that he contracted hepatitis A, not hepatitis C while in service.

VA examiners are real Dick Tracys. Sherlock Holmes would feel like a mental midget next to these sleuths. He denied using drugs which automatically ruled out Hep C! Which begs the question of what exactly she was smoking to arrive at that conclusion. Keep an eye on these April, 1973 treatment notes. We haven’t heard the last of them.

In November 09 on appeal, the Board remanded for another VA exam- this time for any possibility of secondary service connection. Oddly enough, they asked the same ARNP to do this…

On this occasion she noted the Veteran’s risk factors of a tattoo prior to service, blood exposure and shared razors during service, and IV drug use after service. Consequently, the examiner was unable to resolve the issue of whether hepatitis C was due to or a result of infectious hepatitis without resorting to mere speculation.  Her only rationale was that the etiology of hepatitis C could not be isolated to one specific cause as the Veteran had multiple risk factors for the disease.

The Board was beginning to feel confused now. Here the RO had three shots at coming up with an etiology for the HCV and they couldn’t commit on two out of three. In addition, VA’s highly-trained ARNP “examiner” is somehow trying to graft the HCV onto the HAV. So the Board called in the Hexpert…

For further medical comment on this issue, the Board requested a VHA medical expert opinion in April 2010 from a hepatologist. The Board received the expert medical opinion in September 2010. After reviewing the claims folder, the hepatologist concluded that it was at least as likely as not that the Veteran’s service-connected infectious hepatitis was associated with an acute hepatitis C infection and caused his current chronic hepatitis C infection. In discussing the rationale of the opinion, the hepatologist noted that the infectious hepatitis of April 1973 became chronic, i.e. there was evidence of persistent abnormality in his liver enzymes (“abnormal laboratory exam, an elevated SGOT of 148″) a year later in August 1974.  He also noted that the Hepatitis A virus does not cause a chronic hepatitis infection.  In addition, the Veteran was diagnosed with drug abuse in September 1973, admitting to smoking hash and drinking alcohol.

The hepatologist went on to explain that, regardless of the Veteran’s report of lack of exposure to needlesticks or intravenous drug abuse, it was his opinion that the acutehepatitis infection in April 1973 was at least as likely as not acute hepatitis C and that the subsequent natural history would be the development of a chronic hepatitis C infection in most affected individuals.

Now, the Board summed up the positive and the negative to do the benefit of the doubt dance. Yes, they do that at the Board. You may never see it at the RO, but that doesn’t mean anything. Their mission is to bag ’em and tag ’em and let the Board sort it out.

The positive evidence of record consists primarily ofthe VHA medical opinion, from a board-certified hepatologist, which reflects a full review of all medical evidence of record, including the prior VA opinions, and bases his opinion on professional and personal experience, as well as the traditional risk factors for hepatitis C. On the other hand, the negative evidence of record consists of a January 2006 addendum in which a VAnurse practitioner was unable to provide a definitive opinion.  However, in a March 2006 opinion, the same VA medical professional determined that the Veteran’s service-connected infectious hepatitis did not play a significant role in the development of the current hepatitis C.  She articulated a credible opinion regarding etiology, and supported that opinion with clinical rationale and citation to the Veteran’s medical history.

What no one (besides the Hexpert) is admitting here is the glaring fact that this Vet had a AST (SGOT) of 148 a year after his “ acute, resolved HAV infection”. If the AST was cooking at 148 you can bet the ALT was about 170. The Board does mention it in passing, but it is not addressed in the positive-negative powwow. This is the smoking gun. How is it the ARNP, assigned this job not once, no, not twice, but three times, managed to overlook this little tidbit. It was right there in his SMRs. VA examiners are paid very handsomely for their expertise. That’s all they do. They didn’t run down to the VAMC and grab her out of the gastroenterology clinic. She was on staff at the RO.  This is the St. Petersburg VARO. The smart money says she still works there and is currently denying HCVets on a fairly regular basis.

Finally, in the last paragraph, we find the real reason the Vet won. It turns out a Board certified hepatologist  is a full house whereas an ARNP is two pair.

In this regard, the Board acknowledges that neither the negative March 2006 VA opinion nor the September 2010 positive VHA opinion referenced medical literature to support the medical conclusions contained therein or to reject any opposing conclusion but that both opinions were based upon a complete and thorough review of the claims folder.  However, the March 2006 negative VA opinion was rendered by an advanced registered nurse practitioner, and the September 2010 positive VHA opinion was rendered by a doctor who specializes in gastroenterology and hepatology (indeed the Chief of the Gastroenterology and Hepatology Department at a medical facility). 

     This further illustrates the “white wall”. The gastrodoc didn’t say the ARNP twit was all wrong. He didn’t ask how she could come to the horribly misguided conclusion that the HAV was acute. An AST of 148 a year later is not just a smoking gun- its a smoking 155mm Howitzer. He made his own case without disparaging hers.  They should revoke her license to opine, but they won’t. She works for VA and does what she’s told, even if it conflicts with the truth.

We at AskNod do not subscribe to conspiracy theories about how VA seems intent on denying our claims with the flimsiest of evidence. We do not produce complicated plots that require hours to explain. We don’t have to when evidence like this surfaces.  We do not believe this constitutes a coincidence.  VA personnel are employed to do this for a living, not a side job. This is all they do. We, as Vets, would like to hear the VA’s tortured explanation for why they suffer this 70% error rate in ratings.

Here’s the link to the BVA decision. It really wasn’t even close in spite of how the VLJ characterized it.

http://www.va.gov/vetapp10/files5/1040154.txt

Here is a Lady Vet with her act together. She came armed and dangerous to this shindig. It had to go to the BVA to be won, but we expect that nowadays. The VLJ used some cutting edge logic to cut through the poor reasoning of the VA examiner. These paragraphs caught my eye:

The only other medical opinion on this question was that of the  November 2007 VA examiner.  She reviewed the claims file, noted  in-service hepatitis A and B diagnoses, and concluded that she  could not “make a determination without mere speculation” as to  the current hepatitis C was caused by service.  She noted that  there were no positive markers for non-A, non-B viral hepatitis  infection, that the Veteran had separate infection of hepatitis A  and hepatitis B, and that hepatitis A is a self limiting viral  infection and does not lead to hepatitis B.  The examiner  concluded that, although the risk factors for hepatitis B and C  are similar, hepatitis B does not convert into hepatitis C.   In weighing the above medical opinions, the Board notes that each  are flawed.  Drs.   Carrera and Frenette each erroneously noted that the Veteran was  diagnosed in service with non-A, non-B hepatitis.  However, it  appears to the Board from the context of their remarks that they  meant to indicate that diagnoses of hepatitis A or hepatitis B in  service could have been erroneous diagnoses of what was actually  hepatitis C.  The November 2007 VA examiner’s statement that  hepatitis B does not convert to hepatitis C is beside the point,  as there is no argument that such a “conversion” occurred, but,  rather, that the hepatitis B diagnosis was in fact an erroneous  diagnosis of what was actually hepatitis C.  Moreover, in Jones  v. Shinseki, 23 Vet. App. 382 (2009), the Court held that, before  the Board can rely on an examiner’s conclusion that an etiology  opinion would be speculative, the examiner must explain the basis  for such an opinion or the basis must otherwise be apparent in  the Board’s review of the evidence.  Id. at 390.  It must also be  clear that the physician has considered “all procurable and  assembled data.”  Id (citing Daves v. Nicholson, 21 Vet. App. 46  (2006)).  Finally, the physician must clearly identify precisely  what facts cannot be determined.  Id.  the November 2007 VA  examiner’s conclusion does not appear to meet these criteria, as  she did not indicate that she had considered the evidence  regarding jet gun injections or the possibility that the  hepatitis B diagnosis was an erroneous diagnosis of what was  actually hepatitis C.  In regard to the comment that there were  no markers, we are unable to determine whether there were markers  that were negative for non-A non-B or that there was an absence  of testing for markers.

She used the Nevada Office of Veterans Affairs (Reno). Seems like they are the go to people for VSOs judging by this.

http://www.va.gov/vetapp11/files1/1105990.txt

I had to search for a perfect example of this to illustrate the folly of filing a claim without a nexus. This Veteran could have, and most assuredly should have, won this claim. We won’t go into why his Service Officer from VFW let him get to court without it, nor why he was dissuaded from having a Travel Board hearing or a Videoconference one.

This case illustrates a train wreck in slow motion. The BVA summarizes all the evidence in Lawspeak and we watch helplessly as the fellow’s claim disintegrates in the bestHollywoodslow motion. The tattoo in question that is the precursor to the destruction probably did occur during service. To use a different recollection of events as the evidence to prove his testimony is unreliable is very flimsy.  However, it does reveal how far the VA will go to find a chink in your armour.

The reader will notice also that the Vet had a viable risk factor despite the lack of a recorded tattoo. He was a combat engineer-as in Gee, let’s go build a road through a free-fire zone without any support. We can always call Superman with our Jimmy Olsen high-pitched whistle slash wristwatch. Combat engineers were part insane, part macho and very good shots in that “conflict”. They had to be in order to avoid becoming a Charles Darwin statistic.

The VA decided to can this with a VHA opinion. So much for an Independent Medical Opinion.  The VHA examiner dutifully wrote a well-reasoned treatise on why this gentleman came down with HCV slightly later than a year after service. The incubation period was too long. The blood of wounded soldiers he came in contact with was free of HCV.

This was the positive evidence against his claim.  Now, what wasn’t done to develop the claim that might have proved his contentions? You will notice that in spite of being mentioned, there was no testing done to ascertain if the Veteran was seropositive for Hep A or B. If he was exposed to B, he very well might have contracted C at the same time. That was one of the theories my doctor explored in his nexus for me. B and C can only be transmitted via direct blood exposure. Hep. A is a food born illness only. Often, what wasn’t explored as a risk is as telling as what was. For instance, there’s no mention of the jetgun until appeal. Too late in the Board’s eyes. Besides the Vet has no medical training, so this seems to be a last ditch defense volunteered by none other that Mr. Veteran’s untrained legal representative.  How about deciding not to have a hearing? Buddy statements confirming the tattoo was applied in service? All of these were missed or overlooked. We won’t go into the Monday morning Quarterback mode and analyze the could ofs, would ofs and should ofs. If we’re reading this now we only hope our Vet friend appealed up to the Court. It’s too late to introduce new evidence, but never too late to claim failure to assist.

These two paragraphs speak volumes to the loss:

This VHA medical opinion appears to have been based on a thorough review of the record, including the Veteran’s comprehensive treatment records, and a thoughtful analysis of the Veteran’s entire history.  See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”].  The Board therefore finds the July 2010 VHA opinion to be probative as to the issue of medical nexus.

Also of record as to the issue of medical nexus is the opinion of the September 2006 VA examiner.  Specifically, the VA examiner stated that “the Veteran’s hepatitis C infection is as likely as not related to previous history of hepatitis in 1971, tattoo left upper arm in 1968.”  Critically, the VA examiner provided no rationale for this conclusion and also failed to provide an opinion concerning the relationship, if any, between the Veteran’s hepatitis and his in-service blood exposure.  See Hernandez- Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence].  Accordingly,the Board finds the September 2006 VA opinion to be of little probative value.

It is obvious from the above that the Vet had won this and someone higher up overrode the rater. How else could there be a positive finding of SC?

As we all know, or should, HCV travels on its own schedule and manifests itself very differently from one individual to another. Witness that I just lost a friend May 11^th eight years my junior to this. He had it when he came out of service in 1988 and was granted a 10% rating by VA. When he started to slide downhill in 2006, he filed for an increase.  After two years of denials, he finally came here and we got him lined out on a game plan. He was awarded 180% in early 2009 but it was too late to enjoy. He went from Stage 0 to complete portal hypertension and cirrhosis in 24 years. I’m still relatively vertical after 40 years of this and am Stage 3.5.  Johnny was no Mormon, but he wasn’t a lush.  The important thing in retrospect here is that confounded nexus or the lack of an independent one.

Take this to heart when you file. Get the groundwork done and a good foundation laid prior to building a claim on it. If your chances of winning are 15%, then having all the Hickson elements sewn up before filing will bring the odds up considerably. Make it so, Number One.

http://www.va.gov/vetapp11/files1/1102254.txt