We will divide this decision up into several parts and look at each component part. Some decisions are typed slightly differently and may or may not use terms like “Analysis” or”statement of Facts” but essentially are the same.
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This is the top or header. It tells you the case number, the date of the decision, the docket #, and where the case originated(Waco VARO)Citation Nr: 0825117
Decision Date: 07/28/08 Archive Date: 08/04/08DOCKET NO. 04-08 858 ) DATE
)
)On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
—————————————————————-The Issue tells you what the Veteran is claiming. You will sometimes see 20 or more issues listed.
THE ISSUE
Entitlement to service connection for hepatitis C.
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Representation tells you who the Vet is represented by.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
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Occasionally, if the Vet is accompanied by his or her spouse at the trial, they will list it here, before the Atty. for the Board area
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The Attorney for the Board is the Prosecuting Attorney, the one trying to poke holes in your story and defend the VA. He represents the Secretary of Veterans Affairs(VASEC) in this action and is here to make sure you lose.
ATTORNEY FOR THE BOARD
Dan Brook, Associate Counsel
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I like the Introduction area. It tells you a little about the Veteran, his or her dates of service, sometimes about medals awarded in the case of a combat vet, and a general sumary of how this case came to be before the BVA. If the case has an extended history of remands, legal trips up to the Court of Appeals for Veterans Claims(CAVC) and back down, they are generally summarized here in order for the decision to be clearly understood.
INTRODUCTION
The appellant is a veteran who served on active duty from
July 1963 to October 1964. This matter comes before the
Board of Veterans’ Appeals (Board) on appeal from a February
2003 rating decision of the Waco, Texas Regional Office (RO)
of the Department of Veterans Affairs (VA). In March 2004
the veteran requested a Board videoconference hearing. She
subsequently cancelled that request, however.
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The BVA doesn’t do this like Hollywood. They tell you how the movie ends here. This is a statement in Dick and Jane format telling the veteran if he/she has won or lost.
FINDING OF FACT
It is not shown that hepatitis C became manifest in service
or is related to service.
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This is the same conclusion written in VA Legalspeak because the law dogs don’t speak Dick and Jane format and can’t charge as much for their services if it was that simple.
CONCLUSION OF LAW
The criteria for entitlement to service connection for
hepatitis C are not met.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§
3.303, 3.304.
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This area of the decision is basically the Miranda warning and a request from the VA to the VET to “Give us all you have” so they can make a decision on your claim. The VCAA stands for Veterans Claims and Assistance Act was enacted in 2001 and simply states what we needed to know to win all these years. Prior to this, a Vet often discovered after the decision that he might have won, but evidence he submitted got SHREDDED or was not included in the file. This is a boilerplate disclaimer from the BVA that says you gave them everything, and if you lose, it’s your fault because you screwed up and did not complain.
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA’s duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2008); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide; and (4) must ask the claimant to provide
any evidence in her or his possession that pertains to the
claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA
notice should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The veteran has been advised of VA’s duties to notify and
assist in the development of his claims. A September 2002
letter from the RO explained what the evidence needed to show
to substantiate the claim. It also explained that VA would
make reasonable efforts to help her obtain evidence necessary
to support her claim, including medical records, employment
records or records from other federal agencies but that it
was ultimately her responsibility to ensure that records were
received by VA. A subsequent August 2006 letter clarified
that VA was responsible for obtaining relevant records from
any federal agency, and that VA would make reasonable efforts
to obtain records not held by a federal agency, but that it
was the veteran’s responsibility to make sure that VA
received all requested records not in the possession of a
federal department or agency. This letter also notified the
veteran of the risk factors for hepatitis C recognized by the
medical community and requested that she provide any
pertinent information on her exposure to such risk factors.
Additionally, a March 2006 letter provided notice regarding
criteria for rating the disability at issue and effective
dates of awards in accordance with Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006)).
Although complete VCAA notice was not given prior to the
rating on appeal, the appellant had ample opportunity to
respond to the notice letters and and to supplement the
record after notice was given. The veteran’s representative
has argued that the veteran should have been given notice of
the specific risk factors for hepatitis C and the need for
her to supply any pertinent information regarding her
exposure to them prior to the rating decision on appeal.
Although the representative is correct in this assertion, the
Board finds that the veteran has not been prejudiced by this
later notice as the representative was still able to make a
detailed argument regarding all the risk factors the veteran
contends that she was exposed to during service. Thus, there
is no indication in the record that earlier notice would have
resulted in the veteran identifying any additional risk
factors. Accordingly the veteran is not prejudiced by the
delay in notice as it did not affect the essential fairness
of the adjudication. See Sanders v. Nicholson, 487 F. 3d 881
(Fed. Cir. 2007). More generally, the Board finds that the
veteran has not been prejudiced by any technical notice
deficiency that may have occurred along the way, and no
further notice is required. See Conway v. Principi, 353 F.3d
1369 (Fed. Cir. 2004).
Regarding VA’s duty to assist, the RO has obtained the
veteran’s service medical records, along with available VA
and private medical evidence. The veteran’s representative
has argued that VA did not attempt to obtain private medical
records identified by the veteran in November 2006. When the
veteran identified these records, however, she noted that
both physicians were deceased and that no one seemed to have
their previous records. Also, she did not provide any
address for VA to attempt to obtain records. Given the
veteran’s essential statement that the records were not
obtainable, the Board does not find that VA was under any
obligation to attempt to obtain them.
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You will notice here below that the VA has discussed the idea of an exam and decided against it. If you present the three elements of a claim- A= a current condition or disease, B= a disease or risk factor in service, and C= a nexus opinion from your doctor saying what you have now is “more likely than not” what you had in service (that A+B= C), then they grant you an exam. If you make your case, then you win. Here, the Vet has not done that and will not get her exam. The three elements have been called the Caluza triangle, the Golden Triangle or the Hickson Elements. Hickson and Caluza are simply 2 cases that defined what the Vet needs to win(A,B,and C)
The Board has also considered whether a VA medical
examination is necessary for proper adjudication of the
veteran’s claims. An examination or opinion is necessary if
the evidence of record: (A) contains competent evidence that
the claimant has a current disability, or persistent or
recurrent symptoms of disability; and (B) establishes that
the veteran suffered an event, injury or disease in service;
(C) indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in
service or with another service-connected disability, but (D)
does not contain sufficient medical evidence for the
Secretary to make a decision on the claim. See 38 C.F.R. §
3.159(c)(4). In the instant case the evidence does not
establish that the veteran was exposed to hepatitis C in
service and, as will be discussed below, instead shows that
the veteran was actually contracted hepatitis C at birth.
Consequently, an examination is not necessary.
The veteran has not identified any additional evidence
pertinent to this claim. VA’s assistance obligations are
met. The veteran is not prejudiced by the Board’s proceeding
with appellate review.
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This is the MOST important part of the claim. Always read this area closely and you can find out who’s been naughty and who’s been nice. The Veteran gets an opportunity to speak, if present, and defend his/her case. They can submit last minute evidence or witnesses to the event. The Service Officer gets a chance to stand up and make a Horse’s Ass of himself, act like a Doctor, and make claims he can’t back up. He always does this if the Vet is absent. It can kill your case in a heartbeat.
II. Factual Background
Service treatment records do not reveal any diagnosis or
findings of hepatitis C. They also do not show that the
veteran was given any blood transfusions or exposed to any
unsafe needles. The veteran did receive treatment on a few
occasions for abdominal pain, nausea and vomiting that
included a couple of trips to the emergency room and also
received treatment for a rash, which involved a brief
admission to the hospital. The abdominal pain was found to
be gastroenteritis and the rash was found to poison
ivy/contact dermatitis. On October 1964 separation
examination the abdomen and viscera were found to be normal
and no abnormalities of liver function were noted. The
veteran was not noted to have any tattoos or other
identifying body marks.
A May 2001 VA history and physical showed a pertinent
diagnostic impression of hepatitis C positive.
An October 2001 VA admission note (related to hip surgery the
veteran received) indicated a past history of IV heroin abuse
and hepatitis C.
A 2002 VA progress note indicated that the veteran had a
history of chronic hepatitis C and a mild transaminase
elevation, which suggested that her liver disease was very
mild. An October 2002 progress note showed that the
veteran’s hepatitis C was not a candidate for interferon and
that she would be started on the hepatitis A and B vaccines.
A January 2003 VA progress note shows that the veteran was
receiving the hepatitis A and B vaccines.
A May 2003 VA progress note shows that the veteran had
elevated liver function tests (lfts) and that these levels
would be followed.
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I will interrupt this decision here to point out that the case has just been lost. The sister announces below that Mommy Dearest has Hep C and gave it to all the kids. If you have a disease or injury before service, you must prove that it got worse in service or that military service made it worse. If you don’t, then you don’t get any $
A November 2003 letter from the veteran’s sister indicated
that the veteran, like the rest of her siblings, was born
with hepatitis but that she was a carrier only.
On her February 2004 Form 9 the veteran indicated that she
was born with hepatitis C. The virus was transmitted from
her mother at birth. The disorder was diagnosed as Non A,
Non B hepatitis until the late 80s.
In April 2004 the veteran reported that she had been exposed
to risk factors for hepatitis C in the form of body piercing.
It was also noted that she had a history of abnormal ALT/SGPT
levels.
In his June 10, 2008 hearing presentation the veteran’s
representative argued that the veteran’s claim should be
remanded to obtain any available additional service treatment
records and also to afford the veteran with a VA medical
examination. The representative noted that the veteran
received emergency medical treatment for nausea, vomiting and
abdominal pain in both January 1964 and July 1964 and that in
January 1964 she was admitted to the hospital. Also, the
veteran was noted to have a rash in service in early June
1964 for which she required hospitalization. In addition the
representative indicated that bleeding of the arm was noted
by the service treatment records in July 1963, after the
veteran was given a vaccination and that the veteran
contended that she received both a blood transfusion and
vaccinations through air gun delivery during service.
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Laws and Regulations is another Dead Zone that will put you to sleep. If you read about 2-3,000 of these , they all say the same thing. Basically, it states what you need to prove, what VA needs to disprove, and what will happen or won’t happen after everyone has submitted their evidence. Basically, this is an opportunity for the VA Lawdog to Bark in Legalspeak.
III. Law and Regulations
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §
3.303. Service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disability
was incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. Baldwin v.
West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107(b).
When all of the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which case the claim is denied.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
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This is the Meat of the Claim. This section will tell you why you won or lost. The Veterans Law Judge(VLJ) summarizes for the 4th or 5th time what the VET did or did not prove and what it means financially. You will see that the VLJ states that the Vet punched a large hole in the bottom of the Claimboat. You don’t see a Judge admit this very frequently. It’s a b*tchslap to the Vietnam Veterans Of America VSO service representative who represented her. As her lawyer, he should never have let the sister anywhere near the building to testify.
IV. Analysis
The evidence of record establishes that the veteran has a
current diagnosis of hepatitis C. It does not establish that
the hepatitis C was incurred in service or that it is related
to service, however. Notably, the service treatment records
are negative for any findings of hepatitis or liver disease
and there is no indication from these records that the
veteran was exposed to any risk factors in service. Although
the veteran was treated for abdominal pain and for rash,
there is no indication that these problems were
manifestations of hepatitis. Notably, the abdominal pain was
found to be gastroenteritis and the rash was found to be
poison ivy/contact dermatitis. Further, there is no
indication in the record of any diagnosis of hepatitis C
until many, many years after service and no medical opinion
of record indicating any relationship between the veteran’s
hepatitis C and service. Although the veteran has alleged
that her hepatitis C is related to service, as a layperson,
her allegations are not competent evidence of a medical
diagnosis or nexus. See Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992).
The veteran’s representative did indicate that the veteran
was given a blood transfusion in service, which if correct
would represent exposure to a risk factor for hepatitis C.
The service treatment records do not show any record of a
blood transfusion, however. Nor do they show any
documentation of the use of air injectors. Also, even if air
injectors were used, there is no evidence of record that any
air injection that might have been received by the veteran
resulted in hepatitis C. The representative also
essentially argued that hepatitis C could have been
contracted when the veteran bled after an injection. The
record does not contain any evidence that the veteran’s blood
was comingled with any blood (whether infected with hepatitis
C or not) during and after this injection, however.
Although the veteran was admitted to the hospital at least
once, the one definite admission was for a rash and the other
possible admission (it is not clear whether the veteran was
treated just at the ER or was actually admitted to the
hospital) was for abdominal pain. There’s absolutely no
indication that the veteran would have needed a blood
transfusion in either instance. Consequently, even though
the veteran’s representative argues that VA should obtain any
available record of this hospitalization, the Board finds
that obtaining such a record would serve no useful purpose as
there is no basis for thinking that the veteran would have
received a blood transfusion. Also, as mentioned above,
obtaining a VA examination pertaining to the etiology of the
veteran’s hepatitis C is unnecessary as the evidence of
record does not establish that hepatitis C was incurred in
service.
More importantly, the veteran and her sister have
affirmatively indicated that she contracted hepatitis C from
her mother at birth. As the Board has no reason to discount
this affirmative admission (which is squarely against the
veteran’s interest in wanting to prevail in her claim), the
record thus contains strong affirmative evidence that the
veteran contracted hepatitis C prior to service and no
evidence that she contracted hepatitis C during service.
Accordingly, the weight of the evidence is against finding
that hepatitis C was contracted in service or that it is
related to service. The preponderance of the evidence is
against this claim and it must be denied.
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The Order is just one more place at the end to announce what they told you in “Findings of Fact” and “Conclusions of Law”. It also gives the VLJ a place to get his name and signature on the claim and look important. When you’re getting the shaft, its always nice to know the name of the jerk who screwed you. It gives you “closure” and allows you to “move on” with your life. Most judges are very pleasant and try to appear unbiased. Remember who they work for-VASEC. I certainly would never imply that any of these decisions are “predecided”. It just seems that way as so many of them go against the VET.
ORDER
Entitlement to service connection for hepatitis C is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans’ Appeals
I would think that VVA would fire the chucklehead who tried to help this Vet. Or, in the alternative, I would be tempted to strangle the helpful sister. Either way, this was doomed to fail in Waco. It did, and it didn’t improve with age when they hauled it to D.C. and polished it up for a do over. Remember Clint Eastwood: ” A man’s gotta know his limitations.” Here, the SO failed the Vet. What’s missing is an apology to the Vet from the SO for wasting her time and building up her hopes of a successful outcome. Is it any wonder we read about so many Vets committing suicide? HCV is depressing in its own right. We do not need this kind of “assistance” with our claims. I went up against them 3 times and, oddly enough, finally won by myself without all the “valuable” VSO help. Makes you seriously consider the idea of a Conspiracy. Naw. No Mel Gibsons here- just VSOs trying to be helpful.
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