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BVA Jet Gun decision(2006)

From: Posted by NOD
Category: What NOT to do filing a VA claim
Date: 09/11/08

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Citation Nr: 0610877 Decision Date: 04/17/06 Archive Date: 04/26/06 DOCKET NO. 04-16 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: The American Legion The veteran had active service from August 1968 to June 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT Hepatitis C was first manifested 30 year after discharge and there is no competent medical evidence relating it to active service. CONCLUSION OF LAW Hepatitis C was not incurred in or aggravated during military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2005). Evidence of current disability is shown by a May 2002 private medical treatment record reflecting treatment for hepatitis C. Subsequent VA examination reports confirm hepatitis C. With respect to evidence of an inservice injury, the veteran reported that he received immunization inoculations with jet air gun injectors, which he claims is the source of his currently diagnosed hepatitis C. The veteran's statements may be considered competent evidence that he was inoculated with jet air gun injectors. And, while, there is no evidence of record other than the veteran's statements showing that he received any immunization inoculations via air gun injectors, the veteran is a credible witness, and there is no reason he should not be believed. The veteran's statements that air gun injector inoculations are the source of his hepatitis C, however, are not competent evidence as to the etiology of his current disability. Lay testimony is not competent to prove a matter requiring medical expertise, such as a diagnosis or medical causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Service medical records do not contain any evidence of complaints, findings, treatment or diagnosis of hepatitis C. The earliest objective evidence documenting hepatitis C is contained in private medical records in 2002, approximately 30 years after service discharge. Such a pronounced lapse of time between the alleged cause of a disability and its initial manifestations is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd. 1330, 1333 (Fed. Cir. 2000). In regard to a medical opinion providing a nexus, a VA examiner in April 2003 examined the veteran and reviewed his medical history. The examiner stated: I have reviewed the literature and I am aware that the hepatitis B transmission apparently has been documented to occur through the use of these pneumatic injectors. I am not aware of an established transmission of hepatitis C although this is an open issue and certainly would seem to be a possible mode of transmission. He does not seem to have any other risk factors for acquiring hepatitis C. [emphasis supplied] Even accepting as fact that the veteran received his immunization inoculations via air gun injectors, the examiner noted that, while it was "possible" that hepatitis C could be transmitted by such a mode, he was unaware of any literature that established the transmission of hepatitis C by such mode. A possible connection is too tenuous a basis on which to grant service connection. The veteran submitted copies of medical literature indicating that Vietnam era veteran's may be more likely than others to contract hepatitis C, and that it may be possible to transfer the hepatitis C virus through the jet injectors that were used for inoculations at that time. The literature presented by the appellant is general in nature, however, does not address the veteran's specific situation and, again, a possible connection does not provide the necessary nexus between his current disability and his period of service and is too tenuous a basis on which to grant service connection.. The veteran submitted an Internet article regarding the transmission of hepatitis and Vietnam veterans. That literature notes that, as stated by the VA examiner, that there are no confirmed instances of any veteran acquiring hepatitis C as a result of inoculation by a jet injector. The veteran submitted a copy of a report involving another veteran in which two private physicians concluded that this veteran most likely incurred hepatitis C during service. The report does not, however, pertain to this veteran, and is significantly distinguishable in that there are no medical opinions of record in this case attributing the veteran's hepatitis C to his active service. Absent any competent medical evidence linking the veteran's hepatitis C to his active service, the preponderance of the evidence is against the claim for service connection, there is no doubt to be resolved, and the claim must be denied. ORDER Service connection for hepatitis C is denied. This is a Jet gun case from start to finish. The VET has allowed the VSO to micromanage his claim to extinction. I'm willing to bet $ that the VET was encouraged to go collect evidence like he was on a scavenger hunt. He has managed to assemble articles on Jet guns. Doesn't say but I'd guess there are some 8 1/2 x 11 glossy black and whites immortalizing some boys in boxers that says: "Don't shoot 'til you see the whites of their eyes". The VA, God bless them, saw fit to supply a nexus because this VET neglected to do so. He did, however, Dx 'd his HCV as being caused by the guns. I have pointed out the folly of doing this if you are not a doctor. The VET also submitted an article that said a lot of Vietnam VETS have HCV but the article didn't say they got HCV from Jetguns. Finally he submitted a BVA decision in which a VET was granted SC for Jet gun risk along with the nexuses provided by the 2 docs. in that case. Again, this has nothing to do with the case we are looking at here. You cannot type your name on a piece of paper, cut it out and paste it on another BVA decisions and win. Every claim is unique to the individual. This VET may have been able to win if he had gone out and collected several nexuses from legitimate doctors stating the hep was SC via the gun. We'll never know. What we do know is that he was smart enough to APPEAL it. Now he can file MFRs and keep trying to win without going back to square 1 each time. If he does win, they will have to go back and pay from July, 2003.

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From: cutiepiepass
Category: General Info
Date: 08/20/09

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Black Mania Network

From: blackmania
Category: General Info
Date: 08/21/09

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Last changed: 08/21/09