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BVA- Throw 'em under the bus

From: Posted by NOD
Category: Re:
Date: 09/12/08

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Citation Nr: 0636372 Decision Date: 11/22/06 Archive Date: 11/28/06 DOCKET NO. 05-02 386 ) DATE ) )On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States INTRODUCTION The veteran served on active duty from September 1969 to January 1971 and from June 1971 to March 1973. This matter comes to the Board of Veterans' Appeals (Board) from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the veteran's claim for service connection of hepatitis. The veteran was afforded a Travel Board Hearing before the undersigned Veterans Law Judge on August 22, 2005. A transcript of the testimony offered at this hearing has been associated with the claims file. It is noted that the veteran withdrew his claim for service connection of bilateral shin splints at the Board hearing; accordingly, the only issue on appeal is entitlement to service connection for hepatitis. FINDING OF FACT The veteran did not incur hepatitis in service and his hepatitis is not otherwise related to service. CONCLUSION OF LAW Hepatitis was not incurred as a result of active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). The veteran contends that he contracted hepatitis in service. The veteran's service medical records indicate that the veteran was diagnosed as having and treated for hepatitis in May 1972, during his second period of service. The medical records do not, however, indicate what strain of hepatitis was diagnosed. The veteran's separation exam for his second period of service dated in January 1973 is negative with respect to a diagnosis of hepatitis. Moreover, the veteran denied jaundice or hepatitis on the report of medical history associated with his discharge examination and clinical evaluation was normal in all areas. Nonetheless, there is an in-service diagnosis of hepatitis; thus, the question is whether the veteran currently has hepatitis, and, if so, whether it was incurred in service. Service connection is granted for disability resulting from disease or injury incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Following the veteran's in-service diagnosis of hepatitis, the earliest evidence regarding a hepatitis infection is approximately 28 years later. VA medical center outpatient records indicate a history of drug abuse, including use of intranasal cocaine in 1985 and IV drug use in 1997. Testimony offered at the August 2006 Board hearing confirmed a history of illicit drug usage and a diagnosis of hepatitis shortly thereafter. Of record are two laboratory reports of hepatitis tests dated in March 2000 and December 2001. Both of these tests indicate that the veteran is positive for both hepatitis B and hepatitis C. Following service, this is the earliest evidence of record indicating a diagnosis of hepatitis. The veteran was first seen for a VA examination in August 2001. At that time the veteran reported a history of hepatitis C dating back to his second period of service. The nurse practitioner stated that hepatitis C was contracted during the veteran's tour of service, albeit based solely upon the veteran's reported history and without the benefit of the claims file or the veteran's service medical records. In October 2002, the veteran was once again seen at the VA medical center for an examination regarding his hepatitis. This examination was based on a thorough review of the veteran's claims file and all available records. At that time the veteran denied vomiting, hematemisis or melena. He reported episodes of distention and nausea, three to five times a week, and epigastric distress and reflux daily. He further reported chronic fatigue and weakness. He reported that these symptoms began in 1999 and persisted to the time of the exam. The examiner noted that the veteran's in- service diagnosis of hepatitis was consistent with hepatitis A, which was self-limiting. The examiner ultimately diagnosed hepatitis B and hepatitis C, and opined that the veteran's currently diagnosed hepatitis was due to the veteran's IV drug use and nasal cocaine use because the veteran most probably had hepatitis A in service. The veteran's hepatitis was not incurred in service. The Board is aware that on its face the August 2001 VA examination links the veteran's hepatitis to service. The Board, however assigns that examination little probative value because it was based solely on the history provided by the veteran, and not on clinical and service medical records. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). On the contrary, the October 2002 VA examination report is based on a thorough review of the record and substantiated on more that the history provided by the veteran. That report links the veteran's hepatitis to his post-service drug use and indicates that the veteran had an acute case of hepatitis A in service. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Accordingly, the Board finds that the veteran did not incur hepatitis in service and that his currently diagnosed hepatitis is not otherwise etiologically related to service. Service connection must be denied as the preponderance of the evidence is against the claim. ORDER Entitlement to service connection for hepatitis is denied. This is unarguably one of the worst examples of a VET getting the bum's rush out the door. The Veterans Administration should be proud of itself for saving the taxpayer's hard-earned dollars. I see no offer of a liver biopsy to ascertain the age of the infection. Granted, the VET has no nexus letters. What do the VFW VSOs in Nashville do to earn their $ ? The closest the BVA came to giving this VET his day in court was the admission that he had hep in service and it wasn't definitively diagnosed as A or B. A good nexus at this point would have put the $ in his pocket. Instead, The VET chose to let the VA make medical conclusions about where and when this hep occurred. 28 years after service his health started to decline and he discovered it. Does that sound familiar to any of you ? Why does the VA get away with using this as a reason to deny benefits ? The VFW should be tarred and feathered and run out of town on a rail. Blame should be placed at the door of the guilty. The VET came to the VSO for help because they understand the process, or claim to. We can't blame the VA. They are trained to do this like a pit bull. A VET's legal options are severely limited in a claim for benefits ,no matter what you are told otherwise. VA, like a lazy cop, seized on the easiest evidence it could locate to solve the crime- a history of drug abuse. Nowhere in this decision was there any serious discussion of risk factors in service . A nurse practitioner gave a limp assessment without benefit of any SMRs or other records that might shine some light on the case. The VA sensed the weakness in this Dx and attacked accordingly. They went out and got an opinion that supported their decision to deny benefits and ruled that they have a right to chose one medical opinion over another. In legal terms, this is called and "outcome -based" decision. The VA decided the VET was not entitled to SC for his hepatitis and proceeded to gather the evidence needed to deny him benefits. When you file your claim for any disease or injury, please look in the mirror. This is the person the VA will be addressing. You want to deal from a position of strength. You need evidence to balance or refute their evidence. What you submit as evidence must be better than what they have in their records. They will not expend a lot of energy trying to deny a well-prepared and presented claim. That is why some VETS are successful in spite of evidence which is prejudicial to their claim. 85% of us are unsuccessful. This decision is just another sad example of why. Think Boy Scout.

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

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Category: General Info
Date: 08/21/09

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