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BVA--DON"T LIE ABOUT IT!!!!!

From: Posted by NOD
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Date: 09/28/08

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Citation Nr: 0825688 Decision Date: 07/31/08 Archive Date: 08/06/08 DOCKET NO. 00-11 532 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension, to include as secondary to service-connected type II diabetes mellitus. 2. Entitlement to service connection for hepatitis C. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from November 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2000 and March 2003 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. The issues before the Board today were remanded in November 2004 for further evidentiary and procedural development. This was accomplished, and the Board concludes that it may proceed with a decision at this time. FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that the veteran's hypertension manifested during service, manifested within one year of service, was otherwise related to his military service, or was caused or aggravated by his service-connected type II diabetes mellitus. 2. Hepatitis C did not manifest during the veteran's active duty service, nor is the veteran's current hepatitis C otherwise related to service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by the veteran's active duty service, nor may it be presumed to have incurred in or been aggravated by such service or be proximately due to or the result of service-connected type II diabetes mellitus. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2007). 2. Hepatitis C was not incurred in or aggravated by the veteran's active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). II. Hepatitis C The veteran contends that he contracted hepatitis C when he received treatment for facial burns while serving in Vietnam. According to the veteran he was treated with multiple intravenous (IV) fluids which might have included blood or blood products such as plasma. Despite an extensive search for hospitalization records, the only reference in the veteran's service treatment records of a facial burn is a January 1966 aid station clinical record. No mention is made of any treatment with blood or blood products; he was admitted for observation of his eye. The veteran's remaining service treatment records, including his November 1967 separation examination, are silent for any exposure to blood or blood products; there is also no indication of a diagnosis of hepatitis C. Interestingly, the veteran failed to report his in-service hospitalization on his history form at the November 1967 separation examination. Post-service, the first evidence of hepatitis C is an April 1997 serology lab report. Subsequent medical records continue to note the veteran's diagnosis, but fail to identify the etiology of his hepatitis C. In the absence of corroborative evidence, the Board finds the veteran's statements regarding exposure to blood products alone insufficient evidence of an in-service injury. Although it appears that he was hospitalized during service, it would be speculation to state that such evidence establishes the use of blood or blood products during service. This is especially true given that there is no indication in the January 1966 aid station that the veteran had lost a significant amount of blood as a result of his facial burns. Despite a lack of evidence of exposure to hepatitis C through blood or blood products, the Board observes that the competent evidence demonstrates other potential risk factors for hepatitis C. First, the veteran contends that his left ear was pierced by a fellow serviceman while stationed in Vietnam. At his September 2006 VA examination, he indicated that his friend disinfected the needle with a match prior to the piercing; he did not think that the needle was used for multiple piercings. Additionally, the veteran's service treatment records show treatment for multiple sexually transmitted diseases, including gonorrhea, herpes, and lymphogranuloma venereum, suggesting that he engaged in high- risk sexual activity during service. Finally, the veteran has an extensive post-service history of cocaine use. However, he adamantly denies any IV drug use or snorting; according to his records, he reports only smoking cocaine. There is also evidence of tattoos, though denied by the veteran. Dr. Taylor Treatment Report dated May 10, 2000. It is not clear when the veteran obtained these tattoos, but there were no tattoos denoted on his service examination reports. It is unclear from the record whether any of the above- discussed potential risk factors are likely etiologies for the veteran's current hepatitis C. However, an August 2004 VA gastroenterology consultation record states the veteran has likely had hepatitis C "longer than thirty years." The Board acknowledges that "longer than thirty years" may mean that the veteran's hepatitis C began during service. However, thirty years prior to 2004 is 1974, thus leaving a seven year lapse in time between service separation and the thirty-year mark. In the absence of a more definitive opinion as to the date of onset or the source of the veteran's infection, the Board finds this contemporaneous clinical record insufficient upon which to conclude that hepatitis C was incurred during the veteran's active military service. In this regard, the Court has held that medical evidence which merely indicates that the particular disorder "may or may not" be related is too speculative in nature to establish the presence of said disorder or the relationship thereto. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The Board once again notes that it is prohibited from making conclusions based on its own medical judgment and that it must rely upon the conclusions of trained medical personnel when considering evidence of diagnosis and etiology. Colvin, supra; Espiritu, supra; Allday v. Brown, 7 Vet. App. 517 (1995). In the present case, the Board sought the opinions of a medical professional to aid in its determination as there was no competent evidence on the subject of etiology in the contemporaneous record. See September 2006 VA Examination Report. The September 2006 VA examination report reflects that the veteran was interviewed and examined; the claims folder, including the veteran's service treatment records, was also reviewed. The examining physician noted the lack of evidence of any in-service exposure to blood products, but did explain that there were other potential in-service risk factors. Nevertheless, it was the examiner's professional opinion that any opinion as to the etiology of the veteran's current hepatitis C would be speculative at best. The Board notes that this opinion was echoed in a November 2007 addendum to an October 2007 VA examination. Finally, the Board observes that there is a nearly thirty year lapse in time between the veteran's active service and the first diagnosis of hepatitis C. Such evidence weighs against his claim that his current hepatitis C was incurred during service. See Maxson, supra; see also Forshey, supra. The veteran's lay statements regarding a nexus between his current hepatitis C and service are acknowledged. However, this determination is not a matter for an individual without medical expertise. See Espiritu, supra. Therefore, while the Board has considered the veteran's lay assertions, they do not outweigh the competent medical evidence of record, which fails to show that the veteran's hepatitis C is related to his military service. Rather, in the present case, the competent medical evidence of record demonstrates that the onset and etiology of the veteran's hepatitis C is unknown and that to posit a guess would be mere speculation. Under these circumstances, service connection for hepatitis C must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Winsett v. West, 11 Vet. App. 420, 424 (1998) (while an accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology, there must at least be a sufficiently definitive opinion on etiology to rise above the level of pure equivocality). Thus, with consideration of the lack of competent evidence of in-service exposure to hepatitis C or a diagnosis of hepatitis C, the length of time between service and a recorded diagnosis, and the absence of any medical opinion suggesting a causal link to the veteran's service, the Board finds that the preponderance of the evidence is against his claim of service connection for hepatitis C. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1999) Entitlement to service connection for hepatitis C is denied. Pretty simple deal. The VET had plenty of viable risk factors here but he ignored the ones he could make a medical nexus with and pursued the ones he couldn't prove. The BVA Judge is being polite and not calling him a liar to his face. If this VET had actually roasted his face badly enough for a txfusion or Ringer's Lactate, it would have been in his medrecs bigtime. I'm sure I'd remember that and tell the doc when I was going thru the last roundup and peckercheck. On the other hand, this guy could have made a case for the STDs. Maybe he was Navy and had one of those herking monsters on his chest. The biopsy showed he'd had a t least thirty years which would easily fit into a nexus theory. But guess what? Forgot the nexus. OH YEAH. And then of course there's that little matter of the old Cocaine use after service. That's always a bummer when you realize that doctors write stuff down that you say. Just caused you smoked it ain't gonna fake out the VA wide receivers. A successful claim usually can be accomplished if you tell the truth. Or, If you tell the story the same exact way each time you tell it. The trouble with lying is it's hard to remember what you lied about 5 years ago. You'll notice that it gets lots of folks in trouble- even Presidents with a fantasy about blue dresses. Of course! That's almost as funny as saying you were in Cambodia. Remember? As we motored up the Mekong River in our SWIFT boat, there was a big sign there that said "Welcome to Cambodia. Speed limit 10MPH Leave no wake!" You remember that, don't you?

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From: superbteensnatch
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Date: 08/21/09

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From: virgin-films
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Date: 08/21/09

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