CAVC–Harris v. Shinseki (2010)–No Evidence is Negative Evidence?

This was a single judge decision handed down on the 17th- barely 2 weeks ago. It illustrates just how The VA can run roughshod over your “purported” evidence, ignore that which it pleases and then take a non nexus from a VA examiner and turn it into probative evidence against the Vet. This seems to be the most recent hallmark of our latest VASEC. Each of his predecessors had their own particular foibles they were fond of of foisting onto the Court. Fortunately for us the Court does not consist of sub par intellects. The CAVC has been able to see through the ruses of VA Secretaries over the years as they attempted to arrogate more power for themselves and engaged in mission creep. Secretary Shinseki’s dominant ploy seems to be the art of taking a defective nexus argument against a Vet and making it an affirmation of the evidence against a claim. If you feel there is an abundance of negative evidence regarding a claim, but no one with an M.D. will put their imprimatur on it, then it is non-evidence. It neither supports or refutes the claim, but rather clouds the issue. It therefore should not even be introduced, let alone be given any weight. Our Exalted Leader feels differently. This is precisely why we have the Court as our last legal line of defense. They restore calm to the process and let light in where personal feelings have shaded the outcome.

Vets do have an excellent judicial forum with more safeguards built in than their counterparts in the civilian sector. Nevertheless the VA seems to go to extraordinary lengths to disprove claims or destroy the credibility and character of litigants before it. Turning a “might’ve, could’ve, probably, possibly” or “it’s in the realm of belief” into a damning, concrete fact to deny a claim does not befit someone as august as the VASEC and his coterie (The BVA). As they hold themselves out to be attorneys of some repute, it is all the more appalling to see them subscribe to this deceptive practice. They resemble that troglodyte who always made Perry Mason’s job a chore.

Meet Mr. Ronnie Harris, a man with perhaps a few moral shortcomings in the eyes of his peers, but a moral reprobate in the eyes of the VA judiciary with no redeeming social mores. In short, someone undeserving of any help to prove his claim and thus vindicate himself. As you can see, the Court feels otherwise and made their point very clear. Mr. Harris will live to see another day in court and be able to introduce more evidence. Perhaps his new medical examination will be more supportive of his claim.

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