While this decision doesn’t have any connection with HCV, it illustrates an important precept for dealing with the VA. Here, the Veteran has wisely hired an attorney (and a very good one, we might add) to defend him in this claim. Virginia Girard-Brady is no stranger to the VA legal arena. We would hire her in a heartbeat with no qualms whatsoever.

The problem with this claim is VA’s propensity to route everything to the Veteran, often bypassing the lawyer. It has horrible consequences for this gentleman’s claim as you can see. In a nutshell, he has filed for Degenerative Disc Disease (DDD) which he quite honestly believes is a result of an injury in service. VA asked him to submit a Form 21-4142 to release medical info to help adjudicate his claim, but something went awry:

in April 2010 the Board remanded the Veteran’s claim specifically to locate private treatment records that the Veteran  mentioned during his October 2009 VA examination.  However, the  Veteran failed to respond to the RO’s request to submit an  Authorization and Consent to Release Information form.  In this  case, despite VA’s efforts, the Veteran failed to provide enough  information to identify and locate the records.  Because the  Veteran did not provide information regarding the names of the  physicians, and their addresses, there was nothing more that VA  could do to locate the private treatment records.  As such, the  Board finds that VA did all it could to locate records relevant  to the Veteran’s claim, and has fulfilled the duty to assist.

And:

Although the Veteran’s attorney requested that she be notified  pursuant to 38 C.F.R. § 3.159(e) if VA was unable to obtain the  records mentioned in the April 2010 letter, it is clear to the  Board, and common sense dictates, that the April 2010 letter was  sent to the Veteran precisely because VA was unable to obtain the  records without further information and authorization to release  this information from the Veteran.  In fact, 38 C.F.R. § 3.159(e)  notes that if VA becomes aware of relevant records before  deciding the claim, VA will notify the claimant of the records  and request that the claimant provide a release, and that if the  Veteran does not provide a release, VA will request that the  claimant obtain the records, and provide them to VA.  This is  exactly the course of action taken by VA, as the April 2010  letter expressly requests that the Veteran send VA the records of  the treatment he mentioned during his October 2009 VA  examination, or, if he wanted VA to obtain the records for him,  he needed to complete and return the Authorization and Consent to  Release Information forms.  It is clear from the letter that VA  did not have enough information from the Veteran to locate and  obtain the records; nor did VA have the authorization to obtain  the records even if VA had enough information to locate the  medical records.  In summary, the Board finds that VA did all it  could to assist the Veteran with obtaining additional medical  records pertinent to his claim.

This brings up an interesting contretemps, doesn’t it? What is the purpose of having an attorney represent you if the entity you seek remuneration from continues to go behind her back and deal directly with her client?  If you were a major insurance company and you tried this stunt, you would be sued to the ends of the earth and the law dog would win. You wouldn’t have a legal leg to stand on. Canons of law dictate what the does and don’ts are. Why, then, does the VA get a bye on this? We certainly hope she chooses to appeal this to the Court because it seems like one of the most clearcut and egregious examples of VA’s propensity to ignore established precedent, or, in the alternative, to imply that normal law doesn’t apply in the “Veteran friendly environment” of the VA justice system.

Let this be a lesson to all who entrust their claims to a VSO or private attorney. Make sure you send copies of everything you receive from the VA to them on the off chance that a scenario like this doesn’t develop. As you can see, VA’s take on this is simple- No flies on me!  It’s easier to correct this BEFORE the BVA pushes Print.

http://www4.va.gov/vetapp10/files4/1032007.txt