COVA–Espiritu v. Derwinski- No Lay Doctors


In almost all decisions you will read, be they Court or BVA, you will run across two cases over and over again. Gilbert v. Derwinski is the most quoted, but hard on its heels is Espiritu v. Derwinski (1992). The major reason these two surface so frequently is what they stand for. Gilbert had multiple holdings that are salient to Vets which we have discussed in another post. Espiritu focuses on one narrow idea- that unless you are a doctor, you have no business talking like one. 

     While Layno v. Brown (1994) espoused the holding that a Veteran, or anyone testifying in his/her behalf, could only opine on what came to them via their five senses, Espiritu held very narrowly that if you have no medical training you cannot make statements, diagnoses or pronouncements of a medical nature. That domain belongs exclusively to medically trained personnel.

     Jovita M. Espiritu filed for DIC in August of 1971 shortly after the death of her husband, a Philippines Army soldier in the Second World War. She was denied based on the death certificate not agreeing with the medical records associated with his service-connected injuries.

     Mrs. Espiritu suffered in silence for 18 years and decided to reopen her claim. She submitted some very controversial evidence to bolster her argument. The first item raised a few eyebrows. It was a different death certificate that said the same exact thing as the original.  Item number 2 was a contemporary letter from Mr. Espiritu’s family doctor dated a month prior to his demise which listed numerous medical complaints, but not the one listed as the cause on the death certificate. Item number 3 was a lay statement from the next door neighbor saying that Mr. Espiritu died from TB, asthma and septicemia which (oddly) partially mirrored the death certificate’s findings. Item number 4 really made everyone sit up. This was a statement from a nurse named Pilar Nacionales that said Jose did not die from his service- connected injuries. Last but not least, Item number 5 was a joint affidavit dated a year prior to this reopening from two neighbors who claimed to be present and who stated that Jose’s new adventure in the afterlife was a direct result of septicemia and “buttock abscesses”. It was an eclectic bunch of evidence but failed to move the Manila RO.

      No to be outdone, Jovita filed to appeal the adverse decision, perhaps hoping this time to receive a sympathetic hearing of the facts. The 1990 BVA was no more availing than the  RO in 1971, so she decided to take this to the top. Keep in mind here she’s doing all this pro se.

     The Court didn’t waste any time with this. They could have (and I might have) impugned her testimony and evidence as contrived and fabricated but they didn’t. Instead, they addressed the obvious problem. Jose’s next door neighbor was not a doctor nor were the two gomers she dug up to swear they were present for the Extreme Unction ceremony. Let’s face it. The evidence was shaky and Pilar’s contribution was extraneous.  Hell, for that matter the Doctor’s letter didn’t even blame it on the SC condition. Having two dissimilar death certificates was rather fishy, too, but everyone politely overlooked the possibility of a forgery. I suppose the rest of the evidence was so damning that no one felt good about piling on the poor widow woman. At this point it was obvious to everyone but the blind that she was desperately grasping at straws.

     That is the long and the short of José Espiritu’s demise and Jovita’s fruitless pursuit of DIC. She probably didn’t live happily ever after either. Jose, on the other hand, will be ensconced in the VA legal Hall Of Fame for centuries to come if we continue to have collateral damage associated with wars.

 

    Meet Jovita Espiritu…                                                                                                                                                                                                                                                                                       Espiritu_90-452                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

About asknod

VA claims blogger
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