One has to hand it to Mr. Milton L. Hall. He represented himself before the Court in a single Judge disposition pro se– no small feat for someone who isn’t a legal beagle. That he fights them to a draw and a remand is also of note. He probably isn’t going to prevail when this gets a new trial because he picked up the hep. sometime after service or it would appear he did. Since this is a single Judge decision (SJD) we can’t use it for precedence, but it illustrates something we all can benefit from-to wit,unverifiable events. Milt had a love affair with all things drug related and a proclivity for the suds.This caused enough problems that he took the “cure” at a VAMC for the ETOH issues in 1985. During his convalescence, he got the diarrhea of the mouth disease and bragged about his 15 year  history of shooting up junk with shared needles. His treatment cure didn’t take and he tried again in 1988. This time he disremembered some past history but averred it was probably 12 years of IVDU as opposed to 15.

Milt ‘s drug and alcohol abuse started to catch up with him and he discovered the Hep. C problem in 1998. Being the eternal optimist, he filed for SC on the hep. in 2004. After much denial and NODs, the BVA elected to have him fill out a VA Risk Factors Questionnaire in June of 2007. I would have thought that happened in 04. Maybe VA wasn’t taking him seriously. At this time they also asked for the Dog and Pony show to see if it was SC. Nobody at the RO bothered to do any of this before it was appealed. It would seem that they didn’t see a need to waste any money on a burnt out junkie. I sure wouldn’t and I apologize for that sentiment. The BVA likes to make sure they have all the facts before they summon the Firing Squad and that is why they did this. As expected, they denied and he appealed to the Court.

Which brings us up to date. The Court has found a interesting wrinkle here to enunciate. What happens when a Vet recites his version of history and the VA then uses it against him? They have shown over the last decade that when a Vet offers lay testimony, it is simply his rosy version and uncorroborated. Now we have the shoe on the other foot and his lay testimony is the primary reason for the denial. It’s still unverifiable by his medical records, but now it is believed and used as the primary reason for denial. Damned if you do and damned if you don’t.

Read this one for what it discusses on this subject and I guarantee you will discover a rich vein of cites from precedent to buttress you cases before the BVA. For instance:

It is not the function of this Court to speculate on the relationship between an appellant’s military service and his current disabilities; rather, it is the function of this Court to decide whether the Board’s factual determinations on the issue constitute clear error. See Shoemaker v. Derwinski, 3 Vet.App. 248, 254 (1992); Gilbert, 1 Vet.App. at 53. For the Court to determine whether the Board’s factual findings related to hepatitis C are clearly erroneous, the Board must ensure that its findings are adequately explained and sufficiently supported by the evidence of record. See Shoemaker, 3 Vet.App. at 254.
Here, the Court agrees with the Secretary that the Board’s reasons or bases are inadequate,  particularly in light of the fact that the Board discounted the available medical evidence as based on “unverifiable” events. See R. at 9; Secretary’s Br. at 10-14. As conceded by the Secretary, the Board fails to point to any legal authority or regulation that requires an independently verifiable event to award service connection for hepatitis C. See Secretary’s Br. at 13-14. Indeed, the law establishes that entitlement to service connection may be based on lay evidence. Davidson, 581 F.3d at 1316;
Caluza, supra. Accordingly, because the Board’s inadequate reasons or bases prohibit judicial review, remand is warranted. Milton v. Shinseki 2011

The VA and, by extension, the Court are eager to remind us in decisions that they do not subscribe to the Federal Rules of Evidence and are not bound by them. One of those rules states that discussions between an individual and his doctor are inherently credible because the patient has a vested interest in being healed. It follows that he/she would not give false information to obfuscate a correct diagnosis. With that said, the credence to be accorded a drug addict in the throes of delerium tremens would be low. To use that information to deny him based entirely on this self-reporting is against the law. VA knows this yet they tried to slip it by Judge Farley. He wasn’t buying it.

I hope some here can find value in this when they put their claims together. VA will try anything on the assumption that they either won’t get caught or you won’t appeal. This is apparent in almost every contested decision. When unmasked on appeal, the VA will  nod their heads sagely, agree the Judge is right and ask for a do over. This allows them to give it more attention and deny properly the second time.

Old Milt has no chance in Hell of winning this, but his new denial will be properly arrived at and his “unverified” risks will be stricken from the record. The proper reasons will be correctly assembled and a new decision crafted that is appeal-proof. This is as it should be. Regardless of whether your claim has merit, the law must be followed. This is why Congress wisely inserted the Court of Appeals for Veterans Claims into the process to curb VA’s propensity to run roughshod over the judicial landscape.

Hall v. Shinseki