I received this letter from Mr. Wayne Theofrastou today:

Wayne Theofrastou says:

Dear Sir: What have I ever done to you that rates your belittlement of me, my character and my service connection for hep C case ? The VA placed stumbling blocks for me at each and every phase of my case for the past nine years…I could not afford a lawyer during most of that time as well as my health failing throughout most of my case…Yes I made mistakes but I at least had the guts to go it alone…It was a very lonely battle as sick as I was… Now you said I had provided a few articles from the internet in support of my claim, I provided over 1000 pages of statements, medical studies (both foreign and domestic), Department of Defense documents stating that they were concerned about cross contamination via the jet guns, and the reasons they ordered the use of the pneumatic jet injectors to be stopped, and I can go on to list all the rest of what I submitted in support of my claim but that would bore you. You neglected to note during your tirade that I alone had my case remanded from the Court of Veterans Appeals in Washington back to the BVA and remanded back to the Office of Origin to be revisited and the proper action (comp and pen hearing) be provided, (I guess I did something right). Now due to the fact you have not reviewed my entire case, including several teleconferences, I feel that you have judged me too harshly. I know the truth as well as all the professionals I had to deal with…The pneumatic jet injectors did cross contaminate during the vaccines given, they (doctors ( both VA and civilian) and researchers) admit that. The cost of the VA to admit this fact would be financially devastating to them. You remember how the agent orange claims were dismissed for years but the VA had to finally admit AO caused many illnesses. So it is the same with the HepC claims. By the way I made it clear from the onset, I wanted NO Compensation for this affliction just an admission of responsibility in order to be vindicated. Now I could go on and on but I’ll close with and old, but wise, native american saying: Judge not your neighbor untill you have walked a mile in his moccasins. You haven’t, so your judgement of me is misplaced. I will be judged by God as you will be, I know how my case will be decided by Him, do you know yours? I’ll pray for you.
God bless and keep you…Wayne Theofrastou

The message was left in the “About the Author ” page. I am erasing it from there and moving it here because I have done Mr. Theofrastou a disservice. CAVC records of his case before Judge Davis are woefully incomplete and this has resulted in a distorted record from which I used to write my post.

I will say this, though, and I stand by it. I still have my little yellow books of all my immunizations, some via jetgun and others via disposable syringe. Some were by old glass syringe reuseables up in Laos. Nowhere in my shot records are there any lot or batch numbers on any of my immunizations. To expect the military to record and keep this information is unworkable in my mind. I do strongly believe that Vets have been irreparably harmed by jetguns, including you,  Mr. Theofrastou. Proving this is a daunting task for anyone, be they a leagle beagle or an unrepresented Vet. Doing this via your route was ill-advised.

I have often pointed out the early history of jetgun claims. They consisted of Vets supplying the articles published on HCVets and the famous Fast Letter of 2004. All of this was for naught. Vets were still denied after the one inadvertent BVA decision that slipped through the cracks. Once that hole in the dike was plugged, few others won. The recent wave of jetgun successes have all been accomplished via strong, well-reasoned nexus letters. The same can be said for the Nehmer claims that preceded them. Many AO diseases, while presumptive, still require this nexus method to win.

While I admire your tenacity in pursuing this, the reader can also see from my post that the endeavor was futile from the beginning.  You had no chance of winning because you had no legal strategy. For lack of a strategy, your CUE filing, as well as your  compensation claim, were doomed right out of the gate. That was the reason for this write up. It has nothing to do with a personal ad hominem attack on you or your person.

I assure you, Mr. Theofrastou that I have walked in your shoes-since 1989 when I got my first denial. I have been at war with our common enemy ever since. I, too, have a CUE claim before a panel of five (5) VLJs as I write this concerning that 1989 denial. My original BVA decision was before a panel of three with one absent in 1992. I am no stranger to this process.

What I wish to make clear about filing a claim, let alone a CUE revision, is that simply reprinting Internet articles and pictures of people formerly known as civilians in their new undies getting shots from a jetgun will not get you service connected. All the Department of Defense articles, NIH studies and write ups for pedojet contaminations in Bophal, India are no panacea for success.  In order to win a claim, you must present evidence- a nexus letter- from a doctor saying you, Wayne Theofrastou, were personally contaminated by a multi-use pneumatic air injection device while a member of the US military. The letter must state in no uncertain terms why the doctor feels so strongly about this. There are numerous ways of doing this to include seeking the services of a doctor we advertise on this site. He charges nothing for this. At most, it would cost you some USPS expenses unless you have access to electronic means of transmittal.

I commiserate with your plight and wish you had found us before setting out on this Odyssey on your own. We have helped and are helping Vets wend their way through this jungle every day. Our successes are slowly accreting  over time as we learn from our mistakes. I used your case as an illustrative example of all the wrong ways to attack the VA. Proving a claim requires you to go on the offensive rather than sit in the trenches waiting. By the same token, it requires you to collect evidence that supports your- Wayne Theofrastou’s- claim and not all the things wrong with jetguns in India. Their checkered history is not on trial here nor is the lot or batch of defective Gamma globulin serum. Would you go out and sue the manufacturers of the bullet that severed your spine? The maker of the gun that fired the bullet? No. You would sue the idiot who pulled the trigger and who also happens to be the one invested in remunerating you by your kind and grateful Government.

VA, while not the perpetrator of this jetgun stupidity, is still the one you have a gripe with. Arriving in court unprepared or with info that they refuse to consider as probative evidence is what I complained of. I’m in the same boat as you with this disease. I chose to fight it by carefully studying the methods of winners. I also did it while I was very ill. You mention having been occupied thusly for nigh on nine years. I have been about this since my filing in March of 1994. Regardless of how much time, perspiration and angst we have greased the wheel with, we have had two different outcomes. We both did it pro se, too. Mr. Theofrastou, the reason your attempts came up short was your methodology. You claim you sought no remuneration, but I would point out the VA is a court of equity, pure and simple. They are not in the business of dispensing apologies-just holdings and checks for compensation and pension. You will get no “We’re sorry” and a gift card for a free Vende at Starbucks from them.

While my judgement of you may be misplaced in your view, it was predicated on a futile, inartful defense which consumed a lot of scarce judicial resources. You deserved better and for that, I am ashamed of the system. If you read other cases here, you will find I am guilty of this again and again. My frustration is born of beating my head against the wall until bloody to no avail.

Take another page from the manual of Native American Indians and peruse it, sir. In order to conquer your enemy, you must learn his greatest weaknesses and exploit them. Arriving in a Court of equity and claiming you were dissed, dismissed and diseased by their hand is all well and fine, but you must prove your contentions in the accepted manner. Justice is not always a one-way street with the advantage accruing to the Vet. Demanding answers and evidence from the VA is counterproductive and yields nothing, as you have come to find out. The duty to assist has boundaries.

We stand ready to help you if you wish to mount a new defense and would indeed be honored to do so. The idea of justice for Vets shines brightly at this website and my remarks were borne of a desire to prevent others from choosing your path. You are quite obviously well educated which leaves me at a loss as to how you came up short in this effort. The courts grant much leeway to pro se Vets such as us.

I attach your CAVC single judge disposition here again. I apologize that it has continued to be an elusive link when posted. I try each and every one out after writing the post and some seem to become inoperative shortly after posting from the CAVC. It was working when I attached it this evening, Well, it seems every several weeks the link rots.

Here is the copy and past version:

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4156
WAYNE C. THEOFRASTOU, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge: U.S. Coast Guard veteran Wayne C. Theofrastou appeals pro se from a July
16, 2009, Board of Veterans’ Appeals (Board) decision that determined there was no clear and unmistakable error (CUE) in a January 9, 2007, Board decision that denied entitlement to service connection for Hepatitis C. Forthe reasons stated below, the Court will affirm the Board’s decision.
I. ANALYSIS
Mr. Theofrastou argues that the Board erred in determining there was no CUE in the January 2007 Board decision. CUE is “a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” 38 C.F.R. § 20.1403 (2010). For CUE to exist, either (1) the correct facts, as they were known at the time, were not before the adjudicator or (2) the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet.App. 242, 245 (1994); 38 C.F.R.§ 20.1403. Review of a request for revision on the basis of CUE is based on the record and law thatexisted at the time of the decision in question. Russell v. Principi, 3 Vet.App. 310, 314 (1992) (en banc). VA’s failure to comply with the duty to assist cannot constitute CUE. See 38 C.F.R.§ 20.1403(d)(2) (2010); see also Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed. Cir. 2002) (“[A] breach of the duty to assist cannot constitute CUE.”). An allegation that the adjudicator improperly weighted or evaluated evidence also cannot constitute CUE. See 38 C.F.R. § 20.1403(d)(3) (2010); see also Damrel, 6 Vet.App. at 246. The Court’s review of a Board decision regarding an allegation of CUE in a prior decision is limited to whether the Board’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and whether the decision is supported by an adequate statement of reasons or bases. 38 U.S.C. § 7261(a)(3)(A); see Livesay v. Principi, 15 Vet.App. 165, 174 (2001) (en banc).

Mr. Theofrastou first argues that the Board failed to determine that VA erred by neglecting to obtain records he requested, including information related to the make and model of the jet injector used to administer his immunizations during basic training, the types of immunizations he received during basic training, the standard operating procedures for administering immunizations at the time of his basic training, and the lot number of the gamma gobulin he was administered. The Secretary responds that the Board did not err because the failure of the duty to assist cannot constitute CUE. Indeed, the regulations clearly state that “[t]he Secretary’s failure to fulfill the duty to assist” is not CUE. 38 C.F.R. § 20.1403(d)(2). Because failure to fulfill the duty to assist cannot constitute CUE, the Board’s decision is not arbitrary, capricious, or an abuse of discretion. See 38 U.S.C. § 7261(a)(3)(A).

Mr. Theofrastou presents two additional arguments in his informal brief. He argues that the Board failed to afford him the benefit of the doubt under 38 U.S.C. § 5107(b) and 38 C.F.R. § 3.102. He also argues that the Board failed to consider documents and articles provided in support of his claim. However, it appears Mr. Theofrastou did not raise these allegations of CUE before the Board. Se eRecord at 7 (stating that Mr. Theofrastou’s argument was “that the Board’s January2007 decision was clearly erroneous because the Board failed in its duty to assist him in locating records he contends were ‘critical’ to his claim”). Each specific request for revision on the basis of CUE constitutes a separate allegation “that must be the subject of a decision by the [Board] before th[is] Court can exercise jurisdiction over it.” Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002).
Where, as here, the appellant “raises a new theory of CUE for the first time before the Court, the Court must dismiss for lack of jurisdiction.” Acciola v. Peake, 22 Vet.App. 320, 235 (2008). Therefore the Court lacks jurisdiction to consider these arguments.
Because Mr. Theofrastou does not demonstrate that the Board has erred, the Court will affirm the Board’s decision.
II. CONCLUSION
On consideration of the foregoing, the Court AFFIRMS the July 16, 2009, Board decision.
DATED: May 5, 2011
Copies to:
Wayne C. Theofrastou
VA General Counsel (027)

I wish to genuinely thank you for your selfless service to our Country. Few hear the call and even fewer respond. When things go south it behooves us to close ranks as we do here and seek mutual support. This we offer free with no preconditions, sir. Consider your case an example of Justice run amok and a teaching moment for other Vets. If, after absorbing this, you still feel belittled, then I am guilty as charged in your personal court. It certainly wasn’t my intention.