COVA– CALUZA V. BROWN–TOTAL RECALL


VetCourtAppealsPromoOne of the hallmarks of a famous case from the early days of the CAVC (then the COVA) is name familiarity. When I first started researching why I lost in 1994, I looked first to the VA and there found the BVA decisions. From there I frolicked through nameless files and marveled on how it was done and why some (a lot) lost. The word Caluza vs. Brown (1995) popped up fairly frequently. With it was always the pronouncement that a Vet needed three things to win. Ah! The magic handshake? No, a nexus letter.

This was my ephiphany. Something so simple I had never considered it. All these years I thought you went in, wrote it all down and they gave you your money. My DAV dude didn’t tell me about this. In fact, my AMVETS guy didn’t either. Here I was deep into round three with the MOPH and I was just now discovering the Rosetta Stone. The funny thing about this is that when I asked my representative about it, he blew up like Foghorn Leghorn: “Nexus letter! Nexus letter? Why of course you have to have one. Jez.  I say, I say Everybody knows that, son.”

If I had not found this, there’s a better than even chance I wouldn’t be here telling you about it. Three VSOs and strangely not one said the magic word “nexus”. Which brings us to one Mario G. Caluza. Mr. Caluza was a participant in the Big One-a member of the guerilla service in the Philippine Army.

Mario had some records issues. I can commiserate with him. In war, records go missing or are abandoned. Lots of mine did. His exit physical SMRs in 1945 were silent for any musculo-skeletal issues. In fact, a 1947 affidavit he signed reaffirmed no injuries in service. Seems like 1947 would have been as good a time to pitch a bitch as any if you were wounded.

In 1970. Mr. Caluza showed up at the Manila RO and filed for a right “foot” injury ostensibly incurred in service. He got even more specific and said it was in the middle of the right foot and he had been treated “for a few months” at an Army base afterwards. His doctor disagreed and said he suffered from “Rheumatoid Arthritis, knee and ankle right, and hypertension, moderate.”  Nothing like submitting a nexus that contradicts what you’re claiming, huh? VA denied and that was the last of that claim.

In August of 1987, Mr. Caluza returned with yet another claim. This time it had matured and become a “1943 shrapnel wound to the lower right leg.”Miraculously, he had found several of his comrades from that time and they dutifully confirmed that he had been injured, named the appendage,  the mountain pass where it occurred and date of the injury. He even had an undated wannabe nexus letter from a doctor saying it might have occurred during the war or shortly thereafter.

Eleven months later in July 1988, the RO denied again. No new and material evidence was the reason this time. Mario immediately trotted out two “new” buddy letters from his platoon mates. This time they really got specific and even said a doctor they knew had treated him from 1970 to 80 extensively. He even had a July 1958 medical certificate signed by a Dr. Martinez, which diagnosed “[g]eneral debility and [p]ain in the right leg due to an old wound in the left [sic] leg”. This was getting more and more pathetic by the moment- or should I say by the doctor.

The VA reopened  this two months later  in September 1988 and denied again for very obvious reasons. However, being polite, they didn’t call him a liar. Mario immediately fired off his NOD and got right on his Form 1-9 as they were known then. Appended to his appeal was more new and material evidence. New notarized letters from yet more Vets he’d served with (honorably) corroborated his claims and named the battle. They testified that Mario got the silver BB from an enemy mortar round in the right lower distal shin between the knee and the foot. They even said “that he had been carried in a litter to the temporary battalion aid station, “where no official medical records . . . were ever prepared and issued to the patient”. Caluza v. Brown (1995).

VA wasn’t buying this. Seemed like most all of his running buddies had chimed in and they all said pretty much the same thing. In one last gasp, Mario found two more buddies. The new doctor weighed in and stated that he  miraculously re-remembered that he had indeed treated Mario way back in 1947 and it was for a shrapnel wound from the service. Mario sure was lucky to find all these guys and the doctor should have been the final winner. Not.

The RO still wasn’t buying and sent it up to the BVA. They took one look at it, held their noses and gave it the thumbs down. By now half of Manila had testified that Mario was at Bessang Pass and had been clobbered by something metallic in either the left or right foot leg. The year and the leg were sketchy, but no less than six fellow combat Veterans were saying shit happens and three doctors, when sober, seemed to concur.

After the loss at the Board, Mario appealed to the brand new COVA. He got the standard single judge remand back to the Board for a redo with better Reasons and Bases for the denial. True to form, the BVA got out the art gum eraser, changed a few sentences and came to the same conclusion from Pittsburg rather than Indianapolis.

Upon return to the Court, Mr. Mario finally attained that which Norm Gilbert, Joe Fugo and Tom Caffrey are famous for- a precedental case. Unfortunately, that stardom also came with a loss, as it did for all the others. The Court ruled that Mario needed a “Caluza triangle” or three elements to prevail. Mario only had two. He had no record of this in service and what he did have was pretty shaky. He  claimed he had an injury and enough nexus letters to sink a ship, though.

What Caluza really stands for, in my mind, is the presumptions that attach to a finding of 38 USC §1154-what is known as the combat exception. Mario should have gotten a bye on his testimony because he was a combat Vet. His real problem was way too much conflicting evidence, lack of evidence and a bunch of drunk buddies from the VFW standing in line to testify for him. The wound migrated from left to right leg, then metamorphosed from an “injury” to a shrapnel wound. It occurred in 1945, then 1943. He said he was injury-free in 1947, then said he didn’t understand the question when he signed the affidavit.  About the only thing he didn’t claim was what the definition of “is” was. Then again, Monica Lewinsky hadn’t made her debut yet. She was still shopping for a blue dress. The Court didn’t quibble. They respectfully declined to disturb the BVA’s final decision.

Have you ever visited a movie set in Hollywood? Try the Universal back lot tour. They have a group known as “continuity”. These people are tasked with keeping the set exactly the same if the scene has to be reshot several times. All the silverware and plates on the table have to be in the same place each time. Every car has to be reparked exactly so. Mr. Caluza could have used such a continuity crew for his claim.

Another gentleman named Hickson was informed that he, too needed these three elements to win in 1999. This is where the term “Hickson elements” comes from.  Arthur Hickson unsuccessfully defended himself pro se at the Court and got the royal treatment like Mr. Caluza.  The Court even mentioned his name again, too. I often wonder why it is that all the big guys in VA history lost.  Look at Bob Russell. Same fate. Of course we have a new pantheon of Heroes emerging for the 21st Century. Look at Leroy Macklem. There’s a name that’s slated for far more than Warhol fame.

So, gentle readers, there you have the exciting story of Mario and his amazing band of technicolor guerillas and doctors. In all the cases I have read,  never has one man owed so much to so many for such a vast quantity of bullshit.  Total recall doesn’t even begin to adequately describe it.

Caluza_90-0818

About asknod

VA claims blogger
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3 Responses to COVA– CALUZA V. BROWN–TOTAL RECALL

  1. Robert G says:

    I make no bones about how much I hate lawyers. I hate what they stand for. Bullshit wrapped in billable hours truth not needed. I parted ways with a family of them in Florida, Hill & Ponton. A so called veteran attorney who know how we feel and understands the system. I got duped into a CUE claim and 33 1/3% if RO bent over, or, 50% if the flight to DC was inevitable. Boy did all the other vets I told about this laughed me to scorn! I was told 20% was average for a CUE and many years of blood pressure meds. Only contact was by email. My CUE was explained to me via “go to meeting” on computer and assurance my CUE was rock solid. By the grace of God I found this site via the old site. I have been educated by Mr NOD and dealing with reality now instead of lawyer bullshit. I accepted the bad news about my lawyer CUE and locked and loaded for another assault at the RO. This time I know what the hell I am doing and know what to expect. YES there are some good lawyers out there but few and far inbetween. VA law is not a money maker. Bad advice at VSO’s and buddys is the norm here in CA. I used a VSO and a lawyer and got screwed twice. I am no longer sore just found the right lube on this site. I would suggest to ask for other cases these vet lawyers won before wasting you time. I would love to hear a “good” story or happy ending posted here.

  2. Kiedove says:

    I’m wondering if any of your readers have used private lawyers in their recent cases and what their experiences have been. Apparently lawyers will prepare certain VA cases on contingency basis, get evidence. and prepare the paper work. And since 2008, are allowed to receive 20% compensation on back money owed. So for a vet, 80% is better than nothing. And a lawyer is motivated to work for the vet.

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