As a PS at the beginning(Prescript?), I wish to point out that Mary Lou Keener, future bride of Herschel Gober (soon to be acting VASEC) was the lead attorney on this. Nepotism is alive and well in America.
I love this decision for a lot of reasons. It teaches a lot. Trying to be anally specific can backfire. I sure don’t need to tell myself that. This resembles Mr. Mario Caluza’s predicament in a lot of respects.
The CAVC had to make a stand eventually and call a halt to the practice of briefing all your second and third cousins on your new VA -sponsored financial plan. In some quarters, this is called collusion. Mr. Layno had this down to a science after the Dave Del Dotto Cash Flow seminar. He even remembered the very first day he suffered from this asthma thingie-March 8th, 1949. Funny how that was also his last day in the armed forces, huh? You don’t think that might raise a few eyebrows down at the VARO? Wait. It gets better.
Benitio C. Layno, loyal Veteran from 1946-49, discharged honorably. No complications, No sequelae. In 1990ish, Mr. Layno suddenly noticed his asthma, which he contended first occurred in service, and filed for same. He had one little problem… or did he? His records were consumed in the little smoke alarm battery/sprinkler snafu at the NPRS in St. Louis in 1973. VA gave him “fire-related ” certification which meant they had to actually go find evidence wherever he’d been stationed. They did a rather desultory search and came up with little. Back then this would have been considered negative evidence and weighed heavily against him. In today’s world he’d still lose but they’d call it absence of evidence, and therefore “pure speculation”. Six of one, half a dozen of the other.
Mr. Layno, we shall address him by his Christian name Benito, enlisted a host of friends and a doctor, as I mentioned above, who all told a suspiciously similar story. The only ones he overlooked were a movie star, a millionaire and his wife, the Professor and Mary Anne. Their notarized statements all confirmed that not only had Benny arrived home from service, but that he had a diagnosis of asthma. How they definitively knew he had asthma varied. Mayhap he carried around all the medical records in a briefcase and freely showed them to these witnesses when queried. Some of them said they were frequently invited to go with him to asthma appointments at his doctor’s clinic. It’s to be presumed that they liked to avail themselves of the wide variety of superlative reading material available to them exclusively in the waiting room.
The Benmeister even knew about nexus letters a full year before Mario Caluza did:
He also proffered a written statement from his private physician, Amador Corpuz, M.D., that he had been treated for “recurrent bronchial asthma” from January 15, 1950, to March 30, 1955. An additional written statement from the appellant’s doctor indicated that the appellant’s treatment records from October 1, 1953, to December 7, 1986, were available, but that earlier records “must have been misplaced, lost or destroyed due to the length of time that have [sic] elapsed since 1950.” The appellant presented copies of treatment records for the period October 1953 to December 7, 1986, in support of his claim. Layno v. Brown 1994
Benny was busy man. He also brought forth his two BFFs for the Buddy Letter(s):
The appellant also presented the joint sworn affidavit of Euletrio Laeno and Silvestre
Madalipay, stating they had personal knowledge of the appellant’s bronchial asthma “since early March 1949,” its onset, and treatment by Dr. Corpuz “from January 15, 1950 up to March 30, 1955.” The affiants stated they had this personal knowledge because they had the opportunity to observe the appellant on a regular basis. The affiants did not testify as to their particular observations regarding the appellant’s symptoms or conditions, only that they had personal knowledge of the appellant’s
bronchial asthma. The affiants also stated that they had personal knowledge of the appellant’s treatment by Dr. Corpuz because they had been invited to accompany the appellant when he went for treatment. The affiants did not state whether they had actually accompanied the appellant to his appointments with Dr. Corpuz. Layno supra
Fearing his relatives’ evidence might be viewed as too contrived, Benito sought out his neighbors and the vegetable vendor from his neighborhood. . .
The Board also reviewed the live testimony of Silvestre Madalipay, Cecilia Magbual, and Alejandra Gampong on behalf of the appellant at an RO hearing in September 1991. Mr. Madalipay testified that he knew the appellant and had the opportunity to observe him. Mr. Madalipay stated that the appellant had difficulty breathing “after his arrival at our place,” and that this was not consistent with the appellant’s preservice condition. Ms. Magbual testified that she also knew the appellant, and had the opportunity to observe him “after he arrived from Okinawa.” She noted that
his condition was “very bad.” Finally, Ms. Gampong testified that she too knew the appellant, and stated that upon his return from service, the appellant “started complaining about his asthma.” Layno supra.
Everything might have gone swimmingly if the testimonials had all dealt with only observable symptoms. If you remember the Espiritu v. Derwinski decision, Jovita Espiritu ran into this problem, too. VA really gives the hairy eyeball to these things when everyone but the village idiot queues up to testify with sworn affidavits.
Mrs. Espiritu and several of her neighbors tried to diagnose her dearly departed husband’s diseases themselves without benefit of any medical training. There were other issues like too many death certificates whereas here, the whole peanut gallery was donning surgical gear and stethoscopes. Caluza tried to improve on this, but that is another story.
Notwithstanding a prior history of COVA jurisprudence in this same vein, Benito has now became the poster child for the observable symptoms precedent. Look at how many choices history could have cited to:
Specifically, this Court has held that lay testimony is not competent to prove a matter requiring medical expertise. Fluker v. Brown, 5 Vet.App. 296, 299 (1993); Moray v. Brown, 5 Vet.App. 211, 214 (1993); Cox v. Brown, 5 Vet.App. 93, 95 (1993); Grottveit, 5 Vet.App. at 92-93; Clarkson v. Brown, 4 Vet.App. 565, 567 (1993). Thus, “lay assertions of medical causation cannot constitute evidence to render a claim well grounded . . . .” Grottveit, 5 Vet.App. at 93. Layno supra
Why is that? Why was it Mario, Jovita and Benito were maligned (and lost to boot) with the sobriquet of “suborned testimony” and not Fluker or Cox above. Okay, I’ll grant you these two wouldn’t pass muster on the laugh test with the censors, but what of Moray, Clarkson or Grottveit? In other words, why is it that some Johnny-come-lately to the “My friends are all doctors” argument gets top billing in spite of his loss? Does Layno roll off the tongue better?
There’s more at work here and I detect the subtle aroma of racism. Either that or they’re all reading from the same play book. While the decision doesn’t specifically identify the location, I’m going to venture out on a limb and theorize Benito’s Agency of Original Jurisdiction (AOJ) was Manila. We know for a fact that Mrs. Espiritu and Mario Caluza filed there. Perhaps the Manila, Philippines VARO has a higher number of “questionable” claims than others. I think it’s only fair to reveal that the VA has been doing this since the War of Northern Aggression in 1865. They have the same Cliff Notes book on Excuses and Ploys for VA Claims©.
The fact remains that poor Benito struck out. Not only that, the Court went further; they vacated the denial and remanded it back to the BVA. The reason? Why, because the neighbors flunked the Espiritu audition and that the claim was not well-grounded from the get go.
Layno’s teaching moment, as we see in innumerable denials currently, is that you (and your friends) may only testify as to what can be observed by the five sensory organs of sight, smell, hearing, touch and taste. Anything more will be thrown out with the baby’s bath water. Exceptions are if your best friend and hunting partner happens to have an M.D. after his name. Then you are in high cotton and can ignore the above.
Meet Benito and his band of doctor buddies: