CAVC–EVANS (ROCKY) v. SHINSEKI–IVDU?


When all is said and done at the BVA, one appeals up to the CAVC-usually with a good reason. We all know (or should be aware) that proving HCV is often one of the hardest legal hills we will climb. Our facts must be cogent, our reasoning impeccable and our SMRs either supportive or neutral for risk. Obvious evidence of negative events will knock one out of the running and very little, if anything, will avail a Vet in these circumstances. Many Vets similarly situated have won, but had enough evidence of combat blood exposure, a medic MOS or similar risk that gave rise to the benefit of the doubt.  In these cases, you can almost arrive without a nexus and still get sympathy from a VLJ on appeal. If the RO screws it up or ignores evidence, you can still pull it off in D.C.

Rarely, we see a Vet come forward and contest the facts as they were written in his SMRs all those years ago. I have yet to see a successful conspiracy defense.  Even more rare is the appearance of a Vet before the Court unrepresented (pro se) with such a difficult row to hoe. Enter Rocky A. Evans, a Vietnam-era Veteran.

Mr. Evans arrived before Judge Davis with no legal counsel. This is not to say he couldn’t find any. There are numerous leagle beagles who will do this for you, and even put up a spirited defense, fully well knowing your chances of success are less than those of a snowball in a warm locale. Granted, Rocky had a piss poor case with no redeeming features, but every dog must have his day. I often ostracize Vets for wasting valuable judicial resources and I would normally continue that here, but I feel compassion for Mr. Evans. He made some poor choices and will suffer the consequences for the rest of his life. Nothing would be gained from telling him what a ditz he is/was. Let us see what we can salvage from this in case we find ourselves similarly situated.

Rocky served from October 1972 to July 1974. That usually indicates a draftee unless he was booted for unsuitability or other infractions. As the record doesn’t indicate a less than honorable discharge, and the law says one is ineligible for benefits in those circumstances, we can assume he emerged unscathed. As a serving member of the Armed Forces in a time of war, he is eligible for benefits. When defending oneself pro se, one must go to great lengths to familiarize oneself with the law. Judging from the tenor of the record, it appears Rocky is no slouch in that respect. He filed a “informal brief” with the Court and they have to do some “kn-str ing” to figure out what his bitch was:

Mr. Evans argues that the Board failed to consider statements from his “civilian doctor” who reported that he “contracted hep[atitis] C in the service.” Appellant’s Informal Brief at 1. The Court will construe this as an argument that the Board provided an inadequate statement of the reasons or bases for treatment of medical evidence from private treatment providers. Evans supra

The backbone of Rocky’s appeal centers on his contention that he was railroaded by some nasty doctors who entered medical information that was untrue into his SMRs.

Mr. Evans also argues that the Board erred in finding that he used IV drugs in service. He states in his informal brief that he did not use IV drugs during or after his service in the Army, and implies that an Army doctor fabricated this information and inserted it into his records. Evans (Rocky) v. Shinseki (2012)

Those are mighty tall assertions that give pause to most legal proceedings. VA and the Court will go to great lengths to disprove allegations of this nature because they call into question the basic fairness of all jurisprudence.

The Board’s determination that Mr. Evans used IV drugs in service is a factual finding, and must be supported by an adequate statement of reasons or bases. The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate informed review in this Court. Evans supra

Vets must understand the import of a “finding”. This is different that finding a twenty dollar bill on the floor of the supermarket while you’re waiting to check out. That finding should surreptitiously be stepped on and acquired via the  retying of one’s shoelaces. A finding at the RO or BVA is arrived at because they are “triers of fact”. They are invested with the authority to determine what happened (via their own tortured reasoning) and announce their decision. The fact that they are wrong 60% of the time should not be held against them. This is why the Court exists- to right these inequities. Failing to avail yourself of this invaluable judicial tool is foolish-unless, of course, your case does not have a legal leg to stand on.

The Board noted that the record contained service treatment records in which Mr. Evans admitted to drug use in service, and that the treatment records were created by three different examiners at three different times and places. For example, the record contains a February 1, 1974, service medical record in which the examiner recorded that Mr. Evans “uses needles sporadically, the last time about 10 days ago” and diagnosed hepatitis A and “[h]istory of drug abuse, intravenous.” R. at 49. The record also contains a December 24, 1973, service medical record in which the examiner recorded: “P[atien]t admits to IV use of drugs.” R. at 56. And an April 18, 1974, service medical record notes that Mr. Evans admitted to using various drugs, including heroin and morphine. R. at 57.

The Board also reasoned that, because two of the statements were made by Mr. Evans for the purpose of seeking medical treatment for a condition that was later diagnosed as hepatitis A, and therefore that it was in his best interest to provide accurate information, they would be ascribed greater weight than later testimony by Mr. Evans that he never used IV drugs in service. The Board adequately explained its reasons and bases for assigning relative weight to the evidence of record, and for its factual finding that Mr. Evans used IV drugs in service. Because this factual finding is supported by the evidence of record, the Court concludes that it is not clearly erroneous.  Evans supra

This is the predicate for Mr. Rocky’s predicament. Diarrhea of the piehole 40 years ago  is often a claim killer. There is nothing that can be done to ameliorate this in Rocky’s case. No protestations of alternate risk theories, no argument that his nexus letters are bogus- nothing.

As Mr. Evans was a little skinny on what, exactly, it was that caused him to come down with this disease, the Board has given him due process. Arguing the Army doctor  had it in for him is still not fulfilling the three Hickson elements. Rocky is arguing the case as if he has checked off on all three requirements. This means Rocky didn’t read the rules on nexus letters very carefully. This small inattention to detail  created a problem which might have been avoided.

A strong defense with several well-written nexus letters taking into account the drug risks as well as jetguns etc. might have survived a Court inspection. Arriving pro se with a conspiracy theory and little else does what we all detest- wasted judicial effort. The one universal truth you can take away from this  is Shakespeare’s immortal line  “Whosoever is his own counsel has a fool for his client.”  One must also complement Judge Robert N. Davis for politely overlooking Rocky’s propensity to stretch the truth about the IVDU. I might have let slip a reference to Mel Gibson. My humor is irrepressible as most know.

http://search.uscourts.cavc.gov/isysquery/4fed8b72-36f5-4ba8-9591-ff331bbe1a68/4/doc/

 

About asknod

VA claims blogger
This entry was posted in CAvC HCV Ruling, Frivolous Filings, Veterans Law and tagged , , , , , , , , , . Bookmark the permalink.

3 Responses to CAVC–EVANS (ROCKY) v. SHINSEKI–IVDU?

  1. Kiedove says:

    2 general questions:
    Do any readers have experience with getting their disability claim file using FOA?
    Does anyone have any experiences with eBenefits and checking their claim status online?

    (Sorry if I’m posting too often but there’s a lot to learn before filing a claim. We want to get it right the first time reduce stress.)

  2. Robert G says:

    This guy killed to many of his good brain cells. To bad it doesn’t catch up until late in life. My nexus states I “admitted” IV drug use at C&P exam BUT not substainated in the SOC or SMR’s for denail for SC. Yet this is a negative which most lawyers refuse to disprove. I recall being asked repeatly about drug use but always said I don’t remember or no. Is being “unsure” when asked these kind of questions admitting to a “YES” according to VA logic and magic?

    • asknod says:

      Equivocal answers will always imply deceit where VA is concerned unless you are offering lay testimony in your favor. Then your memory is deemed unreliable due to the passage of time. This is sometimes called the “Damned if you do” theory. It closely follows the “Damned if your don’t” corollary.

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