The RO, and subsequently the BVA will almost always act in tandem of their denial if you, the Vet, exhibit any type of squirrely behavior during the process of your claim. This is a drastic example of it. This Vet is filing through the (only) RO in South Carolina-Columbia. That’s the capital and why they chose that boring place escapes me. I lived in Sumter f or a while and Charleston is where it’s at for our age. 30 years ago it would have been Myrtle Beach. They ought to split the Difference and open a small RO there for the GW Vets. There’s nothing like a little ocean watching to brighten your spirits when filing.
Being from S.C., our Vet probably has a propensity to flower up a story a little to keep the reader interested. He’s no stranger to this game. He went up the ladder to the CAVC in 2004 and lost. This is a reopening of that same claim and Johnny Rebel has “unearthed” some new and material evidence. He’s also gotten a few (5) nexus letters,too. The problem is he hasn’t read up on what a proper nexus has to espouse.
First, the Veteran’s VA gastroenterologist Dr. EEK executed a pre-printed Physician’s Questionnaire in November 2000 in which he stated he had been treating the Veteran for approximately 1.5 years and had reviewed “those records made available to me.”By checking the boxes provided Dr. EEK stated the Veteran did not currently suffer from infectious hepatitis and that the Veteran did not have risk factors for hepatitis before service or after service. However, Dr. EEK checked boxes agreeing that the sharing of razors is a risk factor for hepatitis and hepatitis could be transmitted through use of a syringe that had not been properly sterilized. Dr. EEK checked a box endorsing an opinion that infectious hepatitis is at least as likely as not due to incidents during active duty.
Second, the Veteran’s private physician Dr. IS submitted a letter in February 2001 stating that the Veteran was exposed during service to Agent Orange, which is proved to be linked to many subsequent chronic and crippling medical disorders; due to this exposure and other active duty service-related activities the Veteran contracted chronic hepatitis C and developed liver failure. Dr. IS made essentially identical comments in a Response to Interrogatories dated in March 2001.
Third, the file contains an October 2001 VA outpatient treatment note by nurse BKV stating that after review of records, including gastrointestinal treatment notes, it was her opinion the Veteran was currently disabled due to hepatitis C with marked fatigue, which was possibly related to hepatitis C exposure in Vietnam. In conjunction with that statement the Veteran signed a disclaimer acknowledging that a VA health care practitioner’s opinions and statements are not official VA decisions regarding whether he would receive VA benefits or the amount of such benefits, but will be considered along with other evidence by the VA adjudicator.
Fourth, the file also contains a February 2002 VA outpatient note by Dr. EM stating that on review of the Veteran’s chart and current laboratory findings the Veteran had chronic hepatitis C that could have been contracted while on duty in Southeast Asia. Dr. EM stated as rationale that nothing in the chart would contradict the Veteran’s account of where he contracted the disease.
Fifth, the file contains an April 2009 one-paragraph note from VA primary care physician Dr. SER stating the Veteran had informed Dr. SER that he received a tattoo while in Vietnam and that he was “covered” in the blood of an injured shipmate; it is at least as likely as not the Veteran contracted hepatitis C while in Vietnam.
Remember Caluza v. Brown that I wrote about 3 or so months ago? This guy stole a page from Mario’s book and has it down almost to a T. T as in Trouble.
I find a problem with the fact the the Psychiatrist decided to wreck this man’s life with one sentence. Literally, that’s all it took. The dreaded word malingering. The supposition for his guilt is predicated on being “disheveled” which is a synonym for one’s clothing or hair being in disarray.
As a threshold matter regarding credibility, the file contains the record of a January 2008 VA psychiatric examination, performed by a psychiatrist who noted the Veteran had made very numerous claims for various disorders in order to obtain service connection. The Veteran presented looking disheveled and reporting a litany of symptoms, but was found on examination to have no diagnosed psychiatric disorder. The psychiatrist stated an opinion that the Veteran was likely malingering in an attempt to obtain financial gain or had done so in the past. The Board finds the psychiatrist’s opinion demonstrates desire for financial gain on the Veteran’s part that weighs against his credibility. (Of note, a September 2009 decision by the Board denied service connection for PTSD based on a finding the Veteran did not have a competent diagnosis of PTSD.)
As they say in Sumter, “That’s all she wrote.” Let’s set aside some of the negative evidence of drug abuse ( which no one has said Boo about) and just concentrate on what’s up. It’s obvious the Vet has some issues. There’s some evidence that, viewed in the wrong context, might be construed ( kn-strd) by the vA to be suspect. The Court has weighed in on the validity of using just one brain inspection to make decisions this sweeping and final. There’s jurisprudence forbidding the practice of seeking negative evidence against a claim. Strangely, in this rush to justice, the subjects aren’t mentioned.
This gentleman has a real, live attorney on this and that’s spooky. With paid representation comes the expectation of proficiency. Allowing the nexus stuff in the door without vetting it or asking the doctors/nurse to elucidate and elaborate was childish error. Failure to obtain the SMRs and give them to the doctors was fatal. Everywhere you look, you see the guiding hand of a man who did it wrong and is reassembling the puzzle based on what went wrong in 04. Without a time machine, you can’t redo the evidence in the past. Changing the story is okay if it still plays in Peoria.
One of the telling points in a long line of mistakes is this little gem.
In regard to the tattoo, the Veteran has variously asserted that he was tattooed in Vietnam and tattooed in the Philippines. While a person may be uncertain about when a tattoo was acquired, he is unlikely to be uncertain about where it was acquired; the statement is also contradicted by the separation physical in which no tattoo was noted. The Board accordingly finds the Veteran’s statements to be internally inconsistent and also inconsistent with objective medical evidence, and thus not credible.
Let’s put aside the idea that everyone gets a separation physical. I didn’t get one. This is the last meaningful thing a Vet does when he leaves. Many are or were glad to put paid to the job and move on. You weren’t going back there and they were never going to set eyes on you again. If you didn’t bitch, they got an early lunch. End of tattoo. What everyone including his lawyer overlooked is that we’re talking NAVY. Navy. Like gee, let’s all go ashore, get Extremely Trashed Or Hammered (ETOH’d) and get a tattoo. If you didn’t have a tattoo in the Navy, you were a Virgin. I’ve never met a Squid without one. The only other group so minded were Gyrines- Gomer Pyles.SFGs (Semper Fi Guys). So for Christopher Columbia to have foregone this rite of passage requires an immense leap of faith. There is a school of thought that says SFG was, and is, a reference to the IQ of grunts but I’ve only heard it used around Marines.
The outcome of this was ordained before it ever arrived in D.C. I find the character assassination to be troubling. Generally, the VLJs are polite and simply say that you’re having a senior moment and just “disremember it all”. What the hey? The drug issues punched a hole in the bottom of this claim boat. Let the guy go home with his pride intact. The vacillation on where the tattoo originated is just a pure South Carolina retelling of the story ploy. If you allowed as it could have happened in both places, everyone would find that twice as entertaining and could assume you were really ETOHd that night! Guys do that. They actually brag about how toasted they were and that they don’t remember everything. Why would that become a make or break item in a decision?
This decision shows a marked shift towards indicting the Vet solely on his credibility and making it the prima facie reason for the denial. This should come as no surprise to us, but it shows that they are now willing to denigrate your reason for filing as being for financial gain. Hello? Vets didn’t build this maze to get VA comp. Congress did. This is what it is here for. When a Vet loses the ability to provide for himself and his family due to a service injury, he files the claim. Of course it’s going to entail some $.
Any Vet who becomes the victim of a witchhunt is proof positive that justice is tainted. By our mere presence and willingness to serve, we have already scaled the wall of credibility. Now we are, in essence, being judged on whether we’re lazy, greedy ne’er do wells merely seeking money for beer and Pot. Even if , just for the sake of argument, some of the Vets who file are not being straight shooters, the practice in the past has always been a polite one-free of recriminations or condemnation about motive and credibility.
From the State who got off the first shot in the War of Northern Aggression: