Motions for Reconsideration (MFRs) are few and far between. These occur when a Veteran petitions the BVA to reconsider his denial. Few are granted and fewer still succeed. Here is an example of same. Sgt. Whacko served from 1959 to 1962. While he could have been in Vietnam, there doesn’t seem to be a record of it. This is not dispositive of the fact as we all know. His time of service indicates he could be a victim of the NPRC fire in 1973. Many records from that era were destroyed or damaged beyond repair.

Our Vet has an even bigger problem.

After service, VA records show that in December 1992, 30 years after service with no interval history of psychiatric symptoms, the Veteran suffered a subarachnoid hemorrhage due to an aneurysm, after which the Veteran showed marked personality changes. In May 1994, after psychological testing, the diagnosis was adjustment disorder with mixed disturbance of emotions and conduct. In June 1994, after a psychiatric evaluation by a private physician, the diagnosis was dementia. On VA examination in December 1995, the diagnosis was PTSD not shown and no other diagnosis. Except for psychological testing for memory function by VA in 1997 [placed in the above average range], there is no history of psychiatric symptoms or treatment after 1995.

While I wouldn’t characterize this as a frivolous filing, I would say that his chances of being in a combat setting in RVN with such a low enlisted rank in 1962 to be slim and none. I have done many a study of historical documents from the Vietnam era and the fact is that we were in an advisory status with few assets on the ground then. Most of those were Special Forces advisors who were training  ARVN/Montagnard assets. Most were also officers rather than enlisted men. The Vet testified thus in 1995:

In May 1995, the Veteran testified that he first had nervous problems in 1962 when he was in Vietnam for three months as an advisor. He stated that before he went to Vietnam he was in an artillery battery in Germany and that he had volunteered with four or five others to serve as advisors in Vietnam. He indicated that his nervous condition was triggered when his patrol was ambushed and most of his patrol was killed.

One can see the dichotomy here. Artillery batteries are static positions- usually on hilltops with defensive perimeters easily defended. Boomers were not infantry (MOS 11b10). They stood by their guns for fire missions and did not roam the countryside in search of Charlie. The story, on its face simply doesn’t hold water. This assignment would have been a TDY if it were only three months. Rarely would a soldier be sent on TDY so close to the end of his enlistment, too. The fact remains that were this man in RVN and medivaced to Clark AFB in the Philippines, there would be some record of it.

Additionally, the reader can see VA’s recalcitrance over obtaining a PTSD C&P or doing anything to corroborate the Vet’s contentions. This should come as no surprise to other Vets. This particular claim has been festering now since 1993. You read that right. It’s the same claim he filed way back then. This is a perfect example of VA’s ping pong technique of delay and deny until we die.

A Motion for Reconsideration always involves an expanded panel of judges in odd increments. The BVA denied in 1997 which means he had a single judge VLJ panel. Therefore the Reconsideration panel would increase by two for an aggregate of three. The reason for an odd number is to prevent a tie vote . The history of MFRs is spotty. VA is not in the habit of granting these unless there is some glaring shortcoming in the legal process. Here, it may have been the absence of a true examination to ascertain exactly what was bent upstairs. Always remember, VA likes to have a good reason for a denial based on sound medical principles. It rarely happens, but the niceties are usually observed and it is made to appear above board. Here, it’s fairly obvious that the gentleman was not accorded all these components. The Board doesn’t have any punitive means to reprimand the miscreants at the RO so they can get away with doing this remand again and again.

Therefore the Board panel is remanding this to the Waco Church Burners’ RO for yet another go at a definitive C&P to figure out what’s gone south in his noggin. More effort will also be expended to determine if he was in country.  Chances are this will be denied some time in 2014 and be appealed yet again up to the Court. Can you imagine how much money in salaries and how many old growth trees were sacrificed on the altar of  VA knowledge? This case truly boggles the imagination but does allow a glimpse behind their curtain. The Vet’s C-file must fill a sea chest!

And we wonder why VA has a backlog… MFR