Here’s a perfect stir of a combat soldier, 38 USC 1154(b) and vA’s grant of HCV service connection. The confluence of all three is the key to his success. Why this had to go to the BVA , the CAVC and then back rather than being granted at the RO is anyone’s guess. Well, actually it isn’t anyone’s guess. It’s how vA operates and they got caught-as usual.

38 USC 1154(b) is called the combat clause. It’s sister, 1154(a) contains a lot of the same language, but the (b)  clause accords a Veteran a pass on his testimony. America has decided that if one of its sons engaged in combat with the enemy, he is to be believed in all he says about the circumstances surrounding it (unless they can find a way to compromise his credibility). To wit:

38 USC § 1154

(a) The Secretary shall include in the regulations pertaining to service-connection of disabilities

(1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence, and

(2) the provisions required by section 5 of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (Public Law 98–542; 98 Stat. 2727).

(b) In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

§1154(a) is still very valuable as a tool for winning. If you were claiming tinnitus due to being in artillery at Firebase Oscar, it helps if the Service records show you were a 13B. Similarly if you were wounded “over the fence” and there were no records, it helps if you medical records are stamped “Qualified by training for REMOTE/ISOLATED” Tour of Duty”. If the military has done it’s job keeping up the personnel records, you’ll have evidence of a general nature here that will corroborate your claim. Most concentrate their efforts on the medical side and neglect the military records.

As you can see, in no uncertain terms, America accords a special place for heroes in the regulations and §1154(b) is where it is incorporated. vA calls this the “combat exemption” as if it were a hall pass or a get out of jail free card. It is no such thing. It is a combat “clause or enhancement”-a statement that anyone foolish enough to get in the way of harm should be trusted to tell the truth without having to depend entirely on records of the event. I think this clause rankles VA examiners because it’s such a large hole in the M-21 scheme of things. This may be why you never see these granted at the RO level. They are invariably here on appeal  and rarely rubber-stamped with the §1154 imprimatur sooner. It certainly can’t be so difficult for VA examiners to grasp the concept of combat-unless they make no effort to investigate. Which is why you see these ping ponged back to the RO for a do over after a search of the records of where he was/MOS and how many/what type of medals.

Looking at the introduction on this one, you can see the tortured path this Vet has taken. I caution Vets against doing the DRO Hearing/Review process. There is a good reason, too. When a VARO denies you, it says they have done their due diligence and you were found lacking. Absent a really good chunk of evidence, nicely researched and meticulously assembled with glossy 8½ by 11 color photos and a good looking wife, you’re on the Shortline railroad to zerosville.  Fort Fumble is done. Through. Pack the bags and head to D.C. Hanging around another year or 15 months at the back door of HARTRO isn’t going to pay off. I don’t care if it’s hemorrhoids or hangnails.

A DRO review is like limbo and then… more limbo- in D.C. I can count the Vets I know, or have read of,  that persevered and won a DRO. They are very few-less than 15. Most were for ratings increases or dependency.

Further, you can see that Mr. Hartford  has been up to the CAVC with this, too. This is the second do over at the BVA for him. Interestingly enough, he wins. Gee, what a coincidence. We see that the whole gist of the decision here rests completely on §1154(b). That is pretty telling of one thing. It wasn’t discussed and the Vet wasn’t accorded this enhancement which is the coin flip.

The Connecticut Yankee in King Eric’s Court has been wearing his armour now since 2002. He’s got a new liver because the old one crapped out. He has a colored piece of cloth that says he’s incredibly brave under fire but it took him 10 long years to “prove” this to the vA’s satisfaction. Just because Congress wrote up this gloriously worded assurance. don’t expect our esteemed veterans Administration to honor it without a lot of hoops and hurtles. For entertainment, look at the Gomer down in California who ran for the water district board  in Podunkburg. He said he was “there” and had more medals than he could count. Everyone believed  ol’ Xavier right out of the gate.  Even with your records, the vA doesn’t!

Some of you will read this and conclude it’s a fluke. An accident. A mere misunderstanding that unfortunately festered for a decade for lack of proof that the Vet was a “combat” Vet. This is no anomaly. This is business as usual. This is classic proof of why the backlog is out the door, around the block and across the nation. The vA has spent more hours handling this, mistakenly denying it causing numerous appeals and finally granting it. Two good months of solid development in 2002 would have turned up the exact same evidence and provided the Vet justice then at a quarter of the cost. Now compound that by 1.3 million Vets and you are talking some serious work and money ahead.

If the quality of  due diligence at the VAROs has truly metastasized into the promised super raters, we should see a marked sea change. If they plod along at the pace of the  above calibre, we should expect no different.

Allow me to introduce one of America’s finest- Johnnie Vet from Hartford, Connecticut-  “real” Vet with the medals to prove it.

P.S. You can see in the remand that he’s still got a fight ahead of him on the other claims. He’ll probably have to prove all over again that he was at Hamburger Hill or even in country. We sure wouldn’t want any fakers trying to get welfare at vA, huh?