BVA–NO LAND MINE EXPLOSION


Alabama, you got
the weight on your shoulders
That’s breaking your back.
Your Cadillac
has got a wheel in the ditch
And a wheel on the track.

From the Neil Young RO in Montgomery, we are treated to this gem. Our Marine has suddenly “remembered” lots of things he disremembered in the past. What he’s overlooked is that the military has conveniently recorded it in detail for him and is more than willing to refresh his memory.

When you are in the military, they keep a paper file on you called “records”. Some are military in nature and some are medical. In this case, the medical file is still intact and replete with everything that happened in country and out. Thus, you cannot invent things and swear to them as being the gospel truth. Actually you can swear up one wall and down the other but the vA will tell you in polite terms that you are slightly less credible than the boy who cried “Wolf!”

Our Vietnam Vet has been fighting this since 1972. He’s been up the ladder to the CAVC and back down more recently since the reopening in 2002. He’s had it remanded all the way back to his RO which is a time alligator like no other. The BVA now has it again and they are not happy. The reason is simple. They’re chumps. He sucked them in with his tales of a mine explosion taking out his knee in country. Since I’ve recently gone through this, I now understand. They finally read all the records and know the truth. Apparently this fellow was never wounded (no Purple Heart) and his SMRs show a knee surgery after service. No transfusions. No blood exposure  from other troops. Zip. Zero. Nada. He started mumbling about the SFWs and the mine in 1999.

The Veteran has reported that he had hepatitis B, or jaundice, while stationed in Vietnam, and was diagnosed with hepatitis C in approximately 1993. He seeks service connected compensation benefits for this disease. He asserts that he contracted hepatitis C from contaminated water, food and/or facilities in Vietnam.

In this regard, it is noted that the Veteran has reported to treatment providers that he was wounded during service in Vietnam and underwent knee surgery and shrapnel removal in Vietnam. He has asserted that he was injured from a land mine explosion during service in Vietnam. Service connection has been established for a right knee disability, although not on the basis of in-service surgery or wounds received during service.

A report of medical examination, which includes that a chest x-ray had been performed on February 25, 1971, documents that he had normal lower extremities. A section for marks, scars, and tattoos refers to a left arm tattoo, a CIRC (circumcision) scar, a VSULA (vaccination) scar and a scar of his left elbow. That tattoo is also referenced in the report of examination from when he entered active service. The only abnormality listed in the 1971 report was an inactive hemorrhoid. His DD 214 shows that he was separated from active duty on March 5, 1971. Decorations, medals, badges, commendations, citations, and campaign ribbons awarded and authorized are listed as the National Defense Service Medal and the Vietnam Service medal with one star.

These records tend to show that the Veteran was not treated for jaundice or hepatitis during active service, that he was not injured in combat, including a land mine explosion, and did not undergo any surgical treatment, including of his right knee or the removal of shrapnel. These records appear complete and, in fact, highly detailed.

Giving him the benefit of the doubt, he did injure his knee in service and vA did give him SC for it in 1973. The record is vague as to whether they gave him the popsicle or just the popsicle stick.

In a rating decision dated in July 1973, the RO granted service connection for a right knee disability based on the January 1973 VA examination. He was to be scheduled for a one year examination to determine the extent of permanent residuals.

This is where the disremembering comes in.

In an August 1973 letter, Dr. D wrote that the Veteran was initially seen by him on August 30, 1972 complaining of pain in his right knee. Dr. D. stated that the Veteran stated that he injured his knee on August 21, 1972 while playing basketball. 

Twenty five years go by in the blink of an eye and now the dreaded “I was wounded” story begins to gel.

In June 1998 the Veteran requested a higher disability rating for his right knee disability, contending that the disability had worsened.

In November 1998 the RO denied his claim for an increased rating on the basis that his knee had been injured in a work related injury many years after service.

In VA treatment records from December 1998 the Veteran, for the first time, reported that the scar on his knee was from surgery in Vietnam.

In March 1999 the Veteran filed a claim for a nonservice-connected pension and asked that he be considered for a right hip condition as secondary to his service connected-right knee condition.

What our good buddy didn’t realize is that vA was born at night but not last night.

VA requested and received treatment records the Veteran had identified from Dr. “H.A.L.” These records include a July 1997 note that the Veteran had right foot pain following an injury involving a 3000 pound roll on his right foot at the steel company at which he worked. He was seen for a fractured metatarsal. There are records up to the end of September 1997 documenting treatment for this foot injury. A note dated in May 1998 documents that he had been injured when 3000 pounds of steel struck his knee and that he suffered from right knee pain. A note from June 1998 includes the report that the workman’s compensation people had placed him on regular duty in two weeks.

When you set out to pull the wool over someone’s eyes, you have to be an artist. You have to have more than your story. Most importantly, you have to control the evidence. This fellow couldn’t assemble it correctly and let it get away from him.

In July 1999, the Veteran contended that his claims should not have been denied. He asserted that Dr. H.A.L had not treated him for his right knee but only for a foot injury.

He’s absolutely correct. Dr. HAL didn’t treat his right knee. It’s just that the knee records were connected to the foot records which were connected to the toe records.

The vA and the Court are always exceedingly polite when they call you a liar. They don’t say so in so many words, but the drift is that your testimony is unsupported by the record. The fact that your credibility is shot is the focal point, not whether you lied or have old-timer’s disease.

Additionally, his report as to the condition for which Dr. D. treated him, as expressed in his 1999 notice of disagreement, when compared with the treatment records sent directly from Dr. D. to VA, tends to show that the Veteran, in general, is not credible. His assertion that Dr. D. treated him only for foot injury and not for a knee injury is contradicted by Dr. D’s treatment records which include entries separated by months with regard to his foot and then his knee. Whether the Veteran has a faulty memory or is knowingly misrepresenting these facts makes little difference. In either case, this demonstrates his lack of credibility.

When you lose your credibility with the vA, your claim is dead. There is no CPR for it. Higher courts will tend to follow this maxim, too. There’s nothing for it. Go home. Apply for a pension at 65. Do not pass Go! Do not collect your $200.00. That’s all she wrote.

I admonish Vets to always tell the truth even if if appears to damage the claim. It’s  easy to explain a minor transgression of snorting Burma’s finest on one or two occasions. It’s far harder to deny it when the records say you were caught stealing morphine styrettes out of all the the dustoffs on the flightline and tested positive on three different occasions for opiates.

vA considers us all the lowest of the low. We’re lower than trailer trash to them. We want remuneration for imagined ills. It’s their job to deny us and they do it well. Don’t give them any more ammunition. Meet Neil’s good buddy from Montgomery.

About asknod

VA claims blogger
This entry was posted in BvA HCV decisions, Frivolous Filings and tagged , , , , , , , , , , . Bookmark the permalink.

1 Response to BVA–NO LAND MINE EXPLOSION

  1. KC says:

    I wonder how long it took to extinguish his trousers?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.