Here’s a little trick we have noted over the years of reading decision after decision. On a vast majority of the claims for jet guns, most Vets, due to their unfamiliarity with the Caluza triangle (Hickson elements), submitted claims without nexus letters. When and if they got lucky enough, they ran out and got one to CYA. Some even got good ones that stood up to the rigors of vA’s requirements.

In almost all cases up on appeal at the BvA , when these were presented with a waiver of review by the claimant, and were the only nexus of record on file in the claim, the VLJ was inadvertently forced to grant the claim.There’s a simple reason for this. It backfired on the VARO because they  were too lazy to mount an offense that investigated the medical evidence. Instead, relying on that old, tired saw “There is no evidence in the SMR’s that the claimant had HCV in 1969”. and “The veteran claims he got the dragon from jetguns, but he has no medical training (Espiritu v. Derwinski 1992)  therefore anything the poor misguided soul says is bogus and pure speculation.”

What they fail to do is where the error begins. If the vA Examiner doesn’t perform the magic “It is less likely than more likely that this ever happened the way he says it did,”, then there technically is no “finding” being being pronounced by the VARO. Ergo, no vA nexus. Where you do see the Examiner opine is after a C&P. No C&P = no nexus.

When you submit a really good one that passes all the requirements, and attach a waiver of review in the first instance with the BVA, you create the only nexus of record. If the VLJ isn’t playing fair, he could remand it back to the RO and allow them to craft a denial that fits the original but buttressed by a C&P exam. Yep. You’d have to report for a Dog and Pony show that would reveal what? A tattoo or two? BFD. You can claim they arrived after 1992 and sanitary protocols because you know vA is going to assume they are antiques from the seventies AFTER service. Always remember- you are the date stamp of your tattoos. Whatever you say on the subject is true unless rebutted. We do know that not all tattoos were recorded at exit exams. You are medically competent enough to remember when you woke up with these new acquaintances (Layno v. Brown 1994) If you don’t report for this bogus D&P, you lose anyway. Let’s not go there.

Vets who have won like this (with only one nexus in the C-file) originally arrived with nothing but a 21-526 and perhaps a note from the American Red Cross donation station saying “Thanks, but we were unable to use your gift of life”.  They have no risks other than the jetguns and file with their VSO or pro se. As you can see  from the prior post, many arrive this way. Some, but not a lot, manage to obtain one and for those smart enough to fence off the VARO, they can prevail. The waiver of review, in essence, precludes the VLJ from doing anything other than ruling on it. You have all three requirements for the claim present. The RO (and the BVA) don’t. Check and Mate (checkmate), as they say in Chess. Once painted into this corner, unless the VLJ and  his merry band can find a loophole, there is and can only be, one legal outcome. You may have to go up to the Court to prove that but it is immutable law.

An interesting case would be if a Vet were denied in spite of all the evidence being pro and little con. If the VLJ remanded it back down to the RO searching desperately for a denial, I wonder why the Vet couldn’t file an appeal staying the remand and make the bastards rule on what they have in hand. vA screws us fairly regularly with or without the evidence. Why should the RO be given numerous opportunities that will produce a denial that finally sticks? That was the priceless argument put forth in Shinseki v. Macklem recently.  Anyway, that’s J1VO.