CAVC–BROCK v. SHINSEKI–BOGUS SMRs


Not satisfied with those 1979 SMRs? What the hell? Write some new ones and run ’em through the copy machine about six times, put them up on the dashboard for some summer sun and submit them. What? vA ain’t buyin’? Heavens to Murgatroid. What now? Go to the Court and bluster.

Think about where you were in 1984. I was just finished with Marilyn and was thinking about Candice.  Mr. Richard Brock was filing for AO. This was seven years before vA even admitted it (AO) might make funny babies. Apparently he wanted to get his marker in early on this. I don’t blame him seeing’s how it turned out. Mr. Brock had some serious AO diseases cooking. To wit:

[that]Agent Orange caused him to suffer from post-traumatic stress disorder (PTSD), sarcoma, a nervous disorder, extreme pain, skin disorders/chlorache, down syndrome, porphyria cutanea tarda, a liver disorder, a neurological disorder, an ulcer, “altered lipid metabolism,” an immunological disorder, a hepatobiliarytrack disorder, a blood disorder, gastric hyperplasia, and gastrointestinal malfunction. Brock v. Shinseki 2012

Jez, and here I thought I was sick. The Court does not speak to the outcome of this claim but segues into the next one in 1990. That is because the claim was dismissed without prejudice. There was no claims apparatus in place to decide this in 1984. Beverly Nehmer was just getting her marker down. 

In September 1990, the appellant filed a second claim………..

…………………………………………. (Alex Trebeck music)………….

…………………………………………………..However, pursuant to a subsequent decision of the U.S. Court of Appeals for the Federal Circuit, the Court remanded the appellant’s case in March 2001. Brock  supra

Stay with me here

 In July 2006, the Board denied the appellant’s claim

in July 2007, the parties submitted a joint motion to remand the case.

In June 2008, the Board remanded the appellant’s case for further development.

in November 2010 the appellant informed VA that he would never submit to a VA medical examination.

The Board, in its July 26, 2011, decision here on appeal, denied the appellant entitlement to service connection for disabilities resulting from exposure to Agent Orange.  Brock supra

Twenty one years on the assembly line and no resolution. What is of interest is that finally the vA, to their credit, are finally looking into his old AO records and notice some irregularities. The Rickster has maintained all along the illnesses above are diagnosed and proven. No Dog And Pony shows are needed. The evidence is in the submitted records and no more need be said. He was in RVN. He says he’s sick. Somewhat suspect records confirm his illnesses albeit not in Doctorspeak. He proclaims he’s being dissed and refuses to do any more C&Ps. Now, before the Court, he proclaims

The appellant argues that the Board failed to take into account certain evidence in reaching its decision, failed to ensure that VA fulfilled its duty to assist by obtaining all relevant records, and failed to adequately apply the benefit of the doubt rule. Brock supra

Before we go any further, allow me to disabuse you of the belief in 38 CFR 3.102. Yep. I know what it says. Reasonable doubt has been discussed for years. If you went into an RO or the BVA on Vermin Ave. NW with a special camera designed to capture BOTD, you’d come up empty-handed. If you asked to see it in action, they’d shrug their shoulders and tell you a) you just missed it; b) it’s hard to see; c) they know when it deserves to be employed or d) you don’t know the secret handshake so you’re not cleared to receive it.

Here’s an example of BOTD.

The records reveal the claimant, a combat medic, was wounded several times and received the Congressional Medal of Honor. While there is no evidence he received a transfusion, his testimony falls under 38 USC 1154(b) and the combat presumption is recognized. Giving the Veteran the benefit of the doubt, service connection for HCV is granted. His claim for PTSD is remanded to verify his reported stressors.

imagesBOTD is a fig newton of the imagination. It is employed to look as though some serious thought went into it. It puts wings on Veteran’s hearts and allows VSOs to sell Koolaid. It’s like Santa Claus and the Tooth Faery with a large dollop of the Flat Earth Society stirred in.  It exists as a regulation in CFRland. Any semblance to real people is an extraordinary coincidence. Nevertheless it gets top billing right up there with “For he who shall have borne the battle…”

Let’s get back to the “medical evidence quandary.

The Board found that the October 1979 VA medical examination report is “clearly not completed by a physician” and was “completed by the [appellant] or someone, other than a medical
professional, at his direction.” R. at 13. The Board supported its conclusion by observing that the entries in the report

are clearly not stated in language characteristic of that of a medical professional but are stated in language consistent with various statements found in the claims files that were received and signed by the [appellant]. It is also clear that the [appellant] did not attend a VA examination as he acknowledged so in his December 1979 letter.

The Board then found that its rejection of the October 1979 examination report is evidence weighing against the authenticity of the November 1984 VA medical examination report because it is “the same type of report.” Id. The Board also found that the November 1984 VA examination report “was not filled-in by any medical professional and is clearly and unambiguously a fraud.” R.at 18.
This the Board concludes for two reasons. First, the [appellant] did not report for the examination, as documented in the VA Request for Physical Examination which shows that he did not report for the examination. Second, the language and logic expressed in the entries just quoted is clearly not that of a medical professional but rather is more in keeping with the [appellant’s] language and logic found in statements that he                       has signed. Brock supra

No wonder this took twenty one years to get here. At the very end, the VLJ and his minions stepped on their necktie. They could have listed all the diseases the Rickmeister laid out back in 1990. Butnnnnnnnnnnnnnnnnnooooooooooooooooooooooooooo. They just had to only mention three. So here we go again back to the RO for a comprehensive denial that properly encompasses every last disease and why all over again.

I often say you can win at this is you are persistent. Mr Brock will not. His hands are unclean on the records alone. vA, if they wanted to play a good April Fool’s joke on him, could let some bubblehead rater give it to him and then come back on him a la Keith Roberts and say he did this fraudulently. Off to jail, Mr. Brock. Four years, Mr. Brock. Justice was served, Mr. Brock. April Fool’s Mr. Brock.

Think of how many Vets who could have been denied Benefit of the Doubt while Mr. Brock foolishly litigated in bad faith. Of course, there is the other side of the coin and Mr. Brock may be getting dealt a horrible miscarriage. We’ll find out in about another decade at this rate.

Meet Mr. Brock

Brock No Show

Mr. Brock’s claim

About asknod

VA claims blogger
This entry was posted in CAVC/COVA Decision, Frivolous Filings, Vietnam Disease Issues and tagged , , , , , , , , , , . Bookmark the permalink.

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 )

Twitter picture

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

Facebook photo

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

Google+ photo

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

Connecting to %s