I spotted this decision and was struck by the reference to Dr. Cecil. I have many who arrive here without a medical nexus asking for help. I generally ask them to send me their medical records from service in order to ascertain whether there is some seminal event to point to that might be the smoking gun. When this happens, I invariably forward them (and the Veteran) to Dr. Cecil for appropriate action.
Some Veterans either “disremember” the past or have a rosy recollection of it at odds with reality. The government is nothing, if not anal, in recording every utterance about anything medical or having to do with drugs and alcohol. This is their signature trademark.
I have often told those I help to obtain those medical records to “wake up” their memories and to spot any problem areas that might rear their ugly heads when filing. One, obviously, is any drug or alcohol abuse during service. This can often be ameliorated by addressing it far in advance. A single infraction with a small UCMJ hand-slap in 1968 is far easier to deal with now than when it appears suddenly in the denial. Similarly, if you sought alcohol counseling or rehabilitation, it can be phrased in a much better light than to have vA come down on you like a new suit.
38 CFR §3.301 (c) (2) states:
If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin.
Similarly §3.301(c)(3) says
The isolated and infrequent use of drugs by itself will not be considered willful misconduct;
With that said, if vA gets there first and plants the flag, it can be fatal. You will spend the rest of your life and your claim trying to overcome misperceptions of impropriety. Here, LA Johnny is at a tactical disadvantage because he has made statements in the past that he probably thought would help his claim. Someone uninformed might mistakenly believe listing a transfusion automatically entitles them to service connection. If it occurred after service and before 1992, it will be used as proof against you unless it occurred in a vA hospital.
It is clear on its face that, the more Johhny studied this, the more he realized he needed to revamp his pronouncements and fine-tune his theories. I do not know how many Vets have faced the Risk Factors Questionnaire and answered something incorrectly or with much less candor than required. When unmasked later, they scramble to alter their history to comport with what’s needed to win. It doesn’t work.
Johnboy has made medical pronouncements that the hepatitis is due to a transfusion. He discounts his post-service tattoos as a risk but is tripped up by trying to move the tattoo timeline forward to protect his diagnosis. Piehole diarrhea ensues because its evident visually that he had them prior to his 2001 diagnosis. Rearranging your timeline after a partial construction is always fatal to any credibility assessment. vA is a past master at demolishing them as I mentioned earlier.
What is of more consequence is making the medical assessment that you did not have a transfusion after service- after you read up and realize that will work against your claim. It is a waste of time to opine on your conditions medically if you have no medical training. Here, it’s not only futile but fatal. vA will use this from now on through any future appeals to the CAVC as evidence that Johnny LA is a liar and a welfare queen on the hunt for free money.
Vets do not realize that the vA views us as scam artists looking for a free ride. Plain and simple, we are suspect from the outset. They like to point to the 85% denial rate as proof that this is true. Reality shows that with over 60% overturned on appeal for egregious violations of judicial regulations, the real number of legitimately injured Vets is astronomical.
The bottom line is underscored when someone uses legitimate resources like Dr. Cecil to further their agenda. This puts him in a bad light and compromises his usefulness to all of us. vA considers him to be a fly in the ointment. Since he works for vA part time, they cannot very well discount his credentials and nexus letters. However, when a Vet purposefully sets out to deceive the good doctor, it impugns his credibility because he was duped into providing a favorable medical opinion. Under the best of circumstances, this is a difficult endeavour. Attempting it with the vA increases the difficulty exponentially.
Read this decision to understand what deception looks like and the ultimate effect it will have on your outcome. Read it also in the context of what you may do to Vets who follow in your footsteps. I have often spoken of the mirror test and its significance in your claim. I have spoken of timelines and continuity. What I have never spoken of is using my theories in a manner to achieve a result illegitimately. Quite honestly, I never considered anyone would. Apparently I was wrong.