I was sent this via several attorneys as though it was the Holy Grail. I disagree. This is nothing more than the BVA caving in when the VARO failed to mount a defense. The RO failed to even address the contentions of Johnny Vet. They gave it the circular file treatment for one reason only. Bladder cancer wasn’t on the §3.309(e) list and they thought there was no need to get serious. Any argument based on a direct basis wasn’t even considered. In a word, they were lazy.

When the case hit DC, it was apparent that the only ones supplying rebuttable evidence were the Vet and his agents A. Ray Martin and Robert D. Ford. You’ll see where the BVA do the traditional “Sorry, dude but other BVA cases hold no precedent here so don’t bother submitting them”. Little traction was gained there. What is important is the mountain of evidence and the nexus letters they submitted in their defense. This is the meat of any claim’s success and why I pass this on.

It (BVA decisions) hardly constitutes meaningful or useful evidence in a defense concerning any of you, but it is a valuable bookmark for any who suffer identical circumstances. This is where many ignore what we discover and publish here. The elements to winning a claim are many. General evidence will always need to be supplanted with a good nexus. Good meaning well-reasoned nexus letters able to stand up to critical examination are a must.

An example is what I received yesterday from member Leigh in her long running battle to win SC for her Hep. She’s now on liver #2 and she’s seven years younger than me. The VA examiner stated:

VA examiner opined(sic), after review of your claims file, to include the evidence listed above there are no studies available showing any scientific evidence (sic), “it is less likely than not likely(sic) that her current condition of hepatitis c is a result of being inoculated with a jet gun”.

Here is the mistake. While it is accepted that Hepatitis C has not been documented as being  transmitted via a jetgun, this is not definitive evidence it cannot happen. If you (Veterans) never fly to the moon in a DeLorean, that is not conclusive proof that it is impossible. What this “examiner” failed to include in this statement is that it is plausible. Plausible means that it could happen. By not stating the plausible theory, the VA’s nexus is not probative and will not stand up on appeal. It’s wobbly. Besides the tortured, butchered English, the legal supposition is compromised from the outset. The 2004 FAST letter we are told of frequently still carries some weight and should not be discarded out of hand. A VLJ earlier this year dragged it out and granted based on the same set of circumstances-that it is plausible. The RO failed to mention this and the Vet wisely did. As long as it is accompanied by a well- rationalized nexus, it is a probative tool to win with.

Our Philadelphia Vet here wins because his evidence is far more probative than the limp-wristed attempts of his RO to deny him. That is why he prevailed. It helps to have good legal help but absent the facts that qualified him (a buddy letter saying he “stepped foot” (sic) in Vietnam), he wouldn’t have gotten to first base. Secondly, without a concise nexus letter that ruled out alien abduction and all other extraneous post-service risks, he would have done a face plant too. Winning is often accomplished by getting all the evidence under one roof. Getting it all there at the same time seems to be Leigh’s problem. She has two dynamite nexus letters from her transplant doctor and Dr. Cecil yet they are nowhere to be found in the adjudication or evidence section. That’s how sloppy VA is. For that reason we nominate the Baltimore VARO also known as the Star Spangled Banner Regional Office the dubious distinction of the “What? Me worry about the decision?” award.