FROM THE HUNTINGTON, WEST

DELIVERING VETERANS’
MAIL SINCE 1895

VIRGINIA VFW POST # 1064

VFW Post 1064 Conference and War Room

Looking for cryoglobulinemia cases to illustrate for claims purposes, I came across this gem. Rarely have I seen a judge make such short shrift of a Veteran so utterly and completely. The phraseology almost conveys contempt but the tone is thinly veiled. It shouts “You didn’t perform due diligence. Where’s the IMO?” Veterans Law Judge George E. Guido Jr. is less than impressed with the preparation of this claim and assassinates the Veteran on each item. The technique is as clean as a guillotine and almost as bloodless initially. Hemorrhaging begins when you notice there is no hard evidence to support the precept that he actually had any legal help. 

Johnny Vet may or may not have had some viable claims here but we’ll never know. He hired the best in Huntington- those guys at the VFW with all the legal training. He’s not what you might call a “model Vet”. He has some service time that is “other than honorable” (10/73 to 12/78) which is by law, not remunerable. As a personal aside, I don”t think a Big Chicken Dinner should be a forever sentence. We certainly don’t put the Mark of Cain on rapists and child molesters.  His good time in service, however from 6/69 to 7/73, is permissible. This is where the focus of the claim should turn. Unfortunately, everything that happened regarding IHD, heart problems etc. occurred at the wrong time (1976) for Johnny.

Those leaglebeagle.zoom guys at the VFW (all wars except Vietnam) know all this. If they had been helping, advising and mentoring poor Johnny, he and they wouldn’t have wasted his time trying to develop this dead end since 2007. Unfortunately, that was just one of three claims filed. The other two, however legitimate, got the same high level of exacting VFW scrutiny and development (unfortunately). One thing can be said. Nowhere on this claim are you going to find VFW’s fingerprints. They’re AWOL. Not at their duty station. Deserters. Absent the VFW’s mailman work, it would appear this Vet was pregnant and alone for six years.

Chronic Fatigue Syndrome

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose chronic fatigue syndrome. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (the Board may find that lay evidence to diagnose a disability is not competent evidence). Where, as here, there is a question of the diagnosis of chronic fatigue syndrome, which is not capable of lay observation, to the extent the Veteran’s lay statements are offered as proof of the presence of chronic fatigue syndrome in service or since service Veteran’s lay statements are not competent evidence, and the Veteran’s lay statements are not admissible as evidence, that is, the Veteran’s lay statements are not to be considered as competent evidence that chronic fatigue syndrome was present in service or since service.

As the Veteran’s statements are not competent evidence, the Board need not address credibility.

Next?

Eye Disability

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render an opinion on a causal relationship or nexus between the stromal scar in the left eye and an injury in service. See King, 700 F.3d at 1345 (the Board may find that lay evidence to establish medical causation is not competent evidence).

For this reason, the Veteran’s lay evidence is not competent evidence of a causal relationship or nexus between the stromal scar in the left eye and an injury in service. Since the Veteran’s lay evidence is not competent evidence, the Veteran’s lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim.

As the Veteran’s statements are not competent evidence, the Board need not address credibility.

Two down.  Jez, this is easy. Note to self: Call Bob.  I’ll still make that 1PM tee time with  him and Jessie. Next?

Hypertension

During the Veteran’s second period of service, hypertension was noted in January 1976. The timing of the finding, however, corresponds to the period of service the character of which the RO has determined is a bar to VA benefits. The character of his discharge disqualifies the Veteran from receiving VA benefits based on direct service connection for his period of service from October 1973 to December 1978.

But just to make sure the cement overshoes stay on, Old George and his twelve dwarves pour in some superglue:

And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to render an opinion on a causal relationship or nexus between hypertension and any service-connected disability. See King, 700 F.3d at 1345 (the Board may find that lay evidence to establish medical causation is not competent evidence). For this reason, the Veteran’s lay evidence is not competent evidence of a causal relationship or nexus between hypertension and any service-connected disability. Since the Veteran’s lay evidence is not competent evidence, the Veteran’s lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim.

As the Veteran’s statements are not competent evidence, the Board need not address credibility.

Here we go again. The horse is dead. Continuing to beat it serves no purpose other than to illustrate three times over that Johnny’s legal strategy had some holes in it-big ones I might add. The crime committed, for those unaware, is that no new evidence is now permitted. You have two opportunities to advance evidence on your behalf to prove your case. Johnny actually had four because his wise Veterans Service Representative from Post #1064 arranged not only a Decision Review Hearing in December 2009 but also a Board hearing before Judge Guido two years later in November 2011. Somewhere along the line no new and material evidence was produced that could sway the Judge and jury. No IMOs. No opinions from his primary care physician. Nary a “Gee, this could be related to his good time in service.” No sage advice from his representative that a boatload of lay testimony hadn’t convinced the DRO so why repeat it to George. Nothing. The VFW hierarchy rep. in DC at the BVA had the authority to set it aside and procure more evidence that might keep Johnny from digging a deeper hole. Again, no VFW fingerprints.

VA calls this the perfect storm-no evidence. Now, with the denial at the BVA complete, the record is sealed. No new evidence can be added. Johnny can appeal to the CAVC, but without a legal argument concerning due process of some sort, screaming “They dissed me and refused to listen” is not going to put the chicken in the pot. Judge Guido gave him a very clean decision based on what was presented. He was circumspect and ruled on what was available. This didn’t rise to a Buchanan violation. Absent any viable medical evidence, all the lay testimony in the world that consists of “In the beginning there was nothing…” is going to be treated as incredible.

You really have multiple opportunities to fix this dilemma with proper legal help. Unfortunately, Johnny didn’t. Back to the War Room, I guess. So my last thought is this. VFW refused to allow Vietnam Vets to join because it was a “conflict” rather than a war. They are more than willing to represent a Vet with other than honorable service. I’m glad they are. I would, too. I just don’t understand the concept of their bylaws. As for their investigative/hands-on approach to claims, I’m still in the dark.