Always on the prowl for useful ammunition, I came across this 2009 delight. It was won by Virginia Girard-Brady, an able Veterans Lawyer. Now, before you make fun of her propensity to hyphenate her last name, it could be she wants to retain a memoir of her former single life. She has a storied history of winning her claims and it could be that she did this before her name change at marriage and wanted continuity in her professional business profile. Whatever the reason, the effects on the VA are usually devastating as here.
You’ll love the camaraderie that develops between Judge Mary Schoelen, the daughter of a Navy Vet, and Miz Virginia every time they get together for these tête-à-têtes. I got a big bang out of this and Vets should bookmark it for appeals up to the Big House when they get the bum rap.
The Court finds that the Board did not provide adequate reasons or bases for its decision to deny the appellant’s claim. The Board stated that the appellant’s SMRs are “devoid of complaints or diagnoses of hepatitis C” and that there is “no evidence of hepatitis C in service[.]” However, hepatitis C was not recognized as a disease until nearly two decades after the appellant’s service. See 65 Fed. Reg. 48207 (Aug. 7, 2007) (stating that VA was proposing to add a diagnostic
code for hepatitis C, “a type of viral infection that was not identified until 1989”). Therefore, the absence of a diagnosis of the disorder in the SMRs is not a reasonable basis for concluding that the appellant’s hepatitis C was not incurred in service. Cf. Daye v. Nicholson, 20 Vet.App. 512, 517 (2006) (recognizing that the Board’s reliance on lack of combat award that had not been established at the time of veteran’s service was error; “‘Back to the Future’ may be a concept suitable for movies and theme parks but it cannot serve as a basis for denying the claims of veterans.'”).
Don’t you just love Shoelen’s humor? I bet she plays pure hell with her legal staff on April Fool’s Day down at Indiana Ave. NW.
Here’s the Brown-268 decision
Daye v. Nicholson (2006) is here