BVA–CALUZA V BROWN 20 YEARS LATER


downloadWas it that long ago that the CAVC (then the COVA) let the cat out of the bag and enumerated the three elements needed to attain the Holy Grail of service connection? April 12th, 1995 will mark the twentieth anniversary of Mario’s Big Adventure in Appealsland. What we at Asknod find frightening is the absolute absence of any recognition of this seminal decision helping Veterans who choose to have Veterans Service Organizations represent them at the BVA. As we know, they aren’t permitted up at 625 Indiana Ave. NW because of that pesky little defect in their law degree-there isn’t one. Absent this qualifier, all you have is Joe Blow Citizen (perhaps a Vet-perhaps not) acting with your Power of Attorney to do as he pleases. No oversight of any consequence. No responsibility for failure. No clue as to what is legally required to prevail. Just the fellow we want at the helm of the claim boat.

After doing some research over the years on just the narrow venue of claims for HCV decided at the BVA, it is apparent as it was in 1992, that the only way to prevail was to collect the Golden Triangle. It just hadn’t been enunciated in COVAspeak and become a steadfast precedent prior to Caluza.

Succeeding Courts have reaffirmed the same sentiments over the intervening decades in virtually identical language (see Hickson, Shedden) so the concept isn’t new nor require a Rosetta Stone to decipher it legally. Veterans everywhere could now breathe a sigh of relief secure in the knowledge that VSOs, who charge nothing for their services, were now armed and dangerous and wise in the ways of VA law. Let’s summarize. The three elements required are

1) an injury/disease or risk factor in service

2) the current injury/disease

3) A doctor’s letter cogently connecting the injury/disease in service to the present condition.

Nothing has changed since Mr. Caluza stepped on his necktie in 1995. No new requirements have been added. This is boilerplate law that needs no further explanation or discussion. With that said, how are we to explain that in 2014, the Big Six of the VSOs are all sitting in front of BVA Veterans Law Judges begging for the Benefit of the Doubt instead of presenting  their three Shedden principles or Hickson Elements? It almost sounds like collusion between the VSO and the VA to ensure that you do not prevail. How else can you explain this? My VSO (MOPH) never told me in 2006 when I filed. When I accidentally discovered it in 2008, his response was a hollow bluff: “Well, duh! Everyone knows about the golden triangle. Where the hell have you been?”

downloadSo… here we go. Let’s look at the Disabled American Veterans first and see how they fared. After all, they profess to be the biggest kid on the block.

http://www.va.gov/vetapp14/Files4/1431781.txt    This one’s a remand back to the RO to be fitted with a brand new shiny VA nexus absolutely free. All Johnny Vet has to do is sit back and let VA do that Duty to Assist thing.

http://www.va.gov/vetapp14/Files4/1431423.txt   This poor guy has a lot of negative events in his life but no DAV nexus. Again, they let this one slip by. Or is there a pattern here?

http://www.va.gov/vetapp14/Files4/1429985.txt    Uh-oh. The dreaded Internet article nexus…

download (2)The Veterans of Foreign Wars, or VFW, should be the go-to guys on this. Hell, they specialize in actual wars and have a ton of guys who were injured in them. Right.

http://www.va.gov/vetapp14/Files4/1430975.txt    Wrong. Lots of paper but no magic paper.

http://www.va.gov/vetapp14/Files4/1429009.txt   Not even an attempt to come up with a nexus letter.

download (3)The Military Order of the Purple Nurple surely can do this. They are in the blood business. You have to bleed to get a PH. Seems they would know everything there is to know about Hep C:

http://www.va.gov/vetapp14/Files4/1429706.txt   Bummer, dude. They forgot the third element, too.

 

download (1)How about the American Legion? A smart, educated bunch if we ever saw one. Surely they make sure you are armed and dangerous before setting out on the big expedition to the BVA. Right?

http://www.va.gov/vetapp14/Files4/1433904.txt   Oops. Forgot to get the opinion.

http://www.va.gov/vetapp14/Files4/1432870.txt   Ditto.

http://www.va.gov/vetapp14/Files4/1430975.txt   Ditto.

http://www.va.gov/vetapp14/Files4/1430167.txt  Ditto.

http://www.va.gov/vetapp14/Files4/1430040.txt   Bummer. Another one.

download (4)How about Vietnam Veterans of America?

http://www.va.gov/vetapp14/Files4/1433658.txt Whoa, there. Seems they got all the way to DC without the magic paper and now are remanding back for VA (not the Vet) to get a new nexus letter.

download (5)How about those enlightened souls on the Left Coast  in California? They have their very own Veterans Outfit to do this professionally. The California Dept. Of Vet Affairs:

http://www.va.gov/vetapp14/Files4/1433652.txt  Negatory on the nexus.

http://www.va.gov/vetapp14/Files4/1432513.txt  Brilliant. Have your Service Officer suddenly turn into House MD at the Travel Board Hearing and opine:

At the appellant’s September 2011 Travel Board hearing, the appellant’s representative argued that the Veteran could have contracted hepatitis C in service due to his in-service diagnoses of gonorrhea and malaria.

Well shucks. How about those folks back in Illinois. They hail from the land of Lincoln and Obama. They must know all about the legal requirements. Even thoughdownload (6) this feller had a lot of negative evidence concerning drug abuse, they never got that far. He simply didn’t have the magic nexus paper.

http://www.va.gov/vetapp14/Files4/1433641.txt

How about Florida. I hear it has the largest contingent of Vets in the nation. Those folks surely got the Caluza fax…or not.

http://www.va.gov/vetapp14/Files4/1433641.txt

 

download (7)And last but not least, nobody told Mr. Pro Se who went in cold. This is the only one I would expect to find at this late date who was clueless.

http://www.va.gov/vetapp14/Files4/1429477.txt

 

 

 

 

vermontApparently they know how to do this in Vermont:

http://www.va.gov/vetapp14/Files4/1428737.txt   Amazing. Almost too easy.

 

That was just the first 50 decisions in the queue at the BVA HCV website of 2014 cases. It is representative of what you will see as a cataclysmic fault in all VA jurisprudence and only the tip of the iceberg. Imagine that there are another two or three thousand that are not even appealed and the volume of claims lacking any semblance of medical nexus becomes glaring. With 29,882 decisions out this year (so far) for appeals of all sorts,  it’s apparent that there’s work to do on getting the word out.

What few of you know is that there are “Appeals Teams” made up of various senior VSOs of all major denominations that collaborate on appeals and try to micromanage them at the BVA.  VA even provides them office space and phones there. With this second level of expertise, these teams further prove a mockery of justice. This is nothing more than leading cattle to slaughter. The VSOs are merely the guys with the cattle prods keeping the Vets moving into the slaughterhouse.

 

 

 

About asknod

VA claims blogger
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2 Responses to BVA–CALUZA V BROWN 20 YEARS LATER

  1. SquidlyOne says:

    If NSOs (that are “chartered” by Congress) were serious about SC for Vets, they would have doctors on call to write IMOs or do IMEs so the Vet would have a nexus. If C&P exams were really subjective and impartial, then the NSOs wouldn’t need to use their IMO very often. Thus the VSO has just become another gate keeper for the vA and Congress is tickled pink.

    The most dangerous Vet out there is the one who has read your book. If we go Pro Se and show that we know what we are doing then we quickly become VA’s public enemy number one. With our HCV disease, the energy level both physical and mental takes a spiral downward. Then time becomes more important and being able to keep up the fight against the vA becomes much more difficult. Just writing something up and putting a stamp on it becomes harder to do.

  2. hepper74 says:

    Really hating all of this new stuff showing up on the site but I digress.
    One other piece of advice for pro se, if you go down this path be prepared to fight the VA as hard as you would if some mortgage company tells you that they are putting your house in foreclosure. It is a great deal of work but the reward is a sense of being right, knowing you are right and po’d because you have to prove every little point. I find it much like a mind game and besides I am not employable so it gives me something to occupy some of my time.

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