Here’s one for the HCV ammo pouch that Veterans would be wise to read. It certainly has other useful ramifications for a legal defense but the thrust is unique and needs to be iterated forcefully. Drug use is often used to tar and feather Hepatitis Vets. We know this and are constantly reminded we are second class citizens at VAMCs when we go in for treatment. The smirk I used to see cross my PCP’s countenance was all the reminder I needed that she didn’t believe for a moment that a Vietnam Veteran “caught” HCV from a GSW and subsequent transfusion.
Willie C. Dennis gets the very same treatment from his providers and the VBA. They initially granted his claim for HCV based on good nexus letters from two private doctors without even making an effort to haul him in for their own C&P exam. Shortly thereafter, when Willie applied for an increase, they realized their mistake and set to work constructing an ironclad revision to strip him of the rating.
There are no boundaries VA will not violate in pursuit of a lynching. Willie’s case was no different. He began his appeals to overturn this in 1997. He finally prevailed in 2011 when Sister Mary Schoelen of the Indiana Avenue Order of Holy Sanity reversed the BVA and reinstated his grant.
It illustrates the enigma of CUE law quite well. VA always plays fast and loose with Clear and Unmistakable Error when they attack us. Mr. Dennis’ obverse of the coin is the bone of contention. Were you or I to come forward and insinuate CUE, we get short shrift and the usual Russell/ Caffrey/ Fugo litany of “a mere disagreement with the facts or the evidence can never rise to the level of CUE”. But should the shoe be on the other foot-VA’s in this case- the accepted practice devolves into a Presumption of Regularity that encompasses the idea VA has supernatural powers of extra sensory perception. They “know” when you are lying. They’ve got a wiretap on Santa’s phone. Their doctors can reach back into the past with alarming alacrity and somehow discern medical principles that would not be discovered for twenty years. One of my favorites is “The hepatitis Mr. Dennis suffered in 1972 is not at least as likely as not the Hepatitis C that he currently suffers.”
Judge Schoelen didn’t need three wise men and a really bright star to ferret out the truth. VA was so clumsy their arrogance got the better of them. Their “There but for the grace of God go I the VLJ” is based on decades of flawed VA law. To compound that, they were trying to take Willie to the cleaners in front of the wrong judge-one who could easily spot the error and was not afraid to call them on it.
Reversals are excellent test beds of jurisprudence to discern VA’s propensity to overreach. I’m not saying VLJ Singleton could have done a better (or worse) job of stringing up Mr. Dennis. They are all trapped in that mindset. Obviously he has a long litany of AWOls and Imperial entanglements that put him at risk for being a less than credible witness in his own defense. VA simply went overboard and too far afield when they tried to smear him. This always comes across as overkill to a knowledgeable Judge and prompts a more minute inspection to see what else is actually afoot.
Willie ain’t no saint but neither is he the pariah that VLJ Deborah Singleton tried to make him out to be. We all have our demons. Willie, it seems, has a few more than most but that does not condemn him or make him ineligible for VA compensation. VA’s “nonadversarial” slip was showing on this one.
The teaching moment is clear. You can have all manner of intransigence in your records but if the glove don’t fit, they can’t convict. Willie’s legitimate risks in service far outweighed his post service risks of parenteral drug abuse. For VA to cast dem bones and say otherwise requires far more probative evidence- evidence they didn’t have and attempted to manufacture by innuendo. Sound familiar?