I shudder to think how many of us who served in Vietnam have hit the wall when they tell you your Agent Orange claim cannot stand because you simply were not there. This is a default setting-one assumed before any cursory examination is even undertaken to determine if your really were. For some, they actually made an effort to find out. In certain instances, like mine, a hurried general discharge with no research left me with a DD-214 devoid of that determination. Mine said RVN–No ; SEA–yes. It took me thirteen years to prove it. Here, Mr. William S. Hunt made a similar Agent Orange claim in 2004 when the shitstorm of diseases began to rain down on him. Peripheral neuropathy and glaucoma were just the beginning.
Willie was actually filing for Bent Brain syndrome when he started telling the VA weenies about going ashore for the booze/mail runs. He politely called the cherchez la femmes expeditions “going ashore” parties or someone had to [expletive replaced] it to clean it up for Brother Greenberg. At any rate, he was doing what a lot of us did. Normal stuff that entails going ashore or flying in from another country like Thailand or Laos to report to 7th AF TAC Air Combat Control. Lots of times (read virtually all times), it was done on the fly. You might pack light and take your shot records if you were going through Aerial Ports of Entrys like Bangkok or Saigon because nobody went anywhere without them. You simply could not get on board a plane headed to Tan Son Nhut without proof of a vaccination for cholera and Yellow fever.
Willie didn’t get orders cut to go ashore. Why would he? It wasn’t like PCS or a change of where you hung your uniforms. It was a Gilligan 3-hour tour thing. VA assumes you are a liar and a cheat and would do anything to get that golden presumptive for herbicides. Being an ex-Marine is not a bye, either.
Thus, simple lay testimony that would certainly incorporate the 38 USC 1154(a) interpretation is suspect without some magic corroborating evidence to buttress it- until now. I’m waiting for McDonald’s henchmen to ask for either a CAVC panel or a quick trip up to the Fed. Circuit to put an end to this hooey. 1154(a) the orphan sister of it’s combat enhancement 1154(b) still has enough mustard on it to make it applicable.
(a) The Secretary shall include in the regulations pertaining to service-connection of disabilities
1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence
The crime committed was simple. Willie showed up at the CAVC in 2010 appealing his BVA necktie party. All parties concerned (Willies’s atty. and the 027 OGC weenies) immediately agreed they took a phrase out of context and disunderstood it accidentally as they somehow do. Try this. Willie says “I was fighting the fire so I never left the ship.” VA turns that into a word-searchable snippet and says he admitted in his own words that he had never set foot on the land mass known as the Republic of South Vietnam. Ever. With a wonderful Joint Motion For Remand (JMR) to correct this obvious error, the BVA merely reaffirmed it and used the same logic. This is getting pretty brave on BVA Judge John Crowley’s part. He has just slapped the CAVC JMR down and reimposed his denial with no new logical basis for it. Willie wasn’t there because Willie said he wasn’t there. And no, it wasn’t taken out of context. Suck on that, Greenberg.
The CAVC wasn’t very impressed with Crowleys’s behaviour and promptly (in CAVC time) remanded it back again to discuss Judge Crowley’s theories the former Marine’s statement that he had been ashore numerous times on business and, mayhap, pleasure as well. You can tell the Vermin Avenue krewe is looking over Willie’s shoulder and seeing a tsunami of Vets approaching if they let Willie through the door. If lay testimony is suddenly all it takes to prove boots on the ground in Nam, VA is in a world of shit.
In 2010, the US Census revealed an interesting statistic. 10.2 million of us male Americans, and maybe even a few women, claimed they had indeed served faithfully in country. Keep in mind that up to now VA has artificially suppressed the number of Vets who claim to have been in country (2.9 million) by requiring proof (divorce papers, speeding tickets, a three day stay at the Long Binh home for wayward youth, TDY orders- hell, anything that would put you there on paper). No one has ever beaten the game solo based solely on lay testimony. Willie was asking them to accept just that. You can see a precedent slipping away. Pretty soon those other 7.3 million Vets are gonna show up and want their AO presumption. Cap’n. The gooks are inside the wire! Whadda we do?
Sure enough, Crowley was handed his marching orders by Leigh Bradley and had to deny again like the cock crowing three times before it went back up to Greenberg. Greenberg didn’t like this. He said ‘I’m gonna get that boy’. This is how bad it got. Crowley actually published this with a straight face. He must be related to VLJ Hindin. Greenberg, not to be outdone, published his with a straight face too, but he used precedence to affirm his take on it-not blind denial for the sake of preventing a gullywasher.
On February 20, 2014, the Board again denied the appellant’s claims for service connection and secondary service connection, finding that the appellant had neither demonstrated that he set foot on the ground in Vietnam for the purposes of presumptive exposure to Agent Orange, nor had he demonstrated actual exposure to Agent Orange. The Board found that the appellant’s descriptions of his service on board smaller craft did not include an explicit account of setting foot on shore, despite the appellant’s understanding that “evidence of his presence on the ground in Vietnam was of utmost importance.” The Board interpreted the appellant’s phrases such as “we . . . landed several times on shore,” “[we] had a few going to shore parties,” and “[we] would take people, American[s], off shore and back to ship” as vague, and found that they failed to provide “specific details supporting the Veteran’s presence onshore or what activities he performed ashore.”
Seems mighty clear to me. The word that gave it away to me here was the various permutations of the word “shore” but the most important error is overlooked. Who gives a rat’s ass why he went ashore or for what reason? That is immaterial. The former Marine, under oath and the threat of punishment for lying, credibly testified he went ashore. Period. That’s pretty explicit in the country I come from. What’s more, he offered several reasons and mind you, all these were before he ever even filed for AO. That, in Black’s Law book means he was not using it for nefarious purposes or to pad the record.
My only regret is that a fellow Vietnam Vet had to wait for eleven years to gain that distinction and presumptive exposure. VA consistently evokes the nonadversarial line but who among us can see this as anything but? Not once but three times. Here’s the CAVC reversal and Crowley’s third BVA necktie party.
Keep this decision in you inbox for AO claims. And a warm thank you to Nicholas L. Phinney Esq. for his most excellent law dog performance. He’s working out of the Chisholm, Chisholm & Kilpatrick Stable so this isn’t a huge surprise. That also might sound inconsequential before Greenberg but old Nick here just set a tepid precedent of sorts. If you’re from St. Petersburg, turn that into “sitting a president” to understand it, hear?