As CAVC cases go, this is a horrible retread. So much so that they didn’t even deign to give it a panel. Jurisprudence that is this defective should not be permitted to see daylight-let alone twice. I am all for every dog having its day and even perhaps twice in a lifetime. Certain basic parameters must be reached first, however. Alfred Procopio has struck out on this in spite of being given far more leniency than most of us. Beating a dead horse more than once serves no purpose other than to confirm its demise. Attorney John B. Wells has now proven this twice over.
I first wrote of Mr. Procopio’s Blue Water travails over four years ago in October 2012. At the time, I seriously questioned his contentions of aerial herbicide spray aircraft launching from the deck of the USS Intrepid. Since then, his story has segued into new theories-all of which confirm his lack of credibility or his grasp of reality. Consider for instance the first above. There is absolutely no history of the Intrepid launching AO spray aircraft or that any barrels of AO or similar herbicides were ever on board. Nonplussed in the least, he “retheorized” that aircraft fresh from bombing Hanoi, Haiphong Harbor or the immediate environs had been coated with AO spray when the aircraft flew through the mist. The credibility issue here is we never sprayed AO in downtown Hanoi. The fallback argument was the fresh water production facilities aboard the aircraft carrier had somehow sucked up AO and he got his DM2 and prostate problems from the onboard water.
I have often counseled Veterans on what I consider to be viable evidence in support of their claims. While I would never suggest not submitting generalized treatises on any given disease, some articles are far too nebulous to support a theory. Please note I did not say far-fetched. In Mr. Procopio’s opinion, the Australian study that gave credence to AO being present in on-board drinking water of Navy ships hinges on too many if…then nebulous presumptions. Any good supposition should be able to be taken into a laboratory and definitively proven to be true or false. Using Australian findings that point to but do not confirm a theory are not going to be well-received by any scientific authority. Approaching VA with this is a guaranteed denial. VA law is dispositive on the subject. You need a chronic disease that began in service or a risk factor such as confirmed exposure to herbicides, you need a current, active disease process and most of all, you need that medical nexus from an authoritative source such as a doctor confirming that you, Al Procopio, met all three metrics and thus are entitled to service connection. This has been true since the War of 1812. VA was forced to admit it in Caluza versus Brown back in 1994 and they finally had to add it to the VA claims package like the admonition on cigarette packs that there’s a strong possibility you’ll get cancer sucking on them. That was the VCAA act back in 2001 in case you missed it.
Just in case you’re still fuzzy on this, in Bryant v. Shinseki, the Court enunciated the beauty of 38 CFR §3.103(c)(2) where, by law, they are required to tell you exactly what you need to win. Mr. Wells must have missed that one.
The very first problem with the Almeister’s claim is elementary. He’s not a doctor so he cannot opine as to what caused his AO-like symptoms. Worse, claiming the Intrepid was the Navy’s floating version of Operation Ranchhand will never fly and it utterly destroys his credibility. We have very few tools in the claims pouch we can rely on to win. Credibility is foremost among them next to the Presumption of Soundness at entry. The last thing you want to do is start lying about what happened on the flight deck because that can readily be disproved by existing records. Going further afield and saying aircraft came back coated with a thin film of AO after flying behind or through the C-123 spray aircraft’s “chemtrails” is a nonstarter. A-4s, A-7s and later F4 Cs picked hard targets like the Paul Doumer Bridge or SAM sites. Yes, they also went after targets of opportunity on the Ho Chi Minh trail in western North Vietnam on the border with Laos and Cambodia. What they never did was try to conduct high-speed bombing/strafing passes while dodging C-123s spraying herbicides. The chances of any residue clinging to an aircraft flying at 350-400 kts is equally ludicrous. You’d probably stand a better chance of claiming you got prostate cancer off a dirty toilet seat on the Intrepid.
I have always advocated picking every possible risk or reason for a disease/injury and sticking with it through thick or thin. List them all at the beginning of your claim so you do not appear to be grasping at straws. You can be wrong but at least you are consistently wrong from the outset. Nothing could be worse than to develop a theory and then start modifying it or adding to it in desperation trying to get that one proverbial spaghetti noodle to stick to the wall. Similarly, I have always said from the outset to have a good nexus letter with no equivocal language in it. Having two or more is even better. Alberto hornswoggled his VA doctor into a corner. By self-reporting his exposure history, he got a compromised IMO that hinged on his credibility. VA calls this “history” as in “the Veteran’s self-reported history”. The good doctor was forced to make an informed decision stating that if what was said was true, then that’s how he came by his afflictions. Right there, in black and white, the good doctor stated unequivocally that he had not seen the c-file or any contemporary medical records from service. Further, he said the suppositions he endorsed would be true if, and only if, what Al reported was the unvarnished truth. You do not win claims with conditional IMOs.
What disturbs me the most is that Mr. Procopio’s law dog, John B. Wells Esq. swallowed this hook, line and sinker. Mr. Wells is acquainted with the VCAA and must have realized the danger of relying on Mr. Procopio’s reports of undocumented day-to-day AO spray operations from an aircraft carrier, handling of AO-tainted containers and the impossibility of AO clinging to a supersonic aircraft that had to be flying dangerously low at 3,000 feet ASL in order to be baptized. The whole story has more holes in it than a notarized alien abduction statement.
I guess you can understand how utterly amazed I was to see this one back at the Court four years later with virtually nothing added to it in the form of new and material evidence. Rarely do we witness such a waste of judicial resources in pursuit of the unattainable. What possible claims viability could Mr. Wells discern here? If nothing else, the first bitchslap in 2012 and the subsequent remand should have been the clarion call to go further afield and get some concrete evidence of AO operations from the Intrepid’s deck or some killer buddy letters that supported the claim of AO residue on the aircraft. The better argument would be to have a doctor’s IMO stating that it was as least as likely as not that Al got his presumptive exposure from the water purification plant and a reasoned rationale to support it. We would hope Mr. Wells was capable of at least that much.
Always remember to put these eyewitness reports in context. How many of us were even aware of Agent Orange when we were over there? Better yet, how many would remember it with such clarity in retrospect and attach such significance to it? I’ve heard some daisies in my day. I had one Vet tell me he knew it was Agent Orange because… wait for it… it was orange-colored. Sorry. It was about the color of diesel and once mixed with diesel or kerosene (or whatever petroleum distillate that was on hand in sufficient volume), it was still the color of diesel. Some have positively identified it as being stored in bright orange barrels. Sorry again. They were OD green and had a 2-inch orange band around them on 50 gallon drums. Similarly, Agent Blue and White barrels were marked that way as well. I never saw any other other flavors so I cannot opine on them.
From the standpoint of an admittedly biased VA agent, I will bend over backwards to believe any and every detail a Vet can report to substantiate his or her story but when the evidence or observations begin to argue with reality, it depresses me. Each and every Veteran like Mr. Procopio does immense damage to our collective credibility much like stolen valor types. It hard enough to get a rating with demonstrably proven facts in your favor. Embellishing the story to flesh it out harms each and every one of us-most especially if there is no truth to it.
I once pointed to the essential elements for the perfect crime and the same applies here. Any conspiracy to commit a crime that will withstand scrutiny must be one where there is only one story and one individual. Your credibility is unassailable. The moment you tell your girlfriend, all bets are off. If you cheat on her, the world will hear about your crime even sooner. With VA claims, your credibility is presumed right up until you say or do something that contradicts it. I have found over time that Veterans foolishly try to fluff up their stories after a denial as if it will lend more credence to their truthfulness. Actually, in VAland, the opposite is true. Read about two or three thousand BVA decisions and you’ll see Veterans pilot their ships up onto the rocks with their own stupidity. In fact, Al asked for and got the same VLJ that pole-axed him back in 2012. VLJ Michael Lane, if anything, bent over backwards in a twenty four-page decision that accorded Mr. Procopio far more latitude than I would have granted him on his credibility.
Here’s Mr. Procopio’s latest Adventures in CAVCland. I can’t wait for Act III.
P.S. Did I mention Mr. Procopio began his assault on Mount VA in 2006? Ten years and two trips to the Big House up at 625 Native American Ave. NW with nary but a dry hole speaks volumes, not of credibility, but the very purpose of filing the claims in the first instance. I can almost imagine some NSO talking with his new client at a _____(VSO) bar in Indiana saying to his Vet “Well? Do we feel lucky, dude?”
A fighter pilot friend (Bob “Earthquake” Titus) of my father’s and far younger by several decades, once explained this phenomenon to me after waaaaay too many double scotch and waters. He could talk to me like my 60s generation even though he was ten years older than me. It boiled down to the semantic difference between balls and guts. Fighter pilots have a compendium of both plus incredible luck. I suspect Mr. Procopio had neither or, at best, only guts-and not much of that.
The difference between
Balls and Guts
Guts- Arriving home late at night reeking of Scotch after a night at the Officer’s Club stag bar, being met at the front door by your spouse holding a broom and blithely asking ” You’re up late. Are you still cleaning or are you flying somewhere?”
Balls- Arriving home late at night reeking of Scotch and Arpege after a long night at the Officer’s Club stag bar, sauntering into your bedroom and slapping your significant other on the ass announcing “You’re next, Chubby.”