Franks sends this image in since we all have to deal with alt-facts daily. Here are a few things that came to my mind looking at the picture. For Conway, an Alternative Fact is something President Trump believes; Yalie Bill Clinton, explained, under oath, his concept of alt-facts brilliantly to the Grand Jury, “It all depends on what the meaning of the word ‘is’ is”; for VA, a favorite alt-fact is its non-adversarial process of helping veterans get all the benefits they deserve. Alt-facts rule the world.
The BVA judges like Veteran Law Judge, John J. Crowley have alt-facts mastered. This 12/23/15 decision (Cr. #1553614/DAV/Seattle & Anchorage) is a good example.
Crowley: “INTRODUCTION The Veteran had active service in the United States Navy from January 1971 to May 1972.”
Crowley: “FINDING OF FACT The Veteran’s hepatitis C was not shown in service or for many years thereafter and is not shown to be related to service.”
STOP: HCV wasn’t identified until 1989 (Link) but that real fact doesn’t stop Judge Crowley, writing 27 years later, to insist in his alt-fact world, that HCV could and should have been written into this 1971-1972 service records.
An air gun-hep denier, Crowley prefers the examiners opinion that post-service chronic alcoholism was causal, as was nasal cocaine use, in the veterans acquisition of HCV. But he throws in “willful misconduct” just in case our vet drank or snorted in service!
“Although the Veteran asserts that his current hepatitis C is related to service, as a layperson, with no demonstrated expertise concerning the etiology of hepatitis C, his assertions concerning such etiology may not be afforded more than minimal probative value.”
Never mind that Judge Crowley also has “no demonstrated expertise concerning the etiology of hepatitis.” Or that a VA examiner thinks alcoholism causes HCV.
Well, this denial is a complete mess to a normal reader, but an Alt-Fact masterpiece for those who create them.
The only problem I see with the decision is Johnny Vet’s legal team. No IMO based on having read the c-file and the contemporary 1970 service records is a classic mistake I teach not to do. You go in with at least two IMOs and you have valid risk factors recognized by the CDC- not the American Sanitation Council. It’s a given that if you use VA for your medical needs and you report you use drugs to them, they will write it down- but so would a civilian doctor, for that matter. Dr. Cecil wins our claims for us precisely because we supply him with the military medrecs to do a proper nexus letter with.
A VLJ is not a doctor nor can s/he pretend to be and make decisions medical in nature (see Colvin v. Derwinski). That’s VLJ Bozo No-No number #1. If the DAV shows up and says they’re going to help you, then it behooves them to line up good IMOs and a rock solid case to win with- or at least tell you what you need to assemble. Seeing and raising to VLJ Crowley with a pair of twos in a Jacks-or-better game is not going to put the meat on the table. The name of this game is the c-file. What’s in it? More importantly, what’s not in it sometimes.
Now, with that said, if the VLJ then proceeds to diss your most excellent IMOs and try to drag drugs into it with no basis in fact, you have a sure-fire winner at the CAVC. But if the evidence of self-admitted drug abuse is a matter of record, nothing can stop this dreadnought from losing. You will notice the private doctor (L.G.) never mentioned he’d reviewed Johnny Vet’s medrecs. He did not address Johnny’s predilection for the White Lady and why a job cleaning septic tanks was a far greater risk than snorting coke. If you let the coke kitty out of the bag, you better have a plausible denial route back to safety.
Granted, the Vet got railroaded-but not by alternate facts. He was doomed to lose with what he had to fight with- self-admitted drug abuse and a hang-em-high, bonus-driven VA examiner who DID read the c-file. Where was the core biopsy showing late stage 3, 3/4 fibrosis proving he’d had it for 40 years?Don’t blame Crowley for this disaster. He had nothing to look at that wasn’t a damning indictment of Johnny Vet. This didn’t even get close to a benefit of the doubt party. I’ll say it again. VSOs are the DVA’s right arm. It’s like a good cop/bad cop routine.
Thanks for outlining the errors. I agree, the DAV failed this vet completely and Judge Crowley had no real choice but deny this claim. What I really object to is the BVA’s obsolete and misleading statement, copied and pasted over and over by VLJs, implying that HCV could have been identified, and noted in a vets’ service records, decades before it was discovered. These judges know better. And they know that hep C was often asymptomatic for decades. Can’t they send these terrible VSO claims back to the ROs and insist on better exams that address current medical knowledge?
They know that drinking alcohol doesn’t transmit/cause HCV. (Alcoholic hepatitis is a different story.)
They must have Fast Letter 04-13 (June 29, 2004) and VBA letter 211B (98-110) memorized by now given the flood of HCV cases. As far as the septic system cleaning goes, perhaps the vet heard something about HAV & fecal matter, and, as a layperson, got confused. That doesn’t excuse the DAV for allowing that notion to have been presented.
I don’t believe that VLJ’s hands are tied when they see vets getting such poor representation. There must be actions they can take. They have to sign their names to these decisions. How do they sleep at night when they’ve had to write something that is misleading and incomplete?
They need to step up, push for internal reforms, and not just follow nonsensical rules!
I’ve talked to a few VLJs and they are disgusted about the ROs sending these cases up in this state. However, they are far more angry at the purported justice Vets do not get at the hands of the VSOs. That’s the crime in their minds but their hands are tied. No doctor Judges allowed.
I think the willingness to accept alternative facts is based on self interest and/or fear. If these amoral doctors got the word from the White House and Congress that vet’s disabilities should be accepted as service connected if their is a shred of the possibility that the vet might be correct we would see the Judge Crowley’s of the world get their heads chopped off.