COVA–MANIO v DERWINSKI–DOCTRINE OF LACHES

Posted on February 21, 2012 by asknod

VetCourtAppealsPromoVeterans have a misconception about our laws. Most I have talked to think our only difference to civil courts is the benefit of the doubt doctrine. There are many other rights and one of the earliest argued was the right of a Veteran to bring forward a claim at any time for an injury claimed as being proximately due to service. This is the Doctrine of Laches. It’s another one of those gifts of a grateful nation to its sons of war.

This was called into question after the inception of the VJRA in 1989. Emilio C Manio, another of the famous Philippine Army post-WW2, was claiming he had extensive dental problems 45 years after his time in service. Much like Messieurs Layno and Caluza, he had several friends and a contemporary dentist who vouched for his bona fides. I recognize that the Philippines consist of many islands and thus have a unique population distribution. I also agree that this case is not inherently incredible until the dental charts are consulted, but I get ahead of my story.

Emilio Had signed up on October 23rd, 1945 with the new Philippine Army which had been reconstituted following the overthrow of the Japanese. He was honorably discharged on the 28th of December 1945- two months and five days later. A notation in his discharge records oddly stated that this dental condition was not service connected. That means it had to have happened before his brief enlistment. He had submitted buddy letters from two fellow Veterans that purported to say that he had complained of pain in his teeth and gums in October of 1945. With only one week of October in service, there is no corroboration that his complaints were legitimately after October 23rd.  Most dental conditions as these described would almost have to be longstanding, but nobody wants to call a Veteran a liar to his face.

The buddies also said the dentist in their merry band had occasion to pull some of these offending teeth. Keep in mind this is Manio’s second attempt to scale the BVA wall. Extensive dental records seemed to imply that one of the teeth made its way back into his mouth before discharge. Closer comparison of the October and December dental charts seemed to indicate another tooth claimed to have been pulled was AWOL before he enlisted. This can have serious implications where a Veteran’s credibility is concerned.  In 2012, we would politely say Emilio was “evidence-challenged” rather than an outright malingerer. The VA said as much, too.

The BVA was unpersuaded by this evidence, noting that one of the teeth which Lieutenant Salvador claimed to have removed was indicated by appellant’s discharge examination to be present and in good condition. Emilio C. Manio, loc. no. 833536, at 4 (BVA Nov. 14, 1988). Appellant sought to explain this discrepancy by stating that his teeth were removed over a period of time. R. at 36. Comparison of appellant’s October and December dental charts suggests that this dental extraction occurred prior to appellant’s October induction into the Army of the Commonwealth. However, the dental charts are not accurate enough to say that with any confidence. If the charts are to be believed, appellant lost five teeth after the October examination but grew back six other teeth. Finally, in his third appeal to the BVA, appellant offered the sworn statement of dentist Dr. Dela Pena. His expert testimony that pyorrhea was the cause of appellant’s tooth loss corroborated the testimony of Lieutenant Salvador–albeit over forty years after the fact.  Manio v. Derwinski(1990)

So you see the pickle he was in. Fortunately, he was a “combat Vet” and therefore gets a bye from the Court. Additionally, he had evidence which the BVA overlooked and then tried to shoehorn in at the Appeal before the Court. Since this was the first mention of the evidence, they were forced to remand for a new examination of the evidence and decide all over whether this was, in fact, service connected.

What concerns us is the right accorded to Vets that day. The Court struck down the Secretary’s assertion that stale claims had no business being adjudicated 40 years later. They didn’t specify what a proper statute of limitations might be, but simply said this was uncalled for. Since we inhabit a sweet spot, judicially speaking (or are supposed to), we are given the right to come to Court and redress our grievances at the time of our choosing.  As we all know, what the Court  giveth freely with the right hand, they can also snatch back later with the left. This the Federal Circuit did in Maxson v. Gober a few years later in 2000.

https://asknod.wordpress.com/2011/09/27/fed-cir-via-cavc-maxson-v-gober-2000-you-waited-too-long/

Manio first stood for the proposition that the BVA was remiss in reopening his claim a second time absent new and material evidence. This might have resulted in the Court’s refusal to hear it based on lack of jurisdiction. The canon ball below the water line was this:

Examination of the November 20, 1989, BVA decision reveals that the BVA erroneously failed to consider the evidence submitted by appellant in the course of prior appeals. The BVA stated “the evidence reported in the prior Board decision will be briefly discussed for clarification purposes only.” Emilio C. Manio, loc. no. 931256, at 2 (BVA Nov. 20, 1989) (emphasis added).   Manio supra

This was fatal to the BVA’s prior decision. As the Court pointed out, all the evidence must be weighed in a reopening, not just the newly submitted. This was cited in several other decisions for years until later cases started using better examples or newer names. There is no rhyme or reason as to why Manio lost his rightful place to name fame.

In 2012, Manio stands for our right to exercise the Doctrine of Laches. It also argues (inadvertently) for the theory of Immaculate Conception of diseased teeth in Emelio’s mouth. That is an interesting argument for another day and will require the participation of the Catholic Church. What we can note from  published opinions is that Mr. Manio made no subsequent appearances at 625 Indiana Ave. NW. This may mean that he prevailed in some way or they arrived at a quid pro quo.  My guess is Emilio agreed to go home with fat pockets because they didn’t have an Excessive Awards Procedure in place yet. Perhaps this is what emboldened Mr. Layno and Mr. Caluza to attempt a similar scheme.

Ladies and gentlemen Veterans,  I give you Emilio C. Manio.

Manio_90-86

Posted in Important CAVC/COVA Ruling, Veterans Law | Tagged , , , , , , | Leave a comment

BVA–I WAS THERE,DUDE.

Posted on February 20, 2012 by asknod

If everyone who said they were in Vietnam during the war had really been there, I expect it would have been standing room only. In fact, if everyone who said they got this or that medal for their combat had, there would have been a cotton and silk shortage during the late 60s. Hell, America would have experienced a period of negative population growth. I find it humorous and comment on it frequently. What would possess anyone to make claims that the VA can figure out with three quarters of their brain tied behind their back and blindfolded. Making claims for DM2 and PCT require being in-country.

Johnny Detroit here has made some claims about being in the RVN. AO claims, for the most part, hinge on having had boots on the ground there. Okay, let see when he was in the service, which branch and what the milrecs have to contribute. Reeeep! Reeeep! Reeeep! You can hear the alarms going off at the Detroit RO and it isn’t the fire door being opened for an illegal smoke break.

Johnny’s records have some holes in them which he quickly backfills. His deployment to that neck of the woods started in August 1975.  The Olympic tryouts for the AirAm Huey skids long jump was on May 7th, 1975. For all you calendar-challenged wannabe war Vets, remember this simple formula : 1/9/1962 to 5/7/1975. I bolded the important numbers for you guys from St. Petersburg. So if you weren’t there in between those two dates,  AO doesn’t count. And as most know, only a few Army and Air Force Vets will ever qualify from Thailand, Guam and the Korean DMZ.

Johnny Rebel didn’t even show up until September of 75 and that was down in the Philippines. However, he did set foot on the “Indochinese Peninsula”:

In addition, the Veteran argues he set foot in Thailand.  
However, while there is a presumption of exposure to 
herbicides for any veteran who set foot in Vietnam, 
no such presumption applies to Thailand.  The Board 
acknowledges some veterans were exposed to Agent Orange 
in Thailand.  However, only veterans who were in the 
U.S. Army or the U.S. Air Force and who served at certain 
specified bases received any exposure.  In light of the
fact the Veteran served in the U.S. Navy, there is no basis 
in the record to conclude he was exposed to Agent Orange 
in Thailand.

Bummer, dude. Back to the drawing board. He was repped by the VVA so I would assume they have that calendar I mentioned above hanging in the office.

We had a Vet who was shopping the big DM2= AO back in 08. He was Navy and claimed he was on an Aircraft Carrier out on Yankee Station in the sunny Tonkin Gulf. The Haas decision hadn’t been handed down yet, so Blue Water Vets were still filing. He was there in 75, too. The biggest problem I found was that his A/C Carrier was never in SEA. It was an old one used for training in the Caribbean. The second insurmountable problem was that they shut down the racetrack and sent the carriers home in 72. He was appealing these findings and needed lots of help. His defense to this was that he worked below deck and didn’t get topside a lot. He was told they were in the Tonkin Gulf, etc.

I’ll admit they do not have a lot of Mensa candidates employed at VAROs. The truth is, they don’t need more than one.  Vets need to understand that they leave a trail where they go in the military. It’s mostly written down. If you’re in the Navy, it’s assumed that you go where the ship you’re stationed on went. That’s a really hard concept for some to assimilate.  I’m not Navy, but I don’t have trouble with it.

Here’s another hard one that some stub their toe on. At the 2008 GOP caucus in Gig Harbor, we were inundated with a large anti-McCain/pro Ron Paul contingent. I went for the maple bars and those donuts with the sprinkly red and green doomoflotchies on top. Well, actually Grandma asked me to drive her.  The donuts were a bonus. The coffee was atrocious and so were some of the advocates for Ron. At one point, an impassioned spokesman for the Ronster stood up and gave us several good reasons for voting for him. First and foremost, he was a Vet like the man who spoke. I noticed he wore a “Vietnam Vet” baseball cap and he made sure everyone knew he was, too. At one point during a vote tally break, I sidled over and ask him a few of the where were you and when questions. He seemed “off” on his answers as if he didn’t quite know them.  He spilled the beans later when he let on how old he was during another “pep rally” for Ronbo. If you were born after 1957, you weren’t there. I’m sorry. Unless you went later with Jane Fonda on vacation, you just weren’t there.

Here’s  a few little things most don’t know. We never called it “Agent Orange”. I heard it called a lot of things including just orange. We used a lot of blue over there, too. They quit using pink and white before I got there. I hear guys say  “Yeah, I was a Green Beret. ” Not. I never heard anyone say they were anything but Special Forces when they weren’t in uniform. If they were in uniform there wasn’t any doubt. Bien Hoa is two syllables, not four. And if you don’t know what dee-dee, mao! means, you probably were not there.

Johnny Detroit was close, but no cigar.

http://www.va.gov/vetapp11/Files5/1145853.txt

Posted in AO, BvA Decisions | Tagged , , , , , , , | 5 Comments

.30-’06 Chrysler.

Posted on February 19, 2012 by asknod

Have you ever had bad luck? Not serious bad luck like Hep. but like humorous, expensive bad luck? Imagine deer hunting. I always hunt with a modern firearm as opposed to black powder. Its far more convenient to have the gun go off when you pull the trigger than to have it go off a second later. That is sooo 19th century. Black Powder has its adherents but I consider it a novelty. There’s bow hunting too, but that’s even more primitive. My idea of the perfect setup would be a pile of apples, a salt lick  or two and a 7.62 X51 mm M-60.

When I moved up here after the Vietnam Boundary dispute in 74, Washington hadn’t been overrun by Californians-yet. It was rural within 20 miles of Seattle. And there were lots of deer. I hit my first one in late 78 coming over Snoqualmie Pass from Yakima. I was coming back from hunting so I just added this to the one in back and went on home. My buddy Willie was behind me and helped me throw it in after I gutted it. It toasted the right front quarter of my Datsun 1600 truck but didn’t damage the radiator. The headlight just needed some duct tape and it was good to go.

It happened again in 83 after I’d started driving Dodge vans. I center punched this buck in June and he bent the fan housing. I tied it to a tree and backed the dent out. Good to go. Gut the deer and press on. It was summer and deer tags aren’t generally accepted then by game wardens. This time the damage was to that chintzy plastic grill. Well, shoot Bubba. They cost $350 and I wasn’t trying to make a fashion statement with a work vehicle. It didn’t make the vehicle go faster so I spent the insurance on an oil change and a nice NIB .44 mag. Model 26.  Willie let on to all my friends about how I was now using vehicles to punch my deer tag. Instead of modern rifle, Willie said I was purchasing Modern Vehicle deer tags. That hurts a lot. He even said I put the little deer whistles on my front bumpers backwards to call deer onto the road. That part was a lie. The instructions didn’t actually tell you which way to face them.

In the fall of 89, I was coming back from Elk hunting with another friend Tom. Tom was an engineer. He glued homemade “sandbags” like saddlebags onto his cooler so it would ride on the hump in his F 150 and stay put. It was about 1800 and dark out. He leaned forward to pull out one of Milwaukee’s finest when a doe stepped into the road. This was still within Olympic National (No firearms) Park. We jumped out and gave her the heave into the back of his pickup. It had a canopy so no one could see in. We traveled about 12 miles before the truck started jumping and wallowing. Tom thought he had a flat tire. I turned the Stones cassette down and looked over my shoulder to see the doe trying to kick her way out. We had exited the park so we pulled over and shined his flashlight in. The canopy had some serious damage so Tom opted for the quickest repair order- the .357.  It took three shots because she was really jumping and Tom’s aim sucks after 4 beers. The guy who did his body work never even batted an eye. It must happen a lot.

I got blamed for Tom hitting this one because I was now bad luck. But being near me during hunting season was considered good luck. My Dodge 350 extended cargo Van was now nicknamed a .30-’06 Chrysler. They call the one I’m driving now the Aught One Dodge Magnum. People just don’t realize how much words can hurt.

The next one was on Hartstene Island in 92. The spell was broken. Hartstene was so small it was shotgun only. Modern shotgun, if you will. It wasn’t my van this time. The guys in front of me in a little Vega had toasted a small doe. She was still alive when I pulled up so I capped her. The kid had borrowed Grandma”s car to go into Shelton and he was in deep doo-doo. He kicked the deer a few more times and then helped me throw her into the back of the ’06. Gut and go, dude. I was getting this down to a science.

In the summer of 96 and Van #3, I was clearing three lots and there was a beautiful Maple right where I didn’t want it. A buddy named Bob  that did a lot of wood carving and salad bowels wanted a big knotty snowbreak  section with lots of burls.  On Sunday, I got the come along  and some 2X8s for a ramp and off we went.  10 miles and my second Tanqueray and tonic later, out came three deer across the road.  I had usurped Tom’s saddle cooler idea and had a nice built-in console between the seats. It had a built-in spot for a cooler. It was perfectly situated with a cutting board for the limes, too. Anything less would have been uncivilized.

Well, hey. I was a lot older and a lot wiser now. And with two double Tangos under my belt, I was exxxtra careful. I slowed down to 25 and moved to the right. Off they went to safety and I accelerated right into #4. I broke both back legs and felt sorry he was suffering. I reached back in under the seat for Mr. Smith.

At that very moment a guy, his wife and their two daughters  (10 and 7?) pulled up in their  shiny new Volvo Station Wagon with the Save the Earth stickers. The four of them all stared at the poor buck trying to crawl off the road. I walked over to send him to Valhalla and the woman screamed “Gil! He going to shoot the poor thing! Stop him! ” The guy looked at my .44, then he looked at me. He said “You are sick, Mr.”

Well, you don’t know my humor. With the straightest face I could pull together I said “You’re right.  I guess I could back up and run over him a few more times until he’s done for. There’s that, too. Probably more humane, huh?”

He looked at Persimmon face and shrugged his shoulders.  Then he turned and said “Kids, look away. This is going to be ugly.”

The kids decided to watch. The wife was still screaming at Gil to cover their eyes  when I popped it. He leaned out and said “We’re calling the cops, buddy. Just so you know- I got your license pate. You’re not gonna get away with this!” And off they went towards town.

Great. Now I had to share the friggin’ deer with Deputy Larsen. Oh well, gut and go and into the back . We mutually decided that Deputy Dave, our hunting partner, wasn’t going to be very impressed with what I could blow on his breathalyzer so we set sail back to the house the back way to skin him and hang him up.

I lucked out or Mr. Volvo lied. Dave was a no show. Bob and Candi aren’t fond of wild game so I was the lone winner.  I nursed the ’06 all the way to 2000. My wife bought me a brand new one for Christmas and I put the deer whistles on facing the right way this time. So far, so good.

Posted in General Messages, Humor | Tagged , , , | 2 Comments

New Camp Lejeune Update

Posted on February 18, 2012 by asknod

I just received this from our East Coast membership in charge of such things.

Greetings

It has been a few weeks since we asked everyone to visit the House Veterans Affairs Committee’s (HVAC) Chairman’s website. Initially we were encouraged by what seemed to be a genuine response from Chairman Miller. Well a few hours ago, we received notice from the Chairman’s office of how he expressed his deep concern for our well being and respect for our service to this country.

–

Before I begin, I would like to remind everyone that our Bill for health care has been sitting in the “inbox” of his committee for almost a whole year! During that time, nothing has been done. If passed, HR-1742 (The Janey Ensminger Act) will carry the force of law.

–

Now for the Chairman. Today he put out a press release and sent a letter to Secretary Shenseki pointing out the VA has a 3 billion dollar surplus in their FY 2012 budget and asked the Secretary for his charity and allocate some the extra money to our health care. If this proposal is enacted, then what about next year and the next? Why the bait-n-switch? As Chairman of the HVAC, Rep Miller can simply appropriate the needed funding by law rather than relying on the charity of the VA Secretary. This latest move is nothing more than an underhanded attempt to take the heat of Camp Lejeune off the Congressman’s back….do not let this pass unnoticed! Please take the time to visit Congressman Jeff Miller’s Facebook page and let him know what you think. The link is pasted below. Also, please do not confuse the Chairman with the Bill’s sponsor, Rep Brad Miller (D-NC).

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http://www.tftptf.com/Misc/Shinkseki-Lejeune-Letter-Feb-17.pdf

–

http://www.facebook.com/RepJeffMiller?sk=wall&filter=1

–

It is time to act now and be heard if you want this issue to move forward.

–

This is the comment Jerry left on his FaceBook Wall.

Representative Miller, I just finished reading your letter to Secretary Shinseki and your press release regarding benefits for Camp Lejeune drinking water contamination victims and I have some very pertinent questions for you. If you have in fact discovered a 3 billion dollar overage provided to the VA in their budget, why are you asking the Secretary to do something that you could make him do by passing HR-1742? You have had that bill sitting in your committee for nearly a year and you haven’t even allowed the HVAC to consider it!

I do agree with one thing you said in your press release, Senator Richard Burr is the champion of this issue on the senate side and you appear to be the loser on the house side...Jerry Ensminger

Here we go again. It’s just like the AO debacle. Let’s ignore it for twenty years and then see which way the wind is blowing. Memories are short. Constituents grow old and forgetful. The kids pass away and the grass starts growing again at Chernobyl. Love canal is backfilled. No problem. The sheeple put their heads back down and return to grazing on the media feed.

Posted in All about Veterans, Camp Lejeune poisoning, General Messages, Veterans Law | Tagged , , , , , , , | 1 Comment

BVA—§1154(B) COMBAT VET WINS AFTER AMC DENIAL

Posted on February 17, 2012 by asknod

HCVets everywhere should take note of this one. The Vet has lost at the RO and the AMC. The VLJ sees the light and give it to him and doesn’t mumble the jive about benefit of the doubt. This guy had hep in service and smoked some white joints. So what? He did some shooting after service, but he had the bug by then. Case closed.

http://www.va.gov/vetapp11/Files5/1144065.txt

Posted in BvA Decisions, BvA HCV decisions | Tagged , , , , , , , , , , | 3 Comments

BVA–HCV=CROHNS+UC

Posted on February 17, 2012 by asknod

Here we have a case remanded that I will bookmark. This will come back after remand and I want to see whether I can win on this, too. It’s going to be a race to see which one kills me first.

http://www.va.gov/vetapp11/Files5/1145516.txt

Posted in BvA Decisions, BvA HCV decisions, Nexus Information | Tagged , , , , , , , , , | 1 Comment

BVA–§ 1151 FOR IFN TX

Posted on February 17, 2012 by asknod

This will give you an idea of what you are up against with the VA if you go toe to toe on an §11151 claim.  This Vet did not prevail and would probably have been better served with a real lawyer. The claims are a lot different than a standard claim.

http://www.va.gov/vetapp11/Files5/1145745.txt

 

Posted in BvA HCV decisions, HCV Health, Interferon claims | Tagged , , , , , , , , , | 1 Comment

BVA–THE EVIDENCE PREPONDERATES AGAINST

Posted on February 17, 2012 by asknod

Ever had one of those days where everything goes haywire? I hate that when that happens. Here our General from Montgomery has listed everything but ingrown toenails. He has a lot of disabilities judging from what I’m seeing- 34 to be exact. The reader will also note he is unrepresented. This bodes poorly and may explain why he gets no traction.

http://www.va.gov/vetapp11/Files5/1145803.txt

Posted in BvA Decisions, Frivolous Filings | Tagged , , , , , , , , , | 1 Comment

BVA–SHOTGUN TECHNIQUE

Posted on February 17, 2012 by asknod

This is a unique rating. It’s brand new and the Veteran has listed risks which legitimately could be used to deny him. Here the RO let this go up to the BVA with no endorsement as to which was the culprit. Based on that, the VLJ gives him the Benefit if the doubt. Most excellent .

http://www.va.gov/vetapp11/Files5/1146730.txt

Posted in BvA Decisions, Nexus Information, Veterans Law | Tagged , , , , , , , | Leave a comment

BVA–INDIAN COUNTRY

Posted on February 17, 2012 by asknod

The last of the 2011 BVA decisions were posted this morning early. I know. I couldn’t sleep or else I’m prescient. Since my Cryoglobulinemia is in Hyperdrive mode, I doubt it’s precognition. My brain feels like a gigantic sticky spider web.

But when I read this one from the wagon-burner Regional Office, I had that “Oh, no. Jez, scroll back to the top and see who was repping her.” I figured she was pro se. Maybe she should have been. No comment.

http://www.va.gov/vetapp11/Files5/1146764.txt

I love the Introduction portion of these decisions. It gives you the low down on what to look for and an inking of what’s in store.

The Veteran served on active duty from January 1984 
to February 1984.

Wow. A whole month! I thought you had to be in for 3 months before you even got a banana. So… the rating denial occurred in February, 2003. Backtrack about eight months to May-June 2002 for the filing date. They were suuuper fast back then. It then tells us she opted for a DRO hearing at the RO in November 2004. Now, Veterans. Notice the next entry- May 2008 and a BVA hearing via videoconferencing. Three years and six months whizzed by from the DRO hearing, subsequent denial, filing of the F-9 and a new hearing. Form 21-4138s should be issued with seat belts. Apparently at this BVA hearing, VA asserts she withdrew her case for Bent brain syndrome.

Two whole months later the BVA denied in July of 2008. This has to be some kind of record or there wasn’t a whole lot of substance to this thing. One thing’s for sure. There was only one month’s worth of SMRs to review. Janey Doe filed her NOA and the CAVC decided she should get another shot at it. It came back to the BVA in December 2009.

She asked for and got several IME’s from different VAMCs. Unfortunately they all said “Dear Jane.”  Of additional interest, I spotted this which means she and her VSO must not have been on the same page.

In her February 2009 informal brief to the Court, 
the Veteran stated that she should have appealed 
the appeal that she dropped, referring to the 
claim for service connection for PTSD.

Okay, skip over the denial and let’s move down to the reason she’s headed to Penny Lane.

 The Veteran contended in her February 2002 claim 
that she contracted hepatitis C from contaminated 
in-service air gun vaccinations or dental procedures.  
The Board acknowledges that she had initial dental 
processing to include panorex and panorex screening 
in January 1984, was given vaccinations during service

The dental X rays!  Jetguns! Round up the usual suspects.  Read the SMRs. This is also a good time to go over the risk factors with your VSO officer. I have found it works better if you list the risks at the beginning instead of making them up as you get a feel for the process

In fact, the only evidence that the Veteran contracted 
hepatitis C from jet injectors or dental work during 
service was made by the Veteran during the course of 
the appeal.

Of course, everyones’s idea of risk factors is subjective..

In particular, the evidence indicates that the Veteran 
had blood transfusions before 1992, used IV drugs and 
cocaine, and had high risk sexual activity.

Sometimes VA examiners are narrow minded. They don’t get the big picture

As referenced above, the Veteran reported to two separate 
physicians in December 1999 and January 2000 that she had 
a blood transfusion after her D&C procedure.  However, in 
her March 2003 notice of disagreement (NOD), the Veteran 
stated that she did not have a blood transfusion after her
D&C procedure.  She did not dispute that she received blood 
after cutting her hand.  When directly asked by her 
representative during her November 2004 hearing if she had 
any blood transfusions, she replied that there was no 
hospital record of a blood transfusion.  She did not say 
that she did not have transfusions.  Further, the Veteran 
was also evasive when asked by her representative if she 
knew of any hepatitis C risk factors that she had before or 
after service.  She replied, "We live in a high risk world, 
I don't know, I just know that those [jet injectors and 
dental work] were high risk and I was exposed."  See 
November 2004 RO Hearing Transcript at 4.

Now, before you go jumping to conclusions like I did, you should understand her state of mind

Another September 1987 record indicated that she reported 
IV drug abuse.  A September to October 1987 psychiatric 
report reflected that she had a long history of abusing 
alcohol, marijuana, and other illegal drugs since high 
school.  She reported being sober since 1987 and drug free 
since 1986.  It should be noted that the Veteran has a
 history of treatment for psychiatric disabilities to 
include schizophrenia since 1986, and has been assessed as 
having visual hallucinations and being a poor historian.

Yep. You see that’s how Vets get railroaded into rotten justice. Somebody (her rep.) didn’t gag her before the hearing. Now, keeping in mind that they have decided she has  a horrible memory for events (see poor historian above), they now opt to believe her when she says she had a txfusion after service. This will conveniently prevent her from SC. Smooth move, VA!

The Board concludes that the Veteran's earlier statements
 made to her physicians in 1999 and 2000 that she did have 
a blood transfusion are more credible than her statements 
made after she filed her claim that she did not have a 
blood transfusion.  It is noteworthy that she reported 
these risk factors after her initial diagnosis of hepatitis 
C in 1999 but made no mention of her service, dental work,
 or jet injectors.  Because these records were generated 
with a view towards ascertaining the Veteran's then-state 
of physical fitness, they are akin to statements of 
diagnosis and treatment and are of increased probative
 value.

Here’s one last reason why Jane is not going to be riding in Cinderella’s Coach tonight

The Board finds it significant that the Veteran has changed 
her reports of the circumstances surrounding her 
inoculations with the air gun.  When she initially filed 
her claim, she did not mention seeing blood on others arms 
following the inoculations.  After being asked by her 
representative during her November 2004 hearing if she 
noticed a lot of people with their arms bleeding or cuts 
from the air guns after the inoculations, the Veteran replied
 that yes, in fact there was.  However, later in her 
testimony after being asked by her representative if there 
was an abnormal amount of blood splatter or if she saw 
blood on the equipment, she contradicted her earlier
 testimony and replied that she did not recall.  She 
added that there was nothing unusual about the dental 
work she received and that the dental work was a filling, 
not extraction of a tooth or root canal.  During her May 
2008 Board hearing, the Veteran testified that she saw 
another veteran in front of her with blood dripping down 
her arm while in line for inoculations.  She added, "and 
also, I don't recall, it's been a long time ago.  I don't 
recall though them cleaning those air guns off between 
each veteran."

Now, remember that the Board decided she was a credible historian about the blood transfusions?  “Well, not exactly” as they say over in Hertz car country.

The Board concludes that the Veteran's reports made 
approximately 20 years after her separation from service 
that she saw blood dripping down other veterans' arms 
after receiving inoculations are not credible.

All in all, this is a fast paced story of adventure. Jane and her antagonist-hero  es-husband John snort and shoot their way to new highs with sexual abandon and menage a trois  encounters. Life confronts her with some hard choices which she meets head on. I won’t spoil the ending.

Posted in BvA Decisions, Frivolous Filings, HCV Health | Tagged , , , , , , , , , , , , , | Leave a comment