Every once in a while you run across a decision that compels you to read all the way through just to find out why (absent the perennial drug accusations) a Veteran loses something that ultimately is winnable. We here at AskNod have tried to point to all the common and the occasional uncommon reasons why you can lose at this. It amazes me that some Vets have an uncanny ability to keep talking in order to fill in those pregnant pauses medical personnel are so adept at providing. Here it becomes fatal to the claim. There obviously is some grasping at straws as the gentleman slowly realizes he’s going to need more ammo. The claim becomes toxic in spite of the AmLeg’s best efforts (or because of them).
Vets would be advised to take away an important lesson from this. VA has all the records and examines them to determine that your version of events comports with their evidence. If nothing is in sync, they go farther afield and analyze it to death. Here, in desperation, the Vet continues to embellish his lies to somehow buttress his cow feces.
Truth will never get you in trouble. Here, the truth is that the Veteran had no claim(s) that were verifiable and the Vet was well aware of it. He tried to bluff his way through and then, in desperation, started manufacturing evidence simply by vebalizing it. Being equivocal in a claim is fatal. If you were shot or tagged with a SFW in combat, you would remember every second like it was in slow motion. You would know if you had a transfusion- or didn’t. Va examiners do this for a living, so don’t think you can beard the lion in his own den.
Why this Vet’s SO allowed this to get in is incomprehensible. Once discovered, some form of rebuttal or recusal was in order. Charge or retreat? He chose to charge:
Moreover, the Veteran’s statements as to his history of blood transfusions
are, at best, inconsistent. After initially
stating that he did receive a transfusion in connection with an auto accident, he denied that he had a transfusion, then stated that he a transfusion; all statements made within a five-month period. Specifically, he indicated to a VA clinician in July 2006 that he did have a transfusion in 1990; he denied any history of blood transfusions to the September 2006 VA clinician; and he stated in his November 2006 hepatitis C questionnaire that he possibly had a transfusion. The Veteran's statements, by themselves, are not credible evidence that a blood transfusion occurred in conjunction with his September 1990 accident. Nor are they supported by any evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Sharing razors in service is an event which the Veteran is competent to describe. See Barr v Nicholson, 21 Vet. App. 303 (2007); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, competency must be distinguished from weight and credibility, which are factual determinations, going to the probative value of the evidence, for the adjudicator. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Not only has the Veteran provided inconsistent testimony with respect to having received a blood transfusion during service, but he has equivocated on whether he did, in fact, share razors. Specifically, he indicated to a VA clinician in September 2006 that he may have shared razors with other people, and he stated in the November 2006 risk factor questionnaire that he possibly shared razors. While not a model of clarity, the Veteran's January 2007 correspondence states that he received haircuts from foreign nationals, during which he was nicked on the neck by a razor, and that he occasionally used razors that were not clean or new. Because the Veteran has never made a clear statement that he did, in fact, share razors, and because, in his last statement he has, for the first time, indicated he was nicked by a razor during a haircut, the Board seriously questions the credibility of the Veteran's statements regarding razors. Finally, while the Veteran's report of jaundice during service is capable of lay observation, it is contradicted by his assertion in the July 1993 medical history report that he did not have a history of jaundice. The Veteran's assertions are lacking in credibility, and are of no probative value.
If no one believes a word that comes out of your mouth, you will have a hard time convincing others of what time it is. If you’re going to lie, recite it for a few months or years to make it hold water. Write it down and keep it handy in your wallet if you have brain fog. I, for one, don’t advise it. If VA grants you benefits under false pretenses and then discovers the truth, you will owe a lot of money back and get that unanticipated staycation with free food at the government’s boarding house in Leavenworth, Kansas.
Tom Philpott has been breaking news for and about military people since 1977. After service in the Coast Guard, and 17 years as a reporter and senior editor with Army Times Publishing Company, Tom launched “Military Update,” his syndicated weekly news column, in 1994. “Military Update” features timely news and analysis on issues affecting active duty members, reservists, retirees and their families. Tom also edits a reader reaction column, “Military Forum.” The online “home” for both features is Military.com.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
