It’s rare to be able to go back and unearth the BVA decision that leads to the CAVC but I’m getting better at sleuthing these out. The dead giveaway is the the date of the decision. That and the fact that Lieberman & Mark defended Mr. Bria on this both at the BVA and here in this action at the Court.
First, a word about L&M. Jeany Mark is no stranger to this venue. Her name pops up on many occasions at the Court and she is an able law dog. I wouldn’t fear going up against Eric and his bad boys with her as my shield bearer. I like the rainmaker I have now personally but she would be adequate to the task judging by past performances. No, the abiding reason I like mine is he’s a Veteran. Need I say more?
Mr. Robert J Bria finds himself in somewhat of a pickle. I’m not sure who repped him before he got to the BVA Show but he made a few missteps on the way. Old Bob stepped on his necktie back in the Nam and had a few encounters with the Snoose queen. Perhaps more than a few. He came down with what was diagnosed at the time as HAV in November 1973 through March of 1974 while in country. He was PCS’d to Germany and continued his adventures there. His service military records are silent as to UCMJ drug violations and the only evidence against him is his pie-hole diarrhea habits.
The Bobster feels its all due to an in-service tattoo (undocumented in item #39 on the SF88) or the legendary jetguns. When filing his claim in 2004 he neglected to mention his repeated percutaneous piercings with a 24 ga. needle attached to a syringe over the years.
The Veteran contends that he acquired hepatitis C infections during active military service, citing an in-service tattoo and exposure to contaminated blood via inoculations.
However, in some of his more lucid moments in the remote past, he was more forthcoming, volunteering this:
Following service, in an April 1977 VA hospital summary, the Veteran reported a history of heroin addiction for four years. On physical examination, the examiner noted multiple puncture scars over veins of both forearms.
In a May 1988 private treatment record, the Veteran admitted to being an intravenous (IV) drug user.
During a September 1988 VA examination, the Veteran stated he has been using heroin recently. He reported he started using heroin when he was in Vietnam and has used it intermittently since.
This poses a very large problem when you file a claim. If you neglect to mention that you were instrumental in funding Habib Haboob’s children’s college education by purchasing most of his refined opium production, you impugn your credibility when and if the vA discovers it. Since vA has excellent record-keeping whenever it entails denying you, you can pretty much count on them having the damning information. On the other hand, any exculpatory evidence always seems to get misplaced or lost. Sometimes its reputed to have been altered or destroyed but that is so rare according to vA as to be statistically insignificant. One day we’ll wake up to find that shredder rooms, while plausible, were never proven to exist at vAROs. Revisionist history is circular and complements itself like a seamless Mobius loop.
Nevertheless, the Bobmeister had a problem and Jeany Mark was the solution. She was able to salvage this and get a remand back to the BVA for one very good reason. Both the vA examiner’s medical theory and Bob’s private nexus left much to be desired. Recently I posted this on the subject. This decision is a prime example of what was missing. The Court does a wonderful job of not only dissecting the vA’s pathetic attempt at stonewalling and Bob’s doctor’s futile attempt at writing it correctly. I’ve written much on the need for bulletproof nexus or nexi when doing this. Click to see the Nexus Bible. The private one here left a glaring hole with the statement that HCV rears its ugly head after 20 years. The problem? Bob’s exposure was thirty years ago (at the time of filing-now it’s forty). Continuity is crucial. Another mistake is to even let these jerks introduce the camel’s nose under the tent with the Maxson decision. Maxson, for the novitiate, holds that something so remote as HCV 30 years ago probably isn’t related to anything in 2012. That’s true for almost all diseases or ailments except HCV. By failing to cut off that line of attack and discount Maxson in his Form 9 rebuttal, he and Ms. Mark allowed it to sneak into the denial as powerful evidence against his claim. That, Veterans, is a Bozo No-no. HCV is a “cryptogenic” disease-i.e. one that is stealthy. It doesn’t manifest itself for decades. Bob’s doctor made a crucial error of stating a specific timeline rather than a generalized one that would encompass Bob’s circumstances. He fenced Bob out by using 20 rather than 30 years. There was no need for that.
Mr. Bria introduces a novel defense on arrival at the Court. Now that he’s busted on the IVDU, he has resorted to the “But I never shared needles” defense. He will also argue that a little staycation at the Graybar Hotel is not, in and of itself, a risk for HCV in spite of what vA contends. Unless you inadvertently become the object of Darnell’s affections, you should not automatically be tarred and feathered with that brush. With Mr. Bria’s credibility already in tatters, that may become moot on remand. I’m sure they will find ample ways to poke a few more holes in the floor of his claim boat- the least of which is the IVDU. He’ll still lose, but it will be because the nexus will have the proper phrasing.
Don’t let this happen to you. If you intend to file a claim, you need to have a game plan. Arriving at the vARO with the spaghetti defense ( let’s see what sticks to the wall) isn’t going to get it. Worse, obfuscating or demurring on the facts impugns your credibility which you can ill afford. Veterans don’t realize that their good name is just that until they are caught in a lie. After that, everything they say is suspect. Guard that presumption. It’s paramount that you do so. Make it so, Number One.
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