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BVA Judge Lack Credibility

I read BVA and CAVC Decisions almost every day.

While I have no empirical data to back this up (yet), it seems like more and more Veterans are getting adverse BVA decisions that under-cut their credibility.

This can be a particularly painful finding – many times, we Veterans feel like the BVA Judge is saying that we are liars.

Integrity is the touchstone of the Veterans’ community, so this feels like a knife, right to the heart.

But Veterans need not fret – the BVA is wrong about nearly every one of its credibility findings.

Here are some very common ways to appeal to the CAVC and over-turn a BVA Judge’s adverse credibility determination:

1) The Lack of In-service Medical Documentation Does Not Mean a Vet’s Claim Lacks Credibility.

A lot of Veterans see this in their BVA Decision – the BVA Judge writes that because there is no medical documentation of symptoms of the claimed condition, or the Military Service Medical Records lack a diagnosis of the claimed condition, the Veteran’s testimony or statements that his or her condition was incurred in service are not credible statements.

I’m really disappointed every time I see this in a BVA Decision – the law on which this sort of decision rests was kicked to the curb years, if not decades ago.  It has long been the rule that the “Absence of Evidence is not Evidence”.

Bottom line, here’s how  to push back at the CAVC:

Argue that the Buczynski case [24 Vet. App. 221, 224 (2011)] stands for the holding that the “…[a]bsence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded.

We all know that soldiers, sailors and airmen fail to report injuries, and symptoms – it’s the nature of military service that you don’t let your unit down to go on sick-call.

Especially in combat.

So in order for a BVA Judge to conclude that YOU lack credibility because your Military Service Medical Records lack any medical notes about your claimed condition, that BVA Judge is going to have to explain why he or she would EXPECT to see that information in your medical records.

That’s not something that a BVA Judge is going to be able to easily do in most cases.

2) What you said – or didn’t say – on your Separation Exam does not mean you “Lack Credibility” today.

Here’s how this monster rears its ugly head.

You make a statement on your Separation Exam – something to the effect that you are in “excellent” health, or you don’t report any major problems with any of your major body systems or functions.

Years later, though, you report that you believe your Degenerative Disc Disease is related to all the hours you spent crouched under the belly of an aircraft repairing those hard to reach parts of military aircraft.

I have seen BVA Judges write decisions finding that the Veteran lacks credibility because he testified at separation from service that his back was okay but testifies today that his back is the result of military service.

This sort of finding misses the point: Many injuries do not surface or present noticeable symptomatology until YEARS, sometimes decades, after service.

I once represented a Veteran that had a tumor developing in his body in military service, but didn’t start feeling ill for over a decade.  So, of course this Veteran would have checked that he was in “excellent” health at his separation from the military.

The way to counter this sort of attack on your credibility is to address it at your BVA Hearing (or in your brief in lieu of hearing).

Take a look at your separation physical.  If it says that you are in excellent health, or doesn’t report symptoms of the condition you are arguing is related to your military service, offer testimony at your hearing (or in the form of a Sworn Declaration), explaining what is not really a contradiction.

It need not be a lengthy explanation – in fact, shorter is probably better in most cases.  You need only consider a statement like this:  I reported that I was in excellent health at separation because (choose any that truthfully apply to your situation):

a) I had no idea what was going on inside my body at the time.

b) I was in a rush to get out-processed from the military, and said what I had to say to get the exam over with.

c) I was pressured by the military/out-processing doctor, or the unit, to not divulge the symptoms I was experiencing at discharge.

d) I did not know that my symptoms, at the time, would develop into this severe a condition or I would have said something.

e) Any other reasons that might explain why you would not have been expected to tell your out-processing doctor about symptoms of a condition you now think is related to military service.

3) The BVA Judge Cannot Rely on the Lack of Medical Evidence Corroborating an In-Service Injury to Attack Your Credibility…Unless…

There is a good reason to expect that the documentation would be EXPECTED to be there.

This scenario happens a LOT in military sexual trauma claims.

These Veterans – the victims of in-service rape and sexual assault/battery seem to be the victim of more attacks on their credibility by the VA and/or BVA than any other Veterans out there.

Here’s how it happens: the VA or BVA concludes that a Veteran is not credible in their claim that an in-service injury (like a rape or assault) occurred, because there is no medical evidence to corroborate that the injury occurred.

 I saw one VA Ratings Decision where the rater explained how he would have expected to see medical records because rape is such a serious event that he would expect all victims report such crimes.

This is where he’s wrong:  we know – and the CAVC reinforced – the knowledge that  the failure to report Military Sexual Trauma is typical of active duty victims.

To defeat this particular kind of attack on your credibility, refer the VA or BVA (or CAVC) back to the Federal Circuit Court’s holding in AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013), that “[T]he absence of documentation of injury in service cannot be considered evidence the injury did not occur because the failure to report is typical of active duty victims.”

4) The Lack of Post-Service Medical Evidence Cannot Be Used to Support a BVA Judge Credibility Attack.

10 Years ago, in 2006, the Federal Circuit Court of Appeals came down with a ruling that: “The Board may…determine lay statements lack credibility merely because they are not corroborated by contemporaneous medical records.” Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

Because that  10 year old holding  has withstood attack after attack by the VA and BVA, I am surprised whenever I see a decision of the BVA that violates it.

Typically, this will present as a BVA decision where the author finds that because the Veteran did not get medical treatment – or did not produce medical records showing treatment – between discharge from the service and diagnosis of the condition, the Veteran lacks credibility in his or her claims that the condition is related to military service.

Again, the best “remedy” for this outcome is prevention: in your BVA testimony, or in your written record in your C-File, include a statement explaining WHY you did not get medical treatment from discharge to diagnosis.

I’ve seen many different explanations, here are some of the ones that are almost always found to be reasonable (and that the BVA almost always fails to pay attention to):

a) The Veteran could not afford health insurance or a doctor, so he or she never sought treatment

b) The Veteran didn’t realize how severe the condition was, and self-treated with over the counter medications

c) The Veteran did not have access to medical care that would have diagnosed the condition  (most common for incarcerated Veterans trying to restore benefits after they get out of prison).

d) The Veteran talked to a doctor, but cannot remember the doctors’ name or cannot find the doctor’s records.  (Read this post for more on how Lay Evidence can help in the scenario of missing records of prior medical treatment).

There are way more explanations why a Veteran might not seek medical care, but any one of those should merit discussion from the BVA before they can lawfully conclude that you lack credibility.

Want to see a case where a Veteran successfully beat back an adverse credibility determination just like this?

Take a read of the CAVC precedential decision in the  Fountain case(CAVC #13-0540) – it’s a GREAT primer in how to beat back credibility determinations at the CAVC.

5) BVA Judge cannot say you lack credibility because you are a “lay person” giving testimony about  medical symptoms and medical chronology.

When I see this type of decision from the VA or BVA, I know we have 1 of 2 things: we either have a rater or judge hell-bent on denying benefits, or a rater or judge who simply doesn’t understand the finer nuances of the law

Seriously – don’t mean to be harsh, but this type of credibility determination shows a real misapplication of the law.

Here’s what I mean.

If a BVA judge, or a VA Rater, says that you lack credibility to provide the symptoms and chronology of your symptoms, treatment, or medical condition because you are a lay person, this is what they are really saying:  

You are not credible to provide chronology of symptomatology or treatment because you lack medical competence to diagnose that condition. 

Do you see the logical pretzel here?

Would any person think that a driver lacks credibility to tell the mechanic the symptoms of their car trouble because they are not a mechanic?

No.

Would any person think that a witness to a crime lacks credibility to tell the police what they saw because they are not an expert in how people act?

No.

Same here: Veterans are ALWAYS competent to testify as to the history of their symptoms, treatment (or lack of treatment), and/or past diagnoses….whether they are a Medical Doctor or merely a Gangster of Love.    That’s pretty much unassailable law.  

The only reason that their otherwise COMPETENT testimony can be found to lack credibility is if there is a problem with perception, integrity, or bias.

Which takes us to the sixth way to beat back a BVA Finding that you lack credibility….

6) BVA Judge Cannot Discredit your Testimony Based On a Financial Interest in Winning.

I don’t see this decision very often, but it rears its ugly head every once in a while.

Some VA Rater or BVA judge decides that because you have “Bias” in your case – you have a financial interest in winning – you are not credible because you will say anything to win.

Bottom line – this is a violation of an old rule:

The CAVC held, in the Cartright case in 1991, that although interest “may” affect the credibility of testimony, the Board may not disregard a Veteran’s testimony because he is an interested party in the case. Cartright v. Derwinski, 2 Vet. App 24, 25 (1991).

Yes, you have a financial interest in winning your VA Claim.

So does EVERY Veteran.

And frankly, the BVA (who is the Secretary’s representative AND adjudicator) has a financial interest in NOT granting you benefits.

But you cannot lack credibility on those grounds unless you have made an inconsistent statement that would suggest you are trying to manipulate that financial interest.

And if that is the case, then  the Board needs to have a clear explanation for this finding that includes:

  1. Identification of your inconsistent statements
  2. Showing that they are inconsistent and why
  3. Confronting you with those inconsistent statements and giving you an opportunity to explain the apparent inconsistency (this is a Constitutional Due Process issue)
  4. Explaining why those inconsistent statements, unexplained by you, suggest that you are motivated by a financial interest in the outcome.

That’s a high-bar to clear, and if the BVA does NOT do that in YOUR BVA Decision, you should reach out to an attorney with a track record of going after the BVA for Constitutional Due Process issues in VA Claims and Appeals.

Bottom Line: If the BVA Attacks Your Credibility, Consider Fighting Back

Before a BVA Judge can say you lack credibility, the BVA Judge is required to provide a legal foundation for credibility attacks on Veterans and Survivors filing BVA Appeals.

The BVA often misses the mark and fails to lay out the proper foundation – leaving Veterans with a feeling that the VA or the BVA is calling them a liar, imputing their honor and integrity, and not giving them a “fair shake” in their VA Claims and Appeals.

If that should happen, you have more power than you think – consider fighting back with an appeal to the Court of Appeals for Veterans Claims (CAVC).

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