Personal Experience

I’ve been in this business for over 42 years. I’ve never heard the term “deliberative process privilege.” It’s never come up, but here’s what I am aware of: there’s a term similar to that called “work process.” Typically, an attorney might make some notes for himself to review and develop a picture of the case he’s working with. That becomes the attorney’s work process, which is not subject to disclosure because it’s just the attorney’s thoughts at the time, and he’s entitled to keep his thoughts to himself.

Military Documents and FOIA Exemptions

That sounds similar to the phrase you’re using, but it does not apply to actual military documents, treatment records, or personnel records. Those are not work process and are not privileged. Those are treatment records, and they belong to you. No one can deny that.

Caller: Well, they won’t give them to me. Let me quote what they’re using as the term. It’s called the “deliberative process privilege” under FOIA Exemption 5 (5 USC 552(B)(5)). It says, “We are withholding all information which, if disclosed, would fall under the deliberative process privilege under FOIA Exemption 5 and those numbers I gave you, 552 or USC 552(B)(5).”

Host: Have you sought any assistance from Congress?

Caller: Yes, I contacted my senator, but she couldn’t do anything. Her office nailed me in either.

Dr. Bash: Sometimes you can reproduce your records. If a doctor tells you a diagnosis during service, especially during combat, that can be used to replace missing records. Did a doctor tell you what your diagnosis was during service?

Caller: If I had the diagnosis from the service on record, I wouldn’t need them. Sometimes the doctor might tell you verbally during a clinic visit. Do you remember anything like that?

Host: What Dr. Bash is referring to is 38 USC 1154(B). If you incur a disability during combat while engaged with the enemy, your sworn statement is sufficient proof that it was incurred in service. Whether what you incurred in service is related to what you have today is a medical question for a medical examiner to determine.

Caller: I can’t just say, “Hey, I was wounded in combat.” They want something from the government saying that this took place.

Host: You are protected in that circumstance. Your sworn statement is sufficient proof of service incurrence. If you now have evidence that shows you were treated for an illness in Vietnam and were hospitalized, we can proceed from there.

Caller: I finally did get my service records from Vietnam, but it was 45 years too late. If I had something other than my DD214 showing my service in Vietnam and medals, I could move forward.

Host: If you now have evidence that you were treated for an illness in Vietnam, the next step is obtaining a medical opinion linking the current diagnosis to your service.

Caller: It’s called a systemic blood infection with undetermined organisms. I don’t know what an unrecognized organism is, but they wouldn’t give me the necessary care.

Dr. Bash: It just means that it’s an infection, but they don’t know the specific bug. The exact organism doesn’t have to be identified; it just has to be in the medical opinion that it was the likely cause.

Caller: I’ve developed an enlarged painful prostate at 19, along with other conditions.

Dr. Bash: Those infections can be difficult to identify. You might have enough evidence now to move forward with a good medical opinion, even without those last bits of your record.

Host: In the interim, I looked up 38 USC 552(B)(5). This does not apply to your service records. You are not asking for inter-agency or intra-agency memorandums or letters, and your records were created more than 25 years ago. This section does not apply.

Caller: Why would they still withhold my records 45-47 years later when the whole world knows about Agent Orange?

Host: This section was created to allow agents of the government to freely discuss things in memorandums or letters without fear of disclosure. That’s not what you’re asking for at all.

Caller: I guess I need an attorney to file a proceeding to get my records.

Host: Yes, that’s what it might come down to.

Caller: I’m using VFW and before that DAV, but I caught them lying to me. I had to refile my claim because they trashed it. Now, I’m 67, and this happened when I was 19. It’s been a long time, and I finally got service connected within the last couple of years because they withheld my records.

Dr. Bash: You need some Heavy Hitters, my friend.

Caller: Yes, I guess I need a group of attorneys to speak up for me. I don’t want to tie anything up, but I think I know where I stand. Thank you for your time.

Host: Thank you for calling in. Dr. Bash, do you want to give your contact number?

Dr. Bash: Yes, you can reach me at DrBash.com or call Skip for scheduling at 925-381-7561.

Caller: Thank you very much. I’ll be in contact.

Host: Thank you for your call.

Discussion on “Malingering” and Other Terms

Host: Bill, I have a question for you. I came across the term “malingering” while reading some materials. Are you familiar with that term?

Bill: Sure, malingering means faking symptoms to gain benefits or avoid duty.

Host: I’ve seen that the VA might use “undiagnosable” as a term similar to malingering.

Bill: Undiagnosable means they know something’s wrong but can’t diagnose it. It’s different from malingering, which is intentional faking.

Host: Congress has protected Persian Gulf vets by allowing compensation for undiagnosed illnesses.

Bill: Yes, in my experience, pain was defined by VA as not a disability for most of history.