GROUNDHOG DAY 2023–6 MORE WEEKS UNTIL THE RD

Wow. Groundhog Day already. Shut the front door. If I were five years old, I’d of figured a year had transpired already. At almost 72, it feels more like New Year’s was a week ago. I had a kickass Higher Level Review  with a nurse as the reviewer this AM. It was a situation I never ever thought I would have to fight for. Imagine you have a brand spanking new BVA decision granting you your long fought (2019) Hep C with residuals and F4 Metavir cirrhosis. You’re expecting ratings commensurate with the level of your debility. And then some goombah rater hands you a 0% for the hep and denies the cirrhosis the BVA just gave you. Welcome to the new, improved AMA circus merry-go-round. We used to call it the Hamster wheel. 

 Chuck is a Vet who did Army until he realized it was more comfortable to fly than march. He transferred to the Air Force and finished out his 20 as a light colonel. Wise man, he.  Unfortunately, he’d picked up the hepatitis from jet guns or dental work along the way. Doesn’t take much in a herd setting like the military. Remember them jars of blue juice in front of the barber’s mirror they put the straight razors in? How about that skanky old leather strop hanging off the side of the chair? In spite of the obvious, VA wasn’t having any of this hooey and denied. I don’t know how you’d get hep anywhere else but in the military if you spent most of you life in it. VA felt he might be less pure than the driven snow and somewhere in the time right after retirement, began the cherchez la femme noire or snorting the white lady. The aspersions were subtle but firm. Ewwwwww, Chuck. You have a ‘dirty’ disease.

That’s when he came to me and asked for the secret password and the Caluza handshake. I scooped the entire file and shipped it off to my IMO outfit. I filed at the local Fort Fugetaboutit a month or so later. They flat out blew it off as useless and denied again. Because it the dawning of the Age of AMA, I filed the NOD and let the BVA VLJ’s common sense prevail.  It paid to get it in front a knowledgeable Judge as long as s/he was pro-Veteran. And we sat back to wait. And wait. etc. And then the pandemic hit. And more waiting.

Chuck says while he was at the VAMC on Valentine’s Day 2022 , he sashayed over to the DAV table and asked the Bozo a few questions about the new PACT act and what the parameters were going to be. Mr. DAV was more than obliging and said sign here and I’ll give you the briefing. Chuck asked if it was kosher to have two POAs going at the same time and Mr. DAV assured him it was legit. Boom. POA cleanup on Aisle 5.   I knew I was missing a client but couldn’t find him because it takes a lot of time to find out which guy is AWOL.

So Chuck calls up around Father’s Day and said what the hey? Weren’t you gonna call me and tell me we won? He was flatass speechless that DAV purposely would lie and pull a stunt like that. I’m not. I’ve read of a NSO that argued to reduce a Veteran with a rater in a DRO hearing transcript. And he had the balls to do it with the Vet right there in the room sitting beside him no less.

redact HCV BVA win

Redact RD 6.1.2022

So anyway, Mr. DAV whips up a four-page Appellant’s brief  right before the decision without even discussing this with Chuck. Remember, I already had mine in for a year by now. Shucks. Chuck thought they were working the future PACT burn pit gig for his sinusitis. Hey. VSOs are what they are. They suffer from too little training and two huge egos each. Their mother organizations refuse to give them too much info like SMC and concepts like CUE. Never heard of it. §3.156(c)? No such thing. The game ends at 100%. Trust me. I do this for a living. Go home.

Having access to the system, I can see the BVA decision hit CASEFLOW at exactly at 14:18:16 Eastern on May 31st. The completed rating decision was uploaded at 08:23:49 Local (Pacific) here at the DROC in Seattle. 0% for hep confirmed and continued. Cirrhosis denied. DM2 denied. Gall bladder removal denied. The teaching moment when you read it is the deadpan giveaway. “He didn’t have cirrhosis in service and has no history of it until after service so it can’t be service connected. The VA c&p clinician held that it was less likely as not you’d  get cirrhosis from hep c if you’re cured. Thank you for your service.” Better than that, the RD says boy howdy did we stay up all last night reviewing your records in order to be able to share your brand new rating with you bright and early this morning.

Not to be outfoxed, I had Chuck round up every private medical record he had since we’d filed the appeal. I submitted them all with a supplemental figuring that would clear the air. I even went into the tool box in Adobe 9 pro and used the call-out boxes with arrows and pointed to words  like “cirrhosis, gastritis, hepatic encephalopathy, malaise, arthralgias, nausea and vomiting”. Once again, I drew a zilch. My final legal gasp when dealing with mental Lilliputians is one last stab at finding competence in a field of stultifying gomers. I decided to try a HLR before setting sail for Washington D.C. At least I could honestly tell a VLJ I tried to reason with these shit-for-brains below at the puzzle palace.

Redact RD 11.10.2022 RD

I quickly filed the 996 to get it over with and sure enough-about that time the HLR instant Informal conference program ended. Used to be, you filed the 996 and the phone rang about an hour later with a reviewer asking you if you were ready to rock and roll. Now, all of a sudden, you file  for it on line at scheduleconference@vadotcom and get crickets. I filed 11/15/2022 and finally got in today. The St. Petersburg DROC may have been eager to put this to bed. Maybe they thought they were still dealing with the DAV chowderhead. I dumpster-dived that VBMS all day yesterday and pulled up all kinds of rich quotes. I had four pages worth including the actual regs to quote from. The gibberish from Nursey Nurse Ashley the VES booth bitch was priceless. She tried to sound like a Nobel Prize winner. Even better, the BVA judge had discounted VA’s two prior c&ps exams for being bogus and used my hired gun’s. The RD they were trying to pawn off on us now, in 2022, still relied on the bogus opinions in the evidence section like they were gospel. Sorry Charlie.

The icing on the cake was that my Reviewer this morning was a bonafide Nurse. She didn’t say which (APRN/PA etc). but at least she understood the concept that you didn’t need an acute case of Hepatitis C to qualify for the residuals. That’s the problem now. These c&p factories of QTC/VES/LHI/Optum teach their own folks how to do this. They’re using VA’s manuals They’re indoctrinating them in certain incorrect beliefs such as once you cure the Hep, you’re good to go… like the flu or a cold.

redact HLR 2.01.2023

All in all, it was a good Groundhog Day. Another Vet is saved from the machinations of the evil VA Goliath. Now, wait for the merry-go-round to fire up all over. Murphy’s law posits if it can get more screwed up than this…. it will. Honestly, herding cats might be easier.

 For some reason, VA has begun denying IMOs written by Board certified surgeons using nurse practitioners barely dry behind the ears. Their rationale borders on the incredible and they aren’t above citing to Wikipedia. I had one recently where an optometrist called bullshit on a noted ophthalmological surgeon 30 years his senior. Yep. The VLJ cut him in half and decided in my client’s favor. But this just begs the question of how we arrived here. Riddle me this. Since when does VA get a bye on medical opinion superiority? I could see a pissing match between two neurologists and in fact just went through that. But why?

The whole VA justice system is tilted ever so slightly in the Veteran’s favor-or was. The benefit of the doubt is a powerful tool but it only kicks in at the end when all the goodies are stacked up on the justice scale. If everything is in approximate equipoise then you win.  If your doctor disagrees with VA’s doctor, then it’s a tie and you win. Since the advent of the new Administration, that rule seems to have been turned topsy turvy. You can’t win fairly on a big claim-especially one with a big retro- at the local fun house. It’s almost guaranteed these days you’ll be sitting on the Group W waiting bench with Arlo and the gang for a lot longer than they promised us when they sold us this new system.

Posted in HCV Risks (documented), Higher Level of Review (HLR), IMOs/IMEs, Tips and Tricks, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , , , | 5 Comments

CUE TRAINING FOR DUMMIES

Here’s a Powerpoint presentation for VA employees I received from an Agent I helped get her wings. Imagine that. In one session which they claim will only consume three (3) hours, they propose to make you a VA Jedi Knight and capable of spotting CUE from afar. Ruh-oh, Rorge, as George Jetson’s Astro used to say. Page three makes the mistake of confining the error to strictly one of law and ignores the second tine of the CUE fork inasmuch as it could also be because the chowderheads fixated on the annotated STRs and failed to discern a factual error-e.g., one where the rater forgot to look at a DD 214 or the personnel folder and spot the Purple Heart or the Combat Infantryman’s Badge. This, of course would have required giving the Vet the combat presumption under 38 USC §1154(B)/ 38 CFR §3.304(d). Bingo. Denied. Next?

Here’s the VA version of CUE for Dummies.

CUE PPT

And here’s the first error in the lesson…

page 3

A finding, as mentioned above, is not negotiable. If it’s a finding of fact about the evidence that is in error, it’s CUE. If it’s a finding of fact about the application of the regulation that cited to the wrong legal standard, it’s CUE. Once that determination is made either way, the second phase kicks in-did it manifestly change the outcome to the detriment of the Veteran? VA likes to rehabilitate these old CUEs by fixing it in 2022 and giving you a 0%  back to 1970. But, using the above Powerpoint metric, any error surrounding the evidence of record wouldn’t be CUE-just an error in applying the law. Words have meaning.

§3.104(a) sums it up best:

(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans’ Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.

So, here’s a case study for you Sherlock Holmes CUE hunters.

First, the Rating decision of 2015. Look at the evidence section. Do you see any mention of a May 2011 diagnosis by a neurologist that the Vet has TBI? Negatory. Right off, you know the evidence, as it was known in 2015, was not before the adjudicator. That’s CUE #1. The evidence section also mentions receipt of an Iraqistan “I was there” medal. But this finding notably misses the Combat Action Badge and two (2) awards of the Army Commendation Medal-proof of combat. That’s CUE #2. But do note they attempt to re-diagnose Mikey right out of a dx of TBI as if he’d somehow pulled the wool over Dr. McPeak back in 2011. Note also that this new c&p was done with a records review only. Dr. McPeak sat down with this guy for 50 minutes. Dr. Wyatt wouldn’t know this guy from Adam’s asshole if she met him on the street. So, refer back to §3.104(d) above. You can’t just announce your IMO is mo’ better than his first one. It doesn’t work that way. If that were true, an autopsy report would be useless. VA could just go get their own opinion and say the coroner was smoking crack while he did the autopsy. At some point you have to call bullshit on this tomfoolery.

redact CUE

I did my usual dumpster dive into Mikey’s records and right off spotted his first interaction with the VA at the local VAMC. He went to them because he was f-u-u-u———–ked up mentally. A VA doctor-and not a QTC rentadoc employee- opined in May 2011 that my boy had mild TBI which would be rated at 10% but neglected to do anything more than prescribe some headache medicine, two attaboys and pat him on the back. In a real world situation, they should have told him to march smartly down to the VARO and put in his claim for TBI. Welcome to the unreal world of VA medicine.

Fast forward through the procrastination period men always go through and it explains why Mikey finally filed in May 2014. I’m not making fun of him. I procrastinated from 1973 to 1989 and Cupcake finally ragged on me loudly enough to get me off my ass and file for my back. And then the Agent Orange shit hit in ’94. And finally, my Hep C took me out in ’06. Cupcake summed up that period of my claims existence as “Vets are alive in spite of themselves.” She didn’t even make it a personal statement about me. You’ll note I’m still married, too. So I have that going for me.

But read the explanation on page 3 of the rating decision above. Right off, they say Sorry, Mikey but you have no dx of hamburger brain. The sirens should have gone off in Mikey’s head but he trusted his VSO to be his sword bearer. Baaaaad idea. The rater went on and decided to totally ignore §3.104(d) and throw out a finding of fact as being bogus. Nothing was said about his combat medals.

“While it was noted in your post-service medical records that you were historically diagnosed with a mild TBI/concussion by Dr. Lisa McPeak in May of 2011, your more recent QTC TBI c&p found no basis for a dx. Additionally, your service txment records do not contain complaints, txment, or diagnosis for this condition. Therefore, SC for this condition is denied.” This is against the law in 50 states.

Again, all you aspiring VA do-it-yourself lawdogs should be reminded there are three ways you can get SC. 1) On a direct basis because your STRs show it; 2) on a secondary basis caused by another disease (example would be getting Hep C from a jetgun); or, 3) on a presumptive basis such as a Vietnam Vet  getting automatic SC for Agent Orange diseases listed in §3.309(e). Here, the rater merely  discussed SC on a direct basis instead of  examining all possibilities.  Always look at their legal standard of review. More often than not, they only look at the direct path. That’s a major reason why 74% of their ratings are CUE.

So, the denial in 2015 festered for seven years. I refiled for TBI and sent them a copy of Dr. McPeak’s old dx supporting the TBI. It caught air and some honest rater said “Holy Shit, Batman. Lookie here”. They sent him out for a brand new, in-the flesh c&p at bayonet distance and the new QTC APRN or whoever said Roger that. You have mild TBI and here’s your 10% but only effective back to last August when you filed to reopen.

What the hey you’re saying, right? Why didn’t I go full on and begin a long, drawn out fight for an earlier effective date? Shoot. That would be a waste of time. Fight the first battle and get the SC for it. Then dig the pit.  Read this filing below for CUE. I learned fifty years or more ago the value of a well-laid out ambush. First off, note that this time they had to acknowledge the 2011 dx of TBI. And, just to CYA, they sent him out to get a new c&p for the hamburgered brain box.

Think about the phenomenon of the “Blue Wall” of police. They tend to avoid jamming up their fellow officers. Good deal. We didn’t sell our fellow soldiers down the river when we served. It was all for one and one for all. Similarly, doctors tend to subscribe to the White Wall of medicine. If  you get a private shrink who says you’re bugf**ky  after a rote VA denial, a new c&p will inevitably agree with your shrink. Ditto for a medical IMO for something like TBI. I depend on it in this business. It’s the whole foundation upon which we build using IMOs to win. It’s the primary reason VA denies all the time- right up until you get your own opinion. Your chance of getting a fair shake at the VA is zilch if you folks hadn’t noticed. Praying that VA will give you a truly unbiased c&p and you’ll win is like praying that Santa will come down the chimney with that shiny new Maserati. No way, José.

I don’t fault Vets for being disgusted and walking away after a denial. I did. Twice. Jez, don’t feel pregnant and alone. We were altruistic and most enlisted out of a patriotic fervor. To have VA treat you like trailer park trash hurts when you come home. If you never learned how to fight, you’d probably lose a few teeth and have about 30 fat lips before you wised up and learned to clock the guy before he even made a fist. That’s the technique I finally came across after 30 years of this. Never never never go on the defensive.

So, I built my little punji pit with the 2011 evidence knowing someone was going to see it and cave in. They did. Read the below on page 2 and see how they very carefully granted and at the same time, adroitly segued sideways and did a soft shoe routine around the 2011 error without mentioning it or the combat presumption at all. This is another thing you, as pro se Vets, need to focus on. Any time you see a rater’s fingers typing, you can be sure half or more of what s/he’s writing is pure hooey. If (they, them, their) give you 10% at all, it means you’re probably entitled to 30%. Or more.

redact RD TBI 12.28.2022

So. How do asshole VA agents like me go after them on this? Well, as you see above, the punji pit is the first step. Let them walk right in and get impaled with a decision they can’t wiggle out of. Remember, they think we’re all dumber than a bag of amoebas. Let them keep on thinking that. Then drop that CUE nickel on them using their own evidence. Right off, you know they know they stepped on their necktie back in 2015. Thus, you hunt for every sentence, every phrase and every damning medical fact and every regulation that will support your CUE claim. You want this to look like a huge tsunami of irrefutable evidence that could only have one explanation-your version.

Now, personally, having never been taught how to write a legal brief, I tend to bogart stuff from the CAVC and the BVA to cite to say what I mean. Here below is the way I chose to go after them for this one. Granted, it’s only about $25 K worth of retro but that can be like a Make-a-Wish™ grant for a needy Vet who’s scraping to get by. Anyway, I get out my book of favorite Court cites and pile on. I know some will say brevity in legal briefs is desirable. I don’t buy it. I subscribe to the avalanche method of burying them in guilt for what they’ve done. You’ll note the way I take it down to a personal level and use phrases such as “The Secretary ignored the evidence of record and….” Humanize your Vet. Make this look like a personalized David and Goliath mismatch between you and Denis the Menace and you aim to settle the score. Throw some Latin in there to fluff it up.

redact CUE filed 1.16.2023

One thing I’ve discovered in this CUE game is to carefully read requests for c&ps. Examine what the rater who requested it is saying. What is he asking the clinician to do? When you see the note they put in on Mikey’s request (page 4-5), you know they’re pissing on the fire and calling in the dogs.  It actually says in as many words, “Write it this way.” Conversely, I’ve noticed c&p requests that pretty much hand the hangman’s rope to the clinician before the pencils are sharpened.

Lastly, and I know you pro se folks don’t have access to VBMS, I like to put in the VBMS address for the poor raters so they can find it in this lifetime. It’s just a professional courtesy but when you file a direct review at the BVA, you are not allowed to submit any new evidence. So… since all this is already in the efolder (cfile), you aren’t “adding” to the record- just annotating for the VLJ where to find it. If a pro se Vet has his cfile on a CD, he can simply refer to the cfile document construction date from the Records Management Center and point out the page the damning evidence is on.

I also have a huge (22 point font) ink stamp with “Duplicate in VBMS”  I use to send in “relevant ” evidence which is already in the file. I’ve been warned not to send in duplicates but think about it. Every time they promulgate a rating decision, they also put in the standard flyers telling you how to appeal if you’re dissatisfied. Most of my Vets have a gazillion of them in their folder so who’s the fool, fool?

I’ll report back when they cut the decision. Honestly, this is more fun than fishing with 40% DuPont stump dynamite. VA should never have told me I never served in Vietnam in ’94. Talk about pissing a body off. And they don’t hand out combat medals for heroic actions above and beyond the call of duty while peeling potatoes on KP duty.

Posted in CUE, Earlier Effective dates, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

BVA–CURRENT STATISTICS ON APPEALS

Hold on to your hats. If you believe the attached BVA report, I have some Pacific Ocean Beachfront property I want to sell you in Arizona. The sand’s already in place. Just as soon as California has that Mother of all Bomb cyclone quakes, you’re gonna be in Fat City. Get  in while you can. These prices are not going to last forever.

Anyway, the attached just came out on our inward-facing “FacePlace™” at NOVA. It’ll roll your socks down. Whatever have they been doing down at 425 I Ave NW this last year? They actually got more done with fewer VLJs in 2020 than 2021. 2022 is going to be even worse. Quick. Somebody bang the gong on this.

Board Updates VSO Quarterly_FY23_Q2

Take a good gander at the remanded chart on Page 9. That is very damning. The BVA has continued to make a joke of the new AMA by just shoveling these back to the AOJ for the most rudimentary of remand reasons. Duty to Assist is most frequently mentioned but some are granted and sent back for ratings. Those all just result in auto-0% ratings with no c&p exams. Johnny Vet has to essentially begin all over on the Hamster wheel asking for a higher initial rating. When they grant, they disremember the effective date should be date of claim. I’ve seen Three-card Monte games that appeared more honest. It makes my eyes water to read it.

Pissed I am. Yesssssssssssssssssssssssssssssssssssss.

Posted in BvA Decisions | Tagged , , , , , , , , , | 2 Comments

FRIDAY THE THIRTEENTH– A MEMORABLE DAY IN VA HELL

The weathermen (not the famed Chicago ones) hereabouts insist we’re having wild and wooly wx events I’ve never heard of in all my almost 72 years. Bomb Cyclone events. Snowmageddons. Atmospheric “rivers”. Sounds like these folks don’t get out much. I’m wondering what they’d call Monsoon on the Indochinese Peninsula. I’ve seen it rain so hard the wipers on my M 151 Jeep were useless. We stuck our heads out from around the windshield to see-sort of. If we got too close to the ditch on the right side, someone would yell. I could see the port side. Rain that soaked you through in 3 seconds. That’s why we put our government -issue rubbers over the barrels of our rifles. Wasn’t like we were gonna get any action where we were without ending up as the groom at a black powder shotgun marriage to a Hmong maiden. No lookee. No touchee.

Which, of course has nothing to do with Friday the 13th but I do look forward to some new action nouns strapped on to eeevil intensifiers soon. How about a bomb river? Or a cyclomageddon? Shit. The possible combinations are absolutely endless.

Today, regardless of whether VA chose it or the VBMS merely pulled this out the 499 Bingo hopper and randomly kited it over to VBA 344 (Los Angeles), my very patient gal Veteran finally got her longstanding claims adjudicated. What’s more, we managed to do in in under four years and without going to the BVA to win it.

Tabitha (not her real name) speared me when I approached the counter at the local USPS down in Key Center back in September of 2019. She worked there and I’d already done the Post Mistress’ husband’s claim several months earlier. Jez, I hope no one is going to show up and transwoke me for saying Post Mistress. No trans-evil intended. That’s what Dee-Dee called herself. I always subscribed to the Army motto- Be all You Can Be. Anyway, Tabitha was a Vet- get this- a genuine 31B10 MP. Eight years worth of chasing down AWOL and drunk SMs. She wasn’t any wimp either. She had two ARCOMS and a CAB so she’s not your run of the mill REMF in khakis.

By 2019, all that glow of combat got up and went and she was hurting.  Funny thing is she came down with the asthma/burn pit shit big time and separated with a 30% head start over all the rest of the §1119 PACT Act folks. She also caught a case of bent brain and a shit ton of musculoskeletal disabilities from her MP work.  We’ll forego talking about that and fast forward to 2019.

A Loach coach with a G.E. 7.62 x 51 mini-gun. Sweet.

Basically, nothing happened. Crickets. I got the POA and did a records review and there wasn’t much to complain about. She had a couple of 30%s and a whopping 13 musculoskeletal Zeros for Heroes ratings. She said she didn’t really think her PTSD rating was too low. Then she moved back east just before the Pandemic and I honestly thought she was out of the picture. And then along came Corona, a lot of depression and dead relatives. Tabitha, however, worked for the USPS and she didn’t get to isolate. She went to work because the Post office never stops.

We all know what happens to the achy back or the ankle you rolled over on when you jumped out of the MRAP and landed on a bunch of shell casings. It was like ball bearings. Lather, rinse and season for 8 more years and voilà- time to file for an increase. Of all things, her back crapped out first and required surgery in late fall 2021. She called me when she got out of the VAMC. I filed her for that and all the big ticket problems back in January of 2022 while she was still laid up after surgery. Unsurprisingly, VA wasn’t in much of a giving mood. They coughed up a 10% bone for the back post-surgery and wouldn’t budge on the PTSD or the Headaches.  I had to contact my secret weapon. Elaine is always ready to fight VA. She hates them far more than I do if that’s even possible. She used to work for them up until 25 years ago until she couldn’t bear it any more. That’s when she set up shop and began fixing Vets instead of bullshitting them and lying for VA.

Hey, there’s a time for bullshitting. When your friend is lying there asking for a smoke, you light one up for him. You gently stuff his intestines back in as best you can and sprinkle Sulfa powder all over the mess.  You pull the poncho back up to hide it. You tell him the Dustoff is five minutes out and sit there and hold his hand. You talk about getting back to the World soon and how you’re FIGMO. Several minutes later, you put out his cigarette and pull the poncho up over him. To me, that’s the only time lying is permitted.

With IMO funds in short supply, I had to make a choice of which battle I wanted to fight- the headaches or the PTSD. We decided to go for PTSD because DC 8100 headaches maxes out at 50%. I called Elaine and fired up the IMO machine. I love the new world of Zoom. I merely wave my faery wand and a psychologist magically “connects” in the electronic universe with my disabled Vet. VA hates it but then they’re the very ones who inaugurated this “telemedicine” crap. Pretty hard for Mr. VA Pot to call Mr. Vet Kettle black. Ooops. Sorry. Sorry.  I meant call poor Mr. Kettle an unwanted, marginalized minority.

Today, I opened VBMS and what did my wondering eyes behold? Why, Tabitha’s rating decision which has been sitting in the VA’s EP 499 purgatory since 10/09/2022. It took them 96 days from the day it was declared ready for decision (RFD) to grant. That’s just no fair. No Vet should have to wait that long for a rater to get off they, their, theirs bonus-calloused derriere and do this. By rights, they ought to have a “Rocket Docket” lane as they did up at the BVA back in the good old cowboy days of Laura Eskinazi. If the claim is “done” (granted or denied) what’s the point of delaying the outcome? I’ve often wondered what Laura’s nickname was in the cloistered corners of  the Chester A. Arthur Building at 425 “I” Street NW over near Judiciary Square. Just philosophizing.   I hear there are a lot of skeletons judicially buried on the upper floors there.

Once upon a time, they swore to us that they would speed this process up so fast it was going to make our heads spin. The only holdup was they just needed more money for computers and warm bodies in order to digitize it all. 10 gazillion more employees later and untold billions spent on VBMS… and it took 323 days and two rating decisions -including a private IMO that flat-ass contradicted the cock and bull story from VA’s version of an unbiased psychologist- to accomplish what could have been done in half the time in 1994 without computers. WTF, over?

Whatever did we do to deserve this shoddy treatment? To add injury to insult, they sent my Tabitha out for yet anotherc&p just to make sure my private psych wasn’t trying to pull a fast one. Relax. I don’t use physicians on the VA’s sh*tlist. I hope you folks do realize this endless game of just one more c&p trying to get a negative nexus has been against the law for quite some time. —

Undoubtedly, further medical inquiry can be undertaken with a view towards further developing the claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the sole purpose was to obtain evidence against an appellant’s claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).

Anyhow, here’s the meat of it. We now have a 90%er on deck and when she retires, I hope to be the one to file her 8940 for IU. Congratulations Tabitha. I’m sure glad this is over for the moment. Even if the inflation keeps up, this will help to defray the expenses. You earned it ten times over. Thank you for letting me be your shield bearer. I mean that sincerely. One more starfish rescued and saved.

Redacted Friday the 13th

Redact Friday 13th CS

Posted in Food for thought, PTSD, Tips and Tricks, VA Agents, VBMS, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

EXPOSED VET RADIO SHOW–AFTER THE DEAR JOHN LETTER

Jerrel and John have invited me to their Thursday evening soirée. Cool beans. The subject will be about the aftermath of the denial of your claims. You just got the wave off and the depression has begun to kick in. Been there and done that-only it was 33 years ago in 1989, then another wave of despair in ’94. Ditto 2006 and lastly in 2011 when I lost at the BVA for the second time. Thank goodness for the CAVC and heavy hand of truly independent federal justice. But, with the inception of the new AMA, going up to the Big House at 625 Native Americana Ave. NW in Judiciary Square is not always the best path anymore- or even necessary- for that matter. 

We’ll talk about that new phenomenon and a few other things you padawans need to know to be agile Jedi Knights. VA Light sabers are neatsy keen but if you don’t know how to wield one-let alone build it, it’s dead weight.

So, what happens when they give you the Bum’s rush? Unlike the majority of agents and attorneys out there, I’m lucky enough to have taken the idiot, woke course on VBMS etiquette. This grants us access to just about everything there is to know about our clients. Better yet, we get to read those private notes that raters insert that reveals this is nothing more than an M 21-programmed denial factory.

 

Most Veterans are unaware that, on average, only 12% of live, actionable compensation claims- to be distinguished from dependency claims, DIC claims or VRE stuff- are actually granted on the first outing. VA “tests” you to see how savvy you are and also to see if you’ll just piss on the fire and call in the dogs. You’d be surprised at how many of you explode with the standard “How in the f— could they come up with that shit? This game is Catch 22-rigged. I give up.” That’s exactly what they want and count on. Fully 75% of all claims filed have merit statistically. But if you give up, VA gets to brag by saying their claims accuracy rate is 98% and the hard numbers prove it. Well, they do.

There is much discussion these days about the animosity between VSOs and the attorney/agent faction. VSOs foolishly say “Why pay? We do it for free.” Attorneys and this agent might say ” Yeah. But we win.” As with most disagreements, there’s truth and fiction to be had but a shit ton of truth exists on both sides. What’s true is VSOs do it for free. Anything free usually has some quality control strings attached. If your claim is shit simple, Homer Simpson’s monkey Mojo could win it for you. If you lose, you need to take stock of your position and figure out why. If you appeal and keep losing on- say, Obstructive Sleep Apnea secondary to PTSD- then you need to examine why you’re doing the déjà vu insanity imitation. You know. If you keep doing the same thing over and over expecting a different result, that’s the definition of insanity.

So, don’t lose heart. Everything I’ve ever done in life generally has a set of instructions and also the real-world reality of the necessity to have a Plan B. Like when they disremember the FRAG Order for air support and you have to depend on artillery?  Plan B, in this case, is considering the possibility that you need to read up on why you keep augering in or decide on whether you need to hire somebody a couple notches higher than a VSO to be your Sherpa. Don’t get me wrong. The last thing I need is more business or clients. This is general advice.

Dang near everybody that shows up at my front door has played the VA’s three-card Monte game enough times to recognize something’s amiss. What the hey? What took you so long? Any game in town handing out Backsheesh to all who can type up a 526 and push send is going to have more fine print than you can read with a magnifying glass. It’s also going to look like Black Friday at Best Buy if VA doesn’t show they deny frequently. Don’t be surprised when you hit a dry hole and for goodness sake, don’t take it personally.

If you’re an FNG, you probably ought to do some reading over at the Face Place page called Veterans Claims Assistance Group. Ask some questions. Do your due diligence. Get off your derriere and be a proactive participant. Handing it off to a VSO who has no legal training is a beginner’s option. When it’s late in the 10th inning and you’re down by 6 runs, it’s piss poor technique to start asking what’s next or try to saddle someone else with your dilemma. Procrastination is prohibitively costly in this game.

Worse, until the VA OIG and the Dept. of Justice get off their asses, outfits like VA Claims Insiders and their ilk will continue to hornswoggle naïve Vets into coughing up 50% of their winnings… forever. That’s where hiring an attorney or agent will often be the better option. Now, I’m not saying every one of us (agents/attys) are the sharpest knives in the kitchen drawer.  I just read a horrible decision up at the Court where an agent in DC has an RN or ARNP in his office who will write anything up- like “more likely than less likely due to the Veteran’s alien abduction while on active duty for training”. The jokers work for him. They may have a different telephone number and a different name but it’s all one carnival show under the same tent and when they see your doctor/nexus author just happens to have the same address and suite number, it begins to look a bit sketchy. Just sayin’. By the way, they lost. But then, Shit happens, too.

I won’t mention any other names in the business who write Independent Medical Opinions or promise a win for you. How in Sam Hill can anyone promise guaranteed wins in this game? You can’t. I had a Vet who professed to have clean hands who begged for my help. After I got into his VBMS file, I discovered the second DD 214 awarding the Big Chicken Dinner. I trusted him. In this business, it’s rare to have a mickey claim but it can happen.

Winning isn’t impossible. it’s 99% technique. It’s not the shitty VLJ who screwed you. S/he works from the 38 USC/38 CFR book. It wasn’t a greedy attorney trying to milk you out for 10 years. It wasn’t a lousy VSO with no smarts. It’s the way the system’s built. Heads I win. Tails you lose. You have to carefully examine a defeat. It’s kind of like reading the tea leaves or seeing how the chicken entrails fall out of the abdomen onto the dirt. You gotta read dem bones, Bubba. That or hire someone who can. It’s all there but it’s written in VA gibberish.

I walked the desert of defeat for almost 28 years before I figured it out in ’08. Nowadays, every Tom, Dick and Harry has a book out or a Combat Carl utube™ show that explains it in DIY (do it yourself) language. Some of these former “combat” commentators look like like they couldn’t jump out of bed but that could be said of me, too. Too bad you couldn’t just ask your VSO to watch it and learn from it. But that could also be said for some of us who do this 24/7/365. Just having a guide with a hunting license never guarantees a buck hanging in your garage. I’ve also met some dense attorneys who are convinced they’re God’s gift to Veterans.

I think this show might be a real eye opener for some of you frequent filer/losers. It’s cheap entertainment (free) and I’ll guarantee you’ll learn a few things that will roll your socks down about VA. I was crushed when I discovered VSOs work for VA in about ’06. Crushed. Did I mention I was devastated (just like finding out about Santa Claus and the Tooth Faery thing)?  Didn’t you ever kind of wonder why some of the Big Six (VFW/DAV/AmVets/AmLeg/WWP/VVA) have offices in the VAROs and have the same desks, computers and phones as the VA folks? And  low-grade access to the VBMS? Every VSO has a Congressional Charter extended to them by Uncle Sam. All 146 of them. And every man jack promises to help VA adjudicate your claim so help them God. I shit you not.  Quite the opposite, a VA attorney or Agent is beholden to you-the Vet- not the VA. We have to ask you if it’s okay for us to cave in or stand fast. VSOs don’t. There’s a vast difference. Right off the bat, you ought to realize that’s FUBAR.

With VBMS, I can see why a denial occurs almost instantly in real time. I keep VBMS up on my left screen (out of three) all day while I work like a live tickertape. That’s a week before they sign off on it and another two weeks before you’ll even see the Dear John paper.  I can see the reasoning and logic they employed behind it. I feel sorry that  none of you litigants can get equal access to VBMS so you would have the same advantage I have. But I can and will show you the forensics to enable you to fix these errors when you finally get your hands on them. Better yet, you’ll learn the importance of how to keep your claim alive for years- if necessary- until you can figure out the reason for the denial(s) and the repair order. This preserves your date of entitlement on an original claim and the size of your retro.

I’m not Mensa material but I usually can pick up a RD (rating decision) and what we call the Code sheet, and determine what caused your denial in short order. In virtually every case, Vets get pissed off about the denial and fail to focus on the after-action report. That’s often where you find VA fibbing or misunderstanding their own law. Here’s a common example. You send in evidence and it’s separated from the 526/995 in VBMS when they upload it at the Evidence Intake Center (EIC) P.O. Box 4444 in Cheeseville, Wisconsin. The  actual document submission is dutifully noted as “526 New Claim”. The evidence is immediately separated from the 526 and listed in a separate .pdf as “Third Party Correspondence” in the next VBMS entry. Roughly translated, that means a 3 month delay for an HLR and a new c&p to fix it-but only if you were lucky enough to have VBMS.

Personally, I think that’s on purpose but I’ll never prove it. Regardless, I work around it. I explain it to the Booth Bitch doing the HLR in DickandJanespeak and cite the reg supporting it. I don’t beg. It’s as simple as looking in the “Evidence Section” right after the denial announcement. Nowhere in the four corners of the evidence section will there be any listing for your IMO and the STRs proving your case. Mystery solved. Who woulda thunk it? VA “forgot” to look in your file and “see” it? These are the sharp GS 12 Dick Tracys working claims for VBA. Scary, huh? Makes you seriously wonder what they’re smoking or what kind of drugs VA is putting in the water cooler.

So, with all that said, I hope to solve all the problems of the world come Thursday evening. Because I’m not a parade kind of guy, I’m not going to part the Red Sea again when I come on. Been there. Done that. Boring.  Showtime is 1900 on the East side and 1600 on the Left. The call in telephone number to listen in is

(515) 605-9764

Dial 1 to actually talk to us or ask a question. For the more advanced computer-savvy Vets, go here:

https://www.blogtalkradio.com/jbasser/12185126/connect/100862b34aa01594fa60db9483c31b129670e49a

We hope to see you there. Bring your pronouns if you feel comfortable sharing them. And be warned that there may be some baaaad words used. I spent two years in SEA once and people used mean, ugly, nasty, hateful words. It was worse than having to give up being a prince. I apologize in advance for my/our crude, boorish vocabulary and poor upbringing. John and Jerrel are prone to use expletive deleteds rarely used in polite society so beware.

 

Posted in Exposed Veteran Radio Show, Food for thought, IMOs/IMEs, Independent Medical Opinions, Lawyering Up, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law, VSOs | Tagged , , , , , , , , , , | 3 Comments

THE SANTA CLAUSE- THE MERITS OF DO-IT-YOURSELF LAW

I wanted to talk about this one on the Christmas Eve Exposed Vet radio broadcast a week or more ago but was stymied for lack of time. The story, however desperately bears telling for its heapin’ helpin’ of giving at Christmastime and that warm fuzzy feeling you always get when you make someone’s world a bit brighter. In the Veterans’ world, we represent a miniscule 2 percent of the population but our giving is legendary for those in need. Pour yourself some eggnog, fortified or not, and grab a listen to a story ’bout a gal named Pat… 

This blog subject centers around an article I posted way back in March of 2018. It was a sad story about the nasty effects of Camp Lejeune’s contaminated water. If you wish to read it, it’s here: https://asknod.org/2018/03/22/bva-two-american-kids-growing-up-in-the-heartland/

At the beginning of January 2022, I got an email from a gal, Patricia T. who wanted to help her cousin. Yep. Not her husband but her cousin’s husband. That right there impressed the bejesus out of me. I’ve never seen that level of desire to help so strong. Yoda would probably say something like “The claims force is strong in this one. Yessssss.” As I was booked out to eternity, I offered her encouragement and a referral to another VA attorney as a possible solution. I didn’t hear back until the day before the day before Xmas eve. But boy howdy, what a wonderful email to read at this time of the year.  Howard, the Big Guy upstairs, was working overtime through Miz Patricia, I reckon.

Here ‘s what she first sent way back nigh on a year ago:

Hi Sir

Thank you for posting about Jack and Diane. The first time I read their story, it put a smile on my face for several reasons. I grew up in the heartland, I loved the way you told the story and I love that you beat the BVA and how you did it. When I read your post, I had no idea that one day I might be helping someone fight the same battle.

I will cut to the chase because I know you are a busy man.

My cousin’s husband, LT COL Floyd Henry “Hank” W____, Gulf War vet, served 7 years at Camp Lejeune. During that period, he was deployed on two 5 month med cruises, but other than that, he was at CL from 1977-1984, approximately 2465 days. He drank the water there, never ever took lunch from home, always ate at the base, was a total cleanliness freak, so took, at minimum, one shower a day, most likely two, depending on his activity level.  He never smoked, only drank about one beer a month, light appetite for sweets, had no other habits, no hits to the head, nothing.  He did serve about a month in Kuwait during the Liberation of Kuwait and was exposed to the oil well and trash pit fires. He served March 1976-Oct 1987, got out for less than one month (honorable, not sure why he got out, but technically he got out) back in Nov 1987, retired Aug 1996.

He began losing his hearing while stationed at CL and was giving a 50% disability rating while still active duty. Have no idea if hearing loss could be attributed to chemical exposure from the base water, but I’m sure when they SC it, VA would not have voluntarily used that for nexus.

In 2018 he had his first seizure, was MRI’d, brain tumor detected, removed and typed (Duke), Glioblastoma Multiforme IDH Wildtype. Evidently, IDH Wildtype means there is no specific cause found for the cancer to have occurred. He had never had cancer in any other part of his body, it was not metastatic. Never had any of the viruses associated with glioblastomas. He went on a cancer vaccine trial, lasted one year. As soon as the trial was over, within a month, a new area of glioblastoma occurred above the initial surgical site. He immediately became bedridden, lost the use of his right side, ability to speak, then in less than 2 months, he passed away. His father, a WWII Army vet, passed away from brain cancer, but it was metastatic lung cancer and that is stated in black and white on his death certificate, so Hank’s cancer definitely was not hereditary.

My cousin has little to gain from this pursuit other than some satisfaction and a small amount of DIC.  Unless there’s more money available that I think, but the way I read about DIC, a person just about has to be destitute to get any real DIC money and then it’s still not much.  Hank’s life insurance paid off the house and my cousin has around 190K in savings leftover and it, she doesn’t work, has no other income, other than social security, but I think all that together is enough to reduce any DIC payout to a minimum. So the goal here is not money.

We would both like to see Hank’s glioblastoma ruled SC, first of all, because he deserves for it to be acknowledged by the VA and secondly because it might help pave the way for other vets who are suffering with the same issue. We are thinking the more people who have glioblastoma SC to CLCW, the more it might help lead to glioblastoma being added to the list of presumptive illnesses sometime in the future.

Question: Do you think it would be worth pursuing on our own? Do you think we have a chance? I have a good start on the write up. My cousin will be obtaining Hank’s medical records from 3 different providers, but with the current Omicron surge, that’s going to take a month or so. I was thinking we will submit it and most likely be denied, then would need to appeal.  Evidently, initially, the local VA rep submitted the form for DIC and sent in a request for the glioblastoma to be SC solely because of the length of time Hank was stationed at CL. Of course, VA sent a letter stating more documentation is needed, etc. We will be sending them a request for extension due the Omicron Covid surge currently making the records unable to be obtained. They should give her an extension.

How much does it cost for an IMO?  We were going to see if we could get one of the oncologists from Duke, who worked Hank’s case, to write an opinion, but in your post you said it is better if the expert who write the IMO has never met the subject. The people you use sound good, but if it’s super expensive to go that route, I’m not sure we could do it. Any and all suggestions you may have will be majorly appreciated.  Thank you for your time.

Sincerely,

Patricia T

I gave her the briefing on IMOs and lots of ideas. Her own husband was 100% P&T so she wasn’t any stranger to this process- just the Camp Lejeune quirks of law. And here, on December 21, Patricia reported back the best news a feller could ever hope to read.

Hello Mr Graham ☺️

I just received the best Christmas present ever! My cousin’s husband passing from brain cancer due to exposure to CLCW was approved SC by the VA! My cousin just got the word this morning. She called crying and screaming and laughing all at the same time, overjoyed.

You had a big hand in all that HAPPY! Thank you for your post on HADIT and that one line especially “if I can get a vet SC for glioblastoma for CLCW, and it isn’t on the list, then you folks can do it too”. Your words encouraged me to take it on!

Hours of sifting through research studies, writing a 3 page submission, with 214 pages of research attached did the trick. Also included as a separate page between the two was an 8X10 of Hank’s beautiful smiling face in full uniform.

Lt. Col. Floyd Henry “Hank” W___ (Deceased)

So, thank you, thank you, thank you! I just had to let you know. ❤️

I hope you have a very Merry Christmas!

Pat

I promised Patricia I would write an article about this because similar stories have given others reason to hope they can accomplish these miracles too. Helping Vets, or, on a more familial level, helping your relatives who are Vets, must be one of the highest callings of life. I’ve only had the opportunity to help two relatives and both were via marriage-not blood. Shirttail wins work for me. One thing we can take to the bank is that if Hank is looking down right now, he must have the biggest shit-eaten grin a  Heavenly groundpounder can produce.

Congratulations on a job well done, Patricia. Would you give any consideration to the thought of becoming a VA Agent? It sounds like you have more than enough gumption to do what it takes to be one.

P.S. Sent an email to Patricia asking if it would be possible to publish a picture of Hank. Will include if I get one. Every picture tells a story, don’t it? Done. Attached in living color.

Posted in Camp Lejeune poisoning, DIC, Exposed Veteran Radio Show, Food for the soul, IMOs/IMEs, Independent Medical Opinions, Nexus Information, SC For Cause of Death, Veterans Law | Tagged , , , , , , , , , , | 7 Comments

EXPOSED VET RADIO SHOW THURSDAY 22 DECEMBER

As many blogs as I have written about VA law and the shortest distance between filing and winning, VA nevertheless constantly reinvents the wheel to make it more complicated or just plain onerous. Considering we inhabit what many have called a nonadversarial venue in which to adjudicate our claims, the process   becomes more of a “gottcha” wiith every improvement. I don’t think I need point any further than the correct choice of VA form upon which to file a claim. None of you will ever get the same answer from VA techies if you ask them. So, let’s do a show with John and Jerrel on how to win in the shortest time possible using tried and true techniques.

At the outset, I’m going to suggest you not read my book I wrote in 2012 as it is somewhat out of date. While it has a lot of valuable advice, the actual nuts and bolts of winning have metamorphosed. In that ten-year interim since publication, the AMA has been passed, VA has instituted new forms they demand you use, and a pandemic has thrown sand in the gears. To add insult to injury, the BVA decided to hire a shit ton of  Juris Doctorates who are paralyzed from the neck up and have nary a clue on how this works. Each one has to be given a crash course by the existing judges. It’s tantamount to sending them back to law school all over again to learn the ABCs of Veterans law. Idiot’s delight. They should have that constipation sorted in time for the 2028 Presidential aspirants to tout their proposed recipe for how they propose to fix it once and for all.

While I focus mostly on SMC law and Vietnam presumptives, I still have to keep my hand in and file brand new claims to keep these gomers off balance. I compare it to throwing one hand grenade after another to make them hunker down and get to work. This way, they’re too busy trying to play catch up and attempting to deal with me instead of inventing ways to reduce my clients.

And boy howdy are we going to discuss that subject Thursday evening. That’s beginning to get waaaaay out of hand in a big way. When they generously hand you a 100% as an excuse to give you a&a (which is not required by law) and begin chipping away at your Parkinson’s and loss of use to fence you out of SMC R 1, it’s time to learn how to combat this. Worse, using §3.344 as a defense for their actions about not having to go through the rigmarole of a formal proposal to reduce is plain hooey. They don’t consider inferred SMC under Akles v Derwinski as a potential reduction because they have studiously avoided awarding it-let alone discussing its application.

I can remember my old DAV rep back in ’92 parsing old wives’ tales about how VA could (and would) reduce you if they perceived you were being too avaricious.  Utter bullshit. VA handed me a 0% for hearing loss and a 0% for tinnitus. I was expected to sit on the Group W (wait) bench for ten years according to Mr. DAV and then we’d meekly approach them for an increase on the tinnitus to 10%-and not a day sooner. Perish the thought of refiling for the L5-S1 lower lumbar disaster area from landing a PC 6 Porter in an “arborous landing environment”. That was a done deal and not for discussion.

Winning your VA claim is becoming more, rather than less, daunting without a Sherpa to walk point for you. Then, when you prevail and get your 0%, you have to begin anew. I’ll show you shortcuts no one even dreamed of. Unlike some in this business, I don’t mind revealing how I pull the VA claims rabbit out of my proverbial top hat. You sure don’t need a professional claim builder who soaks you five times over and above what you won. Shucks, I’ll show you for free. You don’t even have to buy anything from me.

With luck, and assuming the the good Lord’s willing and the creeks don’t rise, I look forward to chatting with you folks on the day before the day before Christmas. Maybe I’ll give you that stocking stuffer you can use to kick ass and take names down at the Puzzle Palace. Grab a cold one or a good single malt with a water back and join us for some politically incorrect discussions on VA law. Mute the microphone if you’re eating potato chips if you’d be so kind.

The contact info for Thursday night @ 1900 Eastern is here via your computer:

https://www.blogtalkradio.com/jbasser/12178804/connect/acac5606af49cf45831bd7ba838925474bbb3cd9

Or if you’re computer challenged, try your phone and call:

(515) 605-9764

On the off chance you wish to ask a question, feel free to do so. Dial a 1 and it’ll  make your phone voice-activated. Hey, we’re in the 21st century now. No more PTT (push to talk), baby. On behalf of myself and the rest of the krewe, we wish you the merriest of Christmases and a prosperous New Year.

asknod (it, we, Veteran)

Posted in All about Veterans, Appeals Modernization Act, Humor, Inferred claims, Nexus Information, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

FORT FUMBLE–HERE COMES SANTA CLAUS

One thing I know is that VA higher ups can be cantankerous and throw an a&a decision in underneath the bottom of the inbasket out of spite. Especially if they see my moniker on it. They did it to me once in 2013 and tossed my CAVC decision into limbo. It came out over six months later. The VSC didn’t delay and wrote it up within a week. The retro check? About $400 K going back to 1994. In this case, the actual retro is peanuts. It goes back to Pearl Harbor Day 2021- a mere year. But that’s not why we do this for Vets, is it? It’s the actual a&a rating that is the prize. It’s being victorious over a dysfunctional system infested with idiots. Breaking through that wall of denials and the incorrect legal standards of review is the reward.

Since I didn’t go to law school and incur a horrendous debt, I don’t have to get my pound of flesh out of Vets (or pawn it off on the taxpayers). I still drive a 2001 Ford F 150 with 205 K. I don’t have to take claims up and down the legal ladder and milk them for ten years to cover the kids’ college. Fact is, Cupcake and I are empty nesters except for the dogs and horses. It only costs me sunflower seeds and peanuts to operate my parrot Buddy. So normal ideas on a business plan pretty much fall on deaf ears around here. Win or Die is the mantra. But winning around Christmas is always a hoot. Check it out.

Redact RD a&a 12.16.22

redact CS a&a 12.16.22

I could write about SMC from now to my passing and still have techniques to pass along. This particular decision is a great teaching moment for many. How many of you have applied for a&a and been told you don’t qualify because you lack a single 100% rating or a TDIU as your qualifier? Probably a stadium full at the very least. Read page 4 of this decision several months ago. What are they smoking in Houston? I want some.

BVA R1 Win & cite to a&a redact

Mr. Doe here could not buy or beg a rating out of VA after our BVA win for service connection back in 2020. Seems we were cursed-like we had better odds of being in an airplane crash or overdosing on Fentanyl than getting a total rating. No matter what I filed, VA came back with a 0% or an outright denial. I showed them PubMed peer-reviewed articles (by VA, no less) showing splenomegaly was always present in cirrhosis. Roger that. Denied. Next? Gall Bladder problems? Denied. Next. MDD? 10%. Hepatitis C residuals? 10%. bleeding varices? anemia for 10%. Here’s Cirrhosis for 30%-now get lost.

The ‘O’ prefix stood for Obsolete. Or off the books.

This went back and forth like a badminton birdie at Fort Waco and occasionally back up to the BVA. I finally got a decent gal for a c&p who was honest and bingo-TDIU and a&a. But the teaching moment has to be not to lose hope. I don’t care if the rascals refuse to give you ratings to help get to TDIU. Rules are made to be broken. Some Vets are far more screwed up than the ratings percentages reveal. Some VA raters are inherently unfair and low ball you. That’s when you take the lemons, get some vodka and make screwdrivers out of them.

This victory for Johnny Vet shows you what you can do when your highest rating is 30% because they refuse to be fair. You go around them. Whatever you do, don’t get in line somewhere and wait for 2 years. Severely disabled Vets spoil easily so time is of the essence. You have the right to demand they send your denial for TDIU back to DC to the Director of Compensation and Pension for a do over. We call this Extraschedular consideration.  It’s right there in plain sight under §4.16(b)…

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Yeah. Yeah. Yeah. It says “rating boards should submit” but here we go with the rules argument. It doesn’t specifically say you-Johnny Vet- can’t request a submission. And since the Veterans Administration is such a stand-up, nonadversarial environment in which to adjudicate our ex parte claims, why, it would be a violation of due process of our rights not to kite it off to DC.  Right? And boy howdy if they don’t, it makes for some bodacious legal screaming at the BVA. In fact, the only other body who can grant that special extraschdular after the Director denies it is.. yep- your BVA Veterans Law Judge.

 My Vet here didn’t have what VA wanted to see to grant ratings commensurate with his level of disability. He also had a bunch of typical VA doctors who developed writer’s cramp when it came to Johnny’s condition. If they give you meds to prevent bleeding and raging ammonia headaches, it shouldn’t surprise them if your headaches abate and your stool is no longer jet black. To argue that one and win, use this gaggle of puppies. The legal argument is a chicken dinner winner every time.

Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule  condition.

It is well settled that the Court has jurisdiction to review VA’s interpretation and application of its own regulations. See, e.g., Lane v. Principi, 339 F.3d 1331,1339 (Fed. Cir. 2003) (holding that the “Court should review de novo the Board’s interpretation of a regulation”); Bradley v. Principi, 22 Vet.App. 280, 290 (2008). This power includes the ability to review the Board’s interpretation and application of a DC. See, e.g., Otero-Castro v. Principi, 16 Vet. App. 375, 380-82 (2002) (reviewing the Board’s interpretation and application of 38 C.F.R. § 4.104, DCs 7005, 7007 (2001)).

“The Secretary’s interpretations of his rules and regulations will only be given deference as long as they are not inconsistent with the regulation or otherwise plainly erroneous.” Ervin v. Shinseki, 24 Vet.App. 318, 326 (2011); see also Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009). The Court holds that the Board committed legal error by considering the effects of medication on the appellant’s IBS when those effects were not explicitly contemplated by the rating criteria.

What you want to avoid, if at all possible in the new improved AMA, is getting into the wrong VA lane of traffic at rush hour. Rush hour at VA begins every morning at 0001 Hours and ends at 2359 Hours. I’m still suffering a hangover with several of my Vets over this. We just didn’t see the BVA getting a virulent case of constipation. Wasn’t that what the AMA was supposed to be all about? Right now, going to the BVA is like finding yourself on the onramp to the Interstate and nothing’s moving-and hasn’t been for 62 years. The good news? It hasn’t radically affected requests for AOD unless they’re horribly complex and involve a trailer load of contentions.

The hardest thing on AOD, to me, is getting the BVA to “see” it. As the system works now, you send all your correspondence to  BVA Litigation and Support at P.O. Box 27063. Somewhere, little gremlins intercept it en route (or in DC) and transship it up to Cheeseville, Wisconsin where it goes into the VBMS scanner. If they mark it as 3rd Party Correspondence, I assure you Hell will freeze over before someone notices it. Been there. Done that. If it sits there more than 30 days I’m all over the 800 Dial-a-Prayer line like white on rice. If that doesn’t get it, there’s the White House hotline a week later. That always works. I get my Vet to call and pretend I don’t know anything about it and allow as I’ll have a talk with him and tell him never to do that again when they yell at me. Bad Vet. Bad Vet. Down, boy.

So- another one for the bookshelf, folks. But I never close out my Vets’ claims because eventually we’ll all need a higher level of SMC. At asknod, we even assemble a DIC file absolutely free for the future surviving spouse just so they don’t have to fret and get in a bother about all that when the time comes. Can you imagine having to remember all your deceased’s prior marriages and divorces as well as the dates of both … and their locations? Find your marriage license? Helllllllllll no. Of course you shouldn’t have to. That’s just another neat thing about the VBMS. It’s all there from 45 years ago on an old 686. The trick is to grab it before the Vet passes away and you lose access to the file until the surviving spouse is substituted. Tips and tricks folks. Kinda makes you wonder why VA doesn’t provide this kinda like a concierge service, huh?

Merry Christmas to you all. I hope the New Year doesn’t bring any new trials and tribulations… or pestilence. Bon Chance.

P.S. From my good friends over at Duffel Blog.

Posted in 100% ratings, Aid and Attendance, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

BVA-A&A–IT’S BEGINNING TO LOOK A LOT LIKE CHRISTMAS

Nothing makes my heart skip a beat like seeing a BVA decision pop up in VBMS. Well, let me rephrase that. Nothing except for that infernal habit of  my heart suddenly deciding it wants to go apeshit at about 288 bpm for 29 seconds… then skip about 3-4 beats… and go back to normal. I think it’s just funning me. It most always slows back down about 29 seconds later-just before the ol’ onboard pacemaker/defib kicks in and gives me that 200-volt, 120-joule, 45 amp jolt. Boy howdy does that roll your socks down. But, skip with joy mon cœur did this AM. One thing I do know is I’m an antisocial, passive aggressive asshole so it figures my heart would follow suit, too. 

But that’s not why I called you here. Waaaay back in August 2019, these folks, let’s call them John and Jane, came to me and sought help getting service connection for his Hepatitis C which had pole-axed him with the residuals. As almost all of my original readership had Hepatitis C from one thing or another (transfusions, dental, jetguns, the clap or tattoos), they are well-acquainted with the plethora of secondary shit that comes with 40-plus years of undetected infection. Just taking the Harvoni 8-week cure won’t resolve the autoimmune disorders, the right upper quadrant pain, the edema and pruritis in the lower extremities, headaches, gastritis, brain fog, bleeding esophageal varices, ascites et cetera ad nauseum. You get to unpack all that for life. Well, everywhere except at VA. There, it’s all related to alien abduction or an overactive imagination. Somatoform symptoms anyone?

Jane came to me because her Veteran John couldn’t perceive he had all these problems. He’d go in to the VAMC for a check up because the check engine light was blinking. By the time he got there he’d plumb forgot why he went. The doctor would ask him how he was doing and he’d flash the international thumbs-up signal. Good to go, bro. The only thing holding him together was a mega- high dose of medications which masked his myriad cirrhosis symptoms. So I made sure Jane began accompanying him to these forays in order to make sure everything got on the record. It finally paid off.

The brain fog, also known as hepatic encephalopathy, is caused by the high amount of ammonia in the bloodstream. The liver can no longer filter it out. It knocks your IQ down into the low fifties. Cognitive deficits accrue and soon you can’t remember important shit like the combination to your gun safe. But you haven’t forgotten how to converse. If Dr. VA dumbshit asks you your last four and your name, no problem. If he asks you who the President is and you pause for a few seconds and say ‘I’m thinking ah…Obama?’, chances are you have brain fog. If you pull up to a stop sign and wait for it to turn green… yep-   brain fog, Bubba. You get the picture? John could present himself as relatively functional and, being a stand up guy, he tried his hardest. He was the diametric opposite of a malingerer.  He sure didn’t want folks thinking he was touched in the head or feeling sorry for him. I wouldn’t either.

I fought the usual fight we all do all the way to the BVA and we won the service connection as expected. When we returned to Fort Whacko, the VA poohbahs inaugurated him into the Zeros for Heroes Program without so much as a c&p. We fought for a while and went back up to the BVA yet again. In spite of the overwhelming evidence, a very anti-Veteran VLJ affirmed the low ball ratings so I took the obvious tack. Begin anew with claims for cirrhosis.

I got the wave off  for the cirrhosis with a 30 percent  and finally had to do a dumpster dive into John’s VistA VAMC records to get to the truth. You didn’t need OCR search mode to find the words ‘decompensated cirrhosis’ about every other paragraph. But the VA doctors lied and kept saying it was “well-controlled”. That’s like saying “John’s condition is terminal but the impending death is well-controlled.” By now his spleen was blown out from the back pressure of the clogged liver. Headaches, and everything you can imagine, to include free fluid in the abdomen, were festering faster than gangrene. Doctors call free fluid in the abdomen ascites but not at VA. Most doctors would call hepatic encephalopathy forgetfulness but  at VA that’s merely old age.  Or here, they call it poor memory due to insomnia (or alien abduction). Or simply a fig newton of your imagination. The Johnmeister was gulping down incredible amounts of propanolol to squelch the bleeding varices which meant he didn’t qualify for 100% for cirrhosis. It was like that at every turn. Johnny, you do not have ascites. You have free fluid in your tummy. There’s a major difference. Ascites is 100%. Free fluid is 0%. Thank you for your Service. Next?

Dining al fresco

Back to the drawing board. I filed him for a major depressive disorder, secondary to his hepatitis C and the VA munchkins turned that into the insomnia caused by too much ammonia. I didn’t know if I was gonna shit or go blind so I filed for TDIU based on an extraschedular need. Wonder of wonders, they finally caved in this summer and granted what was about as obvious as the sun coming up in the morning. Three years to reach this point and now John had progressed to one really hot mess.

FNG- check out the shiny Flak vest.

So, once again, I fired up the claims engines and filed him for aid and attendance.  Jane and John carefully wrote 4138 statements that captured the truth without John’s optimistic rose-colored spectacles on. The VA’s c&p clinician saw the writing on the wall and concurred with what everyone at VA knew but had been camouflaging with their bullshit medical word salads. The Johnmeister had a major case of hepatic encephalopathy and left unattended, he was gonna die from forgetfulness.

I have a great rapport with the folks who advance claims on the docket up at the BVA and finally got this one loaded into the chute three months after I filed it. While many may not think forty days is the speed of light to get a BVA decision via an AOD, most Veterans arrive with a laundry list of appeals. This was one contention-a pure a&a argument. It only required a reading of the law and a review of the evidence to make a thumbs up decision. That’s the new AMA technique-distill your argument down to its very essence. Keep it simple, stupid. Only do direct reviews at the BVA unless you want your spouse to be the beneficiary.

In this case, the utter insanity of the new AMA is on full display. Well, either that or the absolute ignorance of how Special Monthly Compensation works is the problem. How can VA state in haec verba ‘Johnboy, you need the aid and attendance of another. Several doctors and NPs have diagnosed as much. Therefore, based on the law and evidence of record, we are denying your claim for a&a because you don’t qualify. But, because of the new law, we have to let you know the favorable findings of fact preponderate in your favor inasmuch as you do need aid and attendance. So you got that going for you.’

Redact deny a&a

Roundeye Butterbars

So, back to the BVA for the third time-and the charm. This is a first for Veterans in a way. Last week Agent Doug Haynes (of Veterans Claims Assistance Group) asked me if I had an example of a Veteran with less than a total rating being granted a&a. I told him he’d have to wait until this week for one. I suffer PMA (positive mental attitude) so I was convinced John and Jane would win. Et voilà. John was 60% combined with extraschedular TDIU and a&a when we saddled up for the ride to Washington, D.C. Check it out. Here’s the code sheet from June 2022 before I went up to the BVA again for his a&a. I was convinced this misconception of the requirements for SMC was the reason, too. Considering it’s happened about 5 times in the last year, it’s becoming a canned, default response.

Redact Code Sheet going for a&a

Mr. Robert Chisholm of Chisholm, Chisholm and Kilpatrick (CCK) explained his theory of SMC thusly: “SMC is the art of the possible.” Sounds simple enough but you still have to learn the magic handshake and password to get into the higher SMCs. VA tries to hide this from us. When confronted, rather than battle it out at the CAVC, they’re prone to cheiu hoi and grant to keep it under wraps.

So, don’t fall for that faery tale line about needing a 100% rating for an injury or disease in order to apply for SMC L aid and attendance. It hinges strictly on whether you have any deficits with the activities of daily living listed in §3.352(a). Period. Other Veterans Help sites will tell you otherwise. When they call you a liar, tell them to read this.

So, with great pleasure, I welcome John and Jane into the SMC Club. I apologize for the three years and four months of VA’s intransigence, attempts at subterfuge and misfeasance. I wish I’d known that Fort Waco and the VA were going to take this new, perverted view of Hepatitis C and the idea that once it’s cured, you’re healed and there’s nothing further to discuss. Fortunately, I’m like a bad habit. I’m akin to dogshit stuck on the VA’s shoe. The stink doesn’t go away until the problem is solved.

Redact BVA a&a with 60% TDIU

I reckon the chuckleheads at Fort Whacko will send the Johnster out for a c&p just to ensure the VLJ didn’t make a mistake. I wouldn’t put it past them. Merry Christmas John and Jane. You folks earned this present long ago in my book. ‘Better late than never’ isn’t in my lexicon. It’s Win or Die. And that’s all I reckon that needs saying.

Clear Prop. Pull the chocks. Let’s get this puppy airborne.

 

Posted in 100% ratings, Aid and Attendance, BvA HCV decisions, HCV Epidemiology, Jetgun BvA Decisions, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , | 6 Comments

PYRAMIDING PARKINSON’S–PICK YOUR POISON, SONNY

Imagine suffering from Diabetes with severe peripheral neuropathy. Now, supersize that with advanced Parkinson’s and a full load out of the symptomatology. You’re not a doctor so you file for loss of use of your upper and lower extremities. Does it really matter which of these disease processes (or both) is/are responsible for the loss of use of all four extremities if you’re service-connected for both? Well, I sure wouldn’t have thought so up to now. VA has, despite my best efforts, tried their damnedest to put a fork in this ol’ boy but this ain’t my first rodeo. Most Veterans, acting pro se, would either give up or seriously contemplate sucking on a lead lollipop. Shoot. I might. 

The only problem with that would be screwing the better half out of her DIC- which isn’t even an option. So you’re caught in this Orwellian Mobius loop of being so disabled with diseases that are rated using the same diagnostic code simply because they are analogous to the “disease process”. I speak of the conundrum of 38 CFR § 4.119 DC 7913 using the same peripheral nerve impairment ratings listed in §4.124a- to wit: usually 8515 (upper) and 8520 (lower) for Parkinson’s Disease under DC 8004.

Just for shits and grins, what do you think VA would do in this predicament? Why, give him SC under DC 8514 for the upper extremities with a 70% bilaterally at first before I began talking loss of use. Suddenly he got better and they tried their new ‘nothing is everything” bait and switch ratings game. They gave him 100 for bent brain but began chipping away at the extremities to make them appear better. They reduced him to a paltry 30% bilaterally and reduced the Parkinson’s balance issue under DC 6204 from 70% to 30%. Then bump up the DM II from 10 to 20%, increase the incontinence and constipation a dime each, and make it look like you’re only moderately screwed up physically and actually getting better. Loss of use? Not hardly.

Lastly, since you’re 40% for diabetic neuropathy under DC 8520 bilaterally, and that might make it look like you’re losing your use of your lower extremities,  they reduce each to 20% because everyone knows PN gets better. In fact, so does Parkinson’s according to these guys. Oh yeah, and to cover their naked asses – they have the balls to invite  a new claim for diabetes increase which they just reduced.

Of course, you’re not any closer to getting to what you filed for-the loss of use of the extremities (either upper or lower) because it would be pyramiding to grant both ratings reflecting the inability to ambulate or button a sweater.  So what’s a Veteran to do? Well, keep going to a c&p until you hit the chicken dinner winner. Actually, this was the last straw. I’d planned to go get an IMO saying Dave was hors de combat based on the medical evidence of record but we decided to cross the T’s and dot the I’s by asking for an HLR for one last stab at it. It looks better when you go up to the BVA and show you at least tried to get them to see reason. This can actually be a moneysaver in some cases. Not all Vets are well-heeled and could be they don’t have a couple spare Grover Cleveland coupons lying around.

What concerned me on this case was the obvious pushback after I  began talking about loss of use. My backup plan on this one after I got the first SMC L-any SMC L- was another a&a for his mental decline.  That fills out two SMC Ls and creates the entitlement to SMC O and thence automatically to R1. Since Parkinson’s is a neurological disease, it is separate and distinct from a mental disease secondary to it. MDD is rated under §4.130 DCs 9201-9440 which is a mental disease. Yep. 31 flavors just like an ice creme parlor. But here again, VA gets the willies and starts calling it pyramiding. Or better yet, they say it’s impossible to separate the neuro stuff from the psychiatric symptomatology. That’s just hogwash and VA’s way of lowballing you.

In the world of VA medicine, they get first shot at deciding whether you actually get to make the jump from DC 8514 up to DC 5109 (loss of use of hands) or, increase from DC 8520 to 5110 (loss of use of feet). Once they deny, you’re free to obtain an IMO saying you have loss of use-but not before. You’ll see this same phenomenon for PTSD or MDD. You cannot just file a claim with your own independent medical opinion (IMO) that you’re bugf*cky in the head. You file and go to a VA c&p where they diagnose you with PTSD or MDD… but then say it has nothing to do with the night the OPFOR (Operational Forces in wokespeak) overran the ammo dump at An Khe and bayoneted your BFF right beside you. Only then after the bitchslap denial can you go get your own magic paper and file your 995 supplemental.

Filing claims at VA is not an art form but filing them in the correct order is. That’s why we call this VA poker. You ante up, VA raises with a denial, you get an IMO and they deny again. You go up to the BVA on appeal and win. You win and it comes back down to the local Fort Fumble where they give you a 0% rating. Then you start all over. Lather, rinse. repeat. Smart Vets will get their IMO doctor to list just exactly how bugf*cky they are from the git go so they don’t have to keep making the pilgrimage back up to Washington DC.

I recognize time is our enemy. I want to get my Vets a win as fast as I can. With the new AMA, it actually is faster to get all these wins down at the local level whenever possible. Save the BVA appeal for the really difficult ones like OSA secondary to PTSD. In Dave’s case, the fact that he is obviously impaired in walking is obvious. And when you have to bend a spoon in a circle and wear it like a ring to keep your peas or corn onboard, then chances are the tremors have created loss of use of the uppers, too.

I filed a CUE claim on this conundrum shit where VA says ‘Sorry. Take your pick. Either you have loss of use of the extremities due solely to Parkinson’s or you have loss of use due to the Diabetes residuals. You can’t have both because that would be pyramiding.’ It may go to the BVA on appeal but I went down for double and also continued to fight the original claim with an HLR review. This way you can have two fishing poles in the water at the same time. If they don’t get that subtle reminder that the chances of you going away empty-handed are about the same as winning the Powerball lotto, then they never will. Most cases I work are for the highest ratings of SMC. Newsflash. I don’t go away. I’m like a bad habit and just keep punching paper at them until they scream ‘Uncle’.

In the new AMA venue, winning often comes down to how earnest you are. I’m discovering that VA personnel are beginning to recognize my name popping up at the DROCs weekly on new HLRs. I know this flies in the face of established advice on how to litigate. If I’d been namby pamby on my own claims and followed my VSO’s advice in ’94, I’d probably still be at 10%. By going on the offensive over and over and inundating them with incessant claims for everything you can imagine, it seems to make them more receptive to trying to grant and getting me out of their inboxes.

I’m beginning to see a clear phenomenon of a grant for a&a but a denial of the bigger R1 or SMC T awards. Kinda like 2nd or third Prize. They know they’ll lose eventually so why not do the knick knack paddy whack- give the Vet a bone. What is this crap of seeing if you can roll him on the big shit. At that point, I  piss on the fire and call in the dogs.

Here’s a classic example. I filed Dave for loss of use of upper and lower. VA denies.  I come back around and file him for every little Parkinson’s secondary you can dream up. They won’t even consider SMC S. They feel we need to have a 100% or TDIU rating in order to grant a&a. So they bump up Dave to 100 just for the mental and give him SMC L for a&a. But they give him the most bodacious haircut for all his Parkinson’s and DM II ratings.  Bam. We go get more ammo from the neurodoc he sees and get a prescription for ankle foot orthotics (AFOs). You know. Those gomer devices you wear like galoshes to keep you feet from dragging when you walk. We double down and refile for increase on constipation and alien abduction causing incontinence. Aphonia. Sagging face muscles. Difficulty swallowing. Ad nauseum.

Then we do the HLR and point out the obvious-Parkinson’s doesn’t get better. Neither does DM II unless you forever cease and desist from dining at Micky D’s and go on a mega-serious diet to get your BMI back down to 26. About this time the hired c&p clinician(s) can’t help but notice some of these VA shenanigans such as when they say you’re cleared in hot for the Boston Marathon with your new AFOs. At some point, the Big Three (LHI,VES,QTC) have to man up and get a case of the morals and acknowledge you are five times worse than Hogan’s Goat.

David will win. I know that. He knows that. No less than 30 Coaches, Asst. Coaches, Senior Quality Control RVSRs, DRO reviewers and a few hundred VSRs continue to work on their carpal tunnel syndrome by asking for clarification opinions, supplemental medical opinions and requests to discern how much of which disease  actually caused this “condition” of loss of use and when did it begin. This claim is more well-traveled than Voyager I. They miss the point. It’s immaterial which one causes it. The consideration is always ‘does he have loss of use?’ There simply is no follow on of “due to his SC diabetes or Parkinson’s” in that question.

This all began in 2013. Here’s what Dave came to me with in 2020. They’d just taken away his SMC S for housebound because he was ‘getting better’.  His pals at DAV sent him up to the BVA on a direct review instead of going on the warpath below for a&a.

dave redact

I cut to the chase and filed him for everything but the kitchen sink and they came back with this one as I’d predicted. I left the DM II subject alone for the moment and developed the Parkinson’s only. I accomplished the first (and most important) task-SMC L for a&a. But note well, the 100% for the MDD creates a separate, distinct pathway to another a&a all by itself. Sometimes you wonder who they have down there driving the VA ratings bus. Somewhere, a village is sorely missing their resident idiot but I’ll be damned if I’m gonna spill the beans. Look at the last page of the ratings code sheet next and see they’re actually luring me into filing for DM II increases. I don’t have to make this shit up. VA does it for me.

dave redact II

Page 6 redact

In the meantime, the HLR came back after I pitched a bitch about Dave redact II above . I know. This sounds complicated but it’s a bit like juggling six balls. As long as you can keep it straight, it’s no more difficult than riding a tricycle. It gets more dicey if you have 80 clients though.

Dave HLR 1

After thirty years of this, I’ve discovered the idea is to drive them to the point where they don’t know whether to shit or go blind. Toward that end, I hit them with a CUE claim for reducing Dave from 70 to 30% bilaterally for his upper extremities. Once they give you the shekels and the rating, they can’t reduce it without as thorough a c&p exam as the one they started with. Yep. VA tried to do the cheapo depot Covid ACE (Acceptable Clinical Evidence) c&p instead of crossing their T’s and dotting the I’s in person. This is world class dum – a higher level than even dumb. It makes me suspect they might not know what they’re doing.

Redact dave MTR filed 6.9.2022

But remember that chicken dinner winner of a ARNP I was praying for above? Bingo. Our ship came in so we won’t have to buy one. Granted, Dave has been going downhill since he filed in 2017 and this is an ongoing project but it’s still the same claim to get entitlement to the things he filed for in 2017. When we get to R1, we’ll sort out that effective date business.

Dave LOU IMO redact

But, noooooooooooooooooo (the way Steve Martin says it). They couldn’t just grant the LOU of the uppers and lowers. As you can see, our VES angel NP has ADHD or atrocious English and apparently left off in midsentence the complete phrase of ‘loss of use’. Thus, VA, being more anally retentive than a frog’s anal sphincter, demanded clarification. Was this to say he’d lost his hands and feet? Which ones? Were they totally toast? What caused it-the diabetes or the paralysis agitans? All these queshuns. Nurse Angel came back with an equally clarified IMO “revision” in spades…

Dave redact IMO 2

So here we are six months later and all of sudden VA is unclear as to what our contention was for the CUE. This feigned (concocted?) ignorance doesn’t pencil out. In order to create this note, the rater would have to have read the legal brief attached to the CUE filing. He plagiarized the sentence right off the first paragraph. That’s the only place where the mention of “Movant” appears. Gotta love that “council”, too. Obviously this ol’ boy missed the Phonics™ email.

Or, looking at the actual VBMS entry, you can see some industrious admin weenie actually listed the contentions of the CUE right there in the subject line when they uploaded it.

I don’t think VA actually reads their own work or this “subsequent development letter” would never have been launched. As it is, I can only reckon they’re trying to buy more time to come up with a viable legal argument to deny it. Gez, the best they could come up with was ‘Movant isn’t his name’? You can tell this VA employee is waaaaay ripe for promotion.

Dave we’re lost in space- tell us what you want

Shoo doggies. You know me. I just couldn’t let this one go by without at least launching one right back telling them they were braindead. But, in VA land we’re all civilized. No name calling. No questioning whether anyone was raised by wolves. We’ve been taught (and instructed) to employ the Hansel and Gretel technique leaving a virtual  electronic trail of bread crumbs. Bless their pointed little heads.

dave development letter redact

And that’s the way it is on December 5th. Over and out.

Posted in Aid and Attendance, AO, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , | 4 Comments