EXPOSED VET RADIO SHOW–THE RACE TO THE BOTTOM

Hey there, VA campers. I hope your misery meter is lower than whalepoop. If it isn’t, and your liver can handle it, pop a Corona, aim it towards Wuhan and give them a raspberry. As you may have noticed, Jerrell and John’s radio show is on a different bat channel. We’re really not sure why but believe it has something to do with a requirement that we abstain from stepping on the third rail of anything of, or having to do with, religion or politics. J&J decided they would have a hard time confined in that corral if one their tongues accidentally slipped and something untoward escaped their piehole.

Towards that end, we have the same policy here on asknod but a radio show is not print format. The words escape into the nether regions for me but with everything archived nowadays, someone can go back and feign offense with something I said in 2016. It’s about enough to drive a body to bent brainism but such is the New World Order of social media. Nothing evaporates into thin air now. Nothing.

Which brings up the subject of what Cupcake said the other day. She’s set up to do virtual meetings with her real estate agents now that we have no-contact orders and are required to obey them. I don’t have a problem with that. I’m 69 and have a major compromised immune system. The last thing I need is any kind of bug-super or not. Anyway, Cupcake has a studio that would be the envy of Rush Limbaugh right next to me here in the LZ Grambo TOC. We’ve been debating starting our own show for over a year but I don’t want to seem unappreciative of John and Jerrell and their show. I expect there is no such thing as being too thin, too rich or having enough Veterans’ venues to teach VA law. I’m going to have to get a new pair of headphones because Cupcake’s purple ones are a wee bit too girly for me.

Anyway, John, Jerrell and I will have a raucous hour of VA knowledge to share with you all and I’ll regale you all with a few morsels of VA stupidity. I wrote a Memorial Day blog where I touched on some of this but the fact is VA personnel, with the exception of most of our Change Management Agents (CMAs) who work solely for us attorneys and agents, seem to have lost their collective minds. The level of animosity is getting more and more full frontal and brazen. One would think the hierarchy would come down on them like a cheap new polyester suit. One would think wrong if s/he did. Most times the error is resolved but with nary a peep about the offending individual being born and raised by feral hogs.

The call in number has changed unless you all copied it from my last post on this.

(515) 605-9764

And that sweet young thang from Britain will answer the phone and whisper sweet nothings in your ear about the show. I’m gonna go out on a limb and say you probably have to push the numeral one (1) to talk to us. If you do not plan to talk, refrain from doing so. We don’t need to hear your chihuahua bark for an hour.

I wouldn’t mind old Lilly Tomlin as the phone attendant. Wouldn’t that be a hoot.  “Welcome to blog tawk radio. And to whom am I speaking?”

Anyway, I look forward to a good time to be had by all. No guarantees, but I think John and Jerrell have this new site in order to avoid running afoul of all the political correctness flu this year. If something insults your sensibilities, please employ the hang up button. For those of you challenged in this respect, you will find it on your screen. An example is provided below:

Remember. Six feet folks. No less than six feet from the phone. And the masks. Don’t forget your masks. If you’re hard of hearing, I suggest using the speaker gizmo.

Posted in All about Veterans, CAVC Knowledge, Earlier Effective dates, Exposed Vets Radio Show, Humor, Lawyering Up, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 4 Comments

MEMORIAL DAY 2020–WHAT HAPPENED?

Memorial Day greetings to you all. I’d probably be excoriated for being politically inept if I said Happy Memorial Day. Rightfully so. This isn’t a holiday to hand out attaboys for being a Vet. It’s all about remembrance of loved ones who bothered to serve his or her country rather than just pay lip service to the grand idea. Sure, some made the ultimate sacrifice but fortunately, like this insane chinavirus, most survived it with a bit of chipped paint and dented fenders. And then there are some who were totaled-either mentally or physically… It’s to those now gone we especially pay tribute to. 

You don’t have to be a combat Vet or a fighter ace to get this attaboy. It was enough that you were so selfless with your time  that you decided to pay America’s Freedoms forward. Your ticket to fame is being dead. I know that sounds harsh but it’s a fairly exclusive club with strict credentials required to qualify.

I/we (asknod et al) have been “on the air” now for almost 12 years. Cupcake says I’m overly loquacious and can’t figure out why a body would come back here over and over and read my blogs. Well, honey, it’s informative, I hope. Like hydroxychloroquine, if it only helps one of you succeed in your claims then it was ultimately worth every penny.  One of my readership (Dennis) sent me an email and said he had to keep a dictionary and thesaurus nearby when reading to decypher me. I’m sorry. I’m not going to reduce myself to a 300-word vocabulary to get my point across. The English language is like a Baskins and Robbins© store. Why settle for vanilla day-in and day-out?

This Memorial Day is more poignant than most. This hasn’t been a good year for me on Vets. Most of you know (or might) that I take the most grievously injured and dying to represent. Almost all are Vietnam Vets and now we’re seeing a new bow wave of Blue Water Navy Vets. I eagerly await the inclusion of herbicide presumption to all my fellow Soldiers and Airmen who served with me in Thailand as well as that country to the north that rhymes with Mouse. Each month, through their diligence, our military mortuary forensics teams find another of our lost pilots who augered in up there never to be seen again. That’s what this celebration is about. I hope that in my lifetime, we can convert all those KHA/BNRs to real, identifiable remains for suitable burial.

Many times now I end up representing the surviving spouse. This has increasingly been one of those years  and we haven’t even reached the Summer solstice. I’ve lost more than a client when this happens. I’ve lost a good friend. Anyone who knows me is aware my client list is pretty short and I keep it that way. After my treatment at the hands of numerous VSOs over the decades before my Awakening, I’ve resented the fact that one of them drew a complete blank on who I was at a DRO hearing in 1991. He erroneously began the hearing with “My client, who served honorably in the Coast Guard during peacetime has filed a claim for flat feet…” With that said, I salute the many of you VSOs with that same verve and zest for justice. I’d probably get unfavorable ankylosis of the fingers  trying to name you all so you just get an honorable mention. And to correct that VSO, I only got a General under Honorable conditions- not the Full Monty Honorable. Seems I had a few dents and chipped paint when I came home, too.

Losing those you represent is not for the weak of heart. I’ve represented some for almost 12 years as their Sherpa-long before my acceptance to help Vets legally. I’ve shared the thrill of victory and the agony of loss with them and their whole family. Hell’s bells. I’m even beginning to represent some multigenerationally (sons and daughters of clients I’ve already won claims for). There. I saved you looking that one up, Dennis. This year I’m experiencing the agony of death with a few more than in years past. Perhaps more of you in dire straits are beginning to contact me.  It shouldn’t have to be that way (substituting the surviving spouse to complete the claims) but that’s what this year’s blog is going to touch on.

The new AMA (Appeals Improvement Act), enacted in 2017 and fully deployed in February 2019, certainly looked like a propitious moment for all of us Vetkind. We were promised much and for a while it looked splendid. But suddenly, a horrible plague settled in around the VA. No, guys. Not the covidtrastrophy. I’m referring to the Houdini-like disappearance of VA intelligence in figuring out how to adjudicate claims. The first thing that comes to my mind is an almost anal obsession with making sure you file the claim on the correct form. But then it got worse last fall. And worser last winter. By March of this year, what I suspected as something that couldn’t get any more fusterclucked than it was already managed to compound itself with interest. It’s as if telecommuting VA raters came down with a severe case of dumbshititis. It’s like reading a revisionist version of the Ten Commandments and someone saying “See. Right here. It says ‘It’s cool to bear false witness against  another’.” I’m not making this up. Other VA attorneys I talk to (we’re a loquacious bunch) all say the same thing- Does the virus make you stupid? Are these folks carriers? Is this one of them QAnon conspiracy things? No. Just kidding on the last one. But now that you think about it…

As you know, if you’ve ever filed a claim for something in the past, you now can only use the VAF 20-995 “Supplemental” claims form to reopen it. Of course, this now comes with a requirement that you (not VA) produce new and relevant evidence in order to get a can opener into your old claim. That duty to assist you thing is now a one-shot coupon. If you filed a 526 to start a new claim, that’s the last time you get the duty to assist on it-ever. So… if you lose, it becomes infinitely harder to prove your claim ever after. However, this legal concept doesn’t carry over into the VA world of Motions to Revise (CUE) old, final decisions from the ancient past. In these instances, we can use a paper towel as long as it has your name, rank, airspeed, tail number and last known heading. Or so we were told. I filed a CUE for my client on a 526 back in December. A month later, I got the Dear Alex letter back informing me the “claim” could not be ‘accepted’ this way. I was told to choose from the menu of three (995, 996 or 10182). I immediately refiled on a 995. As this was a new iteration of CUE, it was certainly permissible legally to use anything-including toilet paper (as if I could find any). The dolt in San Juan, P.R. who drew this out of the queue informed me in a decision four days later that it was being tossed out because I had not presented any “new and relevant evidence” to reopen my CUE. Let that sink in if you know a lot about CUE. If you don’t, here’s the primer.

https://asknod.org/2014/05/02/cue-the-quintessential-elements/

But that is not the end of the matter. I love to use that phrase in my legal briefs. It has a rather ominous rumbling sound like dark clouds on the horizon portending lightning. Since Mario Caluza’s revelation to us all in 1994 on what we needed to have to prevail escaped from its Pandora’s box, we know we need three things. This was the subject of my book in 2012 because the Vetsphere was an utter vacuum on the subject. I lectured and preached for years on that precept and it’s always held true right up until it didn’t about a week or ten days into the corona lockdown in early March. I’d counseled a Vet’s wife back in ’15 into how to file a “hybrid” claim for her husband. It was a cross between an §1151 medical malpractice and a service connection for the underlying reason for the VA’s liver transplant fiasco. I raised it for the first time as a direct claim in the NOD a la Combee v Brown. Just before the Little Rock DRO fired off the denial of the §1151, she noticed I’d snuckered that “either/or” Combee codicil in there. This meant disengaging the afterburner, standing on the binders and popping the drogue chute as you sail past  V1. She had to send  it back to production to deny the contraction of the Hep C in service. Bingo. They bit down hard. Hey, I warned her if she denied I was going to go out and get an IMO. A VARO’s gotta know their limitations when dealing with me. They bit and denied it based only on this being an §1151 claim. I called up the DRO and said “Hey, sugar. It was you who went into the HCV denial-not me. You  recognized it as a reasonably raised claim in your denial. I’m only responding to your denial-and on the right 995 form to boot. VA isn’t allowed to play Indiangiver. Ooops. Can’t say that. They immediately choked and puked and granted. What else could they do? Three days later my blind client with a killer IMO for malaria prophylaxis overdose (Primaquine) who ended up in the Cam Ranh Bay hospital was denied by a Jackson Mississippi rater  saying a Optometrist’s data and conclusions outweighed my well-reasoned IMO by a real Ophthalmologist surgeon with 8 peer-reviewed cites and a ten-page CV. To reach this amazing finding of fact, you need to compare it to an Optometrist as a bed pan changer arguing with a Board Certified Brain Surgeon. Yeppers. The Jackson boy said an optometrist was like a Full House with aces over eights compared to my ophthalmologist’s  pair of kings any day. Arrrrooohhh? Then it got worse-again at the Jackson Puzzle Palace.

This time it was a well-reasoned IMO for a Vet out of Kansas for Hep C. They blamed this ol’ boy for drinking himself silly and the high ASTs/ALTs showing all that liver distress were due solely to his being extremely trashed or hammered (ETOH). My Hep C hepatologist/ gastrodoc corrected that misconception and went on to explain how your liver disintegrates on a very steady, predictable timeline-with or without the help of Scotch.  In VA’s dyslexic eyes, the fact that he was cirrhotic and in need of a new liver had everything to do with the booze. But that wasn’t enough. The rater went off road and dragged §3.309(a) into it. Seems if you don’t come down with cirrhosis within that first year of separation, why, you cain’t claim it 40 years later. That’s right out. Claim denied. The IMO doctor has rocks in her socks. You’re wasting your time, Graham. Go tell it to a BVA VLJ.

I called up our fixer gal at the Appeals Management Office on the banks of the Potomac and screamed Help! Stupid Rater Alert in Jackson! The Head Vets Service Center Manager down there had refused to even consider replying to lowly asknod’s email. The AMO was a different matter. He promptly emailed us both and said “Relax. I’m on it and we’ll fix it.” Now, a month later, not a finger has been lifted to readjudicate Kansas Chuck’s claim using the proper legal standard of review-i.e. Caluza. Nary a word about the probative value of the IMO. Negatory. The rater avers this puppy fails on §3.309(a) alone. So I give up. Where can I get some of this killer Fort Jackson Funderthuck ganja? My local pot shop (essential service, mind you) doesn’t carry it.  I gave (wait for the unmasking) Mr. Sam Young, Jackson VARO VSC, a month to clothesline himself and correct the legal error. Ooops. Times ups Sammy. You get a three day vacation in the interim.  Zero hour is now 0800 Local (1100 EST) Tuesday. The email will be sent to VASEC Wilkie and all the Poohbahs at the AMO. Somehow, I’m thinkin’ as I’m gonna disremember to cc ol’ Sammy. I’d allow the shitstorm will arrive over Mississippi about an hour later. A Vet shouldn’t have to put up with this tomfoolery. And with the chinashit going around, I read that VA telecommuter raters’ work performance has increased fourfold. Arrrroooohh?

I figure if you can unmask a Lieutenant General of the Marines who didn’t do anything wrong but serve his country, then VA isn’t going to get their nose bent out of shape about me unmasking some so-and-so GS-14 at a nowheresville RO who can’t find his ass with a methane detector. We shall see.

Take a moment to remember your loved ones who served America. They done good. America is still here just as strong and proud as it was in 1776. Set  your politics aside and consider this conundrum. Somehow, there’s always going to be one nation under God that is the top dog. Right now, we’re it. Is there something wrong with that?

Memorial Day always reminds me that for those of us who have borne the battle, alive or dead, the battle seems to never end and the folks hired to help us seem to spend an inordinate amount of time on our tax nickel coming up with increasingly more far-fetched theories on why they don’t owe us a dime. Considering I’ve won everything I set out to do for my Vets so far, it’s my considered opinion that we’re working with folks who are dealing with marked cards or a stacked deck. Worse, they look me right in the eye with a straight face and tell me they are doing everything but breaking the regulations to give my clients “everything they got coming.” Sadly, that phrase is always a double entendre. Don’t get me wrong. We’re not losing. We’re just uncovering how despicable these folks are- one by one. Too bad they’ve outlawed capital punishment dang near everywhere. Lucky my daddy taught me how to tie a hangman’s noose.

Here’ my favorite Vets- my Daddy and my Uncle.

I was born south of the Mason Dixon line so I apologize if a bit of my past sneaks into my speech. I was taught you cut on the water and you cut it off. You turn off when you get to the road where you’re going. Reckon is a verb et cetera.

And that’s all I’m going to say about that.

P.S. If you really need toilet paper, wear a bulky sweatshirt/jacket and take a paperclip down to Cheapo Depot® Hardware Store. I hear the TP dispensers are incredibly easy to pick the locks on. Just sayin’.

P.P.S. Practicing Dog social distancing. (M-Mature Audience Suggested)

Posted in 1151 claims, All about Veterans, Blue Water Navy, Complaints Department, CUE, Duty to Assist, Food for the soul, HCV Epidemiology, Humor, KP Veterans, Memorial Day, Nexus Information | Tagged , , , , , , , , , , , , , , , , , | 7 Comments

LZ GRAMBO– I’M IN A CORONACOMA

CCV

Our illustrious Governor is pulling a Groundhog Day on us. I reckon he came out of his mansion and didn’t see his shadow. Yep. Six more weeks of isolation. I get that. This is the Northwest. That doesn’t begin to happen until about June. It’s caused by a local phenomenon called April Showers. Fortunately, as a VA litigator, I don’t get out much anyway. I spend most of my time on Fort Facebook. No. Just kidding. I go there to pick up good jokes and sample the mood of the nation-both the sane and insane. It’s scary out there. No wonder Mark Zuckerberg is running around with his Whackamole hammer trying to tamp down some of the tomfoolery afoot. I’m generally not big on censorship but some of the stuff I see is beyond the pale. 

The Jackster

Hereabouts, we’ve had seven (7) cases in my neck of the woods. Two deaths were attributed to it but they were never tested. They were 88 and 91 respectively. My guess is it was a 50-50 call. If a body got any kind of flu at that age, I’d be putting the Funeral home on speed dial just in case they weren’t Jack LaLanne types. Hey, did you ever notice that hair? Pretty sketchy. I’m almost positive that’s a rug. Cupcake can spot them a mile away just like she can folks who are not happy with their assigned sexual identity. Is that how I’m supposed to say it? Political correctness will be the death of me.

On another note, I got a big win on an old client. Terry heard me on a Hadit radio show way back in 2017 and called me up for a claims review. Terry has Muscular Dystrophy baaaaaaaad. He began coming down with it in service and had to retire because of it. I admire Terry. He’s gung ho. He went Operation Bootstrap and opted into a college education with the six-year hook of service as an officer  and a gentleman following. He banked that into a total of 20-odd years and a light Colonel. That’s some kind of dedication to America.

I assembled all his ratings and the pertinent data of the latest denial. We talked for an hour or two and I agreed to rep. him. I have to refund my claims review fee when this happens. The law is explicit. No dinero to take a claim. Only the 20% if VA recoups it or up to 33% if one of the big boys like CCK takes it.  Well boy howdy so much for the sympathetic development of his claim as a pro se litigant. VA started in with “Hey, dude. You’re the one who insisted we adjudicate it under nerves. Just because the ratings schedules in DCs 8513 and 8520 stop at 70% for your extremities isn’t our fault. Maybe you should have filed for Multiple Sclerosis and we woulda looked at it different. We can’t change it now…” In truth, the Army Medical Board chose it and the VA continued it. We were leaning towards DC 5110 for LOU of the lower extremities because poor old Terry was having the devil’s own time walking with Canadian crutches and one of those AFO rigs on one foot. Talk about foot drop. How about body drop when you fall down? How about Help I’ve fallen down and there’s nobody around to help me get up again. Hellooooooooooooooo?

Fort Deny, Mississippi

I flew down to Jackson, Miss. for the DRO hearing and dang near got frog-marched out the door by the jackbooted VA Po-lice. They accent that on the first syllable down there. In fact, it almost sounds like two words. I’m not kidding you. The DRO booth bitch put me on notice that if I didn’t quit spouting off about SMC and R1 that I was going to be persona non grata and how would my client feel about attempting this without me?

Right. That was a dry hole figuratively speaking. No pun intended.  Terry and I went back to the drawing Board. That would be drawing the Board of Appeals option. I put great stock in doing live hearings. With the advent of the new AMA, they are a thing of the past unless you want to make the trek back to DC and 1425 I street and do a meet and greet. We did. We got a January 5, 2020 date and rendezvoused there the night before for a confab on the Order of Battle. No. Just kidding. The Hyatt Regency in DC is right around the corner from Judiciary Square and they have six single malts and great chow. Well, not as good as some of the recipes in that Pow Wow Chow book put out by some Cherokee Senator from Oklahoma er- Massachusetts with the high cheekbones. Man, her cowboy caviar is to die for. Them fresh-caught Muskogee crawdad cakes are the cat’s pajamas too. Cupcake and I are working our way through the recipes during this corona thing. My LRRP buddy Ed thinks this bug should be called the Chinese Tariff Revenge.

Author and client

Terry and I bided our time/drinking our wine and sure enough the Judge (David Wight) cut a really good decision on this for R1. Hey, Terry earned it. Oddly, it’s the first BVA decision I’ve seen that only had about two or three cites to law in it. A lot of it was just 38 CFR or allusions to §1114 SMC stuff. Usually a decision has about  20 or 30 of them in there and most of them are not your friends. This points to one interesting fact. There simply isn’t very much cutting edge law on the higher SMCs besides Breniser and Jensen yet. Seems VA avoids it like coronavirus and hopes it’ll go away before it breaks the VA fisc.

Now, my Monday morning armchair quarterback analysis of the decision is Judge Wight didn’t want to let the camel’s nose in under the tent and go near my Breniser argument about “conditions”. To me, a condition is one of the ones in SMC L (§3.350(b). There are four listed -bedridden, blindness, A&A or loss of use of a combo of extremities be it leg and leg, arm and arm or arm and leg. Each one is a condition. Judge Wight was leaning on condition as in Muscular Dystrophy versus PTSD versus IHD ad nauseum. He was looking long and hard at the fact that Terry was granted A&A right out of the box at retirement  based in large part on the virtual total loss of his upper extremities due entirely to Muscular Dystrophy. The loss of use of his walking tools was an extra “condition” caused by his Musc. Dystrophy. I had that covered with §3.350(e) saying all the losses of extremities and A&A are part and parcel of one disease process but that’s the incorrect legal standard of review. Don’t get me wrong. It’s certainly one way of looking at it but not the prima facie reason in my fight here. Besides, I want to push Veterans law in the Breniser “conditions” direction. Our job as litigators is to continually push for more rights, better  interpretations of regulation and stretch the law to encompass a better outcome. The BVA hates to venture into new precedence. They leave that to the CAVC/CAFC.

Here’s Terry’s Great Big Adventure in DC. I was born there. I love the place. I Cub Scouted every memorial in DC and even went barefoot in the Washington Memorial Reflection pool. Shades of Jenny in Forest Gump, huh?

Terry BVA brief redact

R1 Redact

SMC? No such thing

Nothing tickles my funny bone more than winning SMC R claims. I’m losing count of how many but I’m guessing it puts one hell of a dent in the VA cash cow. R1 is $96 K+/year. R2 is $108K.  I found out quite by accident that there are less than 2,000 Vets in R1 or R2. The reason is simple. They don’t teach this to VSOs. It’s impossible to file a Vet for it if you’ve never heard of it. I’ve asked a number of them about it and I get the deer in the headlights response. SMC? Yeah, that’s a…a….ah pension thing. We do them all the time.

I recently got an email from a kindred spirit in this business. David’s a VSO and reads my drivel to figure out how this works. He even was nice to me and said all VSOs aren’t total dicks. After chatting, I have to begin lightening up on them. Hey, a knowledgeable VSO is better than nothing in this game. Considering VA attys/agents are as rare as hen’s teeth when you need one, VSOs serve also who only lick a stamp and send it in.  Actually, the more educated they become, the more lethal. Which gives me an idea. I wonder if I should go down to Tacoma and join the VFW? I could sit in the bar and educate them from a VBM. I could fake it and act like I got it from the public library and was amazed at what I was reading… I’d probably get 86’d for having an IQ over 86. It’s a thought. Most of them die (my thoughts) shortly after that little thought balloon forms over my head with the little circles leading up to it.

Here’s the latest  Corona humor if there is such a thing…

Last, I wish to remember all my Friends who didn’t come home from SEA. It pulls my string to see the bugout on April 21st through May 5th 1975. Nothing like coming in third and getting the bronze instead of the gold. To me, this is the day they should give to Vietnam Vets. The only thing worse than misreporting history is some chowderhead who can’t even identify an AirAm chopper from a USMC one.  Worse even yet, the below was the AirAm building- not the US Embassy. Ours had bullshit registration numbers too. We called them Elvis Presley registrations- return to sender, address unknown… no such number…

Funny thing was I had signed up for Rotary wing school and was going to join and go back over working for AirAm. Maybe that was a blessing we got out when we did.

Be safe.

Posted in Aid and Attendance, All about Veterans, Appeals Modernization Act, BvA Decisions, Corona pandemic, Corona virus, FACE HUMOR, Inspirational Veterans, R1/R2, Tips and Tricks, VA Agents, VA statistics, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , | 4 Comments

LZ CORK– CAVC ACT ONE-THE OPENING BRIEF

Lonestar belt buckles and old faded Levis… and each night begins a new day. And here we are at the Big House. It’s been a long journey from 2008 to 2020. Learn, learn and learn. And I had to go back to school and learn how to write a true, acceptable legal brief. They probably teach all that in law school but I traded it for a fun-filled two- year all expenses paid vacation in sunny Southeast Asia.  I have always fought and won below at the BVA. The chances of winning 3/4 to a million at the Agency level are somewhere between ‘never going to happen’ and ‘when you’re dead’.

I kinda figured this was going to happen so I started preparing and got admitted to the Court back in 2018. I didn’t realize the BVA was going to drag their feet so long and try to come up with a really good post hoc rationalization to explain why Butch missed it by thaaaaaaaaat much. Considering the mortar round hit about two feet away from him, it’s a miracle he isn’t in a Heavenly Zip Code. We hope to improve his luck soon.

Butch (in black tshirt) to the left of Gypsy Lee Rose and Bob Lockett January 17th, 1969-one day before the shit hit the fan and everyone’s life was turned upside down forever.

The BVA isn’t as picky on how you present an appeal. Lay it out. Facts. What happened. What should have happened. What didn’t.  Gimme the money, honey and be quick about it. Right? As for the VAROs, they don’t even read it until you get to the DRO zone. But, now that I know, I guess I could start writing them all like this. My former neighbors but still my friends, fellow warrior and clients all these years, Butch (and Barb) are now at the beginning dance before the “trial” and the verdict. Next up, the Court has the Rule 33 Conference scheduled for May 19th at 1030 Hrs Local PDT.  I have to provide a Rule 33 Conference submission to the Court’s chosen Central Legal Staff person who acts as a possible mediator and Secretary Wilkie in the person of Melissa Timbers, Esq. 027 OGC. In the briefing notes, I have to mention why Butch is right and why we believe the Secretary has been smoking too much Mantanuska Funderthuck, to put it politely. Every comma has to be perfect. Every cite has to be right. Every RBA has to be accurate. Or it all comes crashing down and you have to fix it. Time out. Delay. You look bad… like an amateur.

By law and Court rules, I get 60 days from February 28th -the receipt of the “claims file”- to submit my Appellant’s brief. I accomplished it a week early but spent the last month doing it. My mentor,  Robert P. Walsh, Esq., yet another distinguished Vietnam Veteran, has been my North Star.  VA can blame the damage I’ve done all on him. He taught me and now I’m loose like Pandora or the Fates and running amok. Very few of you know Bob is an 11 Bravo- admittedly Birdshit (Airborne) from the 173rd. He even has a CIB so he’s the real McCoy. There are damn few of us who do this who have walked in those green boots. I hope I do honor to us and don’t screw it up. Talk about Busting your Maiden on a claim like this…

Sit down. Get a beer or better a good single malt on a couple of rocks and start on page one. If you’re a law dog, you probable begin on i.  I only have one client who’s a lawyer so Lori may offer me some positive feedback. Cupcake and Buckwheat Junior, J.D. already gave me a boatload, too-on what to leave out. And of course, Pickles who demanded I take her out for play breaks and the call of nature. A Law dog literally.

The morning coffee klatch w/ heavy creme

Long 19-7301 Filed 4-23-2020 Opening Brief14

THE CORONA BRIEFING

If the Corona bug had to choose a time to appear, it picked the perfect one for me. Not that I welcome it but it relieved me of having to go to Spring NOVA in Atlanta right in the middle of my first opus. During this time, everyone of you readers seem to be sitting at home and scraping the internet for humor to keep yourselves amused. My mailbox doth positively runneth over.  I attach a few of the best and save the rest for later.

At LZ Grambo, Cupcake has been working with the horses on how to wear their masks properly and practice social distancing. Here’s Day one at lunchtime. Cooper is a Thoroughbred which explains why he was socially correct. The mask thing needs a lot of work. They don’t get it.

Big Shot, Cooper and Kona

The perfect Quarantini:

6 shots (3/4 cup) Pomegranate juice

3 shots Citroen Vodka

1.5 shots Cointreau liqueur

Shaken, not stirred. Chill the glasses.

 

Next, from LRRP Ed, I got the inside scoop on where this virus started. A bit racist but not over the top because I don’t think this is real. No one, blonde or not, could dial this one up.

Next, a Swedish beer commercial. Hey, I don’t shop for these. They arrive unsolicited. It’s still g rated so I’ll allow it.

And last, practicing social correctness and sneezing properly into the upper arm to avoid spreading germs. I think this flick is from Kyrgyzstan.

I do hope all of you are staying safe and lack for nothing. These are rough times for some and are not going to get better for a while. Learn to share. Help others. Keep smiling. God isn’t pissed at us. At least I’m pretty sure He isn’t. Anybody stupid enough to eat bats was bound to come down with something like this.

Posted in 1154(b) combat presumptions, 3.156(c), All about Veterans, C-Files and RBAs, CAVC Knowledge, Corona pandemic, Corona virus, Earlier Effective dates, Inferred claims, Informal Claims, KP Veterans, Lay testimony, LZ Cork, NOVA Attorneys, Pickles, TBI, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , | 7 Comments

FORT FUMBLE ARKANSAS–DRIVIN’ THAT TRAIN…HIGH ON NO BRAINS

Lord almighty. I have seen some screwed up stuff in my day but I cannot for the life of me figure out what they put in the water cooler at the No.Little Rock Veterans Service Center. By now, it’s like Ben Hur-with a cast of thousands. Seriously, I can go online and look at the entire roster of employees whose raters’ job descriptions say Veterans Claims, Examining. By now, every one of them has done either some pre-development or screwed up a rating on Chase’s claim. One would assume the higher the GS rating, the higher the pay and presumably the intelligence quotient. The odds are about 1/9 you’d win that bet.

I suspect the problem is more mundane. If your boss says “Write this up and be sure to ignore the M 21. Deny him and dream up some bullshit to pad it with.”, you do as you are told unless financially secure or morally driven to right obvious wrongs at the expense of losing your job.

So, it follows when I yellow-flagged them back on March 26, 2020 and  forced them to reverse their bogus denial, they had to send it to a new coach and a new VSR to write up the grant. You don’t want the whole office knowing you got your ass chewed by Wilkie et al for trying to be a complete dick and unlawfully denying my client. So they grant on 4/01. But what would possess the new crew to try to screw with me on the effective date? 3/06/2020? Are ya kidding me? Hatred. Vindictiveness. Trying to get mad and even. Do I have dumbshit tattooed on my forehead?

So I bitch. Again, they re-DRO’d and mea culpa’d to Wilkie and said “Dang. Missed it by thaaaaaaaaat much, sir. You’re right. It should have been 7/17/2017”. Where in Sam Hill they fetched that effective date from beats me.

So I bitch again last night and the VSCM (Veterans Service Center Manager) in charge of all the little rocky DRO boys and girls quickly emails back  and says he’s “sorry to hear I don’t agree with his hard-working raters” but he’s gonna send it up to Quality Control this time just to be sure his little people did it correctly. He assured me it would be timely and they’d get it sorted.

Right. I wake up this AM and have coffee with  Cupcake, Pickles and Widget. It’s a sight. The Great Unwashed morning menagerie unshaven with all our warts. Assuredly, Cameras are verboten. The dogs like the heavy creme part. I dip a finger in and let them lick it off. Pickles closes her eyes and inhales your finger. Widget acts like Prince Phillip and is very circumspect in his licking. We fit right in with standard social isolation protocols until about 9 and then we have to go out.  After this morning’s poop run with the dog children, I went in to VBMS. Bingo.

4-10-2020 redact

Forty minutes earlier, Ft. Pea Gravel had announced their fourth decision in fifteen days. The CUE count is now up to 18-eighteen CUEs. Think about that. Seems I recall Mr. Adrian Fugo’s Court said a CUE was a very rare kind of error- almost unheard of, mind you. Like unicorns and pots of gold at the ends of Rainbows. I’d suggest nobody go visit there for a while because lightning and bad moons arising are brewing in that zip code, honey. Anything is possible if you can get 18 unforced errors four times in two weeks and get them to make a complete 180 degree turn. Either that or maybe I should get into Wall Street prognostications for profit. Here’s the 3/26, 4/01 and 4/08 change orders.

3-26-2020 denial redact

4-01-2020 CueRedact

redact 4-8-2020 Narrative

If you folks get a chance, go on John and Jerrell’s Exposed Vet website and listen to our radio show from last night. I discussed this subject at length. These 6 new CUEs on top of the 12 before them last week granting the correct effective date this morning still leave us short of P&T which Chase deserves. He was somehow still going like the Energizer Bunny in Hospice when I checked last evening. I haven’t been able to keep in contact this AM due to Kate’s old flip phone battery being shot. She has to keep it plugged in.

Speaking of this morning’s poop run, here’s a short clip on proper isolation distancing techniques with the neighbor’s dog Jaxson. I shot this one in the driveway. Enjoy. Be safe. B. Good.

 

 

P.S.  A sad one at that. Chase passed away this evening about 1900 CST, April 10th, Good Friday, 2020. Another Marine gets his OO-Rah at the Front Gate. Sadly, it didn’t have to be this way. You both are in our prayers tonight and for a long time into the future, Kate. Thank God we made it inside the wire before he passed. That’s all that counts. Win or Die. And that’s all I’m going to say about that.

 

Posted in All about Veterans, AMC or ARC, CUE, Earlier Effective dates, Food for the soul, Independent Medical Opinions, Inspirational Veterans, Jetgun BvA Decisions, medical injections, SVR Radio on hadit.com, Tips and Tricks, VA Agents, VA Conspiracies, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments

Overcoming the VA’s New DBQ Policy

Sleep Apnea DBQ

Last week, the VA announced that it would discontinue the use of public-facing Disability Benefits Questionnaires (DBQs) – meaning that it would no longer make DBQs available to the general public on its website. DBQs are standardized forms completed by medical providers that outline the severity of a condition.With a completed DBQ, a veteran could provide essential medical evidence towards their increased rating claim and (more importantly) contradict an unfavorable Comp & Pen report.  

Prior to last week, the VA’s website hosted links to DBQs for various medical conditions. Without access to these DBQs, what options are still available in a veteran’s fight for a higher rating?

Get Creative

The VA says that its Comp & Pen examination system is now widely available, which minimizes the need for DBQs. But that process is often flawed and results in evidence damaging to a claim. For veterans with an unfavorable Comp & Pen report, some consider paying for an expensive Independent Medical Opinion (IMO) to support their case.

As another (more affordable) option, veterans can recreate the success of a DBQ with a letter, written by their own medical provider, describing the extent of their condition.

In any provider letter, the following information should be included:

  1. Identification of the provider’s credentials (e.g. “I am board-certified ______”)
  2. How long the provider has treated you, and the scope of treatment
  3. The symptoms associated with your medical condition, including:
    1. Frequency
    2. Severity
    3. Impact on daily activities (including work)
    4. Effect of medications
    5. Prognosis, if applicable

For authenticity, each letter should be on the provider’s office letterhead and include a signature and contact information.

Maximizing the Effectiveness of a Medical Provider Letter

To increase the value of any provider letter, you must tailor the above framework to the VA’s Diagnostic Code – the manual that VA personnel use to rate conditions. Many conditions have an specific Diagnostic Code containing criteria for ratings. For example, Migraines is listed as Diagnostic Code 8100, which looks like this:

For a veteran with a 0% rating seeking a higher rating for migraines, it is important that any provider’s letter mentions the frequency of the migraines and whether they are prostrating.

Working with your medical provider to tailor these letters to the VA Diagnostic Code is most effective because  it mirrors what DBQs are designed to do.

Your Fight For a Higher VA Disability Rating

With some proactive research and a helpful provider, disability letters can help win your VA claim for an increased rating. Even if the VA orders a Comp & Pen exam anyways, a well-written letter can help sway a Comp & Pen examiner whose opinion can make or break your case.

Don’t wait for the VA to obtain an unfavorable Comp & Pen report – take charge of your VA case with a provider letter today.

If you have any questions, please feel free to contact me at kcraveiro@roblevine.com

–Kelsey

Posted in C&P exams, Diagnostic Codes (DCs), Guest authors, Lawyering Up, NOVA Attorneys, Uncategorized, VA Attorneys, Veterans Law | Tagged , , , , | 3 Comments

HADIT.COM RADIO SHOW WITH JERRELL AND JOHN

Right. Once again I get the honor of the Golden Microphone from Jerrell and John. Mark your calendars and note the new telephone number. I’d like to discuss the new improved standard of rudeness from VA ratings adjudication personnel. The service was always chilly and the conversations full of pregnant pauses and note taking. However, with the advent of the new AMA, VA has descended even further into the Maelstrom of adversarial incompetence.

I got this glacial treatment at a DRO hearing in Jackson Mississippi in July 2018 where the “booth bitch” threatened to have my skinny no-account ass removed and escorted out of doors if I didn’t go sit in the back of the bus. I almost felt like I hadn’t earned my lunch money for that gig. It’s not that I was ill-prepared. I wasn’t. It was because the DRO refused to talk about SMC L for Loss of use of the lower extremities. They know this leads to R1 so it’s forbidden discussion. Next? Now, mind you, this behaviour was before the AMA when I was still writing jokes about it. 

The Houston Two-Step

Houston folks are rating reducer specialists. They use silky smooth sleight of hand and mirrors. First they increase your rating for a knee from 20% to 30% and toss in 10% for pain in your ankle. Surreptitiously,  with the other hand, they are reducing your 26-year protected rating for a painful harvested tendon  scar from 20% to zilch. The argument is it isn’t a reduction unless you end up with a net loss of rating. But they did just that. Watch below in the .pdf of the Code Rating sheet.  The 20% up to 30% increase and the new 10% for the hip started on September 9,2017. At that point, he was 90%. On 2/24/2019, they took away the protected scar to knock him back down to 80% and deny TDIU.  This was also where they denied TDIU. The inference is that you can’t get TDIU with 80%. You need 90%. This also shows some  behind the scenes card shuffling to get just the right amount of reduction to reduce it to 80%. Too bad they chose the protected rating. Worse. They had to fix it when someone noticed they’d accidentally given him 90% combined. This takes ratings to a whole new low.

Illegal reduction from 90 to 80%

Houston misfeasance

I don’t want to spoil the show. Say a prayer for Chase and Kate. He entered hospice on Sunday PM in Nashville and they’ve taken him off insulin, heart meds and anti-rejection meds for his liver transplant. It won’t be long. I wish I could be there with Kate. As usual, VA is being a hard ass and jacking her around. I made sure I let the Fort Little Brains poohbahs know he’s on hospice. That way they can’t do the “We’re soooooo sorry. We had no idea or we would have done this sooner.”

Anyway, here’s the Bat Signal we all know…

Which means two days hence, at 1600 Hrs on the Left Coast and 1900 Hrs on the (L)east cost, we will begin transmission.

Now make sure you note the new number.

(515) 605-9764

As usual, if you wish to ask a question, press the numero uno (#1) on you telecommunication device to let us know you wish to speak.

Is this the person to whom we wish to speak?

Posted in Appeals Modernization Act, Complaints Department, Humor, KP Veterans, Reductions in rating, SVR Radio on hadit.com, Tips and Tricks, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , | 1 Comment

FT. PEA GRAVEL, ARKANSAS–OZARK MOUNTAIN DAREDEVILS

Pvt. Chase USMC 1969

As all of you Coronaphobiacs know, April Fool’s is my Birthday. And that being the case, life would not be worth a hoot if I didn’t gig some poor soul somewhere in the world. Somebody must pay for this crime. What was my mother thinking? I know what Cain felt like. I got the “mark” put on me for life, too. Which brings up an interesting story that provoked me to come out of a CAVC brief haze. God I hate writing those things. The Court is anally retentive. Every t is crossed and every cite is correctly cited or it’s non conforming and back to the drawing board to fix it. This story is about Kate and Chase. It seems all my very oldest Veterans are finally getting their ‘day in court’ and winning (fortunately). 

Chase and Kate came to me along about 2014-15. Chase had been hornswoggled into doing  the triple drug cocktail of Telepravir/Interferon/Ribavirin with a Stage 4.9 liver  with esophageal varices and a positive antinuclear antibodies test (ANA) in 3/2012. That’s medicalspeak for  don’t even think about Interferon. VA doctors talked him into it with wild tales of 80 % success rates. In your dreams, jellybeans. It was more like 37% in reality and 0% for guys as far down the Hepatitis C road as we are. His liver gave down on him a month later after the fourth dose. The sad thing was if he’d waited about 2 years (which was feasible) he could have done the Harvoni like the rest of us. He wouldn’t be signing up for hospice today if he had. I have another Vet (WGM) down in Texas with the same story. The triple drug poison cocktail. VA bought a trainload of it right before the advent of Sovaldi/Harvoni. They were pushing it like Junk down in Harlem on Friday night.

Chase was unique. VA had already run up the white flag and awarded him $100 K for a FTCA claim. I explained to them how you could file for both the FTCA as well as an §1151 medical malpractice claim. The VA comp. is the higher value benefit because in three years you’ll have $105 K in the bank but if you stay alive ten years, you’ve banked $370 K and so on. If you win a FTCA claim and then win a §1151 claim later, you have to pay back the FTCA bucks. Hey, I get that. You can’t collect twice on a life insurance policy, right? So Kate filed and we sat back and cut bait.

I ghosted their 2015 filing for a trainload of liver transplant problems as well as a basic hepatitis claim on top of it as a catchall. It’s inferred and informal. It’s required by law to look at all potential causes if you represent yourself. Here, all medical roads led to Rome. If it wasn’t medical malpractice that led to the need for the new liver, then it was due to getting the Hep C in the first place. Six of one and half a dozen of another.

We fought long and hard. I did about a 23-page brief on the NOD after the boiler plate blowoff job. Two VA doctors said it  was a really bad idea to do the triple cocktail but they weren’t “real” IMOs. Play four bars of the Jeopardy™ song and wait for the grant/SOC.

Now, mind you, VA forgot to do a signed consent form for Chase. VA does this by handing you a black electronic pad with a stylus and you sign. You don’t know anything more than that you are complying with 38 CFR §17.32(d)(1)(i) which demands VA get an electronic signature into the VistA VHA computer before they can legally inject any drug into a body cavity (i.e. abdomen). No consent = FTCA/§1151 win.

They spent about an extra month or two investigating if his HCV was service connected. I called up Fort Pea Gravel and talked with the DRO “Coach” Darla. She was polite as pie and said they were going to do me a speshull favor and get a c&p for Chase and see if just maybe they could grant HCV based on jetguns and sharing haircuts.

Right. You folks don’t see the Mayflower tied up to my front porch nor was I born last night. I told ol’ Darla that if the kind folks at Little Rock Puzzle Palace couldn’t find it in their hearts to actually grant, why I’d just step out and fetch me one of them fancy IMOs from some city slicker doctor. We laughed and laughed and laughed. They sent the SOC a week later on 1/13/2020. The SOC said “we tol’ you twice, son. You nodded your head okay. Sorry, Charlie. Won’t fly” Besides, we searched your (nonexistant) STRs and there’s no mention of you having Hep C.” Well shoot. That’s like looking for a front bumper for your 1965 Mustang in a junkyard in 1946. Duh?

Anyway, I did just what I said I’d do. I even bought it with my own money. I submitted on March 6th, 2020 on a 60-day SOC fuse with seven days to spare. Thank you Adam and Jessica at Mednick Associates. You folks rock! I then  saw a filing pop up in VBMS with a weird Form 9 discussion and realized they were not taking it as a Supplemental claim but keeping it in the Legacy system. And this is where our nonadversarial, Veteran friendly, Mother VA reared its ugly head like a pissed on pit bull.

I contacted the guy who left the note in VBMS down in Phoenix  via VA email and said “Negatory on the Legacy. I’m sending you a new 995 Supplemental with box 13 checked to opt-in from Legacy. It’ll pop up in the Queue today if you want to redo it properly”. The munchkin in Phoenix called me back 4 minutes later and accepted my change order  to fix it. They uploaded it the next day. Unfortunately, in the meantime, some brain dead Zombie Snowflake in Arkansas decided to a) cut the IMO off the .pdf leaving only the old 995 with no opt-in box checked and b) tossed it into the trashcan because… well, why now there was no new evidence attached. That was just the beginning. Two days later, I got it re-established by emailing the poohbahs in DC and explaining it to them. Not to be thwarted, the little people at Fort Little Brains got even more pissed and tossed it a second time by saying “No. This was once inferred as a VA 9 Legacy Appeal and we are not going accept it as a Supplemental. No. No. No. Our Coach agreed we don’t have to do it. We’re closing it. Neener, neener neener.”

I emailed the really super duper bigwigs ( including Hon. Robert Wilkie) again on March 24th and said “Help. I’m dealing with mental midgets replete with room temperature IQs in a backwards state called Arkansas. Can someone explain the new AMA to them? Boom shaka laka laka. Just like that, the music stopped. Everybody in Arkansas immediately became submissive said Sorry for the snafu, Buckwheat. It’s back in the claims queue. Some poohbah Coach back there even sent me an email and said”We’ve got this handled in Little Rock, sir. I’m personally monitoring it. You can count on me.  We’ll have a decision out for you in an Arkansas minute. Stand by”.

Literally 20 hours later Friday morning, I wake up and tune in to VBMS to get the “Oh. So you think you can just call up DC and sic the Secretary on us? Well, suck on this one Mr. Graham. We’re denying your stupid IMO. The IMO is so flaky, we gave up reading it. It looks like it was written by a third grader. Thank Chase for his service, hear? Ta Ta For Now. Signed Your friends in Little old Rock town ” Now, this is really sad because Chase is lying 8 hours away in the Nashville TN ICU on O2 w/nasogastric feeder and catheter and a 5-port PICC line in his arm trying to kill his double pneumonia and recent strokes (7) which have paralyzed him from the neck down. The jackbooted VA police won’t let his wife in to see him because she wasn’t on the approved “List”. They suspect the coronabug-if not now- soon. Does this man look like 30% for s/p liver txplant or 40% for HCV? So I hit the Bullshit button.

 

Well, I guess you know me. I won’t sit still for this silliness. Friends in Laos remember me as the guy who always had a spare HE or two for my thumper in one of my cargo pockets. I popped one first thing Monday morning. Cupcake made me rewrite it five times to make it less hostile and filled with rainbows and unicorns stuff. I don’t do unicorns but I did this time. If Chase passed before I got his service connection for this, I would be years at the BVA trying to get accrued bennies and DIC for Kate. Kate didn’t have years and they didn’t have a lot of money to hold out on for months of isolation. Chase wasn’t going to go far. His medical situation doesn’t lend itself to anywhere other than a hospital or upscale intensive care nursing home. VA isn’t accepting any new clients even though they are starting to get a lot of bed vacancies due to the virus. Kate doesn’t consider that anything more than consigning him to a horrible death. The only other choice is to isolate there on the palliative ward at Nashville and stay in the care of the one doctor who has been the loudest voice who spoke for Chase and wait for the obvious. It’s one of the saddest cases I’ve ever worked. It gets harder and harder to do the Last Rodeo. It’s like Vietnam all over again. We just did this with my good friend Sam Bailey this last last February.

 

Lo and behold my pleas landed on welcoming ears. I woke up this morning and found the DC honchos got out the bullwhips and went down to Little Rock yesterday morning. Faster than you could say Jack Robinson, Fort 3/8″ Minus discovered they had plumb stepped all over their neckties and overlooked certain regulations. They CUE’d themselves almost as many times as that time I called them out on R1 down in Phoenix back in ’17. I think that was 9 CUEs. Of course, they low-balled us and gave him a rotten effective date. I sent them another love letter this morning and thanked everybody but suggested they sharpen their pencils again and read the records. The effective date is 3/30/2015- not 3/06/2020.

Boy howdy when you just cheat all the time, it becomes an imbedded bad habit. When you finally get called out by the Corporate bosses, and you still can’t bring yourself to do the right thing, you’re certifiably defective. It must be hell being a VA rater or DRO. You’d have to hate Vets and probably the whole human race to do this. Madoff, Hitler and Stalin would have loved the job. Sometimes I think if DROs had been of draft age in 1942 Germany, they would have sought out jobs at Treblinka and Auschwitz. That’s how low my opinion has sunk over the last 10 years.

Kate and Chase in happier times.

Chase and Kate have finally prevailed. If he were to pass tomorrow, Kate will still get DIC. That was my biggest worry. Well, anyway, April Fool’s to all you jackwads in Little Rock. How does it feel to get bitchslapped? Remember me you should. Yessssssssss. I hope that stain ends up in the permanent record. Sadly, if history is any harbinger, at VA, it will portend a promotion and a bonus.

The good news is I got to meet Kate and Chase back in 2016 or 17. They drove out to Washington and left their shootin’ irons here for safe keeping while they went up to Canada for a week. I don’t always get to meet my Vets but this was a client I’ll always be glad I was given the honor of representing.

I’m attaching the actual documents and the email chains back and forth between the conspirators. If you didn’t see it with your own eyes, you wouldn’t believe me. Sometimes I feel like a fly on the wall. It isn’t the first time and won’t be the last. Jackson and Houston are famous for this, too.

redact email chain over EP 170-040

3-26-2020 denial redact

redact rebuttal email 3-30-2020

4-01-2020 CueRedact

See Virginia? There really is an April Fools faery. I’m living proof. Say a prayer for these two wonderful souls tonight if you would.

Christmas 2015

 

Posted in All about Veterans, ASKNOD BOOK, Complaints Department, Corona pandemic, Food for the soul, HCV Epidemiology, KP Veterans, Lawyering Up, Legacy Claims, Tips and Tricks, VA Agents, VA FTCA Claims, VA Medical Mysteries Explained, VA Secretaries, VARO Misfeasance, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 10 Comments

LIFE IN THE CORONA LANE

Golly doggies. I never thought I’d see the blame game rise to such a vociferous he said-she said level. I read this morning that an Arizona couple decided to self-medicate with chloroquine phosphate. He died and she’s sicker than a dog. Apparently, our discredited President told them to take it.  That dramatically moves the goalposts of the “it’s not my fault” theory of law. I wonder if she plans to sue?  It is decidedly different than a genuine prescription of  chloroquine which is what we ate in Vietnam to reduce our chances of coming down with malaria. Chloroquine phosphate is used to clean fish aquariums. I’m gonna go out on a limb and bet the container said it’s not for human consumption. Similar warnings abound on Erythromycin antibiotics and other medications used in fish aquariums. This looks more and more like a Darwin Award candidate from the dry lake bed end of the gene pool. 

Cupcake and I no longer have fish pets. My three-year old son turned up the aquarium heater back in 1990 and cooked a pair of breeding discus fish with offspring.  Fortunately, that insulates us against this very same medication mistake. An interesting aside here is that we innovative Vietnam airmen were reduced to crushing up hydroxychloroquine tablets and mixing them with soda water or Perrier to approximate tonic water for our Tanqueray and tonics during afternoon tea. You can’t drink gin straight unless it’s properly chilled to 32 degrees and you aim the vermouth bottle towards Paris. This incidentally might explain why we had a substantially lower rate of malaria infections than our Army and Marine counterparts. I disremember anybody dying from too many G&Ts.

Our Governor finally announced yesterday afternoon everyone has to tremble in place and refrain from going out in public for several weeks until this blows over. Frankly, I find this disturbing. Who’s delivering the food? Are they virus-free? What about the mail delivery associate? Hey, being isolated with Cupcake, Pickles and the rest of the tribe is not mentally excruciating. I’m not a gadabout anyway. I spend 99% of my time right here in the asknod cockpit hammering out legal briefs and these inane blogs. The Governor’s blurb includes a list of all the services which are considered essential and will continue to be open. The list runs to twenty pages. Hell, marijuana and booze were at the very top of his essential list. By the time I read the whole article, it was apparent they could have made a very short list of who were required by law to stay home and say everybody else was free to roam about the country on Southwest. Based on this, 77% are essential folks who are required to work. How is that going to prevent the spread? After two weeks, us 33% all come out of hibernation and get hit with the bug. Steer clear of the aquarium water.

America is resilient. We fought two wars-three if you count Korea. Vietnam doesn’t count according to the VFW because it was a lowly “conflict”. Okay. I concede they changed the rules and accept Veterans who are not “war” Veterans now. Of course they’re accepting just   about anyone now to help hold up the bar- including Stolen Valor types. In any event, the Corona ‘cough and die’ syndrome will go down in history books as particularly virulent… like SARS and MERS. Could be we’ll never shake hands again and continue to bump elbows. Could be a lot of old folks will punch out to a heavenly zip code from it. Endless conjecture will solve nothing. Ditto worrying until you’re reduced to tears. If you’re poor, quit eating and go on that diet guaranteed to make you lose 35 pounds in two weeks. Your friends will be pea green with envy when they see you again.

I looked in Facebook this morning before beginning this tome and was mortified to see all the caterwauling, ‘sackcloth as fashion’ and ashes being anointed on foreheads across our fruity plains. I remember a FNG who arrived in-country one monsoon day back in early September 1970. He talked endlessly about anything and everything around us. It plumb drove us crazy. “So what do you do on weekends around here?” “What was that noise?” “What days do the dinks usually hit us ?” “Do we have to get permission to shoot back?” “Do you prefer to call them dinks or gooks?” ” Why do you count to two before you throw your hand grenades?” And on and on… for a year. I’d hazard a guess he was still asking questions when he got on the 130 Klong flight to go back to the World 364 wakeups later. “What time do we arrive in Oakland? Are they serving dinner on this flight?”  I wouldn’t be surprised if he helped invent FacePlace® with ol’ Mark Whazzisbutt 25 years later. LORD, that man could lay down some word cable. And yes, we nicknamed him “Chatty Cathy doll” or Doll for short. That was probably the longest year of his life. I’d hate to be his wife for the next two weeks. That would be cruel and unusual punishment.

If you set March 1st as the beginning of corona ‘wokeness’, then we’re into this about 24 days. That’s a mighty short time to develop catastrophe dementia. World War Two gave us Ronald Reagan and Jimmy Stewart. Korea bequeathed Elvis Presley on us. The Cold War begat bomb shelters. Vietnam begat the Rolling Stones and the SACO Arms M 60 Pig. I used to sing ‘Satisfaction’ by Mick and the boys to keep the barrel cool-.i.e. only shooting during the guitar riffs.  I don’t remember sitting around crying or going into a deep funk. Sure you got depressed when your buddies didn’t come back to the airpatch and land at 1700. That’s why we got up the next day at O dark thirty and flew back over the PDJ and killed them right back. We’ll conquer this corona bug and move on the same way. You guys and gals sure don’t need a pep talk from me. I don’t do parades either. Relax. We’re Americans. We can win anything if the politicians get out of the way.

One thing we can be sure of is that when this fustercluckery abates, we’ll still be here. Well, most of us. Some of us will be forced to build detached garages or small outbuildings to house all that OCD toilet paper and hand sanitizer binge shopping. Maybe a new gun safe for all those new rifles and pistols. You’ll eventually use it. I stuck all mine up in the attic. Another trick I learned a long time ago out birdhunting with my dad (and later on in Vietnam). If one of our dogs hung on barbed wire, we’d have to carry them back to the car and sew them up. “Doctor” Henry would shave a forearm and hit them with Ace Promazine and surgically clean the wound area with Jack Daniels or Black and White scotch. Of course, the surgeon (Dr. Dad) performed a short obeisance ceremony towards Kentucky or Scotland before oral cleansing (as well as any assistants). I never got any because I was about 7. Nevertheless, the concept of liquor as an antiseptic was born in my mind. So relax. If you think you’re going Bingo on hand sanitizer, do an inventory of all that low rent booze left over from your Christmas party and repurpose it if necessary. The next several weeks are going to call for some of us to reinvent our lives. It may even require thinking inside the liquor cabinet. Boy howdy I don’t know what to say about the marijuana thing. Damned if you do- and frankly-quite possibly damned if you don’t. If you’re addicted and not very adventurous,  you’re in for a long drying out period. Conversely, if you choose to drive down to Crazy Patty’s Pot Shoppe, which will be open because it’s on the “essentials” list the Governor published, you run the risk of getting pulled over by Officer Friendly to ask just why in Sam Hill you think you should be out and about. I can spot the stoners around here now. They’re the ones sitting at stop signs waiting for them to turn green.

Pickles and I are now on album III of Babble© Spanish for dogs. Cupcake swears she thinks Princess can say Hola but it’s sketchy. It’s identical to that noise she makes when she looks you square in the eye and barfs after eating too much horse manure. As for that eeeeoww at the end of her yawn, I think every dog does that-so I’m thinking about asking for a refund.


Tengo que usar el baño.

Pickles is letting herself go on personal hygiene. She hasn’t shaved or taken a bath in weeks. More anon. Be safe.

 

 

Posted in All about Veterans, AO, Corona pandemic, FACE HUMOR, Humor, KP Veterans, Medical News, Pickles, Tips and Tricks, VA Agents, Vietnam War history | Tagged , , , , , , , , , , , , | 6 Comments

VA-ADDITION IS NOT OUR STRONG POINT

Cupcake and I were self-isolating with good reason before the poop hit the fan. This began way back in early February. We got the ugly news about a month ago when the blood labs check engine light came on. Her CBC test for White Blood Cells (WBC) came back very low after radiation therapy. Seems every laboratory has a different spread of what constitutes high or low readings. Apparently 3,000 or less of them boogers on any scale is not good. It becomes a problem when you don’t have enough because your body needs them to fight off bugs like flu, colds and… coronavirus. I have to isolate with her to avoid dragging the dreaded bug in from the post office or from meeting with clients. If I absolutely have to leave, she makes me strip to the birthday suit in the laundry room when I return and take a shower. The clothes go straight to the washing machine.

This Corona dilemma isn’t so ominous or mentally depressing as it sounds. I imagine it would be if you lived in an apartment building and all you had was an iguana and a view of your parking lot. We don’t. We live on five acres and it’s not a viable solution to tell the horses they have to get their own hay, water and feed. My feral kitty Ambush lacks an opposing thumb and finds it difficult to reload her food dish. Pickles and Widget live indoors with us and my parrot Buddy so we all quiver in place except for poop patrols and the mailbox run.  I’m not so asinine as to deprive the dogs from hanging out with their buds in the neighborhood. Aly, Jakson and Gus still come over for playtime every day. I hear dogs can get this but I doubt they’re going to get it around here. We don’t live near any nursing homes.

Buddy- 51 years old

Pickles- 1 year old

Ambush-9 yrs old

Widget 10 yrs old.

I’ve been browbeating the old BVA hearings Coordinator in Seattle( Tammy S.) to crank out one of my widow’s BVA wins. She’s been camped out on it for almost a month. The National Work Queue nowadays kites rating decisions all over the country to be written. Tammy has to follow their lead. In this case, some gomer in Newark granted two A&As-one each for Bob’s IHD and his three cancer sites (brain, sinus and lungs). I wrote about this recently and here it pops up in my back yard.

https://www.va.gov/vetapp18/files8/18126101.txt

Tammy is good at coordinating hearings. Unfortunately, her mathematical prowess is lacking. She did pick up on the two SMC Ls for A&A but blew it on the number of months due. She came up with six. I guess that’s the newfangled VA math, huh? When you first win, VA begins paying you the month following your win. When you die, your spouse or estate gets one last check the month following your demise. It’s called the Month of Death check or MOD. If you lived two minutes into a new day on a new month, you get paid for that whole month. Quy Nhon Bob made it all the way to noon on July 1st, 2018. Ergo, his widow was entitled to that month for his comp. check. VA had rated him on June 21st, 2018- ten days before he punched out- with a 100% schedular with an effective date of December 26th, 2017 for P&T at SMC S. Count with me, folks. All of December, January, February, March, April, May, June….and July. I come up with eight months. They gave him SMC S for that period but inexplicably, when we got the Rating decision back after the BVA win in February, they granted two A&As. For some reason, they revisited the 6/21/18 and gave him SMC L (A&A) for the IHD at 100%.

Tammy emailed me back and said SMC wasn’t her strong point and she had asked for a good mentor to walk her through this one. She started doing ratings back in 2007 when she went to work for VA. She went back to her old calling in 2019 after the inception of the AMA and the BVA honchos taking over her hearing board coordination duties. Tammy, or her super duper mentor Katrina, need to go back to SMC school. They tried to use the SMC calculator. Not. She did, to her credit, dial in on the dual A&As but only came up with six months instead of eight.

Here’s the problem. Tammy granted SMC “O” for two SMCs at the L rate- the two aid and attendance ratings which are separate and distinct. However, as most know, When you are granted SMC O, and one of the SMC Ls is for A&A, you get to do the chutes and ladders game and advance to R1. It makes no difference if you have more than one A&A. The metric is that you must have two ratings between SMC L and N-period- to qualify for SMC O. If one is for A&A, you yell Bingo! There’s another arduous path via SMC N 1/2 plus a SMC K which would get you there but that’s a mighty tall order. You’d dang near look like a 50-gallon barrel with your head sticking out. No legs,arms or a winky. SMC N is spartan in its requirements.

I’ve studied SMC for years and still call up my old former BVA Veterans Law Judge Brad for a “what if…” every once in a while. This is SMC 101 though…unless you’re trying purposefully to shortchange the Veteran. No one can tell me the M 21 suddenly gets vague and balky when it comes time to input the LOU/A&A parameters. Once you get to SMC O, the language in the regulation §3.350(e),(h) is explicit and easily decyphered.

(h) Special aid and attendance benefit; 38 U.S.C. 1114(r) – (1) Maximum compensation cases. A veteran receiving the maximum rate under 38 U.S.C. 1114 (o) or (p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense.

Looks like Tammy and her mentor Katrina V. only looked at §3.350(e). My quandary is whether to do a VAF 20-0996 Higher Level of Review (HLR) or go to the BVA on direct review and have someone who can count without using their fingers do it. Since there is no intelligent life at the 56 ROs across our fruited plains, my choice is limited. From what I’ve seen so far, a HLR would probably produce an identical result and a confirmation that Tammy and Katrina are spot on. In all my years of doing DRO formal reviews, all I ever encountered was a copy and paste of the original denial with essentially a “What part of ‘no’ did you overlook?” Here, the relative inability to understand SMC at all indicates the futility of a successful do over. I’m hearing from other Attorneys that some of these HLR litigators  er VA examiners are emailing or sending us letters saying they refuse to do a HLR informal telephone call because nothing we say would ever change their minds. Many of these attorneys have submitted legal briefs to explain the error. VA puts these in the circular file and claims we are not permitted to submit squat. Imagine. Due process? The right to face your denier? This is quite obviously not what Congress envisioned. I wonder how long it will be before someone at the corner of Delay and Deny Ave. notices this glitch. Until then, I won’t be going anywhere near a HLR filing.

Meanwhile back at the COVID 19 gig, the humor rolls in. I certainly don’t subscribe to the suffering of others but I learned a long time ago about the depravities of war. This is really no different. We’re all on the firing line. The Golden BB could find any one of us on a given day. That’s no reason to pout and have existential meltdowns. Life will eventually right itself. We’ll all look back on this like  9/11/2001 or the economic meltdown in 2008. Shit happens and then it goes away.

Try as I might, I try to avoid laughing about this corona business. I don’t buy 4 rolls of TP at a time. Costco only sells it in the “nuclear” packaging-like enough to last you ’til the Cesium 137 level outside gets below 4,000 ppm in 2021. The same applies to peanut butter and steaks. That’s why we have freezers, folks.

Within the next month to six weeks, we’ll all look back on this as a bad dream. The government, meanwhile, will have found a way to spend trillions on crap we’ll never use. Hotels will be converted into hospitals and then converted back into hotels. Everyone will be poorer except for those who were heavily invested in the stock market who got the ‘word’ ahead of time and bailed. Cupcake and I lucked out on that one. When I was cured of Hepatitis C by a Gilead Sciences product (Sovaldi), I decided to help them out and bought about $10 K worth of shares at $59. It never went anywhere…until last week. I see it hit $78 last Thursday. Rather than piss all of you off out there and dump it, I decided to hold on to it and let it go where it will.

Last on the Saturday report is a daisy from my good friend Ed the LURP. Keep your eye on the doughnut. A word of warning. Be safe. If you buy any veggies at the grocery store, scald them with hot water. Seems the teenage pukes are spitting and coughing all over them in hopes of decimating us old folks. Ditto toilets. I hear the new Corona challenge is to lick the rim. I hear a double dog dare involves taping Tide pods around the rim. Cool beans.

Posted in Agent Orange, All about Veterans, Appeals Modernization Act, Corona virus, FACE HUMOR, Humor, KP Veterans, Tips and Tricks, VA Agents, VA Attorneys, Vietnam Disease Issues | Tagged , , , , , , , , , , , , | 9 Comments