THE BVA’S “PURPLEBOOK”–THE LAST WORD ON STARE DECISIS

Every once in a while, either someone sends me a great article or a link to one. Once, I got the Army manual on the care and feeding of jetguns.  Nurse Silvia went one better and sent me a whole jetgun. Last night I received the BVA Purplebook,  known in decades past simply as the BVA handbook. It isn’t a Top Secret/Crypto For Your Eyes Only document, but then again it isn’t exactly well-known outside the BVA. In fact, the 2018 version below is one of the few known to exist outside 810 Denial Avenue NW. I’m waiting for BVA Chief Honcho Cheryl Mason to call next Monday and ask me to take it down under threat of losing my license to torment the 56 Puzzle Palaces across our fruited plains. 

Oddly, even VA Veterans Law Judges have been known to cite to it. I ran across it several days ago when one of my friends deep in the heart of Texas asked me if I’d ever heard of it. This was in relation to an interesting new CAVC appeal ( Docket #18-6798) which is only now at the appellant’s brief stage. It’s going to be a barn burner class action suit with a panel on Hypertension due to Agent Orange herbicide exposure. See https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom

Type in  18-6798 in  the case number/ range box.

As most of you know, the VA was expected to include several new service connected presumptives to include hypertension by June 30th of this year- now  three days past. Due to matters beyond the VA Secretary’s control (think Procopio), that isn’t going to happen. The entry of the Blue Water Squids (just out to the 12-mile limit, mind you) is going to create a dent in the VA compensation coffers and there will be no money left for merit pay for a while until Shulkin Wilkie gets a new budget in the next fiscal year.

The Purplebook is numbered identically as the M 21 which is a non sequitur. The  BVA, and every Law Judge I argue in front of, categorically deny they will accept the M 21 1MR as “law”. I have been interrupted in mid-sentence at oral briefing and told to convert the cite to 38 USC or CFR for the record. The Purple Book is essentially a compendium of precedence compiled by the BVA from the ever-evolving decisions of the CAVC, CAFC and the Supreme Court. Procopio is an excellent example of how Haas v Peake was rendered obsolete in less than 12 years. Karnas turned into Kuzma and so on. Law changes and so must the Purplebook.

The Purplebook is a primer for the slew of new GS 14 BVA staff attorneys-many of whom are arriving from law school with their new degrees and can’t even spell Veteran. Most Veterans do not realize that Veterans law is almost alien to most FNG law dogs. They’ve been taught nothing about this venue. When they’re hired, they have to virtually go back to law school and learn its intricacies from scratch. Unfortunately, there is no true law school devoted to teaching pure VA law in existence except here at asknod. Concepts like deferential treatment to pro se Vets, the benefit of the doubt and far more require reading 38 USC and 38 CFR to comprehend we are a sheltered class granted all manner of special considerations.

I caught a fleeting glimpse of this Purplebook mention in a February 2019 BVA decision here:

https://www.va.gov/vetapp19/files2/19113625.txt

and here in an April 2019 appeal:

https://www.va.gov/vetapp19/files4/19124345.txt

Subsequently, it appears that jurisdiction over the claims regarding
the migraine headaches was transferred to the RO in Des Moines, Iowa.  However, because this appeal originated from the RO in Waco and does not involve issues dependent on different law and facts, it will be the subject of this decision. See BVA Memorandum No. 01-18-04; VA Purple book 01-18-v1.0.0. Moreover, the Veteran currently resides
in Texas; hence, jurisdiction should be changed as appropriate.

After spotting it again in Mr. Johnson’s brief at the CAVC, it became a quest to unearth this “adjudications manual”. While the document, in and of itself, is probably not earth-shattering, it’s one more tool in the Veterans law tool belt. I see it more as a guidebook to measure how a VLJ will approach your decision. Will s/he bend over backwards to give you real justice or will s/he merely pay VA law lip service and merrily proceed to adjudicate the appeal as they see fit? At least this way you might find a piton to drive into a judicial crack and prevail.

I find it disingenuous to have a document like the Purplebook in existence and have no one the wiser of its application to VA law. It just seems sleazy and underhanded to hide it or to avoid disclosing its existence. In my mind, our claims process is stacked heavily against us as most Vets are ignorant of VA law.  For the BVA to obfuscate and dissemble to the VA lawyer or Agent is even more egregious. It sounds like a book about Barney the Dinosaur.

Please thank all of those who work at VA who feel we need to know as much as we can behind the scenes judicially.

Et voilà- the Purplebook, courtesy of a good friend who will remain nameless.

BVA Purple Book

I also placed it up above in the widgets for quick access.

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

Or, in the famous words of one Sgt. Shultz, “I know nuffink.”

Happy 4th of July and many more to all my readership

P.S. I’m flattered. I googled the term BVA Purplebook and it comes up with asknod. Funnier yet, someone attached the links to a post on appeals over at one of our competitor sites known to have VA Veterans Benefits Administration DROs as moderators . They also 86’d me after I asked too many questions about 6 years ago. The link was promptly erased to suppress any mention of  asknod, Fergoogle or the Purplebook.  You can still see it here in the screen grabs:

As you can see when you go to the link, it’s dead. The site’s censors are careful to eradicate anything I author that might be helpful to Veterans. Pro VA or Pro Veteran? We report. You decide. Ask yourself why any Veteran or Veterans website would want to suppress information which might be useful to  other Veterans.

click on this to enlarge it.

 

Posted in Agent Orange, All about Veterans, BvA Decisions, BVA Purplebook, KP Veterans, M-21 info, VA Agents, VA Attorneys, vA news, VBMS Tricks | Tagged , , , , , , , , , , , | 6 Comments

CAVC- BLACKMON v WILKIE–SHRINKS? WE DON’T NEED NO STINKIN’ SHRINKS.

Who else but Saint Margaret Bartley, of course.  This is an interesting read and will affect a large number of you who have been hornswoggled into a denial based on a Nurse Practitioner, psychologist (PsyD) or worse..a VES Certified Medical Assistant (CMA) bedpan changer. Worse, you probably blew right past it. That’s against the law at 56 Regional Offices across our glorious fruited plains.

Edited 6/29/2019 1240 hrs

Let’s cut to the chase. First, I’m surprised VLJ Ursula ‘the unmerciful’ Powell authored this one. She’s better than that. Second, there may be some harsh words between her and her pseudo-staff attorneys on how this one was developed. It’s not like they could rely on structured legal arguments put forth by Appellant Pete Blackmon’s law dog to build a grant in this decision. Hell, old Peter was pro se. He got the white gloves treatment at the CAVC. When was the last time you heard of a good pro se case at the BVA that prevailed without a killer Independent Medical Opinion?  Obviously, Judge Bartley’s staff attorneys are light years ahead of Powell’s. And, wonder of wonders, they get paid a shit ton more. The BVA has hired oodles of new sheepskins to wipe out the backlog. Instead of hiring a shit ton of Veterans Law Judges, they brought in FNGs  and are forcing them to do 70 claims a week (five days at Judicial Square). They’re getting GS-14 entry wages, not quality ES-00 pay for genuine hard work. That’s like $114 K a year with killer high rent around DC. In order to meet this grind, you have to take the work home to complete it. One of them emailed me and complained it’s a “Top Ramen” job- no time to eat and no money to afford it.

Our old friends the MK 82 GPUs. Few know we had to begin buying them back from Germany in 1968 for $900 a pop. We sold the bombs to them back in 1958 for $10 each-leftovers of the Korean Boundary Dispute.

Pete was a two-year incountry Vietnam Vet (68-70)  with real §1154b combat credentials-something BVA pukes would be wise to take note of. He managed to survive 5 mega stressors and finally got around to filing for bent brain in 2012. VA saw the light instantly and granted the PTSD. Like some of my clients, he came back in 2012 and filed for Traumatic Brain Injury. Seems like you get dinged up in war and unexpected things like explosions happen occasionally. Have you ever seen a 500 lb. Mk 82 go off nearby-like a quarter of a mile away (or less)? You can watch the concussion wave coming at you around 850 mph ahead of the sound. Trust me. It’ll roll your socks down and part your hair even if you duck. They dig a seventeen foot deep hole thirty five feet across. Most times, we dropped two at a time. They don’t always go off. Seems old Peter had a couple of these shake-and-bake experiences during his two-year fun-filled vacation. Remember, this is protected by §1154b. If you were stupid enough to go fight a proxy war and willing to die for “democracy” in the former Republic of South Vietnam, you are accorded the presumption of telling the truth. VA forgot about that.

VA denied Pete’s TBI claim and didn’t even see fit to give him a c&p exam. They made up for it by telling him some (or all) of his TBI shit was mixed in with his bent brain shit and to relax because it was all contemplated in his rating. Hell, they wouldn’t lie about something like this.

I love to argue that PTSD doesn’t give you tinnitus and headaches. Likewise I find myself arguing drug abuse doesn’t give you PTSD. It’s the other way around in spite of what VA contends. That’s always a chicken dinner winner on appeal. So… repair order #1- Give Pete another PTSD exam after two years of bitching, grant 100% disabled for the PTSD, pat him on the ass and send him home happy, right?  Well, ‘not exactly’ as they say at Dollar A Day Rentacar. Instead, VA used the old saw of “we reviewed your Service Treatment Records and see no mention of TBI in them during active service”. Well, duh. I doubt I could spell tinnitus let alone know it’s medical causation in 1972 after two tours and a few MK 82s that didn’t land anywhere near where we put our smoke. I knew I couldn’t hear shit again afterwards but that was beside the point. I’m not a doctor.

VLJ Powell and her merry band of acolytes did go Pete one better and say they actually couldn’t find any evidence of it in the STRs nor on appeal. They relied on the old saw that “VA’s duty to assist doesn’t require providing an examination in the absence of a current disability”. True enough but this is where they stepped on their necktie. Powell’s gomers  forgot the admonitions of McLendon Precedence:

The duty to assist includes providing a veteran with a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the
veteran qualifies; (3) an indication that the disability or persistent or recurrent symptoms of disability may be associated with the veteran’s service or with another service-connected disability;
and (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i) (2018). Blackmon supra

They also forgot Congress’ §1154b codicil that whatever flows from a combat Veterans’s piehole regarding what happened is unassailable, unvarnished truth absent any mention of alien abduction. Reading comprehension is essential for the Trier of Fact in this legal business. Ignore it at your peril. You don’t just copy and paste it into a denial. It has to be more nuanced like “if the glove doesn’t fit, you cannot convict”.

St. Bartley accurately summed it it thusly:

“The Court concludes that the Board erred in its duty-to-assist analysis in two respects. First, although the Board appropriately cited the four McLendon elements, it did not correctly apply them. Notably, the first McLendon element is “competent evidence of a current disability or persistent or recurrent symptoms of a disability.” McLendon, 20 Vet.App. at 81; see R. at 5-6. The
Board found this element was not met because the competent evidence did not establish that Mr. Blackmon had a current disability, R. at 6-7; however, the Board appears to have overlooked that the first McLendon element could be satisfied with competent evidence of persistent and recurrent symptoms of a disability.” Blackmon supra

What if Pete didn’t exhibit the symptoms on the day he had the c&p? Does this condemn his claim to the ash heap of VA ‘s 98% correct, nonadversarial adjudications? Not in the least and here’s why, padewans:

” To the extent that the Board relied on the April 2015 VA examiner’s notation of no diagnosis of TBI following an interview and examination of Mr. Blackmon as competent evidence delineating his symptoms, the examiner, contrary to the Board’s characterization, did not assess whether he presented with a residual TBI disability, but instead indicated that her review of the available records did not uncover a diagnosis of TBI. Moreover, according to VA, the April 2015 examiner did not possess the requisite specialty to determine if Mr. Blackmon demonstrated TBI upon examination. Compare VA Adjudication and Procedures Manual, M21-1, III.iv.3.D.2.j (identifying physiatrists, psychiatrists, neurosurgeons, and neurologists as those examiners qualified to provide an initial TBI diagnosis) with R. at 679 (listing the April 2015 VA examiner’s specialty as psychologist).  Blackmon supra

And:

Second, although the Board acknowledged that Mr. Blackmon served under combat conditions, R. at 5; see also RO’s grant of service connection for PTSD based on combat stressors, it did not consider whether his statements regarding in-service events, under the combat presumption, would satisfy the second and third McLendon elements. See McLendon, 20 Vet.App. at 81; see also 38 U.S.C. § 1154(b). The combat presumption under section 1154(b) “reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease” by mandating that VA “‘accept as sufficient proof of service  connection . . . satisfactory lay or other evidence of service incurrence or aggravation'” of an injury or disease “‘if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.'” Dalton v. Nicholson, 21 Vet.App. 23, 36-37 (2007) (quoting section 1154(b)). The combat presumption can be invoked to demonstrate not only that certain events occurred during service, but also that the disability occurred during service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

 

Ruh oh, Rorge. This puppy’s headed back to  Ursula the Unmerciful for a do-over. I am having the same problem with my Vet at Fort Whacko, Texas. He was Dx’d with TBI finally- at 70%. He also wrangled a 30% for PTSD. A real psychiatrist gave him 50% for the bent brain on his NOD appeal. They continued to deny the headaches and tinnitus as not TBI-related right up until they got a peek at our IMO and then switched horses lickety spit when they read it. Of course, they tried the back door method of combining his TBI with the PTSD and effectively stole his brand new 50% rating (as well as the old 30% for it) in his SSOC. Pete’s problem is identical to Chris’. Chris’ doctors who did all this were psychologists, MDs and NPs-not psychiatrists. 

In spite of my calling Waco and explaining their screwup, they stand firmly behind their NPs, DOs and MDs. Now you know why it takes so long to win. I expect if the Petermeister had a good rainmaker, he would not have been caught up in this house of horrors for 6 years. But that is, as they say at Fort Fumble, pure speculation. Fortunately, he lucked out and drew St. Bartley instead of some others recently invested at the Court who seem to take a decidedly anti-Veteran bent. No names, folks. I have to practice there and do not want their  wrath to fall on me simply because of my contrary opinions.Remember, this whole gig is supposed to be nonadversarial- at least until we set foot inside 625 Indiana Ave. NW.

Congratulations, Mr. Blackmon. You should apply to the OGC for VA accreditation. You are a credit to all Veterans due to your stubbornness. A warm thank you to Judge Bartley and her merry crew for seeing through this travesty of justice and righting it.

Here’s the CAVC decision:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=18-3011&incOrigDkt=Y&incDktEntries=Y

 

 

Posted in 1154(b) combat presumptions, All about Veterans, BvA Decisions, CAVC ruling, Duty to Assist, PTSD, TBI, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , | Leave a comment

Helping Veterans And Service Members: Tips For Loved Ones

Photo via Pixabay by Skeeze

Veterans and service members have played a big role in our country for many decades, defending our freedom and helping others as a way of life. Many individuals in the military don’t get what they need, however, when it comes to healthcare or financial planning. There are lots of resources out there for senior veterans and those who have served in various branches of the military, but it’s not always easy for them to find what they require. Fortunately, there are many things you can do to help your loved one get what they need to stay comfortable and healthy.

Figuring out healthcare can be complicated for senior vets, so that’s one area where you can help out. Look online to find out more about Medicare or senior benefits provided by the government, and look for the nearest veterans hospital so your loved one will know where to go when they need care.

Here are a few things to consider when you want to help someone who has served in the military.

Help them figure out healthcare

Healthcare can be extremely complicated for veterans to figure out, especially for seniors. Government benefits through the military require care via a veterans hospital, while Medicare requires care through a civilian healthcare provider. Help your loved one do a little research online to find the right doctor and to compare the pros and cons of each service.

According to MedicareAdvantage.com:

  • Having both types of coverage can give you more health care options. If you only have VA insurance, you are limited to receiving covered care only at VA facilities, but adding Medicare coverage can open up the range of hospitals, doctor’s offices, pharmacies and other types of healthcare locations in which you may receive covered care.
  • Having both types of coverage can benefit you in the event that an emergency occurs when you are not in close proximity to a VA hospital.
  • Most people do not have to pay a premium for Part A of Medicare.

Mental health

Veterans are often at risk for mental health disorders such as PTSD, depression, or symptoms associated with grief, so it’s imperative to make sure they are getting the right kind of care. Whether that means therapy or counseling, medication, or alternative treatments such as art therapy, helping your loved one find the relief they need for their mental health will allow them to feel better no matter what is going on in their life.

Assist with everyday tasks

Many older veterans have trouble completing daily tasks, such as grocery shopping or cleaning their homes. If your loved one has mobility issues or a health problem that makes performing these activities difficult, think about how you can help. Offer to stop by and clean up the kitchen, or bring over some groceries. You can also help them set up a delivery service for receiving all the ingredients and ready-made meals they need, which allows them to remain independent by enabling them to choose what they want.

Thank them

In many cases, veterans aren’t looking for gratitude for their service, but it always feels good to hear “thank you” after you have served your country. There are many little things you can do to thank a vet and honor them, from picking up their check at a restaurant to buying them a cup of coffee. You can also make a donation in their name to an organization that helps  Veterans and their families.

Helping a veteran comes in many forms, and it’s a personal choice. Think of  the best ways you can help the service members in your life when it comes to things both big and small, and keep them in your thoughts as you go about your own day. Remember that a little love and kindness can go a long way.

Posted in All about Veterans, Guest authors, vA news | Tagged , , , , , , , , , , | 1 Comment

THE NEW VA AMA–A CHUTES AND LADDERS GAME FOR VETS

Yeppers. You read that right. But it doesn’t begin to describe what I’m trying to convey to all you aspiring pro se Veterans, freshly minted Juris Doctorates seeking an exciting career in VA law or older, more experienced attorneys looking to view a problem from a different, untrained legal aspect. Remember, I have no legal training in this arena but still am batting .1000 after eleven years.

What I wrote in my book in 2012 is just as on point now in 2019. Folks are still buying the Kindle download to this day and putting really nice comments in the Amazon ‘confirmed buyer’ comments section. It’s rumored I might break even on my investment by 2032 if this keeps up. No, seriously.  It’s a bargain at $3.99 and I get 10%.

One of my clients is an attorney so this is especially poignant. She came down with Multiple Sclerosis while in the Navy and made it almost three years before it overcame her. She took advantage of the GI bill and got a degree and followed up with law school. Sadly, the overwhelming burden of raising a husband and children and trying to cope with MS was too much. I gladly accepted her as a client. She described it thusly…

This is your Brain

This is your Brain after Law School

I get that. You have to learn a lot about law and it’s probably stuff like Trigonometry-shit you’re never going to use if you focus exclusively on being a Veteran Ambulance Chaser.  I know that’s a coarse job description but I heard it used by a DAV Poohbah once to describe us evil, bloodsucking agents and attorneys who exact our 20% pound of flesh from those we serve. Anyway, you’re not going to get much call for tort law, criminal law, patent law, divorce law and a host of others. Unfortunately, all brains have just so much capacity and stuffing in a heaping dose of tax law is a severe waste of available megabytes. You’re wanting to focus on becoming the Perry Mason of VA law but dragging that JD brain around with useless 0 and 1 algorithms.

So, by the time you graduate with the sheepskin, you don’t know whether to shit or go blind. Your brain is marching to the beat of another drummer. You have been taught to be too meek and nonconfrontational. You over-analyze every case and ignore human nature. You want to please. You are not in the habit of dealing with charlatans and folks who create law out of whole cloth. In a word, you are a Padawan. Few at this stage ever  dive in to VA Law solo. After about five or ten years of this, it’s like fishing with hand grenades.

Enough with the self flagellation. I can sleep well at night because I didn’t set out to make money. My joy is simply winning my claims for my Veterans. Ed and Leona just found out Saturday night that I managed to wrangle SMC at the R1 rate for them. I spotted it as a “Pre-promulgation” that needed  some more signatures on Friday PM.  I feel doubly honored to represent these folks as Leona is Dan and Signe Moser’s daughter and her husband also fought in Vietnam. He even has a CIB to prove it.

redact R 1

Eleven Bravo 20 Ed Dunn (right)

The Moser Family (Leona in center)

Boy howdy if that wasn’t enough, I was fortunate to win R1 for Dan as well before he passed. As for the bloodsucking legal fees- there are none. The Little Rock Puzzle Palace granted without a whimper. We filed mid-January and I managed to get my CMA to flash him for very seriously ill. VA’s attitude initially was :

” Mr. Graham. The M 21 doesn’t permit advancement on the docket when you’re already at SMC P (SMC L plus K plus §3.350(f)(4) advancement to the next higher rate of M). Mr. Dunn will just have to take his place in line.” Well, ‘not exactly’ as they say down at Dollar a Day Rentacar.

This is where not having been to law school really puts the mustard on the hot dog. Nobody has ever told me I can’t call up the White House Hotline on behalf of my Veteran and beg for advancement. Or look up the name, rank, airspeed, tail number and last known heading of the VA’s Change Management Agent (CMA) at Fort Fumble in Arkansas. Screw sending an email. Next, go to the NVLSP’s Veterans Benefits Manual published by LexisNexis and get the telephone number of the Regional Director and call her/him. They’re on Central Time I think. Tell the receptionist to connect you to the CMA. I love that cross between a splutter and a stutter when they finally blurt “Excuse me, wh-wh-who is this?” A quick “Alex Graham, ma’m. VA #39029. I need to talk to him about my client.” Every one of them has said ” Whatza CMA?” or “Sir, do you have a number I can give them to return your call?” The best one yet is “I’m sorry sir but you need to call the 800-827-1000 line and talk to one of our specialists.” Whatever. It works. The 800 number is for the VSOs, not us. They call me back- and most especially if I’ve called the WHH. I love to litigate via phone with these chuckleheads.

This telephone method is quicksand for VA people. It’s not in a preservable format like an email. Nobody thinks to have a tape recorder handy for these occasions. It’s hard to defer to M 21 when someone is asking you question after question without respite.

 VA Chutes and Ladders

 

Here’ the big story. The new AMA is nothing more than a cattle stockyard. VA drives the Vet into the preliminary chute with the first 526. S/he doesn’t have a clue whazzup. They usually are pro se or have a VSO who is equally clueless and paid to stay that way. The inevitable outcome is usually a loss or a minor win consisting of some old Mardi Gras beads ( Tinnitus and hearing loss for 0%).  However, the big ticket items like PTSD or lumbosacral strain remain denied. Now, with the new AMA, you have to find some new evidence or some new compelling medical theory which supports your first untrained argument. That first denial is effectively the end of the VA’s duty to assist. You are now on your own, cousin. A second denial after entering the next chute (the supplemental claims lane) will cause even more roadblocks. Pretty soon you’ve used up all your Buddy letters and the pseudo-nexus your VA doctor gave you that says it might/could’ve/ possibly/probably/ almost always is related to service.  Nobody will tell you of the need for a properly constructed, favorable medical opinion. So far, everyone’s told you you don’t need any fancy legal help. Those VA DBQs they hand out for your doctor to fill out don’t have a block to write in the nexus and describe why it’s probative. VA has their own DBQs for QTC, VES and LHI. Guess what? They’re waaaaay different and actually do have a block where the doctor/nurse/bedpan changer explains why you’re not going to be shopping for a new car this summer.

If you lose, most of these VSO pseudo-helpers will guide you into a Higher Level of Review and  another bitchslap. This is the old DRO review- as in- “What part of ‘No!” didn’t you get, sir?” An interesting facet of the AMA is it lets you continue to lose without any limits on the number and pathway of appeals. Thus you can go from the 526 initial rating, get a denial, file a NOD at the Board of Appeals and lose and still go back to the RO and the  supplemental lane and refile the same claim again with no loss of effective date. This is how the VA sold Congress on this rope-a-dope appeals thing. Since most Veterans will never get quality legal representation, VA can let them ping around inside this Hall of Mirrors cattle yard and never get anywhere with an original claim. The greater majority of Veterans give up once they see how it’s rigged against them. I did in 1994. It’s different when you’re dying. Hence, the Win or Die logo. was added to the VA claims game.

Veterans were confused enough after WW2 and Korea trying to understand why they were missing big chunks of arms and legs and only getting 10% for it. Or $20 a month for a lost eye. Vietnam Vets discovered much the same thing. VA wasn’t, and never will be,  a font of information about what you need to succeed. With the advent of the new AMA, the tunnel just got about 5 miles longer for most Vets.  If you had actually begun to understand the old system, you just got the ultimate whammy. You now have to go back to school to learn it all over.

I’m hearing from a lot of my fellow members of NOVA that VA is confusing Legacy appeals with the newer AMA stuff post -2/19 and illegally denying it or… worse yet, instructing us to file it on one of the newer forms for the  supplemental lane or HLR. The blind are now leading the deaf across town and vice versa. It will be some time before the dust settles on this. Meanwhile VSOs are still using the old 21-0958 NODs to file at the BVA instead of the new VAF 10182. It’s a zoo and VA loves to aid and abet the confusion.

Vets come to me and describe this as the ultimate conspiracy. Relax. It isn’t. It’s nothing more than gross ignorance and incompetence. I figure it’ll take several years before the  Legacy claims are all but extinct. When that finally occurs, the raters will finally learn the new method and we’ll start bugging Congress to fix the new AMA and make it more Veteran-friendly. Call it AMA 2.0 right now.

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

 

 

 

Posted in All about Veterans, Appeals Modernization Act, Duty to Assist, KP Veterans, Lawyering Up, Lay testimony, M-21 info, NOVA Attorneys, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , , , | 1 Comment

HADIT.COM RADIO SHOW–HOW THE NEW AMA DISENFRANCHISES YOU

Yes, folks. The above headline is true. Remember the old “well-grounded claim” we were required to submit before the 2001 passage of the VCAA? No evidence was equal to no dice prior to that passage. What happened if your records were burned up in the 1973 NPRC BBQ? Sorry, no dice. 

Worse, in the new World Order of the AMA, the duty to assist has flown the coop. From now on, you’re on your own, cousin. If you can’t find anything you need to help you win and the VA or the Army has it, you better sharpen up the FOIA punji sticks and build a pit. It will take a month or three of Sundays to evict this from the Govt. Poohbahs. Or, they may even say, we have it right here in Maryland at NARA. Come on down to view it because we’re not going to reproduce it and mail it to you.

We’ll discuss the two components of claims-case and controversy- that are the bookends to any VA claim. We’ll talk about the difference between VA “inventing” law and the true meaning of “by operation of law”. We’ll talk about the “legal standard of review” of a claim versus VA’s convoluted legal abortion.

I won’t spoil it ahead of time for you folks. It’s heavy on legalese but this is going to become important to you when you see how we got sold a bill of goods disguised as a “much-needed reform” to help us win. If you think VA is going to help you win, you’ve been smoking too much Mantanuska Funderthuck.

Lots of stories. Lots of knowledge. Be there or be square. 1600 Hrs on the Left Coast and 1900 on the (L)east Coast. John and Jerrell are our hosts and I look forward to this chat.

347-237-4819

Dial one (1) to activate the microphone and enter the discussion. Remember, this is all about you Veterans. Feel free to ask questions about these subjects. Try to refrain from telling us your claims history. We want to inform, not focus on any and every screwup VA has ever committed. I find that there’s a reason the rearview mirror is so small and the windshield on a car is so large. It’s more important to see where you’re going than to endlessly replay the past. If it didn’t work out in 2006, you need to up your claims game. Tune in to see what you need to succeed.

 

Posted in All about Veterans, Appeals Modernization Act, ASKNOD BOOK, CAVC Knowledge, Food for thought, Future Veterans, KP Veterans, Nexus Information, NOVA Attorneys, SVR Radio on hadit.com, Tips and Tricks, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , , , | 2 Comments

MEMORIAL DAY 2019–DIRTY DEEDS, DONE DIRT CHEAP

I hope this Memorial Day weekend finds you as blessed as I am. To be alive is not to be taken lightly at my age. While Memorial Day is a remembrance of those who served and have moved on to a new plane of existence, I do not consider them departed. I can still see that curl of a smile on my Dad’s face when he was funning me as a kid. He might be eleven years in the ground in General Robert E. Lee’s front yard (Arlington National Cemetery) but he’s still only a thought away.

Did your dad ever tell you never to push them buttons under the radio dial? I was  briefed in on this in 1958 on my Dad’s old ’54 Ford wood-simulated Ranch wagon . There were five buttons. The first four released the wheels in standard order (port/starboard front and port/starboard rear). The fifth was the fire extinguisher for the engine. If you’ve ever flown in airplanes, it wouldn’t sound strange to retract the landing gear or have engine fire suppression. Besides, your dad would never lie to you.

With that said, I took it a step further with my daughter Heidi. You can see the opposite direction of a traffic light turn from green to yellow. Ergo, you can “predict” when the the light facing you will change from red to green. I’d “throw a whammy” on the light by pointing at it and snapping my fingers and grunting as I closed my eyes. Lo and behold, the light changed green. Heidi quit believing in Santa Claus years before she figured it out. Ah. The things we do for love.

My father’s idea of humor was renowned across the forward air bases in France shortly after the war. He and a few buddies would “drop in” on an airpatch in their P-51s -all with more than five Swastikas indicating they were aces. They’d grab transport over to the Officer’s club Stag bar for Happy Hour. He had a briefcase handcuffed to his wrist and they all had .45s on their hips. Eventually an inquisitive pilot would ask what they were doing in town. By this time, Dad was a Lt. Colonel and his cohorts were either Majors or Captains. Dad and the others would quietly and cryptically explain they were signing up pilots to fight in Africa for the Free French Republic. But only hot shot pilots, mind you. They never had to buy a drink all night long. Eeeeeeeeveryone wanted to join as most were getting ready to return home to Dullsville, USA for deactivation. The story was always the same-there were only a few slots left so you had to be good at deflection shooting and be quick about making a commitment to sign up.

WR F Down For Double with Invasion colors and 16 1/2 “kills”

Be All You Can Be – Become a VA Agent

And while I have your attention, I’d like to discuss helping the Veterans who are still here or their widows. There is nothing finer than donning the clothing of David and striking down the VA Goliath with legal stones. Becoming a VA agent is not nearly as onerous as you might think. Some of you toiled for years to win as I did and do not realize you have inadvertently learned a vast quantity of knowledge about the VA process.

This is what I suggest. Take that knowledge and hone it like a knife and use it to help your fellow Vets. If you are well off, you can simply donate your services as I do a lot of the time. The majority of my wins are often at the local level and we win without having to take it to appeal. In these cases, there is no fee to the Veteran anyway which is great. If you want to do it for a living, it will be a slow process amassing any wealth but rich with rewards for both you and the Veterans you help. You almost become another member of the family in most cases or forge lifelong friendships with their children.

Paying it forward is not nearly as difficult as most think. Attached below are several files to download. One is a sample test with 97 questions. To our knowledge, the tests have always been pulled from these questions. The test itself was 28 questions with 90 minutes to accomplish it when I sat for it in 2016. I’ve heard it may be as low as 21 questions now. The pass/fail line is 75% or greater.

Once you pass, you can keep your accreditation forever by amassing a certain number of continuing legal education (CLE) hours every two years. I use NOVA for my learning requirements and also benefit by learning the latest cutting edge techniques from other attorneys as well as VA employees who come to brief us on new procedures.

Interestingly, if you find some of the types of claims I encounter with Vietnam Vets, chances are you’re going to eventually come across a Megamillion Lotto winner who got screwed by VA back in 1970. It’s like unraveling a sweater but no more complicated than that.  Besides, you can always do what the two Agents I’ve coached to accreditation do- call me and ask for advice. Hell, even I call up my Sensei Bob Walsh and beg knowledge occasionally.

It’s my earnest hope that the 350 agents now will one day metastasize into 3500 and spread out across the fruited plains to do battle with this insidious VA monster. Remember, it’s a recipe like baking cookies. Anyone can learn it. With the advent of Independent Medical Opinion (IMO) sites, it’s easy to get a nexus letter tying a disease or injury to a Veteran’s military service.  Time may be of the essence here, however. VA is rumored to be considering doing away with the Agent position soon. All of us who are currently accredited would be grandfathered in but the option would gone forever. It’s certainly something to think about sooner rather than later.

Enjoy what I’ve been enjoying now for three years- kicking ass and taking names for fun and profit. You can spread a lot of good cheer with any profit if you don’t need it, too.  I learned all this from Alan Gumpenberger down in 2016  Spring NOVA in Las Vegas. He graciously allows me to share it with others. Look him up if you want more info on the subject: http://www.alphadisability.com/tag/allen-gumpenberger/

VA adjudication is what we used to call a “target-rich environment” in Laos. There are 350-ish VA Agents/nonattorney practitioners and about 600-700 VA attorneys who do this in addition to divorce, wills, ambulance chasing, Social Security and tax/probate law. Conversely, there are about 3 million Veterans being ill-served by Veterans Service Organization representatives. As I explain over and over, the Congressional Charter each of the 34 VSOs sign states they will help the VA adjudicate the Veterans claims.  38 CFR §14.632, on the other hand, commands an attorney or agent to diligently represent the Veteran to the best of his/her ability and sanctions can be applied for intransigence or stupidity. Very rarely will you read of an Agent charging money to file a claim or accepting Home Depot gift cards to get off his dead ass and do the job he was hired to do. Nor will you read about many attorneys who disremember your VA 9 has to be filed within 60 days of the SOC or SSOC.

I personally think the cadre of VA agents should be Veterans because they would be more familiar with the trials and tribulations of military service. However, I do know many who are not and their dedication to their job often exceeds even the zest and gusto of some VA attorneys.

Here is the Alan Gumpenberger Agent’s exam course presentation in Powerpoint from 2016 and the test questions most frequently asked. Alan didn’t have an answer key so I had to manufacture it myself. It took me two weeks of cross-checking to convince myself all the answers were correct. I began studying in earnest after the March 2016 Spring NOVA Conference and sat for the exam July 20th. I was informed I had passed August 2nd and began my practice four days later.

As for qualifications, the Office of General Counsel (OGC) will run a serious criminal background check on you. You must never have been convicted of any felonies. Obviously, drunk driving convictions don’t count or they would have tossed me for my 6/4/1969 post-graduation indiscretions and the other eight tickets that night for throwing missiles (eggs) at Officer Rohrbaugh, reckless driving, failure to heed 8 red lights, fifteen stop signs and doing 95 in a 35…up a one-way street the wrong way in Hampton/Newport News. I agreed to forgo college and signed up immediately for military service. Because I was 290% disabled, the OGC insisted I obtain a letter from my doctor stating I was capable of this endeavour and of sound mind. I suspect Dr. Lauer fudged his answer as to having a sound mind but I got his mom Aid and Attendance so it was a push.

Section8a_AgentsExam

Agents Practice Exam no answers

Answer Key

All the answers are in 38 CFR Part 1, 3, 4, 14, 19 and 20. There are no true, trick questions. Just read through each one to make sure you understand it. If you search for, and study, all these, you accidentally learn and remember each one. If you merely try to memorize the questions and their corresponding answers, you will not embed the knowledge in your brain.

I’m like the Starfish gal. I make a difference for as many Veterans as I can.

Make a difference in a Veteran’s life. Your reward will be immense. Happy Memorial Day to all and I wish to thank all you “starfish” who have allowed me to represent you over the years. VA Agents (and attorneys) do these dirty deeds- and dirt cheap I might add.

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

 

Posted in 2016 NOVA Conference, All about Veterans, Humor, Memorial Day, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law, VSOs | Tagged , , , , , , , , , , , , , | 7 Comments

VAROs– MEAN MR. MUSTARD

The VA claims process continues to recede into a “Not It!” game. A rater will struggle to find some procedural stone left unturned and put the claim back in the National Work Queue (NWQ) hopper. Alternately, your claim becomes a figurative game of Keep Away where it is dispatched from one VARO to another every three days and suddenly sent back into the “499” Purgatory for weeks for a “further development” to make it once again Ready for Decision (RFD). On Ebenefits@VA.gov, that must look like imminent completion only to see two more miles tacked on to the claims tunnel. In that respect, eBenefits is about as reliable as a weatherman. 

From the Fort Sam Houston Memorial Veterans Service Center in the town of its namesake, we run into the ‘Not It!’ krewe ratings gurus. A simple request for SMC L for Aid and Attendance of another turns into, first, a denial which can only be seen as biased. After finding no way to overcome this roadblock, I withdrew the old claim for A&A and refiled it as a new reopen. I withdrew a half a dozen other claims for things that will never kill you. When you have two 100% scheduler ratings and numerous others which add up to almost another 100% in combined ratings, it’s generally an indicator that the Vet ate too much asbestos on the ship he served on. VA conceded the asbestos with the two 100%ers but disagrees with the myriad secondaries ratings. COPD, asthma, OSA, MDD, needs a fiduciary, narcolepsy and his wife quit work to take care of him. SMC L for A&A? Hellllllll no.

So, after Winston Salem denied,  I refiled. When you are pursuing SMC L and on up, it’s due and owing the day you can prove your entitlement. If I lose and immediately refile for the same thing, it’s a brand new reopen. If we win, we begin the argument of when   he first needed A&A.  This time Buffalo pulled it out of the NWQ hopper and re-re- reviewed it just for me-and agreed it was a “clean” denial. They sent it back out for a new opinion on all the mental aspects equaling a need for A&A and still came up with a denial.

All this VA poker got us on the other side of the February 19th, 2019 inception of the new Appeals Modernization Act or what has now been named the AMA. Prior to the February 14th, 2019 cutoff date, the RAMP option had no provision for the new filing of your NOD at the BVA. Think about this folks. If your NOD goes to the BVA and is reviewed by real juris doctorate attorneys, you’re getting a real shot at justice. The M 21 Magic 8 Ball is dang near always going to come up denied or lowball unless you’re missing parts and pieces. In certain claims, you will never prevail at the local level anyway. SMC is invariably that way. So are HCV jetgun claims.  VA refuses to give up without a fight to the BVA. With the new AMA, you get to Advance to BVA Boardwalk. It’s like you get a bye on the 16-month wait for the SOC/ VA 9 dance and another six to eight months to get it VAF 8 certified and off to the top shelf of the BVA closet  for a few years. Yes. I know. VA insists this might be as low as 4 months. I seem to remember the rollout of the FDC back in 2013. 98% accuracy, 125 days. If you like your VA doctor, you get to keep your VA doctor. The BVA is secretly praying all you Vets don’t take the BVA route as it will constipate an already overburdened appeals system.

I won’t touch the Higher Level of Review (HLR) Lane. It’s pointless. You could arrive with a Buddy letter from Jesus Christ Himself and notarized by none other than the Holy Ghost… and still lose at the HLR. Worse, it’s not going to be adjudicated by a GS 12-13 DRO. No sirreee, Bob. What have you been smoking? The term “Higher Level of Review” is all relative. If it was originally done by a green GS-9 step 4, “higher level” would be deemed the Legalzoom.com GS -10 step 1 who hired in last fall from GEICO. He did auto claims there for 3 years and saved them lots of money. His dad is probably a Congressman if you’re wondering.

The Supplemental Claims Lane (SCL) will be a necessary evil to get a claim reopened. But again, VA is merely going to use this opportunity to poke holes in your new and relevant evidence. Right off the top, who’s the arbiter of what constitutes “new and relevant”? Think about this. It’s like tennis. You serve a claim to them. It bounces and they wallop back a solid denial. You return the volley and file that new and relevant evidence to permit a second look at it. Bye-bye new and material evidence. You cannot present that at the BVA later. This gives VA oodles of time to figure out how to write up the denial and concoct some Hoodoo Voodoo gibberish in the denial.  You now need some new and relevant hand grenades pronto. Otherwise this is headed straight to jail and you lose a turn. Which is, incidentally, about where you would have (and could have) filed your NOD and appealed to the BVA anyway. It virtually eliminates a SOC, VA 9 and the VA Certification to the BVA.

If you lose at the BVA, you just run back to the Regional Office and refile a VAF 20-0995 and submit new and relevant evidence. The important thing to always keep foremost in your VA claims/appeal plans is to always hold back some N&R evidence in the event you may need it. We’re in a whole new adjudications world that benefits us greatly assuming the new parameters are well-funded and well-staffed. If there are not enough warm bodies to dissolve the megamillion appeals still waiting, this may not fly. But when you think about it, hiring about 2000 GS-14 staff attorneys and using them like VLJs 24/7/365 just might eradicate the horrendous backlog. I, for one, am optimistic.

Posted in Appeals Modernization Act, BvA Decisions, BvA HCV decisions, Humor, KP Veterans, Tips and Tricks, VA Agents, VA RAMP, Veterans Law | Tagged , , , , , , , , , , , , , , | 7 Comments