HADIT.COM RADIO SHOW THURSDAY 1/23/2020

Posted on January 21, 2020 by

Rog on the Radio Show. Jerrell just flashed the Blog sign over Gotham City and I’m en route and inbound.

I have some interesting topics to discuss about Total Disability due to Individual Unemployability or TDIU. There seems to continue to be some misunderstandings about how this works-especially where it applies to Special Monthly Compensation at the S rate.

Put it on your calendar. Two days hence, at the magic hour of 1900 Hrs on the (L)east coast but 1600 hrs on the Left Coast we will commence txmission.

I see several different pathways to  listening. The older method works, I know. That is the timeworn:

347-237-4819 (push #1 to talk to us)

Or the new way, if just to listen, go to Hadit.com here, click on the broadcast link and listen:

https://www.blogtalkradio.com/haditcom

Dog celebrities.

Posted in All about Veterans, Humor, KP Veterans, TDIU, Tips and Tricks, VA Agents, VA Attorneys, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , | 2 Comments

§3.103-PRE AND POST AMA RE HEARINGS

Posted on January 16, 2020 by

In the prior post Home Alone–The AMA, a fellow NOVA member and VA Agent (Jim Radogna)  queried me on the status of the availability of hearings at the AOJ level and how they are conducted now in the post- AMA phase. I promised I would explain my comments further here and clarify it.  Mr. Radogna’s  actual question was:

“I’m confused. Your statement “There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available…So, a formal face-to-face hearing has evaporated into, at best, an unannounced informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran.” doesn’t jibe at all with my reading of §3.103 (d). Am I missing something??? What part of §3.103 leads you to believe that Veterans aren’t any longer entitled to a comprehensive face-to-face hearing at the AOJ???

I guess I zone in on comprehensive but that isn’t quite it. The easiest way to portray this is to begin with the pre-AMA §3.103. I’ll start with the actual hearing language where it begins in the old Legacy subsection at  §3.103(c)(1),(2) (pre-2/14/2019):

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter subject to the limitations of §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or,  subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

[§20.1304 deals with a request for a change in representation of the claimant within 90 days following receipt of Notice of Disagreement.]

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee, or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.”

The last sentence in (c)(2) has been removed and we are no longer granted this tool to have our condition(s) confirmed as debilitating at a hearing- unless….unless you’re still in the Legacy DRO hearing or a BVA hearing path. This isn’t such a loss as I’m zero for five tries both at the Regional AOJ as well as the Board. A good IMO will now have to stand in its stead and be far more “independent” than a VA-provided medical opinion.

——————————————————————————————————-

Reasonable minds can agree this is not the same language in the newer post-AMA version which I reprint below.

Let’s start with §3.103(c)(1) (post-1/19/2019):

(1) General rule.

VA will include in the record, any evidence whether documentary, testimonial, or in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim, except as prescribed in paragraph (c)(2) of this section and § 3.2601(f).

(c)(2) as mentioned in (c)(1) above says:

(2) Treatment of evidence received after notice of a decision.

The evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on the claim. The agency of original jurisdiction will not consider, or take any other action on evidence that is submitted by a claimant, associated with the claims file, or constructively received by VA as described in paragraph (c)(2)(iii) of this section, after notice of decision on a claim, and such evidence will not be considered part of the record at the time of any decision by the agency of original jurisdiction, except as described in § 3.156(c) and under the following circumstances:

Subparagraph (c)(2) (iii)  covers the contingency of §3.156(c)(1) service department records which have never before been associated with the claims file.

§3.2601(f) acts to close the evidentiary record immediately following issuance of a decision. A higher level of review (HLR) action must rest on the evidentiary record alone forward from the decision date even if new and relevant evidence is discovered prior to the HLR.

From the above, we can see there is no mention whatsoever of  hearings being granted on request or otherwise. The regulation speaks only to  documentary, testimonial, or evidence in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim. Conspicuously absent is any mention of a hearing in person at the AOJ level before employee or employees while conducting a new claim (VAF 21-526EZ), a supplemental claim (VAF 20-0995) or a higher level of review (VAF 20-0996).

This is why I stated the DRO hearing-or any hearing for that matter- is no longer available as it was pre-2/14/2019. The only exception to this rule is that Legacy regulations are going to have to lie in parallel with the new AMA version for at least 50 or 75 years. If a 75 yr. old Veteran wins a CUE from 1968, s/he would be entitled-nay-required to appeal via the traditional Legacy path using the 21-0958 post 3/25/2014. Having two systems creates a paradox in these successful Motions to Revise.

We now find all the hearing related regulations have moved from (c) to (d) in the new post 2/19/2019 AMA version. But wait. Read the red highlighted sentence at the preamble to (1).

(d) The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter…

before

VA issues notice of a decision on an initial or supplemental claim.

A hearing is not available

in connection with a request for higher-level review under § 3.2601. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or videoconference capabilities, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Upon request, a claimant is entitled to a hearing in connection with proposed adverse actions before one or more VA employees having original determinative authority who did not participate in the proposed action. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

Summary

So, we can see a hearing can be requested at the AOJ level but the hearing may not be conducted after the initial decision. There is no mechanism to rebut an adverse finding of fact utilizing the former DRO hearing review method. The hearing, if granted, merely permits the claimant to introduce evidence or testimony in the first instance up until the time of the decision. This sham hearing process could just as easily be accomplished with paper or electronic records. Depriving a Vet of the guaranteed hearing at the AOJ level after a decision has been rendered essentially deprives him/her of that additional step of due process at this stage. Offering one telephone call (unannounced) as a panacea in a HLR venue as being tantamount to an informal DRO review hearing is ludicrous. Absent any requirement of prior notification like a Rule 33 conference, the regulation violates due process by depriving you from participating in your own funeral.  The old Legacy DRO hearings were specifically designed to allow the Veteran claimant to produce new and material evidence which might convince the VA examiner to change his mind locally and thus preserve scare judicial resources for others at the higher appellate venues.

Let me be clear. A HLR hearing which limits you to only debating the existing facts and how they were evaluated limits and constricts the very essence of ex parte justice. It’s the antithesis of a nonadversarial, Veteran friendly venue in which to present our claims.

§3.103(d)(2) pretty much parallels the above (c)(2) subsection:

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.

 As Mr. Radogna pointed out, I was remiss in suggesting hearings were no longer permitted at the AOJ level. I apologize for any confusion in that regard. The clear and unmistakable evidence shows they (hearings) are now relegated to the front end of the process before a decision has been made. I’m sorry. I don’t see the value or purpose in this. It combines two processes into one reducing the safeguards. It merely forces a Veteran into two more choices after denial-neither of which permit that magic hearing after a decision on the claim.

Granted, a supplemental claim might cure your deficit such as lack of an Independent Medical Opinion (IMO). Likewise, if a clear and unmistakable error (CUE) occurred in the initial decision, an HLR might cure the error- but only if the adjudicator is knowledgeable enough to discern it. An HLR can be conducted by anyone at a GS 11 level or higher. This is not the DRO review of yesteryear by a knowledgeable GS 13 or 14 with many years under their belts. Wouldn’t it be far easier to suggest the claimant obtain a solid IMO prior to submitting the claim at the beginning?

To my thinking, one should never need a Supplemental claim to cure a defect. Bryant v. Shinseki and §3.103 require the hearing personnel to identify anything missing that might help explore fully the basis for possible entitlement before a denial.

I have to stand by my assessment that no meaningful hearing mechanism now exists to provide the due process Veterans enjoyed under the old pre-AMA version of §3.103. Essentially, the former Notice of Disagreement (NOD) process, as well as a request for a hearing to submit new and relevant evidence, has merely been shoved up the ladder to the BVA. This is the much-touted “Improvement” in the adjudicative process.  I’m not buying it.

It is my opinion, and probably mine alone, that the BVA is already overwhelmed and inundated with appeals. The AOJ has now moved the workload out of the Regional level. This allows them to work on just new, supplemental and HLR actions. Gone is that intermediary step of a second set of knowledgeable eyes looking at exculpatory evidence (including a hearing) which might conserve scarce judicial resources at the appellate level.

The only good that come of this is  a real attorney, in the guise of a Veterans Law Judge, will now be that second set of eyes  and conduct a hearing, if so desired.  I suspect that will produce superior justice which will probably be more error-free than that served up at the AOJ level. Statistics collected to date for 2019 show the choice of HLR or a BVA NOD are just about equal. I don’t care if a HLR only takes two months. To me that’s two months you could have invested in waiting for your docket number. Haste merely makes waste.

I hope that settles the question of meaningful hearings at the AOJ level. I think we were sold a bucket of worms which will result in more errors, less Veteran participation due to ignorance and a marked decline in compensable claims. I’ve queried numerous Veterans Service Organizations locally here in the Tacoma area and none could cogently explain to me what I just recited above.  But then virtually all were unaware that there are higher levels of compensation above 100%- i.e. SMC.

Everyone is entitled to their opinions on whether we are better protected post-AMA than pre-AMA. I don’t make the rules. I’m forced to operate by them. It works no hardship on me personally other than having to learn a new way to skin a VA cat. For my fellow Veterans who are attempting to find their way through this maze, I feel sorrow. Without a Sherpa in the form of a good VA attorney or agent, many Vets are going to find themselves on the outside looking in for eternity.

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

 

 

Posted in Appeals Modernization Act, Complaints Department, CUE, DRO and BVA Hearings, Duty to Assist, Food for thought, Independent Medical Opinions, KP Veterans, Lawyering Up, Lay testimony, Nexus Information, NOVA Attorneys, RAMP Appeals (AMA), Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VA BACKLOG, VA statistics, Veterans Law | Tagged , , , , , , , , , , , , , , | 4 Comments

HOME ALONE–THE AMA

Posted on January 15, 2020 by

View from the cockpit.

Live… From the VA Entertainment Capital of the World… Iiiiiiiit’s asknod! As the title suggests, I’m home alone if you exclude my extended menagerie of pets. Cupcake is off to do her radiation therapy and CT afterwards. I’m recovering from my surgery yesterday to remove the Gozilla-sized kidney stone (16mm) from my leftmost renal architecture. No “I’m so sorry to hear it” platitudes requested. No pity parties. I’m glad to be done of it. I’ve been pissing blood for two months which has saved me from doing monthly phlebotomies in the interim.  With the exception of the abominable global warming  outside today and the fact that I can’t even approach the water closet without my kidney and bladder screaming in advance, I’m fine. Dilaudid takes the edge off …and a little more. I sure wouldn’t want to perform (I don’t practice) law in this altered state but my humor is unimpaired. What I find amazing is my kidney has GPS and even knows I’m in the bathroom. For sure, Dude. I walked in just now to see and it began to hurt in anticipation of an impending urination. Who knew kidneys and bladders have nerves? Not me.   

Princess Pickles just had her first encounter with snow this PM. She’s eleven months now and decided it’s the cat’s pajamas. Not only can you skid on it but you can eat it, too. How cool is that?  The age-old problem of finding the snowball and fetching it is brand new sport for her.

Check it out:

A fellow NOVA attorney contacted me this AM and wants a copy of my killer cites designed to win claims. Every time I run across a real daisy, I copy and paste it into my library. It’s a compendium of case law, statute, regulation, and yes, even the occasional M 21 cite to make my competitors eat Chevron/Auer Deference.  It’s become Dropbox™ -sized now like the Encyclopaedia Britannica. Some folders could be better named but it’s all spur of the moment copy-and-paste grabs while reading other cases and they each require a folder and a .docx. What the hey? It’s cheaper than West Law. Even better, sometimes you find an extraneous quote from a decision that isn’t touted as the bright line precedence… but is equally valuable on some other case you’re working. What I found while reading this recent year’s Morgan v Wilkie 31 Vet App. 162 (2019) is a treasure trove of all manner of cites. Thank you Zach, Amy et al. at CCK. It’s like repaving the old AB v. Brown Road with 2020 thinking and extra legal sprinkles on top.

THE NEW AMIA

The subject today is simple. Do VA folks call it Ama like ‘mama’ without the m or do they throw in the i and call it amia like a girl’s name?  By now we’ve all had a heapin’ helpin’ of the AM(I)A and are less than enthralled by it. It’s like being told Baskin and Robbins© is coming out with White Chocolate Macadamia Nut Cookie Ice Creme and they hand you Avocado-Bacon flavored shit on 2/19/19 in its stead. The errors are so mundane and egregious, we (litigators-not VSOs) all are astounded anyone VA can come up with them. I just got back a 526 EZ I used for a CUE and was told to refile it on the “correct” form. This, mind you, from some astute young GS-8 VA Turk who knows what a “prescribed form” really is. Arrgh. My kingdom for some kompetence. It seems I remember David McLenachen  or Judge Cheryl Mason saying it didn’t make any difference because there was no specified form to use. That was in Portland less than 110 days ago. I disremember seeing it in the Fed. Reg.

While rereading the new, improved §3.103 Due Process to grab the (a) for “every benefit that can be supported in law” and insert it into my ‘AB v Brown and progeny’ file, I read down further and came to the part guaranteeing us a right to a hearing.  Thence it dawned on me. While this “right” is still available, it has been enormously truncated. Gone are the days of the DRO Hearing (on or off the record) at the local Puzzle Palace. What we’ve been seeing with our new friend Amia is a lighthearted attempt at ex parte justice. Cupcake calls it “All VA hat and no Wilkie.

Imagine if you will. There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available. This is a chimera. I get  emails saying “Can you imagine that? The HLR guy emailed me and declines to hold the informal telephone call “conference”. He said nothing would change his mind anyway.” Well, hush my due process. These jackwads invented all this hooey and now are blowing us off. If you truck all the way up to Part III (D)-§3.2601, you’ll find this gem under (h) Informal Conferences

For purposes of this section, informal conference means contact with a claimant’s representative or, if not represented, with the claimant, telephonically, or as otherwise determined by VA, for the sole purpose of allowing the claimant or representative to identify any errors of law or fact in a prior decision based on the record at the time the decision was issued. If requested, VA will make reasonable efforts to contact the claimant and/or the authorized representative to conduct one informal conference during a higher-level review, but if such reasonable efforts are not successful, a decision may be issued in the absence of an informal conference.

So, a formal face-to-face hearing has evaporated into, at best, an unannounced  informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran. If you want a real scheduled sit down BVA hearing now, you have to go sit on the Washington DC Group W bench of Alice’s Restaurant fame and wait your turn. and wait…and wait…and wait. Welcome to Camp Delay and Deny. Did I mention the I in A.M.I.A. stands for Improvement? The good news is the BVA waiting room at 1425 I street is really buff and freshly remodeled. The chairs are comfy too.

The new AMA surprises are endless and well-concealed over the four corners of 38 CFR. You think they’ve reinvented the wheel when in reality we’re back to horse-drawn carts and nobody knows which side of the road to drive on again. You cannot but wonder how (or why) an “intake specialist” chooses when to say you used the wrong form. They pointedly do not tell you which to use-only that the one you’ve chosen is incorrect. With only two input choices, you had a 50-50 chance of getting it right. So why is it always the wrong one?  With CUE, your odds should go up to 100%-maybe. I refiled my CUE yesterday before surgery on a 995 and can’t wait to see a) another rejection for the wrong form; b) a two-week delay in CESTing it while they try to construe the meaning of “Motion to Revise”or; c) sending it back to me and demanding the client wet ink sign it even though the POA is in the VBMS. This is worse that Forest Gump’s box of chocolates. It’s not that you never know what you’re going to get. It’s that you never know if you’ll get anything.

We’re encountering the same thing at the BVA with 10182s. The Litigation and Support kids call it a 10 182-two number groups- not a one-oh-one-eighty-two. Just for shits and grins, from now on I think I’ll start using the word “Ama”, or better yet, the word Amia and see if I can conflusticate these acronym-obsessed dickheads. How about “Well, I hold his Poah (POA) so I’m confused as to what else I need to discuss this claim, sir.” “……….Ah, poah? What’s a, a what’s a poah Mr. Graham?… Wait.  Did you say her first name was Amia? How do you spell that?” Hiller for HLR? The choices are myriad. Have fun.

“There’s a dog in Wisconsin that tells jokes.”

 

 

 

Posted in Appeals Modernization Act, FACE HUMOR, Food for thought, Humor, KP Veterans, Pickles, Tips and Tricks, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 6 Comments

VBA-FORT FUMBLE, Va.–DOWN FOR DOUBLE

Posted on January 11, 2020 by

My Father’s P- 51 in WW 2 ( 16 1/2 kills)

In my war, we were taught to have a three-to-one advantage in force and air superiority to ensure a win. What we were taught and how to employ it varied greatly when it came time to apply lessons learned. In fact, we were often outnumbered ten-to-one and air superiority was on speed dial. And, like the police, it took a while for them to arrive. Would that we could get a VA claim accomplished in 40 minutes. Regardless, with few resources, my fellow NOVA litigators and I win these David/Goliath contests regularly- and never with 3 to 1 numbers or napalm.

With that said, when litigating for my clients, I love to have the smoking gun, or even better, several with which to bitchslap those smarmy DROs with 0 degree Celsius blood. How many times have I presented a case at a DRO Hearing (now the bulljive AMA Higher Level of Review or HLR) and have Ms. Whatzerbutt recite some idiotic M 21 mantra which is waaaaaay off point. Sometimes they try to throw in Latin phrases like de minibus [sic].

Nevertheless, nothing gives me greater pleasure than to catch them out-be it CUE  by awarding you something with the left hand and the right hand having no clue that the left betrayed it over a year before. Cases in point. Sharpen your pencils and let’s look at some SMC law with a magnifying glass.  Always remember the pertinent cites to use like Buie and Bradley. Don’t ignore treating physicians (White v Principi 243 F.3d 1378 (2001)). McWhorter is a prerequisite. You can even demand Chevron Deference because you want the Secretary to choke on his own regulations. Breniser v Shinseki is also your friend in this endeavor.

CASE #1  BAIT & SWITCH

Lori the Law dog

This one I apologized to my client for this morning. She’s a lawyer to boot. I woke up early Wednesday morning about 02oo Hrs and raced into the office to look at Lori’s rating sheet from the last SOC. (see below). I had one of those premonitions. VA first ignored diagnosed foot drop (SMC K in 2012) but… they granted SMC L for Aid and Attendance. Okay so far. But in September 2014, they had to admit she had LOU of both one hand and one foot. That’s SMC L again. The two combine to make SMC O. Since one of the Ls is for A&A, she advances to Boardwalk and collects R 1. Or at least that’s what should have happened. What VA did was rescind the Aid and Attendance grant and convert it into loss of use of the hand and foot. Hold the phone, Ramone. Absent a finding of CUE, you cannot just white out an SMC L for A&A and substitute an SMC L for LOU. No way. Shoot, that’s against the law in 56 VAROs across our fruited plains-57 if you count the AMO. VA would have to prove the award of L for A&A was fraudulently obtained or somehow an error on their part in 2012. But they didn’t Ruh-oh, Rorge.

2012 A&A redact

CUE for A&A rescission

There was the CUE large as life and twice as natural.  Fortunately, the Virginia Puzzle Palace would never have caved in on this one so I don’t feel so bad. Since it’s such a novel occurrence, even I have never run across it. The reason I say Roanoke would never Chieu Hoi is the sheer amount of the error measured in VA shekels. They owe for SMC K for one foot from 2012. What’s that? about a buck a month for two years? $2,400 total. Chump change. However, they owe R 1 from 9/23/2014 when the combination of A&A and LOU of one foot and one hand began. Think about that.  Moi? Why, I never dwell on money but apparently VA does -to their ultimate detriment. VA’s been paying her roughly at L 1/2 from 2012 and then M 1/2 more recently (2017). Playing round off, L 1/2 just for the time from 2014 to 2017 is gonna be about $4,400/month average. Since it should be R 1 @ $8,000/month, the difference is $3,600 times six years or 72 months… or roughly  $261 K and some change if you throw in the SMC K error for several years. VA doesn’t roll over for that shit without a serious fight. Don’t kid yourself. I dinked them once for $378 K but we had to go up to the Big House over at 625 Indian Ave. NW and torque their testicles to accomplish it.

I so look forward to flying back to DC to argue this one for Lori. Look up hornswoggled in the VA dictionary and there’s a picture of her.

CASE #2-MISSISSIPPI MADNESS

Author and client

If you’ve never had the pleasure of doing a DRO review hearing in person, you just  haven’t litigated yet. The DRO threatened to have me frog marched out of there by the VA Gestapo if I didn’t quit running my mouth about §§3.350(e); 3.352(b). The instant problem here was the client had received  his Vehicle grant 4 months before the DRO hearing and the Secretary had acknowledged loss of use along with the magic “equally well-served by prostheses” mantra. Jensen v. Shulkin was brand new and on point. Nevertheless, the DRO continually refused to even concede the LOU point all the way through to the 11/2018 SOC. She’s living proof that the Flat Earth Society is present and accounted for. My guess is Fort Jackson hasn’t granted many R 1s unless at CAVC or BVA gunpoint. Shoot, they even started talking about how my severely disabled Vet was out riding a bike. He tried out a loaner recumbent bike and discovered in short order it was an impossible situation. VA glommed on to’ bike’ and ran with it.  Quick! Say nonadversarial , Maniano v Principi and Hart v. Mansfield as quick as you can. What the hey? Throw in Kahana v. Shinseki, too. Harvesting negative evidence has been a Bozo No-No for years but  those wild and crazy Jackson, Miss. raters haven’t gotten the email yet. Maybe the VA Secretary should resort to Facebook messaging… Shucks. Everybody’s on Facebook and they can advertize for all those pesky job openings for psychiatrists they never can fill…

Mississippi Madness

We had to make the pilgrimage to the house of the Great White BVA Father far to the East to present our case. Sadly, with the passing of the new Appeals Management Act, the time-honored Travel Board Hearing at your local RO est mort. From now on, it’s a videoconference or hit the road to DC. We chose the latter. There’s no way I was going to let this puppy go south and end up at the Court. We planned it better than D.B. Cooper. Remember him? We even drew a very pro-SMC Veterans Law Judge- David L Wight. He’s no spring chicken around there. He signed on as a staff atty. back in 2005. He got his solo wings about five years later. So I laid a killer brief on him demanding he make the decision based on the medical evidence of record. Well, that and the fact that I wanted him to see my client was sitting in a VA-issued wheelchair wearing a VA-issued AFO (ankle foot orthotic) on his left foot on the off chance it might help keep him from falling when he transitions to his VA-granted vehicle. I’m a mite proud of this amended brief. That Robert Chisholm of CCK is quite the master of SMC jurisprudence. Taught me well, he has. Yessssss.

BVA brief redact

I read Judge Wight’s decisions on R 1 extensively and there were many. Seems Vets got the benefit of the doubt in the majority of his decisions, too. Thus we were overjoyed to see that pronounced wrinkle of consternation begin to grow across his brow when he looked from the  11/18/2018 SOC to the 3/26/2018 Vehicle grant based on conceded LOU of the lowers and then at the  12/17/2017 DBQ which stated my Vet’s legs would look equally good in lightweight composite plastic.

Speaking of which, here’s an interesting quirk. VA refuses to allow us to go out and get an IMO declaring LOU. They cite to their false god M 21 (IV.ii.2.H.1.b) that no “clinician” can make this pronouncement-only a lofty GS-11 VA examiner. Well, boy howdy doesn’t that kinda poke a hole in Colvin v. Derwinski (1991)? You know. The one where the Court said a trier of fact cannot make a decision medical in nature…

Well, if a VA examiner can (and did), and a VLJ can’t, and your own treating physician and the VA Secretary already have, then what? Turns out, the VA examiner felt our unpaid treating physician wasn’t trustworthy. Yep. The guy who knows the most about all this was bullshitting VA?  Worse, going back to the M 21 cite above, if a “clinician” is not allowed to make this decision, why in Sam Hill would they print it on a DBQ and make it available for this purpose? See page 8, Section X (10).

https://www.vba.va.gov/pubs/forms/VBA-21-0960C-5-ARE.pdf

This just gets more and more mysteriouser, huh? Our Esteemed Secretary reserves the sole right to dx LOU but will allow-yea- encourage an unknown doctor to bloviate about something he, the Secretary, will never consider? If it sounds absurd or ends up being an absurd outcome, it is. Yep, there’s a cite for that, too.

“Regulatory interpretation begins with the language of the regulation, the plain meaning of which is derived from its text and its structure.” Petitti v. McDonald, 27 Vet.App. 415, 422 (2015); see Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (“The starting point in interpreting a statute [or regulation] is its language.”).

But the pièce de résistance in these cases is a resounding:

If the plain meaning of § 3.350 is clear from its text and structure, then that meaning controls and that is the end of the matter. Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006).

 

I guess the last straw at the DRO hearing was asking for a Bryant v. Shinseki/§3.103(c)(2) request to show us the magic handshake/secret password to grant SMC R1 and getting that deer-in-the-headlights look from Ms. Traci Whatzerbutt. She just nodded and said “Okay. I’ll review it all and get back to you.” No discussion of the VCAA. Nothing. Not so much as a hint about what would float her boat and change her mind. Recite after me: “Nonadversarial, Veteran friendly due processs, ex parte” ad nauseum.

Just remember that when you go to Jackson and try to talk SMC turkey.

Here’s another trick to look for. VA is fond of citing to evidence in an SOC or decision. How about it’s 2018 but  they only look at everything from 2015-a year before you even got out of the service? What’s worse, the 12/19/2017 “examination” (our LOU DBQ) says it only mentions some muscle abnormalities. You couldn’t win this in Jackson even if you had a Buddy letter signed and notarized by Jesus H. Christ. (“Yo. What he says, Bro. It’s like, ya know, totally true.”)

Evidence trick SOC 11-21-2018

Today’s Blog is brought to you by the Letters S, M, C, R and the number 1.

P.S. Here’s another “Down For Double”

Posted in Aid and Attendance, Appeals Modernization Act, BvA Decisions, CAVC Knowledge, CUE, DRO and BVA Hearings, Humor, KP Veterans, SMC, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

WHILST PICKLES’ AWAY, THE MICE WILL PLAY

Posted on January 1, 2020 by

Pickles the Law Dog. AKA GIB; Six; Wingwoman

This is too good not to share but not appropriate for younger viewers. On New Year’s Eve morning, Pickles and I launched for a USPS mission to deliver some more love letters to the VA from my Veterans. Our journey takes us down to Key Center-approximately 4.5 miles south of our casa. Wait. Is that cultural appropriation to use the word “casa”? Just kidding…maybe. Pickles immediately hopped in the back seat area and tried to excavate the passenger front seat from behind. Much digging and growling ensued. I figured she’d lost her ball. Negatory.

 

 

After she returned to the front seat, I opened the center console to remove a mini Butterfinger bar. It’s for the mail lady… er…. Postal delivery associate? I put them in the mailbox and flip the flag up to remind her. She’s partial to them and it gets me excellent service. I looked down as I approached the mail box and discovered Pixie and Dixie had found the candy bars – not just inside the Expedition- but inside my console. I’m a little confused. I don’t recall leasing out residential space in my NOVAmobile. They’re probably homeless. At any rate, we (Pickles, Pixie, Dixie and I) proceeded to the USPS.  After our postal ablutions were consummated, I immediately sashayed over to what passes for our local hardware store and  picked up a couple of traps…er… harvesting devices (mouse guillotines?). We departed home to the LZ. I found what I suspected was the ingress point to the console and plugged it with Cupcake Kleenex. What? Your significant other leaves home without a box of Kleenex and a fresh roll of toilet paper? GTFOOH!

I set up the ambush on the floor on my side so Pickles wouldn’t jump in and step on it. This morning on the way out to feed the horses, success greeted my efforts. Pixie est morte.

Pixie or Dixie?

However, when I looked in the glove box to make sure they hadn’t been back in there, I was shocked. The little buggers not only had gotten in and chowed down but they slipped through what could only be a 3/8″X 3/8″ portal. I couldn’t get my middle finger in it and I have petite, aristocratic digits- or so I’m told.

Sensing Dixie is still afoot and may even have pitched a tent under the seat by now, I dug a new Punji pit with fresh extra sharp cheddar.  I dutifully invoiced the mousetraps and candy bars as a business expense. News and film on this developing story at Six tonight right here on the asknod network.

 

P.S. Great news! I found Dixie this morning. Now I have to wonder about their offspring.

IMG_1038.JPG

PP.S.  Pickles was put in the laundry room this AM because we have the burglar alarm folks over for a revamp of the fire alarm system. She found my spare mouse entrapment device and “remodeled” it for me.

IMG_1037.JPG

P.P.P.S.

Don the 1st SOG Vet 11 Bravo F4P I represent out in Wyoming has a burning question he wants answered.

Weren’t Pixie and Dixie both guys? And if so, were they in a committed, monogamous relationship? Inquiring minds want to know…

Well, Don. I gave that some thought and went back out to the trash can. I took a gander at Dixie’s privates and to be truthful, my eyesight isn’t that good. I’d hate to hazard a guess because mice aren’t my strong suit. And, truth be told, I didn’t look at Pixie’s unmentionables before I gave her/him it’s Last Rites and interred it either, Don. In sum, I can’t say that Pixie wasn’t Dixie or vice versa. I put in a new Claymore and will report back soon. We have a good magnifying glass in the office here so perhaps you could give me some pointers on identifying a Pix from a Dix.

Posted in Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , , | 1 Comment

VBA SEATTLE–CARRY ON MY WAYWARD SON

Posted on December 31, 2019 by

Another great song by Kansas. It aptly describes my Marine. Meet Ken. Survivor of the 1968 Khe Sanh Spring Break. Those animals partied up there for 77 days straight. He got his first Purple Heart several weeks after the siege lifted in April just south of there on Foxtrot Ridge. He got his second one north of Khe Sanh on the Cua Viet River near the depot a short while later. He even got a Navy Achievement Medal with a Combat V. 

Ken came to me to solve a problem. VA had whacked him on the prostate cancer residuals from 100% for surgery down to 30%. The problem was he should have gotten 60% and TDIU. He also has 50% for Bent Brain Syndrome and 10% for tinnitus. Ken is a sad reminder of what VA can do to you if you don’t have a Sherpa to guide you up the mountain. Fact was, he was just about ready to throw in the towel and piss on the fire he was so mad. I’m not sure how he found me but I’m sure it was word of mouth. I sure don’t advertize for good reason.

First, I emailed the turkey who whacked him to 30 and got that fixed on a CUE. Next an 8940 and a few 4192s to show he’d been dead in the water job-wise for over 10 years which began with his prostate problems. Things began to bog down about late November. Lincoln Nebraska was the Fort Fumble in charge of it. On Christmas Eve morning before they had their office party, I looked up the coach and VSR doing the claim from the VBMS notes section and shot them an email reminding them Ken filed all this waaaaay back in 1/2018 just in case they disremembered. I got a nasty email right back from the Lincoln Change Management Agent 45 seconds later reminding me to only talk to her. Emailing the Coach was riiiiiight out, thank you. I shot her one right back  saying if anyone had bothered to look at Ken’s claims, they would see his two Purple Hearts. You’re supposed to get moved to the front of line for just one Purple Heart so I was just checking in and excuuuuuuuuuuse me. Ken had filed in 1/2018 before all this Purple Heart hyperdrive motivator shit came out on 1 April of this year.

Boy howdy did that put ants in Coach Shawanda’s underwear. I had a rating in the VBMS Queue the next morning at 0900 when I checked in. An email from the booth bitch in Lincoln at 0800 Lincoln Local just said they’d “mutually decided” to send it over to ratings. That was the 26th -the same morning I got Bob’s PTSD claim win. Another Vet, Don, just became a member of the Nehmer Class on the 12th so December has been bery bery goot to me.

Ken Redact TDIU with SMC S

Wavy Gravy 8/16/1969

Who ever thought a Purple Heart would be good for anything more that a free drink at an AmVets Bar or a VFW? Life is starting to look up for Combat Vets fifty years later. I’m just glad I lived long enough to serve there, get spit on and have the last laugh by being a part of it now. I remember what Wavy Gravy said at Woodstock on these august occasions: “We must be in Heaven, Man!”

 

Happy New Years to you all. 2020 looks like it’s going to be CLAVU. As you were, gentlemen.

 

And last, but not least, let’s let 2019 go out with a bang. Take it away, Abdul…

Posted in Duty to Assist, From the footlocker, Humor, Inspirational Veterans, KP Veterans, PTSD, VA Agents, VBMS Tricks, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , | 11 Comments

VBA PORTLAND–YOU KNOW IT DON’T COME EASY

Posted on December 29, 2019 by

Ringo Starr didn’t do many songs but he nailed this one. My Vet Bob, who used to be my neighbor, finally nailed his PTSD claim, too. It was a great Christmas present over two years in the making. Thank goodness for Mednick Associates. Their psychiatrist hit this one out of the park. I wrote about this way back in 2015 before I became accredited. It took some coaxing to get Bob to file again-for the fifth time, no less. It’s hard to get back up after VA kicks your teeth in that many times.

Here was the original post in 2015

https://asknod.org/2015/08/20/the-good-humor-man-at-tan-son-nhut-ab/

It was a long fight from 10/2017. First we had to refile to get the denial as I’m getting wise to filing with an IMO first. All that happens is they go out and get their own to rebut it. Then what? Get another one? The art of VA poker is to get them to deny on a specific set of facts. Then you rebut it. In this case, they say Bob turned into a junkie at Tan Son Nhut and they had to dry him out back in the States. After rehab at Lackland AFB in Texas, they asked him to finish out his last year on active duty. Bob told them to take a flying f—- at a rolling donut. They did but they were nice enough to give him an Honorable Discharge.

After the denial, we rang up Adam Taranto at Mednick and he had his wordsmiths construct an extremely coherent IMO and put matters aright. VA contended he did smack and got PTSD. We contended the exact opposite. Were it not for all those coffins and horribly wounded troops Sgt. Bob loaded on the C-141 Freedom Birds, he wouldn’t have bent brain syndrome with a monkey on his back. Remember Everybody’s got something to hide except for me and my monkey? Another great song and I’m not much of a Beatles fan in their latter years.

The Puzzle Palace in Portland jumped after I complained about them taking nigh on to two years to do this and they scheduled a c&p exam. Then they forgot to tell Bob. Then they lost the request. Sound familiar? I finally sent a plea to DC and asked Saint Wilkie to intercede. That tipped the scales. Bob got his c&p on December 23rd and the DBQ opinion surfaced the very next day in VBMS. I figured a mid-January rating at the earliest. Well hush my mouth.

Magically, on Boxing Day ( the 26th), I arose and checked out the VBMS queue just for shits and grins. Lo and behold, there was the Bobmeister’s brand new 70% rating effective back to our filing date of 10/2017. They even sent me an email and said it was in ratings but the decision was already on the  books by the time the electrons arrived here at LZ Grambo. Sometimes VA shows they have a heart even if they hide it in their boot.

Bob’s big problem is that he thought he had a confirmed diagnosis of PTSD when all this time he didn’t. Lots of shrinks at VA had said he did. Lots of folks with a string of initials after their names who were “counselors” said he did, too. Unfortunately, every time he filed and attended a c&p, they’d say the pot and the Jack Daniels was the problem-not the coffins and all the litter patients he helped the loadmaster strap down.

Here’s the winner DBQ. VA didn’t want to admit they were wrong about this so they decided to classify him as a “combat” Vet and gave him the 38 USC §1154b combat presumption meaning that everything emanating from his piehole was the God’s own truth. Boom-instant PTSD rating. Don’t give me any of that hooey that VA can’t crank out a decision in a hurry when St. Wilkie’s looking over their shoulder! I sure hope the next VASEC is named Nicholas something. We can call him St. Nick.

Bob’s most excellent DBQ redact.

Here was our version of how it went down:

Redact IMO for PTSD

And the magic paper:

Bob redacted narrative

It’s a warm, fuzzy ending to a long, long battle. After 49 years and 343 days, I can finally say “Welcome home, Bob. I’m sorry VA didn’t believe you all these years. Thank the Lord your sister lived two doors down from me or we may never have met.” It seems nothing comes easy in this business but boy howdy does it sure feel like a lot better Christmas now. I had another Vet who won the same day but I’ll write about Ken in anther blog here directly. This blog’s for you, Bob. And to think that if those VA jackwads had not told me I was never in Vietnam in 1994, I’d never have met Bob and been able to help him. I once had to leave some folks behind one day and fly off in 1970. Never again if I can help it.

Princess Pickles and author

Happy New Year’s to all of you, my readers. I sure hope you all enjoy reading about success here at asknod because I’m planning on servin’ up a heapin’ helpin’ of them this coming year. I leave for Washington DC on January 5th for a Board hearing at the VA Central Office (VACO) at 810 Yellow Brick Road NW (at the corner of Delay and Deny) on the 6th. We drew VLJ David L. Wight. I read up on all his R1 decisions and he seems to be pro-Veteran. As Forest Gump might have said, “a Board hearing is like a box of chocolates- you never know who you’ll get.” Some are real hard asses and border on rude. And then there are the chicken dinner winners like Vito Clementi and Matthew Blackwelder. The real trick is to have a rock solid case, of course. You can’t just bullshit your way to a win.

Sadly, if you now desire a face-to-face with the Judge, you have to fly back there for one. The AMA did away with Travel Board hearings. That’s okay. All my relatives live right down the pike a ways in the Tidewater region.

 

Posted in All about Veterans, ASKNOD BOOK, Humor, KP Veterans, PTSD, Tips and Tricks, VA Agents, vARO Decisions, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , | 3 Comments

Fast-Tracking Your VA Case

Posted on December 26, 2019 by

Are You Tired of Waiting on a Decision from the VA?

Getting the VA benefits you deserve can feel like jumping through hoops with no end in sight.  Generally, the VA decides cases in the order that a claim or appeal was received, which can take years. But, here’s how you can potentially fast-track your VA case – A Request For Expedited Processing.

When your case is given expedited processing, you move up closer to the front of the line of veterans waiting for a decision. The following types of veterans can get their cases fast-tracked:

  • Veterans who are homeless
  • Veterans who are a terminally or seriously ill
  • Veterans who are experiencing extreme financial hardship
  • Veterans 85 years or older with cases at the Regional Office OR Veterans 75 years or older with cases at the Board of Veterans Appeals
  • Veterans who are former Prisoners of War (FPOW)
  • Veterans awarded a Purple Heart Medal

How Do I Get My VA Case Fast-Tracked?

Getting your case fast-tracked depends on where your case is. For cases at the Regional Office, you can send a letter to the Evidence Intake Center asking for expedited processing. You should clearly state the reason(s) why your case should be fast-tracked. Remember, when sending anything to the VA, always be specific about what you’re asking for and why. Be prepared to submit documentation of your extreme financial hardship, for example, which could include foreclosure notices, eviction notices, or bills in collection.

For cases at the Board of Veterans Appeals, you need to draft a motion. Any motion to the Board should clearly state your name, VA claims number, and be addressed to the Board at the following address: Board of Veterans’ Appeals, P.O. Box 27063, Washington, D.C. 20038. Just like a request for expedited processing at the Regional Office, your motion should specifically state why your case should be fast-tracked, with documentation to support your motion. And always save proof (fax confirmation, certified mail slip) that you sent your mail to the VA.

A well-drafted request or motion for expedited processing could mean the difference between waiting months, not years, for your VA benefits. If you fit the above criteria for fast-tracking your VA case, don’t wait – send your letter for expedited processing today!

 

 

 

Posted in All about Veterans, Guest authors, HOMELESS VETERANS, Tips and Tricks, VA BACKLOG | Tagged , , , | 2 Comments

DOD Holiday Traditions & something new–U.S. Space Force

Posted on December 24, 2019 by

Today the President signed the 2020 National Defense Authorization Act and with it, directed the establishment of the U.S. Space Force as the sixth branch of the armed forces.

Website:  https://www.spaceforce.mil/

“Maybe your purpose on this planet, isn’t on this planet.”

The maps are great. Click image to go to NORAD. Enjoy! “The North American Aerospace Defense Command is responsible for tracking everything that flies over and around North America. This means that come Dec. 24, NORAD has eyes on Santa.”

Merry Christmas and Happy Chanukah  (Dec. 22-30)

Laura (Kiedove-Guest author)

Posted in Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Humor | Tagged , | Leave a comment

VA LAW–THE WAITING IS THE HARDEST PART

Posted on December 24, 2019 by

Merry Christmas to you all. If you are not Christians, I apologize. Happy whatever. Let there be joy in these troubled times regardless of what religion (if any) floats your boat. This year has been very, very good to my clients. I write, however, to a much more vast audience than just Veterans. Or at least I hope I do. As most know, I belong to NOVA. Many of these members claim they read my blog. If so, I hope I provide useful information to them as well. 

It seems, regardless of what season we are in, we have trials and travails that seem insurmountable. I get that. If you have never had a denial by the VA, you could never experience the thrill of what it feels like to open that big, brown envelope and discover what’s behind Door #3. This is one joy of practicing VA law. I am honored to provide that ray of hope or financial stability in my Veterans’ lives.

VA claims victims

Many of us who practice law are appalled at the interminable delays in the process. Worse, statistically, only 12 to 15% of you Veterans win your claims at the outset. It should be far higher by my reckoning. I won’t brag but this year saw only two losses-both at the BVA. I pride myself on using the new VBMS to the utmost as a crowbar for my unparalleled success. It’s much like being the fly on the wall at the local Fort Fumbles across our fruited plains. For the most part, I can literally see the VSR, RVSR or DRO involved in an individual claim and its relative progress through the system. I can see when the c&p exam is scheduled, the parameters of what they are going to ask for and the expected outcome they are looking for.

VA raters tend to “telegraph” what they expect from a rating when they write instructions to the QTC/VES folks. It used to be a c&p for Hepatitis C would instruct the examining doctor to comment on the fact that Jetguns were not proven to transmit Hepatitis C-a sotto voce de facto request to deny based on the Vet’s claim alone. True. Jetguns were never proven to do so but that ignores the fact that the CDC suggested strongly about Yule time in 1997 that they were mighty darn suspect in transmitting the disease. Et voilá! No more jetguns and surprisingly, the  horrific number of cases in the military evaporated.

Towards that end, I have retired my Jetgun from BVA hearings. Science and the VBMS have made it possible. Nowadays, I just call up or email the rater and inform him/her to please proceed post haste to issue a decision-pro or con- so I can begin obtaining an Independent Medical Opinion rebutting their findings of fact. Twice now, this has induced them to rethink whatever denial logic they had planned and concede service connection for Hepatitis C or Agent Orange complications from service in Thailand. In another case, on a §1151 claim, I told the Coach she was wasting her time looking for a signed consent form to use Interferon. She ignored me and kept kiting requests over to the Little Rock VAMC for three months asking where in Sam Hill was the document? I guess I didn’t convince that one.

Chieu Hoi!

I plan to use this  technique far more in the coming year. At $2,000.00 a pop, I can save my clients money and stress and even substantial delay in most cases. I call it the Chieu Hoi technique. Chieu Hoi, as my Vietnam Brethren know, means  surrender in Vietnamese. It seems VA raters are beginning to see a major uptick in VA litigators using IMO outfits like Mednick Associates to supply them with viable nexus letters. VA has no defence against this. They can deny but by law they cannot go out and get negative opinions to keep on denying you. Check out Hart v. Mansfield, 21 Vet.App. 505 (2007) to see why. Also Mariano v Principi/ Kahana v Shinseki ad nauseum.

Read my wart!

As the title of this blog implies, the waiting is most definitely the hardest part of the stress and financial strain a decade-long battle with the VA does to you. Now, imagine what it does to your VA shield bearer (attorney or agent). I, myself am not quite as challenged financially. I don’t have to service a $200,000 Pell grant for a student loan debt. I’m a smug, over-entitled white guy on SMC S and SSA so I don’t have to watch the mailbox with 9X50 binoculars and bated breath for every check from VA to arrive for my 20% representation fees. In many cases, I receive nothing because I prevail at the outset without having to file those 20-0995s for a supplemental shot at a win. As for the newer 0996s, I don’t do Higher Levels of Review (HLRs). They’re worthless and I won’t give the VA pukes satisfaction with their grotesque caricature of nonadversarial justice. I prefer to go to the BVA with a new VAF 10182 and have a real judge adjudicate it using real VA law- not the M 21-1 abortion version. Unless it’s obvious as the wart on the Wicked Witch of the East’s nose, you’re wasting your breathe and the client’s valuable time.

VA attorneys and Agents, often are disenfranchised by the VA’s finance department. I’ve seen Attorney/Agent Finance Coordinators (AAFCs) take waaaaay over the allotted 60 days from a decision to issue the authorization for the release of funds. It usually takes another month to push “Print” and send it to me. In two cases this year, they came back and issued a change order authorizing disbursement of 20% over three months after claims I won on the first try. The VA rationale was the new AMA theory- that if you ever applied for a benefit under the Legacy system and were denied, any subsequent grant was a “successful” appeal of sorts-even 9 years later! This is dubious law but far be it from me to argue. I just wonder who pays. I can’t see any evidence my clients got  whacked post-decision for the error. Do they just eat it? Who paid for this? It sure don’t come out of the Christmas Party fund we pay for ($100 dealer prep and destination fees)

ATTORNEY FEES PAYABLE

Even funnier, for those of you who have VBMS access, I have noticed another aberration that telegraphs VA’s intention to grant long before we litigators or the client get the Magic Paper-or even see the grant posted in the VBMS. Allow me a little show and tell. Once you gain access to the client’s efolder with your Power of Attorney (POA), you can go to the Veteran’s Profile. Look in the upper right where you choose which tab to view (i.e. Veteran; Informal Claim; Documents; Ratings; Notes.  Click on it and it opens to mundane info like name, rank, airspeed, tail number and last known heading. Scroll down to “FLASHES” and click on the +. Several things are listed. If the client is terminally ill or flashed for hardship, that is listed. Likewise, since April 2019, any clients with a Purple Heart Medal will have that listed as well which also gives them a quicker adjudication. If the documents are very old or there has been no new claim in 30 years, they show as still being unscanned at the Records Management Center (RMC). If you were boots on the ground in Vietnam, it will list that, too. There are other inconsequential entries which are immaterial to this blog so I won’t address them.  Of most import to litigators, however, are three entries.

After you initially file to represent, you usually file a VAF 21-526EZ or a 20-0995 Supplemental to begin your client’s legal journey. At this point (but not always), the VA AAFC will enter “Attorney Fee”. The clear implication is that you have filed a POA and an acceptable Fee Agreement to qualify for your 20%. After a denial, I usually file a rebuttal and begin the appeal process with an IMO. At that time, I often see the entry “Potential Attorney Fee”. Lastly, when it’s fairly obvious the raters have no legal reason to continue to deny your client, you will see a new entry-“Attorney Fees Payable”.  Sometimes this appears prior to that. I have no hard and fast info on why but I merely report what I have observed over the last four years.

Typical Flash sheet

I filed a supplemental 995 and they decided it in 14 days for 100%. The fees payable showed up 9 days after filing.

This one’s at the BVA on appeal now. No Fees showing…

This one went as predicted w/ fees payable visible 2 weeks before decision.

This came back from the BVA on remand and fees entry showed up before the decision (Thailand AO Vet).

1/16/2019 Legacy denial. Got new IMO post-AMA and it went to decision in 26 days. Fees payable showed up 12 days after filing.

Brand new client. Just established the POA several weeks ago.

I’ m sure there are better descriptive terms to describe what this means. In Southeast Asia, during our war games fifty years ago, I once heard a Sargent tell a guy you could almost always predict when a gook was getting ready to launch a B 40 RPG at you. He’d pop up and try to get his range in the first appearance and promptly duck down. Ten seconds later, almost to the dime,  he’d  pop back up with the armed rocket in the tube cocked and locked and pick his target. Poof. Gone again. The third time he showed himself was showtime.  Sgt. Ralph described this procedure as “telegraphing” his intentions. Hence my appropriation of the term above. The agreed-upon procedure was to keep you rifle pointed exactly where he popped up the first time and get two tries to take him out. We had great success using this technique if you had the balls to expose yourself that long.

Conversely, I have begun representing clients and found  “Potential Atty. Fees” added before I begin my litigation in earnest with a NOD. One thing is for sure. You will rarely, if ever, see “Atty. Fees Payable” on anyone they do not intend to grant to in the early stages absent a trip up to the BVA. By the same token, I have clients who have already won and nary an entry about anything more than the initial “Atty. Fees” entry. It seems there are lazy AAFCs out there. Seems every Regional Office has two or three of these troopers. Considering how few of us win, it’s intriguing why they are slackers on data entry.

There are many little widgets to click in a Veterans VBMS efolder that unveil interesting trends. One notable one is important. VA rarely sends out for a new c&p exam after a prior denial unless they have already chieu hoi’d and are preparing to grant. The reason is simple. They need to know how disabled you are in order  to assign a rating. In the case of my Vets with Hepatitis C claims, I always see a new QTC/LHI/VES request for a c&p shortly after I see the “Attorney Fees Payable” populate in the Flashes section.

As I mentioned at the Fall NOVA conferences in Portland, one of the most intriguing sources of whazzup? info appear in the “Go To Work Item” widget up in the left when you open the Claims tab and click on the instant appeal. I’ve found preliminary rating decisions spilling the beans sitting there awaiting rater approval or a second signature. Look for sneaky deferral notes. Screen grab them to show claims gerrymandering as they will disappear after the rating fiasco.

 

Unfortunately, the 20% for the calf scar was 26-year protected…

Now, granted, almost all of my clients are combat Vets-the very least of which almost always have a Purple Heart. Most have a few CIBs, CARs and combat V’s or other giveaways as to their jobs in the military. For some reason, VA gives them added attention and a more deferential treatment-especially if they are filing for Bent Brain Syndrome.

Thank you, all of you who have entrusted your claims to me. On behalf of Cupcake and myself, I hope we pass the audition. I don’t need to go into particulars but I lost my religious beliefs about six months into my first tour during the War but I still consider doing this to be God’s work. I only hope my body (and mind) will continue to permit me to do this for years to come.

Again, a Merry Christmas to all of you who come here. Forget my insufferable ego that drives me to be so sarcastic. Remember that my end goal is the highest and best rating I can attain for my people. Money will never be the reason. I wear my insult from a National DAV Service Officer proudly like a Scarlet Letter on my breast. He called me a bloodsucking VA Ambulance Chaser. So be it. I’m probably going to go to Hell but I’m going to make life absolute Hell for the VA until I get there.

P.S. Now that I spilled the beans on the Atty. fees payable, I’m guessing it will be removed from the Profile flashes!

Take a moment to remember those who have fallen this season.

Posted in ASKNOD BOOK, Jetgun Claims evidence, Nexus Information, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, vA news, VBMS Tricks | Tagged , , , , , , , , , , , , , | 11 Comments