FORT FUMBLE (DROC SEATTLE)–19TH NERVOUS BREAKDOWN

Folks, I have to tell you. Very rarely have I spent more time in a one-year period trying to ride herd on a bunch of VA cats.  I had them squirting off left and right and cancelling claims like they used to back in 1994. Back then it took a while to sink in-like maybe a couple of years to recognize that you hadn’t heard from Fred at VFW or been asked to fill out some form or send some information in. Shoot, by then Fred had moved on to a new career at Lonnie’s Used Cars and the VFW  “service officers” didn’t even know who you were. It was painful to start all over. Some of us beat our heads against that wall several times before we noticed the mental bruising.

Lookin’ out my back door….

Jimbo wasn’t that compulsive. He trucked with VA once in 2002 when he started getting sick from 20 yrs of asbestos and two tours of Agent Orange. He got the usual red carpet denials and tore up his VA medical card. Sayonara, baby. What the hey. He had TRICARE. I’m sure, being a retired Chief Petty Officer, he figured it out after his first BDA over the claims target.

When you consider how the Nehmer rules work ( §3.816(c)(2)(i)), if you were some kind of lucky to put in for Diabetes Melitus II or IHD back in the ’90s, you’d be incredibly rich if you had the smarts to refile in say… 3/2020. Call this a pandemic work project. Something for the bucket list. We filed about then for what I was told was his first filing ever. Not so. Memories fade and so did Jim’s. He forgot the 2002 filing for SHAD. He put in for a lot of serious shit including cancer (Myelodysplastic Syndrome), asbestosis, Diabetes II, IHD, bent brain  and back issues. He lost them all. What? You thought I was going say he won? Shoo doggies. We’re talking VA here. You’d have a better chance of buying the correct numbers on a Power Ball Ticket with the $10 Million Enhancer option for an extra buck.

Fate works in strange ways. Jimbo’s daughter came to work for Cupcake back in 20-someteen as an admin asst. and progressed up to RE agent over time. Her dad made me a keen box with the Air Force seal carved into the lid in 2014. About then the IHD and the PN started to take him down. One day last spring I asked Pumpkin what Christine’s dad was up to. I’d remembered two things (apparently) that prove I haven’t lost my mind yet. I knew he’d been on a destroyer or two close enough to land for eyes-on artillery support in Vietnam and wondered if he had anything he could file for. After a few spits and wheezes, we got a POA together and filed.

Well, shit everything blew up. Here we are in the new VBMS and you send in a 526 only to have them say sorry Jim. Wrong form. No. You refile on a 995 and there’s still a 50 % chance they’ll tell you that one’s wrong. That’s where having access to the VA Regional Office’s Change Management Agent is essential. She can get it sorted in two days and everything settles back down. It’s about then you go rooting around in his VBMS e-claims file and discover he filed for the IHD and DM II waaaaaaaaaaaaaaaaay back in 9/2002. This is like having a Delorean and being able to go back to 2002 and bet  $100 across to WPS on a 6-1 horse that isn’t even going to run until 2020. Of course, then you have to survive a few myocardial infarctions and dang near lose the use of the lower extremities to cash it in.

And, to add ice creme, boom chocolaka-laka and sprinkles, he forgot he also filed for mental depression secondary to the IHD. So, Procopio vs. Wilkie comes out and he’s some kind of big CRDP chicken dinner winner. Right? Not. Big chicken dinner winners are Vets VA doesn’t want  to pay. I mean seriously-and in this case to the point of cancelling claims and shitcanning evidence or misidentifying it as a document it isn’t. In fact, they spent 9 months trying to prove he wasn’t inside the 12-mile limit. His STRS had been uploaded into the claims file back in 2003 which probably saved them from the Friday the 13th conflagration at the NPRC in St. Louis back in 1973. VA could have looked at them and seen he’d been inside the 12-mile limit.

VA gerrymandered his staged rating like a Philadelphia congressional district. He had enough for 70% in 2003 (until his heart got better temporarily) and they reduced it to 30% (in 2006). Oh, and the 10% bilateral Peripheral neuropathy of the feet which improved? It, too bilaterally went down to 0%. All of a sudden he was rated at 44% ( rounded down to 40%) and missed being able to collect both the Navy retirement and the VA disability comp. Screwed him they did. Yeeeeeeeeeeeeeeeeeeeeeeees.

But….  that MDD as a secondary would hamburger the staged rating all the way back in 2003.  Jimbo would be entitled to that bodacious CRDP. VA decided it had to be cancelled. It was not CUE according to the VA Puzzle Palace Nehmer expert because a MDD isn’t on the disease list in §3.309(e). Right, it wasn’t CUE but nevertheless VA graciously begins a brand new claim with no 995 or 526 whatsoever and belatedly grants Jim 50% for MDD— but only to the date of filing (12/2020). That one was launched on appeal up to the big house this morning. But that’s not the end of the matter.

On 12/29/2020, having way too much time on my hands and fistfuls of medrecs that said Jimbo’s EF was below 30% waaaaaaay back in 2014, I filed a new 995. VA denied it 7 days later (including the National Holiday) on the 6th. No explanation. No favorable findings of fact. It was like I was blind and didn’t know how to read Braille. I had to call up my CMA Allison and have her call up Cris the CMA in Albuquerque to ask their Coach why in Sam Hill they denied. It took two days to get back to me with the reason.

Apparently our good cardiodoc did what every cardiodoc has done for decades. He stated the Left Ventricular  Ejection Fraction (LVEF) of the Heart as “EF”. Mind you, every VA Bastion of Ignorance across our fruited plains employs a medical specialist- at least an ARNP usually. S/he is familiar with medical terms and would instantly be able to interpolate EF and understand it. But noooooooooooooooooooooo. S/he denied because they were unsure if it was the left or… wait for it….the right ventricle. Since you a) need to do an MRI to figure out what that right EF number is and b) know the Vet you are dealing with has a rating for a “left” ventricle, you can be almost 100% sure any reference to an EF would be… wait for it…  to the left…except in Albuquerque. Sort of speaks volumes about the medical booth bitch in Albuquerque, huh?

Now, keep in mind the Secretary’s very own wording in his regulation, §4.104 DC 7005 says in haec verba

left ventricular dysfunction with an ejection fraction of less than X percent

So, undaunted, I reloaded on 2/11 with another 995 containing a signed letter from the good doctor and all the Jimster’s cardio records clean back to 2014. About then I discovered his EF would actually result in a much earlier 100% rating… well, everywhere but Seattle. Yep. The raters, with heels dug in, disconnected my legal brief from the claim and, in a fit of spite, ignored all the new supportive medrecs. Denied. Coincidence, you say? Whatever. Fortunately, I’m not easily deterred. I went the NOVA route and enlisted them to pester someone in Washington DC with an IQ higher than room temperature.

Faster than you can say lickityspit, the whole DROC came alive the next day like a yellow jacket nest on fire. Smokin’! I watched like a fly on the wall as it unfolded in VBMS. Every Ceslee, Kathryn and Song Yong from the Assistant Veterans Service Manager all the way down to Coaches, Assistant Coaches, Quality Control SRVSRs-shit oh dear all the King’s men were hard at it. More claims were opened, cancelled, reopened, administratively reviewed with three signatures than you could hit a cowpie with. And what should my wondering eyes behold come Tuesday morning? Why, a new screwed up decision but at least one that can be worked on up at the BVA. It gets a substantial amount of Baksheesh into the Vet’s bank account pronto which is what I’ve been working on for a year.

I’ve had it with these morons. I applied for TDIU in the 3/2020 filing. VA didn’t even mention it. Imagine granting  60% for IHD, then a 100% for three years, and then back to a 60% for 12 months before finally granting 100% P&T. And the Vet has been unemployed since the last big myocardial event back in 2005? What did they expect him to be capable of?  Selling vacuum cleaners door-to-door?  This, ladies and gentlemen, is what is called a Fenderson staged rating where they cast dem bones and read dem tea leaves and figure out how little they can give you back to when the old claim started. Frankly, it’s insulting.

Here’s the redacted docs. I did get him SMC S for two back months and forever into the future. What VA hasn’t even seen coming yet is to have to pay him about 70-80% all the way back to 2003. Kinda reminds me of Leggos. You just keep on building and building like a Progressive Slot down in Vegas. It pays out about the same, too when it hits.

redact CUE RD 2-25-2021 MDD

Redact snod CUE 3.3.21

redactSnod Code St 3.3.21

Folks, I gotta tell you no matter how much caterwauling I do, this is more fun than fishing with hand grenades and a supersized Tanqueray and Tonic. If someone had showed me this gig in 2007 and turned me lose, I could have helped a gazillion more Vets.

In Jimbo’s case, I’m doing the frequent filer program for new claims and appeals just in case he punches out. Mrs. Jimbo can’t get anything on accrued unless it’s filed before he saddles up. I also like to file my clients for A&A these days the moment they catch a cold. That way, if it goes south and it’s discovered he has a SC cause, we get them a few extra shekels for the short period of the Hospice. Remember, you can’t file after they hit room temp. If I sound like some kind of VA ambulance chaser, it’s because they (VA) have been so rude and abusive to my Vets. What goes around comes around. Very few litigators are brave enough to call these jackwads out.

Posted in Agent Orange, All about Veterans, Appeals Modernization Act, Blue Water Navy, CUE, FACE HUMOR, Tips and Tricks, VA Agents, VBMS, VBMS Tricks | Tagged , , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW THURSDAY 2/25/2021

If you are otherwise unoccupied tomorrow evening 2/25/2021 at 1600 HRS on the Left Coast, tune in for some interesting discussions on the recent about face of the Veterans Administration on equitably deciding claims. This process, since shortly before the election, has been turned on its head. It’s so bad, you could get your hand blown off by a B 40 with 20 platoon members witnessing it, be awarded a PH and a CIB and still lose your VA claim. Folks, you may think I’ve been smoking some killer Mantanuska Funderthuck but I have the proof.

Better yet, in the same vein, I’m seeing a nefarious process where a Vet finally wins a claim back to 2002 and the VA Examiner carefully make sure he’ll somehow just barely miss being over 50% in order to be able to collect both his retirement pay as well as a VA disability compensation (CRDP). Or, how about finally acknowledging the Vet is entitled to SC back to 2004 but give him a 0% even though he couldn’t walk without a cane and a knee brace. I could go on and on but I’ll save it for the show.

SSgt. Famous Amos Weeks (KHA 8/1971 near Tango 11) guarding our incoming Vitamin B

I’ll give you all some tips on how to build your very own personalized punji pits for the VA raters to fall into when you get to the end of your claims fights. If I didn’t know any better, I’d think the Under Secretary for Benefits (USB) sent out an email saying “Holy shit. We’re out of money. Deny everything until further notice. Quit answering the phones. Turn off VBMS.” They didn’t send out any email that said it explicitly. They just lost that loving feeling.

I’m waiting for them to start putting blurbs in their denial letters like

“Please take a moment to share the denial with the Veteran and let him know we strive for equity in all our endeavors. Our motto to our frontline raters remains Grant if you can. Deny if you must. We encourage the claimant to refile in the future when he or she has further evidence that might support his claims.  Please also thank him or her for their service.”


Here’s the link to online version:

https://www.blogtalkradio.com/jbasser/11900753/connect/203bc446eb00678f33add01f57a1e0ecf0020462

 

Unless I’m mistaken, the telephone  number to reach this gig is

(515) 605-9764

 

If you just intend to listen, do not dial one to share your dog barking at the Amazon Delivery guy. Dial one only if you desire to talk to the person to whom you wish to speak.

1900HRS on the East Coast.

Radio Documents for Discussion of VA’s New Adversarial Adjudications Posture.

 

Redact Korea 10% Vet is 10% for residuals of encephalitis from 1953 to 2009 and then  100% for s/p encephalitis but VA says he he has nothing wrong with him. Okay. Then why give him the 10% from 53? the 100% from 2009? But not 80% from 1953  for 50%/DC 8100 headaches, 30% DC 9411 and 10% DC 6204 as individual ratings under §4.124a?

redact RD 2-10-21 Vet wins knee back to 2003 at 10% and then 20% from 1/2020 but he needed a knee brace and a cane to walk in 2003. So why the refusal to grant his initial claim at 30% under DC 5257 (2004) and 10% DC 5260 (DeLuca pain) back to 2003? SMC S from 2003 is a big chunk of change VA is not going to cough up without a fight.

redact RD 9-29-20

This is a redo for a Blue Water Vet. He filed in 2003 for IHD, DM II and PN due to Shipboard Hazard and Defense (Shad) but lost. I refile in 2020 under Blue Water and it’s now retirement pay PLUS VA comp (concurrent receipt). VA gives him a Fenderson staged rating and dang if he missed that 50% by thaaaaaaaaaaaaaaaat much. But, VA forgot about the 2003 C&P where they connected his depression to the Coronary Artery Disease (CAD) but denied the CAD.

redact RD 2-19-21 Here I submitted 12 pages of medrecs showing a Ejection fraction of <20%= 100% for IHD. VA tosses the medrecs and says I submitted a §5103 saying I had nothing more to submit and dated it 2/11/2021-the day I filed it. They had to go find a §5103 dated 1/06//2021 and stick it into a claim filed 36 days later on 2/11. So how do you file a 995 with no N&R Evidence?

redact CUE 2-25-2021

I refile the depressive disorder as a CUE of the redo on the 2003 §3.816 look back and they cancelled it twice. I called… well, I called someone in DC I know and today bingo- they reinstate a cancelled claim and grant it but not as a CUE. They feel it was raised on 12/02/2020-the day I filed the CUE. Make your own rules up if you want to. Any old rules that you think will do.

§3.310:

(a) General. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.

Here, we’re dealing with Harris v. Derwinski and inextricably intertwined claims. If they deny a claim in 2003 and then grant it due to AO updates, anything that was part of it then is part of it now. When you grant a CUE, you have to put the Veteran in the same position he was in before they committed the CUE. VA contends this isn’t a CUE but granted it without my filing a 995 or 526 to reopen it. Ergo, it’s a CUE grant with the wrong effective date.

VA is not only screwing up at a record pace. They are purposefully denying or granting in such a way as to give the Vet the very least they can and then see if he objects. They grandly state “This is a complete grant of the benefit sought.” Yeah, well percentage-wise but not effective date-wise. Granted, as the comments below imply, VA has always screwed up our claims. But why now, suddenly when a lot of Vets are in deep doo doo with the Coronacrap and lost jobs, decide to be extra speshull assholes? What internal memo was circulated? What FAST letter was dispatched to all HHCs for immediate dissemination? You have to have a very high SES rating to be instituting this level of havoc.

redact g code sheet 2-10-21

P.S. recent Pickles entertainment with her Wingman Widget.

 

 

 

Posted in All about Veterans, Appeals Modernization Act, Complaints Department, Exposed Veteran Radio Show, Pickles, Tips and Tricks, VA Agents | Tagged , , , , , , , , , | 7 Comments

Is VA spitting in the faces of CAVC Judges and Veterans with this Proposed Rule?: Definition for Aggravation (09/11/2020)

On February 1, 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) heard a consolidated appeal, Ward (No. 16-2157), Neal NO. 17-1204 v. Wilkie, and decided it on Jun 14, 2019.

DAVIS, Chief Judge:

Both cases in this consolidated appeal involve the correct legal standard for
assessing an increase in disability of a non-service-connected condition “proximately due to or the result of a service-connected disability” 2

The merits issue for panel consideration arises from Board instructions to VA examiners in both cases that “aggravation” of a non-service-connected
condition required a “permanent worsening” of that secondary condition.

The Secretary apparently imported this requirement from law pertaining to the presumption of aggravation for conditions preexisting service.3
The Secretary has incorporated the “permanent worsening” requirement into the VA Adjudication Procedures Manual, effective November 30, 2017.4

The Court concludes that the Secretary’s imposition of the “permanent worsening” standard is an impermissible attempt to add requirements that appear in neither the enabling statute 5nor in the implementing regulation for secondary service connection.

Footnotes

2. See 38 C.F.R. § 3.310(b) (2018). Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

3. See 38 U.S.C. § 1153; Aggravation

38 C.F.R. § 3.306 (2018). Aggravation of pre-service disability

4. VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B(5)(a).

5. See 38 U.S.C. § 1110. Basic entitlement

6. See 38 C.F.R. § 3.310. Disabilities that are proximately due to, or aggravated by, service-connected disease or injury.

It appears that VA wants to serve up some rule-revenge to the CAVC and Veterans for their ruling. They boldly say they want the rule to supercede the CAVA’s decision in Ward. Cancel culture–VBA canceling CAVC.

“The Ward case, which the VA attempts to overturn through this proposed rule, provides a case law. The decision also makes clear that the recitation of the history and application of the relevant provisions and language VA seeks
to impose is not anchored in statute, thus it is unclear that these rules could survive a challenge under the Supreme Court’s recent clarifications on deference to agencies.”

Carl Blake
Executive Director, Paralyzed Veterans of America

Online Regulations.gov: LONG https://www.regulations.gov/document?D=VA-2020-VBA-0021-0001. See: Part II, 6th paragraph

“…VA did not intend this divergence, and its proposed revisions to realign the two standards of “aggravation” will supersede the effect of the Veterans Court’s recent holding in Ward v. Wilkie based on a change in the underlying regulatory text.

Question: Is VA intentionally and publicly refusing to implement CAVC’s decisions?

There are about 32 comments in Response to RIN 2900-AQ80, Aggravation Definition, with excellent responses from NOVA, Paralyzed Veterans of America, Veterans of Foreign Wars, Legal Services Center of Harvard Law School & Chisholm Chisholm & Kilpatrick LTD, Disabled American Veterans, Fulton County Veterans Service Agency, National Law School Veterans Clinic Consortium and others. Find links to letters here:

The Impact Statement is appalling. Can it be true that they want this rule to save 68 million, over 5 years.

VA was forced to add Ward, Neal v. Wilke to the raters guidance book: VA ADJUDICATION PROCEDURES MANUAL (M21-1), pt. III, subpt. iv, ch. 6, § B(5)(a).

Additional information

In paper FR: Federal Register 85 FR 56189

Regulation Identification Number (RIN) 2900-AQ80

Hadit.com posted the proposed rule in the Federal Register.

Ward, Neal v. Wilkie, Jun 14, 2019, 31 Vet.App. 233 (2019)
Article ID: 554400000121972

http://www.uscourts.cavc.gov/documents/WardLM_16-2157%20(3).pdf

https://www.va.gov/ORPM/FY_2020_Published_VA_Regulations.asp

A 21st Century System for Evaluating Veterans for Disability Benefits
(2007)
Consensus Study Report

Read chapter 11 free online (register): https://www.nap.edu/read/11885/chapter/11

VA must withdraw this insult to the Court. I would urge you email your Congress and state veterans agency. A comment can be posted to Sec. Denis McDonough:

https://blogs.va.gov/VAntage/category/secretarys-blog/

Laura (Guest author)

Posted in All about Veterans, CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Food for thought, Future Veterans, General Messages, Guest authors, Important CAVC/COVA Ruling, M-21 info, research, Uncategorized, VA Secretaries | Leave a comment

BVA–NOTHING IS EVERYTHING

27°. Boy howdy is it ever cold out today. The great big Snowmageddon going on across our fruitless plains finally arrived hereabouts yesterday. Pickles loves it. This wouldn’t be considered a real Snowstorm snowstorm unless you just moved here from California. I watched a dude pumping gas in a shorts-and-flipflops get-up this AM. It’s a hoot to watch in 11 inches of snow. Fugit. I’m retired. I’ve got time to stop and watch this. Your feet would go numb before you filled up.  With all due Respect to former VP Albert Gore, global warming is taking it’s damn sweet time in settling in to Washington state for some of our newest arrivees. Since I’ve lived here almost since when I came home from Vietnam (4/74), I can rightfully don the mantle of 2nd generation immigrant. And since I wasn’t born and raised in California, I have even more cachet yet. So I’ve got that going for me. Which, apparently is more than the Department of Venomous Affairs has going for them. Seems in the last eight months I wasn’t too far off the mark about perceiving a real sea change in adjudications procedures and attitudes.

Nothing is Everything. That commercial jingle for a prescription pharmaceutical drug stuck in my head and I wondered if the VA had begun incorporating the sentiment into ratings procedures.  It feels that way. All my decisions in the last 6  months seem to be 0%s in spite of the clients’ being at Death’s door. What gives? Are they broke? Is that new Electronic Health Records (EHR) computer starting to have a few “overruns” like the Denver VAMC? Like, in the tens of billions? Time to call Bill Gates.

We NOVA members have an “inwards-facing” Parler of our own where we can share knowledge, tradecraft or ask questions about how-to stuff. It’s very valuable and when someone finds a gem with a prologue of “Hold the phone Ramone. You’re just never going to believe what they did to my client today…” they feel compelled to share it. That’s a good thing. We begin to feel we aren’t pregnant and alone in this VA representation gig when we hear others’ laments. Shit, some of these attorneys are carrying quadruplets compared to me.

Everyone has their own technique or secret weapons on how to beat the VA in this 3-card Monte game. I have mine and freely share them here. As I’ve pointed out before, the moment VA begins doing something new or arcane and it results in a loss, you have to adapt and learn how to tie a better knot. Conversely, you also have to understand how to untie a VA Gordian knot. They’re famous for them.

I have a wonderful case study today of what I would refer to as VA’s proclivity to produce innovative, inventive, bullshit case law. Steve and I go waaaaaaay back to early Hadit.com days. Imagine your life becoming unraveled in 2003-2004. You file claims and ten seconds later the shit show begins. Next thing you know you’re homeless and MD 20 20 is your go-to beverage/food. Shit happens. You wake up 8 years later and someone helps you glue yourself together. You refile your claims which you forgot all about. You begin winning because they (the claims) were totally legitimate back in ’03.

Next thing you know, you’re TDIU for Bent Brain and a handful of other ratings adding up to 40%.  Considering you’d gone homeless in 2003 and even told VA, you’d figure they’d a held off on the claims until you got your shit back together, right? Not. They had his ass denied in record time for everything-PTSD, asthma, residuals of a broken ankle, bum left knee 2ndy to the ankle, bad back and Grave’s disease. Steve emailed with me about 2012 and he started by getting a copy of his claims file. Sure enough, there was the smoking gun-well, actually three of them. They’d kept sending the denials to a Halfway house he’d checked out of months before. Fortunately, he’d left his new address with his psychiatrist and there it was safely and constructively in possession of the VHA. Now, I’m not going to make any judgement calls but Steve probably wasn’t in any condition to pursue his claims in 2003. It was actually a blessing in disguise in retrospect.

When this happens, everyone VA is supposed to take a time out and do a recon to find his location. VA didn’t. This put Stevie’s claim on ice judicially until he came back from MD 2020 land. The raters ignored the law and denied. No surprise there. Inventive case law. M21 on steroids. Mission creep. Take your pick on semantics. So, Steve is doing a dumpster dive in his c-file and see’s all the returned rating decisions and asks me if that could be CUE’d. Roger that… but better. You don’t have to prove CUE. You just prove you never got the original decision. This is called the presumption of regularity of the mail. If VA says they mailed it to you, it’s presumed they did it right and you lost it or blew it off. To call them out now, you have to have proof you told them you were homeless. In addition, you have to prove that they had a valid address and screwed up by not mailing it to the correct address. Without the claims file, he would have never known.

Steve kept appealing it up to the top and finally, in February 2018, he struck gold with VLJ Yvette White. I gave him all the ammo and he did it himself pro se.  Half of winning these

Redacted 2018 EED BVA grant

complex claims or appeals postures is explaining it to an intelligent life form. You’re far more prone to encounter them up at the BVA. Judge White granted the earlier effective date of 2003 for all the claims he’d filed in ’03 and remanded it back to the RO for rating. Thus, by operation of law, all those 10%s and 30%s he’d won in 2012-2014 (but filed for first in 2003) were effective back to 2003, too.  Well, almost. The VA had never granted service connection for his boogered up knee and his back needed a higher rating based on the degree of goniometer or whatever it’s called.

Being a gambler, I asked ol’ Steverino if he wanted to play some more 3-card Monte with VA.  He was game.  I took his POA and did a deep dive. Steve had filed for his bum knee due to all the pain his left ankle telegraphed up into it.  His lower back disability was more intense than 10%. Some days it plumb wiped him out for doing anything. I thought he deserved to get this sorted but knew it would take some dough.

Being a betting man, I bought his Independent Medical Opinion(IMO) for a few K and sat on it. Because Steve’s 2003 claim was now in play again fifteen years later, I filed his NOD 21-0958 and asked them to reconsider the left knee service connection and increase in the low back… and SMC S back to 2003. When added up, all he needed to get SMC S was enough ratings to reach 60%. He had a 30 and two 10s= 43%. He needed 30% more to get it. I honestly figured he could get the increase from 10% to 20% for his back and a 10% for his knee minimum which would give him his 60% ( 30+20+10+10).  At first, the San Diego VARO couldn’t wrap their heads around a 15-year old claim that was still kicking and refused to accept my 958 NOD. I had to sit down with a DRO and frog- walk him through VBMS to show him why he had to CEST it. CEST is a VA term meaning “Claim Established”. It took an hour of monosyllabic discourse but suddenly the lightbulb came on over his head. They quickly denied it and we sat around waiting for the SOC to be issued. That took 16 months. Meanwhile, Steve was having a new bad run of luck. They’d moved to Texas to escape California, bought a big house and now the Pandemic was screwing up their ability to pay the mortgage.

We’d launched a VA 9 torpedo using Legacy and tossed in the IMO in 3/2020. I finally filed a request for Advancement on the Docket for financial hardship for him. His wife was  out of work because of the Coronacrap.  Bingo. The AOD rating just came back with an incomprehensible decision. The new Judge, VLJ Laura E. Collins, granted the service connection for the knee and the 20% for the back increase. The big problem was she only granted the back increase to 2015. Aruuuuhh?

Redacted 2021 BVA CUE

Worse, when the RO got this remand, they granted 10% for the knee in 2003 and another 20% for more left knee… in 2020. This, too, was the absolute last thing I expected. The carefully crafted (read gerrymandered) knee rating decision and BVA back increase grant only going back to 2015 effectively deprived us of the needed percentages at the right time (2003) for EED for SMC S. Or did it?

redact RD 2-10-21

This is where it helps to know how to cut the knot. It isn’t difficult. The BVA gal is trying to employ Fenderson v. West and used a staged rating on an original claim. Sorry, Laura. You can’t do that. An initial, original claim will always grant you the highest and best rating effective the day you filed. Thus, even if VA screwed it up and thought they are keeping you out of the $, any rating they give you will be paid back to date of filing. So, by operation of law, Steve gets his 20% for lower back and the (brand new) 20% and 10% ratings for his knee all the way back to 11/20/2003. Game. Set. Match. Shooo doggies. You think VA was going to roll over and pay out without a fight?

VA would like to think they smoked us but they stepped on their necktie. They have now granted more than enough to get SMC S back to 2003 but smugly think they outsmarted us by throwing in that bogus Fenderson shit. Who’s the fool, fool? Fenderson is unequivocal and so is 38 USC §5110(a)(1). So, we rebut the SSOC with a brief but let it go back up to the Board (AOD) for them to see their error. This is a cross between res judicata and stare decisis with a side of due process. VA would prefer their innovative, inventive legal interpolation and try to camouflage the difference between an original claim and one for an increased rating. Make your own rules up if you want to. Any old rules that you think will do. Sort of like that old Traffic song.

redact rebuttal of SSOC filed 2-13-2021

I love unraveling these old ones. It’s almost as easy as fishing with hand grenades or deer hunting with an M 60.

Posted in All about Veterans, BvA Decisions, Earlier Effective dates, Equitable tolling, Humor, Legacy Claims, Nexus Information, Pickles, Tips and Tricks, VA Agents, VA suspense dates, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

Agent Orange (AO) thoughts; “And it’s one, two, three, what are we fighting for?”

116th Congress: It’s been one month since H.R.6395, the National Defense Authorization Act for Fiscal Year 2021, passed over a veto on 1/1/21 and became Public Law No: 116-283.

It includes an important AO amendment, pushed through by Sen. Tester of Montana, now also law. (Four years + AO advocacy)

TITLE XCI–VETERANS AFFAIRS MATTERS

Sec. 9109. Additional diseases associated with exposure to certain
herbicide agents for which there is a presumption of service
connection for veterans who served in the Republic of Vietnam.

SEC. 9109. ADDITIONAL DISEASES ASSOCIATED WITH EXPOSURE TO CERTAIN 
HERBICIDE AGENTS FOR WHICH THERE IS A PRESUMPTION OF SERVICE CONNECTION 
FOR VETERANS WHO SERVED IN THE REPUBLIC OF VIETNAM.
    Section 1116(a)(2) of title 38, United States Code, is amended by 
adding at the end the following new subparagraphs:
        ``(I) Parkinsonism.
        ``(J) Bladder cancer.
        ``(K) Hypothyroidism.''

Now what? Don’t see anything on the VA website, or the Federal Register yet. VSO’s quiet but I found this:

NY Vietnam Vets writes (1/8) :”Please note, once proposed legislation has been signed into law, the Executive Branch is responsible for implementing it. VVA will work with Congress and the Department of Veteran Affairs to ensure that these new bills are fully implemented.More at VVA.

So the Biden Administration will implement this–but when? Robert Wilke is gone; Dat Tran is interim secretary. Denis McDonough has been nominated for VA Secretary.

Send Questions to the Tippy Top People

White House VA Hotline (VEO): 24/7 call line

Your Senators & representatives have “FIND YOUR______”forms online

The 2020 Agent Orange (AO) Newsletter, published irregularly by VA’s Public Health department, is the most recent.

Who to poke? Your local Environmental Exposures Co-ordinators by state or VISN have email and phone numbers listed. They may have some good information to share or can get it.

Unlike the Blue Water Navy Act, I don’t see a reference to any Effective Date of Award. Alex advises submitting a claim as soon as possible.

58,318 Americans died in Vietnam. Tens of thousands died after the war from Agent Orange; tens of thousands of oldies are still fighting AO. Only about 32% remain.

Who in the Senate doesn’t get it or care?

Without unbiased research, informed lawmakers, and fair-minded patriotic citizens, I think life for disabled or injured veterans and their families will not improve. Maybe term limits would help?

The 117th U. S. Congress has convened with over 65 new members. There is a new-old administration. One hopes for speedy reforms. Younger vets are experiencing the same delay and deny tactics that have been used in the past. They have seen elder vets suffer needlessly. On the streets. Fifty years to get welcomed home...(VFW).

And it’s 1, 2, 3, what’re we fighting for?
Don’t ask me, I don’t give a damn

Next stop is vietnam
And it’s 5, 6, 7, open up the pearly gates
Well there ain’t no time to wonder why
Whoopee! We’re all gonna die

Laura (Guest author)

Posted in Agent Orange, All about Veterans, AO, Congressional Influence, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, History, Inspirational Veterans, Legislation, Uncategorized, VA Health Care, vA news, Vietnam Disease Issues | Tagged | 13 Comments

GROUNDHOG DAY–VBA DOCUMENT DUMP

Once upon a time in the mining hills of  West Virginia there lived a young boy named Rocky-hold it. Wrong one. Gary and I met online somewhere back at the dawn of VA time after I got my license to litigate. He was a County Mountie VSO for Indiana or some place I disremember now. He took a shine to the idea of becoming a full-fledged VA Agent with all the concomitant authority it bestows upon you. Several others I have encouraged have done so, too. I commend them for helping Vets win their claims. Gary’s a computer whizbang. He delved into the intricacies of the VBMS and began roaming hither and yon seeking whatever he could turn up.  Or, better yet, how far he could trespass before someone slammed the electronic door in his face and restricted his access to certain areas.

 Being’s as I don’t have a) the electronic knowledge or; b) the balls to do this, I haven’t anything to show for having VBMS access for 4 years other than to discover I can see my own claims file (illegal) or access to VACOLS (Veterans Appeals Control and Locator System) (forbidden to VA attorneys and Agents). An interesting side note is that one of our more illustrious Veteran litigators- Gene Groves(one who has actually won an Extraordinary Writ)- discovered there is a “back door” to VACOLS allowing you to revise earlier entries in spite of VA’s insistence it is inviolate .  I guess VA rolls with the Presidential definition of what “is” is.

Missed it by thaaaaat much

Being a VA Agent is too cool for school. First and foremost, you don’t begin your new job following graduation from law school after 7 years of preparation with a $200,000.00 student loan that will hound you to the Funeral Home. You have all the authority as an Agent to do anything an attorney can do in VA land. That’s pretty heady shit when you think about it. I try not to. I devote every waking moment to learning about Veterans law and how to bend it to my needs. I don’t have time to devote to chasing down a Hoodoo lane in VBMS. I really wish I did but I’m 70-not 35. I have horses and dogs- and a Cupcake.

Thus I wish to give credit to Gary for turning up some interesting documents that- on their face- tend to support that hackneyed “delay, deny- until we die” rag. Here’s an interesting peek behind the green curtain into the VA Land of Oz and how this all works.

Betty Crocker’s Adventures in Good Eating.

These are the first of many more “doc dumps” I hope to receive which shine a light on the “How to” in VA adjudications. Considering our job is Veterans and the VA is considered the Neutral Zone and nonadversarial, it strikes me as odd how these conversations and  briefings/working papers arise.

The Presumption of Soundness at Entry

The Presumption of Soundness is one of those bedrock principles we rely on to show service connection. Certainly, there are going to be Vets who enlist and disremember to mention that bum knee or the raging GERD during the SF 88 Meet and Greet at AFEES. 60 days later at Basic in a wheelchair, they get shown the door as having problems which pre-existed service. You’ll find a lot of these folks also race off base to VSOs and file claims faster than you can say Jack Robinson. VA spends an inordinate amount of time searching to make sure they aren’t being dishonest. I get that. So… why an Office of Learning and Management article to teach VA raters how to get around Congress’ clear intent to give that Vet the benefit of the doubt? Well, duh. To teach them how to deny.

presumption of soundness Information

TBI

Moving along, here’s a treatise on Traumatic brain injury and how to studiously avoid inadvertently creating an inference as to the possibility of other, related injuries secondary to the primary service connected ailment (page 9).

TRAUMATIC BRAIN INJURY

Practice Tip: In finding that the criteria for a current disability are met, do not attempt to identify the residuals with precision, for the reasons stated in B.5 below. Instead, make a finding that is not limiting. For example, “The TBI the Veteran sustained in service resulted in chronic residuals such as X and Y.”
See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (noting that the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list).

See how they did that? No reason for us raters to go on an unguided safari in search of all that ol’ boy’s injuries. Give him tinnitus for 10% and see if he pitches a bitch about his headaches, dizziness and trouble remembering when to go potty.

Here’s an unknown tidbit-

The U.S. Army Medical Research and Materiel Command Joint
Trauma Analysis and Prevention of Injury in Combat (JTAPIC) has
developed a registry of service members who were within 50 feet of a blast since mid-2010. When existing DoD records, to include STRs, are not sufficient to verify exposure to a blast injury that occurred since mid-2010, verification may be requested from JTAPIC.

Interestingly, this was prepared by an OGC gal I tangled with up at the CAVC in Butch Long’s CAVC Appeal (Shereen Marcus). Small world, eh?

Here’s another How to for rating novices when denying ah, deciding TBI claims by April Maddox. She freely admits it’s not an official statement of policy or legal interpretation of VA law-just one of them “inward-facing” documents that someone who was incredibly bored decided to cobble together in their spare time for extra credits (read attaboy  er, attagirl I mean attaperson bonus). Gotta be careful these days with this cancel culture dictionary shit.

Rating Traumatic Brain Injury (TBI)

§3.303(b)

Last in this treasure trove of Cliff Notes© is a discussion of Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) For those of you who are novices to this poker game, for years they (both VA and the Courts) employed §3.303(b) by ignoring the second half of it. §3.303(b) refers back to VA’s list of presumptive “chronic” diseases discussed in §§3.307;3.309-not whatever we claim as chronic. Our only defense in this is an old standby- the use of the phrase “continuity of symptomatology” versus VA’s propensity to say we have no paper trail of “continuity of treatment”. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) or “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.”  Savage v Gober, 10 Vet. App. 494, 496 (1997).

A lot of times VA is trapped into  having to acknowledge what they have actually written versus what they really meant to mansplain. Imagine writing §3.303(b) back in 1961 and glossing over that second half restricting it dramatically for 52 years. I’m surprised VA doesn’t go back and CUE themselves on the umpteen gazillion claims where they screwed it up. Thank God for the § 3.951 20-year rule huh?

continuity of symptoms

VERY GOOD STUFF Walker Panel Materials

On behalf of myself and the rest of the asknod menagerie, I wish you all a Happy Groundhog Day. I hear it’s one of VA’s favorite movies. Be good. Be safe. Be nice to one another even if you hold different views on how to run America. Rodney King, God rest his soul, actually summed it up quite well for us-“Can’t we all just get along?” Granted, that was a heapin’ helpin’ of Monday Morning quarterbacking after he’d just gotten the tar whupped out of him but still a noble statement nevertheless. We learn from history-but only if we listen.

Thank you Gary. I’ll be publishing some more gems from him here directly but I don’t want to drown you all in too many documents at one sitting. Enjoy.

(No pun intended re Rodney)

P.S.  Edward Aloysius Murphy Jr.’s  first law is inviolate. No good deed goes unpunished. By studying and becoming an Agent, Gary screwed himself right out of a job. Seems VSOs don’t cotton to their service representatives actually helping Vets. They fired his ass the same day he told them the good news.

 

 

Posted in BVA records tampering, Presumption of Soundness, TBI, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 5 Comments

VAROs–THE THIRD TIME’S THE CHARM?

Welcome to the New Year. It’s apparent we have a new metric afoot in the Veterans Service Centers across our fruited plains. Right. VAROs are now called VSCs and have been for a while. The boss of the “service” center is called the VSCM (manager). The Assistant manager is- you guessed it- the AVSCM. They run the Ratings show. There’s still a Director in the Senior Executive Service (SES) sector for each VSC except for North and South Dakota. He handles the PR. Used to be, and maybe still be, that if you called the Montana RO, they picked up in Salt Lick City. Ditto for Fargo, Cheyenne and Sioux Falls.  They probably don’t have telephone lines out that far yet and rely on green firewood and wet blankets. Or Pony Express.

We no longer have raters. Public relations experts have determined America does better with terms like “associate” or “team member”. Hence the days of the old Decision Review Officers (DROs) are dwindling. They’re segueing into Coaches, Assistant Coaches, Ratings Quality Control Veterans Service Representatives and more. I appreciate they’ve given us agents and attorneys Change Management Agents (CMAs). Too bad we can’t get them to change anything. As for managing, they do manage to get it in front of the right Denial Coach. Check this out.

Cupcake has a lot of real estate agents working for her. Real estate agents have dads who are my age. Some of them were in the military and have disabilities. I inherit them because it’s the right thing to do-even if I’m utterly overwhelmed. Meet Jim- Blue Water Navy- or BWN. Yep. His daughter is her Agent

 My BWN Vet

Jim (pseudonym) filed in 2002 for a bunch of things like IHD and DM II w/ PN.  He’d had a couple of heart attacks and the ticker was heading south. Wonder of wonders, he lost. And then along came Joe Procopio and the revised BWN do over of Hasse v. Peake.  I filed him for them under §3.816 and scored a home run- or thought  I had. This is called a Fenderson Staged rating. It’s named after Joe Fenderson. Who else? Now, ever since 1999, when we win an old CUE claim, an antique §3.156(c) or one of these AO claims which the Vet filed for and lost previously, the VA has to perform a retrospective rating covering the past to the present. Most always, you get a Zero for the Hero rating up to magic moment in 2020 when you suddenly qualify for 100%. You can predict it.

VA sure couldn’t say Jimbo was Boston Marathon material. He was blowing less than 50% on the ejection fraction (EF). This gets you a 60% rating under DC 7005 for Ischemic Heart Disease. If your EF falls below 30%, you advance to Boardwalk and start erecting hotels. But what happens if you get better? Or more aptly put, what happens if VA says you got better during a Fenderson Staged rating 14 years ago?

RedactRD 9-29-20

Reducing a Veteran’s rating is a strange, difficult procedure. Look up §3.105(e) to begin with. Hellooooooo? I’d like a hearing, please? Due process must be observed. Reducing it in an eighteen year old retrospective Fenderson-style staged rating is a whole different animal. How can you inform the Vet you intend to reduce him from 60% to 40% beginning in June in 2006  in 2020? Rent a DeLorean with a ginormous Flux capacitor in the trunk? How can you reduce him for a cardiomyopathy issue with only one c&p? Ruh-oh, Rorge. Raters are oblivious to §3.344. It doesn’t exist to them. The short answer is you can’t reduce him. The long answer is Hell no, you can’t reduce him on one c&p. Well everywhere but at a VSC.

The Jimster’s a retiree so we’re talking about Concurrent Receipt of military and VA pay if he was over 50%. Much like the art of gerrymandering in congressional districts, VA prevented (as much as possible) any big retro based on Dual receipt. They gave him 10% out of the gate for the IHD- then 60% for a year or two combined with his DM II ratings.  But then they whacked him down to 40% in ’06 to keep him out of the concurrent receipt column until 2019 when he had his septal infarction and sank below 20% EF. Then two things happened. I began reading volumes and volumes of his records and decided to go back to 2002 and the old denial to see if I’d missed anything. I had. Seems he’d filed for MDD secondary to his IHD and they’d denied it strictly based on his IHD denial. The VA shrink had generously stated he was more f****d up than Hogan’s goat and mildly to moderately depressed at his c&p-and it was all due to that nasty IHD. I’m sure Dr. Demento never thought Mr. Jim was ever going to catch air on the IHD so it was a safe diagnosis. Cool. Free Thorazine, right?

So I “re”filed him for MDD, 2ndy to the IHD as a CUE saying what the brain box expert said in 2002. I even reprinted his diagnosis and submitted it with the filing.  VA was so sure they’d pole-axed my boy on concurrent receipt with the Fenderson screwing, they never did their homework. Jiminy Cricket will get that 30% for Bent Brain Syndrome. Maybe not at the VSC but §3.310 is far more respected at the BVA than the M 21. But that was not the end of the matter. No sir. Not by a long shot.

Redacted CUE 12-2-2020

Due to this infernal Beer Virus, it took from our March filing until Christmas to get my hands on one of his doctor’s files. They were locked up in a storage area as the good doctor had retired back in ’18. Fortunately, he kept the records. They showed Jim had an EF of 25% beginning in June 2016. I promptly filed them on 12/29/2020 as a supplemental and saw him getting 100% for three more years using the Fenderson red carpet. Not.

Eight (8, badt, ocho, tám, huit) days later (over the New Year’s weekend, no less) on January 6th, 2021 VBMS (Honolulu) regurgitated the fact that the retired doctor had been too vague. The rater, in desperation, had stated they received nothing that would change their Fenderson rating. I called up Allison, my CMA here in Seattle and asked her to please find the chowderhead who authored this abortion and explain to me in DickandJanespeak why a 25% EF (or less) under DC 7005 would NOT warrant a 100% rating.

Redact RD 1-6-2021

Wait for it..

Seems the VA rater is perturbed that Jimster’s cardiologist had failed to specify which ejection fraction was 25%-right or left ventricle. VA was just not going to hand out some serious folding money for something this vague. Hoo doggies. If you want to measure the right ventricular EF, it takes an MRI with contrast as opposed to the way everyone else in the world (including VA cardiodocs) measure it (on the left with ultrasound). Since the EF on the right side is kinda immaterial to this ischemic heart gig, it’s presumed by anyone in the medical world that an EF would mean it was done on the left side. The right ventricle simply pushes blood into the lungs.  VA is saying the doc’s failure to say “Left Ventricular Ejection Fraction” was going to cost my Vet  $105,000.oo in retro on top of everything else so far. Or so VA thought. Thank you for your Service. Next?

Of course, they could have Googled ejection fraction:

Ejection fraction (EF) is a measurement, expressed as a percentage, of how much blood the left ventricle pumps out with each contraction. An ejection fraction of 60 percent means that 60 percent of the total amount of blood in the left ventricle is pushed out with each heartbeat.

I called up Jim’s wife and asked her if they could get a letter from Dr. Retired who was also a personal friend. I wanted him to clarify that the EF was done on the left side. Mrs. Jim proceeded to lay the following on me. Shoodoodle, Alex. Those records I sent you at Christmas were from his personal care physician. You want I should contact Franciscan Health Care and ask for his cardiac doctor’s medical records from 2010 to now? You know, he’s still seeing the same doctor. His EF (on the left side) had been plumb nasty until 2019 when he had the septal infarction due to the infection after the defibrilator implant. It went to hell in a handbasket after that. They hit him so many times with the paddles he’s got burn marks. He’s blowing less than 20% right now and he’s on Entresto™.

Now, with all that said, Fenderson gives us some explicit rights. I summed it all up in my legal brief. Read all the records, not just the ones you cherry picked. But… when you do a Fenderson on someone like Jim, you already know the future. You can see he’s not going to get better. In fact, the village idiot could opine that the shit was going to hit the fan big time in the future. Duh? So, to reduce him in 2006 using §3.344  knowing full well he couldn’t go to the supermarket without packing an AED in a decade is error. To ignore §3.105 is fatal CUE.

It’s always lots of fun to be in the Catbird seat. Jim will one day see his whole CRDP come back to him. I also caught them trying to say he only got spousal dependency for his wife from the 2019 100% rating. Oddly, right in the old 2002 VA Form 21-526, he had submitted his wife’s birth certificate, SSN and their marriage certificate in hopes that St. Nick would soon be there when he won. 2002 was the effective date of dependency now. I had a hard time pounding that nail home until I sent them a copy of the 526… from VBMS.

Seems like the third time’s the charm.

The 3rd Time at the BVA

Hopefully that will occur on my Roberto claim below. This is the third BVA assault. It’s hard to admit CUE in a 1972 decision for financial reasons. VA has so many of these they have a hard time figuring out how much to ask for in Appropriations before Congress every year. VA folks I talk to always say “We never look at the potential payout. We’re objective. Our motto has and always will be Grant if you can. Deny if you must.” What in the hell do I look like? A turnip wagon driver? Do you see the Mayflower tied up to my front porch?  If that’s so, why have all my hardest claims to win been ones involving an absolute shit ton of money for the client? Admitting CUE is admitting you screwed up bigtime. At VA, you’d think it was tantamount to admitting to your wife that you cheated on her with her best friend…on your honeymoon.

Redacted CUE filed 1-15-2021

P.S. I had some late arrivals to add to this.

This one below isn’t too far off the mark considering what’s afoot these days on social media. Just think. They know every thing you’ve said and felt for all these years. Cupcake and I decided it’s just too weird these days to say anything in public for fear of offending someone. Thus, we no longer comment or Like so do not think we’re ignoring you.

That’s why I relegate all that nonsense to this blog.  Who cares what asknod thinks?

Posted in AO, Blue Water Navy, BvA Decisions, Corona pandemic, CUE, DM II, Earlier Effective dates, HCV Epidemiology, Humor, Informal Claims, Tips and Tricks, VA Agents, VA suspense dates, VBMS Tricks | Tagged , , , , , , , , , , , | 4 Comments

White House official list of highlights concerning veterans (to January 2021)

With the Biden inauguration almost upon us, I thought it would be interesting to see some of the Trump Administration’s final online notes before they are purged. I have copied those relating to veterans and added some various links to some in the list.

The Mission Act has received a fair amount of press. The EO to help veterans move to the Merchant Marines “seamlessly” was new to me and seems like a good idea. Telehealth work was started up to connect rural vets and became valuable during COVID. The Haven Act protects disability payments in a bankruptcy, a good reform.

The number of vets who are homeless remains shockingly high although Dr. Ben Carson has been a proactive HUD secretary. In cities like San Francisco, LA, San Diego, I would lay the blame on the mayors and Congress responsible for the worst districts. Big Philantrophy still prefers to fund status projects they can put their family names on.

To see the entire list click below:

Trump Administration Summary of Accomplishments for Veterans

Serving and Protecting Our Veterans

Signed and implemented the VA Mission Act, which made permanent Veterans CHOICE, revolutionized the VA community care system, and delivered quality care closer to home for Veterans.

The number of Veterans who say they trust VA services has increased 19 percent to a record 91 percent, an all-time high.

Offered same-day emergency mental health care at every VA medical facility, and secured $9.5 billion for mental health services in 2020. https://www.va.gov/samedayservices/

Signed the VA Choice and Quality Employment Act of 2017, which ensured that veterans could continue to see the doctor of their choice and wouldn’t have to wait for care.

During the Trump Administration, millions of veterans have been able to choose a private doctor in their communities.

Expanded Veterans’ ability to access telehealth services, including through the “Anywhere to Anywhere” VA healthcare initiative leading to a 1000 percent increase in usage during COVID-19.

Signed the Veterans Affairs Accountability and Whistleblower Protection Act and removed thousands of VA workers who failed to give our Vets the care they have so richly deserve.

Signed the Veterans Appeals Improvement and Modernization Act of 2017 and improved the efficiency of the VA, setting record numbers of appeals decisions.

Modernized medical records to begin a seamless transition from the Department of Defense to the VA.

Launched a new tool that provides Veterans with online access to average wait times and quality-of-care data.

The promised White House VA Hotline has fielded hundreds of thousands of calls.

Formed the PREVENTS Task Force to fight the tragedy of Veteran suicide.

Decreased veteran homelessness, and education benefits, and achieved record-low veteran unemployment.

Reformed the Department of Veterans Affairs (VA) to improve care, choice, and employee accountability.

Signed and implemented the Forever GI Bill, allowing Veterans to use their benefits to get an education at any point in their lives.

Eliminated every penny of Federal student loan debt owed by American veterans who are completely and permanently disabled.

Helped hundreds of thousands of military service members make the transition from the military to the civilian workforce, and developed programs to support the employment of military spouses.

Placed nearly 40,000 homeless veterans into employment through the Homeless Veterans Reintegration Program.
Placed over 600,000 veterans into employment through American Job Center services.

Compared to 2009, 49 percent fewer veterans experienced homelessness nationwide during 2019.

https://www.va.gov/HOMELESS/pit_count.asp#:~:text=

This%20national%20snapshot%20of%20Veteran,to%2037%2C878%20in%20January%202018.


Signed and implemented the HAVEN Act to ensure that Veterans who’ve declared bankruptcy don’t lose their disability payments.

Enrolled over 500,000 transitioning service members in over 20,000 Department of Labor employment workshops.

https://www.dol.gov/agencies/vets/programs/tap

https://www.dcms.uscg.mil/Our-Organization/Assistant-Commandant-for-Human-Resources-CG-1/Health-Safety-and-Work-Life-CG-11/Office-of-Work-Life-CG-111/Transition-Assistance-Program/TAP-DOL-Workshop/

Signed an executive order to help Veterans transition seamlessly into the United States Merchant Marine.

I, for one, hope that the US will continue to bring troops home.

Post-peace initiatives, Israel is now under CENTCOM.

The improved relationships in the Middle East are something I hope Biden can get behind. I’m having a hard time imagining Biden/Harris boosting morale at this moment, but if they become honest and transparent leaders, it may be possible.

Laura (Guest author)

Posted in All about Veterans, Appeals Modernization Act, Community Care Network, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, HOMELESS VETERANS, non-va care, Uncategorized, Urgent Care Benefit, vA news, Veterans Choice card | 16 Comments

“Be it enacted” January 3, 2021 National Defense Authorization Act for Fiscal Year 2021

H. R. 6395 (Link)

SEC. 9109. ADDITIONAL DISEASES ASSOCIATED WITH EXPOSURE TO CERTAIN HERBICIDE AGENTS FOR WHICH THERE IS A PRESUMPTION OF SERVICE CONNECTION FOR VETERANS WHO SERVED IN THE REPUBLIC OF VIETNAM.

Section 1116(a)(2) of title 38, United States Code, is amended
by adding at the end the following new subparagraphs:

‘(I) Parkinsonism.
‘‘(J) Bladder cancer.
‘‘(K) Hypothyroidism.’

I have not seen any rule-making about this amendment or updates on the VA website or Federal Register yet.

Doesn’t VA believe in SCIENCE!!! 🤦

https://www.research.va.gov/currents/1216-3.cfm
VA study yields strong evidence of ties between herbicides and high blood pressure in Vietnam-era Vets
December 13, 2016

Hypertension was removed from this amendment, not because of science, but 💰. As Bill Nye said, “…if you don’t believe in science, then you’re holding everybody back.” Which for VA, is the whole point. Trickle down science and benefits.

There are lots of BVA cases to be found in 2019-2020 with the search terms, bladder cancer & Agent Orange).” In this one, the vet got an IMO. (https://www.va.gov/vetapp19/files10/19179078.txt) but if I recall correctly from the Purple book, the judges knew this was in the works, so why fiddle around? The good news is that many previously denied cases can be reopened now. 🎉 Special thanks to Sen. Tester (Montana) for working hard to save some veterans’ lives.

Laura (Guest author)

Posted in Agent Orange, All about Veterans, AO, BVA Purplebook, Congressional Influence, Food for the soul, Food for thought, General Messages, Guest authors, Medical News, research, Uncategorized, vA news, VA suspense dates, Vietnam Disease Issues | 2 Comments

2021-BOLDLY GOING NOWHERE

Remember them old party games with adult beverages back in the 70s and 80s like the Telephone Game? It might have been called something else depending on where you lived geographically. It consisted of Partygoer #1, so designated and labeled, whispering a statement to Partygoer #2-again, predenominated with affixed name tag. This allowed you to roam around and seek out the next numerical successor without all the guests having to stay put. Partygoer #2 would thus seek out and transmit this communication to Partygoer #3 and so on until it had traversed the entire Partygoer contingent-be it 20 souls- or 40. Partygoer Ω  then announces the communication loudly and it is compared to the original, primary statement of Partygoer #1. All the intermediate contributors are amazed at how the message metamorphoses (incorrectly) until becoming unintelligible gibberish.  

So, too, the VA claims process. You file. VA gets to decide what it is you filed for. By the time it gets to the BVA, the VLJ is using terms like “It’s unclear but appears from the Form 9 that the Appellant seeks service connection for painful scars secondary to RFID chip implanted during an alien abduction while on active duty for training.”

I don’t know how many claims and appeals I get that require being sorted and clarified in order to get them back on track. Ten years later at the BVA for the third time, the Vet’s claim tends to metastasize into a long phrase requiring five typewritten lines. Imagine  DC 8004-8613. You have virtual loss of use of your right (dominant) upper extremity. You no longer eat soup with a spoon. You drink it from the bowl wearing a bib and still end up wearing 20%. VA has turned that into Right Upper Extremity with tremor and muscle rigidity and stiffness as a result of complication of Parkinson’s disease with peripheral neuropathy (dominant) 70%. The VA idea is to lump all these diseases and injuries into one homogenized disability. I’ll explain why later. Here’s another stellar example which will soon be a bone of contention at the BVA. Major neurocognitive impairment (MCI)-Previously claimed as Mild Neurocognitive Impairment, Major Depressive Disorder, Adjustment Disorder with Anxiety and Unspecified Neurocognitive Disorder (also claimed as Memory Loss and Sleep Disturbance) associated with Chronic Obstructive Pulmonary Disease (COPD), Asthma and Sleep Apnea (previously rated as Asthma DC 6602). Did you get that? Asthma just turned into a neurocognitive disease associated with COPD.

When it comes time for SMC S or L, the rater is going to throw all your disabilities into one basket and ascribe your rating being due to all of them. Be aware of that going into SMC.

The VA Telephone Game begins early on when you file your 526. It gets more interesting when you become more refined and file the third or fourth 995 to “get it right this time”. This AMA merry-go-round cranks out a decision now in as short a ten days from what I’ve seen. VA’s favorite ploy is to turn Vets’ claims into Hamburger Helper™. I shouldn’t just shoot my mouth off like that. Maybe it’s true of all govt. stuff. If so, it’s probably why aliens don’t want to talk to us. I’m gonna go way out on the little branches here and wager a VA rater with this “construal” mindset wouldn’t be able to hold down the booth bitch job at the drive-thru window of your local choke-n-puke. You order a Big Mac©. You pull around to the pickup window and get a Happy Meal® and three shakes.

Most of these start with a misunderstanding by the Vet when he files. I guess it could equally be the “Intake Specialist” at a VSO. But who would expect a Vet to be a medical whizbang? To him it’s “parachute knees” from jumping out of perfectly good airplanes. To the VA examiner it’s chondromalacia with DeLuca pain. The Vet always loses at this game.  Let’s say you want to file for Hepatitis C from a jet gun, ringing ears due to shooting your Pig in ‘Nam for a year and IHD due to AO. VA sends you a generic notice they have received your claim- nothing more.  Just a brief “Rog on the incoming, over.” Six weeks or months from now, you’ll be reading that your tinnitus has been denied due to no evidence in your service treatment records of complaints of tinnitus. No mention of the 11Bravo10 MOS. Your claim of IHD secondary to the tinnitus is also denied. They miss the Hep C claim completely and have to deny that a month later-but only if you bitch. The denial is appalling. “We cast dem bones in the Sacred Circle and construed your filing to mean that you were claiming your IHD secondarily to your tinnitus claim. We denied the Tinnitus. Since there is no evidence you served in the Republic of Vietnam or  manifested IHD in service or within the year following discharge, we regrettably have to deny you.” VSRs and and their ilk don’t know how to decypher ARCOM or CIB. Granted, eventually you win-but only if you get it sorted. Many never do. They just give up and go home. I meet them all the time nowadays. Same old VA shit. Different Claim.

You don’t even see the second part of this VA Telephone game coming.  When you have won and the shekels have been deposited, you pretty much continue to decline in health. You file for the increases and the SMCs and all of a sudden, your find your diabetes is actually part of your IHD which is associated with your prostate cancer. Sorry, dude. You don’t get the §3.350(f)(4) bump because your 100% for IHD isn’t independently ratable (in VA’s eyes). I’ve see VA continue to add up disabilities by “combining them” with §4.25 VA math. You never get to 100% this way- or if you do- it took every rating you had to get there. Sorry dude, No SMC S. They ignore Rice v. Shinseki and don’t consider TDIU the moment you hit 60% for one rating or a combo of 40% with others adding up to 70%. They only do the right thing when supervised and cornered like a rat. Sadly, that doesn’t happen until you get to the BVA-if then. That’s why Congress created the CAVC for us. Thirty one years later, it is slowly beginning to turn the tide in our favor. I’ve heard it takes 1.5 miles to stop the Exxon Valdez and turn it around. VA must work for Exxon or vice versa.

VBA benefits specialists (VSRs, RVSRs, SVSRs and DROs) are of the opinion that All Veterans get better. They call it the Lazarus Effect. Paraplegics rise regularly at those tent revival meetings where the Pastor exhorts them to cast their crutches and wheelchairs aside and trust in the Lord.  This is why you get those surprise letters out of the blue from VBA saying please report for an examination to see if you’re getting worse. Miraculously, the c&p invariably shows you didn’t get worse but rather can now run walk perambulate the Boston Marathon assisted with nothing-not even a walker. It conservatively takes two years or more to turn one of these cattle stampedes around and head it back to the barn. Sadly, I’ve found the only instant cure is to race out and grab an IMO stating the opposite (the truth). I just turned a Proposal for a 50% Reduction down to 10% into a 70% rating by whipping out an IMO from my private contract shrink RFN. VA granted the 70% and went on in the Rating Decision to tell me they’d be contacting us to schedule the reduction hearing shortly.  That’s pure unadulterated bullshit. I can see it in the VBMS file. They closed out the EP (end product code) and there are no claims pending.

As I discussed above,  Vets discover the ultimate bitchslap when they file for SMCs. They get trapped. Let’s say you file for Aid and Attendance at the SMC L rate. VA goes into the rating code sheet and looks at everything you are currently rated for. I mean everything. If they grant, they write it up that way too. It’ll look like this.

“SMC L granted for being so helpless as  to need the Aid and Attendance of another” but they summarize all your disabilities-all of them- as the need for granting the A&A. Thus, if your disabilities increase, your SMC rating is artificially compromised by the “independently ratable” language in §3.350(f)(3) or (f)(4). You can’t show progression of your disease or loss of use because, well, you’re already getting paid for it under the A&A, dude. No pyramiding allowed.  If you think about it,  it’s one hell of an argument not to file for all that’s wrong with you unless or until it will result in a net gain in your SMC rating. The last thing you want is to have VA say the IHD is secondary to your DM II. It’ll take an IMO to get them separated into two separate and distinct illnesses to get your (f)(3)(4) bump or to SMC O as a separate A&A award. VA is actually trying to do exactly this to one of my Vets. The herbicide presumption is for application but they are trying to attribute the hypertension caused by the DM II as the reason for the IHD. WTF, over? What are they smoking? Sativa or Indica?

I encountered this a few days ago (no- not the throat spray). One of my LZ Cork survivors, Bob, just won 100% for IHD. I already got him SMC L for loss of use (LOU) of the lower extremities due to really, really bad diabetic neuropathy or PAD (Peripheral Atherosclerotic Disease). VA forgot to give him the (f)(3) bump up to L 1/2 back in 2018 which we’ll be fixing directly. It’s more fun to let them clothesline themselves first. The teaching moment here is simple. Let’s say he had filed for A&A first for the PAD of the lower extremities and all his other stuff like DM II, SFW scars, perforated eardrums with vertigo etc., and VA granted it. He could never file for LOU of his legs as a stand alone condition AFTER  he got the A&A. Here, he has “used” his DM II card as the primary cause of the LOU of the legs. If he needs aid and attendance of another later due to his IHD alone, he can do that legally because the need for A&A can be alleged as due to the IHD which was never the subject of the reason for A&A. A&A for the IHD advances him to SMC O (2 SMC Ls) and he progresses to SMC R1. There’s way more things most Vets need to know on SMC course knowledge. Think of it like a Chutes and Ladders game.

Here’s an intriguing example of either CUE or the proper application of §3.350(f)(3) and (f) (4) awarded together.

https://www.va.gov/vetapp19/files6/19146045.txt

“Here, the Veteran was receiving statutory payable SMC (L) based on
the need for aid and attendance. His aid and attendance finding was
noted by the RO to be based on the combination of his Parkinson’s
disease, cervical spondylosis, diabetes mellitus, radiculopathy,
left upper extremity limitation of motion, and cervicogenic
headaches. As the Veteran’s PTSD was rated as 100 percent
disabling, and not considered in finding he required aid and
attendance, this raised his rate to the next higher statutory
rate, or raised him from SMC (L) to the next higher SMC (M).

However, the Board finds that the Veteran’s cervicogenic
headaches, independently ratable at 50 percent disabling
was not a necessary factor in consideration for the finding
for his need for aid and attendance. Which provides the
Veteran with SMC (L) for aid and attendance, plus the next
higher intermediate rate for headaches independently rated
at 50 percent, and lastly, plus an additional next higher
statutory rate based on PTSD independently rated as 100
percent. As such, the Veteran is entitled to the intermediate rate
between 38 U.S.C.A. §1114 (M) and (N).”

Get that? Johnny Vet just got both (f)(3) and (f)(4) and the Regional Puzzle Palaces insist via the M 21 this is verboten. Of course, you might want to note that the reason they don’t “print’ the M 21 is that it changes all the time. I counted 137 revisions last year (2020). That sumbich would be obsolete before they got to setting up the print for Part III.

Here’s a BVA decision awarding two 1/2-step bumps under §3.350(f)(4) which the M 21 says is impermissible, too.

https://www.va.gov/vetapp19/files6/19146045.txt

In the SMC business, don’t ever believe what VA tells you. How about two SMC Ls for Aid and Attendance? That is more frequent than you think.

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

The takeaway from all this requires a new game plan on what you get awarded and when. Buie v. Shinseki insists it makes no difference in which order the entitlements or SMC are awarded. By operation of law §3.103(a) will be the final arbiter- the highest and best that the law will permit-not how VA chooses to assemble them.

“… to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government.”

Different Judges will grant different SMC entitlements under the exact same circumstances. This hard ass VLJ says no double dipping on (f)(3)(4)

“With respect to the Veteran’s assertion that he is entitled to a higher level of SMC under 38 C.F.R. § 3.350(f)(3), as noted above, he currently is in receipt of SMC under 38 U.S.C.A. §1114(P) and 38 C.F.R.§ 3.350(f)(4) at the rate equal to subsection (M) based on the loss of use of both legs with additional disability independently ratable as 100 percent disabling from August 20, 2009.  The Board notes in this regard that concurrent receipt of SMC under 38 C.F.R. § 3.350(f)(3) and (f)(4) is prohibited.  In other words, because the Veteran currently is in receipt of SMC under 38 C.F.R. § 3.350(f)(4) based on the loss of use both legs with additional disability independently ratable as 100 percent disabling, he is not eligible to receive SMC under 38 C.F.R. § 3.350(f)(3) at the same time (as the AOJ noted in the October 2012 Statement of the Case).  Thus, this claim must be denied as a matter of law.  See also Sabonis v. Brown, 6 Vet. App. 426 (1994).”

The reason I think this is squirrelly is there is nothing in §3.350(f) that specifically forbids both awards. It’s merely an M 21 rule they made up one day. Considering BVA VLJs are adamant in that they are not bound to subscribe to the M 21, I think it’s disturbing this only happens when it’s gonna cost them some serious baksheesh.

A definitive answer on a lot of SMC paradoxes can only come from the CAVC with a panel. I’d like to see this but I know if I won it (concurrent receipt of (f)(3) and (f)(4)) or another fellow litigator did, they’d just go back and rewrite (f)(3) and (f)(4) and preclude it in the future. In this respect, VA regulations often remind me of the Whack-a-Mole game. As soon as VA plugs one loophole, we find another to exploit. It never helps the VASEC when the CAFC/CAVC are constantly sawing off the rotten legal limbs he chooses to stand on.

Remember what ET said. B. Good. I hope you all stay healthy and mentally sane during this perilous time. Our country is on thin ice and we need to remember Vets. We’ve always been the sacrificial lamb on the altar of finance when the Govt. wants to rein in the spending. With the passage of the newest NDAA signed last week, I fervently hope the new Agent Orange diseases will be promptly recognized without an interminable  one-year phase-in like our Blue Water Navy Vets got. The most egregious- the award of special caregiver status only to post-911 Vets- has now been revised to extend  to all Vets regardless of their color or creed-or when they served. That was sooooo wrong.  My advice is if you have the Parkinson’s-like disease as I do, you need to file pronto as that will be your effective date for benefits. As for the Thailand AO Vets, all I can suggest is to keep singing Linda Ronstadt’s When Will I Be Loved? and pray you’ll be heard by Congress too.

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