VA ER care: Staab vs Shulkin. April 8, 2016 is the important date

The Secretary now has an inkling of what it feels like to have a bucket of  excrément  thrown at him by the VA.  I’ve read the VAOIG’s completely one-sided overblown gossipy report (LINK), and his lawyers worthy rebuttal.  Nevertheless, his Chief of Staff has resigned.  Will the result be greater empathy and identification with veterans who have endured the same VA treatment or will he walk?

Perhaps this event is karmic payback for the new emergency reimbursement rules enacted by Sec. Shulkin in response to the Staab lawsuit.   

Shulkin stand-in for this post…

A few dates….

“In December 2009, section 1725 was amended to its present form, to
allow the VA to reimburse veterans for treatment in a non-VA facility if they have a third-party  insurer that would pay a portion of the emergency care.” H.R. REP. 111-55, at 3.1″ StaabRW_14-957

The Emergency Care Fairness Act (ECFA) was passed by Congress in 2010.  For the next 6 +/- years, the VA misinterpreted its intent by refusing to be secondary payer if a vet had another insurance program, such as Medicare.

According to Tom Philpott, “… pending claims for non-VA emergency care were filed as far as back as 2010 and were kept alive by appeal.” (LINK)

Enter Mr. Staab and his team at the National Veterans Legal Services Program (NVLSP) who  fought the false interpretation by appealing to the CAVC.  Their original brief to CAVC (LINK) Vet.App. No. 14-0957 is dated  on 8/10/15

Stars and Stripes writes, “from Feb. 1, 2010, the effective date of the law that expanded VA payment obligations, to April 8, 2016, the date of Staab appellate decision affirming that intent — can’t be re-filed or reimbursed.” (see Philpott)

The Secretary appealed, but a year later, dropped VA’s objections.

By September 29, 2017, VA was holding almost 822,000 unpaid ER claims–trashing vets’ credit scores no doubt.

The Interim final rule was published in 1/9/18, the effective date.

Federal Register / Vol. 83, No. 6 / Tuesday, January 9, 2018 / Rules and Regulations

(LINK) To clarify the applicability of this
regulation change, judicial decisions
invalidating a statute or regulation, or
VA’s interpretation of a statute or
regulation, cannot affect prior final VA
decisions. See, Jordan v. Nicholson, 401
F.3d 1296 (Fed. Cir. 2005); Disabled
American Veterans v. Gober, 234 F.3d
682, 697–98 (Fed. Cir. 2000). Therefore,
VA will not retroactively pay benefits
for claims filed under § 17.1002(f) that
were finally denied before April 8, 2016,
the date of the Staab decision. In other
words, VA can only apply the new
§ 17.1002(f) to claims pending on or
after April 8, 2016. 

So April 8, 2016 is the magic date and going forward if you have a ER medical bill that needs to be paid.  And it looks as if community hospitals are out of luck for patients who can’t meet that time frame.  I don’t believe that this is immutable based on the CAVC decision but perhaps there will be no collective will to bring the date back to 2010 so that Mr. Staab, other veterans, their representatives, and community hospitals can be compensated properly.

The community hospitals should sue.

If you see any errors in this post, please let me know because there are many complicated issues involved.  The VA has a special hotline to call:

“A dedicated hotline is available at 1-877-466-7124 to speak to customer service representatives specifically about this issue, Monday through Friday, between the hours of 8:00 a.m. to 5:00 p.m. (EST). “

Previous articles about Staab on Asknod:

6/27/17 (LINK)

11/20/16  (LINK)

NVLSP (LINK

Kiedove

 

Posted in All about Veterans, Call David, CAVC/COVA Decision, Complaints Department, Food for thought, Future Veterans, General Messages, Guest authors, Important CAVC/COVA Ruling, non-va care, OIG Entertainment, Uncategorized, VA Attorneys, VA Health Care, vA news | Tagged , , | 2 Comments

RETIRED NAVY HUMOR FROM AROUND THE NATION

Our east Coast purveyor of all VA knowledge worth printing has discovered a new cache of humor from a select salty group we often shortchange on this site. Not that I am remiss in representing Squids but I do tend to wonder why any Vet would want to sign up for celibacy for four years with occasional time outs. That’s the peak of our testosterone-fueled lives in case they didn’t notice. Equally in a nutshell, why march or paddle when you can fly there? That’s why the good Lord invented airplanes. This wasn’t an “Eeny meeny miny mo- Air Force-Army- Navy- Marines” outside the recruiter’s office, was it? 

Nevertheless, here’s a rich cornucopia of wild and crazy Navy Vets who must spend some serious dough on testosterone cream and Viagra.  You’ll notice they don’t use Phonics™ to sound dem vessel names out.

Canuck sailor  with good education

Oakland, CA

We know where Texas brains are

The eternal optimist. One has to wonder if that’s a “2” or an eleven

Texas for sure

Lousiana

Connecticut

Texas

Mississippi

A rumor in his own room

A legend in his own mind

Bipolar Lifer

Bill Clinton’s former  smaller, personal pleasure yacht in Arkansas c.1979

Posted in All about Veterans, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , , | Leave a comment

CAVC–HARVEY v SHULKIN–LIPSTICK ON THE COLLAR

Over the years of my involvement in VA law, I have occasionally (rarely, mind you) heard of Medical Doctor cum Juris Doctorate hired guns. No names here. You all know who you are. In the same vein, I have encountered psychologists who assume the mantle of a psychiatrist in order to make their IMO more probative. That’s mighty thin ice to tread successfully yet some do.

A psychiatrist, as we know, is both a medical doctor in addition to  possessing a PhD in bent brains. In this capacity, he is expertly suited to opine on the probability a given mental disorder (PTSD in the instant case) might induce an organic disorder such as sleep apnea. In any event, absent a medical degree in psychology, his hypothesis would require extensive peer-reviewed psychiatric/medical cites to defend it. Now imagine combining a law dog with an M.D and have him try to repaint the oral as well as the written argument. Ruh-oh, Rorge. This enigma was what Chief  Judge Davis, St. Mary and St. Bartley were  presented with. If you’re defending the client, where is the fine line in Court briefs where you transform yourself from an officer of the Court, segue into Ben Casey attire and don a stethoscope?  That’s a ‘mighty fer stretch’ as Jed Clampett was fond of saying.  Too fer a stretch from what I read. Apparently, now you have to pause, take a surgical time out and announce the change. And, to be sure, you have to do this at the Board of Veterans Appeals level-not when you arrive at the CAVC and maintain a straight face while telling them reasonable minds would infer you just slid sideways from attorney into medical specialist.

Harvey_16-1515

Let’s ignore the absence of any bent brain specialties and just focus on the Leagle Beagle/ Medical Doctor anomaly. I thought all those VLJ guys died and went to Heaven after Colvin v. Derwinski. Apparently a few were reincarnated as VA law dogs. If you intend to pull off this stunt with any aplomb, it now will require a ‘magic moment’ where you, switching from lawyer to doctor, announce it succinctly and clearly. You would almost have had to draw a panel with three excruciating hangovers at the oral to win this one on appeal. Even then, it would additionally require hoodwinking their sober clerks as well.

I have always admired the Court’s exceptional ability to discern post hoc rationalizations by our illustrious Secretary presented for the first time in their Appellee’s Brief. However, it would appear, that talent came around full circle and has bit the appellant on the buttocks and cost them the appeal. This was sad but avoidable and a valuable lesson learned for the very few who inhabit this unique niche. Trying to post hoc it and write it off as immaterial to the crux of the appeal will not avail you. This is Varsity Law. No quarter given.

On December 4, 2014, Mr. Harvey’s representative, Mr. David Anaise, submitted what he categorized as an “appeal brief” to the St. Petersburg RO and asserted that “we appeal the rating decision of April 17, 2013.”  Mr. Anaise is a licensed medical doctor, licensed attorney, and accredited VA representative. The letterhead of this submission stated “David Anaise, MD, JD,” and included an email address for “anaisedavid.office,” and he began the submission by identifying himself as an accredited attorney representing Mr. Harvey “in his claim for VA benefits.” R. at 82.3 The signature block of the submission identified “David Anaise, MD JD Attorney at Law” as the author. 

The next page of Mr. Anaise’s December 2014 submission is entitled “Obstructive Sleep Apnea” and the header stated “Appeal Brief” and “Page 5 of 8.” (emphasis in original). Mr. Anaise commenced this section of the document as follows:

Veteran has been diagnosed with obstructive sleep apnea, treated by CPAP [Continuous Positive Airway Pressure]. The veteran’s sleep apnea is more likely than not secondary to his service-connected MDD/PTSD.

Mr. Anaise at his recent oral briefing to the Court in Harvey v. Shulkin 0n 8/29/2017

Right there in purple, our JD put on the stethoscope in the minds of the Court. He insists, however, it was patently evident to all present he was opining as a doctor (as opposed to a JD) when he espoused this epiphany. The Court intuited it as an Independent Medical Opinion (IMO) written, not by a doctor, but by his alter ego the law dog. That post hoc rationalization gig must really pull their chain because they weren’t buying any part of it. No way, doggies.

Without a doubt, no one in the VA legal community wishes any VA attorney ill will, least of all me. I merely report and you decide. To me, it’s a wonderful teaching moment on boundaries. Arguendo, how many of you have multiple degrees of this magnitude who can opine one way and the other? To my knowledge, only one other practices VA law with a medical degree. There’s a fine line in this business when assuming the mantle of respectability in any given field – be it legal or medical. Equally important now is the clear instruction on separation of powers. According to St. Meg et al., one has to henceforth make a very clear distinction when doffing one mantle (JD) and donning the latter (MD). Here, the ROA put the lipstick on the collar and told a tale on him. That’s called pushing the judicial envelope. That’s also a Bozo No-No at 625 Native Americana Ave. NW.

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

No Bozos

 

Posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, KP Veterans, Lawyering Up, Medical News, NOVA Attorneys, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 6 Comments

HADIT.COM RADIO SHOW–ALL ABOUT THE DC ROAD TRIP

Jerrell called me the other day while I was on the way back from DC. He must have heard me fly over. He and Mr. Basser want to do another radio show. It sure doesn’t take much to get me to flap my lips in front of a microphone. They must realize that because I seem to be the go-to guy for these one hour gabfests lately. Truth be told, I consider it an honor to do so.

Jerrell is not in good health so you all need to call in with questions to help him conserve his oxygen levels. He just escaped the eeeevil clutches of the hospital from pneumonia. I’ll be discussing my recent trip back to DC to be sworn in to the Court. As you can expect, we’ll probably end up talking about a lot more than that. We always do.

Please join us at 1600 Hrs LCT (Left Coast Time) or, for all you on the (L)east Coast, that would be 1900 hrs. Subtract one hour for Central time zone. If that’s all just too confusing and you miss it, he’ll put it up on the Hadit site in the archives.

Remember, the number has- and probably always will be:

347-237-4819  

If you wish to ask a question, hit the number #1 on your phone to engage transmit capabilities.

 

Be there or be square, cowpokes

Posted in CAVC Knowledge, KP Veterans, NOVA Attorneys, SVR Radio on hadit.com, VA Agents | Tagged , , , , , , , , | 2 Comments

BEYOND THE YELLOW BRICK ROAD TRIP

Indeed, as the lyrics state, I’ve decided my future lies beyond 810 Yellow Brick Road NW. Rarely do you get a chance to roll up six important projects into one and accomplish them all in one fell swoop. Imagine being able to get away with your adult son (married-w/o children…yet) for the road trip from Hell, visit your Dad, hit a museum, visit the Wall, see old friends and relatives and top it off with being sworn in to the CAVC – all in less than four days- including flight time. Shoot, Bubba. I’m blessed beyond words.

The only setback was my son and I couldn’t find an ‘airline-size’ bottle of Johnnie W. red or black to put on Dad’s grave at Arlington National. We opted for a fifth and discovered to our dismay that Homeland Security now guards the dearly departed at ANC. Wouldn’t want any ISIS dickwits trying to blow up them up, now would we? They refused me entry with the scotch and even got a little miffed that I’d tried to smuggle it in via my back pocket. It might have been one of the hardest things I ever have done to put that bottle in the trashcan. Wishing not to be arrested, I bit my lip and withheld my dissertation on the intelligence of rentacops.

We sashayed on over to 810 Yellow Brick Road NW for a photo op of the famous Lincoln Quote. We attempted to enter and discovered even more rentacop intransigence. So much for nonadversarial, Veteran-friendly greetings. We were promptly shoved out the door. Not so much as a photograph was permitted. Idiot’s delight.

We did the Wall to find one of my friends who augered in the day before I got out of the hospital back in 1971. I discovered Chuck had passed in 2008 while attempting to obtain a buddy letter from him for my Hep C claim. This was my third visit but my first time back since 2006 to touch his name. It’s also the first time I was able to withhold tears-well, most of them. Each succeeding visit seems to provoke a much-needed catharsis. I count three on the wall I knew.

Oddly, the  CAVC Judge who swore me in yesterday (the Honorable Michael Allen) was the same who heard my/our Ex Writ for Butch Long several months ago. He was intrigued with the way I described myself as the “scribe” of Butch’s Writ. He said he just had to meet someone that devoted to helping other Vets. President Trump made a wise choice in him. He’s truly a pro-Veteran Judge.

 

Clerk of the Court Greg Block swearing me in.

My mentor, Bob Walsh, Carol Scott ( formerly of Veterans Pro Bono Consortium) and Tom Bandzul just happened to be in the neighborhood and dropped by for my swearing in.

(Left to Right) Matthew Graham, Robert P. Walsh, Thomas Bandzul, G. Alexander Graham, Carol Scott and Judge Michael Allen.

 

JD, no JD, JD

 

Last, but not least, I was finally able to get a peek at Tail #091 described in “In the Shadow of the Blade”. It now rests on the 3rd floor of the American Museum of History. Our illustrious East Coast ILP expert Bruce “Almighty” McCartney told me of this back in 2012. I’m crushed they didn’t land in my back yard. Closure is an elusive beast to nail down.

Seeing this chopper before I sneeze for the last time made my trip complete.

Here’s a great shot of the Capitol on the way to Union Station for the trip home.

I wonder if the average American realizes just how lucky we are to live here. And that’s all I’m going to say about that.

Posted in All about Veterans, CAVC Knowledge, KP Veterans, Lawyering Up, NOVA Attorneys, VA Agents, VA Attorneys, Vietnam War history | Tagged , , , , , , , , , , , , , , , | 6 Comments

BVA–RAPID TURNOVER OF STAFF ATTORNEYS BODES ILL FOR VETS

My good friend Vicki sent me a link the other day that really rolled my socks down. I was mortified to think how this impacts the backlog at the BVA for docketing our appeals. Mind you, I take some of these internet sites with a wheelbarrow of salt grains. This one would be legitimate from my standpoint. Either that or Notreallyalawyer and his buds are the most elaborate hoaxers of all time.  

 

The website jdunderground.com explores many post doctorate jobs and their focus of law. This particular vein is a discussion of how overprivileged, underworked little snowflakes’ real life crises are dealt with every day in the real world of the VA’s movers and shakers at the Board of Veterans Appeals. Just imagine if all these disgruntled souls were required to be Veterans with at least two continuous years of active duty to qualify for the job.

Check it out.

https://www.jdunderground.com/all/thread.php?threadId=143754

The thought that comes to my mind is…why on earth would any soul with that much knowledge of 38 USC/38CFR squander it all at 810 Yellow Brick Road (at the corner of Delay and Deny)? Why, with that certain knowledge used to deny, could one not eke out an equally above-average financial existence in far less stressful conditions as a … yep… VA attorney for Vets? Pick a state to practice in. It’s not geographically exclusive. No Errors and Omissions insurance. Form an S Corp. and pay 21%. Work from home on your schedule. Learn how to make Macrame Beer hats. Take up Yoga and Yogurt. #Doitdude.

Currently, there are far too many Vets who finally arrive at Hadit and other sites and hear the deja vu rejoinder- “I can’t get ahold of my rep. He won’t return my phone calls.” Hey. Remember those same VSOs have been doing their dangdest to deter the participation of attorneys and private agents in this business since The War of 1812. We get a shot at it after the VSOs finish reducing it to Hamburger Helper at the BVA.  Or, if the Vet finally wakes up to the need for a nexus or IMO, he’s usually waiting in line for a docket number at the BVA and discovering the need on Hadit or here. Ruh-oh Rorge! AstroVet Need Nexus faaaaaaaast!

The obvious 800-lb. gorilla in the VA living room  is war-continuous war in Southwest Asia. It is now becoming an inter-generational phenomenon. Fathers who served in 1991  have sons serving in Afraqistan. Count ’em folks. 17 years of on again, off again combat not to mention a shit ton of PTSD claims. This phenomenon has been variously described as ‘the lump in the python’ to  VA’s descriptive Adobe 9- “an unforeseen  seventeen year glitch in the statistics which no one could have programmed in to the equation.” VA fully expects this cohort to begin decreasing in 2019 based on their prediction models.

Business demand hates a vacuum. Someone will fill it. NOVA ought to advertise there. Imagine if you turned loose two or three thousand more attorneys into this VA fray. Seems like the easiest to train to think pro-Vet rather than the obverse would be those already entrusted with our appeals. Oddly, in most cases, it boils down to whipping up a good IMO at the BVA at the eleventh hour to save the day. Always remember. In ex parte jurisprudence, you want to be the very last to submit your killer IMO. This deprives those BVA staff attorneys of the opportunity to rebut it at the eleventh hour.  Protect it from a remand back to the AOJ and those chowderheads are going to be forced to eat it in order to make their 2.5 appeals per day quota.

I was taught once by a warrior to always think about how your opponent operates. What is his/her Prime Directive? What motivates them? How do your defeat them or neutralize them as a threat? What are their ROEs? If you know their limits, you can exploit them. In the legal jungle, you bide your time and they’ll eventually let their guard down.

VA raters and DROs are not morons but they do have a propensity to deny all but the most obvious without clear and convincing evidence to rebut their mistakes. Absent even rudimentary bipartisanship, you make your stand at the BVA. Present a good VA 9 argument and a SME review and a waiver of review in the first instance at the VARO to keep the DRO’s mitts off it. Sit back, remodel the kitchen and convert the garage into that fourth bedroom w/ bath. Before you know it the oldest kid is ready for college and you get TDIU and P&T. Problem solved.

The teaching lesson today is to give these tired overworked, mentally stressed out VA staff attorneys an easy way out and a simple path to your success that they feel they figured out by themselves with Phonics®. Arrange it so they can ‘sound it out’ legally. In truth, the last thing Veterans of all stripes want to see is an exodus from the BVA’s staff ranks. Golly, no. The backlog would become enormouser.

Posted in BvA and VARO CUE DECISIONS, BvA Decisions, BvA HCV decisions, Food for thought, IMOs/IMEs, KP Veterans, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, vARO Decisions, Veterans Law, Waiver of Review in the First Instance | Tagged , , , , , , , , , , , , , | 5 Comments

VA “Secure” Messaging–major cloud fail or worse?

My husband asked me to send a message via myHealthy vet to his VA PC doc about something he is waiting for from the Physical Therapy department.  This screenshot was the first warning that all was not well with the Secure Messaging system today.  Upon logging in, I discovered something much much worse.  With the exception of two messages in his in-box, every other message, received and sent, or archived in folders are gone.  Deleted? Security breach? Hacked? Cloud failure? 

We are alarmed because we didn’t make back-ups of these important communications–messages that contain a dated accurate history of health issues and instructions from his VA providers.

If anyone else is having problems with their online VA accounts, please report back.  If you read any news/twitter articles regarding the services, ditto.

Right now, I am feeling exceedingly dumb because I trusted in reassurances that the “cloud” was safe (and secure”) with redundancies etc..I should know better by now with all the revelations about how government messaging often “go missing.”  

Image: kiedove taken January 30, 2018

Update:  reported this to the technical assistance contact form from within the in-Secure Messaging app.

Kiedove

Posted in All about Veterans, Call David, Food for thought, General Messages, Guest authors, vA news, VA security Breaches | Tagged | 9 Comments