How shall I start this article? It began in 2014 in a little bar in Key Center Washington over a scotch (neat, with a water back). Butch’s daughter, born shortly after he arrived in country in late 68, had been pestering anyone who would sit still long enough to listen that she was not going to let her pa die before he got his Purple Heart. Eventually her pester made its way to my front door. I’d belatedly received my medals about Memorial Day 2013 which should have been awarded in 1972 when I got home from SEA. Due to my hasty departure following an Article 15 removing a stripe and a speedy General Discharge, the awards ceremony was overlooked. Butch never got any of his because they air-evac’d him back to the World. And, due to his numerous TBI injuries, he met the same fate-busted to E1 and 3 months in the brig after his Court Martial for missing formations left and right. He at least got an Honorable-but, like me- no medals. As St. Rodney Dangerfield correctly observed “We don’t get no respect.”
I wrote about Butch a few times and poof!– out of the woodwork came a host of LZ Cork Alumni. Read their comments below these articles. It’s a minor miracle this all came to pass. The VA, however, has not been very very nice to Butch. They never obtained all the dustoff records to the 312th at Chu Lai, the 95th at Da Nang, or the recovery at Camp Zama. His history began when they grabbed his stretcher out of the meat wagon at Letterman General on February 28 1969-40 days after he got clobbered. They never continued the debridements. They let it all scar over and heal. Butch would be shitting little metal slivers of shrapnel for the next 53 years- as he still is to this day.
VA’s attitude was the standard Zeroes for Heroes Program© they have been administering ever since Vietnam. The reason was simple. Nobody in govt. or the VA had ever experienced the volume of severely disabled Vets who came home from Vietnam alive. They had never survived in WW II or Korea in these numbers. There was no bed space; not enough in the way of medical assets to even remotely stem this tsunami of wounded folks. The larger problem of no money was the 800-pound gorilla sitting on the VA sofa. Butch got 10% and that’s more than most got. $17 a month.
When I climbed into the cockpit for the NOD, the NPRC provided the big mystery of the missing documents-VA never came and got ’em. Even when I reopened the claim in 2015. Zip. They just started granting everything as fast as we filed it- and a few we didn’t claim. They even threw in TDIU and Chapter 35 DEA without our asking. All this over a couple of new DD 215s showing he got the PH, the CIB and an ARCOM? It’s evident in retrospect why they did this. The only problem is that they didn’t use §3.156(c)(1),(3),(4) and pay him back to 1970. In fact, they refused to even mention it for over three years.
As many times as we brought up the subject of a formal reconsideration and kept reminding them, VA continued to write up rating decisions that said “Roger that. The effective date is the date of your March 2015 filing but hey, we’re going to raise your Bent Brain rating from 50 to 70%, grant the TBI and give you 30% for headaches, hear? Why, we’re feeling so good about all this, we’ll even give you an extra year of tinnitus to the year before you filed in 2015. How ’bout them apples? It won’t change your paycheck but we want you to know we’re doing the equity thing.” Pretty soon, they gave him SMC S for 100% plus 60% but again refused to even discuss reconsideration until the May 2018 SOC.
Have you ever felt someone was funning you but was eventually going to come clean? VA didn’t. The SOC insisted a reconsideration had taken place at some point but nothing in the old records convinced them to think they would have granted any of this shit in 1970. And besides, Butch didn’t file for tinnitus in ’70. He filed for perforated eardrums. Unfortunately for VA, that isn’t the legal standard of review. §3.156(c) records do not have to be conclusory. They just have to support an award today-now- in the present. If you do grant a claim after the introduction of the old records from 1970, you have to revisit the 1970 filing to see if you should have, or would have, granted back then. If so, then 1970 is your effective date for all the stuff you filed for in 1970.
Given the hindsight of Clemons v. Shinseki, you are no longer required to hang that stethoscope around your neck and say you have diagnosed yourself with TBI as opposed to Bipolar disease. If you say your ears were perforated while wearing your Purple Heart, VA has to believe you. They’re also supposed to infer all the other things that might be related to your concussion blast injury. You, yourself, are not required to provide a detailed list with a Power Point Presentation like a guided safari through the M 21 for them.
Shit happens in War. Things go boom. B 40s don’t feel like Nerf™ Rockets. When a 60 mike mike goes off on the roof of your bunker 2 feet over your head while you’re sleeping, bad ju-ju is going to follow you around for a long time. But when someone finally gets it sorted fifty years later, VA should at least make good on it instead of trying to blow you off. I’ve studied the Rubik’s Cube® of §3.156(c) longer than I’ve contemplated the intricacies of SMC and I can tell you it’s horribly subjective in VA’s eyes. Truth is, they’ve never ever seen it unless it arrives back from the CAVC or BVA on remand with instructions to “Make it so, Numbah 1.” There simply haven’t been a lot of these antique claims that are this blatant and well-supported by the evidence-both old and new.
The long and the short of §3.156(c) is almost -but not always- dependent on using the JSCRURR (Joint Services Center for the Uniform Research of Records)- those eleven VA munchkins slaving away in their DC cave who research things like if Dong Ha (LZ Cork) got hit the night of January 18, 1969. This outfit is used by VA to keep us honest and prove the PTSD stressors filed as evidence by many Vets and attorneys are legitimate. VA uses it to research to within 6 months before and after your claim as to when the shit went sideways on Route 1. If you pass that test, then the next is “did you have a diagnosis of PTSD back in January 1969? No? Well, then we can’t pay your claim. Next? Used to be they demanded a date range of 30 days before or after the “alleged enemy action”. Most Vets have a hard time remembering and just used the monsoon theory. Was it raining or dry season? Dry was February to August. Everything else was wet.
Now, don’t get me wrong. There are an ungodly number of Vets who manned IBM® Selectrics or Olivettis while flying their desks who discovered they were nascent Eleven Bravo Tens when the gooks got inside the wire at 0230. I don’t think I’ll ever be able to convey in words what it feels like when a trip flare goes off and you realize the guy that just ran past you is wearing a funny hat and carrying what definitely appears to be an SKS with a bayonet. Your 214 will never say you deserve an ARCOM. No CIB for you, GI. You were there shooting but the VA pukes will never accord you the combat presumption. I don’t care how well you write your VAF 21-0781. It won’t help. JSCRURR fills that gap. In Butch’s case, we don’t need that form of proof. We have two new 215s-one for the PH and another for the CIB and the ARCOM. We have over 75 pages of medrecs showing SFWs to not one but 7 MGs(muscle groups). We have proof of not one but bilateral eye injuries that night. We have the records showing a confirmed diagnosis of tinnitus and traumatic cataract at Butch’s c&p exam less than three months after discharge. VA would have us believe that filing for perforated cornea is not the same as filing for a bilateral field vision defect caused by a traumatic brain injury. But, in the next breath granting a claim for 20/40 for refractive error that he did not file for. The best was the sudden recharacterization of a concussion blast injury into an “acoustic event” like a loud rock concert. Only a VA puke who’s never heard a shot fired in anger could confuse the two.
Nevertheless, none of that-not so much as a word of it- convinced them to grant SC for SFWs to, say, his left hand. Or his right thigh-but only from March 2015. The best was a new tranche about two months before they conceded TBI with migraines occurred on January 18, 1969-but compensable from 2016 only, mind you. VA did “give the dog a bone” when they magnanimously acknowledged a 1970 CUE and retro’d a 10% for a second muscle group. The reason? Why, you didn’t file a claim for all those other muscles in 1970, honeychild. But now you have so we’re gonna pay you for them. The reason they didn’t get any nicer on the old stuff was the break point for dependency is 30%. If they had granted a 20% back to ’70, it would get into dependency at 30% or over. Somebody must have noticed he had a wife and four kids so that was right out.
I’m seriously wondering in this new world of equity whether the Veterans Law Judge I draw will notice the major flaw in the Secretary’s logic when he said “you didn’t file for tinnitus so we didn’t know you wanted us to consider that.” Of course, Butch did file for perforated eardrums but they didn’t infer that either-or even bother to rate him for it. What they inferred was “deafness bilateral” for what’s behind door # 1- oh bummer- $0. VA’s take, as most know is “if you ever get more deaf, come back and see us. We have hearing aids for free, too. Did we mention that?”
Winning a VA claim often requires you to find that loose thread on the sweater and keep putting on it to see where it leads. Winning one with a Las Vegas payout for your neighbor after eight years requires a lot of navel-gazing and thought. What am I missing? What are they trying so valiantly to hide? They screwed up and fell into our punji pit. We gave them §3.156(c) evidence a month before we reopened by filing. §3.156(c), however has a compulsive clause-
at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim,
Will equals shall in law. This is not a permissive thing where if VA feels like getting off their dead asses and developing the 1970 claim, why, they might. But odds are heavy they won’t. Clemons greatly expands the legal universe of what a “claim” encompasses in layman’s terms. The Secretary attempts to use successive post hoc rationalizations for what has transpired-both in 1970 and now in the intercurrent 2018-2021 period. They’re all over the map. This will be their undoing. I just won one back to 2002 because VA did the same thing. The Vet filed for DM and they granted but also included PN of the extremities for which he didn’t file. I pointed out he’d also filed for MDD in 2002 and they denied but failed to grant when we won in 2020. BVA said pay the man for 50% back to 2002 and be quick about it. The rationale was that if the VA raters were intuitive enough to infer and grant for PN in 2020 back to 2002, they should have been equally as astute in doing the same for the MDD.
I’ve never devoted 24 pages and two IMOs to a claim or appeal. I was taught not to be redundant but this whole concept of §3.156(c) seems to be just as incomprehensible to the VA hierarchy as SMC law is. As for the inclusion of the IMOs, how else can you rebut some (alleged) candlelight ceremony was held at midnight in the bowels of the VARO that found your reconsideration was reviewed and “it did not prove or disprove your contention.” WTF, over? Did you, by chance grant any claims after reviewing them? Uh-oh… §3.156(c)(3) and (4) are now in play… I merely asked a couple of Board certified experts what they thought. We’ll see how that compares to a VA-hired gun ARPN with a major in Family medicine practiced at midnight. Remember folks. Equity. Benefit of the watchamacallit.
Some will say I’m betting the ranch on this with two IMOs. Have any of you ever been to the race track and bet $200 across on a six-year-old nag going off at 60-1? I don’t cotton to spending 8 years on anything just to leave it to chance. In my war, we preferred a three-to-one numerical advantage over our enemy. We rarely attained it and substituted the assurance of air support but you sure depend on good weather to give you that airpower. Murphy’s Law exposed that myth. You reduce the risk factors to as low a number as possible in any endeavor. Mostly, you’ll find you can’t pack enough grenades. To me, IMO’s are my hand grenades. They’re getting easier to procure and harder for VA pukes to defeat. The reason? Elementary. They’re too cheap to hire anything more than FNG ARPNs and 85 yr.-old shrinks who mix up the Veterans’ circumstances… or lie.
Butch has testified until he’s blue in the face to no avail. He’s provided a wealth of really good non-JSCRUR evidence to support his claim. VA foolishly granted it all out the wazoo without considering the implications of §3.156(c). Now they are trying to backpaddle and come up with plausible explanations for all this where they never have before. The problem is obvious. VA cannot bring itself to just admit they didn’t handle this one well and rewrite the M 21 to put guardrails on this kind of thing to prevent it from ever happening in the future.
Truth is, I built this like a Punji Pit from hell. VA fell into it when they granted in 2015. They fell in about three more times since by granting even more after a second and third tranche of records. It’s impossible for them to change what they did. It’s like catching your kid in a lie and he just digs a deeper hole with more and more lies. Shoo doggies. This is more fun than fishing with dynamite. Or marrying a woman with a liquor store. Or bagging a Boone and Crockett 26 X 25 (irregular) Elk. Or… winning a VA claim for your fellow Vietnam Veteran friend.
Here’s the Gutenberg bible of legal briefs. Let’s hope it’s the last one on this subject.
redact bva ex pgs original – Copy