EVERYTHING YOU EVER WANTED TO KNOW ABOUT A BVA REFERRAL

I get emails by the dozens every month asking me about this. Some Veterans get their decisions back from the BVA directly and the VSOs never even see it. Maybe that’s just as well. If you won anything, they’d be all over you like white on rice for a photo op. Trophy Walls they have. Yessssssssssss. And bars right next to them. So what, exactly, is a judicial referral from your Board of Veterans Appeals Judge. While it sounds vaguely similar to a remand, it’s a far different animal. Personally, I doubt a VSO representative could differentiate between the two terms so I will do so.

re·fer·ral    

rəˈfərəl  (noun)

Legal definition:  The relinquishment of legal authority to decide a claim;

the act of sending an appealed claim back down to the original adjudicator to decide in the first instance;

lacking legal authority to decide the appeal due to an incomplete or legally insufficient adjudication by an inferior court or agency below.

The Pontius Pilate cleansing of the hands ceremony (humourous definition)

Sometimes, and unfortunately/appallingly more so in VA jurisprudence, Veterans find their duly certified appeals to the BVA are deficient. Shocked. I am shocked, I say. A Veterans Law Judge (VLJ) or his/her staff attorneys, when perusing your appeal for legal sufficiency, often find an error of law or a claim bundled up with others which was never adjudicated in its own right. You can hear Gomer Pyle’s ghost saying Surprise! Surprise! Surprise! if you’re my age.

Moody v. Principi  teaches us that a claim or claims must be sympathetically developed and any inferred or informal claims arising from it are addressed up or down.

VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

This must be done by the Agency of Original Jurisdiction (AOJ)- i.e. your local Puzzle Palace. In the event this doesn’t occur, and assuming the Veteran files an appeal for the denial of all, or even part of other claims  filed at the same time, the VLJ is required to refer it back to the AOJ to be decided first before s/he can finally decide it on appeal.

A classic example. You file for Hepatitis C, Diabetes Mellitus II, and loss of use of the lower extremities. Your Veterans Service Center denies you for all of them.  You file your VAF 21-0958 and substantively appeal all three issues. But. You insert something in the NOD you never claimed in your original claim contention list such as flat feet.  VA denies anew, issues the SOC but neglects to address your board feet in clear English such that you could understand you’d been denied. You then file a VA 9 and again say “Quo pedes vadis?” VA proceeds to issue the VA 8 while ignoring the foot issue yet again and it eventually arrives at the BVA. An astute law clerk would discern the AOJ had neglected to decide the pes planus claim  in the original decision. The VLJ will proceed to rule on any “ripe” appeals but refer the flat footedness back to the AOJ to be developed and decided first.

A BVA referral absolves ownership of the claim by the VLJ. A remand does not. A remand is different inasmuch as the VLJ assumes “ownership” of  your appeal and holds onto it like a doggie with a bone. S/he remands it back to the AOJ  only to correct a deficiency in their handling of it.  Once the AOJ “corrects” the error and grants or redenies it with an SSOC, it is sent back up to the VLJ to be readjudicated. Sometimes, your Fort Fumble folks disremember to issue an amended SOC on a newer claim. The BVA remand merely gives the AOJ an opportunity to fix it by issuing one. Once the AOJ performs the remand request, the VLJ reasserts legal ownership of it onward to its normal conclusion ( grant or denial).

A claim that is inferred, implied or informally presented, vocalized at a hearing and never addressed is fair game for a referral. A VLJ, by law, is not allowed to decide an appeal until it has been decided below. You would be stunned to know how many Veterans get referrals. S/he’s (the VLJ) is smart enough to discern the error. They take great pleasure in telling VAROs how dumb they are. You will see ‘stupid’ rephrased in excruciatingly polite English by the VLJ. I think they teach that in Law School.

I am co-counsel presently on a 1992 remand where a Veteran’s appeal was remanded back to the AOJ for a SOC on his claim for seizures. The Green River Memorial RO here in Seattle treated it as a referral instead of a remand and readjudicated it by simply re-denying it. Granted, they did issue the SOC but nothing else-not even a mailing saying so. About six months later, when the Vet asked what the status was, the VA baldly stated that the statute of limitations had run out 60 days after they issued the SOC on it. Old Orville had missed the boat for a new VA 9. His VSO (Vietnam Veterans of America) apologized and allowed as he’d let it get by him because he didn’t see it as a remand-but rather a referral!. I doubt he could discern the difference legally. Orville gamely pursued it pro se for twenty years but never got any traction on it until he approached me. The proper procedure in this case was to issue the SOC and send it back to the VLJ for an up or down decision on appeal. This they neglected to do… in 1992. Equitable tolling applies.

When the VA fails to return  the remanded claim to the BVA, the claim goes into the deep freeze and awaits a readjudication when the error is discovered-if ever. When (and if) it is discovered, the BVA will grant equitable tolling and begin where they left off. How many of you would understand that intricacy of VA law? Few, I suspect. Most would trust our Alma Mater and the Presumption of Regularity (P of R) would apply. The P of R posits that the VA is always knowledgeable and never makes mistakes. What appears regular is regular and the onus of disproving that falls on the accuser (you). So we accused them of schlepping Orville’s remand.  The RO denied and it went up to the BVA. It’s due soon for a decision.

A referral, on the other hand, returns your incomplete claim to your Regional Office (AOJ) much like a remand. The similarity ends there. The DRO promptly reviews it and usually issues a denial. They mail you out the Dear John Vet letter and tell you you have the right to file a NOD and the regular process for this contention begins all over at that point.

A referral is only used for an incomplete, unadjudicated claim

A remand is a tool to repair a legally, proceduraly insufficient appeal. 

Often, a pro se Vet unfamiliar with the process (or an ignorant VSO) will add contentions into a NOD or VA 9 substantive appeal that were not raised when the claim was filed. Let’s say you’d filed for the DM II as I mentioned above. When the VSO is helping you (and I use that adverb very loosely) file your NOD, you might say “Oh yeah. I forgot. I have tingling and numbness in my hands and feet.” If you file a contention on it in the 958 but you never filed it in the beginning, it’s technically a new claim. Here’s where Moody fits in. VA should know, and they do, that if you have peripheral neuropathy and you’ve already been diagnosed with DM II, odds are the DM II is the culprit. That’s an inferred claim-as would be diabetic neuropathy (going blind). They should , by law, adjudicate this or address/develop it. They rarely do. In the case described above, you’d normally file a VAF 526b and ask for it to be rolled up into the current appeal. The DRO has the authority to do this but they’ll invariably lie and say they can’t. Shoot, folks. They’re lazy. If they decline, I say something like “Shit, Bubba. Don’t you honkys know you have the authority to do this? Look it up in your M 21 comic books” and then cite to the Standard Operating Procedures in the Segmented Lanes Model of Adjudication under M-21-1 1.3a (change date 7/14/2015). Actually, I’ve never called a DRO Bubba yet so I don’t advise that approach. I do guarantee it will roll their socks down, however. You will have their undivided attention in short order. Nobody likes to get called out for lying. That’s what the big dust up was over the Supreme Court nomination the last couple of weeks. The Presumption of Regularity also posits that VA DROs can never lie. I let them off with informing them they might have overlooked the M 21 change because they are waaaaaay behind in updating it. My technique is to remind them how to do their jobs-albeit politely. Giving them the M 21 legal authority has to be done subtly.

If you added these in after the original filing of the latest 526EZ, and the staff lawyer picks up on it on appeal to the Board, they have to refer it back to the AOJ to have it addressed as a properly raised claim that has been ignored or forgotten. Not only do they have to but they will. This is another reason appeals take so long. You’re dealing with professionals for the most part and they generally aren’t sloppy. I’ve jokingly referred to this in my book as the “coat and tie” stage. A VLJ has a Juris doctorate. The staff attorney has a juris doctorate. They know law (sort of). That’s a far sight better than the yayhoos at your local VA who have 200 hours in on M 21-1 instruction and compliance, 150 on Human Resources Management, 100 on memorizing all the acronyms like WARMS, CAPRI, CEST, EP, BIRLS, VACOLS, SOJ, VBMS ad nauseum and 0 hours studying 38 USC, 38 CFR and Black’s Law.

If the local yokels were doing their jobs properly, there would be no need for referrals-or remands for that matter. The words would be superfluous; they wouldn’t be needed in the legal lexicon. Perhaps in a more perfect world but not our nonadversarial, Veteran friendly, paternalistic ex parte system. No sireee, Bob.

The teaching moment here is to make sure you tack on that M 21 ditty to any 526b you file for your clients after the claim is in the chute. Here’s a recent example of a referral from a BVA Judge to adjudicate some other issues like SMC L for Aid and Attendance and SMC R1 which were implicitly denied when the LOU of the lower extremities was denied. I contend they implicitly denied us and never certified it. I did call his DRO and she agreed to pick that up when she writes the decision next Tuesday the 9th. Cool beans.

BVA redacted w- hi lite

 

 

Today’s lesson has been brought to you by the Letter R.

 

Posted in BvA Decisions, BVA Referrals, DM II, Equitable tolling, Humor, KP Veterans, M-21 info, Presumption of Regularity, Tips and Tricks, VA Agents, VA suspense dates, Waiver of Review in the First Instance | Tagged , , , , , , , , , , , , | 2 Comments

Grand Opening: National Veterans Memorial and Museum in Ohio

screenshot-2018-09-26-at-11-55-24-am.png

Screenshot of NVMM website

Perhaps this is an opportunity.  I’m not ready to give up the jetgun the Grahams gifted me to loan to a museum because I have plans to show it to influencers when I’m truly well and ready.  It is museum-quality and part of our visual culture.  

An exhibit about blood-borne disease epidemics (and deaths) among veterans should be developed with the jetgun (jet injector) a part of it.  Agent Orange (AO) is a likely covered health topic.

 

October 27, 2018 in Columbus, Ohio

“With nearly 21 million living veterans throughout the United States, from our Greatest Generation to our recent heroes coming home from Afghanistan and Iraq, the time for America to remember and to honor its veterans is now.

The National Veterans Memorial and Museum (NVMM) is neither a war memorial nor a military branch of
service museum. NVMM will take visitors on a narrative journey telling individual stories and shared
experiences of veterans throughout history. It will pay tribute to the sacrifices of servicemen and women and
their families. 

This project was originally going to be an Ohio Veteran Memorial and Museum but is now going to cover the nation.  The VA has NO control over this project and if we were actually able to install a permanent jet injector/jet gun exhibit, VA could do little to stop it unless they paid the NVMM to refuse it by giving a big donation.  That would scream “BRIBE!”

 

“General Colin Powell (U.S. Army, Retired) will deliver the keynote address. The public is encouraged to attend the dedication to celebrate the opening of this historic institution.”  To receive up to four free tickets, RSVP https://www.nationalvmm.org/grandopening/

The photos on the museum website can’t be used without permission so you can check out their gallery.  https://www.nationalvmm.org/

The Gold Star family–2 minute video.

If you think  jet injectors and other unintended medical mistakes should be part of this museum’s educational content, let us know which are the most significant.

Amerasian children left in Asian countries are also an important story.  Some of these adult children are seeking and finding their American veterans biological fathers with DNA and genealogy searches.

If anyone near Columbus can visit the museum, give us your review!

Kiedove (guest author)

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Inspirational Veterans, Uncategorized | Tagged , , | Leave a comment

HADIT.COM RADIO SHOW

As advertised, Jerrell and John are putting on another shindig this Thursday, the 27th of Falltember. We’ll discuss some interesting VA topics as we always do. I’ll give you folks an update on the LZ Cork saga that has now dragged on for over five years. It’s hard to believe we set out back in August 2013 to get Butch his Purple Heart and CIB. We’ve come a long way and now are on the last leg of a great §3.156(c) case. As much as everyone thinks §3.156(c) is a ticket to Dollar Drive or Bucks Boulevard, I have some interesting insights to share.

Just so you all can bone up on the subject, I would suggest reviewing Blubaugh v. McDonald, 773 F.3d1310, 1312 (FedCir2014).   or   Kizor v. Shulkin, #16- 1929 Decided 9/07/2017

Here’s the subject matter — 38 CFR §3.156(c)(1)(i),(3),(4) 

(c)Service department records.

(1) Notwithstanding any other section in this part, 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, notwithstanding paragraph (a)of this section. Such records include, but are not limited to:

(i)Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

 (2) [omitted]

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously  decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 

Remember that word “claim” and the legal necessity to have filed for this item(s) way back when and been essentially denied or lowballed. Pretty soon you’re talking a waaaaay more specific definition of what the meaning of ‘is’ is. Always remember our old VA Form 21-2545 Report of Examination (yellow copy to VBA). You signed your name on a VA form duly associated with the claims file that evinced informal claims regardless of what you claimed on the VAF 21-526. Six of one, half a dozen of another.

So, 1900 Hours Local on the Least Coast,  1600 on the Left, if the creeks don’t rise and good Lord willing, we’ll be on air.

The call in number, assuming John or Jerrell have been paying the phone bills, is:

347-237-4819  

Dial 1 (one) to talk to the boys.

Come learn about how to win a claim the first time out.

Posted in 3.156(c), All about Veterans, Earlier Effective dates, Food for thought, Humor, KP Veterans, Nexus Information, SVR Radio on hadit.com, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , , , , | 1 Comment

aSKNOD–WHY WE DON’T DO POLITICS HERE

Just so no one will infer narcissism in their growing list of my foibles, I used the lower case of asknod in my title above. Of course, if you search far and wide, I doubt you will find I, personally, have ever used the capitalized version. With that as a preface, I continue.

Because I love humor, and due to my birthday being on the cusp of the Astrological sign of the Celestial “Fool” in April, I placed a humorous post on Face Place. Woe is me. I soon learned that my humor was unappreciated but worse-that I am an unrepentant, out-of-the-closet mysogynist-not to mention arrogant. I was willing to admit I’m rude, crude and socially unattractive-perhaps boorish occasionally. But arrogant? Arrruhhh?

https://www.facebook.com/ask.nod1

I had the audacity to inject humor into the Supreme Court brouhaha. This brings up an important correlation to VA law in my mind. Far too frequently we are tarred and feathered by a doctor, therapist or Kumbaya counselor at one of those PTSD circle-jerks who write down ( or record) everything we say. I’ve had a few Vets say  “Shoodoggies. I never said that .” only to find later that a doctor put the words in their mouth. You find this more frequently in Hepatitis C cases of old. Back in the day, the only way you could get HCV (or HBV for that matter), in the eyes of a medical professional, was to engage in some form of willful misconduct. If you didn’t confess your transgression outright, they felt obligated to insinuate it by reference. I have no idea how many lost on that point but I’m convinced it was in the thousands before medical knowledge set it aright.

Which brings us to a teenage boy who was drunk and assaulted a teenage girl… allegedly. No witnesses, no corroboration, no details or dates; nothing but a base insinuation of malfeasance at the eleventh hour and the 59th minute of an in-depth assessment of a man’s suitability for elective office and moral fibre. In law, this is called hearsay. Judge Judy frowns on it as do I. If you are to be accused, it behooves the accuser to face the accused and vice versa. Using anonymity to hide behind (when this first surfaced) is antithetical to democracy. Worse, as I pointed out in my humorous post, was the fact that the powers that be, in this case a Senator from California, sat on this information for months and sprang it only to delay the fait accompli of his nomination before the Judiciary Committee and a vote in the Senate. How well I remember the shoe firmly ensconced on the other foot when someone, in a rush to pass a statute, opined ” We have to pass it in order to find out what’s in it.”

We call this facet of law credibility. If you, Johnny Vet, filed for Hep C and cited dirty jetguns, you might have lost. But, if you then filed a NOD and began piling on additional risks such as haircuts with a straight razor from the blue juice jar behind the barber, reusing syringes on multiple recipients of inoculations or being exposed to the blood of others on the floor of the Huey while evacuating severely wounded 11 Bravos in the dustoff you flew in every day, you would begin to sound desperate. VA would poke big holes in your story and say you never reported to sick call that you got another’s blood on yourself. Of course, why would you? VA seems to think we regularly  reported to sick call for a splinter or a hangnail.  Internal consistency and continuity of your recollections would be assailed as incongruous and disjointed.  I’ve had a DRO baldly state that no one could possibly remember what ship they served on 48 years ago. Maybe, but the DD 214  doesn’t forget.

The gist of my humor? I quote:

This just in from Senator Diane Feinstein. Supreme Court nominee Brett Kavanaugh was exposed as a bedwetter when he was 7 years old. He was also accused of sexually inappropriate behavior toward a fellow kindergartner with unwanted amorous advances. New York Times points to VP Mike Pence as the anonymous source. News and film at 6 and a tell-all interview with the Senator.

In light of the latest revelation (again unsubstantiated)  that he waved Winky in front a young lady, again, the (in this case) inebriated, offended individual can’t even recall it herself-relying instead on someone else’s hearsay recollections. He may or may not have waved the organ. That is immaterial. What is material is substantiation of the accusation. If the folks present have no recollection of it, it’s safe to say there is a difference of opinion. All I would ask is whether the statute of limitations has expired or why the FBI would be asked to investigate a purported 36 year-old misdemeanor that did not cross a state line.

“Lemonstah, Mass.

The reason I’m never going to run for a political office is CNN will reveal ten or eleven of my classmates and I jointly flashed a “bus moon” to the passersby in Leominster, Massachusetts on the way to Logan International whilst traveling on Thanksgiving vacation on 1968. I suppose there might have been a woman amidst the crowd so I would be ipso facto, a misogynist even back then.

In VA law, there is a heightened responsibility to assist the Veteran, to obtain all evidence possible to corroborate the alleged injury/disease and to give him the benefit of the doubt if the evidence is in equipoise. What would you do if the Veterans Law Judge said “I am denying the claim for HCV because all male Veterans are known to be consummate liars and scalawags by their very nature.”? Or, conversely, “I am denying this claim because the Veteran has not substantiated her claim that she was sexually attacked and raped.” Conclusions of law must be predicated on fact- but yes, sometimes on lay testimony alone such as a combat Vet. Never, in American jurisprudence, is it a given that a man is guilty merely because he is a man. That is like saying all men are white supremacists merely because they are white.

38 CFR §3.304(f)(5) now permits a woman Veteran a modicum of belief in her recitation of a sexual assault as does (f)(4) for PTSD claimants. While these changes to the regulation liberalize the requirements, they do not absolve you of presenting some evidence. Kahana v Shinseki held that absence of evidence is not negative evidence; so, too, the instant case. The candidate for investiture at the Supreme  Court cannot produce evidence he is not guilty– ergo, he is.

Which brings us to the  allegation I am less than pure as the driven snow for even suggesting that the dearth of evidence for the Supreme Court nomination is proof positive of my misogynistic bent. Oddly, the poster, Mrs. Karen Stern, has seen fit to inform me I am misogynistic and arrogant for nothing more than my off-color satire.

“A, many of your posts have a misogynistic twist. Stop that, please.”

“Arrogance is not a virtue, Alex.”

“You are lecturing the wrong person [about humor].

And the other gentleman (Don Shepherd) on the subject of believing women at Face(book) value”let’s give women there [sic] rightful say as there are more of them than men.”

I stand convicted on Face Place.

I do like a good joke and some of those I publish here are from you, my readers. That doesn’t condemn me of misogyny outright. I like to share. That’s why they have that button on In Your FaceBook, isn’t it? Hey, weren’t we taught early on in Kindergarten to share and share alike? If my humor offendeth thee, pluck it out.

I would think any one of you would have told me I was arrogant far earlier were it true. To date, the only one accusing me besides the Gang of Three on Face Magazine was that jackwad DRO in Jackson Mississippi (Terri Green) who admonished me to ”curb my arrogance, focus less on 38 CFR and more on the M 21 for legal cites”. Concurrently, if I appear misogynistic, please tell me what gave any of you the impression. I am amenable to bettering myself if only I know my deficiencies and shortcomings. I discussed it with Cupcake and she agrees I’m arrogant-but only toward VSOs. The rest of the time I stand convicted of  Casper Milquetoastism. It’s hard to discern arrogance because one rarely sees his own forest for the trees.

Humor can be cruel only when aimed at those who refuse to see humor- i.e. a)they don’t agree so they’re offended; or b) the gods forbid, they’re too dense to get it. As one gal commented on that thread, “When 1 [sic] reverts to insults then they have lost the argument & there is no reason to continue.” Even though it appears the insinuation was directed toward me, I seconded the sentiments as I don’t think I insulted anyone. To me, it appeared  more akin to “I Posted. I joked. I was insulted.” The only humor I derived from the post was a) how artfully Ms. Stern turned the discussion around to her own experiences personally; b) introducing the subjects of Russia and; c) segueing into how our not-so-illustrious President suddenly became inextricably intertwined with the diatribe.

In closing, I will henceforth strive to continue my base evil tendencies to include humor here and stick to VA law. Politics, apparently, are a dry hole (to some) for humor anyway.

And that’s all I’m going to say about that. Seems I might have said too much already….

 

 

Posted in All about Veterans, Complaints Department, Food for thought, General Messages, MST | Tagged , , , , , , , , , , , , | 13 Comments

Mike Pence’s mystery visit to Coolidge’s VT Summer White House

Ouch. WCAX news said Sens. Leahy and Sanders weren’t told that VP Pence would be visiting a small town in Vermont on Labor Day weekend.  Their quick responses– 

Leahy’s Twitter blurb:  “Marcelle and I and Governor Scott were with the Vice President and his wife in the Capitol Rotunda this morning for the sad occasion of the arrival of Senator John McCain’s casket.

“I am glad to hear that they are able to now visit the most beautiful state in the country, and I hope they enjoy their time in Vermont.”

Sanders: 

“We welcome the Vice President to our state and hope he enjoys his stay.”

Pence spoke at John McCain’s memorial service yet he and Gov. Scott (R) kept mum about his trip.  Sanders and Leahy weren’t trusted enough to be told that the Veep  and his family would shortly fly into Burlington on Air Force Two; or about the motorcade, secret service detail, etc… That was smart.

What did he do?  Where did he stay?  Who did he see?

He made an unannounced visit to the President Calvin Coolidge Historic Site (LINK).  He ate maple creemees and went went fishing (LINK)!  There has to be more. One reporter said “…it appears the Vice President met briefly with several key Vermont Republicans about the mid-term elections.”(LINK) Is something else brewing?  Maybe but the media doesn’t seem to know much.

Image: FB Calvin Coolidge Foundation, VP Pence at Coolidge Historic Site, Labor Day 2018

Calvin Coolidge, the only president born on July 4, Independence Day, is a conservative icon these days.  Mike Pence keeps his portrait in his office. The Calvin Coolidge Presidential Foundation (LINK), a private group, which has an office on the homestead property, has experienced a “conservative takeover” (LINK) according to Seven Days newspaper. A lot of money has flowed into the national foundation, IRS records show.

Image credit: unknown

Two Vermont natives have been elected vice presidents and both unexpectedly became presidents.  Vice President Chester Arthur became president when James A. Garfield was assassinated in 1881.  Vice President Calvin Coolidge became president when William Harding died of a heart attack in 1923.

Pundits thought it was unlikely that Bernie Sanders from tiny Vermont could ever be elected president but surprises happen.  The Dems dirty tricks hurt Bernie so the surprise was that the populist vote went to Trump.  If Sander’s hadn’t been damaged by them, he and Trump would have faced off in the debates. The old business man and the old professional politician–both blunt, would have gone at it native New York style.  Talk about good ratings.

Perhaps VP Pence wonders, if, as fate would have it, could he unexpectedly become president like his hero, Calvin?

Image:Library of Congress: Text: VT gov. “While vacationing at his old family home in Plymouth Notch, Vice President Calvin Coolidge received an urgent message from Washington, D.C.: the President, Warren G. Harding, had died. At 2:47 a.m., by the light of a kerosene lamp, Coolidge took the oath of office from his father, the local notary public. Years later, Coolidge wrote, “It seemed a simple and natural thing to do at the time, but I can now realize something of the dramatic force of the event.”

Silent Cal is an interesting character, frugal, war-avoider, a tax-cutter and cozy with Big Business. The Coolidges entertained the oligarchs of their day in Plymouth Notch; below we see Thomas A Edison, Henry Ford, two Firestones.  (He is signing a maple bucket as a gift.)

With the Roaring Twenties still roaring, Coolidge declined office-holding before the stock market crash, Great Depression and the extreme hardships that ensued–which was a good thing.  He was out of touch. For example, although Coolidge had veterans in his family, he didn’t support WWI vets who sought bonus pay.

Congress passed a bonus in 1922 but President Warren Harding vetoed it. After passing another bonus bill, Congress overrode the veto of President Calvin Coolidge in May 1924 and the measure was enacted. The payment—which provided veterans $1.25 per day for service overseas and $1 per day for domestic service—was deferred by the law until 1945.

The issue was reopened in the early 1930s, when cash-strapped veterans suffering the effects of the Great Depression marched on Washington to demand an immediate payment. (LINK) and (LINK).

This is a very bad story of governmental abuse.

Au revoir nice Pence family.  Wish we knew more about your hush-hush trip.  Visit again!

Kiedove  (Guest author)

 

Other resources:

President Coolridge  and First Lady Grace summered in: his birthplace of Plymouth Notch, VT (LINK);  “White Court Mansion” Swampscott, MA (LINK);  White Pine Camp,  Adirondacks, NY (LINK with cool newsreel!); Black Hills, SD (LINK); and Brule, WI (LINK).

The Autobiography Of Calvin Coolidge  (Link to Federalist papers free e-book) or read free on Internet Archive (LINK)

https://www.history.com/topics/us-presidents/calvin-coolidge

Amity Shlaes (LINK); and Twitter (LINK)

Posted in Food for thought, General Messages, Guest authors, History, Uncategorized | Tagged , | 1 Comment

A Vietnam vet’s letter from rural Vermont

I spent some time yesterday in an Urgent Care office about three miles from our house reading a local newspaper (LINK) while my old Marine was getting his broken toe tended to.  A letter authored by Al Walsky of Berkshire (VT) grabbed my attention. Mr Walsky is an involved citizen who attends legislative meetings to share his opinions.  He lives alone. It is not online so here are some excerpts:

“Although this veteran survived the devastating Tet Offensive in Vietnam my life nearly ended on my kitchen floor on July 6th as a “death of benign neglect” due to cuts in the veteran healthcare and social services. The cause of my near death experience was undiagnosed septic pneumonia.  I was so weak I couldn’t even sit up.”

The Rescue Squad got him to Northwestern Medical Center (not part of UVM’s monopoly) where he spent three inpatient days getting the care he needed.  Worried about finances, he left a day early.

The private regional hospital that saved this veteran’s life. General car and bus routes shown.

He blasted his state Rep. Murphy (Transportation Com. member) as “very cold and unresponsive” to his needs as a legally blind veteran and hopes she isn’t re-elected.

“Getting to necessary  medical appointments is problematic for veterans who have to depend on charity…

From what I can determine, the nearest VA clinic ( VISN 1) is about  37 miles (as those pesky crows fly?) away in Newport, and Burlington is about 53 miles away–so it’s possible he hasn’t been able to get non-VA “choice” appointments closer to his home.  Traveling these roads in winter is very risky.

He has a warning for everyone:  “During convalescence I’ve found the services of the Visiting Nurses, the home aid program, and Meals on Wheels program to be problematic.”  Why? Because he wasn’t deemed a falling risk, the nurses “refused” him.  The Home Aid told him his house was too messy and Meals on Wheels restricted him to their timetable. No haircuts were available through home aid either.

He makes a number of other salient points and ends with “I am documenting my health concerns so that should I die there will be an audit trail to prevent other deaths.”

There is one bus going through Berkshire to St. Albans–a large town for Vermont.  The bus makes several stops but does not go to the hospital and its doctor offices! Someone has to walk, according to G–maps, 19 minutes for health care–on a nice day with no disabilities to contend with.

My thoughts. Non-Va care is supposed to be much more available next year, but that’s next year.  Meals on Wheels is a good program but local grocery stores could fill in if they had home delivery services.  Computer access is not a given in the boonies but one could order food from Amazon.  Local stores, if you don’t want us to order online, show us that you want our business and deliver.  The Home Aid’s comment:  Well, when old folks are sick, and legally blind, the dusting doesn’t get done well.  That’s why you have a job.  If the pay was better, would the employee be more sensitive?  In these uncivil days…..hard to say.  Haircuts–yes, this is an issue and many nice retirement communities have onsite salons.  But the cost is prohibitive for many.  Occasionally a local church will hold a “free haircuts” day.

Then there are some folk who like their privacy and their walls. Although Robert Frost’s narrator questioned wall building in his poem, Mending Walls (LINK) his neighbor said, “Good fences make good neighbours.”  Rural isolation and beauty calms until it doesn’t because it gets too hard to cope with what used to be sheer pleasure.

VA transportation sometimes contracts with van services that are located miles away from where the actual need is instead of working with local transporters.

Rural transportation takes good neighbors and representatives that give a damn when times are tough.

Kiedove

Image from the book “A Journey Through Literary America” Robert Frost’s cabin in Ripton, VT

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Inspirational Veterans, non-va care, VA Health Care | Tagged , , , | 2 Comments

CAVC #18-938–ON BLUE BAYOU

Some would be angry or disconsolate over a loss at the CAVC. I’m not. I screwed up and I thank Judge Bartley for her fastidious attention to ferreting out the kernels of truth and the error(s) of my Extraordinary Writ. It’s the same error as my prior submission several years ago in #16-2098. To be sure, I must exhaust all my avenues of appeal before I can legitimately approach the bench and ask for such a special dispensation.  Nevertheless, that doesn’t dispel the funk I’m in. 

Graham EX WRIT 18-938 final

Nevertheless, this will not dissuade me from your and my VR&E crusade for our Independent Living Program entitlements. I am taking quill in hand and filling out my new VAF 21-958 appealing my award of a 15 X 20 greenhouse in favor one larger. This time, I will also pull out the stops and purchase an IMO from a bulletproof source explaining why a 24 X 28 foot greenhouse  is necessary and vital. As for the $3,800 240 Volt, 30 ampere incinerating water closet and $700 for the two year subscription to the NVLSP Veterans Benefits Manual?  Mais oui. That, too, naturally.

This fall has been quite a whirlwind and I have an excuse for my being AWOL from the asknod pages. I have been occupied with four Veterans who are either terminally ill or whose claims have finally come to fruition due to their deteriorating health. Imagine drawing a poker hand like this. I have three (3) Travel Board hearings face-to-face here in Seattle on succeeding days-Tuesday, Wednesday and Thursday. They are all going to be in front of the same VLJ- Judge Cherry Crawford. I hope I don’t wear out my welcome. Thank the good Lord none are identical claims. That might backfire if I merely brought the same copy and paste of an amended VA 9 Appeal brief.

Enough about me. I’m boring compared to the below.

Swift Boat Wayne’s World

One of my Vietnam combat Vets is a Montana resident whom I was forced to schedule here in Seattle. It turns out they’ve never heard of a Travel Board hearing in Fort Fumble– er, Harrison excuse me. I kid you not. I asked my new BFF DRO Jean K over there to schedule me one pronto as my client just got the six-month briefing from his oncologist. Apparently the Nivolumab™ isn’t cutting it as advertised. The three extra years promised just evaporated -it ain’t gonna happen. It’s very sad but if it were me, I’d drive all the way to DC to deep fry their ears before I died. Wayne did a tour on a Swift Boat north of Da Nang. It was rude, wet and stormy with lots of lead poisoning. It destroyed his back, gave him PTSD and now prostate cancer that is spreading like wildfire.

So… I called the White House Hotline Wednesday afternoon and bent some old boy’s ear for an hour to see if I could frag someone’s ass and get it moving. An interesting aside. When we were up in Laos, they had cases and cases of really keen Swedish hand grenades. Seems them Swedes would be pretty hunky Nordic types with big biceps. Maybe not. Those grenades were about 70% of our M-26s in weight and you felt like a NFL quarterback effortlessly throwing 100 yard Hail Marys  into the endzone from your own 20. Seems I tossed a daisy. Judge Cheryl Mason’s secretary Shahnikka (sp?)called me the next morning (0732 Hrs my Local) and assured me she had a September 18th slot open if she could just remember where in Sam Hill it was available at. Not expecting much in the near future, I half-heartedly tossed in I had two others I was arguing at the Emerald City Memorial VARO on the 19th and the 20th so I really couldn’t fly to Fort Fustercluck and be back in time for dinner.  I did let drop Old Wayne was amenable to a road trip west if that helped the schedule…

Last week Wayne had mentioned to me he would even consider driving all the way over here if he could get his hearing expedited. He didn’t want all this to fall on his wife’s shoulders after he’d punched out. I’d already half ass suggested it to his DRO Jean  a week ago Friday afternoon on the 7th, too. She had said she’d thump her coach’s melon and see what she could make happen at her end.

At 1o30 hrs, just three gongs of the clock after I’d talked to  Shahnikka (she of the misplaced TB hearing), the phone rang again with that quintessential anonymouse 800-827-1000 ID. It was my Travel Board Coordinator here in Seattle. Tammy said she just happened to have a slot open for Wayne on Tuesday the 18th-five days hence- assuming arguendo, he could make it over here. What a coincidence, huh?

Since Cupcake had the foresight to order me to make our Best Western ADA from stem to stern in 2005, we’re going to put Wayne and his wife up here.  We have an elevator to jack him up into the house and all the amenities. Besides, I can’t see Wayne being comfortable in a downtown Seattle hotel with more folks around him than trees. Remember, he lives on fifty acres with a river running through it. I’m guessing they’ll be far happier here sipping Chivas,  flipping 16 oz. bone-in Rib eyes on the barbie and feeding apples to the horses with me. Shucks, we can shoot trap (or deer) right off the back deck. What? You thought my skeet range wasn’t ADA approved? O ye of little faith.

Wayne has very bad IDS for 60%, PTSD for 100% and Prostate Cancer for 100%. On top of that, he has the 100% bone cancer going down into his legs. I’m going out on a limb here saying he has loss of use of his lower extremities because he tends to fall on his face when walking. VA says he won’t qualify until he gets an amputation or two and straps on matching, color-coordinated prostheses. I thought we fixed that twenty years ago with Tucker v. West.

Tucker_96-1493

Monkey Mountain Bob

In addition, on the 19th, we’re holding a VA Pity Party for I Corps Bob, the radioman who had the misfortune of brushing his teeth too many times with that orange-flavored toothpaste from Monsanto. Bob came down with a raging case of Myelodysplastic Syndrome (MDS) back in 2013. VA gave him a 100% temporary. After the bone marrow transplant, he came down with classic, predictable GVHD symptomatology and has been taking Tacrolimus ever since to prevent the rejection of the transplanted bone marrow. I say he was entitled to that 100% right on through until I got him his TDIU this June. VA told me to go suck an egg and reduced him to 10% faster than you could say Jack Robinson. I say “Yo. Mr. Wilkie. Read your regulations, dude:”

7703 Leukemia:

With active disease or during a treatment phase———100%

Note: The 100 percent rating shall continue beyond the cessation of  surgical, radiation, antineoplastic chemotherapy or other therapeutic procedures. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no recurrence, rate on residuals.

Just to be sure, we went and bought a killer IMO saying Tacrolimus is a Therapeutic procedure. I would gladly spend $2 K today for $32 K next Thursday. Gee. Didn’t Wimpy say that about hamburgers once?

Funny thing is they plumb disremembered all the GVHD residuals like dry mouth, mega dry skin disease, phlebotomies and a few others like having trouble breathing when they did the follow up exam in 2016. I got him all decked out with TDIU- one disease by one- over the last 15 months. But, like Colonel (Brevet Maj. Gen.) Custer, they plan on dying on that DC 7703 hill.

LZ Cork -Finally

As most of you know, I began helping Butch and Barb in 2013 on his Purple Heart and CIB first.  He is finally getting his day in court on the 20th. This one is for all the marbles back to 1970 on a §3.156(c) claim. The rocket boys in Seattle forgot to go get his NPRC records in 1970 and there they sat for 45 years.  His DRO couldn’t even assemble a SSOC to rebut my SOC rebuttal. She had it for three months and finally ran the white flag up the pole and feebly offered a VA 8 in surrender and agreed to let it go to the Judge. I get that. Who wants to walk into the break room at 1000 Hrs and have everyone nod toward you and whisper “She’s the gal who cut a check to that 11 Bravo for a million.”? Nobody at any Fort Fumble ever wants that on their resume. Fuggit. Let the VLJ fall on that sword.

They say good things come in threes. We shall see. One thing is for sure. Whoever said VA can’t go to the bathroom without three signatures was funning you. What are the odds you could bag a VA 8, rustle up advancement on the docket in a week and then a Travel Board Hearing in five days? I must be in Heaven, man. It’s exhilarating when a plan comes together.

And lastly, it’s Mr. Buddy’s 50th Birthday today. He was born in 1968 in Ballard, Washington.

 

Posted in Agent Orange, All about Veterans, BvA Decisions, DRO and BVA Hearings, Independent Living Program, Inspirational Veterans, KP Veterans, LZ Cork, SMC, Tips and Tricks, VA Agents, Veterans Law, VR&E | Tagged , , , , , , , , , , , , , , , | 8 Comments