MEMORIAL DAY 2023–STILL IN SEARCH OF THE OTHER 81,000

Posted on May 29, 2023 by asknod

LCPL Story

Being a voracious reader (and a Veteran + advocate), I gravitate toward military stories of old MIA/BNR Veterans. Note that I capitalize Veteran and always have. Veterans served our nation whereas veterans are longtime employees of an organization. One of these days I would hope that the VA might begin capitalizing it as well. I note with satisfaction this morning the recovery and final identification of U.S. Army Corporal Luther Herschel Story who was lost in 1950 in Korea. That leaves 81,000 more we still need to bring home.Perhaps, even closer to home is the loss of any of the Veterans I represent. Just because I may win their claims, the obligation of representation doesn’t end there. Whenever possible, I try to preassemble a DIC folder for those who are severely disabled with active diseases or injuries that put them at risk of a sudden demise. It isn’t a Boy Scout motto like ‘Be Prepared’. It’s a commitment to the surviving spouse as well.

Twice now, since the advent of the new year, I’ve had Veterans pass away out of the blue. While I do lose four or five each year, most are already on their last legs and it doesn’t come as a surprise. Given my VA law practice focusing on SMC, most who come to me already have one foot in the grave or a reasonable assurance they aren’t long for this veil of tears. Sadly, this year is beginning to shape up very differently. I would hope it’s not a harbinger for the rest of the year.

The latest casualty was a Vietnam Dustoff medic. I became friends with Bruce Almighty, a four-tour Dustoff medic who introduced me to the world of the Independent Living Program (ILP). From there, it was only a hop, skip and a jump to filing for a greenhouse due to my porphyria. My skin doesn’t do well out there in the sun so a sheltered greenhouse would protect me as well as allow me to grow all year around. The Vietnam Dustoff Association invited me to their reunion in 2013 to give a speech. I’ve subsequently been designated the go-to guy for VA matters which is how I came to represent John in his quest for 100%.

John passed away this last week after a relapse from what we had hoped last year was the remission of  his non-Hodgkin’s lymphoma. He had fallen and was in a recovery nursing home recuperating from an injured hip. His death came as a complete shock to everyone. He developed a nasty blood infection and it 86’d him in no time flat. Shit happens but it shouldn’t happen to us as Veterans. With what is often touted as the best medical system on earth for us, it might appear the truth is far short of that advertized. Considering they dang near killed me several times over my 14-month, all expenses paid vacation at the Seattle VAMC,  I wouldn’t take Pickles there even if it was a world-class veterinary clinic, too.

John and wife Gail

One of the sore points on lost service members has always been Laos in my book. We were field stripped of all ID. I mean everything. It was called sheep dipping or sanitization. Like all assigned in-country, we reported to the military attaché annex several blocks from the US Embassy when we arrived at Wattay airport (L-08) in Vientiane. We were required to wear civilian clothes for our arrival from Udorn. There, we coughed up our wallets and they put our Geneva Conventions card, our state and military drivers’ licenses, our military ID and anything else indicating military affiliation in a lock box for storage.

In their place we were issued US Agency of International Development photo ID and a Laotian driver’s license. My USAID ID identified me as a French teacher. If we were shot down, we were executed on the spot most times. It didn’t really make any difference if we ditched our weapons and raised our hands. Worse, and what provokes this memory today, chances of recovering the body were between slim and none.

I knew a lot of AAm folks who wore large gold necklaces solely for use to buy their freedom in the event of capture. Most of us followed suit for what it was worth. Hell, I still have mine. But with nothing more that bogus ID, we weren’t going to be herded into POW camps and repatriated come the end of the war. The Pathet Lao’s respect for human life was below their respect for their water buffalo. POWs were considered a liability regarding food or supervision/incarceration. Buffalo earned their keep.

One of these days, the media will announce the last living survivor of the Vietnam War. God, I hope it isn’t me. I’m not a parade kind of guy and I don’t want the attention. Happy Memorial Day to you all.

Posted in Memorial Day, Milestones, Vietnam War history | Tagged , , , , , , , , , | 1 Comment

EXPOSED VET RADIO SHOW THURSDAY 5/18/2023–EVERYTHING YOU WANTED TO KNOW ABOUT SMC A&A

Posted on May 16, 2023 by asknod

Yep. Just got the Bat signal in the sky over my hacienda to report for duty to the John and Jerrel show this Thursday evening. Show starts at 1900 Hrs on the East Coast and, by deducting 3 hours from that, a body can interpolate that it will transpire simultaneously at 1600 Hrs on the Left Coast. As there is much disagreement about aid and attendance, who can get it, who cannot, and what the requirements are, I will be glad to clarify the subject.

I would note that the M 21 disagrees with my understanding of it. (IV.ii.2.H.8.b). But then the M 21 and I diverge on many subjects. I’ve engaged in HLR review informal conferences and the assigned reviewer always informs me I am in error. However, upon arrival at the BVA, I am assured, both by the clarification of the Veterans Law Judge, as well as the BVA decision granting a&a, that my interpretation is still correct.  See attached on page 4 in highlighted yellow for the latest confirmation of the proper interpretation. BVA R1 Win & cite to a&a redact As for when the VA will correct their misinterpretation and inform the rest of VAkind, I cannot say.

The show will attempt to explain it in far simpler terms and more clearly than some Veterans Help Sites I visit. Some sites follow VA’s lead and will insist you need 100% or TDIU to even get in line. Some feel if you apply for it, VA raters will put you under the microscope and you risk being reduced to dissuade you from ever attempting it again. We’ll attempt to dispel these old wives’ tales.

Bust out the suds, chardonnay or a single malt and mute the microphone if you plan on munching chips.

The call in number remains

(515) 605-9764

Should you so desire, you may connect using the link here:

https://www.blogtalkradio.com/jbasser/12227725/connect/ea7224790aa6adbea66f0dca1d97bccf5588b901

I look forward to helping you achieve this SMC benefit -always assuming, arguendo, you are entitled to it.

Posted in Exposed Veteran Radio Show, How to Qualify for VA SMC, SMC, VA special monthly compensation | Tagged , , , , , , , , , , | Leave a comment

FORT COURAGE– DUMPSTER-DIVING IN THE VBMS

Posted on May 11, 2023 by asknod

I love the VA’s computer. It can show you mistakes made back in the dawn of time. They’re just sitting there waiting to be found. Sadly, VA won’t do these claims expeditions in search of repairs. Hell, they’ll come after you and try to reduce you but being proactive in your favor is not in their toolbox. Which is exactly why I named this blog Fort Courage after the old 1965 western comedy show F troop. 

 

I was almost finished with this Veteran’s claims and got him his TDIU but decided to make one last high-sided pass to make sure I didn’t miss anything. And there it was- a glaring mistake in 1983. Wayne had filed for a blown left knee and they never located his old service records. In spite of the duty to assist error, they denied.

Fast forward to 2006 and the knee was mega-worse. This time they managed to find the records and one astute rater observed that §3.156(c) was going to be implicated. They ignored her and proceeded to grant with an effective date of 2006 anyway. And that’s the way it sat until I spotted it this January. They graciously conceded their error and promptly granted him a 0% from ’83 until the 10% in 2006. But Wayne had gone to see a doctor. He’d filed the report and it explicitly mentioned the condition. So much for all that “rule out” crap. This doctor said it was a hot mess.

Six months later, the HLR babe finally calls on Tuesday and says “Ready for your HLR informal conference or would you like to schedule it?” Well, hell yeah I was. So we chewed the fat for about 30 minutes and I gave her a little education on how §3.156(c)(3) and (4) are applied after you grant the old date. Thirty minutes later, her new revised rating came out granting 10% back to May 1983. I’m still not satisfied. I think he’s probably entitled to another 10% for lateral instability.  Maybe 20%. Once you open this can of worms, it’s like we climbed into the DeLorean and are now back in 1983. We have a year to complain and get a supportive IMO with a good retrospective opinion of what the knee was then all the way through to the eventual grant in 2007. VA hates when that happens.

So here’s the history for those of you thinking about how to do this. It’s like fishing with hand grenades.

redacted

redact knee dx 83

redact 7.18.84 RD knee

redact RD CUE win 5.09.2023

redact CS 5.09.2023

Posted in 3.156(c), Earlier Effective dates | Tagged , , , , , , , , , | 1 Comment

5/07/1975-2nd PLACE–SEA WAR GAMES

Posted on May 7, 2023 by asknod

May 7 is an anniversary event for me. That’s what psychologists call a particularly bad hair day you went through in the war. May 7th embodies an ignoble day of a not-so-special time in our military history. Win. Place. Show. Every gig we’ve ever done in our history was an unmitigated Win. Granted, we sometimes took our sweet time accomplishing many of them but we got ‘er done.

But never in our history up until Vietnam had we ever tucked tail between legs and beat feet on such a massive scale. Never. I heard some tales from AirAm brethren decades after the war about how they had to literally drop their tools down at Tan Son Nhut among the revetments and run for their lives. They were tasked with the impossible project of disassembling and packing hundreds of Porters and like-new Bell 204s and 205s ahead of what looked like an impending rout.

They ran out of time and bugged out for Clark or Taipei with the last of the 130s they were going to pack all the aircraft in. The new owners scored bigtime- probably bigger than this latest fiasco in Kabul. I don’t get it. We are the biggest and mightiest force on earth. Or were. I worry about America. What we see these days is emblematic of that era. No deposit. No return. Or is it what we don’t see because we’re too busy looking down at our phones?

Up is down. Men can become women just by summarily announcing the fact. They’re invited to use the ladies’ room… by politicians who won’t be using them themselves. Men can now chest feed and menstruate. Science has been wrong since the dawn of time. I disremember in all of my 72 years that I’ve ever seen Mr. Red Robin and Miss Sally Blue Jay get married and live happily ever after… with tons of grandbirds in their old age. Or two bucks bond for life. I have much to learn. I’m not angry. I’m not depressed. I’m curious how all this is going to play out and damn glad I won’t be around to see the eventual aftermath.

But one thing I knew early on from my Dad in ’65 was that this dustup in Vietnam was going to be a dead end and an unmitigated disaster. When he arrived as V/C of 7th AF in June 1966, we were already almost out of 500 and 1000 lb. MK 82s. 250 pounders were like firecrackers and you had to drop four to even make a good dent in the earth. Hand grenades and 5.56 were also having supply chain problems. We were flying old F 100s and  F 105s as our front line fighters. The F4 was just arriving and didn’t even have internal guns. Who needed them? We had Sidewinders and Sparrows. Our gunships were leftover C 47s and dollar 19s. C model Hueys were so underpowered they took the doors off  their gunships to take off with a full load of ordnance. Some would do hot refuels and top off the tanks. They had to sit and wait for some of the JP4 to burn off before they could pull pitch.

McNamara, the Ford whiz kid, loved to tamper with production. What he’d envisioned for Vietnam was a test run. The M 16 and the M 60 were going to be vetted and refined. The C 130 was going to be upgraded frequently to expand payload and range. Everything was calculated out dang near to the last CBU 26. If this worked out as predicted, we’d drop the last of the ordnance and Jane Fonda’s best friends forever-  Ho Chi Minh and Co.- would throw up their hands in abject surrender. The word ‘If” was the operable conjunction. Sadly, McNamara grossly underestimated their resolve and by Tet ’68 we finally had to acknowledge all the body counts in the world were not going to be the metric of success.

Funny how that didn’t work out. When we ran out of 1000 lb. MK 82s, we started buying them back from the West German Air Force. We gave them away in ’45 to rebuild their post-WW2 Air Force and then were forced to buy them back at $900 a pop plus shipping for several years until we cranked up production at home. But what I really can’t understand is how we could repeat the identical same fustercluck fifty years later at Kabul Airpatch.

The safe-sex prophylactic to keep your barrel clean.

I saw a horrendous amount of waste over the fence up north. Frequently, we ran out of cargo chutes to drop pallets with chickens or pigs or .30 cal M1 Carbine ammo. The ammo we didn’t kick out. We had to land and unload it. The chickens and the pigs had to learn how to fly and they weren’t very adept at it. I guess that where the old tag line- “Pork. It’s what’s for dinner” came from. The Meo never complained. They just had to rearrange the dinner menu on Mondays and Thursdays when we were out of chutes.

Those smaller chutes were also good as makeshift body bags to transport the recently departed back to their home of record for burial. In addition to 450 Kip per month, they got the full meal deal-a burial plot and Taps if they were unlucky enough to run into some of that Pathet Lao “microaggression”.

When my son reached 18 or 20 in ’08, I finally hit 100% Permanent and Total. Buckwheat became entitled to Chapter 35 DEA college benefits on VA’s dime. It suddenly began to dawn on him this largesse came from my service. He began to ask all manner of questions about the War and my part in it.  I’d never told a soul all those years in between-not even Cupcake. Nobody was much of a history buff when I returned in ’72. Cupcake’s dad was the same way following WWII. He never discussed it with his family either. The most I ever got out of him was that he’d gone ashore in the second wave at Omaha Beach in June 1944 and went from Corporal to 2nd Lieutenant in less than 90 minutes. End of story. Nothing much to see here. Move along.

My Uncle Jay was captured at Corregidor and did the 67-klic fun run up to Camp O’Donnell with a round through his ankle. All he’d tell me as a child was they had to drink each others’ urine to stay hydrated. He escaped three times in his 3 and a half years there. That explained the three fingers missing from his left hand. He said little else about it. After Vietnam, it all made sense to me.

My son kept at it and asked me quite frankly if I’d ever seen dead Pathet Lao soldiers. Then one day if I’d ever seen dead American soldiers. And finally a year later if I’d ever killed anyone in those two years. I recalled what one of the more gung ho pilots I flew with once said.  My reply was “The first one will cost you, son- you’ll burn in Hell. Fortunately, the rest are free.” I left it at that. If I knew, I might get PTSD.  Having a 40% casualty rate puts a damper on small talk. Truth be told, I was too busy to ever count when we did the bomb damage assessments after each pass. What possible good would it do to know? It reminded me of the Roman Colosseum and the Gladiator era-Lions 5, Christians 0.

So, here we are fifty years later and engaged in the same tom foolery of abandoning our military assets- and often our own citizens- and bugging out. We’re no better than the ARVN in the last days shedding their uniforms and boots and leaving the civilians to fend for themselves. On numerous occasions, Cupcake has remarked that she is relieved that her Dad isn’t alive to see what has become of our beautiful country. I feel the same. While we may have come in second place in RVN, I feel we kept our pride and professionalism. I’m sure all those folks who served in Iraquistan have similar sentiments.

We don’t do politics or religion here at asknod. We help Veterans. But at some point, it would seem that our Government would start helping them too. Golly. If they did there wouldn’t be any need for all of us litigators. Considering the Veterans Administration has been around since the Revolutionary War in some iteration or another, you’d think they’d have this cat in the bag by now. Oddly, with every new war they create more Veterans and have less money for them. But boy howdy, look at the VA rosters and they have Yoga instructors now. If you’re feeling stressed out from 0900 to 1000 hrs, you can do stress reduction classes with Lisa on Zoom right there at your desk. Yeppers. She’s a GS 12 and probably is pulling down $82 K/year. Johnny Veteran is pulling down a 70% rating without TDIU = $1804/month or $21,648/year. But wowser-he gets free VA medical and acupuncture for his chronic back pain instead of oxycontin. The yoga classes, however, are reserved for those needy VA employees.

May 7 should be Vietnam Remembrance Day. VA recognizes the period of 1/09/1961 to 5/07/1975 as the period of war. Where in Sam Hill did March 29th come from? Was it a leftover or did they usurp National Butterfly Appreciation Day for it? Whoever’s in charge of handing out days stepped on their necktie. Considering there aren’t too many of us left who were there, it seems we’d get a vote on the subject. I think I speak for all Vietnam Vets when I say we’d be happy to give it back to the Butterfly enthusiasts when we’re gone.

What the hey? In 20 more years, there won’t be any of us Vietnam Vets alive anyway…well, with the exception of all those VFW combatants who insist they were SOGs and sailed up the Mekong in a Destroyer on a secret mission. Ask them which fork of the Mekong and they’ll give you that 1000-yd. stare. It’s priceless. Gosh, you mean there’s more than one? Who woulda thunk it?

I thank all of you who did serve there. I just think we deserve to own this day as much as anyone does. We have VE Day. We have VJ Day. We celebrate the 4th of July as the birth of our nation. I guess the Big Guys in DC aren’t too proud of  screwing up and prefer to disremember some of our peccadillos. What we don’t have is RVN Day. Maybe it would help us to avoid more of the same in the future. And that’s all I’m gonna say about that.

Posted in Complaints Department, Food for thought, Vietnam War history | Tagged , , , , , , , , , , , | 3 Comments

HLR–BUILDING AN IMO FOR THE FUTURE

Posted on May 2, 2023 by asknod

I finally won a TDIU for a Vet I’ve written about many times. He was riding shotgun just south of Quan Loi in April ’71 when the Zipperheads command-detonated a monster IED in the road. They were Number 2 in the column and the explosion not only blew their 18-wheeler off the road completely but cut the column off from the lead gun trucks. The rest of the vehicles in the convoy were trapped behind the hole in the road-and it was a daisy. It must have been at least a 250 or 500 lb. MK 82 dud. It plumb messed up  the driver and threw Stuart and his pig clear of the cab. He woke up a few minutes later and dragged his buddy out of the cab which was now almost fully engulfed in flames. And then the shooting began in earnest.

Stuart got a Purple Heart for this. He also got a raging case of TBI with a side of bent brain that never resolved. A week later, he had to report for a toothache and one of his best friends took his place on another convoy. Best Friend was picked off by a sniper and Stuart has been living with that for the last fifty four years. I know exactly how he feels but don’t feel like talking about it any more than he does. It leaves a hole in your mind- the what if… syndrome. The guilt is overwhelming at the time and will never resolve. I’d say whoever says time heals all wounds never was in combat.

So I was appalled over the last five years of repping him that VA just flat out dug in their heels and gave him the bum’s rush every time. No matter what I filed him for, it was always “What part of ‘no’ don’t you get, Graham? I finally was able to get my foot in the door with the TBI by showing these dicks what combat looks like close up. Stuart had pictures of the event.

I edited them and inserted  type-face to identify the  event… and bingo. I resubmitted them as a supplemental claim with a 4138 and VA went back and looked at his STRs. Sure enough, he’d reported to the field aid station for the gash on his head and a ‘scrip for Valium to take the edge off his bent brain. In war, you don’t get to yell Olly Olly In Come Free. Each night begins a new day. All 365 of them.  You strap on the airplane every morning and fly over to kill ’em right back. You get even in your  own mind… until the next friend is KIA. Pretty soon, you quit making friends. Too bad your brain won’t quit making nightmares.

After winning the TBI and headaches, I tackled the Bent Brain syndrome. You’d think with a PH, this would be a cake walk. Well, not exactly at VA. They don’t do cake walking. Apparently, he didn’t measure up. Stuart’s old world. He showered, shaved and put on his good suit to go to the c&p. He dutifully answered all the questions truthfully and tried to rein in his emotions. I get that. Nobody wants to appear like a weak-minded pussy. Men are strong. They don’t cry in public. Or at least those of us who have seen shit we wouldn’t even tell our wives about don’t. The shrink said he had some issues but boy howdy they sure didn’t involve Quan Loi and sent him packing.

Shucks. That flat ass pissed me off. I sought out my specialist psychologist in PTSD and had her do an extensive workup on him in a Zoom call. Sure enough, she dx’d him at 70% and listed a litany of issues the VA shrink blew off as him faking it. That tells me a lot about VA medicine. I’ve spotted this phenomenon frequently. The reason most Vets are denied for PTSD is simple. They dutifully attend these Vet Center Kumbaya meetings and the Kumbayameister with a bunch of initials after his name-none of which say Psy.D- tells you that you have the depressive disorder. You file with it and get the denial that says “Unfortunately, you lack a diagnosis of PTSD.” WTF, over? Your Kumbaya dude already dx’d you with it, right? What happened?

Welcome to the “you can’t get there from here” club. VA has fenced you out unless you want to go off the c&p reservation and get a truly independent opinion from a non-VA expert in bent brains. You will never get that diagnosis once you’ve done the c&p and been identified as someone who has bent brain but it isn’t service connected. They’ll tell you you were abused as a child by your father and that caused it. What the hey? When you had your c&p, they asked you all about your early childhood before military service. You gave them the ammunition to shoot you down.

I can show you a thousand PTSD DBQs that all read the same. “Vet has a megacase of major depressive disorder stemming from events (before) (after) (choose one) service.” With Stuart, I was flummoxed. He had the PH so he should have been a shoo-in.  This is what made it so incredible to see him get shitcannned.

After I filed him this time, the VA pukes came unglued. Sorry Charlie. We don’t accept private IMOs from Vets. It has to be one of our own who decides if he has a psychosis. Well, yes that’s  true. But in the real world of winning VA claims, once they deny you, going off the reservation to get a real independent medical opinion is the only way to win. Why VA raters say otherwise is simple. They have an agenda. If you believe them, you lose. And you’ll keep on losing if you keep sending in “proof” that you have it from folks with MSW, MHS, MHW and about a hundred other cute acronyms which don’t include Psy.D or Ph.D or whatever.

 

The same thing applies to TBI. You need a neurologist to say you have it. A regular doctor with MD or GP after his name doesn’t have the finesse VA neurologists have to deny you. Besides, you may have sought out one of the doctors on VA’s Shit list of bogus IMO people. In that case, you’re doubly screwed because then you get the moniker “faking TBI” added into your file. Credibility is your currency in trade. You never want to be branded as a fake. That’s one of the biggest claim killers in the book.

Now, the subject line of this blog is important. When your private Psychologist or Psychiatrist does his/her assessment on you after your denial, they get to write up a DBQ . Certain parts of the document are going to be the quintessential elements that determine a) service connection and b) how high you’re rated. VA doesn’t advertise what they are. Shoot. Neither do the shrinks. It’s secret squirrel shit as far as I can tell. So, I’ll take you on a tour of the document. Here’s a 100% rating for an example. This Vet is purely a MDD claim for depression due to his blindness. If he had a TBI comorbidity, it would endorse that, too.

MDD DBQ for A&A

Note that part 3  on  page 3 where I highlighted it. Each box from “no mental disorder” to “total occupational and social impairment” is a percentage. No MDD means denied. Each one after is the rating from 10 to 100.  Now scroll down to page 6 of 8. Note in Section III SYMPTOMS, it says “for VA rating purposes, check all symptoms that apply to the Vet’s diagnosis.” Certain of these symptoms will determine if you get 50, 70 or 100%. In addition, if “intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene” is checked off, it means you need aid and attendance.

I don’t know why others who write VA blogs like mine don’t reveal this information. The VA tells you in §4.130 in haec verba what they use to determine the ratings percentage:

VA PTSD ratings 

100%

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

70%

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

50%

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

30%

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

10%

Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

0%

A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.

The regulations say you must suffer from some –but not necessarily all- of the symptoms listed for each ratings % in order to receive that ratings %. See? That wasn’t so hard. But be forewarned that you aren’t going to get away with blowing smoke up the psychologist’s butt. They have many ways of cross-testing you as a quality control check to weed out the fakers.

And now for the clincher. When I have a private psychologist do my IMOs for my client, I ask them to include a synopsis on what his or her employment future looks like based on the diagnosis. Can s/he still work? Can they function well enough to sell time-share condos from their own living rooms and make $12,000 bucks a month in a sedentary physical work environment?   Or might they be prone to explode and to tell a potential customer to f— off and die because they (the potential customer) didn’t want to buy the condo?

By prepositioning this information into the IMO, you solve the next problem. If your Vet is only 70%, VA isn’t going to get all warm and fuzzy and grant TDIU. They’ll say he has a dynamite future in real estate and can still work. With Stuart, I had my psych add in what appeared to be an innocuous statement saying  he was trained in welding and did that for 30 years. Then his significant other came down with cancer so he switched over to the role of caregiver until she died. And, outside of that, his employment potential was now nil.

When I got back from DC and Orlando, I had the HLR informal conference with a 22-year retired Vet and DRO. He said he just didn’t see enough in the file to warrant TDIU. I pointed to my Psych’s comment saying he was never going to get rich in real estate. Bingo. TDIU. Of course, the Purple Heart didn’t hurt nor did the TBI shit.

redact RD 4.26.23

redact Code sheet 4.26.23

I use this technique with other IMOs where I ask the IMO author to opine on other residuals of a disease like Hepatitis C. Those of us who were early users of Interferon come down frequently with DM II and a host of other shit. I have the author connect these to the disease  process and then file later for them and reuse the IMO a second time.

I don’t charge for my knowledge. I don’t monetize this game. I help Vets-just like they’d help me if the shoe was on the other foot. Welcome home Stuart. I’m sorry it took so long. And that’s all I’m gonna say about that.

P.S. Resident 51st Inf. LRRP Edd sent me this. Ouch.

Posted in PTSD, TBI, TDIU, Tips and Tricks | Tagged , , , , , , , , | 1 Comment

EXPOSED VET RADIO SHOW THURSDAY–4/27/2023

Posted on April 25, 2023 by asknod

John emailed me last night and asked if I was over my jetlag yet. Heeeeell no. I woke up this morning at 0400 and was up and at ’em. It’ll abate but I’m headed back to DC on July 11th for my long-awaited Greenhouse hearing. I filed for ILP on May 18th, 2011. The Judge granted it in June ’16 and the VRE Bozos reduced it down to the size of a shoebox with visqueen walls, a 60 watt bulb and a water spigot sans sink. But that’s not what we’re gonna dwell on come Thursday night. 

I’d like to talk about some of the news from the legal conferences I just attended in Orlando. It was the biggest shindig they’ve ever done. It was both live and virtual for those who couldn’t be there in person. Could be having Disneyland next door was a bit of an attractant for some of them.

Anyway, we’ll do some case dissection of some of my recent stuff and some of the new legal tricks we pick up. VA law is not like any other kind of law. Going to college and getting a JD is valuable, I suppose but it’s expensive. Once you get the degree, you have to learn a completely different set of statutes and regulations from scratch. Agents have to learn it, too-but before they get their wings. Attorneys get to do OJT immediately with no knowledge whatsoever. Scary huh?

The Show is Thursday night at 1900 hours on the East Coast and quite obviously 1600 Hrs out here in the wild west. The call in number is still

(515) 605-9764

Via computer, follow this link.

https://www.blogtalkradio.com/jbasser/12221049/connect/ee205c90596885cd3dd893c1c331ea45f983ea0a

We hope to see you there.

Posted in Exposed Veteran Radio Show, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 3 Comments

BVA-§3.816(c)(1)–BENDIN’ ATOMS DOWN IN BIKINI

Posted on April 24, 2023 by asknod

Once upon a time down on a peaceful Pacific Island, the US Navy began testing a-bombs. My Vet was there (Johnston Atoll) standing on deck at parade rest (as ordered) in April ’62 to observe and, unbeknowst to him, being used as a human radiation dosimeter along with all his buddies. That title might seem incongruous as applied to a presumptive claim for an AO story but bear with me until we reach its final chapter.

Notice the “dead ” areas adjacent to the hardstands?

Doug was a trooper. He served proudly from ’59 to mid-’62 and then the bug bit him to do the whole 20 years. He came back that same October and pressed on until ’77. By then he’d also seen two tours inside the 12-mile limit off the coast of ‘Nam, too. Back then, if you weren’t boots on the ground, you never got to see the extraordinary effects of Agent Orange and it’s sister flavors. I reckon most of us who were there thought this new herbicide shit was totally awesome. No mosquitoes or spiders for a while. No red biting piss ants. No snakes or those 4 foot-long centipedes. The monkeys disappeared along with the tigers and pretty much everything else alive, come to think of it. Oh yeah. And the vegetation, too. Add a side of liquid sunshine and a couple five 1000 pounder MK 82s and the land around you resembled the moon-devoid of life.

So, along about ’87, Doug noticed he had myelodysplastic syndrome…bad. And then the MI hit (myocardial infarction)-i.e., heart attack. They air-evac’d him to a hospital licketyspit, cut him open like they was gutting a deer and triple-stented him. Doctor Doug had this all figured out. He was convinced it had a lot to do with bending those atoms down in the Marshall Islands in ’62. So much for his medical training. But each and every one of those filings-including hypothyroidism- would just happen to eventually become recognized herbicide presumptives.  If I was a betting man, I’d give even odds that it was just as equally related to the radiation, too.

About 2002, he started getting angina and SOB (shortness of breath). He was skinny as a rail but suddenly was dx’d with the diabetes. Then his left venticular ejection fraction sank to 30%. Then he started getting peripheral neuropathy in the lower extremities. Depression set in and Winky quit working. Doug decided to call in his marker from back in ’59 when he held up his right hand in marriage to the Squids and said ‘I do’. He filed his 526 and averred it was all due to Operation Dominic.

I guess I don’t need to cut a passel of trees down to go into detail on the denial. Suffice it to say that went over like screen doors in submarines. By now, Doug was getting mighty peeked in the gills. His check engine light kept coming on. He was out of gas and reduced to doing much of anything in the way of work except for making these beautiful wooden boxes with the different seals of the five branches of service. They were truly gorgeous and I considered myself lucky to own one.

Fact is, his daughter was one of my Cupcake’s real estate agents. Cupcake kept pestering Janine (not her real name) to get Doug to come see me to file for what was virtually guaranteed Procopio stuff. He told Janine they’d served close enough to ‘Nam to do fire missions from their destroyer. Finally, I went to see him in ’20. His wife had pretty bad COPD after 35 years of Marb reds and he had to do all the house chores. She was weak as a kitten and on oxygen. I mean to tell you he wasn’t much better though.

Foxtrot 6 Actual. Call your smoke over

I got the lowdown on the ship info from him to look it up. In fact, my friends at CCK have created a great website to identify entitlement to Procopio claims here-https://cck-law.com/blog/list-of-blue-water-navy-ships-exposed-to-agent-orange/ . I put it at the top of my blog above in the Widgets section. Sure enough it said he had a shit ton of sailing time inside the line spread over several destroyers so that box was checked. Too bad it took the VA nine months to retrieve those same ships’ logs even though I told them where to look. I swear sometimes it feels like I’m dealing with the shallow end of the dry lake bed of the gene pool for intelligence here.

Finally, in late September of ’20, VA cut the paper but did something I least expected. They did a retrospective Fenderson staged ratings based only on the records we’d been able to recover. No c&p exams- just a chainsaw Fenderson rating that looked like a roller coaster on a graph. 10% from ’02,  30% six months later (’06) and then 60% a year later for the IHD and then back to 30% for 8 years from ’06 to ’15. Then 100% for a year and then back to 60% for three more.  WTF, over? The DM II? Why, 20% and 10% (for just a year) for the PN in the lower extremities. They denied the erectile dysfunction and failed to even mention the bent brain syndrome secondary to the IHD. Finally, after more ups and downs, they granted 100 for the IHD in ’19 when his LVEF sank to 20% and stayed there. From where I stood, it looked like if it wasn’t for bad luck, ol’ Doug wouldn’t have no luck at all in this VA poker game.

I pointed out the obvious. What about 2002? Just because the Dougster didn’t attribute it to herbicides in ’02 didn’t mean it was dead in the water for Nehmer purposes under §3.816(c) now. VA acted like they were ignorant country bumpkins and allowed as they musta overlooked that and were plumb sorry they missed the fact… large as life and twice as natural right there in VBMS. Yeah. Right. But, being exceedingly generous, they had munificently given him 40%…which just happened to keep him out of range of his  DFAS retirement money until 2019, too. Missed it by thaaaaaaat much, Doug. Piss poor luck. What?

But thanks to Under Secretary of VA Allison Hickey and the modern marvel of VBMS, I had spotted that MDD diagnosis earlier and decided to play country bumpkin, too. The doctor had been anally specific and wrote it up as being 50% disabling due solely to his IHD under Part 4 of the VA’s schedule of rating disabilities (the VASRD). The Boys down at the corner RO didn’t like me springing that on them and denied it. It took a bit of arm twisting and an Advancement on the Docket at the BVA to get it SC’d. Effective date? Why shucks, 2021 of course. We made a u turn and quick like a bunny rabbit doubled back to DC to get it retro’d back to 2002. Sure enough, the VLJ agreed a disability secondary to a Nehmer disease was… wait for it… a Nehmer disease too. Of course, this was Dick Tracy 101 but VA was stonewalling the inevitable. Bingo. It was DFAS time.

This put ol’ Doug in the catbird seat and his 40% jumped to 80%. His DFAS avalanche had finally come in. But VA wasn’t having any of my TDIU argument back to 2006. No way, Jose. Try as I might, I couldn’t dynamite them out of that denial. They were digging in. They wouldn’t even entertain a extraschedular review back to Tom Murphy at the Director of comp. and pen. And that’s where matters stood on September 21, 2021 when Doug’s heart  finally went tits up.

I threw in a HLR just for shits and grins but I could tell it was futile.  The HLR booth bitch was as cold as a mackerel and had the denial published in VBMS in a record 28 minutes. So, never having been taught the definition of the term ‘defeat’, I armored up and went to my favorite Nexus letter factory. No, silly. Not Doctor Bash or VA Claims Insiders. We’re talking the Jedi Masters of the IMO- Mednick Associates. As if this story wasn’t incredible enough, these chuckleheads established the EP 040 claim on August 15, ’22 and had it denied by the 29th. Amazing. These DROC folks thought they were Smokin’…. as Jim Carry was prone to say in The Mask.

redact 8.29.2022 redenial of IMO info for 2002

redact 2022 final CS

Apparently, these GS 14s had their marching orders from Day One back in ’20. The  8/29/22 denial was a hoot. Every finding in the IMO was new but not relevant. Every c&p retrospective they’d cranked out said our IMO dog wouldn’t hunt. So, once again, it was off to the BVA in search of a friendly ear… which is what occurred on Thursday, April 20th while I was busy learning my ABCs of VA law in Orlando. VLJ Mike Skaltsounis, after mulling it for several weeks, arrived at the definite conviction that somebody was funnin’ him and it wasn’t me.

He gave us exactly what we asked for and what I knew ol’ Doug was entitled to- TDIU back to March of ’06 and SMC S from ’15.  Shooooooooooooooo, doggies. This appeal was more fun than Nape and CBU 26/49 at 0730 when Captain Charles was just rising and making his tea. Forty minutes later them delayed CBU bombis would begin to light up all over again.  Sorry. I’m not allow to keep my membership in a certain Veterans legal organization if I use contemporary pejoratives synonymous with nasty racist connotations to describe the folks who were shooting at me and trying to kill me every day for two years.

Doug can rest easy now up there in Heaven. I promised him back when I started that even if he augered in, I wouldn’t give down on him until I had this in the bag for the better half. And here we are. Mission accomplished. I guess it’s time to start looking for another client now that Doug’s file is ready for the archives. If I wasn’t a lost soul, I’d think it’s proof of a Higher Being looking out for these folks.

Reminds me of the lyrics in The Last Trip to Tulsa by Neil Young where he sang “They gave me back my house and car and nothing more was said.” Here, they gave Doug’s wife back her life in some small measure after they drove her husband to the grave with stress. This sucks. Which is why I do it. Somebody has to.

redact BVA decision 4.20.2023

redact RD 4.21.2023

redact 2023 final CS

P.S. Here’s to International Women’s Day from our resident LRRP humor supervisor.

Posted in Agent Orange, BvA Decisions, DM II, Independent Medical Opinions, TDIU, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 2 Comments

LEAVIN’ ON A JET PLANE-IT’S CLE TIME

Posted on April 16, 2023 by asknod

CLEs are “continuing legal education” credits we are required to obtain in order to keep our license to torture the VA. As for the song, I sure ain’t planning on walking or paddling to DC or Orlando. That’s for gyrines, groundpounders and squids. No sir. I was born into the Air Force. My dad was a full bird Colonel in Korea when I happened in ’51. I learned how to fly a Cessna 140 sitting in my daddy’s lap when I was ten. None of that rotary wing shit either. 

CLEs are measured in hours so it takes a while to earn them. Three days of it and you’re good to go for another two years but VA law doesn’t cease and desist in those two years so you need to attend more frequently in order to keep your game up. Which is why I go twice a year to keep the brain muscle working. Well, that and to break bread with old, dear friends and my sensei who introduced me to the VA poker game.

As luck would have it, the BVA Gatekeeper over at 425 ‘I’ Street scheduled a hearing for April 19th for one of my troops. I’ve been waiting for this one since April 18th, 2019. Mr. Thomas Williams, in charge of BVA central office hearings, probably had no idea the NOVA conferences were beginning the next day in Orlando. How cool is that? My client gets a free half-trip ticket to DC.  I expect Thomas is going to be seeing me more and more frequently. My greenhouse hearing has finally popped up for June so I’ll be busy racking up my frequent filer miles.

The fall conferences are scheduled for Fort Worth this October. I’m looking forward to that. I don’t know what it is about Texas but I have more Vets from there than anywhere else in the country. I love to finally meet some of them and shake their hand.  On top of it, I’m planning on hunting feral pigs south of there when the conference is over. There’s an outfit with full auto 16s and choppers who’ll give all you Air Cav troops the thrill of your lives again. Too bad they’re not using Hueys. It ain’t cheap and they use mini-choppers that look vaguely like loaches. But for a few thousand more, they’ll set you up with a pig mounted on a pintle and 2,000 rds of 7.62. I hope they figured out the trick with the peach can under the infeed.

My (now) P&T Silver Star Lurp Ed, who drowns me in questionable humor, sent me this link with tons of great statistics and actual valid numbers concerning the Southeast Asia boundary misunderstanding of the sixties.

https://www.uswings.com/about-us-wings/vietnam-war-facts/

According to our government, 2,709,918 Americans served in uniform incountry in Vietnam.  This required actually wiggling your toes in that skanky red clay for 24 hours or more. If you thought Georgia had a lot of red clay, you ain’t seen shit. Imagine a whole peninsula made out of it. In monsoon, you grew 2 inches taller with it always stuck to your boots and you blew out red snot throughout the dry season from all the dust. I’m not sure how they’ll incorporate all the squids into the above number who joined after they added the Blue Water folks after Procopio. Shoot, maybe the 2.7 mil above included them. Seems I always recalled it was 2.3 million all these years. And please, no offense to you folks who only served out there within the 12-mile limit, but it was a slightly more emergent event when Captain Charles dropped in to pay his respects at 0200 when you were snoozing.

 One statistic, with allegedly valid numbers, was the 1990 census answers on how many of us were still alive-1,713,823 souls. I hight one. What’s incongruous are the numbers of Vets (denizens of VFW bars, no doubt) who disremember where they were between 1961 and 1975-nine million, four hundred ninety two thousand, nine hundred and fifty eight of you to be exact. That’s a little more than a rounding  error even if you were to round it off. It gets worse. The 2000 census had even more liars. That Census count ten years later reflected the number of Americans falsely claiming to have served in-country had grown to 13,853,027. Relying on this later number means 80% (4 out of 5) of them (11,143,109) are liars. Whiskey Tango Foxtrot, over?

9,492,958 (1995)

-2,709,918 (1975)

____________

6,783,040 =Veterans actually pulling your leg about serving there (in 1995). If this were true, America would have experienced a decrease in births for the same decades. We talk of Stolen Valor often but this gives it a whole new depth and breadth. Nobody, in their wildest dreams or nightmares, could suffer a year’s schizophrenic delusion or coma and wake up convinced they had endured 365 wakeups. That’s what DD 214s are for. They also show your medals that prove these things. Granted, some of us have to go get a DD 215 to correct the errors but no one can obtain a new one with medals they didn’t earn.

So, now that you know that 6.78 million of your fellow Veterans ((11,143,109 in 2000 and growing) are liars, aren’t you going to feel stupid gladhanding all these guys with black motorcycle vests emblazoned with all manner of patches attesting to their faithful service in places such as Cu Chi or Phan Rang? Wouldn’t you feel more comfortable asking to see their 214s? As President Reagan said, “Trust. But Verify.”  Write down Qui Nhon or Quang Tri and ask them how they pronounce it. It’s a great way to separate the ribbon clerks from the poker players.

What I find interesting-perhaps pathetic- is why a real Veteran who served in Germany or never even left the States would feel the need to embellish his record. Isn’t it enough to just have served? I sure feel that serving in any capacity is one hell of a way of showing your commitment to patriotism regardless of where you did KP or picked up cigarette butts. I’ve represented Veterans who only served 43 days and have the same respect for them as any LRP -or one in a ‘Studies and Observation Group’.

Think about what I’m saying here. According to the government and USAA insurance actuarial tables, there were only 750,000- give or take 10 K- even still alive back in 2008 when I first started investigating the actual number who served.  Given I’ve buried (figuratively) about 25 of my own clients, not including my father, I’d have to surmise that number has shrunk dramatically rather than grown.

 Every year across our fruited plains, they have Veterans Day parades and they trot out some old boy who served in WWII or Korea. Those guys are veritable antiques and most are driving a wheelchair. I even remember a guy in Albany Georgia in 1954 who claimed to be a Confederate War Vet. He’d joined when he was 14. Seems that would have made him 103 at a minimum. Granted, they’re rarer than hen’s teeth. So, by the same token, by now-2023- that 750,000 number must have really decreased.  I’d be surprised if it exceeded half that number today. Agent Orange is a very harsh taskmaster.

 

So, all you real Vietnam Vets-and you know inside who you are- ought to begin asking some hard questions about all this. For those of you who belong to Veterans Service Organizations, I suggest a review of your membership if you really want accurate statistics. Don’t depend on a show of hands. I’ve been seeing some reports of Post Commanders up in New Jersey being outed as not even being in the military whatsoever. The days of taking a fellow’s word about his bona fides is sadly a thing of the past.

I reckon by 2050 or so, there are going to be 16 million who served incountry and boy howdy keep your eyes peeled for the number of troops who single-handedly took out a whole battalion of Al Quaeda Taliban in Iraqistan with only one magazine in their SAW -but the govt. lost their records and they never got their medals. Tall tales are like weeds if you let them fester. The good news is that if this keeps up, they’ll never run short of Vietnam Vets for Veterans Day Parades. Sadly, you’ll never see me in one. I’m not a parade kind of guy. I’m plenty proud just to be an American citizen.

And that’s all I’m going to say about that. See you in Orlando next week.

 

Posted in Food for thought, Stolen Valor, Veterans Law | Tagged , , , , , , , , , , | 4 Comments

HLRs–THE DOUBLE HEADER ( SMC)

Posted on April 8, 2023 by asknod

I wonder how many of you-both litigators and pro se Veterans- have ever had a double header HLR informal conference. You heard me right. I had a HLR on Thursday morning last with DRO Loralie. Forget she was 15 minutes late and accidentally called the Veteran instead of me. She got it straight after I emailed and asked if we were still on. Seems there’s a two-hour difference between Houston and Seattle. Whowouldathunkit? I laid out my case for Aid and Attendance and threw in at the end that the Akles rule (SMC requires no claim) is for application and, if  by chance he was granted a&a under SMC L, then the Secretary would have to equally entertain a claim for SMC T due to his bodacious 100% PTSD/TBI under AB v Brown (Vet seeks highest and best rating and the claim remains in contention until that happens). Loralie listened to my whole spiel, said she’d review all the legal points I raised, the evidence I pointed out and would make a fair and equitable decision. Yeah. Right. The check’s in the mail. We hung up.

The phone rang about an hour later and I promptly entered the VA déjà vu Twilight Zone. Loralie cheerfully identified herself (again) and then tossed the proverbial gender reveal hand grenade. She said she wasn’t trained on TBI and therefore this whole HLR gig had been an exercise in futility. But what she followed with was the illegal proposition as to how we might still salvage it and make the Vet a chicken dinner winner.

 

How many of you have been told/warned or admonished by your VSO that if you keep filing for disabilities after you win a pittance like tinnitus, you run the risk of having your ratings reduced because of your greed? I heard this for the first time from my DAV rep in ’89 after I got 0% for tinnitus and a matching 0% bookend for hearing in my left ear only. I followed the advice to a ‘T’ until 1994 when I began to get sick from Agent Orange shit. If there is any truth to it, I shouldn’t have two 100% schedulars and SMC S.

Lori offered me a Faustian bargain. Take the chance with her as the reviewer on winning the A&A and shut the f–k up about SMC T or…  I could opt to hold a brand new HLR tomorrow with her boss Natalie who was authorized to hear TBI HLRs. However, (pregnant pause) my Vet Donbo stood an incalculable risk inasmuch that he might have his ratings reduced and boy howdy you don’t want to go there now do you Mr. Graham? I thanked Loralie for her generous offer, promptly opted for the latter and eagerly awaited my new RVSR HLR yesterday morning. I wasn’t disappointed.

Sure as the sun rises in St. Pete, Natalie called (on time) and announced she was ready to rock and roll. Don’s case was like coming to a rocks, paper, scissors game with an M16 to me.  Donbo is on the VHA’s PCAFC caregiver  program. His wife has to help him bathe, toilet and prepare meals. She has to supervise his medications and protect him from himself and others. The beauty of it was it was all laid out right there in glorious color in his VAMC medical records. The VHA home visit Nursey nurse actually stated in haec verba he could be left home alone unattended for up to two hours. His anger management coping skills were sub par so he had to stay heavily medicated and he gave up driving years ago due to syncope at 65 mph on I 95. Of course, the VBA’s files said he was homeless in the past and lived in his car so he must be lying about that driving story. So much for dredging up negative evidence, huh?

To me, the picture was one of clear cut entitlement to a&a. In fact, he even had another VAF 21-2680 in the cfile from 2016 that essentially said the same thing verbatim-by the same doctor (his neurologist) who authored the latest one. The rating decision was typical Adobe 2.5 Pro Denialbuilder™ complete with dangling participles. Sorry Charlie. Uluz. No explanation as to how he was supposed to win it as required by law -§3.103(f)(5). Just the TY4YService, chump. What’s worse about this is the new AMA statutes specifically state if you pitch a bitch about getting shortsheeted and seek a higher rating at a HLR review, that VA is prohibited from readjudicating it and coming up with a lower rating. Turns out maybe Loralie speak with forked tongue.

I’d done some extra speshull VBMS dumpster diving and discovered that my boy Donbo had been sent to the Marines’ Brain Trauma Recovery Intervention Program  to- in USMCspeak- “learn compensatory cognitive strategies to help alter his memory and cognitive/coping skills post-blast exposure and teach him sleeping techniques to aid in  improving his chronic insomnia.” Apparently, it was unsuccessful and they decided the Donmeister couldn’t play GI Joe© anymore. They gave him “early retirement”. That flatass effectively ended his 20-and-out employment plan prematurely.

At the very end of the HLR, I pointed out that the Donster had a Combat Action Ribbon and that they didn’t hand those out in Crackerjack® boxes. His MOS was 0331 machinegunner. A CAR (or anything like it-e.g., a Purple Heart) means you can tell the VA what happened to you without supportive STRs. Unless they can come up with clear and convincing evidence that you’re a lying sack of shit, they have to buy your version of what is wrong with you. In the legal world, clear and convincing evidence dang near has to be news and film at eleven proving your version is incredible. It’s a higher legal standard of evidence- higher even than clear and unmistakable evidence needed for a CUE. Shoot. In my book anyone willing to fight (and die) for some sand rancher’s real estate deserves to be believed. It’s a worthy thing to fight for one’s own freedom. It’s a sight finer to fight for another man’s. I didn’t say that myself. I merely quote the brave man who did.

That DonVet needs a&a is unarguable. His entitlement far and away meets the “reasonable minds can agree” test.  It’s more obvious than that skanky, green wart on the nose of the Wicked Witch of the East of Oz fame. They’re saying he’s SMC S and housebound… but he shouldn’t be left alone for more than an hour or two? Are they worried he might order $10,000 dollars worth of Chinese food from Doordash™ on his spouse’s Amazon account or is the concern that he might suck on a lead lollipop?  There’s a big difference between housebound and needing lifesaving supervision. A very big difference.

I pointed out to Natalie the Naysayer that we were merely going through the obligatory gestures of crossing the HLR ‘t’s, ‘b’s and dotting the ‘i’s on our way to the BVA to ensure the Veterans Law Judge could see through this charade.  One thing I’ve learned in SMC bargaining is never beg. Go big or go home. Never ever meet them half way and accept a lesser benefit than that owed. It makes you look like a pussyfooted Snowflake. When you lay your cards out on the table and admit that you really don’t give a hoot how VA rules on this because you’ve been doing SMC for umpteen years and you welcome judicial review, they become horribly insecure. About that time, you begin to discern a note of doubt in their voices and a willingness to concede “that it appears” your guy may be entitled to a bit more than housebound. Natalie’s actual mea culpa was “It appears that previous reviewers might have missed that TBI clinic info.”

I’ll give you a good cite I always whip out during any discussion on whether SMC can be awarded, or, in this case, which disease/injury is responsible for the need. That’s just a smokescreen I encounter on all these denials.

Delineating the difference between PTSD and TBI is unnecessary as the sum of these SC (service connected) comorbidities unequivocally shows the Veteran cannot accomplish the activities of daily living. This is the correct legal standard of review under §3.351(c)(3)- not which SC disability is responsible. See Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir. 2018) “We have recognized that the word “disability” refers to a “functional impairment, rather than the underlying cause of the impairment.”   

When you spring that one on them, here’s what happens. Busted, dude. Saunders is mentioned in the M 21 so they aren’t strangers to the precedence:

Redact new HLR 20-0999 4.7.23

VA has taken denial to a glorified art form but not so much with SMC. They don’t understand SMC. It’s Greek to them. What’s worse is the M 21 is replete with errors on the subject. Learn how to read through the denial and see the truth and I guarantee you’ll always prevail. Crusaders were fond of screaming at the beginning of their charges against the Heathens ” Onward for King George. God sends the Right!” So far in my VA law travels, I have yet to meet the Veteran who wasn’t entitled to that for which he asked. In fact, most Vets err to the low side to avoid looking greedy. Thank VSOs for that faery tale.

But, because I’ve been hornswoggled once by a Vet with two 214s (with one OTH), I vet the Vet. It might sound discriminatory to some, but I prefer my post-Vietnam Vet clients have a combat medal before I’ll take their POA. Having served in that theatre of war, I’m all too acquainted with the trials and tribulations we endured in Vietnam-and especially Laos. On the other hand, I’ve observed REMFs like my shirttail cousin Senator Linsey Graham who come home from Southwest Asia dripping Silver and Bronze Stars and other medals who never heard a shot fired in anger. That bugs me. It cheapens the meaning of valor.

Anyway, Happy Easter or whichever Happy you celebrate this weekend. God does send the Right. I know. I was Right once-or so I was told. That’s all I have to say about that.

P.S. Late-arriving humor from LRRP Ed 51st Inf Co, F.

Posted in Combat Presumption, Higher Level of Review (HLR), Reductions in rating, TBI, VBMS Tricks | Tagged , , , , , , , , , | 6 Comments

R1–WE’RE GOIN’ UP AROUND THE BEND

Posted on April 2, 2023 by asknod

Great song. My pilot in charge (PIC) had a battery-powered GE tape recorder with the little 3-inch reels and a penchant to play songs while we were taxiing out to take off from Alternate in the mornings. He swore it calmed him down. After takeoff, the roar of that 331 turbo drowned out any hope of hearing the music. CCR was one of PIC Mulholland’s favorite groups along with the Moody Blues. Invariably, he’d crank up Ride My Seesaw or Going Up Around the Bend to 10 as we waited for the crew chief  to pull the chocks and wheel  the fire extinguisher out of the way. Winning my client’s claim for R1 this week made me think of him. They bear a vague resemblance to one another and both were pilots once so the song seems à propos. 

David was one of those Vets who realized he made the wrong choice joining the Navy and opted into the Army as soon as he came home from ‘Nam and finished up his first enlistment. Say what you will about the Bounding Main but it was hard to get laid out there and if you were 19, boy howdy was that uppermost in your mind. Well, it was in my mind and I don’t have to get into my pronouns.  Of course, the primary conundrum to me was, and always will be, why would anyone want to walk or paddle when you could fly wherever they wanted you to fight. And drop shit on the bad guys. In contrast to the Navy, the Air Force and AAm (Air America) always had good scotch and gin. Maybe not single malt but beggars can’t be too picky in a free-fire zone.

Somehow, David must have ingested too much Agent Orange during his tour there because he began to notice a problem forty two years later in 2012… as did the FAA. He couldn’t feel the rudders with his feet and was beginning to notice the tremors, muscle rigidity and “pill roll” effect of Parkinson’s Disease. That effectively put an end to his flying career-or any career- for that matter. I know the depression that can cause. I was bushwhacked back in 2007 when they hosed me with Interferon to kill my Hepatitis C and dang near killed me in the process. I lost my life-long joy of working framing houses. Sitting around in front of the boob tube watching The Price is Right with Drew Carrey doesn’t cut it. David tried to fight VA but we all know what you’re up against if you do it without a determined Sherpa. He was fighting for SMC S and should have been setting his sights far higher.

David came to me in 2020 or 2021 with the same complaint I hear from all my Vets in his predicament. What’s the secret password or handshake to get into the SMC club? I know it can be daunting to those of you who are unschooled in the art. Worse, few, if any, VSO service officers even know what it is-let alone how to win it. I’ve actually had them look me in the eye and tell me I’m lying; that there is no such thing as SMC. That shouldn’t come as any surprise to Veterans. Anything this lucrative is going to be a closely-held secret and VA is not known to be overly loquacious about the subject. Most Rating Decisions I’ve read patiently summarize the requirements (wrongly) and then follow up with the standard “Unfortunately, you don’t qualify for the entitlement but merci beaucoup  for your service.”  Here’s David’s. 612 days later after 30 c&ps.

redact RD 3.06.2023

Several years ago, I filed a FOIA with VA and asked for the numbers of Vets currently entitled to the various levels between L and T, excluding S and K. It took over a year for a response. They even threw in the S and K numbers. You’d think I was asking for a T/S Crypto clearance. I was dumbfounded to discover there were (and presumably still are) extremely few at the R1 and R2/T levels. About 3,800 R1s.  Whether that low number is due to ignorance of the availability of the benefit or an entrenched proclivity to deny automatically is a good question. I do know that the level of knowledge of SMC at the Regional Offices could be hidden behind a Greek fig leaf with room to spare for the plumbing.

The last HLR I had (last week) I asked the gentleman if he was well-versed in SMC R 2 and understood the reason we were here HLRing this thing. He said “Well, no. I’m not red hot on R2 but I’ll figure it out.” I bit my tongue and proceeded with great trepidation to spread the trail of bread crumbs for him to follow. For all you agents and attorneys with VBMS access, I’ll let you in on a trick I use. Prebuild a HLR cheat sheet and locate all the places where the evidence is that supports your client’s case. We all know they separate the legal argument from the actual VA form but a review of the evidence listed in the Rating Decision often shows they never looked at the very evidence you sent them. Cheat sheet example:

redact 996 Arguments

So, I go through and locate the documents or IMOs and note the “receipt date” on the far-left column as the bookmark. Next, I expound on what’s in the document that’s exculpatory. In one case, I had to list 14 different documents scattered from 1976 to 2008 that VA said didn’t exist. After pointing them all out and even sending in the list to help them, I still lost. The chowderhead at St. Pete’s DROC said they couldn’t consider my 4138 listing all the locations of the documents they say don’t exist because it was not included in the evidence before the supplemental AMA decision was made. Welcome to AMA and insanity. Absent their insistence the evidence didn’t exist and a future denial, how was I to know I should submit the c- file Atlas map to the evidence that doesn’t exist? Buy a DeLorean with a 6 gigawatt flux capacitor and go back to November 10th, 2022? That one’s on appeal up to the BVA but it shouldn’t have to be.

When they denied David for loss of use of the upper and lower extremities due to Parkinson’s and recharacterized it as bodacious PN due to Diabetes Mellitus II, I blew an assgasket. I kited off an email to, well, let’s just say I sent it to a lot of folks in high places. Having access to VBMS comes with a rolodex of everyone who works there. All of a sudden, there was barbed wire around the old  3/06/2023 Rating Decision. I’ve never seen upside down yellow triangle emojis with an exclamation point on them. They look like Yield signs. Put your pipper on one of them and up sprouts ” Danger! Danger! Will Robinson. Do not promulgate. Decision is in error.” Totally awesome, guys. I didn’t know you had emojis in VBMS. Where are they? I want to begin using them. This is too cool for school.

redactemail

For the first time in history, I got a call from not one, but two different RVSRs in Quality Control apologizing! Apologizing, I say. Did I mention they apologized?  Jez, that’s more rare than finding petrified unicorn shit in your Breakfast Mac©. Miz RQSR blamed it on an overzealous VSR who thought he had the nod (pun intended) from the Coach to push print on the Adobe PRO 2.5 Denialbuilder™. Now, I can see everything they can in the client notes and I can see the RFD from the Booth Bitch telling him to launch. They must think I recently tied the Mayflower up to my front porch and disembarked late last night.

redact 820

Anyway, here’s a copy of the “new and improved” replacement Rating Decision version of 3/29. I do not, for a minute suggest sending emails like this but emergent situations demand emergent measures to arrest a horrible mistake. To date, I haven’t been able to figure out how this went so far off the tracks unless, well, perhaps I shouldn’t go there and be content that someone fixed it. The idea of fiddling around with a pre-doomed Ex Writ as a hammer to coax them to fix it would take at least another 5 months of wrangling. My client might not have five more months.

redactRD 3.29.2023

In closing, I wish to welcome David to the ranks of the R1s and thank him for allowing me to represent him in his VA odyssey. Outside of being a man of the cloth, I don’t think there could be a more sacred, worthy job than helping Vets win their legal battles. What the hey? This might even get me off the hook with the Big Guy for nuking those elephants “grey jeeps” on Route 7 east of Muong Soui back in August ’70… where, of course  Togetherweneverserved®

And that’s all I’m gonna say about that.

 

Posted in Complaints Department, Humor, R1/R2, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , | 6 Comments