TOGETHERWESERVED–THE CANCEL CULTURE

Posted on July 21, 2021 by asknod

Cupcake and I thought long and hard about writing this article and how to respond to the nearly eight years of diatribes by TWS volunteers and most recently, the owner(s). Without any help using Google© Analytics or other gimmicks to drive readership to my site, the original 2012 article has floated ever-upward in the rankings nearly to the top of the complaints about TWS. Why is that? I didn’t include any salacious details or gossip. I never insinuated the outfit is racist or a hotbed of white supremacy. I merely fumed about the relative difficulty in extricating myself personally from their financial clutches. Nothing more-nothing less. This morning, I read yet another armchair quarterback’s take on my literary shortcomings. David S. stated: ” ‘asknod’ comes accross[sic] as a perpetual complainer.” Well, after reading the comments sent in to the Better Business Bureau® over the last 9 years,  I’ll take that as an unbridled compliment, David. Thank you.

Let’s review the history of this TWS outfit under the microscope of public opinion. Notwithstanding the numerous comments below the original article, my contemporaneous 2012 complaint has been echoed elsewhere continuously ever since- i.e., How in Sam Hill do I escape this TWS organization and why do they make it so dang difficult to find the yellow and black- striped ejection handle? Here’s a small sample (on Google® Search):

They billed me and took my money without permission this year. I didn’t want to stay in it. I joined last year since I am a Woman Marine and met someone at a business meeting who told me this was a great organization. This year they billed me for another year and I never gave them permission to do that. I complained to they about it and expected my money to be returned. I thought this was supposed to be an upfront organization. They just laughed about it and refused to return my money. I don’t want this to happen to anyone else so want to put in a complaint so other people can see the way this organization treat people. The fee was *******

or:

We have been trying to cancel the service, but when we call the number we never get a call back, or even an e-mail response. We have no other information minus the phone number on our bill, and we try to call them and get no where.

Or:

RIPOFF-WON’T LET YOU CANCEL OR REFUSE RENEWAL. I JUST WANT TO CANCEL THIS SUBSCRIPTION AND MY MONEY BACK. DO NOT WANT IT RENEWED. I joined Together We Served in 2011 (approximately). When I joined the service was free. I never intended to purchased a membership. I have not used the site in the last few months. My account was automatically charged $19.95 at Together We Served and my credit card was not present. I was not aware and did not knowingly give Together We Served permission to debit my credit card for this annual membership and take funds automatically out of my bank account. I am very upset and blindsided by the charge. I sent a email complaint to Together We Served requesting that my subscription be canceled effective the date of my email and a full refund of my money. Together We Served staff were condescending and ultimately refused to return my money. I will not have not used Together We Served in years and did not intend on using the services or membership. Together We Served hides behind a ‘No Refund’ Policy in order to protect themselves from having to return the money. I urge all military members (active/veteran) to reconsider providing their bank account information to Together We Served. It is a ‘social media’ site for the military that has become irrelevant. My interaction with them was very negative, which surprised me, since they claim to support the US military community. If you decide to join, do it with caution, as their customer service is awful!

David’s recent rejoinder today in the comments section is the classic “We report. You decide.”/ shoot the messenger technique. Did I complain? Yes, but let’s put a ‘hmmm…’ in front of it in the proper context. I complained about my personal experience…9 years ago. The mere fact that my plaint has grown legs is not from its exposure or longevity. It’s that my experience seems to be very much ongoing and encountered by thousands of other similarly situated Veterans daily. The problem, if there is one, seems to originate in the business model Togetherweserved has chosen to run their company. Some might characterize it as ‘If they holler, let ’em go.’ I didn’t even get my $20 back.

In 2018, a member of the TWS team (I presume) left me a love letter explaining my ignorance on how to sign up. Bruce alleged he was a Pathfinder in the Army. Gee, it only took him six years to locate my diatribe. I sincerely hope that wasn’t a veiled testimonial as to his former military Pathfinder prowess.

Approximately a year later, another member, Monica, arrived and eviscerated me for my misspelling of ‘serve’ as in “Together we sever you from your $20.” It was a play on their spiel that escaped her in spite of her Masters degree. Scary, huh?

Finally, this year, on March 28th,  President Brian Foster, the self-acknowledged owner/operator of TWS, arrived to cleanse the air. As always, I encourage folks to come here and comment without casting aspersions on their  motives or ideals. Everyone gets to pull up a soapbox and have their say. Unlike other media outlets, I don’t censor those I take umbrage with. Never. Well, never until Monica came flatass unglued and had a meltdown. Considering this has festered like an open wound for nigh on 9 years, and numerous TWS lackeys have arrived trying to put out the negative press fires that you, the readership, have submitted (complained of?), I find it incongruous that it took Mr. Foster so long to inveigh (and patiently mansplain) on this perceived inability to extricate oneself from a pay-to-play social media site. Actually, if you read his comment, nowhere can there be found an explanation as to why quitting TWS is virtually impossible. It’s like the Hotel California. You can check out anytime you like but we’ll keep on pestering you. His argument appears to be ‘Why would anyone ever want to leave?’ We have a Help Desk manned twelve hours per day, seven days a week. Seems that help desk would be the go-to fix for those seeking help on how to join the other dearly departed TWS souls.

In my miniature world view, a good website, a good gardening tool, or even a useful book on how-to __________ is a godsend. I wrote a book in 2012 on how to win your VA compensation claims. Over one thousand of you personally wrote me an email back stating the book was instrumental in helping you attain service connection. Many succeeded in attaining the highest levels at TDIU or 100% schedular. I had no experience as an author. I wrote from the heart. I provided it virtually free of charge if you purchased the Kindle e-book version.  Coincidentally, up until the most recent diatribe with the TWS hired help last year, the Amazon reviews (64) were running 4½ stars. A new “review” arrived from one “MattK” shortly after my verbal sparring with Sgt. Monica which I capture here:

Check it out. I still got one star. Maybe MattK found some redeeming info.

Again, let me put my complaints theory out for all of you to examine. Some may recall a certain outfit, now a Congressionally chartered Veterans Service Organization, who was exhorting folks to donate $19.95 a month to ‘help’ Veterans. I use the term ‘help’ loosely. I’m sure many of you saw their almost-constant barrage of commercials asking for funds to help Vets. As I am forbidden to mention their name under threat of them resuming their lawsuit against me for slander, I will refrain. Yes. Boy howdy did I complain. Turns out my complaints had a kernel of truth. CBS investigated and the overseers of the site were excommunicated a year or so later for appropriating large sums of baksheesh for their own pursuits. They, too, ignored me until it began to cut into their bottom line. As they say in Texas, all them Exs ain’t driving a Lexus no mo’.

I no longer complain about these types of people who attempt to inveigle Veterans into paying for their yachts or limousines. Mind you, for the record, I am not implying any nefarious aspersions on TWS. Perish the thought. My battles now are strictly with the Department of Veterans Affairs. Having become accredited as a VA representative, I find my time limited to publish articles here on asknod. Personally, I find it humorous that anyone with that much time to spare would waste it on a website akin to FacePlace™ that charges you admission like a theatre. Ah, yes. Monica and Bruce et al. I concede it is free if all you seek to accomplish is to publish your former military exploits. Unfortunately, in order to read about others’ exploits who may have something in common, you have to pass through increasing pay walls to access them. Again. No complaints. I call them ‘observations’.

Mr. Foster has provided a website, albeit complicated to exit (according to others), which purports they have an invaluable service. I have no complaints about that in 2021. President Foster has also aligned himself with what I now consider a formerly great insurance company for military officers. That has segued into something extremely similar to Geico© and now accepts all military-both enlisted and officers. I was forced to take my bundled policy elsewhere due to their ever-increasingly expensive homeowner’s policy costs. Again, I am not complaining. I merely voted with my feet and moved on to greener (cheaper) pastures with far better service.

As for David S.’ comments that ” I think your time is better served trying to be an influencer for good in the world. And no, the above is not what I call being a good influence.”, I have this rejoinder. Thank you for sharing your personal thoughts, David. I have no desire to be an influencer for “good” in this world. I’ll leave that to all the existing professional influencers who abound at every turn of the road. They sure seem to be doing a bang-up job quelling all those “protests” in Portland during the last year. My desires are far more mundane. Perforce, to coin a term, I have what is called “Starfish Disease”. Well, that and an insane humor streak. If the reference to the disease confuses you, scroll down the widget above called “About the author”.

I focus what little time I have left on earth to help other Veterans attain what took me 30 years to accomplish. I wrote a book and gave away the proceeds to the poor. It wasn’t enough. VA is known to legally pursue any who serve Veterans without credentials. I decided to seek VA accreditation to help Veterans-something any of you can do if you weren’t so busy trying to find fault with others and cancel their causes. Giving advice to others is a double-edged sword. You have to walk the walk before you can stand on the high ground and criticize others for your myopic, superficial perceptions of their shortcomings. Most of us learn this by fourth grade.

I have taught (or helped) several others seek and attain accreditation before the VA and for that I can die happy.  Similarly, if I only helped one Vet with my book, then I succeeded. This isn’t, and never will be be, about TWS and me. It’s not about the VA and me. It most certainly was never about me and the Wounded Wallet krewe. It’s about the Veteran. I get into heated discussions with VA employees who attempt to deprive my clients of that to which they are rightfully entitled. Often, it devolves ever downward into a donnybrook over the rater viewing this as a pissing match between him/her and me. I have to constantly steer the conversation back to the Veteran. That’s our job-both theirs and mine. I’m merely the ‘A’ in VA’s much-vaunted ICARE”. That’s where I want to be-complaining to VA and providing the repair order.

I reckon all this sounds like a bunch of sour apples. Nothing could be farther from the truth. I don’t wish to demean David’s observations. Complaints are useful to inform others of their errors. That’s why they invented Complaint Boxes. Complaints can be instrumental in changing the way people act or accomplish their work. Complaints can be productive-but only if they influence the complainee and induce him or her to change for the better. The present victim culture that currently abounds in America of bitch bitch bitch is actually counterproductive. It would appear TWS subscribes to this technique when ostracized. A dead giveaway is the liberal use of the exclamation point (!). When folks resort to that or using the Caps Lock, they have lost the argument and are conceding defeat. Screaming in print form lacks that je ne sais quoi needed to convey the emotion. There are two types of people who complain. Those who complain and those who, having voiced the gist of the complaint, act to resolve the complaint.

Last but not least, I wish to point out the glaring incongruity of those who come here to complain as David has. I use WordPress as my platform for my blog. While I have to pay for my site due to it’s ever-increasing content, it is actually-hold onto your hat here- free. Yes. You read that right. You, too, can have your very own website here at WordPress absolutely free. You can complain to your heart’s delight about all the inequities in the world and try to influence others to do good. The only problem I see is you can’t call it asknod. Unlike my site, you will be able to advertise Russian wives for sale or cheap Viagra from India. The sky is the limit. I chose to forego advertising even though it would be an extremely lucrative sideline to my incessant complaining.

Asknod is about Veterans. Live Veterans. Dead Veterans. Dead Veterans’ surviving spouses who still have a complaint about what VA did to their husbands (or wives). Veterans who got screwed over by some other who took advantage of their naivety. Asknod is about an intelligent discussion on how to help other Veterans-not complain about the inequities of life or self-betterment at the Veterans’ expense. Asknod began because there was a dearth of information on how to win your VA claims. All I did was expose the Rosetta Stone to my brethren. Now, there’s a new Vets’ site or self-help book coming out every other day purporting to either help you win, do it for you or teach you how. They all charge money for this help. I don’t. I publish as much as I can on the subject to help-not to complain. Chances are you the reader are a Vet if you found this site. I’m sure you didn’t come here to read about what pisses me off about TWS  or any other Vet sites. And in spite of how much I rail about the ignorance of VSOs, they, too, serve and mean well. And as for the humor, if it offendeth thee, pluck out thy eyeballs. I’m the victim here. I was born on April 1.

I find I no longer need to complain. I don’t sit idly by the wayside throwing rocks at every passing discussion. I chose to fix it as best I can-one Veteran at a time. Allow me to reiterate-this is not about you (David, Brian, Monica, Bruce) and me. It’s about the Veteran. Try not to lose sight of the objective. We don’t do politics here. We don’t subscribe to denigrating you for your religious preferences, your sexual preferences or your stance pro or con vis-a vis critical race theory. Actually, as my daddy once said, you have the right to remain stupid. Nothing you say can be held against you. We might make fun of you but we’re laughing with you-certainly not at you.

I wish Brian and TWS all the best in their endeavors. And that’s all I’m going to say about that. Shoot, that’s all that needs to be said.

Posted in All about Veterans, Complaints Department, Food for thought | Tagged , , , , , , , , , , | 3 Comments

LT. RAY KROGMAN–WELCOME HOME, SIR.

Posted on July 20, 2021 by asknod

One thing guaranteed to make me tear up is the news that one of my long-lost Brothers-in-arms has been found and we are able to erase his name from the Laos list of KHA/BNR. KHA, for those unaware, was the military designation used for our losses and stands for Killed by Hostile Action. KIA (Killed in Action) is a more recent abbreviation. BNR, to  Plaine des Jarres Golf and Country Club members,  is Body Never Recovered. Thus it gives me great pleasure to announce the return of Lt. Ray Krogman of Worland, Wyoming , the removal of his name from the BNR list and a proper welcome home and burial.

Sadly, when we were shot down in Laos, we were rarely accorded Geneva Conventions Protocols. Whether it was because we weren’t wearing military uniforms or the PLs just couldn’t be bothered to transport us back to a POW camp, the general practice was to execute us on the spot. Some, myself included, wore pure gold 24 Karat gold chains with which to barter our freedom. I had heard it mentioned that Air America pilots had some success with the technique. I carried a snakebite kit in one of the pockets of my survival vest, too. I’m equally glad I didn’t have to take advantage of that either.

On January 17, 1967, 1st Lieutenant Alva Ray Krogman, flying an O-1 F Bird Dog, Tail # 57-0914 out of Nakhon Phanom RTAFB (NKP) with the 23rd TASS (Tactical Air Support Sq.-aka FAC), was shot down. His call sign was Nail (# unknown). He was flying as Lead FAC in a strike against a 37mm AA gun site near Ban Muang Angkhan in southern Laos (MR III Steel Tiger) west of the DMZ when he was struck by groundfire.  The aircraft crashed a few miles away near Ban Loumpoum killing him instantly.

Lt. Col. Craig Duehring (ret.) Raven pilot sitting on wing of a Tango at Alternate circa 1970

Another airman flying a T-28 ‘Tango’ out of NKP was called in on Lt. Krogman’s  Search and Rescue (SAR) attempt to determine if Lt. Krogman had survived the crash. Capt. William Keith Cogdell, of the 606th ACS (Air Commando Sq.), was promptly clobbered by the same AA site while in the vicinity. His Tango rolled over violently on the port side, augered in and burned. Capt. Cogdell’s remains were recovered and positively identified on May 24th, 1994 and returned home for burial. That circle is now complete.

Fifty four years to be brought home seems like a lifetime. To me it is. Lt. Krogman’s niece was six when he was shot down on January 17, 1967. She was there to welcome him home when he landed at Bozeman airpatch.  It would be another three and a half years (1970) before I went over the fence. Considering the casualty rate was 40%, I count myself lucky to still be breathing and contributing to global warming.

1st Lt. A. Ray Krogman 4/12/1941 to 1/17/1967

Welcome home, sir. Another chapter closed. Lord knows how many are still lying there mouldering in the jungle awaiting their turn. I shudder to think…

Posted in All about Veterans, Food for the soul, From the footlocker, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 3 Comments

MORE NEWS ON JETGUNS

Posted on July 11, 2021 by Laura

 

USAID toots its horn and shows off vintage images of retired jet injectors

60 years of USAID: “Innovative Immunizations Past and Present”

There is no question that vaccinations are beneficial for most people. But, and there are always a few buts, the unintended consequences must be reckoned with. They are now being discovered with the new Covid-19 vaccines.

In the case of the mass vaccinations in the 1960s and later, it took a long time to discover/admit the horrible reality of blood-borne pathogen transmissions with unclean instruments, lack of PPE or hand washing.

Louis Pasteur (Link) (1822-1895) developed vaccines for rabies and anthrax, saving countless lives. He helped humanity. We won’t know for years what the unintended consequences of the various Covid vaccines will be. And the pathogens’ origin, is still officially unknown.

USAID has played a large role in global vaccination projects in the 20th-21th century. But>>>

There has been some not-so-funny stuff going on with USAID, NIH, CDC, Eco Alliance, and the CCP government with regard to gain-of-function experiments. Some suspect the Covid-19 plague, still making its way around the world, is one unintended result of these joint projects. USAID has a budget of over $27 billion. It’s involved as a pass-through agency to fund all kinds of projects; oversight by Congress has been lax.

A January State Dept. Fact Sheet denies knowledge of important facts: https://2017-2021.state.gov/fact-sheet-activity-at-the-wuhan-institute-of-virology/index.html

New York Post gets into some taxpayer dollar amounts:

Who is Peter Daszak, the nonprofit exec who sent taxpayer money to Wuhan lab?

Looming question: Did we enable and do this plague to ourselves?

This anonymous website suggests to me to me that the fight for access to non-biased jet-gun studies (new or unpublished, as in buried) on the connection between blood-borne pathogens is going to begin in earnest in the next few years. Too many people have died for governments to persist in acting dumb.

In the meantime, here are two images of a cleaned up–or never used– fancy 1980 jet gun owned by a Science Museum in the U.K..

 

“Med-E-Jet” inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980. This gun was designed to make mass immunisation more efficient. It enabled the user to give many people a small dose of vaccine or drug and was used during the smallpox eradication campaign. The medication is forced through the skin at high pressure without using a needle. The gold coloured handle holds a carbon dioxide gas cartridge to supply the power, and the white part protruding from the top of the gun holds the vials of vaccine. In the event, the very simple bi-furcated needle was generally preferred to this hi-tech approach.

Med-E-Jet inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980.

 

 

Med-E-Jet inoculation gun, in carrying case, by Med-E-Jet Corporation, Cleveland, Ohio, 1980.

Laura (Guest Author)

 

 

Posted in Complaints Department, Congressional Influence, Food for thought, Future Veterans, General Messages, Guest authors, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, History, Jetgun BvA Decisions, Jetgun Claims evidence, Jetgun Manual, Legislation, medical injections, Nexus Information, Uncategorized | 10 Comments

Any action on the new presumptive benefits for bladder cancer, hypothyroidism, and Parkinsonism yet?

Posted on July 10, 2021 by Laura

A little. They have been added to the Agent Orange Exposure webpage (LINK).

I do not see anything on this in the Federal Register yet. However, VA

posted on VAvantage blog (May 27) >>>BREAKING: VA plans expansion of benefits for disability claims for conditions related to certain toxic exposures
New evaluation process to be applied in identifying future presumptive condition

VA will begin implementing provisions of the William M. Thornberry National Defense Authorization Act for Fiscal Year 2021 (Public Law 116-283), adding three conditions to the list of those presumptively associated with exposure to herbicide agents, more commonly known as Agent Orange. Those conditions are bladder cancer, hypothyroidism and Parkinsonism.

Excerpt: “About 52,000 veterans and another 6,000 family members of deceased veterans are expected to qualify for the new benefits.”

https://www.militarytimes.com/veterans/2021/05/27/va-to-start-processing-vietnam-vets-claims-for-conditions-newly-linked-to-agent-orange-poisoning/

BVA is chock full of Agent Orange and bladder cancer claims. Here’s a denial:

Citation Nr: 20036637
Decision Date: 05/28/20 Archive Date: 05/28/20

https://www.va.gov/vetapp20/files5/20036637.txt

However, they said previous denials will be reviewed. (Hmmmm. I would not wait.)

If we denied your claim for any of these conditions in the past, we’ll automatically review your case again. You don’t need to file another claim. We’ll send you a letter to let you know we’re reviewing your case.

Source: https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/

The Vietnam Veterans of America gives lavish praise to President Biden, calling him a “saviour” for swift action. (Press release 5/27/21).

Posted in Agent Orange, All about Veterans, AO, BvA Decisions, Complaints Department, Congressional Influence, Food for thought, General Messages, Guest authors, Legislation, Medical News, Uncategorized, VA BACKLOG, Vietnam Disease Issues | Tagged , , , | 6 Comments

BVA-DOWN FOR DOUBLE–WHY WE SERVE VETS

Posted on July 9, 2021 by asknod

Attached, please find a wonderful BVA present for the weekend. It isn’t very often that you find a fellow Vietnam Vet living 5 miles away from you who needed a lot of help-help his good ol’ VFW post service officer said couldn’t be had. The officer also told him there was no such thing as SMC and his chances of getting A&A (via pension, not compensation) were between slim and none. I reckon John didn’t even bothering arguing for two A&As.

2 A&As = R1 BVA redact

In that certain country north of Thailand that rhymed with mouse, we often found ourselves tasked with swooping in and picking up a downed USAF, Squid or Gyrine pilot who had the misfortune to have his chariot shot out from under him by a 30 Mike Mike or a lucky .50 cal round. Waiting for the 38th ARRS Jolly Greens to show up from 20 Alternate with suitable air cover from NKP to suppress the PL around the pilot would be too little too late.

The LLDB of the aerospace rescue and recovery folks

We drove those old ungainly H 34s left over from Korea but they were remarkable for being able to withstand small arms fire. Well, the aircraft, not the PIC way up there in the driver’s seat anyway. The point being that sometimes you just had to ignore OSHA shit and go in or lose him. There’s nothing more forlorn than to hear the FAC declare “Negative Objective.” It still gives me the willies to this day. We didn’t have the luxury of surrendering up there. If the PL got to you first, they executed you right there on the spot. Period. Game. Set. Match.

UH 34 D

Thus, John couldn’t dawdle and wait for suitable help on this one. He knew things were going south in 2018 and asked me to perhaps consider taking him on. So, when the Parkinson’s got bad in September 2019, I filed him for the A&A. VA couldn’t very well argue he didn’t have it. His hands were shaking like a leaf on a tree and you had to get way up close to hear what he was saying. He’d already fallen and broken his back. VA said he was fine. A month or two later it turned into a shit show. Before you could say Jack Robinson, he got hit with the b cell hairy leukemia.

He and I both knew he wouldn’t be around for Act III so I filed him for A&A and/or loss of use of bilateral lower extremities-  trying to at least get a deathbed R1 for his wife. I know it pisses the VA raters off. Vets should toodle along and die and not be heard from when they get that ill. VA went so far as to avoid conceding loss of use of the lower extremities by noting in his VAMC txment notes “Well, shucks. He can’t be that screwed up. He drove hisself down here.” Somebody might have overlooked that his alternatives were between slim and none unless he used his walker to perambulate that 40 miles. His wife was the Peter pilot- she’d had a horrendous auto accident a decade earlier and wasn’t going to be in the command seat again in this lifetime.

B cell hairy leukemia is another story. You can’t ignore something metastasizing faster than popcorn in a popper. The Raters did actually grant the Leukemia at 100% and the  second A&A for about 24 hours… until the Senior DRO added it up and discovered this would result in a SMC O and R1. The speed brakes popped out and the rating evaporated into thin air from VBMS. In its stead was one of those ‘everything but the kitchen sink’ A&A ratings. All of a sudden he was SMC M because he had another 100% rating for the cancer. I pointed that change order out in an email to the DRO and never heard back. Crickets. I asked my CMA and she, a former SVSR no less, politely informed me that the rating was correct because she knows this shit. Two SMC Ls for A&A? Are you mad? It’s forbidden. That’s like M 21 Introductory  Knowledge. Why, that would be pyramiding to grant two A&As. What have you been smoking? I thought you knew how to do this, Alex.

Kudos to Robert Chisholm of CCK for teaching me how to win this victory. I spotted it in the BVA decisions site from about 20 years ago. You just need a perfect candidate for it. So, being a thorn in VA’s side, I filed a 10182 asking them to restore the imaginary rating  shortly after they cut the paper. I argued they had already rated him for it just before they didn’t.  Evidence is not a luxury in this business. It’s a necessity. If it isn’t in VBMS, your arguments are a nonstarter. Unlike VACOLs, where it’s sealed up like a deposit box in a bank vault, VBMS is rather porous and things come and go like bumps in the night. I like to print them when I see them so I can spring them on the raters later and say “But you said right here in the Code rating sheet dated  February 25, he’s been granted 2 SMC Ls. What gives? Where did the second one go? ” Well, Mr. Graham, it metamorphosed into  SMC M which is the higher award. You just don’t bother your pretty head, son. We used the official VBMS SMC Calculator. It’s foolproof.”

Acting VLJ Martin Peters seems to be on my dance card a lot lately, too. Or vice versa. I did a videoconference with him for my Multiple Sclerosis Vet Lori on May 4th for R1. No decision yet but he as much as said ‘you understand I can’t make a decision today on this’ which to me implies he would if he could.

Anyway, raise you glasses in a toast to a valiant Marine that didn’t have the right calibre bullets to kill cancer. His wife can sure use the bucks and I can put his folder in the done files. As I’m fond of saying, “If the shoe was on the other foot, John would have done it for me.  Oorah. Win or Die never had so much meaning as it does in this adventure.

John doing what he loved most

Posted in Aid and Attendance, All about Veterans, BvA Decisions, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , | 5 Comments

FED. CIRCUS-TAYLOR v. DENIS THE MENACE–WHAT IT MEANS

Posted on July 7, 2021 by asknod

Boy howdy won’t it be fun to get more respect when you go up to the Big House (625 Native Americana Ave. NW) now? For decades- since 1989- we’ve been treated like the retarded aunt who lives upstairs in the spare bedroom. Face it. Veterans (both officers and enlisted) are considered somewhere above whaleshit and below respectable when they get to the higher echelons of VA jurisprudence. We’re considered Wallmarket® shoppers who live in run down trailer parks and fake falls at the local Piggly Wiggly Mart™. Seriously, our credibility is always called into question. Our motives are suspect and the only respect we get is from our fellow citizens. Rodney Dangerfield didn’t hold a candle to our tales of woe.

So imagine our surprise when Judges Newman, O’Malley and Wallach blew a hole in jurisprudence and held all these years-nay decades- the Court has had the power to grant Equitable Estoppel to Veterans and has eschewed  same. That’s a gross legal error that has been perpetuated by these jokers since 1989. Let me enunciate what all you Defenders of America have been entitled to lo these many years. But first, since I know there are a lot of nonlawyers out there who aren’t up to speed on all the Latin, let me tell you what you just won behind door number 3 in Vetspeak.

Taylor v McDonough-Eq. Estoppel

From the Law.com legal dictionary, I reprint in haec verba (preposition. Latin for “in these words,” which refers to stating the exact language of an agreement in a complaint or other pleading):

equitable estoppel

n. where a court will not grant a judgment or other legal relief to a party who has not acted fairly; for example, by having made false representations or concealing material facts from the other party. This illustrates the legal maxim: “he who seeks equity, must do equity.” Example: Larry Landlord rents space to Dora Dressmaker in his shopping center but falsely tells her a Sears store will be a tenant and will draw customers to the project. He does not tell her a new freeway is going to divert traffic from the center. When she fails to pay her rent due to lack of business, Landlord sues her for breach of lease. Dressmaker may claim he is equitably estopped.

See also: clean hands doctrine  estoppel 

Now, for years, the Court has always ruled they are not a “Court of Equity” -i.e., they did not have the power to amend an obvious wrong. Their judicial authority as a Title I court allowed them to rule up or down based solely on case or controversy. Veterans seeking  “equity” (and boy howdy has that word ever been bandied about recently), in VAspeak is a reference to 38 USC §503 wherein the VA Secretary can be petitioned for redress when you, the Vet, have been screwed out of your benefits for decades and finally get only a small, rump settlement. This is called petitioning for Equitable Relief and never to be confused with Equitable Estoppel.  It isn’t a claim and you can’t appeal a denial up to the BVA and the Court if the VASEC declines to pay out. Your chances of getting Eq. relief are the same as Powerball lottery odds.

Now how this plays out up at Saint Meg’s Fun House is simple in spite of the convoluted wording. When Secretary Denis “the Menace” McDonough and his merry band of OGC troglodytes show up to discredit you after you appeal your Texas Necktie party at the BVA , if they have committed unseemly acts of lying, ignoring the evidence or misconstruing what you want, the Court can legally hold that Denis cheated and they cannot in good conscience affirm an unholy, fusterclucked BVA decision written by a lawdog VLJ who graduated dead-last in his law school class.

In VA jurisprudence, we are a protected class of citizens. We’re unique and because we have borne the battle, we get special legal treatment that average folks don’t. Equitable Estoppel, as a tool to right a wrong, is pretty heady stuff. Considering that 74% of cases that come before the CAVC are reversed, vacated or set aside (and all remanded to be fixed below), this becomes what we used to call up on the Plain of Jars, in a country that rhymes with mouse, an extremely target-rich environment.

Sadly, the Court became infested in the last few years with some old JAGs and their ilk who consider us untermenschen. Their brand of UCMJ justice demands we not benefit financially and any who seek justice are undoubtedly charter members of the Slip-on-the-floor Club at Piggly Wiggly. It will be interesting to inventory those who are willing to grant us this new legal standard and those who are not. I’m guessing the fracture line is  Bartley, Pietsch, Greenberg and Allen being extremely amenable and Meredith, Laurer, Toth, Falvey and Jacquith loath to employ it under any circumstances. I pray I’m wrong. Judge Coral Wong Pietsch was at first unduly influenced by the Court’s “conservatives”  when she was anointed. Fortunately, she came to her senses quickly and became far more liberal in her dispensations of law. 

Which brings us to an interesting phone call; two actually. Bruce R. Taylor, of Taylor v. McDonough fame, called me Friday morning after the Exposed Vet radio show and wanted to know why I gave all the attaboys to Ken Carpenter and none to his swordbearer, Mark B. Jones, Esq. of Sandpoint Idaho. Truth be told, Mr. Jones’ name didn’t appear on the brief at the Fed. Circus. Mr. Jones is not admitted to the bar there. Ken is. When the Court panel of Judges Falvey, Meredith and Greenberg (Greenberg dissenting) affirmed the BVA decision to deny Mr. Taylor -who goes not by Bruce but by the patronym of his middle name of Robert (Bob).

Since Bob was so agitated about my lack of respect for Mr. Jones’ legal machinations, I gave him (Mark Jones) a call to find out how this all came down. Turns out Mark and Bob are old friends. Mark used to be a cop and chase the bad guys. Bob had tracking dogs so he and Mark were constantly out in the field chasing escaped prisoners or wanted felons-when they weren’t out in the field hunting or fishing together. Mark decided he was on the wrong side of the fence and went to college, matriculated to law school and became an attorney. Succeed he did, yessss.

So, when old Bob got the inevitable shaft from Denis the Menace, he naturally turned to Mark to defend him. Now Mark, as most all of us, knew the Court has never entertained proffering Equitable anything to Vets, so he didn’t bother couching his brief on that facet and instead went for the tried-and-true Phil Cushman due process violation argument. Judge Greenberg chided him at the oral brief on whether he thought  Eq. Estoppel might be a suitable remedy as relief. How in Sam Hill do you argue for something that isn’t on the menu? Why even waste your breath?

Ken Carpenter entered the picture when Bob arrived at the CAVC. He approached Mark and said “Hey, if you get bushwhacked, call me. I’ll take it up to the Fed Circus for you.” Ken, likewise, didn’t pursue the Eq. estoppel angle for the same reason Mark didn’t.  I’m all for novel concepts of VA justice and frequently try to reach for some things that legally appear unattainable. When you don’t have a J.D. after your name, you don’t know what you can’t do. I had a Vet who readily admitted he snorted the White Lady in ’88 but claimed the jetguns and gonorrhea were the cause of his Hep C in 1970. His appeal was dead on arrival but I argued in person in front of VLJ Matt Blackwelder that it was chronologically impossible to reach Stage IV cirrhosis with ascites in anything less than 40-50 years. 1988 to his diagnosis in 2012 would equal only 24 years. We won but I was highly doubtful that I was the silver-tongued devil who could pull it off.

Last, but not least, I received some comments on this “who should get the credit” game from a concerned reader. Her professed belief was that Judge Greenberg-not Ken or Mark- should get the credit for the win because he, in spite of being in the minority in his dissent, had insisted Eq. Estoppel was a tool available to the Court to right this obvious wrong. Well, ”not exactly’ as they say down at the rental car place. The problem with this misplaced accolade is that Judge Greenberg is not accredited by the VA and is not a practitioner. He’s the Judge. Duh? You can’t look in the NOVA directory and say Whoo doggies. That Greenberg-he’s the guy I want for my law dog. Actually, Mark Jones isn’t in the NOVA directory either. He was just good friends with  Bob. Bob would never have been lucky enough to knock on Mr. Carpenter’s door and obtain representation at the outset back in 2007. The confluence of events that led Mr. Carpenter to the Fed Circus was nebulous at best. So yes, in a roundabout fashion, Ken Carpenter did win this for Bob-not Judge Greenberg. It’s safe to say Greenberg put the bug in Wallach’s, O’Malley’s and Newman’s ear but nothing more. As the commenter stated, the Feds went out of their way to entertain sua sponte (another of those Latin hamburgers meaning they gave him a win via Eq. estoppel even though ol’ Kenny didn’t specifically beg for estoppel).

The win does have purse strings. Eq. Estoppel is only available to otherwise entitled Vets who have been deprived via a misreading of the clear meaning of a statute or regulation. How the evidence was evaluated is still not going to be a reason for this benefit.

Granted, the Feds were the angels who reversed decades of improper jurisprudence and enunciated the proper interpretation of the relief available to the Court. Ken didn’t argue this at oral as I mentioned. He labored under the same misunderstanding as Mark did- that  seeking Eq. estoppel was a pipedream and about as likely as getting hit by lightning in your basement or getting all the right numbers on a $500 million lottery ticket.

To me, it’s immaterial who the chicken dinner winner is. It also remains to be seen if Denis the Menace will allow this to pass like a painful kidney stone and move on or go up to the Supreme Court seeking certiorari. The obvious winners are us. We’ve just been given one more tool with which to put the thumb of justice on our side of the scales. The part that sticks in my craw is that it should have been available to us all these aeons and is only now being granted. It’s like finding out that Santa Claus is your second biological parent (or co-parent).  Think how many of us lost because of the perfidy of past VASECs and their toadies. Nah. That’s too depressing.

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

P.S. About that country that rhymed with mouse. My Non-Disclosure Agreement, like Mr. Taylor’s, expired last fall on October 2, 2020 after fifty years. Unlike him, I didn’t get a letter from Air America saying Ollie Ollie In Come Free!. Bottom left, kneeling, you will find me at 19 years old. Here’s a few of the old Project 404 gang. I often wonder what became of all these folks. We made Terry and the Pirates look like rank amateurs.

Posted in CAFC Rulings, CAVC ruling, Exposed Veteran Radio Show, Humor, Tips and Tricks, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

MARRIAGE HUMOR

Posted on July 6, 2021 by asknod

A Prince’s Fairy Tale

Once upon a time, a Prince asked for the hand of a beautiful Princess.

“Will you marry me?”

The Princess immediately said, “No!”

The Prince decided to stay single and rode motorcycles, dated thin, long-legged, full-breasted women, hunted and fished, raced cars, went to titty bars, dated ladies half his age, drank whisky, beer, and Captain Morgan, never heard any bitching, never paid child support or alimony, dated cheerleaders, kept his house and guns, ate spam, potato chips and beans, blew enormous farts, never got cheated on while he was at work, and had lots of dogs that slept with him in his bed.

All his friends and family thought he was too cool for school; he had tons of money in the bank, left the toilet seat up, and lived happily ever after.

 

The End

Posted in Humor | Tagged | 10 Comments

7/4/2021–WHY NOT JUST BRING BACK JETGUNS?

Posted on July 5, 2021 by asknod

This morning, the glorious 245th birthday of America, I discovered the possibility/probability that the US Military intends to make the C19 vaccine mandatory rather than optional. Well, folks. To me that’s changing the rules after you volunteer to serve your country. Imagine having a protected pension, and, after putting in your 20(+) years of diligent labor as a beat cop, discover that a year or two post-retirement the guarantor of your pension says “We’re whacking your monthly retirement down from $1,700/mo. to $1,500/mo. because we misestimated how much we  were  supposed to withhold. Our bad! Sorry.”

Now, let’s illustrate this in a military context. Let’s say the Military and their medical Voodoo specialists were cognizant of how a needleless, compression-injected inoculation device operated (jetgun, Pedojet, Munji, etc.). Anyone remotely schooled in antiseptic principles would note the nozzle was going to touch as many as 600 individuals in one day before being disassembled and autoclaved. Imagine french kissing six hundred fellow Basic Trainees. The chances of transmission of disease were an acceptable risk…

The unprotected handling during production or the skin coming into contact during application with any of the seven “Rainbow” herbicides (Agents Pink, Purple, Green, White, Blue, Orange and Super Orange) was know as early as 1957 to cause Porphyria Cutanea Tarda (PCT) and chloracne. Indeed, an Agent Orange horror story alleged a directive to employees at the Monsanto Plant in Verona, Missouri (Hoffman-Taff Chemicals, Inc.) in mid-summer 1957 advised workers wear noncorrosive rubber gloves when handling the various ingredients and  required their mandatory use at any time after being combined and packaged in 50 gallon barrels. The workers complained because the safety gear (which now included the gloves) was simply too hot to wear in summer. The company relented and made it optional again- but only during the summer/fall months, mind you. The chances of contamination with cancer-causing chemicals was an acceptable risk…

If you’ve ever been in a hot spray zone, you know where not to stand after five hours or so. The monkeys start falling down out of trees and they hurt. Ditto the snakes.

Back at the sunset of the Century (1998), we went through something similar. See the below:

https://www.cidrap.umn.edu/news-perspective/2002/11/gao-military-anthrax-shots-caused-many-reactions-prompted-some-pilots-quit

The military was hell-bent on sticking everyone with the Anthrax vaccine thinking this was waaaay better than having to saddle up with gas masks in a future war. What the hey. If they threw VX at us, we could launch Anthrax right back with impunity knowing our troops were immune. The manufacturer, Michigan Biologic Products Institute (MBPI), had done a study and concluded the six-shot vaccine series only gave 30% of the test subjects adverse reactions. Jez, wait a minute. 30%? Shut the front door, Elinor.  The chances of an adverse reaction to a minimum of 30% of any recipients was an acceptable risk…

“The survey indicated that 85% of troops who received an anthrax shot had an adverse reaction, a rate far higher than the 30% claimed by the manufacturer in 2000, when the survey was conducted. Sixteen percent of the survey respondents had either left the military or changed their status, at least in part because of the vaccination program.”

Now, in the Brave new 21st Millenia, with the sure knowledge of science and a rather comprehensive survey of military post-vaccine medical mishaps, there is a marked 23% increase in Myocarditis. Mayhap there is something amiss with making it mandatory to receive the vaccine. Think of this like a gigantic revolver containing 100 rounds-23 of them containing deadly bullets. You’re getting paid diddly in the US Army as an E 2 and Major Pat Sajak has decided it’s now mandatory for you to spin that revolver like it was the Wheel of Fortune© and pray you don’t land on Deep Vein Thrombosis. I’m sorry. When you are in the military, you don’t get to be a stakeholder in your medical posture. If you object, you’ll eventually be awarded the Big Chicken Dinner for standing by your morals. It’s far different than being a salaried hospital nurse in Houston who refuses it. S/he  has the option to vote with her/his feet and seek employment elsewhere. So, our teaching moment here is that a 23% Myocarditis casualty rate is an acceptable risk…

Back in 1971 on a parking apron adjacent to the active runway one day at an airpatch in northwest Thailand (Operating Location Charlie), the paymasters landed along with the peckercheckers. We lined up in the shade of the Goonybird and collected our pay and then presented our  yellow shot books to determine if we were in need of any shots. I had just gotten out of the local civilian hospital there (McCormick Hospital) after a 6 week stay for viral hepatitis. The closest military hospital was 600 klics southwest of us at Udorn. As we all are quite aware by now, once you get the Corona bug (and survive), you gain immunity to it. Remember the Smallpox vaccine?  The need for a vaccine post-infection is superfluous. Well, ditto those ice-cold Gamma Globulin shots they were giving us to “protect” us from Hepatitis B. Once you contract hepatitis B and survive it, you’re bulletproof. Tell that to a couple of ignorant, armed peckercheckers. I was informed I could roll up my sleeve  and take the shot or surrender my weapons and put my hands behind my back. I guess they call that the Military Macarena now. Twenty five years later I found out I had Hep C and not to worry. Ten years later in 2007, civilians convinced me the new miracle drugs Interferon and Ribavirin would eradicate it with an 87% chance of success. The only problem with that was the documented cure rate was 38% with acceptible secondaries like your teeth falling out, coming down with a whopping killer case of Diabetes II, retinopathy, etc. Didn’t any of you wonder why they gave us a pre-Interferon eye exam to compare to what you had left a few years later? The chances of  life-threatening injuries and sickness were an acceptable risk…

Don’t read anything into this. I have received my vaccines and am grateful to have them. I didn’t think twice. Christ. I’m 70 years old. That Wheel of Fortune™ revolver I described above holds about 60 rounds in my age group. I would hope and wish any who hold moral objections or anti-vax beliefs would set them aside for the sake of humanity to rid us of this pox. But to make it mandatory? Aruuh? That smacks of the Nazis requiring Jewish people to wear a large yellow star on their left breast. It smacks of a country (Russia) who required everyone to register their guns after the 1917 revolution. Several years later, they arrived to confiscate them. Hell, in this day and age here in America, there are those who seek to do likewise and couch it as a grand, voluntary turn-in a la Australia with compensation at about 2¢ on the dollar. The chances of a life-threatening assault by a lunatic or felon in your own home are so low, banning private ownership of guns is an acceptable risk…

I’m not a conspiracy theorist. I liked the Mel Gibson/Julia Roberts gig but in reality, the only successful conspiracy is a conspiracy of one. The Mafia thought they had this sewn up with Omerta but look how that turned out. The FBI has a bigger wallet and a Witness Protection Program.  Thus, I do not subscribe to the chemtrail sniffers who suspect they’re injecting nanosized chip tracers into us to know where we are… you know… just in case.

What I do know is glaringly elementary. The military is purposefully creating new clients for the VA compensation program. Gee, do these upcoming Veterans  use §1151 claims when they fill out their 526s claiming the military purposefully gave them myocarditis? I can already see it now. The disease was acute and transitory and resolved before separation. In any case the degree of disability does not rise to the level of VA compensation under the (new) diagnostic code….yet. In ten years when you file to reopen, we can scream Maxon v. Gober, 230 F.3d 1330 (2000) and say it occurred post service and was normal for your age. Been there. Done that.

It almost has an aura of deja vu to read about this. Almost. I note that the Government has a way of not denying something by what they choose to say. Take, for instance, the following:

“A U.S. Army spokesperson told the Army Times that “we do not comment on leaked documents” and added that “the vaccine continues to be voluntary.”

What this means in Milspeak is  the story is true but classified at this moment because we have not announced it’s getting ready to be mandatory. Were it to be rank misinformation or conjecture, the spokesperson would have adamantly denied the rumor as categorically untrue and without merit.

It’s not a conspiracy. It’s merely a ploy to protect as many troops as possible. If they harm a few, it’s akin to Spock’s greatest one-liner: “The needs of the many outweigh the needs of the few.” That’s great for reactor meltdowns and falling on hand grenades. I think it’s too extreme for the troops and expect we’re going to see a disorderly rush to the exits akin to the recent spate of policemen retiring. I find that sad. But that’s just my opinion. I do hope I’m wrong.

Happy Fourth of July to you all. Live long and Prosper safely…with or without a mask… well, depending on your vaccination status.

 

Posted in 4th of July, Agent Orange, Corona virus, DM II, Future Veterans, Interferon claims, Jetgun Claims evidence, medical injections, Military Madness, Porphyria Cutanea Tarda, VA Agents, VA Attorneys, VA Conspiracies, VA Medical Mysteries Explained, Vietnam War history | Tagged , , , , , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW TONIGHT-7/1/2021

Posted on July 1, 2021 by asknod

Greetings fellow VA campers. I guess I forgot to write this one down when Jerrel called on Sunday. I was immersed in the pool without a pen and paper. Amazingly, our latest heatwave hit 104 that day and 108 Monday. We’ve never seen anything like it. The corn grew a foot and the pool heated up to 96. Pickles wasn’t very enchanted with that development. We added 1000 gallons of cold water and it only dropped to 94. Yeah, I know. You probably don’t feel any sympathy for me but the pool is an important part of Pickles’ life. 

Anyway, here’s the link to the show.

https://www.blogtalkradio.com/jbasser/11965751/connect/b3f6075331bf2f087a16ebca13f1da1a322b1dd6

We’ll be talking about a lot of things. Feel free to call in and talk if you have a question. Certainly, we’ll be talking about the new Taylor v McDonough that just popped up yesterday. Ken Carpenter moved the goalposts of Vet claims forward about 30 yards with this one and it isn’t useful just for Vets with NDAs (nondisclosure agreements). This Fed Circus decision is a game changer. Read it here:

Taylor v McDonough-Eq. Estoppel

Of course, if you are out and about and wish to listen on your phone, try

(515) 605-9764

Dial 1 (one, uno, nung) to speak to the person you wish to speak to

Hope to see you folks there this evening.

Posted in Equitable Estoppel, Exposed Veteran Radio Show, Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , , | 9 Comments

§3.156(c)-THE ENIGMA OF HOW TO GET IT

Posted on June 25, 2021 by asknod

Greetings, fellow Veterans and Veteranettes alike. Since I’m still undergoing training on the proper use of pronouns, I’ll err on the side of political correctness and use “you”-e.g. Thank you for your service to America. I think that’s still permitted even if I think it is the absolute worst excuse for an apology to Vietnam Veterans. With that said, let’s proceed to today’s subject. How in Sam Hill do you get the VA rater(s) to actually do a reconsideration as promised in §3.156(c)(1)? Let’s break it down and analyze how to get there.

First, I’ll reprint the actual regulation in its entirety for those novitiates who are unschooled in this intriguing subsection.

(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) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department or from any other official source.

(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.

Interestingly, the original concept for §3.156(c) was buried in §3.400 for aeons until 2006. At that time VA opted to excise it and reinsert it under §3.156. Technically, VA would have us believe the transfer was equitable and resulted in no one being left behind. However, a careful analysis would show the addition of some subtle featherbedding.  I have yet to see VA reduce the requirements for any entitlement that actually made it easier to gain service connection. Think what you may about the MST or PTSD fluff inserted into §3.304, but just remember the number of winners has not increased dramatically. I’ve had one where my client was raped out on maneuvers in Germany in 1986 and came up pregnant. Yeppers. The reg does state  “Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. I filed the claim (her third attempt at summitting) and they said the STRs reveal…”She said it’s probably her boyfriend. They got drunk last month and forgot to use protection.” Only problem is she doesn’t drink and never has. Somebody just put that in there. Notably, the birth certificate has no name listed for the father. Unswayed by this damning evidence, they denied. I obtained a killer IMO and now we sit on the Group W(ait) bench outside the BVA courtroom and wait. So don’t pound sand up my ass telling me §3.304(f)(5) is far less demanding when trying to prove your MST claim. How about my Purple Heart Vet wounded outside Quan Loi RVN in I Corps. We even had the pictures to prove it. Check it out.

That first little curl of smoke to the right is the tractor my Vet was riding shotgun in with a Pig and six cans of 7.62 when they hit the mine. He said it was like being in a washing machine with all the ammo and the Pig flying around. He woke up a while later and dragged his driver out away from the burning vehicle. Look at how far the explosion threw their rig off the road. No TBI/PTSD here, folks. Nothing to see. Move along.

The most important thing you have to grasp is that §3.156(c)(1) is not permissive. VA “shall” reconsider- not “may” or “choose to if they feel, like, super motivated, ya know.” All my expeditions into this claim style have resulted in little more than “No. Denied” to “We checked it out but it didn’t change our minds.” The regulation cited? Why, §3.156(a). The problem is obvious . VA raters have no conception of what or how to approach this. The Prime directive is deny but the  VA  M 21-1 Adobe 2.5 insertaphrase program has little or nothing in the library to use for these contigencies. Hence, they ad lib. This is where you have to bust them.

Are you missing a mouse trap?

Equally important is that if you intend to employ §3.156(c) to support an earlier effective date going back to your very first filing for your ills, your win will be hugely dependent on a period diagnosis. Thus, if you are claiming Bent Brain back to 1970, you will need a psychologist who stated as much back when you filed after separation. The records will need to be pertinent to the alleged injury if you hope to win. You can’t gain traction with §3.156(c) if you present records showing pes planus when you filed for tinnitus and ruptured eardrums.

I’m currently redoing Butch Long’s LZ Cork §3.156(c) claim with Kenneth Carpenter and am learning at the foot of a Master. No,  that’s not to say Ken has an unparalleled record of wins on §3.156(c) claims. I doubt anyone can claim that honor… yet. The point Ken shared with me is to hold their feet to the fire on the first part of the subsection-i.e. §3.156(c)(1)(i)- and make them prove they accomplished the reconsideration. With Butch, I laid this out like a punji pit. I submitted just the proof of the CIB and the PH to pull them in first to force a reconsideration under §3.304(d)/38 USC §1154B presumption as well. It fell flatter than a soufflé during recess in a daycare center but… notably they granted everything without so much as a whimper which invokes the follow-on subsections of §3.156(c)(3) and (4). I came back a second time with a bunch more period STRs and got the same nontreatment . Again,  there was no mention of the reconsideration criteria in (3) and (4) to discuss whether an earlier date was for application. Essentially, VA’s position was “Yeah, you sent in new shit but we don’t see anything that would roll our socks down and give you a million shekels.” That’s not how §3.156(c) works.

As I have written here about my new 2020 filing using yet again even more STRs I somehow overlooked and neglected to include back in 2017, VA has once again shitcanned the decision using the defective logic on how to employ the tenets of §3.156(c). Ken has evolved his thinking further on this subject since the January 2021 denial and suggested we ask for a (bleh) Higher Level of Review (HLR) to force them into actually proving they accomplished this required reconsideration rather than just saying they did so. As most of you know, a HLR is really nothing more than an informal DRO review and a token phone call to check off that box. The HLR has a two-fold purpose. First, it puts the VA on notice that they can’t just shuck and jive or do the Moonwalk and say they reconsidered. Secondly, it will show the Board – and perhaps the Court if we don’t prevail below- that we have crossed every t and dotted every i in our pursuit of justice. We want to give VA every opportunity to step on their necktie and kiss the curb on the way up the ladder. Everyone can see the 800 lb. gorilla sitting on the sofa by now. The specter of having to pay out a million dollars (or more) is anathema to them. Resorting to illegitimate legal ploys was de rigeur the last two times. Nothing leads me to believe they’ll change their tune. I’m convinced VA doesn’t have a Cliff Notes book on §3.156(c). They never needed one because no one had a textbook case that could be won.

Now let’s focus on §3.156(c)’s later subsections of (3) and (4). (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. VA fell into the punji pit in 2015 when they granted everything I asked for in my initial reopening. Nothing was said about the new proof of combat and the applicability of the regulation once they granted all this. Who is to say that they did not use the new records to grant? Why wasn’t that clearly stated in the rating decision? Where’s the VA’s independent medical opinion saying the new records were redundant or not probative? So, how is it I got Butch TDIU right out of the box for PTSD, tinnitus, blindness and a gazillion SFWs from head to thigh… but no discussion whatsoever of §3.156(c)? 

Following that, a new tranche of records in 2017 resulted in a TBI rating and headaches for 50%, a CUE back to 1970 for a separate 10% for the right upper shoulder SFW but nada on the applicability of  §3.15(c)(3) or (4). It appeared to me that they wanted 1970 to go away and the proper way to do it was to throw in SMC S and anything else they could grant without invoking the dreaded regulation and paying out. Old Butch has steadfastly averred he has blurry vision with a traumatic cataract since he woke up after the blast. There’s a “hole” in his vision and VA finally had to concede it with a 10% rating but we’ll hear no talk about 1970. Hear? Oh yeah, and we’ll throw in a year earlier for the tinnitus under $3.114 but it won’t result in any more $. That’s VA’s touchy-feely side. We want so badly to give you a shit ton of money but the regulations won’t permit us to.

Obviously, the village idiot can read between the lines and see how easy it is to grant all these disabilities now-in 2015 to 2018-and plausibly look you in the face while saying ” Oh Hell yeah, you’re screwed up, boy, but the old records you found didn’t provoke us to grant. Shoo doggies, there ain’t nothing in them that would support the new ratings we gave you just now.” So, how do we prove the old stuff we found was the trigger? Why, go get a retrospective IMO that says s/he ( IMO doctor) would have granted in 1970  based on what they are looking at in retrospect. The beauty is VA has already fallen into the punji pit by granting everything without so much as a “but… but”. It would be difficult now to come back and try to defend it (refusal to grant back to 1970) when they already have given away the farm.

One thing that sets Butch’s §3.156(c) claim apart from any others that have been litigated in the past is simple. Butch’s claim doesn’t depend on any Joint Services Records Research Center (JSRRC) records. All the big name cases like Blubaugh or Emerson which were litigated based on §3.156(c) are for PTSD. While their JSRRC records might have supported their alleged  stressor, they did not provide a medical diagnosis confirming they suffered PTSD. Butch’s  contentions, on the other hand, are residuals of eating a 60 mike mike and the resultant concussion blast injury. Admittedly, his claim also includes PTSD- but only as a secondary to being attacked and wounded by the gooks. He didn’t need the JSRRC to investigate and determine whether he had a valid stressor to support his bent brain diagnosis as both Emerson and Blubaugh did.

The presumption of regularity cannot paper over this error. Absent a doctor standing up and saying the treasure trove of old medical records had nothing to do with granting 160% of combined ratings for PTSD, tinnitus, TBI, headaches, right eye vision loss and a gazillion SFWs with retained metal fragments in eight muscle groups, VA is going to have to explain what fact or facts were instrumental in granting all these injuries. To date the cat seems to have their tongue on the subject.

Stay cool in the heat if you live out west. Stay out of high-rise apartments in Surfside, Florida. Be safe, too. I’ve now had two friends who are vaccinated come down with C19. One 40 and one 71 years old. Obviously, the product isn’t perfect yet so be careful. I’ve restricted my AO to the hacienda and the hospital since I came back from Sam’s go-to-heaven party last February in 2020. Nothing is as important as your health. We men usually don’t figure this out until we’re in trouble.

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