HADIT.COM RADIO SHOW–DRO HEARINGS

haditlogo2007Tomorrow afternoon here on the Left Coast at 1600 Local or 1900 Hrs for you on the Easterly portion of the U.S., Jerrel Cook and the Hadit family will once again be allowing me to discourse on the pros and cons of VA jurisprudence.

Nothing gives me greater pleasure than to eviscerate and excoriate the VA’s abominable practice of bait and switch justice. Calling this processs ex parte in nature is a masterpiece of understatement. Here’s the most definitive definition of it I’ve read…

[Latin, On one side only.] Done by, for, or on the application of one party alone. An ex parte judicial proceeding is conducted for the benefit of only one party. … An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution.

Imagine a small claims court where you got up and said “I’m innocent, your honor.” The Court agrees to take a short recess and study the credibility of this new evidence.  Next, imagine the judge/jury suddenly reconvening and allowing the VA’s prosecutor to stand up and introduce one falsehood after another while you’re in the restroom. When you return from your ablutions, you discover you’ve been tried and convicted and it’s over. All the protesting in the world is to no avail. You attempt to introduce new evidence showing your innocence but the die is inexorably cast. And, let me add, you are not permitted any true legal help you can hire for money that might have been of use. You do this on your own sans law dogs. How does that ex parte shit sound now, bubba?

You have one shot at an appeal. Again, still unfamiliar with the rules, you continue to use your free “legal help” from ________________[enter VSO here] and they stand by as a Veterans Law Judge is forced to rule on what you have brought to the table (nothing). If it isn’t the proper kind of medical evidence which would support your claim, you lose again. Ex Parte, bro. But you got your day in Court, huh. Finally, with only one option left, you appeal to the Court of Veterans Appeals with a free (pro bono) attorney and they school you in what you just went through (and why) and desperately try to find fault with some  case of controversy element.

15400408_1375674675829140_6998877984986800015_nEx parte justice prevents you from confronting your accuser and rebutting his testimony in real time. This is what prolongs the process for years-decades in some cases like mine. Tomorrow, we’ll study the one sure-fire method to combat this inequity as it occurs with the Decision Review Hearing. They say a picture is worth a thousand words. I’d go one step further and say a live face-to-face hearing is equally effective in convincing a chowderhead GS-13 VA rater (“coach”as they prefer to to be called) of the reality of military protocols and how that world operates. Like when the word doctor on your firebase meant PFC “Doctor” Pascale Camponelli, your FNG 91Alpha medic with 61 days in-country-when you got there.

I have had three of these experiences regarding my claims and have sat in as a “helper” on several others. My first, in October 1990, was before they were called DRO hearings. The rater who had denied me heard my plea and turned a deaf ear in spite of new evidence which could have been considered §3.156(c) evidence (§3.400(q) in those days). I was a babe in the woods and my DAV rep. sat there like a bump on a log. I’m one for three at this personally and have learned a lot in the interim. Nowadays, I prefer the 45-day Extraordinary Writ of Mandamus as the go-to tool for immediate gratification. Hearings should always be a prewin with N&M Evidence you arrive with. Don’t ask for a hearing if you’re out of hand grenades.

I wasn’t always a fan of these hearings prior to the insurmountable backlog we now have at the Board of Veterans Appeals. It pays to have an open mind and be willing to change your game plan if it can mean a win in 2017 rather than a docket that won’t be heard until 2021. Our finances and life circumstances sometimes don’t permit that extravagance.

We’ll discuss the pros and cons of hearings conducted “on-the-record” as well as off, asking for transcriptions, taking in your own recording devices and more. If you are new to this and have questions, I urge you to call in and ask them. This is your necktie party so you deserve to know the rules. From my experiences, it’s patently obvious your Service representative from your VSO is not going to be forthcoming or a font of useful information. Remember, his Congressional Charter compels him to assist the VA-not you. That casts an entirely new meaning on the term “free” legal help they offer.  Did you know you can ask the Hearing Officer to provide a VA physician to visually examine you at the hearing and read his observations of your appearance into the record on the spot? This can be the big ticket winner if you’re denied and it goes to the BVA or CAVC. Were you aware that you can request the Decision Review Officer divulge what he would require from you in the form of evidence or testimony that would force him to grant your claim(s)? That little gimmick alone is like bringing a gun to a rocks/paper/scissors game but no VSO will ever speak up and ask for such enlightenment.

I hope to help a few of you tomorrow reach success sooner rather than later and avoid the distasteful wait of several more years to accomplish something so obvious it’s a no-brainer. DROs are dense but rest assured their ‘if…then…’ logic circuits come to life if you connect the dots for them. VA’s M 21 1MR simply teaches them how to deny. You can politely provide them with a path to a grant when given the opportunity of a hearing. Honey, not vinegar, attracts bees so be respectful.

The call in number is still the same…

347-237-4819

The young lady who answers still has that thick, ungodly British accent because an English outfit owns Blogtawk radio. I have no control over that facet. She could be from one of those third world countries with an indecypherable dialect so don’t complain.

ss-call-me

 

Dial one (1, un, nung, môt) afterwards during the show at any time if you wish to ask a question. This is your show, developed for you-Joe and Jane Vet- and is designed to help you win-sooner rather than later. Jerrel doesn’t charge for advice but Asknod Inc. does charge for winning it (when hired) after your VSO turns it into Hamburger Helper™. I’d much prefer to teach you how to do it yourself and save you the money but for those who are “differently abled” there’s always that alternative path to success if all else fails.

This just in -Aliens nab DRO walking his dog.

detroit-alien-abduction-template

 

capture

 

 

Posted in DRO and BVA Hearings, IMOs/IMEs, KP Veterans, Lawyering Up, Nexus Information, Tips and Tricks, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , | 2 Comments

LZ CORK-MAMA’S GONNA MAKE A LITTLE SHORT’NIN’ BREAD

 

Put on the skillet, slip on the lid,
Mama’s gonna make a little short’nin’ bread.
That ain’t all she’s gonna do,
Mama’s gonna make a little coffee, too.

cherry1bWhat an auspicious day for a Decision Review Officer (DRO) Hearing. I wonder if the Seattle RO realizes the significance of the date? Scheduling it on the birthday of the man many hold up as the essence of truth itself is very appropriate. But that’s not all he’s gonna do. Butch’s gonna make a little coffee too.

I apologize for my absence here. I had a little surgery that kicked my ass. I dislike writing when high on painkillers so I desisted and tried to heal. Like Ahhnold, I’m baaaaaaack. Butch and his wife have waited a long time for this day in history to unfold. As some of our readers may recall, Butch’s wife Barb, the perennial packrat, saved Butch’s Special Court Martial dated October 15th, 1969 wherein Butch stated under oath that the combined effects of a traumatic brain injury, combined with defective, untreated vision and hearing problems, contributed to his addled state and prevented him from appearing for work at the appointed hour. This lead to the Special Court Martial and Butch’s new digs at the Presidio’s Graybar Hotel for several months, reduction in rank from E-4 to E-1 and forfeiture of all pay. That was a pretty severe Butchslap considering Barb was somehow expected to support their now 10-month old daughter and busy carrying number two. The Army seemed to be inured to her suffering. After release from custody, the separation physical showed a PUHLES rating of E 3 for rt. eye and H 2 for hearing-either one of which would have disqualified him from any more service prior to the Court Martial-let alone after.

butch-bunker

The short’nin’ bread we’re planning on preparing with coffee on the 22nd is especially rich in calorie content- including glossy 8 1/2 X 11s of Butch’s bunker the day before he got clobbered. I always expected the VA would accept the Court Martial testimony as evidence in and of itself.  I really never figured it would be discounted as “non-medical records proving nothing” and given short shrift. That’s what this is beginning to smell like. However, all you wannabe law dogs and pro se defenders of the faith are going to love this added mustard on the hot dog.

 

Imagine this. Butch arrived back at Letterman Hospital, having been evacuated from Army Hospital Camp Zama (Japan) on February 27th, 1969. Inexplicably, he arrived there with absolutely no records of his prior hospitalizations at the 312th Air Evac Hospital at Chu Lai, the 95th Air Evac Hospital at Da Nang nor the Camp Zama records. Usually they tucked them into your stretcher somewhere or handed them off to the Medivac crew on your Freedom Bird. Nevertheless, the records appeared lost and gone forever.

Being a thorough investigator, I have always advocated Veterans seek out all the possible places any of their records can be-just in case. I’ve even resorted to using my secret weapon-Congressman Kilmer’s VA sleuth. He can find a fart in a snowstorm at the National Archives.  The most obvious place, of course, is the National Personnel Records Center (NPRC) in St. Louis, Missouri. Somehow, Butch’s CONUS evacuation records made it into the NPRC a long while after he filed as he left service on April 7th, 1970.

firefighters-outside-nprc

7/13/1973 fire that consumed anything you ever went back and asked for-even if you served after 1973!!

What’s probably most amazing is that it’s too late to call up the NPRC and have them declare those records were consumed in the Friday the July 13th, 1973 fire. His claims file only consists of the Letterman General Hospital records which means… wait for it… all those NPRC records are what we VA advocates gleefully refer to as 38 CFR §3.156(c)(1)(i), (3)(4) records- or more commonly described in the regulation as “service department records that existed and have never been associated with the claims file.” As such, they are the De Lorean time machine to go back to 1970 and begin anew. I had hoped that VA would consider the Special Court Martial as a §3.156(c) record but their sudden desire to offer an almost immediate DRO hearing with the promise of a subsequent decision by the Decision Review Officer beginning the very next day smacked of a railroad job and a predetermined outcome prior to the actual hearing. When VA says they’re eager to expedite, it usually means they’ve reached a decision beforehand. The hearing is merely a formality prior to sentencing and the inevitable Texas Necktie Party.

Now, add to that the fact that the Assistant VARO Director, Cesar Romero, called me personally last week to apprise me of this sudden opening of a DRO hearing date and the willingness of the DRO to adjudicate it post haste and you have the makings of what we call the VA’s Short Line Railroad. VA has never been magnanimous in their gestures unless it means certain defeat. With less than ten days now, they cannot possible retrieve the records and readjudicate it sooner. Even were they to do so, they would be corralled by their very own regulations.

Simply put, VA is required to look at the new records we’ll be introducing showing extensive surgery, debridement of SFWs, closure of the largest wounds, injuries to both eyes and the presence of numerous minute shell fragment wounds with minute retained foreign bodies. If VA had followed their own regulations in 1970, Butch would have been awarded  a severe rating (40%) for each muscle group affected ranging all the way from his face (Muscle Group (MG) 23 all the way down to his right and left upper thigh (MG XIV). For the record, that’s about 10 MGs @ 40% including the right arm and right and left hands, lower back, rib cage and pelvis. In addition, they’ll have to consider his unanswered informal claims mentioned at the 1970 C&P examination regarding his tinnitus, hearing loss, otitis media, blurry vision (traumatic cataracts plural), retained metal fragments to the right eye, earaches and headaches. All these are part and parcel of the traumatic high explosive event with extreme acoustical trauma he suffered that night at LZ Cork.

VA was so callous as to ignore the claims he did vocalize on the 21-526 such as the SFW to his head where a large (2.9mm) retained foreign object still resides in his temporal lobe area. Ignorance might be bliss but the VA was required by their own regulations to thoroughly investigate his injuries with neurological/psychiatric  exams and x rays to discover the truth. Absent the records from Chu Lai forward, they were able to rate him strictly on the residuals of the shell fragment wound scars and little more. Everything Butch said was considered hearsay or lay testimony unsubstantiated by the 38 USC §1154(b) combat presumption. The last note appended to his CONUS evac records from Camp Zama was the most telling-  “Purple Heart Not Awarded This Station. “ The most compelling of evidence that might have substantiated his testimony lay buried in St. Louis for forty six years until we unearthed it.

dsc01079

Click to enlarge

I expect the introduction of the new and material evidence is going to roll down some socks at the hearing. In addition, I’ve requested a VA doctor be present for a visual inspection of Butch’s injuries, the innumerable retained foreign objects which keep surfacing creating new painful scars and the the muscle atrophy et al. One of the codicils in 38 CFR §3.103(c)(2) allows you to request a VA physician be present to visually observe and read into the record what he sees and observes. He isn’t allowed to touch you with so much as a stethoscope. The inspection has to be purely visual. It will be extremely damning to view this in retrospect and the physican’s remarks  and explaining how/why VA ended up giving him only a 10% rating for MG VIII for muscle impairment. Old, healed SFWs from 1969 with scars do not look like the above scars in 2017.

§ 3.103(c)(2) Procedural due process and appellate rights.

[I]n cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.

Each individual muscle group affected must be rated separately and added-not combined. VA is required to rate any muscle group with retained metal fragments at a minimum of 10% unless there is demonstrated x ray evidence of multiple minute retained metal fragments indicating intermuscular trauma. In that case, it is rated as severe. Period.

Talk about stepping on your necktie. Here’s  a sample of the menu of whazzup for the 22nd.

312-redact

capture-redact-1

long-zama-redact

 

catbirdseatAfter talking with a Veterans Law Judge friend, I decided to hold back the Camp Zama records on the off chance the Seattle VA is not dealing in good faith. It wouldn’t be the first time. We can always introduce them at the BVA on appeal if necessary. Considering the fact that Butch has been disenfranchised for nigh on 47 years, I suspect we have a good case for advancement on the docket under Rule 900. In any case, they’d be forced to grant with the introduction of the new and material evidence from Camp Zama anyway. It gives a whole new meaning to being in the catbird seat. If that isn’t enough, we have about another 150 pages of BP, temperature readings and diet records from Camp Zama and the 95th Air Evac at Da Nang.

But then, we haven’t even begun to talk about SMC and Equitable Relief… that’s another chapter. How much do you reckon Butch and Barb spent on medical for those four kids alone and what it cost to raise them?

thats-all-folks

capture8

 

Posted in 1154(b) combat presumptions, 3.156(c), Earlier Effective dates, KP Veterans, NPRC 1973 Fire, PTSD, SMC, TBI, Tips and Tricks, VA Agents, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , | 17 Comments

2017 VA Co-payment requirement chart

This fact sheet (January 2017) and includes Camp Lejeune diseases in Priority 6. Annual income limits for heath care benefits and prescriptions are based on Priority Groups.  See link to income limits below.  Click images to read.

2017-va-co-pays

click to enlarge

2017-va-co-p-2

click to enlarge

Go to this webpage and use tool–the first line–“determine…” (Link).

va-income-tool

Add your dependents and zip code.  Here is the current information for Rice County, MN. 

va-ricecounty

click to enlarge

 

Posted in Agent Orange, AO, Camp Lejeune poisoning, Food for thought, Future Veterans, General Messages, Guest authors, Uncategorized, VA Health Care | Tagged , , , | Leave a comment

Lejeune final rule: March 14, 2017

Frank brings this update about, as NOD has called it, “Camp NoWay, N.C..”   

VETERANS’ CORNER: VA establishes service connection to eight diseases (Article link)

 “The presumption of service connection applies to active duty, reserve and National Guard members who served at Camp Lejeune for a minimum of 30 days (cumulative) between Aug. 1, 1953, and Dec. 31, 1987, and are diagnosed with any of the following conditions:

• Adult leukemia

• Aplastic anemia and other myelodysplastic syndromes

• Bladder cancer

• Kidney cancer

• Liver cancer

• Multiple myeloma

• Non-Hodgkin lymphoma

• Parkinson’s disease”

VA will amend 38 CFR 3.307 to establish presumptions of service connection associated with exposure to contaminants in the water supply at Camp Lejeune.

Fine print–

Federal Register.  Diseases Associated With Exposure to Contaminants in the Water Supply at Camp Lejeune (Link)

This adds to the Camp Lejeune Families Act of 2012 which deals with health care provisions not compensation.

lejeune-2012-act

plus– “Family member health care reimbursement Family members of Veterans who also resided at Camp Lejeune during the qualifying period are eligible for reimbursement of out-of-pocket medical expenses related to the 15 covered health conditions. VA can only pay treatment costs that remain after payment from your other health plans.” (VA text)

This will be confusing for many.

VA notes that “that veterans who develop a condition listed in the health care provisions of the Camp Lejeune Act but not listed as a presumptive disability would be denied compensation benefits for conditions for which health care is being provided. For the reasons enumerated below, VA makes no change based on these comments

My old Marine is registered to get notices–click.

lejeune

click

To find old Lejeune posts on Asknod, just use the search box.

More resources–

PBS Preview of  Semper Fi (Video: 13:23 (Link)

A retired Marine and a filmmaker discusses a new documentary that tells the story of a massive water contamination incident at the Camp Lejeune Marine base. Up to a million people may have been exposed to dangerous chemicals from the 1950s to the 1980s.

The film documentary (2011):  Semper Fi; Always Faithful (link) which can be rented or purchased.

From Worldcat–
“Marine Corps Master Sgt. Jerry Ensminger was a devoted Marine for nearly twenty-five years … As a drill instructor he lived and breathed the ‘Corps’ and was responsible for indoctrinating thousands of new recruits with its motto Semper Fidelis or ‘Always Faithful.’ When Jerry’s nine-year old daughter Janey died of a rare type of leukemia, his world collapsed. As a grief-stricken father, he struggled for years to make sense of what happened. His search for answers led to a shocking discovery of Marine Corps cover-up of one of the largest water contamination incidents in U.S. history…-

Book (2014):  A Trust Betrayed: The Untold Story of Camp Lejeune and the Poisoning of Generations of Marines and Their Families by Mike Magner.

lejeunebk

Posted in Camp Lejeune poisoning, Congressional Influence, General Messages, Guest authors, Uncategorized, VA Health Care, vA news | Tagged , , , | 1 Comment

Feb. 1: Veterans Affairs Secretary Confirmation Hearing

“Pending Nomination of David J. Shulkin, M.D., Nominee to be Secretary of Veterans Affairs”

Tomorrow on C-SPAN 

Will Air: Feb 01, 2017 | 2:30 pm EST | C-SPAN.org

shulkin

“Isakson Meets with VA Secretary Nominee Dr. David Shulkin Discuss shared priorities, needed reforms for the VA Tuesday, January 24, 2017 Click image for info.. Image: Senate

Update 2/7/17 from Military.com (Link):

“Members of the Senate Veterans’ Affairs Committee gathered for a fast vote off the Senate floor Tuesday afternoon. They voted 14-0 to approve Shulkin’s nomination, with no dissent.”

A fait accompli?

Update 2/15/17.  Dr. David Shulkin was sworn in by Vice-President Pence on February 14 as the new Veterans Affairs Secretary.  He has a new Twitter account (link) with a nice 3-part tweet which I believe is sincere.  Have high hopes that he’ll be a fearless truth-seeker, able to manage the myriad tasks that will be thrown at him with wisdom, compassion and practicality.

Posted in Food for thought, Future Veterans, General Messages, Guest authors, Uncategorized, VA Health Care, vA news, VA Secretaries | Tagged , , | 14 Comments

VA Alt-Facts

facts

Franks sends this image in since we all have to deal with alt-facts daily.   Here are a few things that came to my mind looking at the picture.  For Conway, an Alternative Fact is something President Trump believes; Yalie Bill Clinton, explained, under oath, his concept of alt-facts brilliantly to the Grand Jury, “It all depends on what the meaning of the word ‘is’ is”; for VA, a favorite alt-fact is its non-adversarial process of helping veterans get all the benefits they deserve.  Alt-facts rule the world.

The BVA judges like Veteran Law Judge, John J. Crowley have alt-facts mastered. This 12/23/15 decision (Cr. #1553614/DAV/Seattle & Anchorage) is a good example.

Crowley: “INTRODUCTION The Veteran had active service in the United States Navy from January 1971 to May 1972.”

Crowley:  “FINDING OF FACT The Veteran’s hepatitis C was not shown in service or for many years thereafter and is not shown to be related to service.”

STOP:  HCV wasn’t identified until 1989 (Link) but that real fact doesn’t stop Judge Crowley, writing 27 years later, to insist in his alt-fact world, that HCV could and should have been written into this 1971-1972 service records.

An air gun-hep denier, Crowley prefers the examiners opinion that post-service chronic alcoholism was causal, as was nasal cocaine use, in the veterans acquisition of HCV. But he throws in “willful misconduct” just in case our vet drank or snorted in service!

“Although the Veteran asserts that his current hepatitis C is related to service, as a layperson, with no demonstrated expertise concerning the etiology of hepatitis C, his assertions concerning such etiology may not be afforded more than minimal probative value.”

Never mind that Judge Crowley also has “no demonstrated expertise concerning the etiology of hepatitis.”  Or that a VA examiner thinks alcoholism causes HCV.

Well, this denial is a complete mess to a normal reader, but an Alt-Fact masterpiece for those who create them.

Posted in Food for the soul, Food for thought, General Messages, Guest authors, Humor, Uncategorized | Tagged , , , , | 5 Comments

WHO’D YOU VOTE FOR?

img_0220This is what happens when you truthfully answer who you voted for. And it wasn’t the one who won the popular vote, either. Politically incorrect speech is still a new concept to Snowflakes so you may want to take a more considered approach and just flash a delightful, knowing smile in lieu of some sarcastic snappy answer. 

Naw. Just kidding. My horse Kona whacked me in the face with his head Wednesday morning because I wouldn’t give him any more cookies. Cupcake showed up home and was horrified for a moment wondering who had  sucker punched me. I didn’t know I had it because it wasn’t there when I brushed my teeth that morning. It’s a daisy. Maybe this would be a good time to file for PTSD and use the picture as evidence I can’t control my temper.

Of note, too, is this is the first shiner I’ve ever received where no alcohol was involved and it wasn’t over a woman.

Here’ the 1465 Lb. disgruntled voter that bushwhacked me:

img_0222

Posted in Humor, KP Veterans | Tagged , , , , , , , , | 5 Comments