VAROs– MEAN MR. MUSTARD

The VA claims process continues to recede into a “Not It!” game. A rater will struggle to find some procedural stone left unturned and put the claim back in the National Work Queue (NWQ) hopper. Alternately, your claim becomes a figurative game of Keep Away where it is dispatched from one VARO to another every three days and suddenly sent back into the “499” Purgatory for weeks for a “further development” to make it once again Ready for Decision (RFD). On Ebenefits@VA.gov, that must look like imminent completion only to see two more miles tacked on to the claims tunnel. In that respect, eBenefits is about as reliable as a weatherman. 

From the Fort Sam Houston Memorial Veterans Service Center in the town of its namesake, we run into the ‘Not It!’ krewe ratings gurus. A simple request for SMC L for Aid and Attendance of another turns into, first, a denial which can only be seen as biased. After finding no way to overcome this roadblock, I withdrew the old claim for A&A and refiled it as a new reopen. I withdrew a half a dozen other claims for things that will never kill you. When you have two 100% scheduler ratings and numerous others which add up to almost another 100% in combined ratings, it’s generally an indicator that the Vet ate too much asbestos on the ship he served on. VA conceded the asbestos with the two 100%ers but disagrees with the myriad secondaries ratings. COPD, asthma, OSA, MDD, needs a fiduciary, narcolepsy and his wife quit work to take care of him. SMC L for A&A? Hellllllll no.

So, after Winston Salem denied,  I refiled. When you are pursuing SMC L and on up, it’s due and owing the day you can prove your entitlement. If I lose and immediately refile for the same thing, it’s a brand new reopen. If we win, we begin the argument of when   he first needed A&A.  This time Buffalo pulled it out of the NWQ hopper and re-re- reviewed it just for me-and agreed it was a “clean” denial. They sent it back out for a new opinion on all the mental aspects equaling a need for A&A and still came up with a denial.

All this VA poker got us on the other side of the February 19th, 2019 inception of the new Appeals Modernization Act or what has now been named the AMA. Prior to the February 14th, 2019 cutoff date, the RAMP option had no provision for the new filing of your NOD at the BVA. Think about this folks. If your NOD goes to the BVA and is reviewed by real juris doctorate attorneys, you’re getting a real shot at justice. The M 21 Magic 8 Ball is dang near always going to come up denied or lowball unless you’re missing parts and pieces. In certain claims, you will never prevail at the local level anyway. SMC is invariably that way. So are HCV jetgun claims.  VA refuses to give up without a fight to the BVA. With the new AMA, you get to Advance to BVA Boardwalk. It’s like you get a bye on the 16-month wait for the SOC/ VA 9 dance and another six to eight months to get it VAF 8 certified and off to the top shelf of the BVA closet  for a few years. Yes. I know. VA insists this might be as low as 4 months. I seem to remember the rollout of the FDC back in 2013. 98% accuracy, 125 days. If you like your VA doctor, you get to keep your VA doctor. The BVA is secretly praying all you Vets don’t take the BVA route as it will constipate an already overburdened appeals system.

I won’t touch the Higher Level of Review (HLR) Lane. It’s pointless. You could arrive with a Buddy letter from Jesus Christ Himself and notarized by none other than the Holy Ghost… and still lose at the HLR. Worse, it’s not going to be adjudicated by a GS 12-13 DRO. No sirreee, Bob. What have you been smoking? The term “Higher Level of Review” is all relative. If it was originally done by a green GS-9 step 4, “higher level” would be deemed the Legalzoom.com GS -10 step 1 who hired in last fall from GEICO. He did auto claims there for 3 years and saved them lots of money. His dad is probably a Congressman if you’re wondering.

The Supplemental Claims Lane (SCL) will be a necessary evil to get a claim reopened. But again, VA is merely going to use this opportunity to poke holes in your new and relevant evidence. Right off the top, who’s the arbiter of what constitutes “new and relevant”? Think about this. It’s like tennis. You serve a claim to them. It bounces and they wallop back a solid denial. You return the volley and file that new and relevant evidence to permit a second look at it. Bye-bye new and material evidence. You cannot present that at the BVA later. This gives VA oodles of time to figure out how to write up the denial and concoct some Hoodoo Voodoo gibberish in the denial.  You now need some new and relevant hand grenades pronto. Otherwise this is headed straight to jail and you lose a turn. Which is, incidentally, about where you would have (and could have) filed your NOD and appealed to the BVA anyway. It virtually eliminates a SOC, VA 9 and the VA Certification to the BVA.

If you lose at the BVA, you just run back to the Regional Office and refile a VAF 20-0995 and submit new and relevant evidence. The important thing to always keep foremost in your VA claims/appeal plans is to always hold back some N&R evidence in the event you may need it. We’re in a whole new adjudications world that benefits us greatly assuming the new parameters are well-funded and well-staffed. If there are not enough warm bodies to dissolve the megamillion appeals still waiting, this may not fly. But when you think about it, hiring about 2000 GS-14 staff attorneys and using them like VLJs 24/7/365 just might eradicate the horrendous backlog. I, for one, am optimistic.

Posted in Appeals Modernization Act, BvA Decisions, BvA HCV decisions, Humor, KP Veterans, Tips and Tricks, VA Agents, VA RAMP, Veterans Law | Tagged , , , , , , , , , , , , , , | 7 Comments

DAN MOSER–KNOCKING ON HEAVEN’S DOOR

This is a poignant day for all Vietnam Veterans. Imagine having to pick a day and imbue it with great pomp and circumstance. May 5th, 1975 represents the last (official) day of the Vietnam War. We Veterans of the conflict remember it as a day that will live in ignominy. Why, just ask Sen. Richard “Bien Hoa” Blumenthal of Connecticut. I’m sure he has tragic memories from his tour of duty there. I see Mayor Pete Buttigieg threw his hat into  the presidential ring and is even writing a book about his heroic exploits (sans CIB) in Afstan. Should be a good read. The problem with a book now is elementary-it doesn’t allow you to revise your military history later on like Blumenthal.

From what I hear, the conflict of naming May 5th Vietnam Veterans Day instead of  the improbable choice of March 29th was simple. Our esteemed President noted in 2012 that May 5th was already taken by that venerable United States National Holiday known as Cinco de Mayo. Yes, you might hear some sarcasm dripping from that sentence. My apologies. That was probably uncalled for. I cringe to think what would have happened if July 4th had already been spoken for as National Monarch Butterfly Cocoon Day and President Jackson, fifty years later had been forced to choose January 10th for our Independence Day celebration because it hadn’t been “spoken for” yet.  Idiot’s delight. I guess you can understand my unbridled 46-year old cynicism to this day when the VFW told me to sashay on over at the American Legion in Lancaster, California to apply for membership in 1973 because “Vietnam is a conflict, son, not a War. You don’t qualify for membership here.” Funny thing is they’ve been hounding me since I hit 100% in 2008 to join. Gee, you don’t think VA sells their mailing lists, do you?

Sadly, being disenfranchised Vietnam Vets, this was our fate for decades.  It makes no difference to me now that America has suddenly and collectively noticed the forgotten yellow ribbons around the old oak trees and the neglected mention of us taking a Bronze Medal at the Southeast Asian Olympics. I get that. It’s embarrassing to get your American ass kicked in any war. However, suddenly recognizing your faux pas 40 years later doesn’t ameliorate the animosity we returned to. And that’s all I’m going to say about that… today. You can take your Welcome Home Finally shit and stick it. Acclamation delayed is Acclimation denied in my febrile mind.

Dan Moser

This post is to commemorate the passing of my recently deceased friend, client and fellow Vietnam Veteran Wayne “Dan” Moser. Dan and his wife Signe were real estate clients of Cupcake’s and it was a natural fit. His VFW service rep insisted Dan was maxed out on VA benefits at 100%. No mention of Special Monthly Compensation was ever uttered. When I apprised him of his entitlement to so much more, he was initially doubtful such a thing existed. He didn’t call bullshit on me. He just felt no one who considered himself a friend would betray him on something so important. Such is the high quality of VSO training. I leave it to the reader to ascertain whether this was intentional or just a gross oversight due to Montana VFW legal inexpertise. Considering the difference between 100% ($3,227.58) versus SMC R1 ($7,798.09) is about $4,500 and some change, I’m surprised someone didn’t scratch their head and ask them queshuns.

Sensei Chisholm

This is exactly why I chose SMC, Agent Orange Presumptives and Hepatitis C to specialize in. Very few (if any) VSOs even begin to comprehend (or admit) the intricacies and nuances of them. Unfortunately, this lack of understanding also plagues seasoned legal minds who do this for a living. I owe my understanding to the acknowledged master of the art- Robert Chisholm of Chisholm, Chisholm and Kirkpatrick. He was doing this before I even knew what a 4138 was back in 1989.

 

Signe and Dan

Dan Moser was the poster child for R1 and wasn’t even aware of it. I’m glad I was able to help. His funeral and interment was April 26th, 2019 here in Washington State at Tahoma National Cemetery. I have been to far too many funerals for my fallen comrades and I dreaded this one but wild horses couldn’t have dragged me away. Even if I had not been extended an invitation, I would probably have still been there in the background incognito.  It’s a rare honor to be able to do so much for one family. His daughter Cindy may well become  my next new Moser project.

It was also an opportunity to meet his daughters including Leona and son-in-law Ed Dunn. Funny how this works. Ed was in line for an R1 rating too but no one told him. I leave it to the reader to ascertain whether this was intentional or just a gross oversight due to Arkansas VFW legal inexpertise. Considering the difference between 100% ($3,227.58) versus SMC R1 ($7,798.09) is about $4,500 and some change, I’m surprised someone didn’t scratch their head and ask them queshuns. Wait a minute. This is beginning to feel like deja vu.

Ed’s already lost the use of his lower extremities from rheumatoid arthritis and now, sadly it’s destroyed his use of his hands. And on top of loss of use of four extremities, he needs aid and attendance.  His erstwhile VSO is probably wondering what happened to those all-but-guaranteed annual membership dues they’ve had in the bag all these years.

Ed opted in to the Army as an 11 Bravo 10 and managed to pick up a Combat Infantryman Badge during his tour in Vietnam. This whole family has borne the battle and then some.

Ed Dunn, 11 Bravo with CIB/ son-in-law of Dan Moser with author.

Imagine two generations of the same family serving in Vietnam. Wait! I almost forgot my Dad (7/66 to 3/68) and me ( 5/70 to 5/72) did the same.  I”m sure it’s fairly rare but still speaks volumes about our mutual devotion to our country.

Below is a group photo of the Moser clan. I almost feel like thanking the Veterans Administration for making me adjudicate my claims for 30 years. Were it not for their intransigence, I would not have learned the art of VA poker nor would I have had the honor of representing Dan and then his wife Signe- let alone Ed and Leona Dunn. Howard works in strange ways.

(L to R) The Moser family ( Cindy, Signe, Leona, author and Denise

Speaking of getting into a pickle, the latest Pickle Report- 16 lbs and counting as of Friday last. She’s like a F3 tornado and growing inexorably. I cannot even imagine trying to do this in ten years. At 68, it’s like a brand new baby except for pee pads and the dog food. Those dark circles under my eyes are from lack of sleep.  Taking her for a walk is a piece of cake. Simply take a leash and drag it behind you. She’s on it faster than a small mouth bass on a #2 Mepps® Spinner in June. She takes you for a walk.

Taking the tractor for a walk.

Pickles does seem to have a factory defect that disturbs me. I’m pretty sure Cupcake would forbid me returning her as damaged goods at this late date but her tail is a decidedly different color about half-way down. I’m thinking about taking her down to Sherwin Williams Paint Store tomorrow to get a color match. Click below on the pic for a close up. This isn’t photo shopped.

Wardrobe malfunction

Last but not least, I finally hornswoggled a SOC for my long-lost greenhouse out of my arch nemesis VR&E Officer over in Seattle on Friday. That must be a world record. I filed on 10/10/2018. It only took two calls to the White House Hotline and the threat of another Extraordinary Writ (#4) Hallelujah! I can now opt in to the new AMA and proceed to the Board of Veterans Appeals. I’m hoping to be able to get Veterans Law Judge Vito Clementi again for a Travel Board hearing for the proper size.

This ought to be a hoot. I’m counsel for, as well as, appellant. This time I’m flying to DC for the hearing. This is like playing VA poker with 3rd graders. Ol’ Brer Boyd (fox) and Brer Crosby (bear) barely know how to screw you out of VR&E benefits but litigation is definitely not their strong suit. Google ‘post hoc rationalizations advanced for the first time on review of agency actions are entitled to no consideration’. Check out my old friend Martin v. Occupational Safety

Graham Greenhouse SOC redact

I’m pretty sure I  know what’s at the top of the Labrador Retriever food pyramid….H2O coming out of a hose. I showed Pickles this magic and now every hose on the 5 acres has to be carefully inspected…daily.

 

 

 

Asknod what your country can do for you

 

 

 

 

 

 

 

 

 

Posted in All about Veterans, AO, Independent Living Program, KP Veterans, Milestones, SMC, Stolen Valor, Tips and Tricks, VA Agents, VA Attorneys, Vietnam War history, VSOs | Tagged , , , , , , , , , , , , | 2 Comments

EASTER TRICK OR TREAT AT THE VA

No, I’m not a conspiracy freak. I do not’ subscribe to Chemtrails Today or Deep State Magazine. I instead prefer light humor and get the news feed from the VAOIG Monthly “Highlights”. How about that discovery that all those VA whistleblowers (thinking they are anonymous) just discovered their bosses are the ones looking into their allegations of wrongdoing? Is that a hoot or what? That’s even richer than State’s Attorney Kim Foxx “colloquially recusing” herself from the Smollett hen house massacre. But wait. There’s more here at the VA that bears close examination.

(revised 1633 Hrs PDT; 4/24/19 @ 1001 Hrs PDT)

Having played VA poker for nigh on thirty years, I have watched the revamping of the denial process. It’s evolving like the cell phone. VA justice was crude like the old Motorola brick phones in the beginning. However, they were dual use. You could grip that rubber ducky antenna and use it like a blackjack when some chowderhead tried to steal your favorite red baseball cap. Unfortunately, you couldn’t whack a Veterans Law Judge upside the head. Unlike the old phones, now we can surreptitiously record video and conversations and bust folks doing what they insist they weren’t. We can also review a claims file and discover what we were never meant to see.

After the War of 1812, the Govt. found itself knee-deep in Veterans. Some method had to be invented to fence the malingerers and trailer trash out. This gave birth to the “acute but resolved before separation” excuse. It was lethal to claims but eventually, someone (the CAVC) spilled the beans in Caluza v Brown. Read it. From then on the acute and resolved gig declined in popularity at the VBA. Eventually, with the advent of social justice and real law, the Board of Veterans Appeals was forced to appear “equitable” and begin paying more than lip service to terms like “equipoise” and “presumption of soundness”. I actually toss in a blurb at the end of my briefs and insist on the benefit of the doubt. Of course, I use fancypants words like:

Appellant feels the appeal is in equipoise and asks for the time-honored pro-Veteran canon of statutory construction most recently espoused in Henderson v. Shinseki, 562 U.S.428, 441 (2011) (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). The pro-Veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991). The Supreme Court first articulated this canon in Boone v. Lightner to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” 319 U.S. 561, 575 (1943). This same policy underlies the entire veterans benefit scheme. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.”

Perhaps it was Bill Clinton (I’m not sure on this one) who said “If you cain’t impress them with your alleged intelligence, baffle them with bullshit and jokes about how you didn’t inhale”. My point is I use every judicial tool at my disposal like a Bullshit button to combat this mayhem at the 57 Fort Fumbles across the fruity plains. And I have amassed plenty. I have a folder for briefs with all my Killer Cites to deflate bogus VA allegations and “findings of fact”.

What concerns me most is a growing trend in adjudications. I speak of the new (relatively) National Work Queue (NWQ). I created the analogy of a giant Lotto hopper with all the VA claims numbers in it and an air jet to swirl them around for the TV cameras. It begins thusly:

  1. Insert claim at the EIC in Cheeseville.
  2.  VA ‘technician” (and I use the term loosely) removes the claim from the tumbler and tries to decypher whatever it is you are claiming. After typing it up and assigning an End Product code (EP 020) in M 21-ese, s/he reinserts it back into the tumbler.
  3.   Yet another techie removes it several weeks later and decides if you need a medical c&p exam. And then throws it back into the hopper.
  4. You get a notification several weeks later to report  to QTC/LHI/VES or you local VAMC to be examined for these “alleged” illnesses/injuries.
  5. Three months later, the exam results are uploaded into your claims file. And here is where the new travesty of justice ensues. But first-back to the tumbler. Remember, I have only discussed five steps so far but more than 20 VA techies have put their fingerprints on this baby by now.
  6. A rater (#1) now “develops the claim”. By that, I mean they use OCR text recognition to cruise through mounds of VAMC CAPRI hospital paperwork, your VAMC files, your Service Treatment Records and anything you submitted. So, what happens if you’re like me- a Vietnam era Vet with a lot of hand-written records? Well, pilgrim, you’re plumb screwed to be honest. They haven’t taught cursive writing in 10 or more years. Worse, even if you were adroit at reading cursive, you’d need an advanced primer on reading contemporary doctors’ chicken scratch. Those VA techies blow this chapter off and proceed merrily on to getting it “Ready for Decision”.
  7. Finally, about the magic 125-day point, someone looks at the suspense date for cranking out a decision. Ready or not, here s/he comes with your M 21-derived rating. As we know, 85% will be denied. Often, this is the 3rd or 4th rater to begin the “promulgate decision” mode. Usually, they discover they’ve forgotten something and it has to be “reworked” to ensure it’s wrong. There’s a lot of this. The Houston rater knows it’s a shit show. S/he would rather find some minute error and stick it back in the tumbler for the VSR in Winston Salem to put out. It’s a game of ‘Not it!’.
  8. With the new AMA claims system, you now need either a sympathetic ear at the Higher Level of Review (HLR) venue or some most excellent new and relevant evidence to submit to the Supplemental Claims Lane. You can also go to the BVA and proceed to what we used to call a Notice of Disagreement based on the fact that the cursive handwriting was never part of the real record even though the rater said it was. I’ve given up at the Regional level other than to file the claim. In fact, I make no pretense of submitting any evidence. Why bother? Why not let them hamburger it first?

There’s another ploy to consider. If VA denies first off, then you can fulfill what you’re lacking and cure it. If they come back and deny on a different theory from the original one, why, that’s a post hoc rationalization  (see Martin v. Occ. Safety and Health  Council). Litigating positions are accorded no deference if they are merely post hoc rationalizations for prior Agency actions advanced for the first time on appeal.) You’ll see VA do this frequently and no one catches it. What gives?

The new VA claims technique is more subtle. The M 21 seems to have been reprogrammed to allow raters to ignore what appears to be exculpatory evidence and rely entirely on what the M 21 copier spits out into the ‘printing complete’ tray. Gone are the good old days of one rater (not 50) taking your file home with him at night and reading it after dinner. S/he would develop it from beginning to end and provide a rational answer. Yes, Virginia, there were problems with this like the Friday the 13th (July) 1973 NPRC barbecue on the sixth floor that magically burnt up records which wouldn’t be archived there for a decade or more. Worse, they sometimes float to the surface of the VBMS 40 years later when someone finally notices nobody ever actually wrote back to the NPRC  and asked for the STRs back in ’73. This is becoming the frequent “oh-so-rare CUE error” we were told about in Fugo v. Brown.

Essentially, the NWQ is modeled after the Detroit auto assembly model. As the car moves down the assembly line, VA ‘installers” complete preliminary tasks like c&p exams, pseudo research via Wikipaedia™, trying to ascertain if you “stepped foot” in Vietnam, if you smoked cigarettes to defeat lung cancer presumptives, denial if your dad had Parkinson’s so you had a genetic proclivity for it, etc. Instead of one comprehensive examination of all the assembled evidence and a truly exhausting review of the potential for extending the benefit of the doubt, we now have upwards of 50 yayhoos with their fingerprints all over your file from Buffalo to San Diego-before a decision is even made. And, like Detroit, if they forgot to associate the SSD records with your TDIU claim, it goes down in flames. Advance token to Go and lose a turn for remand.

It used to be we could call up our local Puzzle Palace and ask what they were smoking when they denied our claims (or our clients’ claims). Now I have to have access to the VBMS to see who was last assigned the claim/appeal in the Notes section. I have to call up the Change Management Agent (CMA) who serves attys/agents at the offending VARO and have him ask the rater to please call me or explain how they arrived at such a flawed conclusion. I usually get a polite email answer saying ” Well,  I asked for you and the rater looked it over but they are unable to grant. Fortunately for your client, he has innumerable options to seek a higher level of review ad nauseum. Please thank him/her for their service.”

There was a time we could barter over the phone or in person in the RO’s cafeteria (no recording devices permitted). They didn’t frisk you for a wire but it was almost that bad. If push came to shove, they’d deny it was them and the recording was fabricated. Those days are lost and gone forever. VA’s theme song is Paranoia Big Destroyer. So, too is the much-vaunted DRO hearing. At best, I can get a “higher level of review ” rater to call me back and almost pretend to listen to my diatribe. Pretend is the operable word here.

For all you attorneys and agents- beware the “Supplemental Claims Lane (SCL)”. As the name implies, this characterizes the old NOD in a new light. It is a new claim for all intents and VA’s purposes so newsflash-no 20% for a win. That will require a HLR or a trip to the BVA to get your baksheesh.

Now for a new scam. You have an IMO, You foolishly send it in with your shiny new claim. Well, boy howdy this ought to speed things up, right? Not. Va promptly goes out and finds a VA proctologist to opine on your TBI symptoms and you get the resultant “Unfortunately we are unable to grant your claim(s). The VA Examiner got a big bang out of your IMO but we determined ours was far more probative because we-unlike your doctor- read the claims file.” If they’d done their homework, they’d see your 3288 requesting the c-file and know that was part and parcel of the IMO data reviewed. Fat chance of that happening.

So, you think you’re smarter than the average bear and send the IMO in as a Supplemental claim. VA is now sending these to the Black Hole or the Appeals Management Center (AMC), renamed the Appeals Management Office (AMO) and now the Appeals Resource Center (ARC). Six of one and half a dozen of another. The last and newest name reflects the truth. They analyze the IMO for a weak spot and illegally shoot it down. We solved this problem initially with the ‘vague’ Mariano v. Principi  argument that you cannot deny if a Vet has all three elements necessary for a grant-i.e. 1)disease/injury/presumptive in service, 2) same thing now; and 3) the golden IMO. Fortunately, the CAVC came back and clarified that in Hart v. Mansfield. Here’s my killer cite for cut and paste in the brief.

Mariano v. Principi, 17 Vet.App. 305, 312 (2003) held that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case.” Id. (emphasis added). This single sentence, although rendered without further explanation, states a broad, general proposition, that was revisited by the Court in Hart v. Mansfield, 21 Vet.App. 505, 508 (2007). Hart stated that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination.

For every VA denial, there’s usually a regulation or a precedental Federal case cite that will eviscerate it. Finding that sucker is the challenge. If you have Westlaw at $59 a minute, you’re loaded for bear. If not and you are a DIY pro se Vet, I’d use the BVA decisions for my cites. I did it for decades during my battles and it paid off handsomely. The repair order for an 86’d IMO is Hart supra (above). To avoid this conundrum of IMOs that are dead on arrival, I now only submit them to the BVA. There, they are received as real incontrovertible evidence and never rebutted. The BVA is constipated with a gazillion appeals. Hand a Veterans Law Judge a giftwrapped appeal w/ IMO and it’s a chicken dinner winner every time.

I find half the battle is reading the denial decision in excruciating detail. Take each sentence apart and analyze it for what it says- or more importantly-what it doesn’t say. If it sounds like bullshit, it probably is. No. Let me rephrase that advice. Most are bull shit and have no basis in VA law or congressional statute. VA is big on mission creep. The more they deny, the bolder they become.

Please do not read this as a screed against VA raters. It isn’t their fault. They are handed a file and expected to come up with a decision-more often wrong than right- in a very short time. Worse, they were not able to become acquainted with it and see incongruities that would jump out and bite a seasoned law dog’s eyeballs. The mantra seems to be “I trust everything done by my compadres before this ended up in my in-basket.” This is how the Challenger’s frozen O-rings escaped detection. This is how Apollo 13 ended up in a world of shit 200,00 miles from home. Assume nothing. How many times have you heard the plaint “I didn’t know it was loaded. It’s not my fault _____ is dead.”

I pride myself on not presuming I know everything. I recognize I’m not perfect so I review my work to the point of redundancy. I play Devil’s advocate and take the VA’s side of the claim to determine if I can find glaring flaws. This is what every Rainmaker should do. Just because you have a Juris Doctorate and the word Esquire after your name (I don’t) doesn’t give you a bye on intelligence. Remember, VA raters do not have anything close to a JD and many create denial logic out of whole cloth. They rely on you swallowing their hooey hook, line and sinker. Therein lies the fabled 98% accuracy claims they tout. You, or your VSO reps do not appeal 98% of the time-ipso facto, they (VA) are right 98% of the time.

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

Posted in All about Veterans, AMC or ARC, Appeals Modernization Act, C-Files and RBAs, Humor, Independent Medical Opinions, KP Veterans, Presumption of Soundness, Tips and Tricks, VA Agents, VA Attorneys, VBMS Tricks | Tagged , , , , , , , , , , , | 4 Comments

VA EXAMINERS–CHARTER MEMBERS OF THE FLAT EARTH SOCIETY

I’m sorry I’ve been remiss. I have been a slave to the typewriter attempting to cure the misguided proclivities of VA raters across our rapidly fruiting plains this spring. It seems there is something in the water or left-handed tobacco has been legalized and they aren’t being dope-tested. Jez, where do I start today? Ahh, of course. All of you folk must be into that new business gig  LinkedUp®, right? About six times a day, I get an update to “Congratulate Bob on his reaching 90 days sober at Astin Mechanical.” My new influizers (sp?) are Honey BooBoo and Michael Avenatti. I was searched for 5 times last week by huge corporations who might want to buy me?  Cupcake signed me up on LinkedUp™ so I have no idea what she said about me. Look me up. I’m in the icloud somewhere. I have accountants who pay for it all.

Pickles has now doubled in weight to 11 lbs this AM. Puppy breath is still there.

 

I got my ass whipped by a couple of losses I didn’t see coming but this is what  we have to endure at the regional level. Always remember this is an insurance company. The  VA’s fisc is a clear responsibility they look at like the Huns (Veterans with alleged disabilities) at the Gate.  I draw the line when they start coming up with the following sleight of hand. Imagine you’re rated for two separate things-in the instant case here- TBI and PTSD. They’re two separate “disorders”- DC 8045 @70% and DC 9411@50%. They might share one or two overlapping symptoms but they generally have two entirely separate sets of “conditions”. Remember those descriptive nouns for mental “issues”.

Now grant some other increases to a banged up body like 50% for headaches and 10% for tinnitus for TBI they somehow overlooked for 50 years and…oh-oh…jez, he’ll be entitled to SMC S. Can’t have that. Quick, conflate two ‘disorders’ into one and disappear the PTSD into thin air. Yes, ladies and gentlemen. A rater pulled off this amazing trick of prestidigitation and then had the balls to say the VA, in its munificence, wouldn’t be filing to recoup the overpayment to the Veteran for the last 4 years.

Actually, the language in DC 8045 says rate the TBI shit under TBI and rate the bent brain shit under PTSD. That’s to avoid pyramiding. And here, the rater gets points for trying to bullshit a bullshitter. He gets plumb amusing for attempting to”reintegrate” two disorders into one. Reintegrate?

Well, hush my mouth. I thought it was a sub silentio reduction in rating.  I went on a writing jag and cranked out the most excellent rebuttal to an SSOC in all my years. Most times I wouldn’t get all in a tizzy and just take it to the BVA. Welcome to the new AMA folks.  That’s what we’re doing now. This was written, not for the 70 IQ GS 13 Booth Bitch in Jackson, Miss but for the edification of a learned Veterans Law Judge and his staff counsel.

Rebuttal of SSOC redacted

Now, if that wasn’t the biggest error they hoped no one would ever unravel, how about the same story in a different town a month earlier. This time, the Vet has a mess of 10s, 20s, and 30%ers along with a total loss of rt hand. The army operated on it to fix a finger. Five surgeries later, the hand was a feeder claw like on a lobster. The army sent him packing with 60% for the hand instead of 70%. Uh-oh. 1993 CUE. Well, they ignored the CUE and took away a 26 year rating of 10% and a 9-year rating of 10% (20% total) saying it was, well, nonsymptomatic dude and we can’t pay you if the boo boo got all better, now can we? And besides, we gave you 30% for your hip right before we took the 20% away. Since we really didn’t reduce your rating by 86ing the antique rating, you’re still at 80% instead of 90%. And oh, by the way, that TDIU? Nope. We tried but we couldn’t swing it with you only being 80% rated and all.

If you go down into the Go To Work section in the VBMS, you see the deferrals flying back and forth.

Rater #1: Increasing hip to 30% with increase in Left ankle results in 95% combined rating. Refer back to coach.

Coach: Add scars up. Do they equal 6″²? o%. Also. we have a problem. Veteran’s agent has access to VBMS and can see we’re fixing to screw him on a protected rating. You have my authority to promulgate. Screw the agent.

So here we go. The VA rater blithely takes 26-yr. old antique painful scar rating(s) and conflates all the scars into square footage. Uh-oh. You need six square inches to get to 10%. Way missed it by thaaaaaat much.

As for that pesky CUE, he’s right All the PULHES scores at entry were 1 across the board. The exit has a 5 on it for upper. Screw it. Call him left handed now and confirm the rating of the non-dominant (formerly right handed) hand at 60%. Next?

I can’t make this shit up. This is what happens when you have to crank out 10 decisions a day or get demoted. Or, God forbid, screwed out of your bonus Performance Pay Incentive Allowance.

Here’s my answer to dufus in Houston who has no idea how to spell 38 CFR:

Redacted CUE NOD pdf

Remember, if you are the CUE guy, you are a “movant. Otherwise you’re a claimant or an appellant. When you file an Ex Writ at the Court, you are a petitioner.

P.S. Here’s a little something  you and your buds could cook up this weekend.

Posted in 1154(b) combat presumptions, 3.156(c), Agent Orange, All about Veterans, C&P exams, CUE, Earlier Effective dates, Humor, KP Veterans, Reductions in rating, SOCs and SSOCs, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 8 Comments

THE NEW APPEALS MODERNIZATION ACT…AND MORE

When we hit Nashville for the NOVA conferences 20-23 March, I actually though I had a good handle on the AMA layout. Well, ‘not exactly’ as they say over at Rentawreck™.  So, since the time we walked out of there, I’m still somewhat disflusticated as to whether I heard all that co-reckly.

Here’s the take. I compared it to a Mobius loop for the 4/11/2019 Hadit.com Blog talk radio show yesterday with Jerrell Cook. As promised. I’m going to draw one out here and then put in the dotted lines to connect all the possible combinations. Remember there are two forks of three paths each. Well, except for the fact that you can jump around like a hoarder in a flea market and go whither thou choose. Confused yet? Okay. I relent. here’s the Rand McNally roadmap.

First of all, as long as you meet all suspense dates, you can technically keep your original effective date forever or until you lose at the CAVC or the Fed Circus. Thus you lose at the SLR and then the HLR. You file your NOD to the BVA and get your front teeth kicked in. You then discover you needed a nexus/IMO all this time and get one. You go back to the Supplemental Claims Lane and begin again… but… with the original filing date. How  cool is that?

Now for the insanity. You put in three claims. Each one can have a certain path depending on denial or a desire for a higher increase. The problem is elementary. How do you present or provide evidence for a higher evaluation for a HLR? You can’t. You cannot submit squat in a higher level of review.  Your only option is to go to the BVA or back for a do over in the SCL venue. This eventually devolves into a game of being able to manufacture N&RE in vast quantities and hoarding it to insert as necessary.

I personally think the kicker is that you can  make a u turn after the BVA loss and begin anew at the SCL with more evidence and keep you filing date. As usual, we’re going to learn by error. My attitude about the HLR Lane is decidedly negative. I’m pretty sure it will be a “What part of ‘no’ don’t you understand, sailor?”

And boy howdy, if you even thought the BVA was more constipated than a sailor on a desert isle with a pallet of American cheese right now, well… you ain’t seen nothin’ yet, honey. This is going to be a fustercluck of epic proportions. They have 600,000 Legacy claims still sitting there.

So, in review, there are no more RAMP claims. They ceased on February 14th, 2019 at 1630 Hrs Local. On February 19th, 2019 at 0800, we commenced the new AMA. If you have a Legacy claim, you can keep it. I know that lead-in sounds suspiciously like the Obamacare promise but it’s true. You can drive your Legacy to the end and take it to the CAVC. Or….the moment the VARO issues you a SOC or SSOC, you can opt in to the AMA and go to the BVA for one of the three choices I discussed above. It’s a smorgasbord of choices-sort of a mix-and-match or a salad bar.

Most of my clients are very ill so I try to get Travel Board hearings whenever possible. If the schedule is too crowded, the option is there to go to DC and do it at 810 Yellow Brick Rd. NW. All my folks are in the Tidewater region anyway so it’s six of one and half a dozen of another. Kill two birds with one stone.

Posted in Appeals Modernization Act, BvA Decisions, Humor, KP Veterans, NOVA Attorneys, VA Agents, VA Attorneys, VA RAMP, VA suspense dates, Veterans Law | Tagged , , , , , , , , , , , , , | 11 Comments

HADIT.COM RADIO SHOW–THE AMA–A MOBIUS LOOP?

Sorry I have been remiss but it seems VA has been bery bery productive in cranking out denials. Jez, wait until I opt in to an HLR. In truth, I’m ecstatic that some of these came out post-February 14th. I don’t have to tangle with the Jackson, Mississippi negative Nancys now. 

Tomorrow, the Good Howard willing, we’ll do a radio show with Jerrell and John. The same old Bat Time and Bat channel of course- 1600 Hrs on the Left Coast and 19oo on the Least Coast.

The subject, of course, will be the new Appeals Modernization Act. I’m sure they call it Ahmah by now at the ROs. Come on. If they call the D R Os  Droze, you know they weaponized it by now. How about Seeler for a suplemental claims lane or Heeler for a Higher Level of review. Shot, we out to call up the VA prize redemption line and discuss it with the VA’s “technicians”. Can you imagine walking into the VFW to see you service rep and asking “How’s my Heeler coming?” Chances are they’ll rename them into an intelligent-sounding acronym.

Pickles whelped 2/15/2019

We’ll talk about these interesting subjects, my new dog and more tomorrow. Imagine being able to jump from the RO denial to a BVA NOD. Better yet, imagine jumping from a BVA denial back into the Supplemental Review Lane and grabbing a SME IMO and managing to keep the same effective date. Is this crazy or what? I’m sure their Honors at the CAVC are praying Vets do so.

Enjoy life as best you can until tomorrow afternoon, kids.

The Call in Number is still the same

347-237-4819 (push #1 to talk)

 

Posted in Appeals Modernization Act, Humor, KP Veterans, SVR Radio on hadit.com | Tagged , , , , , , , , , , | Leave a comment

NOVA–THERE’S NO BUSINESS LIKE VET BUSINESS

Cupcake- Spring Toga 1981

Just as Spring approaches and everyone is planning their Toga Parties, I, and other like-minded Veterans Advocates descend on the Spring Conferences. What? You guys don’t do Toga Parties? How utterly uncivilized. At the NOVA conferences, we learn new tricks on how to set up blind ambushes, invisible Punji Pits and the proper deployment of assets. How fun is that? Well, probably way less funner than  going to WallyWorld™ for most Veterans. So much to learn. So little time. Having an F4 Metavir Score is not to be confused with being a Chicken Dinner Winner so I want to make the most of what I have left. 

Imagine being given a Super Power like Capt. America or Thor. Well, that’s what the VA Power of Attorney is. It’s like walking in and flashing your badge. Whoa there, cowboys. Not so fast. Did you Miranda him? Didn’t think so. May I have a moment alone with my client?

Then imagine getting to do this for Veterans. Is that too cool for school or what? Shoot, if I could clone myself and teach others, we could spread out across the fruited plains and wipe the VA out financially. I know. That’s counterproductive if you’re a bona fide tax-paying citizen but if you want to dress up like GI Joe and go play in someone else’s sandbox, there’s bound to be collateral damage. Appropriating funds for disability compensation should go hand-in-hand with 5.56 and 7.62mm procurement. Since they never do, the Govt. has enabled VA to “underserve” us. But… they forgot to plug the slot in the complaints box. In 2007, Congress allowed attorneys to stick their noses under the litigation tent . This also created a niche enterprise that allows non-attorney practitioners and VA agents to engage in H&I from 0800-1630. Seriously, dude. You get to dress up like Perry Mason and have all the same super powers given to someone with a shiny new Juris Doctorate-along with a crushing student loan of $225,000 @ 12% interest. Boy howdy. Like Beto O’Rourke said yesterday, “Man, I was born for this job”.” Ten years ago, I spent 58 days in ICU. They nicknamed me Mr. Defib. I had no idea you can still hear them when they yell “Clear!” Weird, huh?  I’m ready for this, now. I even have my own defib unit on-board, too. Gee, I wonder if I’m supposed to yell ‘Clear’ when it goes off. Not likely. I’ll be doing the chicken at 30,000 joules. Chances are I won’t be saying shit either.

You don’t have to belong to NOVA to go to these conferences. If you just wanted to attend as an observer or student, they have a special rate for that, too. The more advocates we have, the more Veterans we can help. There are three million plus Veterans out there with disabilities ranging from 0% to 100%. Trust me when I say they are not being served very well under the existing system. To me, the crime is no one at VBA is proactive-even at  VHA hospitals – unarguably the first line of encounter for gravely ill Veterans. There ought to be a huge 14-point type at the top of the intake form that says:

PLEASE FILL OUT THE FOLLOWING BELOW

  • Would you like to apply for benefits today?                               [  ] Yes    [  ] No
  • ”                              ” establish an informal claim at this time? [  ] Yes    [  ] No
  • If already service connected, is this related to it?                     [  ] Yes     [  ] No
  • Do you have a VA representative?                                               [  ] Yes     [  ] No
  • Attorney  [  ]     Agent [  ]    VSO  [  ]   Next door neighbor  [  ]
  • Should we contact him or her?”                                                   [  ] Yes     [  ] No

I’m finally beginning to notice more folks are capitalizing the word Veterans as they should have long ago. I certainly hope that will be the norm before I pass. Thank you- all of you- not just the VA and some of their incredible CMA employees. I want to thank all of you who allow me to help you. It’s a wonderful feeling and a great honor to be entrusted with such a task.

And lastly, that burning queshun on everyone’s lips.

Posted in 2019 SPRING NOVA Nashville., All about Veterans, CAVC Knowledge, Complaints Department, Future Veterans, Humor, Important CAVC/COVA Ruling, Inspirational Veterans, KP Veterans, Lawyering Up, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, vA news, vARO Decisions, VARO Misfeasance, VBMS Tricks, Veterans Law, VSOs | Tagged , , , , , , , , , , , , , , | 1 Comment