VR&E ILP–RESTRICTED ACCESS CLAIMS CENTERS (RACCs)

Have you ever disobeyed a direct order and literally come out smelling like roses? Have you ever plunked a pair of MK 82 500 pounders right into the mouth of a limestone karst cave off Route 7 and gotten secondary explosions for three days? This one is better than that. A little music, Maestro while I discourse on my perennial battle for a proper greenhouse.

As most know. I filed for a greenhouse May 8th, 2011. Long story short, I fought through four years,  a SOC and several SSOCs to get to the VA 9. It actually took a Writ to extract the VA 8. After combining it with a disability increase in 2015, Veterans Law Judge (VLJ) Vito Clementi granted it (the greenhouse) but neglected to specify any particular size. No one could foresee, and certainly no one would expect, my VARO VR&E Officer to become even more vindictive and retaliate once the VLJ had spoken. Right. You don’t know VR&E Officers.

GS-14 David Boyd.

My nemesis was, always has been, and continued to be, a certain Army Veteran named Mr. David Boyd- until January 31st of this year. Davy told me flat out about two days after I applied for the ghouse in ’11 that a snowball in Hell had a better chance of remaining frozen than any of my ILP claims ever being granted. Poor Dave. Army folks are two dimensional thinkers. He’s never dealt with Air Force Veterans apparently. After the BVA remand to implement the claim, he spent four months in contact with VR&E VACO, VA Regional Counsel and the Office of General Counsel (027) diligently trying to overturn Judge Clementi’s award. Failing that, he then attempted to violate Karnas v. Derwinski by utilizing new M 28 “instructions”. All that must sound like a mouthful. Boiled down into Vetspeak, Mr. Boyd set out to award as little as possible and take as long as possible to do it. Some refer to it as delay, deny etc. or the VA hamster wheel. I finally began filing Extraordinary Writs of Mandamus (3) to force them to give me the properly sized, suitably equipped, mutually agreed-to greenhouse.  I was denied the Writs but that is immaterial. It shows a diligently pursued claim and appeal with no interim slacking off. The CAVC recognizes my situation and eagerly awaits my return if VA denies me again.

Each time I have been tripped up by not exhausting all my legal remedies.  I can only agree. I disagree with how the regulation (38 CFR §21.98(b),(c)) is construed but that is a Chevron/Auer deference argument which may become moot if Kisor v Wilkie is decided at the SCOTUS in our favor. Granted, I appealed all the way to the BVA for the greenhouse itself- but not the size. Mr. Boyd and our old VR&E Director, Jack “ringknocker” Kammerer attempted to give me a toy dollhouse/greenhouse with a hosebib, a  porcelain pull chain, 60 watt light and an outlet.  I have to appeal yet again for the specific size. Which is where we’re at now- sort of…

Restricted Access Claims Centers

Check these snapshots from VBMS I found on Friday out. Seems they’re going to want a VSR or higher to write the SOC.

This one shows they have to RACC it to St. Paul.

click on this to enlarge

 

Mr. Boyd’s foot (R dorsal)

First off, on September 12th, 2018. I filed a new VAF 21-0958 and expressed my displeasure by asking for a SOC/VA 8 in order to move this shindig back up to the BVA. I have received nothing but the deafening roar of silence, which, it turns out, was a fortuitous delay for me. Being an enterprising fellow, while I waited, I filed a VA Form 21-22a “Appointment of Individual as Claimant’s Representative” and began representing myself in an official legal capacity rather than pro se. Why not?  Next, I filed a VAF 70-3288 Request for my VR&E claims file. Lastly,  I called the White House Hotline (855-225-0709) to register my complaint of inaction. Whereupon, shit started happening. Saint Paul’s Fort Fumble pulled it out of the National Work Queue (NWQ) and couldn’t make head nor tails of it (Aruuu? Greenhouse?) and sent it over to Seattle (and our good buddy Vet David Boyd). Davy promptly buried it somewhere waaaay down in the in basket but you know VA computers-yep- some alarm bell went off and said “Danger! Danger! Will Rogers. You have a M 21-1  III.ii.4.A.4.a Level 5 emergency. VA Agent Graham has filed a POA… huh?… on himself? Wait a minute. Can he do that?  We don’t have to give him access to his c-file on VBMS, do we? Oh shit. Oh dear. He’s already inside the wire! Unfortunately. CWINNRS (VA VR&E) files are not in VBMS. But hey-everything else is. Including all their notes and activities (see above).

Right anterior view

Little did I know what I set in motion. VA will not allow me to be an agent and also have access to the Seattle Puzzle Palace. Who knows? Moreover, who cares? Maybe VA thinks I have kindred spirits there who will aid and abet me in some nefarious scheme to salt my records. Apparently, the moment I filed the 22a, the Seattle ISO had to promptly lock up all my claims file information-including the VR&E files for the Independent Living Program. Ol’ Dave got cut off quicker than a philandering husband. Worse, the Davemeister, by virtue of my representation of myself, now must relinquish this appeal to Saint Paul, Minnesota’s VR&E Officer to issue the VA 8. Bye bye, Mr. Boyd. All that denial work for nothing. But that’s hardly the end of the situation. Oh, Hell no. Not by a long shot. If Dave had whipped out that SOC like a good boy, I would be fenced out of the new BVA RAMP path.

 

Feb. 19th, 2019-The New BVA RAMP Lanes

If that were all there were to this story, it would not rise to the level of humorous or even intriguing. But note the Opening Day for RAMP hunting season on your VA calendars. Hoo doggies. That says the Rocket Docket path to the BVA for claims which have not yet been issued a SOC opens on February 19th, 2019. Ruh oh, Rorge. Looks like old Dave shot himself and the whole VBA in the foot. My plan is to jerk this out of the St. Paul VR&E Denier in Chief’s hands before he even gets a grip on it and take it directly up to a Veterans Law Judge. I can fly back to DC and do a Board hearing face to face and have this one wrapped up before Christmas. §20.900(c) provides an AOD for appeals which are antique. Mine’s almost eight years old from the original May 2011 filing. Dang. Wouldn’t that be a hoot if I got Judge Vito again?

thaaaaaaaat much.

I’m guessing Monsieur Boyd hasn’t even figured out the file is missing from his VR&E shop yet. He’s still out shopping for some new Punji sticks. By law, it now has to be kept in the locked up file room near the Director’s or Assistant Director’s offices with extremely limited access to anyone– until it’s shipped to Saint Paul. Davy will be having that Maxwell Smart revelation for years to come of having missed it by thaaaaaaaaat much. Better yet, my NOD explains I will be submitting rebuttal directly to the BVA with a waiver of review in the first instance at the Agency of Jurisdiction (St. Paul now) so I don’t get one of those 88-page SOCs. Shit. What am I saying? VA couldn’t pass up a chance to cut another tree down to get some pulp for this puppy.

I’d allow as I’m one fart smeller but I know VA better. All I did was to see if it was possible to get a peek at my own claims file. My CMA said it was strictly forbidden. Of course, she also said we’re not allowed access to VACOLS, too. When somebody throws out a double dog dare like that, you can’t walk away. I had no idea alarms would go off and drive the whole shebang off to Saint Paul though. God bless the Restricted Access Claims Center (RACC) clause in the M 21. Appears it’s good for more than outhouse reading. But then again, I never thought about the RAMP aspect of hyperdriving it up to BVA this coming Tuesday until a few days ago. I’m thinking about taking a folding chair, a sleeping bag and a pillow down to Fort Fumble and camping out in line to be first. There’s even a Starducks™ right across the street.

I’m now a firm believer that Howard works in mysterious ways. That or good shit happens.

Posted in All about Veterans, DRO and BVA Hearings, Humor, Independent Living Program, KP Veterans, Tips and Tricks, VA Agents, VA RAMP, VBMS Tricks, VR&E, Waiver of Review in the First Instance | Tagged , , , , , , , , , , , , , , , , , | 8 Comments

THE DARWINIAN THEORY OF GUNS

LZ Grahambo -2/12/2019

I love getting mail from all my in-country Vietnam friends. We are becoming a much smaller club much faster than I anticipated. Well, sort of. The club actually expanded exponentially last week with the inclusion of the Yankee and Dixie Station Squids. Be that as it may, I cherish every one of my 731 days on the red clay. Where else could we “be all we could be”? Imagine getting to play with real assault weapons,  Claymores, Semtex and a host of other really keen things and with no accountability? I don’t recall ever being told “Sorry dude. We have a strict limit of 3 hand grenades per soldier per day. Put that crate back in the Conex.” Of course, familiarizing yourself with the ordnance is a must, too. That’s a given.

Which brings us to this particular interesting snippet of Al Quada incompetence sent in by my good buddy Ed. Ed’s  an ex-LRRP from northern I Corps days whom I represent. As a former po-lice lieutenant, he always finds these choice vignettes. Some of the stuff he sends me is right out. For those of you with a keen eye, that’s a homemade Paki  PPSh 41.  You never, never never chamber a round and then insert the magazine on any PPSh while pointing it at your head (or a friend). Oh that Captain Charles had been this inept with his weapons in the jungles of Southeast Asia.

Mr. Piranha

The following video is not recommended for the faint of heart. Once upon a time, a progressive-type gal at a cocktail party in 1982 was apprised I had participated in the SEA Olympic Games and she came over to ask what it felt like to shoot at (and possibly kill) people. This was the second time this happened but I was still nonplussed. I had never really given much thought to that concept so I struggled for a metaphorical, ETOH-induced analogy she might easily grasp. The best I could dredge up on such short notice was ask if she had ever gone deer hunting-or, hell-hunting at all. Or even fishing for that matter. I then asked her to imagine an armed deer with 20/20 vision shooting at you in earnest. Or a determined piranha family intent on giving you a radical body-sculpting procedure. I still got the thousand yard stare as if I were demented. I completed my analogy with the observation : “It was a war thing, ma’m. You probably wouldn’t understand.” I’ll grant we did agree on that much.

I could have shut up at that point and now, with the benefit of my years, I should have. My decision to make another analogy about how, when you’re getting bitten by Mr. Mosquito, you unconsciously just reach over and terminate him was poorly received.  I think I blundered on about “You don’t much think about Mrs. Mosquito at home or how all his little mosquito kids are fatherless now. And it’s not like you have something against all mosquitoes in the whole f–king world or think Mr. Mosquito is racist.” I’m pretty sure I lost her at Mrs. Mosquito. Alcohol does that to you. The important thing is that I tried to reach out and share it with her. To this day, Cupcake continues to remind me that maybe I need to share fewer life experiences. I’d like to think I’m a work in progress.

Enjoy this if you were ever shot at or wounded. For some reason, it warms that  little Darwinian evolution-part of your heart. It’s an ego builder as well. Thank your lucky stars you aren’t as stupid as Akmehd to monkey around with a loaded SMG. Either that, or Ed ‘n me are really depraved, ex-junkie Nam crazies and have sick, severely demented senses of humor. Pity us.

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

And the latest collection of FacePlace humor you have sent us:

Posted in All about Veterans, FACE HUMOR, Humor, Inspirational Veterans, KP Veterans | Tagged , , , , , , , , , , , , , , , , | 6 Comments

CAFC-HUDICK V. WILKIE–THEY ARE ONE PERSON

 I took my first AO-in-Thailand case last month. Welcome aboard the U.S.S. Asknod, Ray. I guess we all gravitate back mentally to the place we served when we were over there. Even though I was in many places, both west of and on the other side of the fence north of Udorn at different times, it still was always “home” for all intents and purposes. At least that was where my checks went. This is why I have a very close affinity to others who served there. As some of you know, I’m also repping Steve from No. California on our bread and butter issue here-Hepatitis C. Steve served at Udorn at the same time I was going in and out. Funny, that’s about the same time I got my Hep C, too. 

Which is where the title comes from (CSNY):

We are one person

We are two alone

We are three together

We are [four] for each other

 

 

 

 

 

 

Helplessly Hoping is what rises in my breast when I think of all the Thailand Vets who are now the new inhabitants  in the back of the bus after the Blue Squids win. I lucked out and happened to keep paper proof of boots on the ground in RVN. Many others did not.  We need to pull together to get this done. The VA and Congress have granted the presumption of exposure to dang near everyone in Southeast Asia except for Thai Vets. You have to win it by direct causation a la Combee v. Brown.

Snow

First of all, it seems we are the west coast distributors of snow this weekend. Tons of it. 6-10 inches are forecast. [we ended up with 17.5] Here’s the view from the asknod cockpit.  The FNGs hereabouts are calling this event Snowmageddon 19. Shoo doggies. Hold on to your socks. I’ve seen it do 24″ in 11 hours on my birthday in 1989. Truth be told, we’ve suffered an immigrant invasion here in Washington in the last decade. It might have something to do with no state income tax or the multitude of problems the states below us are suffering. At any rate, seems all these Califoregon Newbies have never seen the white stuff outside their front doors- or worse- on a road. For pure entertainment, you need  to take a thermos of Earl Gray, some snakebite medicine and a folding chair down to the county highway and watch the demolition derby. Dress warm, too. Its 25° out there, Pilgrim. I sure hope Punxsutawney Phil isn’t having us on this year. We’re only 41 days away from my Spring Solstice Toga Party. We just had the deck redone with new glass railings and Cupcake has the hors d’oeuvre bar planned to be set up near the fireplace. Wintry weather is right out.

17 1/2 inches as of 2/13/2019.

 

Hudick v Wilkie

I was cruising the new CAVC decisions this morning and ran across Hudick v. Wilkie  coming back down from a reversal at the Fed. Circus. Anything with REVERSE in red letters draws my attention. A reversal at the Fed Circus guarantees an exceptionally good read.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2234.Opinion.12-3-2018.pdf

Here’s the mea culpa written by Judge Toth as he gift-wraps it for VLJ S. L. Kennedy’s mea culpa.

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01205573604&caseId=88006&dktType=dktPublic

Here’s VLJ Kennedy’s original BVA Decision that provoked this tempest.

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01203647800&caseId=88006&dktType=dktPublic

Saint Kathleen of the Holy Order of Our Lady of the Federal Circuit

Judge Kathleen O’Malley, a gal about our age (early 60s), wrote this decision for the panel. It’s a daisy. You’ll remember she recently wrote a separate and rather scalding concurrence in Procopio for the Blue Water Squids Victory. Here, she not only reverses the CAVC but sends it back to the CAVC with instructions to instruct the VLJ to order VA Secretary Robert “Call me Bob II” Wilkie to cut a check-pronto. We often talk about “pro-Veteran” judges like St. Mary Schoelen and Friar Greenberg. Well, Saint Kathleen is up one floor on the next level at the CAFC. Nothing like having Veteran friendly folks in high places. As LawBob ‘Squarepants’ Walsh always says, “You can never be too rich, too verbose or have enough like-minded friends in the Judiciary.”

Mr. Robert M Hudick was stationed for a year at Udorn down at the bomb dump. The whole area was rarely visited except by the security personnel in the guard towers, the fence walkers with their dogs… and everyone who worked in the bomb dump or came there to pick up or deliver bombs. Lotsa bombs.  Marker Rockets. Napalm. MK 82s in all flavors. There wasn’t a lot of space and it was jammed right up against the perimeter. The geographical fact a lot of these armchair raters at the VA don’t understand is that our bases  (Udorn, NKP, Takhli, Ubon, Utapao and Korat) were not filled with spacious skies and amber waves of grain. They were usually long enough to sport a 10,000 foot runway, cantonments, barracks, BX, Class VI store, chow hall, the O club and the pool. And a bomb dump. The only real  aircraft hangers were  over in Air America and leftovers from the Japanese in WW2. After the sapper attack in 1968, we began hosing the perimeters with Agent Roundup which just happens to strongly mimic what Agent Orange, Blue, Pink, Purple, Green and White do. It kills shit. Ants. Gingjoks. Tookehs, Snakes. Monkeys. Vegetation. It’s multi-purpose stuff.  Since the King of Thailand wasn’t all het up about us spraying that shit all over Thailand after he saw what happened on the Ho Chi Minh Trail, he nixed the idea. That meant the Air Force had to repackage (and relabel) the shit as a more benevolent “tactical herbicide”. That’s like repackaging napalm by calling it “Liquid Sunshine”. They sprayed quite a bit of this tactical shit down at the bomb dump (and everywhere else up to the perimeter fence) to keep a minimum 60-foot line of fire open. And the Robertmeister worked there every day for a year. When it got hot, he took off his shirt like we all did. The opportunities to get AO on you (and in you) were everywhere and not just down at the bomb dump. The entrance door of the new “Barn” barracks I usually stayed in when I was in transit was about 60 feet from the perimeter. A 30 foot wide roadway and a 30 foot strip of red clay dirt were all that separated us from the fence. To say Security Policemen were the only ones exposed beggars the imagination. The parking lot for the chow hall was jammed right up against the…yep… perimeter fence. Nothing grew there but red clay and 3/4″ minus gravel. Nothing around the taxiways, revetments or the runway remotely suggested vegetation. It was all naked red clay as far as the eye could see-even during Monsoon. It was the same whether you were at NKP, Ubon or any of the other bases-even Don Muang.

Mr. Hudick credibly reported this. It falls under Layno v. Brown in that we can report on what comes to us via our five senses. Diagnosing your Prostate problems falls to a doctor. Mr. Hudick’s  problem was our old friend the M 21-1 Manual on how to Misadjudicate  Claims. The long and the short of it is that the Board of Appeals Veterans Law Judge (S. L. Kennedy) started quoting the M-21 as being applicable. Then, in a follow-on decision, refusing to utilize it to grant him the presumption of credibility.

You Thailand Vets might not run into this exact same scenario vis-a-vis getting a Texas Necktie Party with the M 21 when you get to the BVA. The decision is still valuable course knowledge on how-to. There are no true presumptives for Thailand AO Veterans as there are for Vietnam Vets. If, and this is a medium “if”, you can demonstrate proximity to the perimeter outside of a magic Air Force Specialty Code (AFSC or MOS) for the Security Police Squadron, and if you have a good IMO ascribing the chances the Prostate/DM/Parkinson’s/cancer etc. as being at least as likely as not related to your extensive exposure to a “tactical” herbicide,, you will win. It’s an art form most of the time. Here, in Mr. Hudick’s case, it was a bait and switch using first the M 21 and then not. This created a major due process violation as you shall read. Mr. Phil Cushman will be proud to see his fan club is growing.

As usual, this is another feather in the hat of Chisholm, Chisholm & Kirkpatrick (CCK)  and Zachary Stolz. I don’t see how he has time to do all these claims.

Lastly, thank you Mr. Hudick for being persistent and reinforcing the concept of due process.

 

Posted in Agent Orange, All about Veterans, BvA Decisions, CAFC Rulings, CAVC Knowledge, CAVC ruling, Fed. Cir. & Supreme Ct., KP Veterans, Lawyering Up, Lay testimony, M-21 info, NOVA Attorneys, Thailand AO presumptive path, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 2 Comments

CAFC–PROCOPIO V. WILKIE–THUNDER ONLY HAPPENS WHEN IT’S RAINING

Well, now. Wash my mouth out with vodka. Ain’t that a breath of fresh air from the Fed Circus? Who wouldda thunk it? Well, not a hell of a lot of us logical, thinking-like-scientists types but that isn’t the problem. Congress, in its infinite wisdom, granted us 38 U.S.C. § 1116 (myself included), the Holy Herbicide Presumptive in 1991. VA sought to give it a haircut and reduce the number of freeloaders in succeeding years. They enlisted the Office of General Counsel (OGC) to play the game of what the word “Is” was. This was, of course, about the same time Clinton was getting Presidential Lewinskys. It wasn’t but two years later Old Willy was forced to resort to that  “is” line of defense, too. Didn’t work then and it didn’t work this week any better.

Albert Procopio, Jr. was a Blue Water Squid who served on one of those flat things they land airplanes on out in the middle of the ocean. We could have handled it on shore with the United States Air Force but you know wars. Everybody has to test out their new M 60s, M 16s and M 79s… and A1Es. The Navy wanted their crack at some Air Medals and wasn’t about to let the Air Force pukes take all the credit.

Here’s the decision:

http://www.cafc.uscourts.gov/node/24300

Alberto came down with a few of these Agent Orange-type problems and filed for them. Unfortunately, Eugene Haas had already occurred (2008) so Al’s chances were slightly less than an ice cube in the 4th Circle of Dante’s Bar and Grill down below. Nevertheless, he kept on whacking at the VA piñata. He had more theories than a cat has lives and then a few.

  1. It was on the mailbags that came ashore on the courier flight.
  2. It was on the wheels of the mail courier flight which means it was on the flight deck where the Almeister jogged.
  3. It was on the flight suits of the mail courier pilots and by golly they were washed in the same water system that the courier pilots showered in. Well, hey. There you go. Smokin’ gun, dude.
  4. Then there was a theory about the reverse osmosis fresh water system possibly being contaminated with dioxin.
  5. Then the theory that all those A4s had flown through the mist of the herbicide being sprayed by C 123 slow movers. Yeah. C 123s spraying herbicide in downtown Hanoi on the Paul Doumer Bridge. You know how that works. Someone screws up the Operation Ranchhand Frag Order and all of a sudden, there they are- right in the middle of a gaggle of A 4s cleared in hot on a bombing mission. According to Al, this happened frequently. He could even smell the residue on the aircraft and see an orange sheen on the fuselage when they landed. That’s how he knew he, himself, was contaminated and that’s why he had that prostrate cancer and The Diabetus.

As usually happens when we get older, some of us come down with prostate cancer, DM II and a heavy dose of Ischemic Heart Disease. Vet’s call IHD Micky D Heart. The problem, according to scientists (and Vets) is that an inordinately huge number of us Vietnam Vets seem to come down with these and a high incidence of Parkinson’s… and about 14 other cancers, leukemia-shucks, the list goes on and on.

In fact, Albert Procopio is right. A lot of Blue Water Squids come down with a lot of these things but maybe not in the same large numbers as those of us who actually got the red clay between our toes. Folks on land seem to have a bunch more cancer, too.

It culminated in the Hasse decision back in 2008 and we figured this was a dry hole. Sure,  Congress was getting prodded by all the Vets (who vote and are easy marks for campaign contributions) to pass a new Statute to bring in the Blue Water Boys Presumptive coverage but that legislation just wasn’t sailing merrily along the Bounding Main. In fact, the U.S. Senate and even VA Secretary Robert (Call me Bob II) Wilkie weren’t giving Blue Water a thumbs up. And then along comes the Fed. Circus and wipes the slate clean by  reading the Geneva Conventions lingo in a favorable (read correct) light. Hey, if Congress spoke clearly and concisely, and the VA Secretary embodied that into the contemporary regulations, where was the beef at the time (1991).

As most of you know, I was not very pro-Procopio. It’s not that I don’t like Squids.  I didn’t think he was entitled to service connection to herbicide exposure for scientific reasons which, I feel, still ring true. Dioxin is a heavy metal and sinks to the bottom of any liquid it encounters- like the South China Sea, for example. Mr. Procopio began by grasping at flimsy precepts and then moved on to everything short of alien abduction. Turns out all he had to do was go to the Geneva Conventions books and look up the definitions of what constitutes a Nation-even it ceased to exist in 1975. Remember, Congress spoke in 1991. They used the generally accepted terminology to encompass the territorial seas adjacent to the land mass of the former Republic of South Vietnam. The problem decided this week arose about a decade later in 2001 when VA began to gerrymander the meaning of the statute. It might have succeeded if VA had begun their regulatory gerrymandering immediately after Congress passed §1116. It was another thing entirely to come back 10 years later and suddenly take the Chevron/Auer machete to eviscerate what Congress said.

Judge Alan Lourie

The best analysis comes from the two concurring justices who wrote separately- Judges Lourie and O’Malley. First a few vignettes from Lourie which really nail it.

I instead agree with the court in Haas,  and the dissent, that
“served in the Republic of Vietnam” is ambiguous under
Chevron step one. The statute entitles a veteran to a
presumption of service connection for certain diseases if
the veteran “served in the Republic of Vietnam.” 38
U.S.C. § 1116(a). That qualification does not tell us
whether offshore waters are or are not included. Thus, as
to that issue, the statute surely is ambiguous.

I also agree with the Haas court that under Chevron
step two, the regulation promulgated by the agency
reflects a reasonable interpretation of the statute. However, unlike the court in Haas, I would hold that the agency’s interpretation of its regulation is not owed any deference as generally required by Auer v. Robbins because the regulation is not ambiguous, see Christensen (“Auer deference is warranted only when the language of the regulation is ambiguous.”).

The agency’s regulation states that “‘[s]ervice in the
Republic of Vietnam’ includes service in the waters offshore and service in other locations if the conditions of
service involved duty or visitation in the Republic of
Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii)
In interpreting the regulation, we need not resort to
international definitions of national sovereignty over
waters adjacent to land or to the pro-veteran canon; we
should simply read the plain language of the regulation.
And, the plain reading of this inclusive regulation specifies that service in the Republic of Vietnam includes (1) “service in the waters offshore” and (2) “service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” Id. Thus, a veteran who served in the “waters offshore” is included within the meaning of “service in the Republic of Vietnam” and entitled to presumptive service connection.

Judge Kathleen M. O’Malley

Judge O’Malley’s concurrence, on the other hand, is, to me, the coup d’ grace.  Here’s a few verbal snapshots of her take on it. Hey. I like it. To me, Veterans are a protected class or- should be. We comprise less than 3% of America at any given time. When the shit hits the fan, Americans sure don’t call Ghostbusters, now do they?

I write separately because I believe the pro-veteran canon of construction adds further support to the majority’s conclusion. Specifically, I write to explain that:

(1) the pro-veteran canon, like every other canon of statutory construction, can and should apply at step one of Chevron to help determine whether a statutory ambiguity exists;
and,

(2) even when a statute remains irresolvably ambiguous, when a choice between deferring to an agency interpretation of that statute—or particularly where that interpretation is itself ambiguous—and resolving any ambiguity by application of the pro-veteran canon come to a head, traditional notions of agency deference must give
way.

 The Supreme Court has made clear that courts are obligated to apply all traditional tools of statutory interpretation at step one of Chevron.  Indeed, “we owe an agency’s interpretation of the law no
deference unless, after ‘employing traditional tools of statutory  construction,’ we find ourselves unable to discern Congress’s meaning.”…And [here,] that is missing: the canon against reading conflicts into statutes is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, is more than up to the job of solving today’s interpretive puzzle. Where, as here, the canons supply an answer, Chevron leaves the stage.”

I believe this says it in no uncertain terms.

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.”

Boy howdy, how ’bout them apples? Chevron? We don’t need no stinkin’ Chevron! We’re talking about Veterans here, bubba. Which brings me back to Kizor. You just have to know the Supremes are going to be giving Procopio the hairy eyeball and taking the pulse of Chevron/Auer’s misguided reach into Veterans Law. I certainly would.

Last, but not least, thank you Mr. Procopio, for hanging in there. I’m sure Mr. Wells and  you never in a million years thought you’d catch any air with that ‘bombing downtown Hanoi with AO’ theory of exposure crap. Or maybe you did…………….. The mail courier flight thing was innovative but one hell of a stretch. No, you won because an en banc majority of the Fed. Circus knows how to read what Congress wrote. And even worse- what the VA Secretary compounded with interest until he tried to backtrack. Every time we have one of these brouhahas, it always comes down to what the meaning of “is” is. Veterans invariably end up with the short straw in this remunerations game. It’s refreshing to see a Tribunal finally recognize we aren’t lower than whale shit.

I was wrong as wrong can be on this one. I myopically viewed it from only one perspective-science. Thank goodness for Amicus Curiae opinions.  And may I say I have never been so overjoyed as I am today for my Squid Brothers. The funny thing is I bet a lot of these servicement went ashore to Vung Tau  for R&R or flights to Australia for their R&R. Unfortunately, the Navy was not forthcoming in providing evidence of these R&R expeditions.

Lastly, I’ve always wondered who would want to get on a boat with no women for aeons at a time. Maybe these guys had domineering mothers or older sisters and wanted to take a break. Maybe their dads were Navy and they felt some obligation to carry on the tradition. As we say in the Air Force, why paddle or walk when you can fly?

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

Posted in Agent Orange, All about Veterans, AO, Blue Water Navy, CAFC Rulings, KP Veterans, VA Attorneys, VA Medical Mysteries Explained, VA Secretaries, Veterans Law, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , | 5 Comments

VA RATINGS–AM I 100% OR NOT?

I get queries about 3 times a month to diagnose a Veteran’s rating. Apparently VA is not as clear as we would like and uses all manner of acronyms in an attempt to throw us off. So, too, do they obfuscate and fail to state in concise English that we are permanently and totally rated-i.e. P&T. Let’s clear the air and explain it in JohnnyVetspeak.

The 100% Schedular Rating

First, let’s analyze what a true, 100% schedular rating is. This simply means your rating is at the top of the schedule for your disease or disability.  DC 7354 Hepatitis C is an example. If your symptoms are “near-constant and debilitating”, this entitles you to 100%-the highest rating. If it were not near constantly debilitating but at least more than 6 weeks of the year, you would get a 60% schedular rating. That, in and of itself, might or might not entitle you to TDIU. Some diseases or injuries top out at 60% and have no higher schedular rating. This, in most instances, would prevent you from reaching 100% without some help or other ratings adding up to 100%.

The 100% Combined Rating

The next version of 100% can be attained by adding up a number of disabilities and arriving at 100%. This is called a “combined 100%” rating. It pays at 100% and feels like it, too. If you cannot work, you will eventually be awarded a Permanent and Total  rating-usually after a 2-5 year period to determine if you may improve and fall below 100%. In certain instances, a 100% combined rating will be inferior for Special Monthly Compensation awards above SMC L.

TDIU

Finally, let’s analyze what TDIU is. TDIU stands for Total Disability (due to) Individual Unemployability. In simple terms, this means you have an employment “handicap” that prevents you from working. The problem is that you do not have a 100% total  rating and can never get there. Let’s say you have a mega-bad back and have maxed out at 60% on the L5-S1 juncture from jumping out of perfectly good airplanes with about 90 extra lbs. of shit attached to you more than 25 times. You have a couple of smaller ratings such as DM II from too much Agent Orange that gets you 20%, maybe tinnitus for 10% and flat feet from all those hard landings for 10%.  60 + 20 = 68%. 68 + 10 = 71% and finally 71 + 10 = 74%. Bummer. It rounds down to 70%  but you still can’t work. VA has made a special “extraschedular” consideration (see comments below) for these situations and usually grants you TDIU. TDIU is, for all intents and circumstances, a 100% rating for pay purposes. If you have it for more than five years, you’ll probably get P&T eventually. If you do not, you need to apply for it. VA is fond of telling you that you can still make $12,000 a month selling Vacation Time Shares in Hawaii and will deny TDIU. Don’t give up. Appeal it unless you have a degree in telemarketing.

The bare minimum to get your foot in the TDIU door is a single 60% rating. If you cannot rustle that up, VA has an alternative. If you have a single 40% or more rating , and others adding up to 70% combined using the table in §4.25, you are also eligible. If you are not considered for it, you should be. With that said, you probably will not get TDIU if you have 40% for DM II, 10% each (bilaterally in all four quadrants) for peripheral neuropathy, tinnitus for 10%, flat feet for 10% and hemorrhoids for 10%. While it might add up to 70%, the combination is not so debilitating as to keep you out of gainful employment in VA’s eyes. I’m currently fighting for Ed who is 70% for PTSD, 60% for IHD from AO, 10% for a B 40 122cm RPG rocket that hit him in the shoulder but didn’t explode and 10% for Tinnitus. He’s 90% and VA seems to think he has that marketing BA degree in Time Share 401. Not. He has a 20-year degree in LA County Sheriff Lieutenant. That isn’t very useful when you hit 70 unless you’re seeking employment as a rent-a-cop security guard at Boeing in the Bitch Booth for $7.25/hr.

Permanent and Total

Last but not least, you will always know when you are Permanent and Total. At the end of a rating or on your Confirmed Ratings Decision, you will see the “Entitlement to Chapter 35 DEA (Dependents Educational Allowance)” announcement. That is the giveaway that you are not going to have to pay for the kids’ college. Unfortunately, most of us get here about 10 years after the kids have graduated so the only one who can benefit is the wife. Not very many wives relish the idea of chasing a degree in anything by the time they hit 55. In fact, being 55 or more hits them pretty hard when you think about it.

My son lucked out. Surprise, surprise, surprise. The vasectomy failed (I got the second one free) and Buckwheat junior was born when I was 35. I got P&T in 2008 when I hit 56. He decided to use the 4 years in three and did Law school and a Masters in CPA at the same time so it didn’t go to waste. By law, the rug rats can’t be over 26 to use it up unless you get it way late in life. They have one year to file for it at that point or it evaporates.

It’s easy to see the confusion when you start getting a check for $3,277.00 and you’re only 70% rated. It’s even more confusing to see you are now entitled to Chapter 35 DEA and you ‘re trying to figure out how the Drug Enforcement Agency got dragged into this discussion. Most Vets think they got promoted to 100% schedular when they get the TDIU. This really begins to cause problems when they think they have 60% (or more) in extra ratings and are entitled to the first tier of Special Monthly Compensation “S”. VA is many things but they are not fast and loose with their money. I’ve discovered VA can be 100% pure asshole with someone like Ed who is 90% but will give another guy with 60% TDIU. I’m sure there’s a rhyme or reason to it but it eludes me. It’s a VA thing. You wouldn’t understand.

So, that today’s teaching moment in 100% ratings. Today’s blog is brought to you by letters P and T.

download

 

Below, find my latest treasure trove of great Sunday Morning cartoons.

 

Posted in 100% ratings, KP Veterans, SMC, TDIU, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

LZ CORK–SWEET HOME ALABAMA

LZ Cork 10/68

Who would have thunk it? I began LZ Cork 10/05/14- The Americal Saga from Dong Ha- as a quest for Butch Long’s long lost Purple Heart. But not just lost. Never awarded would be the proper way of saying it. If every Vet at VFW bars across the fruited plain who said they were screwed out of their PH were lined up, it would reach from here to Portland (Maine). Butch claiming he’d been shortsheeted didn’t sound like that. His daughter Carol, born while he was in-country and now in her forties, was pretty blunt. Don’t try to do this if you’re all hat and no cowboy, buddy. My daddy can’t take another “try”. I’ve been called asshole more frequently than cowboy but I do know how to ride horses and I currently own three. 

Kona or simply BooBoo in Cupcakespeak

Here’s what started all this waaaaay back in the late evening of January 18th, 1969

and the Army’s recollection of it…

lockett da 1594 lz corkhilighted

We got the medals and a Congressman to pin him on St. Valentine’s Day 2015. And that’s when this thing began to intrigue  me so much I decided to get accredited to be his VA Sherpa. And then along came Bob Lockett. And David Balzarini. And Dennis Johnstonbough. And Jim Smith’s friend Lyle. And on and on. About the only ones we haven’t heard from yet are Lt. Barry Kellenbenz’ folks. These are my kind of folks. It’s an honor to even be in the same room with them. You look up hero in the dictionary and you’ll find a picture of the Vietnam Wall. Never have such deserving Veterans of any war been so abhorred by their fellow citizens when they returned.

Setting up LZ Cork Firebase 9/1969

The latest chapter of LZ Cork is all about Bob Lockett this time. We met in Mansfield Texas ( his home town) when Cupcake and I drove down to the Spring NOVA in San Antonio in 2017. I never dreamed I’d be representing him now.  This is the best Pro Bono client you could hope for. I figured I was going to be  fighting this for years but the local Fort Fumble yokels caved in.  I’ll have to file a NOD and remodel it a bit because those silly gooses employed the VA’s version of an SMC computer program. It’s like a crooked roulette wheel. You never see 38 CFR §3.350(f)3) or (f)(4) come up… or even considered and rejected. It’s like a black hole of SMC and no ratings can escape it. And VA IT decided they could build a calculator for this simple task.

Butch, Gypsy Rose Lee and Bob- 1/17/1969(the day before)

Here’s the latest cheat sheet on Bob. The explanation letter in VBMS is dated January 22nd. Only at the VA can you get away with postdating stuff.

bob loss of use redacted

Bob’s actually entitled to SMC P (L 1/2 + K). If I win  his right hand to Parkinson’s on appeal, VA will bump him a full rating to M 1/2 +K. As I’ve told you folks, this Special Monthly Compensation (SMC) has more turns than a roller coaster. You need a Rand McNally VAtlas and a knowledgeable guide to find your way through it. So Bob and me are like a natural fit just like Butch. I gotta tell you. I almost feel like I’m cheating when I play VA poker. Really. It’s like fishing with Dupont Spinners. You almost can’t lose. VA has too many strictures on its VSRs and RVSRs. You need three signatures to go to the bathroom.

The icing on the cake is waiting in the wings. I’m told I have no access to VACOLS but they’re just funning me. I see Judge Cherry Crawford’s staff attorney Donna McBride is doing the post-decision review on Butch Long’s appeal. If he’d lost, there would be no review. I can’t quite “see” it yet but will shortly. Having VBMS is like being able to get the Big Brown Envelope (or BBE as they say over at Hadit.com) every day- even weekends.

Life is good. And now, with VBMS, it’s like being the fox in the henhouse. I’ve watched a client go through a December 17th, a December 26th, a January 3rd and a January 11th, 2019 decision/correction/decision complete/decision correction and now a double repromulgation with RVSR oversight. I finally got writer’s cramp from beginning one NOD after another only to have to push ‘pause’ to await the next iteration. Finally, I called up Coach Ruth Ann in Houston and said what in Sam Houston is going on down there? I see she self-assigned it to herself  on January 14th and is sitting on it like a banty hen. In fact, she was working on it today when I checked in to see what was behind Door #3 for Sgt. Lockett. It was a daisy. If you’re born right-handed and you lose the use of your right hand, does that make you automatically left-handed? If you have a twenty year protected rating, doesn’t that mean you can’t be reduced? Well, apparently with the new National Work Queue, all these things and more are very possible. The inmates have taken over the asylum. I sort of set Ruth Ann up. I asked her ahead of time if you were born right handed, did that mean you died right handed? She bit and said yeah.

lou of dominant hand redact

“The VA exam notated“? You VA litigators will be wanting to add that verb to the VA ‘s revised version of Merriam Webster’s finest hour. I think you’ll find it somewhere after ‘annotated’ and just before ‘noted’. And the answer is ‘no’. I am not going to divulge the NWQ RO 323 GS-13 that wrote it. I wonder if you have to go to a special VA school to learn how to do this? Of course, the burning unanswered question that is poised on many a lip is “Okay. I get that left-hand-being-dominant-now-thing but did they do a brain resection and transfer the left lobe over and put it in on the right side?  Otherwise, this dog won’t hunt. Not for a minute-no sirree, Bob.

Congratulations, Bob. I wish you didn’t have to become more and more ill in order to obtain greater compensation but I am absolutely honored to be able to make it so, sir. Y’all come back now. Hear?

And that’s all Airman Last Class Graham has to say about that.

Posted in Agent Orange, All about Veterans, Food for the soul, From the footlocker, Inspirational Veterans, KP Veterans, LZ Cork, SMC, Tips and Tricks, VA Agents, vARO Decisions, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , | 3 Comments

BVA- HCV WIN–DR. BENNET CECIL STRIKES AGAIN

I’ve talked with and used Dr. Cecil for many years now. He has been of immeasurable help in getting my Veterans service connected for Hep. C. Here, again, he proves his worth and comes through-not once, but twice- in ensuring this Veteran received benefits for his disease. I feel proud to be in the vanguard of VA advocates fighting for this disease. Although I didn’t get my hepatitis from a jetgun, I fight for everyone who did. I’ll be in Oakland in late March for a Travel Board hearing to help another one of our Vets (Steve) in this battle.

What’s incredible is that Steve even admitted to sniffing the White Lady in 1988. VA glommed onto that like white on rice and used it to deny with. But… Steve is Stage 4 and has ascites and varices. This indicated he’d had the Hep for about  45 years-which happened to coincide with his greatest risk factors in service.

Throughout our battles for service connection for Hepatitis C, we’ve had one incredible, undaunted touchstone for information-HCVets and Patricia Lupole. It was she who introduced me to Dr. Cecil.

Here’s the link. Dr. B.C. is Dr. Cecil. He’s very well known in Hepatitis c circles.

https://www.va.gov/vetapp18/files6/18114471.txt

Posted in All about Veterans, DRO and BVA Hearings, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 5 Comments