Greetings fellow gladiators. While I almost never go to two NOVAs a year, how could I resist? Portland is just a 2 ½-hour jaunt down I-5. With Cupcake, we can leave the inflatable doll home and still drive in the HOV lane. Hot diddly dee. Road Trip.
This Fall’s NOVA Conferences are at the Hilton Portland Downtown. CAVC Judges Robert Davis and Mary Schoelen are slated to attend as well as the head honcho of the Appeals Management Center- now known as the “Appeals Resolution Center” or ARC. Sounds like a drive thru for quickie claims drama. I have to admit I’ve used Mr. David McLenachen’s services recently to get a Veteran’s claim back on track after the NOD evaporated into thin air sometimes around 2016. He’s one more valuable resource in the Veteran’s tool box but unfortunately only available to VA attorneys/agents.
Nowadays, you can’t do that prestidigitation trick with problematical claims anymore. No more sneaking up to the sixth floor to the c-file records room and “repurposing” certain official documents into the shredder to erase any evidence of mis/malfeasance for the convenience of the government. No sireeee, Bob. That shit is right out now. Remember back when Gene Groves caught the BVA out in an Ex Writ (2008)? VA suddenly had to admit there wasa VACOLS back door that the Secretary absolutely, positively swore on a stack of Korans did not exist. VBMS doesn’t have a defrost/evaporation setting.
VBMS, unlike the old VACOLS, is a lot like concrete now. It doesn’t have to be dry. If you walk in it, you leave little footprints with your name , rank, airspeed and tail number all over it. Them PIV badges are like fingerprints. If you tried to go back to some 1968 STRs and disappear them, it sticks up like a zit on your nose. This how I find so many CUE claims just sitting there waiting to be harvested. Better yet, finding §3.156(c) claims is a cakewalk. JohnnyVet loses for 40 years… and suddenly wins. Right there in the VBMS records is the PIES request for STRs that came back from NPRC- with everything. That would be the records they swore in 1979 (and 1983, 1989, 1994 and 2007) had gone up in flames at the 1973 BBQ. VA can’t explain these phenomena so they deny. Fortunately the newer breed of VLJs are not as gullible or deceptive. Travel Board hearings with laser Power Point presentations are de rigeur. You can’t do this on paper.
It takes three signatures to go to the bathroom these days at a Veterans Service Center (VA shorthand for VARO). Unilateral thinking is all but verboten. That’s the theory, anyway. The good news is Mr. McLenachen seems to have a hotline direct from DC to every one of our 56 Service centers across the fruited plains. Gross errors can be fixed sooner. With glasnost ostensibly running rampant (VBMS), we have VA Outlook and a phone book with every VA employee’s name, email and phone number.
I think it shakes them up to answer the phone and say “This is Ruth” and find me on their ass in polite mode.
“Ruth Jacklin, right? This is Alex Graham 1614409. Say, do you have a moment to discuss Rambo, Earl S. 26 454 302? Seems yesterday your RVSR Shauniqua Felts 86’d a twenty three year-old protected rating on my client in violation of §3.951. Can you imagine that? I’m trying to get that corrected so he can get TDIU. You’re the VSCM (Veterans Service Center Manager) so I thought you’d be the one who’d want to know somebody stepped on their necktie. Could you look into that? I sent you an email yesterday and cc:’d it to Mr. Wilkie and Mr. McLenachen. We’re not in any particular rush but this was such a bonehead goof up, I thought it needed to be addressed sooner than later.”
Of course,what I really wanted to say cannot be printed here.
About this point, Ruth is regrouping and says “Ahhhhhhhhh, ummmm wait. Who did you say you were? How did you get this number?” Welcome to the new VA, Ruth. Transparency is the new paradigm. Protein pills and helmets are optional.
Oddly, I doubt we’re all going to the NOVA conference expecting to learn these nefarious techniques of pie-in-your-face litigation. That’s just my coarse, uncultured way of practicing, er-performing VA law. Not having a JD allows me to be rude, crude, socially unattractive- not to mention boorish. I wear my legal ignorance with pride. Hey, what can I say? In Ignorance There Is Strength. It works most of the time.
Be there or be square. Antifa and the Proud boys will be providing the entertainment.
Wowser, I thought I had a good week with three wins but now I find it was four. Nothing gives me greater pleasure than to announce my squid/grunt/doorgunners’ success over the Eeeevil Goliath VA. You Veteran clients don’t realize it but you are one of those statistics that VA keeps track of. A chicken dinner winner (100% or TDIU) occurs exactly 12% of the time at the VARO level. The percentage jumps up to 22% at the BVA and to 74% at the CAVC counting all forms of set aside/reverse/vacate. Even better, when broken down, VA attorneys and the Great Unwashed Agents account for a whopping 35% of wins at the Board level alone. I’m appalled. It should be 100% of the time.
Seriously, folks. I’m just a JohnnyVet myself and new to this claims game but if the claim has merit, you can win it. I look at my early, feeble efforts to fight my own appeals. Like most of you, I foolishly relied on VSOs who couldn’t find their derrieres with a methane detector. It took me 18 years of defeat before the VA Rosetta Stone gave up its secrets to me.
What set this story off was US Congressman Derek Kilmer helping me get my medals 43 years after they were awarded in 2013. In 2015, a close neighbor’s old platoon company got together and helped him get a long-overdue Silver Star. Naturally, Congressman Kilmer (who helped immensely) was there to pin it on him. For reference, a Silver Star is one step below the Medal of Honor. Usually, the Company Commander, a 90-day wonder with slats, is the big winner and the enlisted underlings get a Bronze Star- maybe even one with a “V”. Or an ACM…or nothing
Anyway, Ed was having big problems with his VA claims. Congressman Kilmer called in his chit and asked me to represent Ed. What could I say? Kilmer’s Krewe can prestidigitate NARA records from Vietnam out of thin air in less than a week. That’s an important asset in this day and age of trying to get a Monday Morning Report showing your client present and accounted for at Phu Cat Air Base, RVN 96368 (Binh Dinh) on TDY. Yep. Becoming a member of the Nehmer class is getting that difficult.
Ed didn’t have to worry too much about proving he was in-country. He was a two-year ARPAC idiot like me. He also racked up a BS, a PH, and an Air Medal. Ed was a LRRP. He managed to eat a hand grenade or the better part of one up in I Corps. Army guys like shrapnel scars. It makes them feel tough. Ed’s problem was he had plenty of shrapnel scars but he didn’t have enough ratings to get a TDIU. He was certifiable after two tours in country but 20 years as a LA County Sheriff and Lieutenant really amplified the Bent Brain Syndrome. The bigger problem in my mind was the Ischemic Heart Disease. Ed had the Big One (Myocardial Infarction) back in 2005 and some important muscles died. And, knowing cops, he probably ate his weight in donuts 5,000 times over which didn’t help the coronary artery circus in his chest.
Ed the LRRP circa 1968
Ed the LRRP’s problem was identical to my Ed the Huey Doorgunner who won last week. See https://asknod.org/2019/08/25/phu-hoi-the-128th-aviation-co-assault/. He had the same exact balance of 60% for IHD and 70% for Bent Brain. After I lit the fuse correctly, it was just a matter of time for the win for Ed the doorgunner. We just stirred in a call to the WH hotline to bring it to a boil.
Ed the LRRP went down the exact same road. I patiently guided his PTSD up from 50% to 70%, His IHD had fallen to 30% based on his METS score but he was blowing less than 50% on his Left Ventricular Ejection Fraction (LVEF). That deserved a 60% rating which I got- but they denied the TDIU. This is Portland VBA 348. They are some kind of hard asses down there. Even the CMA is a dick. It must be depressing with all the Antifa/White Supremacist riots. Why do all these yayhoos have to congregate in the Northwest?
Somehow, the Portland Poobahs had gotten this misguided impression they could deny based only on the IHD. I filed a NOD and pointed out the denial only discussed the IHD disability to the exclusion of any mention of the PTSD rated at 70%. The combination of the two disabilities, in concert, were simply too much to overcome in seeking meaningful employment. That cush job selling Hawaiian timeshare condos for $12,000 a week just wasn’t going to be in Ed the LRRP’s cards during his current incarnation.
Now, we all know about Hart v. Mansfield, 21 Vet App. 505(2007). Hart held 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. Id. at 508 (emphasis added). Well, I guess the folks in Portland never heard of Hart-let alone Messieurs Mariano and Kahana. They already had baskets full of medical evidence and VR&E reports from shrinks saying Ed the LRRP was incorrigible. He enjoyed kicking ass and taking names. The VA “examiner” proceeded to hammer two VES doctors (a shrink and a ARNP gal) to “modify” their diagnoses. Was mitral valve prolapse really part of IHD? Was having a raging anger management problem really an issue to sedentary employment out of the home? This went on for about three months. Then two more. Then another month. Each point where I expected this to bust open, another c&p was scheduled.
Finally, two years later I draw a pair of Eds. Identical ratings. Identical TDIUs. Both started out in my neighborhood and both were in the Army. Ed the LRRP moved down to Oregon which is why his took so long. And two Hepatitis C wins. Same war. Different continents. It ‘s a small world but I’d hate to have to paint it- as a good friend put it once..
My mentor and sensei, who chooses to live in urban Battle Creek, MI sends me humorous stuff on occasion. As he’s a Grunt Vet from the 173rd AB with boots on the ground, I obviously can’t publish everything he sends. This, however, fills the bill. It had me going to the end.
The Cowboy Story
A successful rancher died and left everything to his devoted wife. She was a very good-looking woman and determined to keep the ranch, but knew very little about ranching, so she decided to place an ad in the newspaper for a ranch hand.
Two cowboys applied for the job. One was gay and the other a drunk. She thought long and hard about it, and when no one else applied she decided to hire the gay guy, figuring it would be safer to have him around the house than the drunk.
He proved to be a hard worker who put in long hours every day and knew a lot about ranching.
For weeks, the two of them worked, and the ranch was doing very well.
Then one day, the rancher’s widow said to the hired hand, “You have done a really good job, and the ranch looks great. You should go into town and kick up your heels.” The hired hand readily agreed and went into town one Saturday night.
One o’clock came, however, and he didn’t return. Two o’clock and no hired hand.
Finally he returned around two-thirty, and upon entering the room, he found the rancher’s widow sitting by the fireplace with a glass of wine, waiting for him.
She quietly called him over to her.
“Unbutton my blouse and take it off,” she said.
Trembling, he did as she directed. “Now take off my boots.”
He did as she asked, ever so slowly. “Now take off my socks.”
He removed each gently and placed them neatly by her boots.
“Now take off my skirt.”
He slowly unbuttoned it, constantly watching her eyes in the fire light.
“Now take off my bra..” Again, with trembling hands, he did as he was told and dropped it to the floor.
With a cruel sneer, she looked at him and said, “If you ever wear my clothes into town again, you’re fired!”
Happy Labor Day weekend, campers. Here’s a lovely tale of the impossible. My friend Steve tasked me with my biggest challenge yet in VA claims. Image a triple whammy- no Service Treatment Records, no IMO and a free admission that he had sniffed the white lady in the late eighties. Sounds like the perfect storm for a denial…forever. This is just my cup of tea. The VA didn’t claim the records burnt up at the 4th of July ’73 NPRC barbecue. They just shrugged their shoulders and said “Bummer,dude”. The folks down at VFW and DAV laughed so hard they pee’d their pants…right before they told him to get lost. He finally came to me and asked if it was even worth the paper to file.
Having now survived an airplane mishap, congestive heart failure and Hep C myself, I thought his chances were better than even. The glass is always half full here at asknod. Of course, I was sure I was bulletproof right up until I wasn’t, too. Optimism is a disease. I agreed to file this because I’d want someone with a positive mental attitude to do it for me if the shoe was on the other foot. What the hey? The worst that could happen was a loss.
Steve filed a pro se claim I ghosted for him and predictably lost. The VA examiners were so lazy they just copied and pasted the VAMC Nurse’s pronouncement out of the VistA records. No attempt was made to even paraphrase it. “Hep C infection due to snorting cocaine with shared bloody dollar bill”. One time. Just like that. Boom. I’m surprised they didn’t throw in sharing toilet seats with others in public restrooms post-service as a risk factor as well. That’s pretty flimsy. In NOVAspeak, we call it raw data and conclusions with no supportive rationale.
We had eleven pages of ophthalmological evidence and a few Air Force Personnel records-hardly enough to cobble together anything probative in his favor. Our saving grace is that in the absence of evidence that would normally be there, VA is required to offer a heightened review of everything you do present-such as lay testimony and a heaping helping of 38 USC §1154a. These chowderheads were so sure of themselves they violated about everything related to evaluation of evidence.
I got an abbreviated IMO from our good friend Dr. Bennett Cecil but it did no good. I believe the denial said something smarmy like Dr. Cecil didn’t have the benefit of reviewing the STRS and the entire c-file. Fat chance. I sent him everything or what there was of it. We bided our time and finally got the VA 8 certified to the BVA. I obtained a killer IMO from Mednick Associates and marched into the BVA Travel Board Hearing on March 28th, 2019.
Veterans Law Judge Matthew Blackwelder ushered us in personally and commented off the record that he had reviewed this appeal and we had a better chance of winning the Powerball Lotto with the BIG number. I laid out the case and then flopped the new IMO on the desk. We now had two IMOs to VA’s pathetic copy and paste.
Several weeks before the hearing, Steve belatedly informed me he’d contracted gonorrhea while in Southeast Asia. He hadn’t thought to mention it as he wasn’t aware it was a potential risk factor. I read up on STDs and discovered that they, like Hep C, leave antibodies in your blood forever. I asked to hold the record open for 90 days while I grabbed a blood test to show he still had the antibodies. Judge Blackwelder said that wouldn’t be necessary as he had enough evidence to make a decision. Boy howdy did that let the wind out of my sails. All I could hear was “Fat chance, GI.”
Until last Wednesday. This proves we have a new paradigm afoot at the BVA. No longer are they (VLJs) at the beck and call of the VA Secretary. They actually have become independent thinkers. I was sure we’d be filing our NOA to the Court in short order. Win or Die summarizes this succinctly. God sends the Right.
Here’s the hearing brief and BVA decision for all you wannabe law dogs and pro se folks. Feel free to plagiarize.
It’s all in how you present it to the judge. Of all my wins, this is by far the best. It’s the only one I’ve ever won solely on the strength of the Veteran’s lay testimony . Don’t get me wrong. The IMO was very instrumental in the win but I doubt we would have prevailed without a face-to-face hearing. A picture may be worth a thousand words but a Travel Board hearing is worth a thousand pictures.
First of all, I wish to state that I am a person of color in addition to being an American citizen. I’ve been wanting to say that ever since they reminted the word ‘racist’. Look in the mirror. We are all persons of color. Here’s a cool story about my neighbor, Ed. We knew each other from way back in the 90s long before we finally realized we were both Boots on the Ground brothers. That happened about the time I won 100% in 2008. Today, we welcome Ed into the 100%er’s club. It took far longer than I would have ever expected and the B40 that got things moving was none other than the White House Hotline. Pop a cold one and sit down.
Ed signed up in ’68 and took the 67P20 MOS rotary wing repairman course in AIT. Next stop was Germany. He re-upped after a year and promptly drew a winning ticket and an all expenses paid vacation at Phu Hoi for a year with the 128th Tomahawks. He said one of his high points was flying the old D models. They tried to egress a hot LZ one afternoon with 9 grunts in the back. The Peter pilot pulled hard pitch to get moving and dipped forward a little too much too early. The rotors barely touched the dirt in front but it was too much. They barely made altitude and promptly lost pitch. Ed’s unbroken record of an equal number of takeoffs and landings went down the drain about 30 seconds later… outside the perimeter of the by now very hot LZ. They splatted into the tree canopy and toasted the Huey. Everyone made it to the ground and waited it out with the gooks all around them til the next morning to egress and hitch a ride out.
Phu Hoi Airpatch, RVN
Come on. To a VA rater, an M 60 isn’t really that loud if you have your flight helmet on, right? Wait a minute. Flight helmet? Like in aircrew? Huey jet engine scream? So how did the hearing loss claim fly out the window for the next eighteen years? Remember, Ed’s a combat Veteran. He has an ACM and an Air Medal. §1154b Combat presumption? Anyone? Or Moody and the sympathetic development of his claims?
I met Ed through another fellow who did my dirt work sometime back in the 90s. Unbeknownst to me, Ed began filing in 2001 for what was obvious- PTSD, skin conditions, hearing, headaches, peripheral neuropathy and persistent urinary tract infections. He managed to snag a 30% for Bent brain for a few shekels in 2003. In spite of filing for hearing loss, he kept coming up with a dry hole. Seems like DAV wasn’t up to speed on filing him for bodacious tinnitus. He knew he had it just like we all do except he didn’t get his from an IBM Selectric typewriter while flying a desk. He didn’t have a name for it and VA (and DAV) weren’t going to help him sound it out with Phonics™.
After his heart attack in 2005, he got 60% for IHD. He did all this with little or no help at all. We got together after I began legally helping folks here locally in late 2016. I filed his increase claims for the bent brain, IHD increase and tinnitus on 3/10/2017 and went ahead with a POA ahead of time just to be street legal. VA countered with an increase to 50% for bent brain and 10% for the ear ring …but reduced his IHD back to 30%. It resulted in a push- he stayed at 70% but it pretty much screwed up any chance of TDIU. I think that was their plan from the outset.
This “file and get reduced” game is a classic VA scare tactic. Most Vets- and most certainly their VSO representatives-always shit in their shoes when Vets go up for increases that put them in range of TDIU. They’ll even tell you how VA will take it all away from you if you get greedy. My guess is his own rep. probably told the VA rater they could get away with it. I’ve seen them argue against their client’s best interests more than once.
This is where we took off the nice guy gloves. We filed 12/7/2017 and got to work assembling a bulletproof NOD with a heart record showing LVEF below 50%. His private doctors agreed it was really 49%. VA predictably had said 55-60%. And then the wait began. We’d asked for an increase on the bent brain to 70%, restoration of the IHD back to 60% and TDIU… and all we heard was crickets.
I’d call the DRO up in Boise every six months and ask whazzup with Ed? More crickets. I started asking my CMA Tina if she could jar it loose to ratings. No dice. Even more crickets. They were sitting on this like a constipated hen. The standard wave off was “We take every claim in the order it is received. Tell Ed he will just have to put on his big-boy pants and suck eggs for a while longer.” I didn’t buy it.
The White House Red Carpet Treatment
Last week, Ed called and said the savings account was getting a little skinny and how could we get this puppy rolling. I noted it had been twenty months-608 days. Considering we Vietnam Vets are at the top of the pile for priority decisions right behind the last WW2 guys and the Korean Boundary Dispute Vets, we should get top-drawer service. The VA says 535 days right now is average for a SOC or a favorable grant on appeal. I suggested we take off the nice guy pants and supplied him with the White House Hotline Number ( 1-855-948-2311).
Ed called the WHH Monday morning, 8/19/2019 at 0800 sharp. And here’s where the bullshit gets pretty deep. The booth bitch took the complaint and promised to look into it with VA. Count ’em. Tuesday, Wednesday, Thursday go by. Friday morning at 0923 hrs, Sheila from Boise calls me and introduces herself. We exchanged pleasantries about the weather and confirmed my POA. Sheila tells me they had blisters on their fingers nigh down to the bone diligently working Ed’s claim since (gasp) 8/14/2019. It seems they had gotten a nasty inquiry Monday the 19th about an alleged delay. Sheila wanted to assure me that was not the case. No siree, Alex. In fact, miracle of miracles, they’d been burning the midnight oil all week long and just finished promulgating his decision with a “favorable grant” and wanted to know if I would waive the 72-hour hold (sight unseen) to review it. I guess she thought I was a room temp VSO. I had VBMS online and pulled him up on the screen. Sure as shit, there it was. I played dumb about VBMS and said as long as it was “favorable”, I’d blindly agree to the rating in full and told her to push print. Of course, that would be against the law not to consult with Ed, but since I could actually see it was a real 100% P&T grant and not another bait and switch, I agreed.
The bullshit factor here is I can see every note and every action the raters take on any day, and often the hour and minute they take it. Ed’s NOD had been as cold as a dead mackerel in winter. There hadn’t been so much as a fingerprint on it since it was stored in VBMS on 12/17/2017. The note in “Go to Work” files said “initial development- NRTR (not ready to rate).” The truth is simple. Somebody looked it up and realized they had blown the suspense date for ackshun by about six months. But remember, VA employees do not lie. Never. Verboten. This is not the first time it’s happened. Since few of us have access to VBMS, they think they can blow smoke and we’ll just be no wiser forever.
I promptly put on my ignorant hat. Being a civilized litigator, I thanked Sheila dearest profusely and begged her to overlook my client’s incredible lack of tact, rudeness and impatience and his uncalled for WHH faux pas. Boy howdy, he sure hadn’t run it by me ahead of time or I would have forbidden it. Trump has a lot on his plate right now trying to buy Greeenland. Since she had promised the decision granted everything we wanted, I assured her we wouldn’t darken her door again. Well, not soon anyway. I’m sharpening up the SMC punji sticks as we speak. What about TBI for that unscheduled Huey landing in the upper canopy? Jeopardy, anyone? I’ll take headaches for 50%, Alex.
No Mo’ Dough
An addendum to this. It’s apparent VA has run out of dough for the current fiscal year ending 8/31/2019. The reason? I’ve been watching the posture of my oldest clients’ claims-including Ed’s-and the delay in adjudications is getting embarrassing. I have a Navy Vet over in Allyn, WA. He’s a SW Asia Vet from the Iraqistan misunderstanding so I get it if he isn’t at the front of the line. The problem is VBMS shows him RFD (ready for decision) on 3/18/2019. Do you mean to tell me with the National Work Queue (NWQ) in high gear, they can’t find someone to write this decision? It’s not a crapshoot. I got him a dynamite IMO for bent brain and they’ve been chewing on pencil erasers like bubble gum for a year trying to rebut it. He is just one of about eight or nine others in the same RFD status. VA doesn’t appear to have any money and their litigation posture seems to be “wait until after 9/01/2019”. If it goes past then, the WHH is going to really get some traffic.
I’ve also suggested you folks doing this yourselves (pro se) to let VA deny you before you go on the offensive. Let them show you their denial hole cards first. It’s easier to rebut the denial and argue each one of their reasons than to send in an IMO and let them eviscerate yours first.
Rope-a-doping the VA
I described this on the last Hadit.com radio show a few weeks ago. Remember (if you’re my age) in 1967 when Muhammad Ali (born Cassius Marcellus Clay Jr.) went up against Sonny Liston? Ali did a “rope-a-dope” defense for five rounds and let Sonny bounce him off the ropes. He let old Sonny get plumb tuckered out. In the sixth, he came out and gave him a right cross to the noggin and TKO’d him. This is how you want to win.
Here’s my rope-a-dope defense. I file the bare minimum to begin with. I gladly fill out the VAF 21-4142s and send them in with all the info. Have you ever wondered why, after you do all that, the private records never get into your files? Newsflash. VA will not pay your providers for your private medical records. When the VA calls and says
“What’s the deal? We asked for JohnnyVet’s records and you haven’t coughed them up.”.
The transcription office assistant says
“Sure. That’ll be $151.63- payable to CHS for Mr. ____________’s medrecs.”.
“Sorry, no dice. We don’t ever pay for them, ma’m.”
Ms. Transcription assistant promptly says “No problem. We don’t ever hand them out for free either. Ta Ta for now.”
You get denied and never know they didn’t obtain and review those requested files unless you get your c-file. That usually happens about six months after you lose and ask to obtain a copy.
My time-proven technique seems excellent-even more so with the new, improved AMA system. Unless you’re filing for a missing foot due to an IED and there’s absolutely no reason on earth to deny, it’s pointless these days to construct a beautiful 20-page brief explaining why your client is entitled to Hep C and you have all these wonderful cites with Internet links and 8 1/2” by 11” glossy photos in color. Let VA show you their two pair. Get the IMO, if necessary, and only then lay down your full house.
Here’s Ed’s brand new rating. The best part is his daughter is still within the magic age limit to get free college under Chapter 35 DEA benefits. I guess the thing that eats me is the interminable delay that increased my representation fees. VA could have had this thing out in January 2018 after everyone’s hangover had subsided. So much for nonadversarial.
Great song and so à propos with the VA’s new Appeals Management Act (AMA). It seems no matter how hard I try to use the correct forms for filing, some VA jackwagon with a room temperature IQ and zero English comprehension will inform me it’s the incorrect form and insist I refile using what he purports to be the correct one. Well what the hey? There are only two possible forms you are permitted to employ. It gets humorous when you refile and they tell you a second time it’s still wrong. Today I’ll also tackle another quandary that upset me greatly and allow you all to vote on how arrogant I am (or appear to be).
WHICH FORM TO USE
With the inception of the AMA, VA has dumbed down the filing system so even Mojo, Homer Simpson’s pet monkey, can do this. Or so we thought. I’m a member of NOVA. They have a private page for us to communicate rant about our problems on all matters VA. One plaint I see over and over again is the one I mention above. It seems incongruous that we advocates are now always out of lockstep on what VA wants. As I mentioned, there are really only two choices now. The venerable VAF 21-526b has been relegated to the dustbin of VA history. Using the VAF 21-4138 was outlawed March 25th, 2015 (see §3.155). Amazingly, I see VSOs were still using this well after 3/15/15 in VBMS with little or no flak from VA Poohbahs. God forbid we VA ambulance chasers tried to do this. It would have been instantly rejected. We’re supposed to know better.
The 526EZ-Yes or No?
As of February 19th, 2019, the only form permitted to be used to file an original claim-i.e. a claim you have never ever filed before- is the VAF 21-526EZ. I wish to thank that Secretary who reduced the 526 from it’s original 26 pages down the present 5. It’s still a bit unwieldy when you are filing it (again) for the Veteran’s fifth new, original claim. Let’s be serious. How many times do you need to capture the data of when you entered, when you separated, which branch you served in and whether it was active or reserve? Trust me when I say if you forgo even one of these metrics in spite of numerous prior submissions of same, it will come back like a boomerang in a week. And, dear Lord, please be sure you annotate each time that you have not been a prisoner of war. Apparently, they need to constantly update the c-file just in case you disremembered that hard time you spent at the Hanoi Hilton back in ’70-’73.
The 20-0995-Yes or No?
Conversely, if you have ever filed for a “condition” in the past and been denied, you must absolutely use the VAF 20-0995 Supplemental Claim form to “reopen” it. Likewise, if you have ever asked for an increased rating for a service connected (SC) condition, you may only use the 995. This gets interesting when I file for a brand new secondary to the original SC condition. The VA compensation gears come to a screeching halt and they reject the 526 as the incorrect form. Where this all gets terribly distracting is when you refile with the 995 and they again reject it by saying you already filed a 526 for this and can’t file twice. I call that the Joseph Heller response (Catch 22).
I think I’ve found the repair order for this and don’t mind sharing it. Due to the impaired IQ of the VA intake chowderheads, we apparently need to instruct them on why we are using the form we are submitting. I do this by including a little blurb in Box 13A under “Specific Issue(s) on the 995 or Section IV, Box 16 on the 526EZ stating:
“Veteran now files his supplemental claim for _____________ condition on the prescribed VAF 20-0995. Veteran filed for this on _/__/____ and was denied.” Or…
“Veteran now files his supplemental claim for for an increase for his _____________ condition on the prescribed VAF 20-0995. Veteran previously filed for this on _/_/____ and was denied (or granted).” Or…
“Veteran now files his VAF 21-0526EZ for ________. This is a brand new condition which has never been filed for and VA requires it be filed on a VAF 21- 526EZ by operation of law.”
This forms insanity doesn’t stop here. VA came out with a new VAF 21-22a in 2018. It’s ever so slightly different than the older 2015 version. Woe betideth any who use that older form. Yes, folks. They will reject it. This also creates a damning domino effect on your attorney/client fee agreement. By law, if you don’t file both documents within 30 days of one another, the fee agreement is null and void. Oddly, your POA representation will remain intact. You’ll discover this problem when you win on appeal and VA refuses to hold back the 20% and pay you. At this point you are at the mercy of the client as to whether you were working for free or get paid.
I confess. I went to an all boys Preparatory School- Vermont Academy. It’s a good thing they didn’t go coed until after I graduated or I might have married early on. By the same token, I guess I’m condemned to being one of those indicted for White Entitlement. I disagree. I was incarcerated there for three years because my father went to Vietnam and my mother refused to let me reside with her. I graduated 59th in a class of 64 so no one can say I was trying to be snooty. I never did get to go to college for a number of reasons so no one can call me uppity or over-educated. In a word, I’m like the majority of my fellow enlisted Veterans. My only claim to something unique was an excellent education and a multilingual mother (French). It gave me a broad, multisyllabic vocabulary. A good education should not, in and of itself, condemn you to being considered arrogant or prideful. Being smarter than the average bear is not a crime.
I have learned over the years that being able to articulate and convey what you seek is essential to VA litigation. As we all know, you can file for DM II and cite to peripheral neuropathy in all four extremities. With the new AMA, chances are you will receive a denial that it wasn’t in your 1970 STRs and you would have been required to file for it within one year of leaving Vietnam. Aruu?
Recently, I was on another Veterans website where I offer advice. I was politely (as possible) trying to explain the difference between asking the VA to fix an obviously flawed decision versus filing a CUE claim. In a nutshell, you cannot file a Motion to Revise a “live” claim. A motion to revise can only be filed in conjunction with a finally decided claim. The operable word here is final. As in dead in the water. As in unappealed or past the one-year suspense date. Do you think I could communicate that concept to the parties I addressed? I was summarily informed I am rude, abusive, lower than whaleshit, arrogant, overbearing and not one soul likes me. Apparently, the others who find me distasteful were just too polite to say so. In fact. I am so despised there that I should roll up my prayer rug and go home. Well shoot. I apologized for coming across that way and begged for forgiveness but was thence informed that my apologies were shallow and meaningless, my advice was incorrect and I shouldn’t hold myself forth as an attorney. The list was far longer but you get the drift.
Here’s the gist of what began this. I attempted to teach CUE but was met with a refusal to accept my interpretation of §3.105(a) Revision of Decisions. Granted, when someone offers advice that is incorrect, I tend to step in and fix it. If the offender is is ignorant of the law and insists on propagating his errors, I sometimes become sarcastic:
[Redacted] states: “I have to respectfully disagree, if I would have followed this advice verbatim I would not have filed my CUE and won it.” Sure you would have. You could have sent in a letter and said “You screwed up my rating decision. Please fix it-pronto.” Calling the color red black doesn’t make it black just as calling an error CUE doesn’t make it -ipso facto-CUE.
I read over your entire thread, sir. You mentioned that the award “correction” failed to mention the phrase ‘CUE’. This is exactly what I am saying. It is not a true CUE until it is poured in concrete (unappealable). That is why there is no mention in your award letter of any admission of CUE. It is also why [redacted] will never see any admission of CUE-if and when he prevails. VA makes errors all the time. We all know that. Are they CUE? Yes, in a colloquial sense but not a legal sense.
As for the comment our esteemed contributor [redacted] submitted in [redacted]thread : “38 USC is built on 38CFR which is built on Public Laws.”, you may want to go back to law school, sir. I, too, got a good belly laugh out of that chestnut. I also liked your comment about the “First Circuit” (We also know the BVA, CAVC, and First Circuit frequently take a dim view of that habit.). I’m going to assume you mean the Federal Circuit which is identified as “F.3d” on legal cites. Do tell. Where do you come up these legal revelations, sir?
I have said this repeatedly but it bears reiteration. Any here who essay to offer legal advice with no legal training can make matters worse. The legal axiom for doctors is “First, do no harm.” [Redacted] (and many others of you) have learned quite a bit of VA law and some are even well-versed in CUE. I admire all of you for that. All of you are also free to disagree with me and I take no offense but I do ask that we compare apples to apples and not oranges to orangutans. I will repeat- [redacted] did not have a CUE. He had an adjudications error that was subsumed by a corrected ratings decision granting his TDIU. That, folks, is not a Motion to Revise. You cannot cite to §3.105a. The error was corrected before the appeal period expired. In VA law, as in any kind of law, proper semantics (i.e. legal terms) are the defining rule. One who files a Motion to Revise is not a Veteran, a claimant or an appellant. S/he is a “movant”. Feel free to bandy about the term “CUE” as much as you want but simply realize that until your time to appeal a decision runs out, it’s an “adjudication error” and nothing more. You can always resolve it just as [redacted] did-without resorting to a CUE filing under the auspices of §3.105(a). And for the record, I strongly advise no one to use a HLR for anything-even an attempt to “fix” an incorrect rating.
VA will accept a CUE filing but may not CEST (VA term for “claim established”) it if it is not a true CUE. It depends on the rater and the VARO. Most will now, after the new AMA inception, refuse it and tell you to use a 996 HLR. Best of luck and I mean that sincerely. If I could, I’d represent everyone on this forum before the VA. Unfortunately, I do not have the time. Besides, there are quite a few VA Agents in-the-making here who should apply for accreditation. Any one of the regulars here has 10 times the knowledge of a VSO service representative.
This provoked a contributor to opine on my obtuse personality:
“we all know you are proud of yourself. you make that plain. you also spend an inordinate amount of energy trying to belittle others, be intentionally insulting, prove (apparently to yourself) that you think you are smarter or better than others, and of course extol the (self-believed) superiority of AskNod.
It is unattractive and unhelpful. In fact many of your attacks on other posters are childish and down right harmful.
If you don’t want to be helpful that is your business, but attacking others needs to stop.
As I understand it the focus of this site is to help and support other veterans. Your bile is the exact opposite.
Have a nice life living in your self aggrandizing echo chamber.”
Well, anyone who knows me would understand I couldn’t just let that one slide on by…
I did apologize in a round about way…
I apologize if I came across as superior in any way. I have a sarcastic streak and it appears it offends some. I have studied how to win claims for 30 years. I have been bringing that knowledge here free to all who ask for it now-both here at Hadit and my own site- for over 10 years. I am not proud of myself. I chose to help other Vets the best way I knew how. I chose to learn VA Law and become a litigator rather than just sit here offering advice. Don’t confuse pride with commitment. The only thing I’m proud of is being admitted to practice at the CAVC without a Juris Doctorate. Only 46 have been accorded that honor. I’m proud of my three combat V’s for Valour above and beyond the call of duty in less than 2 years. If anything, I’m proud I managed to survive two tours back-to-back in Laos and Vietnam. Many of my friends didn’t. That’s why I predominantly serve Vietnam Veterans before the VA. If you (or anyone) offer bogus advice, why sure, I feel it needs to be challenged. Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law? In your own words sir- As I understand it the focus of this site is to help and support other veterans.
Let’s cut to the chase sir. If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever. If you offer poor legal advice and the Veteran uses it to his or her detriment, you are free to just enter a new claim thread and continue offering more of the same. In short, you suffer no censure or consequences. My attempt here was to clarify what is, and what is not, CUE. I merely try to correct that error using real legal cites and precedence. I will continue to gladly suffer your insults if it helps even one more Veteran succeed.
I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016. Free. No charge. I did all the work and wrote the legal briefs-and not because I’m proud of myself. It’s satisfaction in a job well done. And, might I add, correctly done. As we live in America, you have a right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn’t about pride.
It saddens me when someone runs out of legal or logical arguments and finally resorts to hurling insults. That generally indicates they have no more cogent rebuttal to offer. Accept my profound apologies if I upset you. Were you to familiarize yourself with VA law, I wouldn’t need to correct you nor apologize. I respect you as a Veteran and my motives are simple-to ensure you and others win. My advice was aimed solely at that metric. By my estimation, you are positive you are right. Had you been right, [redacted]rating narrative would freely admit a clear and unmistakable error had been made in his decision. VA is not adverse to admitting CUE. See attached below as proof of my statement.
When CUE exists, it is recognized-not glossed over or ignored in a VA ratings narrative. If you (or [redacted]) think the VA examiner just “forgot” to include the CUE discussion in [redacted] decision, you are sadly mistaken.
These rejoinders below, to me, indicate a possible medication management problem. I try to avoid a knock down, drag out fight when dealing with Veterans suffering from MDD. This is why I generally try to be gracious and apologize. This gentleman wouldn’t have it…
Do you suggest I just let you keep on misleading Veterans by pretending to be knowledgeable about VA law?
I have mislead no one. you however keep trying to apply the rules of the BVA and CAVC to a claim at the RO. You like to throw around terms like RIPE yet it appears nowhere in the rules of the RO and how claims are adjudicated at that level.
You cannot produce a single RO level CUE that was rejected for not being Ripe.
If I offer poor legal advice to my client and act on it causing my client to lose, the OGC will revoke my accreditation-forever.
yet you are not allowed to offer legal advice to non-clients as you frequently post to dodge answering questions….so what you offer here could not be legal advice or you would be endangering your own credentials.
I am not offering legal advice. I am offering an opinion on structure, format and content. If you had actually read and comprehended what I wrote…where your ego did not get in the way…you would have noticed that….but then that would not allow you to justify your attempts to bully and brow beat others as you crow about your own ego.
I helped over 750 Veterans attain a minimum of TDIU or 100% before I became accredited in 2016
Like one of Trumps claims, there is only your grandiose claim. I am sure you have had good suggestions for others who have been successful, and that is good. Your ego and your mouth however detract from any good you might once have done.
right to your opinions but you do not have a right to recklessly interpret VA law incorrectly. That is the crux of your problem with me. This isn’t about pride.
once again an incorrect pronouncement by King Alex. I have not interpreted any VA law. I have said I believe he has a CUE but I don’t have time right now to review everything he posted. I also suggested to the OP that he file his appeal now, and work to perfect his CUE… note to your ego IT IS HIS CUE. not yours and he is not your client.
The crux of my problem with you is I don’t like bullies.
That generally indicates they have no more cogent rebuttal to offer
yet as your wrote this you searched for more ways to insult people. You remind me of all those people who like to stir up drama and then claim their innocence. Beyond being a bully you are dishonest about your own intentions and actions.
Were you to familiarize yourself with VA law, I wouldn’t need to correct you nor apologize.
You have no idea what I am familiar with and as for correcting me it is not your job, nor is it your right to insult people and expect they will not respond. All your complaints amount to your ego being bruised and like the beaten junk yard dog you want to bite something.
your advice amounted to insulting the OP, others, and then me. You tried to use non-applicable terminology and standards not appropriate for a CUE at the RO. Under your claimed finality rule no veteran would ever be able to file CUE at the RO until they reached SCOTUS or let their claim go for a year so the decision became “final”, which under AMA would mean they lose any chance at an EED for the claim under the normal Appeal Process.
If you think the VA examiner just “forgot ” to include the CUE discussion in [redacted] decision
I don’t believe they forgot, I just questioned why it was not there. Your claim is the rankest speculation on your part. You don’t know either.
Let me be clear Alex, you might have something to offer, yet you bury in vitriol and childish bullying. Your attitude and ego are on full display. Your arrogance is abominable.
This post of your is just more proof you are not man enough, adult enough or reasonable enough to just get out of your own way.
If you don’t agree with things I post, that is fine. Say you don’t agree. Just don’t have temper tantrums and insult people for your own self-amusement. it is unhelpful to other veterans and just demonstrates what a tiny, arrogant, bully you can be.”
So, this tiny 5’9″ arrogant bully asks you. Here’s a poll. You folks vote on it. I don’t even care if you stuff the ballot box Chicago-style. I’m sure not looking for sympathy. I started wearing big boy pants early on. Give me your unvarnished opinion. If I am a total dick, at least have the decency to let me know. Hell, you can even leave in-depth comments on how horrible I am at the bottom below this post. I’m on a “Mission from God” to help Veterans (to plagiarize John Belushi). The man who says it cannot be done should not interrupt the man doing it (to plagiarize a Chinese proverb).
Boy howdy do I love litigating. I read recently that VA litigators experience a lot of angst, depression and despondency. I guess I get some of that when your Vet is dying and you’re just hoping to get it done so he can pass on with less worry. I won one like that last year. Bob passed on July 1, 2018. I got Seattle to grant 100% (but not P&T) on the 19th of June. It’s a battle for DIC now. We’ll win. We always win. Today I write of two dissimilar cases but with the common thread of inept misconstrual. The first is a bald attempt to shitcan a Vet’s appeal we’ve been nursing along since 2010. He began in 1986 and carried the water to 2010. I began helping around then. Before I could be accredited he signed with a NOVA friend. Charlie is retiring and handed him back to me. The second is a daisy. VA is trying to insist my Vet is an inmate in a Texas jail and illegally collecting more than his truncated allotment of 10%.
Johnny Vet #1
Here’s the chronological fact pattern for Johnny Vet #1.
Jimbo (name changed to protect my ass) enlisted in the Marines and went to Vietnam as a grunt. It was pretty bad. A friendly airstrike took out a bunch of his buddies. He came pretty close to getting his name immortalized on the Wall in DC. He signed for a second tour but burned out at 20 months in country. Eating a hurried lunch sitting on the body bags of your buddies can do that to you.
He came home and spent a lot of time on the sixth floor (psych ward) of the new VA Medical Center in Seattle. By 1990, they had him on elephant doses of Thorazine… and about 15 other tranquilizers just to slow him down to 78 RPM.
Then the seizures began due to drug toxicity. So he filed for seizures secondary to his SC 100% Bent Brain. Pretty simple and inextricably intertwined. Harris v. Derwinski had just been decided so he was covered-right? Not. Seattle, on remand from the BVA to issue a missed SOC for the seizures, denied Jimbo and insisted he file a VA 1-9. Jimbo got the 60-day letter about 120 days later. His VVA rep had split for parts unknown. Jimbo knew a little VA law and figured he didn’t need to file yet another VA 9 so he wrote them a 4138 love letter explaining this. They took that to be a NOD objecting to them closing his appeal out as untimely. And off to the horse races they went. Jimbo filed about 10 more 4138s before he zoned out. Seattle kept rope-a-doping him until he gave up.
He kept filing for seizures through the decades and finally one last time in 2010. And lo, one day in 2014 on appeal again, a VA examiner actually looked at his DD214 and noted he had a Combat Action Ribbon. Bingo. The Combat presumptive under §1154b kicked in and they gave him seizures for 100% effective on his filing date of 2010…but due to TBI.
He filed a NOD for the earlier 1990 date on a 4138 April 6th, 2015–just twelve days after the VA revamped §3.155. This meant he now had to use a VAF 21-0958. I got him lined out on that just in time and he refiled on April 20th, 2015 with just nine days to his one year suspense date. The VA accepted the NOD and it’s all there in the VBMS.
In March 2016, they suddenly said “Hold the phone, Ramone. The time to object to your 1990 appeal expired June 6th, 1992.” So, he filed another NOD objecting to them closing out his legitimate NOD from the April 28th, 2014 100% grant. Are you lost yet?
My attorney friend took over in late 2016 and tried to cut the Gordian Knot the VA had tied. He finally gave up on a formal DRO review and opted in to the RAMP program in January 2018 and asked for a HLR decision.
VA got around to this in March 2019-a year later(so much for Rapid). They mulled it over for a month and closed out the original legacy appeal because-hey- your appeal can’t be in both places at once. Now it was an AMA Higher Level of Review claim. VA promptly declared they could not do it in HLR because it wasn’t a compensation claim but rather an earlier effective date claim which was not in the HLR purview.
So they closed out the AMA HLR and poof. Jimbo’s 2015 NOD evaporated into thin air. This is where I began sharpening punji sticks and fetched a shovel. I tried to get traction with my Supergirl Change Management Agent Tina here in Seattle. No dice. The Veterans Service Center Manager in Winston Salem VARO refused to budge. They were not going to fix it. I emailed a few hand grenades to Kimberley and let her know I was preparing the Extraordinary Writ. I also cc:’d Wilkie and the Head of the Appeals Management Office now called the Appeals Resolution Center (ARC). Mr. McLenachen was out on summer vacation and I got one of those “I’ll be back in the office on 8/12. If you’re thinking of committing suicide, please don’t. Call Marge instead at (202)366-1234.”
So I bided my time. About August 5th, Kimberley finally returned my email and said “So I guess it’s too late to stop the Ex Writ. I reckon we’ll see you at the CAVC.” I sent another mail bomb over saying “Negatory, Kimbo. I’m just waiting for the ARC boss to weigh in.” And the next morning he cc:’d “We’re looking it over.” This morning, I see a brand new EP 171 announcing Jimbo’s NOD of 4/20/2015 is legit and the suspense date for some Action Jackson on this baby is 8/25/2019. That’s only fair. Christ. The NOD is now four years and four months old. Problem solved thanks to the miracle of the VBMS. It tells you who owns it. And it has their phone number, too.
On behalf of the Asknod Corporation, my thanks goes out to Mr. McLenachen for being a man of his word. Two and half attaboys for cutting the Winston Salem Gordian knot.
Johnny Vet #2
Johnny Vet number 2 was inches away from finally getting a five-year-old claim for Agent Orange presumptives from Thailand. We Thai Vets don’t get the AO presumptive regardless of what you heard. That was the Navy pukes who scored this spring. We still have to win them one at a time the hard way.
So I wake up one morning last week. The Claims Queue shows a transaction occurred. I see it’s Johnbo but instead of a 100% grant for Prostate there’s a prison report in Johnbo’s VBMS Documents section. Seems Johnny was arrested for peeing in a park in Texas back in 2010 out in the quasi-open. He got a misdemeanor ticket and was released the next morning. The charges were dismissed when he explained he had prostate cancer secondary to his military service in Vietnam, Laos and Thailand. As he was frequently incontinent, he tried to surreptitiously “let a little bit out” near a bush. There were no outhouses and it was about ten at night. Go figure America’s finest in Blue were out on a faggot perp patrol.
I had him call the White House Hotline and report that he just found out the prison report was in his VBMS efolder. I’m guessing those gals who work there at the telephone bank in West Virginia have heard everything. I bet it plum rolled down their socks to look in there and see he was right!
Well, faster than you can say Jack Robinson in VAspeak, I saw a note in there this morning that they had somehow figured this whole mystery out. Jimbo had never filed for anything until 2014. So he wasn’t collecting 60% while living the life of Reilly in the __________ County Jail for the last 9 years. No harm, no foul. Just a slight delay of eight days for nothing. Nonadversarial, you say? I don’t see it. Daddy used to say excuses are like assholes. Everybody has one and they stink. They were shopping for dirt which is against the law in the 56 Regional Offices across our fruity plains.