VARO DENIAL–THE VERY FIRST STEP IN SOLVING THE PUZZLE

logo-that-others-may-winI am constantly amazed at finding there are many, many Veterans unaware of the vast wealth of knowledge only a fingertip away from them on the Internet. I get links every day from many of you that lead me to yet to another site with valuable information. Hadit.com and other “big name” sites with a quiet atmosphere are where Vets can delve into VAspeak and separate the wheat from the chaff. 

More Veterans come to Hadit.com (and occasionally my site)  and repeat the same story over and over. “Gee. I sure wish I’d looked into this more at the beginning. I just got my denial. I don’t get it. How can they deny me? It’s right there in my records.” The common theme is the same. Denial. 85% of you will get that Dear John letter. With the number of filings going up and the subsequent overflow of appeals at the BVA creating a 3-year bow wave into the future, one of the VA’s wishlist of repair orders is to fast track you through the BVA by limiting the admission of new and material evidence and allow a de novo adjudication -actually nothing more than a rehash of your RO denial. Come on. How many of you get the denial letter, file your NOD and then a year to sixteen months later get back a SOC saying exactly the same thing with about 40 cites to 38 CFR, that while they looked at it all, nothing there was enough to change their minds?

That first denial will always be the springboard to success because it essentially tells you why you lost. A denial is that defining poker moment when  the dealer flips over his hole card to show 20 and you held at 17. Many of you use a nationally recognized VSO and their service representatives to handle your claims. You soon begin to find out this is far more complicated that it appeared in the beginning. No one is there to tell you about Independent Medical Opinions (IMOs) and the dire need for one. No one is there to consult legally which sometimes backfires when they file for tinnitus in each ear for 20% bilaterally. I actually read one recently where Johnny Vet went all the way to the BVA with his DAV-filed claim for an inevitable denial. .

The interesting thing in all this is the Federal Courts above treat Veterans represented  by VSOs as pro se Vets-i.e. Vets with no representation whatsoever. This is both a blessing and a curse. On appeal to the CAVC, most of the judges look at precedence and instantly put on the white kid gloves. This occurs frequently in the Extraordinary Writs arena where many Veterans get a front-row seat and a rude introduction to justice.

A denial at the VARO level allows you much latitude in trying to revise it and get the correct rating. Some claims are never going to be made at that level. I speak of Jetgun claims and Presumptives for Agent Orange extended to Thai Vets. These will never be answered at the local level. The smart guys just file the NOD and ask for a traditional review. This allows time for more IMOs and proper development of the claim(s). Vets usually give me a glazed expression and say why bother. Try to pretend its a reaaaaally long Monopoly game but you own Boardwalk and Park Place. With Hotels. If you build it, they will pay… eventually.

With the 38 CFR §3.103(c) regulation requiring the DRO to “spill the beans” and tell you what you need to win, A DRO review and hearing should be all that is needed to resolve the problem. VA sometimes forgets US Supreme Court Jurisprudence when they deny. It is not expected that the Government shall always win, but that a Veteran shall be accorded due process.

Veterans should not be overwhelmed by a denial. It’s virtually inevitable the way the system is set up. You still read about some Veteran with the Navy Cross and a few OLCs on his Purple Nurple getting denied for PTSD at the Oakland RO. Those are becoming rarer as the VBMS system matures and the M 21  computer is better trained to spot the real malingering Veterans.

Disassemble your denial and categorize each ailment against denial logic. Look for key words such as ‘history’ and how it is used in a sentence. “History” as defined by a Veteran is hearsay and unsupported. “History” as a medical term showing chronicity is what you need. Too many wishfully impart far more meaning into “possible” or “could have” rather than the magic “at least as likely as not”. Why not go back to the doctor and explain how VA has it’s head up it’s collective ass and is using it’s belly for a porthole? Ask him to rewrite it in DickandJanespeak for the sub-100 IQ RVSR at the Regional Office.

After more denials than I can count since 1989 (actually seventeen), I see an eventual win for those with some meat on the claims bone. It may take a number of assaults on the mountain to scale it but every Vet I’ve helped win has always had a legitimate, underlying claim. Time becomes our enemy when we realize we suddenly have a finite amount of it to correct a wrong. Keep that in mind when you stand on the banks of the Notice of Disagreement River and debate diving in.

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Posted in KP Veterans, Nexus Information, NOVA Attorneys, SOCs and SSOCs, Tips and Tricks, VA Agents, vARO Decisions, VARO Misfeasance, VBMS Tricks | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

HUMBLE AIR FORCE HUMOR

unnamed-6When something needs to be done in war, it usually falls to the Air Force to either get the ball rolling or the assets in place to accomplish the mission- or simply do it ourselves. You realize they did teach us to shoot in Basic so it was a well-rounded education. Sometimes we share and call up our fellow service members  in the Army and Marines and ask them if they want to play too. We don’t like to hog all the medals and there’s usually plenty of excitement for everyone. Buuuuuuut….. we were the creme of the crop back in our day. 

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Nodster

Posted in Humor, KP Veterans | Tagged , , , , , , , , , | 1 Comment

HADIT.COM RADIO SHOW 9/22/16–THE ILP WRAP?

haditlogo2007Jerrel and the Bugtustle crew invited me over to do a show at Hadit.com on Thursday. Airtime commences a 1600 Hrs Local Pacific and 1900 Hrs Eastern. Standard practice will be to check my political correctness at the door and give you the insider report on the Agency you dream on. Lots of news to report on ILP. We’re ‘pushing the envelope.’

The best is that today, on day 1,967 of my filing, one year and 14 days after the BVA grant, the VA VR&E guy who drew the short straw called to get the bid number from Farmtek. For the greenhouse. We chatted for one hour and 18 minutes. He knows a heap more about ILP now than he did this morning.

Be there or be square. the call in number is 

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

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And as for you who think all us Air Force types had it easy, remember we’re the new kids on the block. We’re always testing our limits-and the Navy’s. That’s what makes us tick.

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Posted in ASKNOD BOOK, Independent Living Program, KP Veterans, SVR Radio on hadit.com | Tagged , , , , , , , , , , , | Leave a comment

VAMCs… WHAT IF?

14322247_1276374675759141_4927986291961620399_nI was sent this – oh hell, these. Without taking sides, I do think they involve a profound sense of humor rarely seen anymore. This isn’t political hit photojournalism. This is high art Twenty first Century style. 

 

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I received this from another member who asked to remain nameless. I’m betting a Veteran owns that business. When we began asknod, I voted for WWVD or What Would a Veteran Do? I was outvoted for ask Notice Of Disagreement? That’s not even proper English. Nevermiind. I get it.   Asknod what your country can do for you. Right?

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Posted in Humor, KP Veterans | Tagged , , , , , , , , , , , | 2 Comments

BVA–I NEVER PROMISED YOU A ROSE GARDEN

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Veterans Law Judge Vito Clementi

Having sat, chatted and engaged in a colloquy with Veterans Law Judge Vito Clementi for an hour one day in 2015, I know how hard it must have been to bite his tongue and write the denial below. Of all the Judges I have ever met or had dealings with, he was the most forthright and pro Veteran as one could hope for. Quite possibly because he is one himself.

This case involves an enigma and no one, not even the Philly Puzzle Palace tea leaf readers, seems aware of the miracles of modern day science. To begin with, the VA examiners were blowing these bubbles:

Upon VA examination in March 2012, the VA examiner noted that the Veteran has a current diagnosis of hepatitis C. The VA examiner also indicated that the Veteran was diagnosed with infectious hepatitis during service, but it was unclear which specific type of hepatitis was diagnosed (hepatitis A, hepatitis B, or hepatitis C). Following examination, the VA examiner indicated that she was unable to provide a medical opinion without resorting to speculation because specific tests were not performed during service to differentiate between the different types of hepatitis.

In 1970, infectious hepatitis was Hepatitis A from contaminated water. It lasted about 5-7 days and the jaundice disappeared within 20 days. If he was diagnosed with Infectious Hepatitis, it would be HAV and that would be the end of the query.

Here’s the problem. Nowadays we can identify the presence of a healed Hepatitis A infection via the presence of antibodies which give you immunity to it. Next, we can identify either antibodies to Hepatitis B or an active (chronic) infection of Hepatitis B. Lastly, we can identify the presence of Hepatitis C viral infection and even count the number of viral replicas via polymerase chain reaction (PCR). Or, we can see the virus is not present via treatment with one of the new Direct Acting Antivirals (DAAs).

So, it is childsplay, and has been for about ten years, to differentiate between whether one has, or ever had, Hepatitis A, B or C, a combination of two or just one and whether one currently has any of them actively or has achieved a seroviral response (SVR).

In fact, when I was slated to begin Interferon in April 2007, the first thing was to be tested to find out if I needed a vaccine for Hep A or B. They didn’t want me coming down with either one during the treatment for C as it might kill me. It was at that time I discovered I had never had HAV.

Next, a simple liver core biopsy will reveal the degree of liver fibrosis and the current stage of the disease. Divided into 5 stages from 0 to 4, with zero meaning a perfect liver, each stage is ten years ± 2 years. Ergo, stage two means twenty + years since the inception of the disease. Most of us who got it back in the late sixties or early seventies are either healed or dead from it. Some, like me, quit drinking and smoking and hunkered down to wait for a cure. It gives a whole new meaning to keeping your powder dry. I was cured at forty three years and not a moment too soon.

A core biopsy yields a Metavir Score and this is the perfect yardstick to figure out how long you’ve had it. If you served from 66-69 and got it in Vietnam, by 2009 you were feeling a mite winded and had a touch of nausea. Your Metavir rating would probably be pushing the beginning of F4 like me. Funny (now) but I can point to the exact day and hour I got mine.

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Judge Clementi is not allowed to be a doctor. The Pennsylvania National Association of County Veterans Service Officers were driving this bus for Johnny Vet. When you accept a POA from a Veteran, that is your duty-to help him win. Well, not exactly if you’re a VSO but that’s a story for another day.  Nowhere is an IMO to be seen or inferred here. The dog didn’t eat the nexus homework so I give up. This Vet was claiming it was associated with his Agent Orange exposure towards the end of his BVA hearing. He’s not a doctor either. Ever since Mario Caluza tried to smoke the Manila RO in ’88 on some bogus nexus letters, the Court, the BVA, the VSOs-Hell- even Micky Mantle’s mom knows you need a nexus letter from a doctor to win a VA claim. Well, apparently almost everybody except the ones expected to know.

From talking about this with other Judges, I understand the frustration of having to bite your lip and pseudo-sarcastically point out in the decision ( a year later) that there is nothing there to help his case and certainly nothing from a doctor in his favor. Denying the claims after a Vet has been led into the barn for slaughter with no legal advice or help would be a bitter pill to swallow. Welcome to ex parte justice.  Read about 200,000 BVA decisions and you will see VSOs still haven’t gotten the email on the need for a nexus letter. I think it’s criminal.

Imagine a justice system where you might know the repair order to help the defendant out but you’re legally precluded from leaning over and whispering the way to do it? 38 CFR 3.103(c) (2) states, in part:

It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.

Being a liberal Southerner, I’d stretch that to say Judge Clementi might have written something on the back of an envelope and slipped it under the table to the County VSO Rep. saying ” Hellooooooooooooooooooooooo? ASK ME FOR A REMAND! Get new C&P with core biopsy and PCR.  Run, Forrest! Ruuuuuun!” But then we know he can’t do that beyond the BVA hearing.

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Posted in BvA HCV decisions, Jetgun BvA Decisions, KP Veterans, Nexus Information | Tagged , , , , , , , , , , , , , , , , | 6 Comments

BVA-BLOODY JETGUNS– THE YIN/YANG OF EVIDENCE/CREDIBILITY

635646931319099161-veterans-administration-logoIn the madcap world of VA claims, character assault is a common technique employed by our adversaries in the 56 Fort Fumbles across the fruited plains and oceans. In VAland, when you say something different in 2016 than what you said on the same subject in 1968, it creates a bow wave of doubt that you can’t remember anything clearly. Once you allow VA to let this camel’s nose in under the tent, the game is up. Anything you say is presumed incredible. They don’t call you a liar. They don’t have to.

The following BVA decision I use to illustrate this is a BVA jetgun win for Johnny Vet out of our Heavenly RO located in St. Petersburg . Authored by Vet’s Law Judge “SS” Toth, most Vets  would mentally be expecting Waffen SS treatment and a strict taskmaster. Boy howdy would you guys be off the paper. Judge Toth is mindful of what real justice is, not what VAROs have corrupted it into.

downloadA warm thank you to our sister American Legion VSO reps out in Florida for whatever moral support they provided. It’s not impossible they didn’t have a sharp rep. there who knew what he was doing. But look at the fingerprints. Johnny Vet didn’t win with the Caluza Triangle, the famous Shedden requirements, the Hickson “elements”. No. He won because the VA could not find a chink in his credibility to drive in a piton of doubt.

Witness how clearly Judge Toth synthesizes this into the decision:

In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence.

See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-7085.Opinion.5-7-2014.1.PDF

I’m going to add color so you can keep track of formers and latters.

Competency of evidence differs from weight and credibility.

The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.

See Rucker v. Brown, 10 Vet. App. 67, 74 (1997).

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The Board notes that the April 2010 and January 2016 VA examiners did not identify non-service related risk factors for the development of hepatitis C. Additionally, the Veteran has provided competent and credible testimony of receiving “jet air gun” immunizations in service that are recognized by VA as a “biologically plausible” means of transmitting hepatitis C. The 2010 examiner also noted that with regard to the most commonly identified risk factors, only one applied to the Veteran, assuming that the injector may have been bloody. Accordingly, while the examiner indicated that an opinion could not be provided without resorting to speculation, the examiner’s explanation for the opinion appears to indicate that it is at least as likely as not that hepatitis C is related to the one commonly known risk factor the Veteran experienced. The Board finds no reason to doubt the Veteran’s statements as to having been exposed to blood during the injection. Having found the Veteran’s testimony credible, including as to the “jet air gun” immunizations in service, and after reviewing the medical opinions, the Board finds that the evidence of record is in relative equipoise as to whether the Veteran’s hepatitis C was related to his active service.

Competency of evidence is what can be considered in a claim. Just like Judge Judy, hearsay is not permitted although it sometimes seems to seep in. Phil Cushman got bushwhacked on that one when some enterprising VA jokester/examiner started penciling in addendums to his C&P afterwards. VA is often caught dragging in red herrings to a Hepatitis C claim. Drugs are first and foremost the major downfall. Johnny Vet smoked pot and had an Axis 3 ETOH issue wider than the Mississippi River. Johnny Vet got Hep C. Denied. Next. We had Robert from LA. His VistA medrecs. actually show the penciled in “Yeah, and he admitted to snorting coke a lot.” I’m sorry. That’s why we have computers so you can’t go in the back door (Like VACOLS) and rearrange the furniture to better stage the crime scene. Robert won on a Cushman violation and got his 100%. Robert most assuredly did not snort coke, either. He is deeply religious and always has been.  And a warm thank you for not giving up, Phil. You left a magnificent due process argument  for eternity for all of us.

Assuming the competent evidence is entered and nothing can be found to use as a smoking gun for the denial, phase two begins at the Regional Office- It would be pure speculation as to what it could be. Fortunately for us, Mr. Benito C. Layno, much like Phil Cushman, blazed a trail ahead of us for all who followed in his footsteps.  We are now allowed to testify with credibility as to what comes to us via our five senses. Thus, Johnny Vet from sunny southern Florida is competent (read credible) to opine as to what he (and a gazillion or two others of us) saw on the end of a jetgun being used to administer shots to him. Anything that comes to you via your five senses are viable statements admissible in this game. The only test is to pass the credibility hurdle. 

In instances like this, VA breaks out the Pinkerton Detective Agency and hires extra bloodhounds. Johnny Vet’s journey post-military is examined. A $39.95 Criminal background check would turn up that two years at Texas’ Greybar Hotel for the misunderstanding at the gas station deli late one night in 76. Bingo. HCV due to incarceration. Denied.

But what is the RO to do? Our Johnny Vet from St. Pete’s is squeaky clean and has given a Layno-approved answer. VA has merely stuttered saying it would be speculation to opine. Bingo.

Resolving reasonable doubt in the Veteran’s favor, entitlement to service connection for hepatitis C is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015).

download-13Credibility is a Veteran’s best friend. It’s right up there with the Presumption of Soundness. It’s the essence of 38 USC 1154 in many cases that gets you a win. Johnny would never have gotten a win out of any RO based solely on jetguns. They don’t have the authority to grant the claim. Not one jetgun claim to my knowledge has ever been won at the AOJ- including WGM’s in Texas. Face it, even if you have three IMOs categorically stating it was jetguns and they won’t grant, you can figure having another one from Jesus wouldn’t even pass muster.

One thing Vets will note is the brevity of this decision. The whole thing fits on one VA SF8.5×11(w). Amazing.

One thing I am beginning to see at the Board of Veterans Appeals that is very refreshing is the gradual disappearance of some of the Hang ‘Em High judges. In their place, I’m beginning to see a new breed of lawgiver with a far more fair and balanced approach than what I’ve been accustomed to. There still is the occasional wild hare like Mark Hindin who acts as though he’s never met an above-board Vet- and convinced he never will. I could name a few more but the good news far outweighs the bad. And besides, I might have to present a claim to one of them in the future. That’s all I’m gonna say about that.

Nodster

 

Posted in BvA HCV decisions, HCV Risks (documented), Jetgun BvA Decisions, KP Veterans, Nexus Information, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

VA Spousal Resource Protection Amount

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image: wikipedia

There have been some reforms in this area.  Please note that there may be more current information available on this topic from a VA social worker. 

Spousal impoverishment for VA extended care is covered under 38 CFR 17.111 (pdf) 1601a_06_hk_2015_11_10

VHA HANDBOOK 1601A.06 Veterans Health Administration Transmittal Sheet Washington, DC 20420 November 10, 2015

7. Spousal Resource Protection Amount. The spousal resource protection amount, as defined in 38 CFR 17.111, if the spouse .is residing in the community (not institutionalized). NOTE: This amount is not automatically applied by the VistA system and must be deducted from the value of the liquid assets as applicable during the completion of VA Form 10-10EC.

From Cornell, we read that the VA and Medicare standards are supposed to be the same now:

https://www.law.cornell.edu/cfr/text/38/17.111

(vi) Spousal resource protection amount means the value of liquid assets equal to the Maximum Community Spouse Resource Standard published by the Centers for Medicare and Medicaid Services (CMS) as of January 1 of the current calendar year if the spouse is residing in the community (not institutionalized).

This is a partial screenshot from Medicare (LINK).

 

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click to see whole page.es.

So depending on where you live (property taxes) and other factors, like utility rates, some spouses may be okay if a spouse has to enter extended care with Medicare or VA.    And co-payments could be waived or reduced.

Here is a (link) to a 2013 VA Fact Sheet IB 10-590 that acknowledges the changes.

State veterans homes may have different rules.

However the rules for pensions are brutal for vets without a spouse or child as this denial shows (LINK to ruling  by Judge Steven Reiss).  Going into a VA nursing home would certainly mean  a single vet would not be able to afford home payments while recuperating from a long illness with a reduced pension of $90.00 a month!  More homeless ill vets. This stupid policy of punishing poor single vets for getting seriously ill is unforgivable

Can the government try to recoup care costs?  Yes, but that’s another subject.

Posted in All about Veterans, BvA Decisions, Food for thought, Guest authors, Uncategorized, VA Health Care | Tagged , , | Leave a comment