PYRAMIDING PARKINSON’S–PICK YOUR POISON, SONNY

Imagine suffering from Diabetes with severe peripheral neuropathy. Now, supersize that with advanced Parkinson’s and a full load out of the symptomatology. You’re not a doctor so you file for loss of use of your upper and lower extremities. Does it really matter which of these disease processes (or both) is/are responsible for the loss of use of all four extremities if you’re service-connected for both? Well, I sure wouldn’t have thought so up to now. VA has, despite my best efforts, tried their damnedest to put a fork in this ol’ boy but this ain’t my first rodeo. Most Veterans, acting pro se, would either give up or seriously contemplate sucking on a lead lollipop. Shoot. I might. 

The only problem with that would be screwing the better half out of her DIC- which isn’t even an option. So you’re caught in this Orwellian Mobius loop of being so disabled with diseases that are rated using the same diagnostic code simply because they are analogous to the “disease process”. I speak of the conundrum of 38 CFR § 4.119 DC 7913 using the same peripheral nerve impairment ratings listed in §4.124a- to wit: usually 8515 (upper) and 8520 (lower) for Parkinson’s Disease under DC 8004.

Just for shits and grins, what do you think VA would do in this predicament? Why, give him SC under DC 8514 for the upper extremities with a 70% bilaterally at first before I began talking loss of use. Suddenly he got better and they tried their new ‘nothing is everything” bait and switch ratings game. They gave him 100 for bent brain but began chipping away at the extremities to make them appear better. They reduced him to a paltry 30% bilaterally and reduced the Parkinson’s balance issue under DC 6204 from 70% to 30%. Then bump up the DM II from 10 to 20%, increase the incontinence and constipation a dime each, and make it look like you’re only moderately screwed up physically and actually getting better. Loss of use? Not hardly.

Lastly, since you’re 40% for diabetic neuropathy under DC 8520 bilaterally, and that might make it look like you’re losing your use of your lower extremities,  they reduce each to 20% because everyone knows PN gets better. In fact, so does Parkinson’s according to these guys. Oh yeah, and to cover their naked asses – they have the balls to invite  a new claim for diabetes increase which they just reduced.

Of course, you’re not any closer to getting to what you filed for-the loss of use of the extremities (either upper or lower) because it would be pyramiding to grant both ratings reflecting the inability to ambulate or button a sweater.  So what’s a Veteran to do? Well, keep going to a c&p until you hit the chicken dinner winner. Actually, this was the last straw. I’d planned to go get an IMO saying Dave was hors de combat based on the medical evidence of record but we decided to cross the T’s and dot the I’s by asking for an HLR for one last stab at it. It looks better when you go up to the BVA and show you at least tried to get them to see reason. This can actually be a moneysaver in some cases. Not all Vets are well-heeled and could be they don’t have a couple spare Grover Cleveland coupons lying around.

What concerned me on this case was the obvious pushback after I  began talking about loss of use. My backup plan on this one after I got the first SMC L-any SMC L- was another a&a for his mental decline.  That fills out two SMC Ls and creates the entitlement to SMC O and thence automatically to R1. Since Parkinson’s is a neurological disease, it is separate and distinct from a mental disease secondary to it. MDD is rated under §4.130 DCs 9201-9440 which is a mental disease. Yep. 31 flavors just like an ice creme parlor. But here again, VA gets the willies and starts calling it pyramiding. Or better yet, they say it’s impossible to separate the neuro stuff from the psychiatric symptomatology. That’s just hogwash and VA’s way of lowballing you.

In the world of VA medicine, they get first shot at deciding whether you actually get to make the jump from DC 8514 up to DC 5109 (loss of use of hands) or, increase from DC 8520 to 5110 (loss of use of feet). Once they deny, you’re free to obtain an IMO saying you have loss of use-but not before. You’ll see this same phenomenon for PTSD or MDD. You cannot just file a claim with your own independent medical opinion (IMO) that you’re bugf*cky in the head. You file and go to a VA c&p where they diagnose you with PTSD or MDD… but then say it has nothing to do with the night the OPFOR (Operational Forces in wokespeak) overran the ammo dump at An Khe and bayoneted your BFF right beside you. Only then after the bitchslap denial can you go get your own magic paper and file your 995 supplemental.

Filing claims at VA is not an art form but filing them in the correct order is. That’s why we call this VA poker. You ante up, VA raises with a denial, you get an IMO and they deny again. You go up to the BVA on appeal and win. You win and it comes back down to the local Fort Fumble where they give you a 0% rating. Then you start all over. Lather, rinse. repeat. Smart Vets will get their IMO doctor to list just exactly how bugf*cky they are from the git go so they don’t have to keep making the pilgrimage back up to Washington DC.

I recognize time is our enemy. I want to get my Vets a win as fast as I can. With the new AMA, it actually is faster to get all these wins down at the local level whenever possible. Save the BVA appeal for the really difficult ones like OSA secondary to PTSD. In Dave’s case, the fact that he is obviously impaired in walking is obvious. And when you have to bend a spoon in a circle and wear it like a ring to keep your peas or corn onboard, then chances are the tremors have created loss of use of the uppers, too.

I filed a CUE claim on this conundrum shit where VA says ‘Sorry. Take your pick. Either you have loss of use of the extremities due solely to Parkinson’s or you have loss of use due to the Diabetes residuals. You can’t have both because that would be pyramiding.’ It may go to the BVA on appeal but I went down for double and also continued to fight the original claim with an HLR review. This way you can have two fishing poles in the water at the same time. If they don’t get that subtle reminder that the chances of you going away empty-handed are about the same as winning the Powerball lotto, then they never will. Most cases I work are for the highest ratings of SMC. Newsflash. I don’t go away. I’m like a bad habit and just keep punching paper at them until they scream ‘Uncle’.

In the new AMA venue, winning often comes down to how earnest you are. I’m discovering that VA personnel are beginning to recognize my name popping up at the DROCs weekly on new HLRs. I know this flies in the face of established advice on how to litigate. If I’d been namby pamby on my own claims and followed my VSO’s advice in ’94, I’d probably still be at 10%. By going on the offensive over and over and inundating them with incessant claims for everything you can imagine, it seems to make them more receptive to trying to grant and getting me out of their inboxes.

I’m beginning to see a clear phenomenon of a grant for a&a but a denial of the bigger R1 or SMC T awards. Kinda like 2nd or third Prize. They know they’ll lose eventually so why not do the knick knack paddy whack- give the Vet a bone. What is this crap of seeing if you can roll him on the big shit. At that point, I  piss on the fire and call in the dogs.

Here’s a classic example. I filed Dave for loss of use of upper and lower. VA denies.  I come back around and file him for every little Parkinson’s secondary you can dream up. They won’t even consider SMC S. They feel we need to have a 100% or TDIU rating in order to grant a&a. So they bump up Dave to 100 just for the mental and give him SMC L for a&a. But they give him the most bodaceous haircut for all his Pakinson’s and DM II ratings.  Bam. We go get more ammo from the neurodoc he sees and get a prescription for ankle foot orthotics (AFOs)- those gomer devices to keep you feet from dragging when you walk. We double down and refile for increase on constipation and alien abduction causing incontinence. Aphonia. sagging face muscles. Ad nauseum.

Then we do the HLR and point out the obvious-Parkinson’s doesn’t get better. Neither does DM II unless you forever cease and desist from dining at Micky D’s and go on a mega-serious diet to get your BMI down to 26. About this time the hired c&p clinician(s) can’t help but notice some of these VA shenanigans where they say you’re cleared in hot for the Boston Marathon with your AFOs. At some point, they have to man up and get a case of the morals and acknowledge you are not long for this world.

David will win. I know that. He knows that. No less than 30 Coaches, Asst. Coaches, Senior Quality Control RVSRs, DRO reviewers and a few hundred VSRs have gotten writer’s cramp asking for clarification opinions, supplemental medical opinions and requests to discern how much of which disease  actually caused this “condition” of loss of use and when did it begin. This claim is more well-traveled than Voyager I. They miss the point. It’s immaterial which one causes it. The consideration is always ‘does he have loss of use?’ There simply is no follow on of “due to his SC diabetes or Parkinsson’s” in that question.

This all began in 2017. Here’s what Dave came to me with in 2020. They’d just taken away his SMC S for housebound because he was ‘getting better’.  His pals at DAV sent him up to the BVA on a direct review instead of going on the warpath below for a&a.

dave redact

I cut to the chase and filed him for everything but the kitchen sink and they came back with this one as I’d predicted. I left the DM II subject alone for the moment and developed the Parkinson’s only. I accomplished the first (and most important) task-SMC L for a&a. But note well, the 100% for the MDD creates a separate, distinct pathway to another a&a all by itself. Sometimes you wonder who they have down there driving the VA ratings bus. Somewhere, a village is sorely missing their resident idiot but I’ll be damned if I’m gonna spill the beans. Look at the last page of the ratings code sheet next and see they’re actually luring me into filing for DM II increases. I don’t have to make this shit up. VA does it for me.

dave redact II

Page 6 redact

In the meantime, the HLR came back after I pitched a bitch about Dave redact II above . I know. This sounds complicated but it’s a bit like juggling six balls. As long as you can keep it straight, it’s no more difficult than riding a tricycle. It gets more dicey if you have 80 clients though.

Dave HLR 1

After thirty years of this, I’ve discovered the idea is to drive them to the point where they don’t know whether to shit or go blind. I hit them with a CUE  claim for reducing Dave from 70 to 30% bilaterally for his upper extremities. Once they give you the shekels and the rating, they can’t reduce it without as thorough a c&p exam as the one they started with. Yep. VA tried to do the cheapo depot Covid ACE (Acceptable Clinical Evidence) c&p instead of crossing their T’s and dotting the I’s. This is world class dum – a higher level than even dumb.

Redact dave MTR filed 6.9.2022

But remember that chicken dinner winner of a ARNP I was praying for above? Bingo. Our ship came in so we won’t have to buy one. Granted, Dave has been going downhill since he filed in 2017 and this is an ongoing project but it’s still the same claim to get entitlement to the things he filed for in 2017. When we get to R1, we’ll sort out that effective date business.

Dave LOU IMO redact

But, noooooooooooooooooo (the way Steve Martin says it). They couldn’t just grant the LOU of the uppers and lowers. As you can see, our VES angel ARPN has ADHD or atrocious English and apparently left off in midsentence the complete phrase of ‘loss of use’. Thus, VA, being more anally retentive than a frog’s anal sphincter, demanded clarification. Was this to say he’d lost his hands and feet? Which ones? Were they totally toast? What caused it-the diabetes or the paralysis agitans? All these queshuns. Nurse Angel came back with an equally clarified IMO “revision” in spades…

Dave redact IMO 2

So here we are six months later and all of sudden VA is unclear as to what our contention was for the CUE. This feigned (concocted?) ignorance doesn’t pencil out. In order to create this note, the rater would have to have read the legal brief attached to the CUE filing. He plagiarized the sentence right off the first paragraph. That’s the only place where the mention of “Movant” appears. Gotta love that “council”, too. Obviously this ol’ boy missed the Phonics™ email.

Or, looking at the actual VBMS entry, you can see some industrious admin weenie actually listed the contentions of the CUE right there in the subject line when they uploaded it.

I don’t think VA actually reads their own work or this “subsequent development letter” would never have been launched. As it is, I can only reckon they’re trying to buy more time to come up with a viable legal argument to deny it. Gez, the best they could come up with was ‘Movant isn’t his name’? You can tell this VA employee is waaaaay ripe for promotion.

Dave we’re lost in space -tell us what you want

Shoo doggies. You know me. I just couldn’t let this one go by without at least launching one right back telling them they were braindead. But, in VA land we’re all civilized. No name calling. No questioning whether anyone was raised by wolves. We’ve been taught (and instructed) to employ the Hansel and Gretel technique leaving a virtual  electronic trail of bread crumbs. Bless their pointed little heads.

dave development letter redact

And that’s the way it is on December 5th. Over and out.

Posted in Aid and Attendance, AO, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , | 4 Comments

HAPPY THANKSGIVING 2022

I hope this missive finds all my friends, clients and their families alive and in better health than some unfortunate folks in the world.  My “family” of Veterans is far more closely knit than most with a job like representation. I get a lot of LRRPS, Dustoff crews and even the occasional SEAL. How cool is that? I get calls from clients at 0500 Hrs who don’t know what time zone I live in. It’s not a problem. Unlike a lot of legal firms who do this, I try to answer every phone call or email.  Shoot. It’s not like there’s some magic, trained chimpanzee named Mojo running around here willing to be my receptionist.  

For Thanksgiving this year, Cupcake informed me we would spatchcock the turkey and throw it on the barbie with Kiawe chips. Which I did. Funny you can go 71 years, be an avid hunter and never hear the term spatchcock.  With the advent of phone cameras, I was easily able to immortalize this technique for all of you. I just knew you’d be mesmerized by the subject. You cut along both sides of the backbone and remove it completely. As a side note, I suggest you make sure it’s completely thawed before attempting the two-handed CPR maneuvre to break the breast bone and flatten it. You can see where you could mess up your wrists if it wasn’t. No. I didn’t. Ours was never frozen.

The finished product was rescued in the nick of time. I do a lot of chicken and cut them in half. A five-pounder is done in 32 minutes (16 X 2). Extrapolating, I went for 24 on each side and came close to turning it into a mummy.  The beauty of spatchcocking, if there is one at all, is everything gets done at the same time or close enough that  you don’t find that questionable pink-colored meat near the orthopedic intersection of the thigh/drumstick (patella?).

From all of us to all of you, I can’t thank you enough for entrusting me with your claims for benefits. I reckon I’d disadvise entrusting me with your turkey, though. For those of you extremely ill, it truly feels like being on a mission from God emotionally. I lose four or five of you a year during the pendency of your claims and appeals. It just revocalizes the immortal, redundant Veterans’ refrain of “Delay. Deny. Until we die.” And boy howdy let me tell you. VA runs your spouse through the ringer for months trying to decide if she truly is the surviving spouse and not some cheesy, ex or a Welfare queen looking to score. I had to do a notarized common law marriage statement once so don’t laugh.  Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia all still allow it.

I must say that some of you fellers are prolific husbands and manage to become ‘Henry the VIIIs” like the old song. I count two marriages personally, including the current one, but I’ve had a few folks where I had to add an extra page to the 534EZ to list them all.  No offense, but that’s an incredible amount of ball and chain. Just saying.

Speaking of turkey, if I remember back about 52 years, I can almost recall the absolute worst tasting product to ever come out of a c-rats can. Spam ran a far second to this stuff. My sister had sent me a few of those small Tabasco™ bottles which were worth their weight in gold to tame meat… or camouflage the taste. It really compliments well-aged water buffalo. Don’t leave home without it.

Enjoy this day and this season. This is one of those Carpe Diem days. And if you are attending a Thanksgiving NFL football game today, please rise and put your hand over your heart when the National Anthem is played.  There’s a Black Granite wall in DC with 59,494 excellent reasons why you should. There’s 400,000 more across the Potomac in ANC. God Bless America.

Section 12 of Arlington National Cemetery, Arlington, Virginia, Oct. 29, 2018. (U.S. Army photo by Elizabeth Fraser / Arlington National Cemetery / released)

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

 

Posted in All about Veterans, Food for the soul, Thanksgiving and war, VA Agents | Tagged , , , , , , , , , , | 3 Comments

THE (CONTINUING) UNABRIDGED HISTORY OF THE VA

I received a new package of “Chalk talk” blogs from Eric Hughes several days ago. I apologize for taking so long to put them up. The fact is my email has been recently bombarded incessantly with all the news about another Veterans’ help site going down the tubes. I asked a computer whizbang Veteran what was up with their problems staying afloat. The answer absolutely floored me. Turns out the monthly cost was only $167/month ($2004/year) so that couldn’t be the problem with so much extraneous income from advertising and donations. T shirts and coffee mugs don’t help you get a nexus letter. The reason the SEO ranking was sinking was simple. The site didn’t offer anything concrete or meaningful anymore to help solve a claims problem. It merely regurgitated links to VA attorneys and Yourtube™ videos which apparently failed to hit the nail on the head as a viable solution. 

As a comparison, my computer geek pointed me to a fairly new Faceplace™ site  I know well with 52,600+ members (and growing daily) which requires no dues, no donations and has no advertisements. It probably costs $0 dollars to operate and gives out clear, concise advice/information by actual VA attorneys and agents like myself… for free. I joined it several months ago after being extended an invitation. It might seem crazy but they do it without even having to resort to hawking coffee mugs and t shirts either.

https://www.facebook.com/groups/VeteransClaimsAssistanceGroup

As an apples to apples comparison, the older site closing down has 23,588 members and has been in existence for over 25 years. So how does this pencil out? Veterans Claims Assistance Group (VCAG) is the proverbial new kid on the block but now seems to be the go-to site to get a useful answer to a specific question without a word salad from ten self-appointed “experts”. And boy howdy you should see their SEO rankings. Oddly, I’ve been approached over the last 14 years by many outfits promising to ‘fix’ my SEO problems and get me to the head of the class for a small sum. I never took them up on it. Google asknod and I come up so who cares? I don’t sell anything and I don’t allow advertising. I  don’t write these articles to win friends or influence people. I speak truth which irritates some.  Seems to me it’s harder to hide on the internet than to not get found.

I completely understand the frustration that ensues when you ask a simple question and get ten answers-none of which are congruent with one another. It creates confusion and uncertainty. That doesn’t seem to be the problem at VCAG. You get one answer and everyone concurs -assuming arguendo the advice is correct. No one looks down their nose and says ‘Go search the posts-we’ve already answered that one.’

Helping Veterans comes with a heapin’ helpin’ of  a basic requirement of requisite knowledge of the subject based on a broad spectrum of personal experience. You can’t give helpful legal advice to another if the only experience you’ve had is your one claim/appeal  in the subject area they seek. Each claim is unique as to circumstances, injury(ies), the era in which you served, the theatre in which you served et cetera. I find it amusing someone would give you the low down and follow it up with a disclaimer of   “BTY, I’m not an expert in this and have no legal training so don’t blame me if it backfires on you.” WTF, over?

Worse, in this industry of self help, offering authoritative-sounding advice can more often than not harm the Veterans’ chances of prevailing if your grasp of VA law is slim or came off the back of a cereal box. That, in itself, to me is the reason for the death knell of the site I mention. Having a negative SEO is far different from having a dark, or black SEO attack. Ask yourself- who in God’s name would attack a Veterans help site? What could they possibly gain from it monetarily? More readership and potentially more advertising dollars by diverting them to your site? Higher Google rankings? We’re talking Veterans here. As a class of Americans, Vets are not exactly well-heeled. That’s precisely why they seek VA compensation for their ailments. Destroying a Vets claims help site would be about as lucrative as selling refrigerators to Eskimos. The trade in free ideas can’t be monetized.

A good example of a nasty negative SEO attack happened to my good friend and fellow VA agent Bethanie Spangenberg- the owner of Valor4Vet.com. She’s an ARNP and has a good IMO practice but doesn’t do claims even though she’s accredited. One day she woke up to the sounds of silence. Crickets. Everyone coming to Valor4Vet was being diverted to VAClaimsInsider.com. Ol’  Brian Reese had baldly hijacked her site traffic. My computer geek guru doesn’t see that phenomenon happening at the site I’m discussing. Their lack of traffic is entirely self-inflicted. Knowledge, in 2022, is the currency of trade. Everyone wants to know how to play VA poker. Oddly enough, VA agents have impressive win/loss rates in spite of the fact they never went to law school. Experiencia docet.

Back in the stone ages (about 2010), I found, or was pointed, to a site called Yuku or VBN. Regardless the name, they professed to be the dernier cri in Vet advice. Well, ‘not exactly’ as they say over at the rental car agency. Turns out they had a former VA DRO type who offered advice which was highly regarded. He had a problem with telling the truth.  They also had a lifer medic whose advice on Hep C claims was “Don’t waste VA’s time. You probably got it from shooting up. And besides, if it isn’t in your STRs, you’ll never win.” This from a 20-year medical/claims guru. I explained that you could never hope to find a left front quarter panel for a ’68 Mustang in a junk yard in 1955. They hadn’t “invented” Hep C until 1989- and didn’t have a viable test for it until 1992 so it wasn’t going to be in 1968 STRs. Yep. I got 86’d for being obstreperous and disturbing the inpatients. My bad. Murphy’s First law is still applicable-No good deed goes unpunished.

Functionally, a good Vet help site should teach, not preach. If the Poohbahs don’t agree with your proffered advice, the repair order is to question why you hold your belief and what you use to support the hypothesis. Far too often, these older sites become cliquey over time and the hierarchy become infatuated with their moderator powers. The last thing you want to do is drive the customer away with ignorant advice or send them galleywest on a knowledge search somewhere else. Shoot. They might get the impression you don’t have what they seek.

I think VCAG will be the model for Vets’ help sites in the future. In googleland, you seek answers instantly. If you can’t find answers licketyspit, or feel you’re getting advice from the village idiot who can’t discern the difference between there, their and they’re, you’ll march smartly down the list of google choices until you find an outfit who can provide you with meaningful answers.

Veterans Help sites become passé when they have nothing left to offer but platitudes and pleasantries. They become an echo chamber of the 20 year-protected Moderators’ beliefs. Pro se Veterans, on the other hand, seek a simple explanation. Lord knows, the new AMA is akin to trying to learn a new language in a week. Congress attempted to make it more Vet friendly but the Big Six of VSOs ensured it became a morass of regulations which in many cases requires endless repair orders so as not to conflict with one another. But that’s a subject for another day. I digress.  So, with that said, I  move on to present Eric Hughes’ (VA Agent) latest presentations on the history of our not-so-illustrious VA and their shenanigans in depriving us of needed knowledge to win our claims.

Start by reading this daisy for a broader overview of the subject…

The Lost History of Veterans Due Process Rights

And then Chapter 1 Episode III which continues the saga begun several days ago in the earlier chalk talk article.  https://youtu.be/w6yOOVFAj2M

Chapter 2 Episode I  https://youtu.be/OPzmOKL1Mx4

Chapter 2 Episode II  https://youtu.be/Dlq1pBOhzZU

Chapter 2 Episode III  https://youtu.be/uqqOxr4xSsY

As a parting comment, while I may make jokes about different service groups and their foibles, I are not dissing them. We in the Air Force used to make fun of the other three main branches (Army, Navy, Marines) by razzing them with the “Who would want to walk or paddle when you can fly there?” Or, “Who’d want to sign up to live in a foxhole and eat cold food?” I’m sure they had names for us too.  Those are just the musings of humorous interservice rivalry. I have never chosen my friends by their choice of which branch to serve in.  I never got into knock-down, drag-out, drunken brawls in bars with Marines. Or Navy. Or Army. Fact is, for the most part of my brief  four-year career, there weren’t any bars to go seek a fight in and darn few active duty Marines or Navy folk afoot up north in the land that rhymed with Mouse.

If you get a chance, I highly recommend VCAG as a reputable source to get your questions answered. Better yet, if someone gives you incomplete or confusing info, sixteen others are free to enter the fray and knowledgeably correct or clarify the misunderstanding. No one is going to look down on you for your ignorance. In the real world, you don’t get censored for telling the truth or asking awkward questions…well, unless you work for the government. But that’s a subject for another day and another website. Here at asknod, we simply report and let you draw your own conclusions. We sure don’t tell you what to think.  As my daddy used to say “Son, every man [and woman] has the right to remain stupid. That right is inviolate and built into the Constitution. No one can take that  away from you no matter how hard they try.”

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

Posted in All about Veterans, Food for thought, research, Tips and Tricks, Veterans Law, Vets Claims Advisory Group (VCAG) | Tagged , , , , , , , , , | 9 Comments

IDLE HANDS ARE THE DEVIL’S WORKSHOP

While this blog won’t solve any VA claims problems, it’s a pleasant interlude in between claims filings and their resolution. Having been hatched on the day reserved for fools, humor is an integral part of my psyche. Nothing passes me by that doesn’t pique my interest in how I might make it humorous or fashion a joke out of. Which is why I called you all here.

One of my finest creations was the Semtex- C ration bottle rocket. It didn’t have a Military M model designation like M 26 rocket (bottle) but should have. Given lots of time to dream of anything your mind could conceive of, some of us sought to create interesting devices. Since I had a pyrotechnic bent, I was always trying to envision new uses for the toys they gave us to play with. I for darn sure would have loved to meet the 11Bravo who engineered the peach can repair order for the feed jambs on Pigs. Pure genius.

Semtex, or plastique, is a great item when respected. We had tons of it-literally. It was in Claymores and the propellant in 60 mm mortars just to name a few. Compressed, it will kill you. When removed from its normal confines, it burns quite well and I’m sure there a thousands of you still alive today who used it to heat up your c-rations in Southeast Asia.

Lacking any fireworks other than throwing the occasional 5.56 round into a fire to “wake” folks up, I thought long and hard on how I might make bottle rockets. While dropping a 60mm down the tube one afternoon, I became engrossed in how the propellant looked similar to that in the Claymores so I gave some the Zippo test that evening.

From there, it was a simple step to find a small enough container to put it in. I experimented by cramming some into a spent 7.65 round but it was too nose-heavy and came right back to earth without gaining altitude. After a day or two of experimenting, I came up with it. You cut apart a c rat can and make a 2″ by 2″ square. Pre-crease it in both planes and place the 60mm plastique in the lower center. Fold it in half with an 18 inch piece of baling wire crimped inside and fold that in half. Make sure there is plenty of clearance around the wire.

For maximum effect, I’d walk by a fire in the evening and throw it like a spear to get it to stick upright in the fire. When It  heated up enough, it ignited and took off. What I didn’t contemplate was what would happen if it hit anyone. Sure as shit, I dang near put a guy’s eye out a week later so the idea, while brilliant, was unworkable for entertainment value.

Once we got a ton of Tide detergent on a pallet. It was more than we could ever use to wash with and besides, the Hmong hootch gals used rocks down in the creek below us. After much study, we discovered you could thicken up AvGas with the Tide in a discarded 50 gallon drum and supersize it with Claymores, dig it in and tilt it at a perfect 45 degree angle outside the perimeter. Wire a claymore under it for the ignition system. Do a rude job of camouflaging it and then stay away from the area for a day or two. Curious Pathet Lao interlopers in the night would feel it necessary to see what kind of handiwork we stupid tahanns  erected during the day.  It was a poor substitute for a mine but it worked just dandy like a Civil War mortar and spewed out neat, sticky flaming gobs of AvGas  about 50 feet akin to Willie Peter.

The guy who got tagged by the bottle rocket got a Purple Heart by the way. I never let on I was the inventor. I’m not a parade kind of guy.

P.S. It is with great sadness we  learned that a fellow Veterans Help Site (Hadit.com) announced it is closing its doors soon. They have been in existence for years and years and have helped many thousands in their search for justice at VA. Their presence will be sorely missed by the Veterans community. I do hope someone else there is able to pick up the flag and continue to serve our Veterans. Finding good help on the subject of Veterans claims and appeals is extremely hard  as there are so few of us in proportion to the large number of Veterans. I think I speak for all Veterans when I say we will miss the site and Berta’s valuable advice on CUE claims.

Posted in All about Veterans, Humor, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

THE UNABRIDGED HISTORY OF THE VA– PARTS I AND II

Got these in the inbox from a fellow VA Agent who has devoted an extraordinary amount of time and research into investigating the feasibility of developing a neuveaux theory about the possibility discussed in NOVA v McDonaugh over the admissibility of BVA decisions to show precedence. This may become a continuing series so stay tuned.  

Cool beans, huh?

Posted in Equitable tolling, Food for thought, Important CAVC/COVA Ruling, research, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 1 Comment

AirAm–AMERICA’S BRAVEST UNSUNG VETERANS

Those of you who never served incountry in Southeast Asia during the ‘conflict’ are unaware of the other army of civilians who quietly and surreptitiously worked alongside our servicemen during that period. Air America was many things and many names. It was born shortly after WW II to help fight communism around the world. Technically, it began as the OSS’s personal air force beginning in the late ’40s. After the birth of the CIA, it was variously known as Civil Air Transport (CAT),  CASI- Continental Air Service Inc. It was Bird & Sons Air- or simply Bird Air. Like a caterpillar, it would retreat into a cocoon out of sight for years-only to be reincarnated like the mythical Phoenix again. Think back to Nicaragua in the ’80s. Remember Southern Air Transport? Same airline- probably many of the same pilots in charge and a new batch of antique, refurbished 130s and Goonybirds- all prefaced with ‘O’ for obsolete on the tail number. 

Air America, or simply AirAm, was composed of a civilian cadre who, more often than not, were former military Veterans from WWII or civilian chopper pilots who wanted more excitement than cruising over LA at 1800 Hrs reporting the traffic jams on KXLY. It was composed of fixed wing pilots who couldn’t find a berth at a respectable airline due to their personality quirks or prior sketchy FAA records. The “cargo delivery specialists” (kickers) were, for the most part, smokejumpers who fought forest fires. One thing they all had in common was that je ne sais quoi of adventurers variously described as the Terry and the Pirates™ gene.  I don’t think anyone consciously enjoyed seeing green tracers corkscrewing up to meet you as you came left on final at a remote airstrip on top of a karst.  But what the hey? Some seek the thrill of cheating death.

I guess I didn’t think like that. I was one who tended to sit on my flak vest and even tuck it up around my jewels like a diaper when we went down lower for a Bomb Damage Assessment. From what I recall, a flak vest never stopped a 7.62 round. Maybe grenade fragments or flying 122cm debris. It was more or less like a pacifier to a baby- a welcome wooby blanket falsely conferring the illusion of invincibility.

I liked to take a thumper and HE with us to harass the Pathet Lao while we circled waiting for the 56th SOW Sandys to show up from NKP. I’d keep the vest wrapped around my bugout bag full of ordnance between my feet until the tracers began flying and things got shitty. My PIC was a bit skittish about carrying gold rounds but drew the line on having WP in the cockpit. It wasn’t until I saw a human Roman candle running through the trees one night outside  the wire that it dawned on me what that would look like in the enclosed confines of an O 1 or a Porter.

Oddly- or maybe not depending on how you look at it- the Veterans Administration is in charge of disbursing benefits to AirAm folks as well as the Merchant Marines. I’ve had the limited pleasure of helping a fellow airman go after his hep C benefits. While he and I never crossed paths or met, we both served in the same time frame up in MR II (Military Region 2 also known as Barrel Roll). He was more an admin weenie working out of Lima 8 Wattay Airport than a full time 123 driver.

Now, contrary to popular belief as seen in the Air America movie, we didn’t run opium  from Lima sites to the French Heroin lab down in Vientiane. Quite the opposite. We ran good scotch and gin up north to the Luang Prabang AirAm hostel or to Alternate from the Class VI store at Udorn. Scotch doesn’t need refrigerating. It certainly deserves ice but in war, you make do with what’s at hand. The Hmong were artisans and created quite a few lovely works of jewelry out of .999 silver. Ditto the Hmong ornate black powder muskets. We were known to buy or trade for them on the side. Hollywood let their imagination run wild in their faux attempt to depict off-the-grid war. I reckon that happens when war isn’t quite as exciting as portrayed. I’m sure there was some discrete drug running afoot but our stock in trade was pigs, chickens and hard rice (M 1 carbines, 60mm mortars and hand grenades).

To me, a classic example of the hardships of war was the dearth of tonic water and real limes. We substituted Kaffir limes, quinine pills and Perrier most of the time. Ice was a luxury. You crushed up the chloroquine phosphate malaria pills and stirred them into the  Perrier- or just plain water if nothing bubbly was available. I found out fifty years later that I probably overdosed on the chloroquine because we were only supposed to take one pill a week. Making a good pitcher of  Tanqueray and Tonic required four minimum. Perhaps it was a godsend.  When I think back on it, none of my friends or I ever got malaria.

AirAm folks were like Wyatt Earp. Remember the TV show with Hugh O’Brien? Brave, courageous and bold? I vividly remember just before Monsoon 1970 during Operation Leap Frog, we were circling a downed Sandy. The pilot had successfully egressed the A/C and was trying to beat feet away from that bright orange and white ‘chute. His partner had hit Bingo and bugged out leaving us there on station to keep an eye on him.

Every morning, a pair of HH 53 Jolly Greens from Det. 5, 38th ARRRS would launch at 0dark30 and land at Alternate for the day to bring them closer for a more rapid SAR (Search and Rescue) response. We’d called in the SAR request to Cricket the moment he punched out but BUFF wouldn’t be there for about 30 minutes even if they were sitting there already spun up and awaiting launch info.

Some of the braver Pathet Lao troops were beginning to stir after the airstrike and started spreading out to search for the pilot. We were generally armed with a M&P .38 six shooter or a Model 39 S&W 9mm and a CAR 15 but we were instructed to dump the hardware and surrender if we found ourselves down in Indian country. Most all of us also wore 24 kt. gold necklaces or bracelets in hopes of bartering our way out of death or capture. It didn’t work very well. But that’s another story for Memorial Day. Or maybe never.

We had zilch for air cover at that moment and the Jolly Green pilots were always adamant that they have fire suppression before they’d even discuss going in for the extraction. We did have a 911 in to 432nd TFW for a couple of fast movers out of Udorn but that was equally 45 minutes or more out because they didn’t have guns and had to be loaded out with suitable ordnance like nape or CBU. Things were beginning to look  pretty shitty and we’d run out of WP marker rockets to harass them with. Ditto my HE thumper rounds.

When out of the blue, here comes a OD green H 34 with the AirAm logo from the north of all possible headings. He called in on Alternate’s tower frequency (118.9) and asked where the pilot was hunkered down. Just like that. Not ‘where are the Indians?’ but ‘where’s the pilot?’ We guided him in and he landed under heavy fire and scooped up the zoomie. No air cover. No door gunner. Just the PIC and the crew chief hanging out the starboard cargo door encouraging that ol’ boy to pai lao lao RFN. The PIC probably had him back at what passed for an O club at NKP before the BUFF folks even arrived on station.

What can I say? Balls. Big balls. Waaaaay bigger than any I’ll ever grow. These folks are also Veterans just as much as you and me-perhaps even more so. They didn’t get any medals. The pay was so-so. They didn’t get hostile fire pay or hazardous duty pay. The fact that you were on flight status and a senior pilot didn’t didn’t give you much more than a $10 pay hike for sitting in the left seat. And yet they’d put their lives on the line in an unarmed A/C and do that for us. This particular instance wasn’t a fluke. I’d heard of similar situations-many of which didn’t have a happy Hollywood ending.

I thought long and hard about what to write about this Veterans Day and the only thing that came to me was the subject of this article. While I might write occasionally about that challenging tenth tee at the Plain des Jarres Golf and Country Club or grouse-hunting with a sawed off Model 12 and buckshot at Ban Na, I have neglected to ever discuss the tales of derring do of AirAm’s PICs (pilots in charge). Happy Veterans Day to some of the bravest of the brave. They ought to be awarded Air Medals with Vs or ArComs. Never have unarmed, untrained pilots exhibited such courage in any conflict before or after. Or, if there are such people, I’ve never had the pleasure of sharing a single malt with one- or my chloroquine tonic water abominations for that matter.

And that’s all I’m going to say about that. I think this NOTAM says it better than I ever could. Happy Veterans Day to all of you.

Posted in Food for the soul, Veterans Day, Vietnam War history | Tagged , , , , , , , , , , , | 3 Comments

CAVC–ATILANO v. DENIS THE MENACE-BABY YOU CAN DRIVE MY CAR

In this business, the legal bitchslaps Veterans endure far outweigh the beneficial attaboys at the Board, the Court and Fed Circus. While I wholeheartedly welcome the judicial overview accorded us (finally) in 1989, it was a long time coming considering Vets had never been granted judicial oversight going back to 1776. Since then, we (Veterans) have progressed in fits and spurts with long dry spells (read wars) in between. The Court (CAVC), which many of us have looked to over the last 33 years for succor, has been fickle to say the very least. Granted, we’ve been accorded many new ‘rights’-e.g., due process- but it only came about in earnest after the NVLSP began populating the Court or appearing as amicus curiae and jamming their foot in the door to insert their two cents worth. Sometimes it pays off. Sometimes not. Grab a brewski and some chips and check this one out. 

Jesus Atilano, like myself and 2.9 million others, was a participant  in the Southeast Asia War games. And, like myself and hundreds of thousands of others, he got the poopy end of the VA punji stick. Apparently, his brain box got bent in the process (as often happens in war) and caused him such severe disability as to have to be institutionalized several times in a VAMC mental ward. I’m not going to delve into that too deeply as it’s a personal issue that afflicts those of us who go to war. But here’s the Bud Lite® overview.

Jesus filed for PTSD in ’95. VA got around to giving him 50% for his bent brain syndrome in ’05. Several years later, in 2012, they granted 30% for his IHD, continued the 50% for the PTSD but denied him TDIU. Sound familiar? Of course it does. After more sparring and denials, he managed to score a 70% for the brainpan in 2014. So, in sum he was mentally ill enough to get free room and board at the VA psych ward three times but never was adjudicated as TDIU or 100%. Arruu? He finally made it up to the BVA for the 76-page decision below by VLJ Reinhart. Printed out, it looks like the Gutenberg Bible. I know. I almost printed the whole thing up when I tried to download the .pdf. Fortunately, the printer ran out of paper at page 38 and I caught it.

Atilano BVA decision

But here’s the interesting wrinkle that stretched this thing out six years. Jesus, through his most able VA rainmaker Sean Ravin Esq., requested a face-to-face hearing under the old Legacy system. Unfortunately, due to his extreme disabilities regarding his mental state, he’d failed to show up for the hearing in DC at 1425 I Street. Monsieur Ravin had scheduled a noted psychologist expert in PTSD (Dr. E.T.) to appear in DC in-person to give her expert testimony. I know Dr. T personally and use her for all my psychiatric claims/appeals. She’s red hot and I’ve never lost with her expert IMOs. Even the VA recognizes she’s no slouch in this business and accords her IMOs great credence. So, everyone was present except the belle of the ball. VLJ Reinhart  refused to allow Dr. T’s testimony, or any testimony, for that matter, because Jesus was AWOL with no viable excuse.

Attorney Ravin petitioned the Board for a 60-day delay to obtain the testimony and submit it. Sean also argued at length that 38 USC §7107 is devoid of any language that specifically demands a Veteran be present for his necktie party. His argument was to no avail. VLJ Reinhart went off on a de novo jag (no pun intended) citing to 38 CFR at great length and accorded the Secretary’s regulations far more weight than the old “Veteran friendly venue in which to adjudicate our claims in an informal ex parte setting.” Quo Vadis Justice?

Sean proceeded to the Court where he was given short shrift. Very short shrift. Secretary Wilkie and his gang who couldn’t shoot straight cajoled the Court into affirming this Chevron abomination and the fight was on (Atilano v. Wilkie (Atilano I), 31 Vet.App. 272, 279-81 (2019). But that was not the end of the matter, thank goodness. Sean proceeded to the Fed Circus and they vacated it back to the Court for clarification of why Jesus being absent was a legitimate interpretation of §7107.  The vacatur was quasi-specific in Atilano v. McDonough (Atilano II), 12 F.4th 1375, 1381-82 (Fed. Cir. 2021). The Fed Circus suggested it might be à propos for the Court to quit mincing words and their meanings, quit giving Chevron deference to every utterance of the Secretary and explain in the King’s English why the Court seems to be in lockstep with him where Veterans’ due process is at stake. Well, that’s my takeaway. Judge Toth, in his convoluted anti-concurrence, believes the Feds were trying to pin blame on the Court without reversing. Take a gander…

Alitano II

And so we see a major sea change in how they approach this. One small step for Jesus. One giant leap for Vetkind. To me, this is almost as momentous as Cushman, Clemons and a few other notable decisions all rolled into one. The most obvious is taking into account the Veteran and how his disabilities (especially mental) can become an insurmountable obstacle that works against him regarding hearings. If this process is Veteran friendly as constantly drummed into us by the VA, why is it we almost always lose on inconsequential quirks or requirements?  As the Court admitted (per curiam),

“Considering not only the letter but the spirit of the Federal Circuit’s opinion, however, we conclude that we have no practical option but to rule in favor of the veteran and to remand this matter to the Board for further proceedings.”

Really? No “practical option”? That’s like running a red light, t-boning someone and finally conceding several years later that you really can’t come up with any viable excuse for your poor driving but you’re willing to be like, ya know, suuuuper magnanimous and concede error when called out. About the only good thing that came of this is it didn’t require 76 pages of mea culpas. Think of how many trees will sleep peacefully tonight knowing about this.

This is the gist of Justices Pietsch, Meredith and Toth’s  per curiam reasoning. I consider it sour grapes to say the very least.

There is no way to read the Federal Circuit’s analysis as anything other than a wholesale repudiation of our reasoning. The opinion makes perfectly clear that the Federal Circuit regarded the relevant statutory text, structure, and purpose as individually and collectively “supporting” Mr. Atilano’s position that a claimant too disabled to attend may still invoke the right to a Board hearing. Atilano II, 12 F.4th at 1381. Given this premise, how could any contrary regulation of the Secretary be a reasonable construction of the statute? See id. (“[I]t would seem inappropriate to construe § 7107 to deny hearings for those represented veterans unable to attend in person without clear statutory language instructing as such.”). “

Sacré Dieu. Excuse my French but it gets worse. The Court actually went so far as to almost agree with the Secretary’s piss poor excuse as to why he defended this travesty of justice. Excuses are like assholes. We all have one but how does that accord with the Court’s precedence in Evans v Shinseki, 25 Vet.App. 7, 16 (2011) (explaining that “it is the Board that is required to provide a complete statement of reasons or bases” for its decision and “the Secretary cannot make up for [the Board’s] failure to do so” by providing his own reasons or bases on appeal). Show me where VLJ Reinhart even evoked a discussion about the legality of his ruling. Granted, he isn’t allowed to make law-just misinterpret  it. I read the below as an excuse…

“Indeed, the Federal Circuit understood the Secretary to concede that § 20.700(b) could not be read as requiring a claimant’s attendance at a hearing. Id. at 1379, 1382. The Secretary now suggests that the Federal Circuit wrongly interpreted his statements at argument as a retreat from his briefing position. Regardless of whether there was a concession, it is apparent that the Federal Circuit read §20.700(b) and did not think it clearly imposed an attendance requirement. (Nor do we think the few other regulatory provisions cited by the Secretary bring the clarity that § 20.700(b) does not.)”

Boy howdy, I never expected the Court to ever resort to post hoc rationalizations for why they stepped on their collective neckties. No less that the Supreme Court has always put their thumb on the scales of Veterans justice. Which begs the question of just what are they smoking up at the Court these days? Since when are the august Justices permitted to egress the precedential reservation in a desperate effort to grant the Secretary Chevron deference?

In the VA justice game, The VLJ is the “Trier of Fact”. That means the actual decision to screw Jesus was sanctioned and approved by the Secretary and his merry band of uncouth OGC litigators before the ink hit the decision. That the Court accepted this argument and denied Jesus speaks volumes to ignoring the canon espoused in Henderson (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). How about this concept-The pro-Veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 220 (1991). So why does Chevron always get the upper hand in these decisions?

This concept isn’t a new interpretation of VA law. Go back to Boone v. Lightner, 319 U.S. 561, 575 (1943)  for context-The Supreme Court first articulated this canon 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.” This same policy underlies the entire veterans benefit scheme.

I’d say the Court has lost sight of the canon. How is it that the latest version of the Court with it’s newer, more recent membership could accord us anything less than what the Supreme Court spoke to in 1943? That Jesus had to petition the Feds to right this egregious wrong appalls me. Further, the mousey way in which the Court begrudgingly conceded their error smacks of a superiority complex with a side of condescension. I was laboring under the misconception, apparently, that Kisor III raised the bar on Auer/Chevron deference in such a way as to clarify its use-not to enable the Secretary and give him a roadmap to deny Veterans due process. Gerrymandering 38 USC’s meaning to support 38 CFR and its often convoluted logic must always be put under the judicial microscope and never given a bye based on one person’s (VASEC) subjective analysis. The Court’s watchwords should always be “Beware Mission Creep.” After all, isn’t that the very rationale for why Congress instituted a higher tribunal- to ensure we don’t get screwed (again) (and again)?

Given my admittance to the CAVC bar sans JD, I pray my mental ramblings here will never cast a pall on my client’s cases at bar for speaking out when I see an injustice perpetuated by those chosen to be our overseers. As a Veteran who has been given the shitty end of the punji stick so many times, I find it hard to be a silent, willing spectator without voicing my extreme displeasure. Here, Jesus finally obtained justice but why did it require such a herculean effort on Mr. Ravin’s part to get that which most of us Veterans would view as a given?

I would compare this to the ages-old argument that protesters dredge up when speaking up for the rights of dolphins caught in tuna nets. My ‘plaint will always be “Who speaks for the Tuna?” The analogy is apt. Veterans have always been paid lip service for their sacrifices but the repair order has always been fleeting or no more than a chimera. One of my favorite lines to DROs is “This isn’t about you and me. It’s about the Veteran and what we can do for him legally.”

Judge Toth’s concurring opinion is perplexing at best. I provide a snippet below. It speaks volumes about friction. The Fed Circuit’s job is to analyze whether a statute or regulation has been wrongly decided. If so, it remains the province of the lower courts to remedy their wrongfully decided appeal once apprised of the error. I think it was a narrow, face-saving measure for the Feds to remand the Court’s decision and let them decide themselves how to fashion their own remedy-if indeed they felt one was even due. After all, the VLJ is the “Trier of Fact” not the Feds. Ne c’est pas?  What ever happened to sticking to your guns? All these queshuns and no answers.

“The Federal Circuit’s remand placed this Court on the horns of a dilemma. We could either suppress our independent judgment to arrive at the conclusion the Federal Circuit all but ordered us to adopt, or we could defy the repudiation of our previous Chevron analysis and again affirm in contravention of every signal the Federal Circuit sent. In other words, it proves practically impossible to afford deference under Chevron to the Secretary’s interpretation while heeding the mandate of a higher court ruling rejecting that position as “inappropriate” and implying, albeit without holding, that deference shouldn’t apply at all.”

I guess my answer to him would have to be “When did it ever stop any of you before?”

P.S. Happy Veterans Day. And I say this sincerely to all of you who served in RVN. Thank you for being so selfless as to serve your country above self. Now, doesn’t that sound  a shit ton better than “Welcome home” considering  what ‘welcome home’ entailed in ’68?
I know there is a lot of political animosity afoot in this election cycle but Veterans should take heart in their mission profile when serving. We’re apolitical. We served at the behest off our superiors without regard to political affiliation once upon a time. Nothing has changed. My allegiance, if any, is to Veterans and their benefits entitlement. Anything is else is just noise above the squelch setting on the PRC100 of life.

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

Posted in CAVC Knowledge, CAVC ruling, Fed. Cir. & Supreme Ct., TDIU, VA Attorneys, Veterans Law | Tagged , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW- ‘CAUSE WE BAD-WE’RE NATIONWIDE

I love ZZ Top. They have tons of great material. But then, sometimes I come across some too. Mine is more of the kind that helps Vets-not their psyche-unless you count the win that finally puts them on Easy Street. I spend an inordinate amount of time dumpster diving on SMC as most know. Every VA document in a Vet’s file tells a story. Some are inconsequential but the ones that bite are favorable findings of fact. And when VA is stupid enough to give me the ammo, I’m all over them like white on rice. What can be more humorous than telling them “You’re the ones who insist he needs a&a, not me.”

 Since it  seems that every time I publish a really keen way to skin the VA cat, I’m going to put up one of my brand new  tricks tomorrow about 5 hours before the show and take it down afterwards. Leaving it up will only result in a VA “modification” and eventual future defeat for anyone trying it. Seems them fellers in DC actually read the articles I publish. Imagine that. You can find the document at the bottom below Kilroy…

I remember back in the mid 2014s Under Secretary for Benefits Allison Hickey (USB) was having a heart-to-heart Kumbaya meeting with Congress and the subject of DBQs came up. The complaint was that a DBQ supplied to Vets didn’t have a place for a doctor to insert the nexus medical opinion. It (the DBQ) was nothing more that a recital of the Vet’s current medical condition-and pretty damn skinny at that. Rep. Takano or one of his  buddies was wondering when VA was going to revamp the DBQs to provide that all-important box where the good doctor could insert his “at least as likely as not” prognostication. Allison cut in and allowed as how they were working on that and actually had a new replacement document ready but they were just using up the existing stock to save money.

There was one slight problem with this statement. All the documents were in .PDF format-i.e., electronic documents. There simply was no stack of forms in the back rooms of VAROs across our fruited plains full of superseded documents. It was a complete fig newton of the imagination. The Congressfolk bought into it hook, line and sinker.

And we’re gonna talk all about that DBQ subject tomorrow. I’ll also give you a broad overview of what we learned at the fall conferences for our continuing legal education (CLEs). I can’t share the documents and Power Point stuff with you because it’s proprietary information but I can share the gist of it.

This business of the VA’s IMO shitlist blog has had some interesting side stories. For the latest development on that, feel free to click on this link and go back to that blog. Scroll down to the bottom to the P.P.S postscript. Today I  received an affirmed appeal judgement on one of the unfortunate maligned VA IMO specialists that was recently decided. Don’t shoot me. I’m the messenger. I sure didn’t author the shitlist. I just published it. At asknod, we call it transparency. I don’t have any skin in this IMO game. I just buy a lot of them.

fine dining al fresco

I enjoy collaborating with John and Jerrel doing Exposed Vet broadcasts and am hoping to find a permanent berth here for them to crank out a new, improved version of the show-possibly using YouTube™. I’d be able to have those of you who desire to ask a question insert it in to the Blog comments below during a live performance so I/we can answer it in real time. Don’t get me wrong. Radio is a wonderful medium but a picture can be worth a thousand words. I could even share my colostomy bag scar with you all.

We’ll never become influencers and I hate that connotation. Besides. I don’t have blond hair or a 36D chest and my pronouns are all wrong for this project. The last time I put on a bra was a Halloween party in the 80’s. Let’s not go there. This is a quasi-family site.

The show starts, as it always does, at 1900 Hrs on the Eastern seaboard and conversely 1600 Hrs out here in the Pacific time zone. The dial in telephone number to listen only is still

(515) 605-9764

The computer link is here:

https://www.blogtalkradio.com/jbasser/12163160/connect/a5eccbac6cb840909d901ad3292367b5980af7ae

Should you desire to ask a question, press one (1) on your telephone dial or computer numerical display to enter the fray. I think I speak for John and Jerrel when I say we look forward to helping you all. As I sometimes say, we’re on a mission from God. I also insist that were the shoe on the other foot, you would be here helping me/us to win our claims.

I think you all will find this show interesting from several different aspects-especially all of you with any sort of MDD such as MST or PTSD. But don’t let that constrain you. There are actually 31 flavors of bent  brain. §4.130 is  a veritable Baskin ‘n Robbins © of descriptions/prescriptions for what ails you.

122cm rocket attack

On another note- and mind you I am not bragging- I received a BVA decision yesterday morning granting my Combat Medic (Iraquistan) a 70% rating for PTSD all the  way back to July of  2015. How could he not win this? Well, you’re dealing with VA raters. How many of them have ever been shot at or  tried to staunch a sucking chest wound?  My boy filed it as a Legacy and carefully kept it alive through the years. Shoo doggies. He even had a crackerjack VA law practice working it for a number of years but for some inexplicable reason nobody there thought to obtain a private IMO.  Say all after Whiskey Tango Foxtrot, over? As we all know, depending on VA to generously construe your level of mental disability  is a fool’s errand. So I cut the Gordian knot, purchased a killer one and sat back for an eternity of waiting. Cool beans. 75 months of retro.

Remember. This isn’t rocket science. It’s a recipe carefully tailored to the individual Veteran. Nothing more. Nothing less. Look at me. I graduated 59th out of a class of 64. If I can learn how to do this, I know you folks can. Nevertheless, VA is constantly trying to add five miles to the tunnel to decrease the win ratio. With that said, and after talking to many fellow attorneys last week, I have been asked to refer Vets who come to me seeking help. If any of you are desperate or can’t get any traction with a good VA representative, email me and I’ll hook you up with some of the best in the business. In addition, I’ve trimmed my caseload by winning a few this year which have been taking up an inordinate amount of my time. I’m now taking on a few new cases. If you feel you’re entitled to SMC at the higher levels, I’d be interested in hearing from you. If your winky doesn’t work anymore because of prostate cancer from AO or the ticker sounds like a Maxwell House® coffee percolator, shoot me a commo. My contact info is in the “About the Author ” widget above.

 It shocks me to discover how few attorneys out there who know how to do this (SMC). I would concede it’s pretty difficult and takes a few years to grasp it but once you do, it seems no more daunting than learning how to ride a bike sans training wheels. Shoot. It only took me five years but then I’ve always been waaaaay behind the learning curve. Well, that’s what my trigonometry teacher always averred.

Onward through the VA fog.

 

Posted in Agent Orange, All about Veterans, DBQs, Exposed Veteran Radio Show, Lawyering Up, PTSD, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 2 Comments

IMPORTANT INFO ON BVA ADJUDICATION DELAYS

Everyone seems to know they can come here and ask me to hand out public service announcements on my site. I’m a real soft touch for helping Vets. Oddly, it doesn’t require any coin of the realm to induce me to publish it. We don’t advertise our business here and we don’t advertise for others. No cheap Viagra or Russian wifestock. However, due to a long, wonderful symbiosis between Chisholm, Chisholm and Kilpatrick (CCK) and myself, I’m honored to bring my fellow Veterans anything from CCK which involves assistance, enlightenment or edification from their legal stable. 

CCK is a virtual font of information-a veritable cornucopia of knowledge there for the taking-and free to boot. It scares me to think that they can employ eleventyseven employees whose sole focus appears to be providing us cutting edge, real time knowledge.

Been there done that.

I attach here a Youtube© post I received from one of their attorneys this morning. I knew the BVA problem was  serious and compounding itself with daily interest like a bad loan shark debt. But this briefing will roll your socks down. Had I known asking for a VAF 10182 NOD Hearing with submission of new evidence was going to have such a profound effect on delaying some of my clients’ claims in 2019, I would have taken a far different tack below at the regional level. Live and learn.

The old saw that hindsight is 20/20 couldn’t be more applicable but after watching the video, I went back and examined all my BVA appeals in CASEFLOW and was shocked to find that earlier 10182s via the direct docket- and not even advanced on the docket, mind you- were being accomplished in as little as 195 days in 2019-2020. Comparing that to my well-aged appeals still in the queue just for direct reviews, I’m appalled/stunned at the lack of progress. CCK’s analysis and reporting amply illuminates the problem. Alas, CCK provides no panacea to defeat this gross inequity. Not that I anticipated one. We’re all pretty much in the same litigation lifeboat and helpless to fix it. So much for a Veteran friendly venue in which to present our ex parte claims.

The thrill of victory (being alive). 

I doubt there ever will be a repair order to speeding up the adjudication rate in the near future outside of obtaining an advancement on the docket (AOD). With that said, I can’t even in good conscience say that would be the definitive repair order. I have a surviving spouse sitting in the AOD penalty box at the BVA since her husband abruptly punched out last July. By last July, I mean July 2021. Fortunately, a eagle-eyed BVA intake gentleman spotted it as a return from a prior bitchslap. Judge Mike Skaltsounis has heard this case three times in the last six years-most recently last April (2021). To add insult to injury, it’s a direct appeal with no evidence submission-touted by the VA bean counters to be the most expedient path. I had the widow contact the White House and she got the standard “ponydog” treatment (we’re paddling as fast as we can and we have to do it in the order received so get back in line).

The pig packers. Always 6’1” or taller

Under the video presentation, you’ll find a “Subscribe” button to receive all CCK’s Youtube presentations. If you’re actively involved in your claim/appeal (and you should be), you’ll find a wellspring of knowledge that is guaranteed credible and gives you insight on how to or how come questions. You have my word. Asknod what you can do for your claim.

Knowledge, in this business, is essential to a quick win. In my world, that gives me more time to move on and help another Veteran equally in dire need of assistance. I work in a heavily triaged practice. A majority my clients are so severely disabled as to need SMC L at a bare minimum. Over 70% deserve far more. Unfortunately, VA is loath to disburse SMC R1, R2 or T without a knock down, drag out fight. Look up “Free-for-all” in the Merriam-Webster Dictionary and there’s undoubtedly a picture of Denis the Menace. That’s why my workload is BVA-heavy. CCK’s Youtube report brings great sadness. I hate to have to be the one to tell all my clients we’re in for a long, cold winter of inaction but it appears so.

The old three-prong flash suppressor/roachclip model

See you in Cincinnati this week if you’re heading that way. More anon.

Posted in BvA Decisions, BVA Hearings, Lawyering Up, Public Service Announcements, Veterans Law | Tagged , , , , , , , , , , , , | 2 Comments

CAVC-PORTER V McDONOUGH–HCV WITH §3.156(c) SILVER LINING

My Hepatitis C  (HCV) practice model is fortunately coming to an end. Those of you who didn’t die from it have been cured (read’ in remission’). I reckon I still have about 4 waiting for a BVA sit down but outside that, pretty much all my Vets are P&T. Nevertheless, I relish reading about other attorneys’ old ones being resuscitated for earlier effective dates using one of my favorite regulations. I speak, of course, of §3.156(c) and it’s marvelous DeLorean effect to be able to return to a bygone era and recoup a former loss born of illegitimate actions on VA’s part.  Quite simply, in most cases, they didn’t go back and get the STRs. Or they fell on the floor and got swept up with the day’s trash.

Anyone who comes from my era, and by that I mean the Vietnam ‘Conflict’, understands what I speak of. I cannot count the number of combat Vets with grievous wounds who returned to an indifferent populace of VA raters who more often than not handed out 0% and 10% ratings like confetti at a New York parade. This didn’t happen in WW II or the Korean Conflict. Back then, they just granted and promptly began calling you back in for c&ps and chipping away at your rating until it cast a mere shadow of the original. Six of one-half a dozen of another. The net effect was that Vietnam Veterans got the screwing up front instead of a decade of America’s munificence before being reduced.

Worse, all Vietnam Vets with HCV were tarred and feathered with the drug abuser onus and were only vindicated in 1998 when the makers of jetguns finally threw in the towel and discontinued manufacturing them for human use. The reason? Why, they’re unsanitary and transmit disease.

Don’t get me wrong. VA will still deny based on the jetgun transmission model unless you submit an IMO supporting it. Nevertheless, at the BVA they will grant if you can articulate your rebuttal with internet articles showing the history of the jetgun and it’s withdrawal from human use. They still use them for livestock inoculations.

So it warmed my heart to read about ol’ Lawyer Porter, through counsel, cleaning Denis the Menace’ clock at the CAVC with a reversal on the 18th of October, 2022. No matter how many cases come before these BVA folks, the concept of interpreting the meaning of ‘shall’ or ‘will’ (which are interchangeably used in law and identical in meaning) as written in §3.156(c)(1) escapes them. Well, that or the idea of disbursing some ungodly amount of retro loot to a Walmarket™-shopping, trailer trash Veteran sticks in their (VLJ’s) craw.

Read it. It’s not permissive. It’s compulsory that the VBA readjudicate your claim if old, pertinent STRs suddenly materialize. More recently, that has come to encompass JUSCRUR record research documents proving stressors.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

As you can see, I enunciated the words ‘relevant’ and ‘will’. VA will make much ado about nothing insisting that just because the new records mention them sewing you back together after the Bouncing Betty medical mishap in ’68, that doesn’t automatically make them relevant. That’s a legal determination made in the back room of the VARO with no paper record and in 99.9% of the §3.156(c) appeals I’m working, ‘relevant’ is slipperier than a county fair pig covered in Yellow 77.  It shows this gives the regulation compulsory enforcement rather than a more dilatory interpretation that if VA feels the spirt move them, they ‘may’ pay it lip service and reinvestigate the matter.

Brien T. Brockway, Esq. (right)

I’m not sure how ol’ Lawyer got hooked up with his lawyer (Brien T. Brockway, Esq.) but I’m glad he did. From the photo here, it’s clear Brien has some OD green blood running through his veins. That’s fortunate for Veterans who seek help. It’s been my considered opinion that a Veteran is more capable of helping a fellow Veteran- especially if he has good legal training. What the hey? We’ve walked in those boots. We’ve lived that life and know what transpires in the service. Who better to learn the trade and help his fellow Vet? The VA process just becomes more convoluted and confusing as every day passes. A Veteran needs every tool available to him/her to win a claim. What better than a Vet law dog? I roamed through the ranks of NOVA recently and note there are darn few of us and only four who served in Vietnam.

Anyway, the decision is here and makes for a great read. Getting a reversal out of the CAVC-let alone one from Judge Toth- is no small feat. Thank you Brien for your one small step for Vetkind.

Porter v McDonough HCV-3.156(c)

Posted in 3.156(c), CAvC HCV Ruling, Jetgun BvA Decisions, Lawyering Up, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , | 3 Comments