REINVENTING THE LEGACY APPEALS PROCESS–THE ROSETTA $TONE

Posted on November 24, 2020 by

Happy Thanksgiving to all you morose, unhappy campers. I’ll let it go at that. This reminds me of Hunker in the Bunker in 1970 when Capt. Charles decided to drop a few B40s and some 60s on us at 0200 to see if we were on our toes. FNGs cried for their mothers. FYGMOs did too. Those of us in between lit another Marb and wondered what else could go wrong…while hunkering in said bunkers. Add masks and a nasty virus and it isn’t much different. It’s just not as loud. 

The reason I called you all here is, as the title above suggests, I’ve discerned a new pattern in the M 21 Cliff Notes book. It’s interesting to note that anytime someone in government says they’re going to improve something, take your protein pill and put your helmet on. VA is fond of rearranging the judicial furniture without explaining it. You simply wake up one morning and discover they’re doing it differently and you just got denied. What’s more, you never get denied doing it this way.  After you get whacked about three times, (five if you’re a man) the light bulb goes on over the head. Mmmmmm. Pattern there is. Yessss.

You feel like you’ve just deciphered the Rosetta Stone… again. Back in about 2007 when I was sicker than anything this ‘ronavirus can throw at you short of death, I read every BVA hepatitis c decision from 1992 to 2007  trying to find out why, for the one Vet who won, there were more than 85 who lost. Even I, in my fevered state  figured this one out. They mentioned Caluza, Shedden and Hickson over and over. So who was this Mario Caluza? What in Sam Hill was his claim to fame? How ’bout this Jerry Shedden dude and Arthur Hickson? How come they all lost? Pretty soon, I decided to read every COVA decision from 1989 to about 1995 and asknod was born a few weeks after I won in ’08. Nineteen years to get it sorted.

So, to my immense grief, I was flummoxed this fall to see a hep c piece of cake supplemental get the thumbs down. Okay it was Fort Fumble in Jackson Mississippi. They deny everything anyway but the VA spirit of fairness dictates when you know the Vet and his Sherpa have figured out the secret handshake, you just let them pass. There’s plenty more suckers lined up with their VSO pals waiting for the slaughter. And then I lost another piece of cake supplemental for MST. And a third one -blindness due to Malaria prophylaxis (Primaquine) for two weeks in Cam Ranh Bay AB hosptial. What’s going on here?

There is nothing more deceptive than an obvious fact. If your mind is not programmed to “see” it in the correct light, you cannot employ it.

THE OLD LEGACY PATH

Think back to the olden days. You filed a claim. VA denied it and, if you were smart enough to know how to play VA poker, you got an IMO to fix it. The story usually ended there. If you dawdled or didn’t get the email, sometimes you hired a Sherpa at the BVA and got it fixed there. The worst cases ended up at the CAVC (if you were smart enough) to get another chance to fix it on remand where you could salvage it. Otherwise it was back to  the salt mine and begin anew. This generally meant ten years worth of litigation down the drain.

The unique thing was in the last 20 years it had become easier to win. The secret  was getting out. VA determined it was time for a new M 21 Cliff Notes book on how to deny. Enter the AMA, or more properly, the AMIA-the Appeals Management Improvement Act. I’m sure Congress had the best of intentions. It’s just that something always gets lost in the translation from intent to 38 USC and suffers even further when translated into 38 CFR.

Here’s the difference in a nutshell. In Legacy, you filed and they denied. Your “repair order” (an IMO) rebutted their denial logic. But, because we enjoy the Benefit of the Doubt, our Doctor IMO is as equal to justice as their gomer denial written by a Certified Nursing Assistant. The important fact was that there was an opinion in your favor instead of your useless lay testimony like a TV doctor with a stethoscope around your neck. Suddenly, all that changed… but not all at once-and not everywhere. Just here and there like Little Rock, Jackson or Wichita. The DROCs like St. Pete’s and Seattle began attempting it. It’s more difficult when it’s a grant coming back from the BVA. They just do the Zeros for Heroes technique and make you appeal all over again.

What the hey? Each RD (rating decision) was horribly flawed in the denial logic as only the VA can do that. They will be easy to beat at the BVA but something more basic is afoot. Who, or what, gives them the right to go out  and get a new opinion to defeat your IMO? Welcome to the AMA rodeo. You file. They deny. You file a supplemental with your IMO and they send you to a C&P. That used to mean a rubber stamp and a shiny new rating. Now, with the advent of the new AMA, suddenly they are denying you at that c&p. Aruuuu??? as Tim Allen was fond of opining.

The new rodeo works like this. Think of each filing as a “package”. A new filing, with a 526, is used to get in the door. If it has legs, you win and go to door number 1 for a low ball rating. If it needs to be “worked” like a Vietnam boots on the ground determination, you go sit on the Group W (Wait) bench. If it can be pole-axed, it is. That denial is now the end of the “package” and it is consigned to the done pile. But… Yes, you can keep it alive forever if you file a new supplemental claim with N&RE within a year. The AMA bar for ‘new and relevant evidence’ is low. You can dang near file a picture of yourself in Basic to get it reopened. But here’s the reason they’re letting us all in the front door with no ID. You’re going to get denied again anyway. Your new supplemental claim with a shiny new IMO from Dr. _______ is reviewed and set aside. VA sends you out for a c&p and their “clinician” denies as less likely than not. Ignore the M 21 thing where it says only a VA examiner can make the legal determination. The c&p sucks but it rebuts your IMO. They are not allowed to do this. It’s called Mission Creep in military parlance.

Here’s the difference. Each package can be denied this way. Of course it flies in the face of Mariano v Principi but the mistake won’t be cured for a year or two and only up at the BVA. I’m sending them up for direct review. The VA will eventually  accuse me of “appeal harvesting ” if I keep bringing them up there in bundles as I am right now.  My IMOs are bulletproof. The decision is a travesty of justice but the AMA doesn’t provide for a simple NOD and IMO to “fix” it at the AOJ like the old days. Your only local resource is a Higher Level of Review(HLR) which is usually a brusque ten-minute affair where a wannabe GS 11 gets to pretend he’s Queen for a Day. Your supplemental gets a 20,000 ASL flyover with no new evidence permitted. Hmm. Explain that §3.156(b) thingie to me again?

THE NEW (OLD) REPAIR ORDER

There is nothing more deceptive than an obvious fact. I should have recognized this. When we all were being herded towards the RAMP corral, I resisted. I kept all my Vets in Legacy. It paid off. We can still switch over at any time if we wish to AMA or we can stay put. Could be that VA’s impatience with weeding out all the old Legacy stuff at BVA  grows thin. With RAMP dead, we are left with the AMA anyway. The BVA wants them done and put paid to. As with the old Legacy program, the winning ticket should henceforth be to proceed  to the BVA with your new IMO pronto and get in line. There, it will be entered into evidence and will rebut the original denial you filed in the same original “package” back at the RO 17 months ago. Simply put, you’re back to 1) file claim; 2) get denied and; 3) file NOD (at BVA now) with new IMO and get a decision that pits your new IMO against the original denial by the QTC bedpan changer/MD.

The sad part about all this is I had suspected all along the AMA was going to have a “Well…not exactly” escape clause in it somewhere. We all had that confirmed at the Fall Virtual NOVA conferences. BVA Head Cheryl Mason dragged out all her fancy charts and mansplained how they were all way off base in assuming everyone would just keep on circling the drain down below at the Regional level with Supplemental claims. Who woulda thunk it? The Stupid Vets were choosing the BVA appeal path instead… in droves. Well that means they have to hire a shit ton more VA VLJs and their minions to catch up. They predict they’re going to do 50,000 (fifty thousand) videoconferences this coming year. I’m not sure if this was announced before they discovered the new preference stampede to the BVA, the Kung Flu shutdown or another in a long line of optimistic predictions . So much for any appeals improvement act.

The short story is simple. Continue as you were, gentlemen. Proceed to BVA post haste after obtaining the VARO dental rearrangement of your front teeth. Obtain IMO and get your ticket punched at the BVA Docket Booth. Just like in them olden days, after an interminable delay of years, the grant will be remanded back to the Fort Fumbles across our wintry plains where they can lowball you and begin the process all over again. In the military we shortened this story to SOSDD. It’s like rearranging the deck furniture higher on the fantail on the Titanic to keep it dry. The Regionals know they are going to lose these appeals but they can delay them until another day. To what end I’m not sure.

The new AMA is adroit at confusing Veterans. When they lose, they don’t see the repair order. They can play this poker game until they die without figuring out the scam. Mariano is still good law. It just has to be employed like a parachute at the right time. You don’t pull the IMO ripcord while you’re still in the VA’s airplane. Timing is everything (once again).

 

Posted in Appeals Modernization Act, Humor, IMOs/IMEs, M-21 info, Nexus Information, RAMP Appeals (AMA), Thanksgiving and war, Tips and Tricks, VA Agents, VA Conspiracies, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 14 Comments

CAVC-ROMERO V WILKIE–THAT PRESUMPTION DOG WON’T HUNT

Posted on November 21, 2020 by

My esteemed friend Gene Groves, one of the legendary Vets who have actually won an Extraordinary Writ (pro se to boot), a fellow Vietnam Veteran and author of his own website  https://veteranclaims.net/, just sent me a notification to read Romero v. Wilkie. I see Zach Stolz was in first chair for Robert Chisholm of CCK (Chisholm, Chisholm & Kilpatrick). If he’s still wearing the same polyester blue suit he wears day in and day out to NOVA conferences when he does his oral briefs up at the Court, we’re going to have to pass the hat and find him some new top-drawer threads. This is worse than the Emperor parading around naked in Grimm’s Faery Tales. His trousers have magic memory fabric creases. He probably props them up in the corner at bedtime. But boy howdy can that young man litigate. 

The blue suit…

Judge Michael Allen (2/2018)

Judge Allen writes in an interesting style. He swore me in to the Court so I think a lot of him. I hold no grudge that he denied my LZ Cork appeal. It wasn’t ripe for the CAVC. Chalk that up to my relative inexperience in §3.156(c) law. I began Butch’s quest in 2013. Phase 1 ended this spring when I lost. Fortunately, with the new AMA, that’s nothing more than flipping on the turn signal after the CAVC and making a U-turn back to Seattle. Well, that and previously forgetting to hand over about 31 pages of relevant service department records that have never before been associated with the claims file the last time when I swore I’d handed all of them over. VA was so slack, they went back and asked for the same ones. Too bad they didn’t specify “inpatient records” in their 3101 PIES (Personal Identification Exchange System) computer hookup with NPRS.

Judge Allen wrote this decision. He had a couple of gomer judges (Meredith and Falvey) who tagged along this time but are decidedly anti-Vet. The last thing on earth you want on the Court is an ex-JAG puke. All their careers were spent Article 15ing and court martialing enlisted folk for AWOL, busting them for being drunk on duty, possession of drugs, UCMJ violations ad nauseum. Ne’er-do-wells best expresses their eternal contempt for us irredeemable untermenschen. Putting them on as Judges is asinine and adversarial. They should crawl off and retire somewhere even if they 20’d-and-out at 50. Trump didn’t do any Vets a favor when he packed the Court with them.  An  appropriate  metaphor  is  “Military  Justice  is  to  justice  like  Military  Music  is  to  music.”

The Romero decision is a welcome bookend to presumption law. We are accorded many presumptions even if it feels otherwise. We get the first one the moment they induct us or we enlist(presumption of soundness). These pile up as we proceed through our military careers such as the combat presumption in 38 USC §1154b. In military law, we’re presumed guilty until we can prove our innocence. When we file our VA claims, there is a presumption we are credible witnesses until we go off the reservation and start talking about our Secret Squirrel  1st SOG job where we were awarded five Congressional Medals of Honor simultaneously (in private) by President Eisenhower (in 1985).

There is a presumption that we are competent to testify as to what comes to us via our five senses. If we file NODs, we are entitled to receive a SOC to better help us understand what part of ‘No!’ we didn’t quite get. Here, Patricia Romero timely filed her NOD. She was in the old Legacy appeals process that ended 2/14/2019. As such, §19.30 applied. I’ve seen this one before. VA forgets to send the SOC out. Or, they send it to the wrong address. Or, they send it to your client but not you. I’ve even had them forget to date the cover letter which allowed me to argue that my client’s tardy VA 9 had to be timely. The BVA agreed with me, too.

The Holy Grail is the presumption of the Benefit of the doubt (BOTD). Most Vets think this is some blanket presumption that covers a litany of errors in their case. Negatory folks. To get the BOTD, your claim has to at least be as well grounded as the VA’s  contentions are flakey. Hence my shotgun use of Independent Medical Opinions (IMOs) even if my appeal seems ironclad. To me, time is of the essence for most all of my Veterans. I don’t view them as clients. They are Veterans with a capital V. Most all have been handed a rotten legal experience that has persisted for years. The last thing I want to do is take a chance on a BVA VLJ deciding to remand an appeal and adding 4 more miles to the litigation tunnel. An IMO virtually guarantees a win at the Board and all that remains is the dolts at the AOJ level trying to figure out how to get even with you for proving unequivocally that they are dolts.

Presumptions are examined here in Romero in the context of the presumption of regularity of the government to mail out SOCs-or anything for that matter. CCK produced extensive evidence that VA wasn’t always perfect and there was a problem with the mailing of a lot of  litigatory documents with suspense dates over the years. It’s happened to me. I discovered it exactly the same way Mr. Chisholm did (in VBMS) and called out the VA Puzzle Palace over in Seattle on it. Fortunately, they are familiar with my Win or Die mentality after about 12 years of this stupidity and surrendered.

Rebutting presumptions is almost as difficult as winning a CUE. Each presumption comes with a short list of what can overwhelm it and rebut the presumption. If your entry SF 88 says your index finger has some ankylosis but can still pull the trigger on a 16, then the presumption of soundness protects you. If you claim it became noticeably worse in service when they operated on it 3 times and you experienced complete loss of use (LOU) of the hand, then you get the shekels. They can’t come back and say 10% should be deducted for preexisting fingerbooboo unless the entry SF 88 said that.  Likewise, if VA denies you for PTSD, and you go out and get a private IMO saying you do have it, that is equipoise. Your positive IMO cancels VA’s negative IMO and you get the magic benefit of the doubt. Or at least that’s the way it’s supposed to work.

Here, CCK’s win was partial but all that was needed to prevail. Yes, the VA should be granted the presumption of regularity that they normally send out a SOC. In this case, the VLJ, E. I. Velez,  made a finding of fact that sometimes the 56 Fort Fumbles across our Fruited Plains step on their necktie. A finding of fact is  powerful JuJu. The Court said as much. Thus, Secretary Wilkie Wonka’s little people (Velez)  provided the very lever needed to rebut the VA’s presumption of regularity and call VA’s actions “irregular”. Bingo. Game. Set. Match. Set it aside and remand that puppy back to VLJ Velez for a do over.

While there is no guarantee we won’t see Patricia Romero back here after another Texas Necktie Party at the BVA, my guess is they thoroughly shot themselves in the foot by letting the camel’s nose in under the tent. Wilkie’s wunderkind lawdogs had numerous opportunities to argue differently but they plumb stepped in it at the Oral arguments. And the Appellee’s reply brief. Of course, if you screw  up, you oughta man up. This seems to be the Achilles heel of AOJ adjudications. Might it not have something to do with the VAROs’ bathroom reading material (M21)?

P.S. Happy Thanksgiving from Cupcake, Pickles, Buddy, Ambush, Kona, Cooper and Big Shot as well. On behalf of myself and the rest of the Troupe, I hope we passed the audition.

Posted in CAVC Knowledge, CAVC ruling, Equitable tolling, Extraordinary Writs of Mandamus, Lawyering Up, Presumption of Regularity, Presumption of Soundness, SOCs and SSOCs, VA Attorneys, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 6 Comments

Best Resources for Combat Veterans Making the Transition to Civilian Life

Posted on November 17, 2020 by

According to a survey conducted by Pew Research Center, nearly half of all veterans who served since the terrorist attacks on September 11, 2001 said that it was a challenge to transition to civilian life. To help make the process easier for combat veterans, we put together a list of helpful resources that offer tips on finding jobs, purchasing insurance, exploring housing options, and other important considerations.

Best Car Insurance for Veterans and Military Personnel

What Veterans Need to Know About Going Back to School

What Benefits and Services Are Available for Veterans with PTSD?

Developing a Plan to Stay Healthy After the Military

Home Improvement Projects You Can Start to Pass the Time During Quarantine

Spruce Up Your Backyard with a DIY Firepit

12 Great Hobbies for Military Veterans

The Ultimate Guide to Finding a Job as a Veteran

Where to Search and Apply for Jobs Online

5 Programs to Help Veterans Buy a Home

8 Ways to Find Apartments for Rent

Explore Your Health Insurance Options When Leaving the Military

The 5 Best Life Insurance Companies for Veterans in 2020

Combat veterans who transition into civilian life face many challenges, from finding a job to finding a place to live. We hope these resources may help you along the way. You should also look into organizations that can help you make the transition so you won’t have to do it alone.

Do you have any more resources you think should be listed here? Let us know and we’ll consider adding them!

Posted in Future Veterans, Guest authors, Gulf War Issues, VA Health Care, vA news, Veterans Law | Tagged , , , , , , , , , , | Leave a comment

The VA Community Care Network for Urgent Care/Retail Clinics

Posted on November 14, 2020 by

This is a valuable benefit.

“Urgent Care is Not a Replacement for Preventive or Emergency Care“

Due to COVID-19, VA has cancelled millions of face-to-face appointments. This post is about using the new VA Urgent Care (UC) benefit. If eligible, bring a valid government ID card and go to a VA-Community Care Network UC/retail Clinic (CCN)–without an appointment – but call to confirm CCN status first. You don’t need to pay. *

Tell UC staff you want to use your VA UC benefit; they may not know anything about it so print out cards or access on your mobile.

Information is scattered all over VA and Third Party Administrators (TPA) websites.

Veterans must be enrolled in the VA health care system and have received care from a VA or in-network community provider in the past 24 months to use UC benefits.

# 1. Read the VA’s webpage on this benefit first; take some notes. # 2. Or read/print a clear copy of this fuzzy screenshot from the pdf.>>> (Link) # 3. Locate a VA-network provider (CNN) and call them before going.

#4. 🖥️ DIYers–Register with your TPA the via Self-service portals–Optum (Regions 1-3); TriWest (Regions 4-6) Takes just a few minutes. This enables you to see your eligibility for UC, status of your referrals, and care already received in the community. I would do this step NOW, before you need UC. Get familiar with these non-VA websites.

urgent care
https://www.va.gov/COMMUNITYCARE/docs/programs/Urgent-Care-Infographic.pdf#

See also: CCN Pharmacy Search via Caremark Search (Link) or VA location search.  UCs can prescribe a limited number of medications; no cost at a CCN pharmacy. Others, you can be reimbursed later.

* Co-payments-– Three UC visits a year are free unless a vet is in a high priority group; then VA may BILL you $30. You don’t have to pay upfront!

If you aren’t sure how ill you are, opt for a CCN hospital urgent care. If you have a bad tooth ache, UC can see if you need an antibiotic before you see a dentist.  Need a flu shot? Will be free if they have it in stock.  

If you have a private provider, email this YT link -5 min..  The TPA pays the provider directly–not the VA.  The payment is based on Medicare rates. VA-CCN is a big ❤improvement over the earlier ragtag, as the crow flies, “Choice” programs.

If you use this UC benefit, please let us know how it goes. In our area of NW VT, we have two hospital-based UCs, and three small UCs. The hospitals joined VA-CCN after the smaller UCs. With weekend hours available, this give us some piece of mind. 🙂

Laura (Guest Author)

Update: 8/20/20 VA UC Quick Guide pdf.

😇 Be an angel. If the information in this post or comment section might help someone, please share it via social media or email. 👇

Posted in Community Care Network, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Uncategorized, Urgent Care Benefit, VA Health Care, vA news, Veterans Choice card | Leave a comment

Fact or Rumor: Will most C and P exams be contracted out in the near future?

Posted on November 13, 2020 by

Rep. Elaine Luria, Chair of the Subcommittee on Disability Assistance and Memorial Affairs (DAMA), Committee on Veterans’ Affairs, is not happy with Sec. Wilke.
And she wants a response to her letter of 10/20/20 by Nov. 16th. Why? It seems as if C & P exams by VHA employees are going away. She writes (Link to letter):

“During last year’s Subcommittee hearing on contract C&P examinations, VA testified that contract exams were intended to supplement the existing VHA C&P program, providing local examinations to rural veterans and prompt
appointments when VHA facilities had long wait times. Now, VA says full migration of C&P examinations to contractors was always the plan.

Luria is worried about a number of issues if VA retires the VHA C&P program. About 60% of C & P exams are outsourced now. She mentions the Covid backlog, the GAO report which noted that oversight of contractors was lacking, and potential lay-offs of VHA employees.

Luria writes, “For many veterans, thorough and accurate C&P examinations are crucial to securing service-connected benefits.” That is true but is she unaware that both VHA and contracted C & P exam results fail to be in the best interest of the majority of ill veterans? After twenty years of active service in the Navy, she retired at the rank of Commander (Link). It’s hard to say how much contact she had with VA during her career. But after her election in 2018, she is in the thick of VA shenanigans. As Stars and Stripes puts it, “

During a hearing she led last year, the VA said it would contract with more outside medical providers to perform C&P exams. Lawmakers were led to believe the contracted examiners merely supplemented the existing program, primarily to help rural veterans and those veterans facing long wait times, Luria said.

Recently, however, VA staff told Luria’s office about the department’s plan to shutter the C&P program at the VA and contract with the private sector for 100% of the exams.

What would be a fairer system? I think a veteran or representative should receive an allowance towards the cost of an IMO, equal to that which they pay to a contractor. The veteran could be issued a “kit.” If VA finds it doesn’t meet standards, they could buy a contracted C & P exam. The format and information in the kits should be exactly the same for the IMO and contracted providers. VA can and does still ignore favorable evidence and information in exams to deny claims.

At this moment, I’m not sure if new C & P contractors will have access to a veteran’s medical and/or military records. I remember reading about many veterans’ concerns about former Sec. Shulkin’s belief that eye exams should be outsourced because there “was a LensCrafters on every corner.” There were fears of privatization. And of course, LensCrafters are not situated on every corner. It may be that providers who join the VA Community Care Network, will also be conducting C & P exams–so wait and watch.

Laura (Guest author)

2nd District of Virginia. (Love this region.)

Update: Link to 2017 article about LHI Court Case mentioned in reply to Lem’s 3rd comment–scroll.

https://www.businesswire.com/news/home/20170615006298/en/Federal-Court-Upholds-Contract-Awards-LHI-Provide/?feedref=JjAwJuNHiystnCoBq_hl-RLXHJgazfQJNuOVHefdHP-D8R-QU5o2AvY8bhI9uvWSD8DYIYv4TIC1g1u0AKcacnnViVjtb72bOP4-4nHK5ieT3WxPE8m_kWI77F87CseT

Posted in All about Veterans, C&P exams, Congressional Influence, Food for thought, Future Veterans, General Messages, Guest authors, IMOs/IMEs, Nexus Information, Uncategorized, VA BACKLOG, VA Health Care, vA news | 11 Comments

VETERANS DAY 2020

Posted on November 12, 2020 by

Wowser. What a year so far. I just had the ultimate letdown. I saw my Cardio doctor Monday for an annual checkup. I shared with him that I’d had a hard time swearing off bacon in the last year or two since the Congestive Heart Failure gig. But, to my credit, I had switched over to low sodium bacon. I wasn’t terribly interested on how they got the salt down to a dull roar and still made it taste so good but then I’m not a baconologist. Turns out the bacon manufacturers merely slice it thinner so you’re getting less salt. Shut the front door. Dr. Cardio told me to cease and desist or go to unsalted turkey ‘bacon’. Right. Tell your momma to eat that crap. I’m sticking with my low sodium diet.

I get a Google™ news feed in the morning and it’s saturated with Vet articles (naturally). These days there are more and more articles about Vietnam War Vets and their untold stories. Shoot, there are probably fewer of us true RVN Vets than there are Korean Vets. A lot of us have chaffed under nondisclosure agreements for the last 50 years. Some of the TS/Crypto guys or the big Intel weenies with read-and-burn clearances are doing 70 years penance. That pretty much hushes their mouths until death done do them parted. My NDA expired about two months ago- September 21, 2020- fifty years from the day I departed that country to the north of Thailand that rhymes with “mouse”. It’s an easy date to remember. About a week later, I left horizontally to return to Udorn.

#AirAmVet

I still cringe at the idea discussing these things out of rigid habit. We used to have a standard reply if someone asked us why we were getting out of aircraft over on the AirAm parking apron (across the highway)on the Waterpump flightline in loud Hawaiian shirts and blue jeans with .357s in shoulder holsters. “If I tell you, I gotta kill you”. To be free of it now is like getting out of jail and not wanting to go back any time soon. Imagine flying with guys named Thomas Jefferson or Benjamin A. Franklin. I’m dead serious. My most frequent pilot was Jack C. Smith- or J.C. As my superior and a PIC (Pilot in Charge), I addressed him as Mr. Smith. Behind his back we called him JFC as in Jesus F__king Christ. He invariably arrived at takeoff and never did a walk around. Preflight consisted of 3 minutes of pure oxygen at the AOC and then “#1 Mag is hot. Pull the chocks. Engine set to lean. Clear Prop and get that f–king fire extinguisher out of my way!” Warm up occurred enroute to the end of the runway for takeoff. One day ol’ Jack was so late we used the taxiway for takeoff. You could do that in a Porter-even with a hangover- but not legally. Of course, in the absence of any control tower and VFR, who was going to call you on it? But one day that nasty hangover of his caught up with us…

We called this “lumbering in” as in ‘to land in an arborous setting’. It’s not for the faint of heart. I woke up over to the left of the prop where the gentleman is standing on the side door of the A/C. 65 kts. to zero in 10 feet.

Veterans Day is for all of us who are alive. It’s a recollection (in my era of Vets) of “I’ll have a double tour to go and supersize the testosterone.”  I had to add that parenthesed codicil to squelch assuage any women combat pilots nowadays. When I flew down to Saigon to 7th TACC (Tactical Air Combat Control) to “volunteer” for Project 404 in July 1970, I asked a lot of questions which no one would answer. Everything was hush hush. All I got was this hot off the TTY and a rush clearance on the next bird to Saigon:

“Why do I have to be fluent in French?” Just sign here and I’ll brief you in, Graham.

“Where will I be stationed?”                     ”                                                                            ”

Why are you taking my wallet?                ”                                                                            ”

“Do I get combat pay?”                             ”                                                                             ”

“Is this going to be dangerous?”             ”                                                                             ”

“What’s the casualty rate?”                          Well, to be ahhh truthful? About 40%…

“Sounds pretty cool. That means 60% survive, right? Where do I sign?”

To give you an idea of what 40% meant, it was brutal. Below is a NOTAM (Notice to Airmen) I saw one morning on the bulletin board in our “Air Operations Center”.

 

If you got shot down, it was an aircraft “accident”. The “customer” referred to above was our titular head-  Consolidated International Airlines (CIA). Our actual boss was called the “Controlled American Source” or CAS. Well, actually he was called a number of things I don’t need to repeat here. CAS was his title. Our airpatch was LS 20 Alternate-Long Tieng (or Long Chieng). Most called it Alternate so you could mention it in mixed company down country without divulging the location over the fence.

Those two karsts sticking up at the end of the runway were referred to as the Titty Karsts or the Vertical Speedbrake. Some referred to this as the One-Way Runway. Long Tieng was also referred to as the ‘Extreme Westerly Terminus of the DMZ’. Here’s a map. We were conservatively 75 miles from the Ho Chi Minh trail to the east and about 20 miles due south of the Plain des Jarres (PDJ). Just over the other side of those titty karsts to the right was Lima Site 20 Ban San Tong or Sam Thong as we referred to it. In addition to a small aircraft repair facility, Air America had a pleasant 12-bed infirmary there just off the active runway for those of us unfortunate to encounter minor cases of lead poisoning.

It feels strange divulging things like this after fifty years. I’m sure Cupcake doesn’t even believe half of what I tell her of this time in my life. I find it hard to believe myself in retrospect. If the primary targets were obscured by weather, a lot of pilots dumped their ordnance here to avoid having to land with it. I hope they don’t come after us some day for bombing a World Heritage site back into the Stone age. Folks are getting sooooo woke these days.

Here’s one of the O-1 Chariots I GIB‘d in  while out sightseeing over the PDJ.

You may now understand why I have the Erawan (Three-headed Elephant) on my wallpaper. It was the Royal Laotian Air Force (RLAF) insignia. Of course, just as often we had AirAm logo plastered on them- or none whatsoever.

Life is good. I’ve burned up six of my nine lives so far and I’m still fogging up a mirror. I never expected to get out of Dodge alive back then and gave it little thought at the time. I don’t consider my service unique-just interesting. My heroes are on that Black Wall in DC-the ones that drew the short straw. But that’s a story for Memorial Day. Here’s a couple of great period songs my dad gave me. He was in country from ’66 to ’68. We’d hear snippets of these ditties being sung by the fast movers we were directing.

Red River Valley songbook

Happy Veterans Day to all of you who were so selfless as to serve America knowing full well you might end up flying a Silver Submarine home and get a hero’s welcome at Dover AFB, Delaware. I salute you all today. That “Thank you for your service” blurb makes me absolutely barf. It should be retired permanently from the Veterans lexicon..


Posted in Food for the soul, History, Humor, KP Veterans, Veterans Day | Tagged , , , , , , , , , , , , , | 4 Comments

MAKING YOUR IMO COUNT

Posted on November 8, 2020 by

Lordy. After twenty five years, you would think everybody got the email/text on Caluza v. Brown (1995) including its numerous progeny. Once again, I greet yet another fellow traveler of the treadmill on the VA’s Wheel of Sorrow. Whether it be perennial remands between jurisdictions like a champion ping pong game or a depressing litany of endless ‘no’s, the glaring fact staring you in the face is something is amiss. Quite simply, if your claim/appeal was bulletproof,  you would have won in 2010. The fact that you’ve been up to the CAVC, got a JMR and it’s been up and down from the BVA to the VARO to the BVA four times since is your legal angel on your shoulder whispering “something’s missing”. The trick now is to ignore all else and listen to her.

Since the War of 1812, we’ve needed a nexus letter or, more formally, an Independent Medical Opinion (IMO) to win our disability claims. An Independent Medical Evaluation (IME) is essentially six of one and half a dozen of the other. Please note the true import of the word ‘independent’ a la Meriam Webster:

in·​de·​pen·​dent | \ ˌin-də-ˈpen-dənt  \

Definition of independent

 (Entry 1 of 2)

(1): not subject to control by others  
(1): not requiring or relying on something else : not contingent; an independent conclusion
(2): not looking to others for one’s opinions or for guidance in conduct

With that definition in hand, how can you, Johnny Vet, even conceive that the c&p examination you are given by VA has a rat’s ass chance in Hell of being in your favor? Or independent for that matter. Short of a Purple Heart in the one hand you have left, you’re going to need some top drawer evidence in your STRs. Military and VA doctors are very careful to speak in rule out, possible_____, get x rays for definitive analysis etc. I have a client who used the VAMC at American Lake in Washington (state) until I wised him up. His doctor refused  to diagnose him with DM II even though he was blowing a 125 on the fasting glucosometer and was eating Metformin like candy. The reason is simple. He doesn’t want to be seen as causing a Vietnam Vet’s AO presumption. It might  be construed as a nexus letter in a roundabout way. Independent at the VA is a Fig Newton™ of the imagination. Would you consider a c&p opinion from QTC/LHI/VES to be independent? Do tell why? These outfits “work” for VA. They are beholden to them for clientele. If they rule in a Vet’s favor too frequently, their VA business will dry up.

I can’t count how many times someone has sent me a copy of their doctor’s letter with a complete Curriculum Vitae attached. Most have impeccable credentials yet they still failed to sway the VA. What happened? My latest Vet inquires as to how he continues to lose yet has three nexus letters that would appear at first glance to be more than adequate. Unfortunately, one critical item is missing. Each doctor’s nexus involves the Veteran relaying his history-as told by him- to the doctor. The doctor dutifully records the Veteran’s version of events (history) and regurgitates a nexus based entirely on this second-hand, wholly unsubstantiated, uncorroborated account of how it went down.Not one of these doctors supplying their opinions prefaced the IMO by qualifying it in no uncertain terms such as “If what the Veteran relates is indeed true, then it is more likely than less likely that…” of course, that wouldn’t win either.

To combat that mistake, a true IMO must be built a certain way. Most Vets have military service treatment records (STRs). The VA uses these to look for an instance of injury or disease. In the case of Hepatitis C, they look for a risk factor-usually intravenous drug use or snorting any of the White Ladies. For those of you whose records purportedly burned up in the 7/13/1973 NPRC barbeque, even if you served from 1979-1983, there is less hope. I’ve done it but it was a piece of work.

Hiring an outside outfit for a truly independent IMO is essential in my book. I’m 202-2 in the win column and the two that were denied are up at the BVA on direct review. They’ll win. It’s a matter of having someone with a real IQ review it and see the problem. VA raters deny 85% of claims religiously. You can see the statistic chiseled in stone in VA’s annals. VA claims a 98% accuracy. Nevertheless, 74% of appeals that go up to the CAVC result in remand to correct errors.  An independent IMO means the rater has never met you, is not related to you, lives in another state and has never treated you. His independence is guaranteed. If s/he did not feel they could put their name on the nexus letter, they would decline to write it. They don’t make wild-ass guesses. They qualify their findings based on peer-reviewed articles published in JAMA and other noted medical journals.

Most top drawer IMO businesses do this for SSA, Workman’s Compensation and other claims in addition to VA claims. They only work with attorneys or agents. Almost all are respected by the BVA/CAVC with the exception of some we won’t mention here. The going price is usually between $1500 – $2500. If your IMO guru is asking for $10,000, find a good VA lawyer. A lot of us will “front” you the cost of the IMO if the evidence is irrefutable.

Every winning nexus will always have a summary of the evidence reviewed. Look at your most recent VA win or loss. Below the seal of the VA, your name, the date and rating authority are recorded. The next is the summary of what it was you were claiming. Following that will be the decision up or down. But most importantly, there will be a summary of the evidence VA reviewed in arriving at this decision. The key phrase that makes your IMO equal to or better than VA’s is the simple statement that your subject matter expert has reviewed your claims file in its entirety. You can list other probative items like buddy letters or a recent lab report but the must-have phrase is that the doctor writing this IMO had total, unabridged access to the Veterans entire claims file. This is what VA rests their own c&p  conclusions on. At the beginning of every DBQ, there are boxes to check off indicating whether the claims file was reviewed and whether this is an in-person examination or merely a records review (IME).

Sofa Team 6

We all laugh at the concept of the benefit of the doubt. Here, it is your ace in the hole. VA ex parte justice is indeed similar to ping pong or Badminton. You serve the claim. They return the serve with a denial. You hit the return denial back with you new IMO. Importantly, you allow VA to deny first so as to see why they feel you’re not entitled. This denial rationale can then be incorporated into the new IMO to rebut obvious errors or poor medical rationale. I try never to give VA an opportunity to decide a new nexus in the first instance.

I’ve seen every nexus trick in the book to dance around that failure to read the claims file. You never win a case by denigrating the VA’s nexus jockey. You win it by submitting a superior one in every respect. You will never see a QTC c&p DBQ denial that cites to peer-reviewed articles to support its denial. Never. It’s so easy to beat it’s embarrassing.

Granted, your legal brief has to have some mustard on it. Fortunately for us, the IQ of VA litigators, for the most part, is borderline competency. Being able to enter the parameters into the M 21 and have it spit out a denial replete with rationale is not a sign of mental prowess. It’s a simple menu choice on a computer  with “AI”. Since they are not taught 38 CFR, you’re speaking Greek. They have to go to an elder for edification as to what it is you’re saying. Phonics is not in their lexicon.

I learned early on in 1989 that merely reciting your ‘history’ with no supporting evidence is a waste of time. Hell, go down to a VFW bar if you want to get an idea of what the definition of history is. Everybody there claims to have been in Vietnam-in combat- with bad guys-and wounded but the PH/CIB/BS w/V never caught up with them before separation. The place is wall-to-wall Special Forces on Saturday nights. Too bad they don’t have to carry their DD 214s in their wallet so you can call them on it.

The teaching moment here is simple. Evidence is the beginning. An IMO must have declarations that the claims file was reviewed and that the author has never met the client. Cites to peer-reviewed medical articles puts the chicken in the pot. VA uses the “data and conclusions” method with no supportive rationale. Your IMO doctor must demolish them without being rude. Never let your IMO doctor stray off into VA law and say it’s their opinion your Vet deserves a 40% rating for ___________ in his/her opinion. Bad form. Keep it strictly to a medical opinion. Your job is to write the killer legal brief.  Bon chance.

P.S. For those who are squeamish, I’d avoid the video below.

Posted in IMOs/IMEs, Lawyering Up, Nexus Information, Tips and Tricks, VA Agents, VA Attorneys, VBMS, VBMS Tricks | Tagged , , , , , , , , , , , , , , | 3 Comments

ILP CHICKEN DINNER WINNER–HALLOWEEN TREAT

Posted on October 31, 2020 by

Me and Randy at the Gilead HCV conference in 2015. Healed at last. And no, I’m not fat. That’s my gut hanging out of my diaphramless belly.

Greetings fellow VA trick-or-treaters. I don’t have a lot of claims like these because, well, it’s pretty hard to collect 20% of a greenhouse or a sleep number bed from VA on a holdback. It’s even harder to get any attorney or agent to take Voc. Rehab claims or appeals because you can’t keep the hired help paid or the lights on. I’m guessing  VA pukes know this and revel in the knowledge. Or they do right up until they see my name on the POA.

Randy and I are part of the original Win or Die Hepatitis C Vets or HCVets. We met when we were both living under a death sentence from our Hep C virus. I reckon we figured it’d be a cold day in hell if we won but even if we died before we cut trail, we could sure make life unsavory while we were still fogging up a mirror. Randy filed his VA Independent Living Program  (ILP) request shortly after I did mine. He’d read all I’d published about it, my travails and denials and my eventual win in September 2015. Little did we know that win was going to be a short-lived phenomenon. Bait-n-switched me they did. Yeeessss. Pissed I was; mmmmm. I had an ironclad ILP plan in place for a 24X28 foot greenhouse with a killer hydroponic setup that shriveled back into a 15X20 Earl Scheib speshull with no lights or running water. It came on a truck and they dumped it where told to. Not.

Why it took five more years for the Randallmeister to get his sleep number bed is an interesting story. Pop a cold one and kick back. When I was in Laos, I found a stack of body bags awaiting txport south to their hamlets of origin was mighty comfortable on my young, bony butt when I ate lunch It beat the pants off the landing gear wheel on our O-1. Our military arrangement with General Vang Pao of the Hmong forces was inviolate. Anyone who was KIA got a guaranteed return ticket to their ancestral village for a big funeral. Which explains why there were always a stack of them waiting for return flights south on wherever passed for a departure lounge. The guarantee didn’t specify when, however. I usually had to use a smidge of Vick’s Vaporub on my upper lip or the aroma would dampen my appetite. I’m not sick or demented. War was an interesting phenomenon.  You folks probably won’t have anyone to sit on so just go ahead set on a chair.

The VR&E folks in Denver began ponydogging Randy and sent his request for a therapeutic tilting bed  over to the Denver VAMC “bed committee”. I reckon they sent his request for a walk-in bathtub to the “Walk-in Bathtub Committee” too. One gal, a ARNP, didn’t get the email and actually signed something on a Friday morning in August saying ol’ Randy would be right as rain if he got this magic bed. Monday afternoon she got called into the front office and had to denounce her Friday pronunciations as pure heresy and repent. The penance was to call Randy up and say the Bed Committee had convened and found Randy’s claim wanting. All that took a year or so. Then he came to me looking for a repair order.

I wasn’t accredited yet so I referred him over to an attorney friend who will remain nameless. He got Randy his 100% P&T but somehow forgot to make sure Randy’s bed and tub were stapled to the VA Form 9. Yep. The Judge granted the claims for the Hep C and residuals but nary a word was said about the VR&E request.

Poor Randy called up the chowderhead case manager in Denver and inquired after her parentage and if she’d checked with Ancestry.com© as to any wolf lineage. What the hey? Folks are finding out they’re 1/1024th Cherokee Indian all the time. At any rate, I guess the idiots felt pretty bad but they did crank out a SOC and prep it for FEDEX™ to D.C. It arrived in early 2018. But, of all things, they granted his walk-in tub request there in Denver- under the SAH umbrella. Installed it they did. Yes.

Now, you can understand Randy was getting a mite bit miffed at this intractable bed appeal delay. He kept pestering both his attorney and the BVA to expedite this due to administrative incompetence. Finally, he called me and begged me to take it back and file a POA on his behalf. I guess that follows ‘the idiot in the bush is probably more adept than the idiot in hand’ adage. As his friend and a fellow HCVET, I couldn’t say no.

Right. You know me. I can’t sit still. I’m like an ADHD kid at the movies. Ricochet Rabbit has nothing on me. I have to keep litigating. It’s like picking at a scab until it bleeds. Call me Edith-Lot’s wife. The only difference is even if I look back, I don’t turn into a pillar of salt. All these years, I’ve attacked VA claims from the ultrasimple perspective of go get a nexus letter. To a hammer, everything looks like a nail. My immediate take was to suggest we get an IMO from my good friends at Mednick saying my boy would maximize his activities of daily living if he had a sleep number bed.

Two things happened. The appeal was heard and the VLJ chickened out.  He remanded it for a c&p to find out how disabled Randy was. The VA VR&E rocket spechullists  had forgotten to send the CER and CWINRS files to DC so the VLJ had no idea they had already given him the walk-in tub. Worse, the VLJ’s primary objective of the remand was asking for a SOC on the tub. This couldn’t have gotten any more screwed up if we’d gone out and bought a  pet goat from some guy named Hogan.

redact BVA Remand

But… remember that IMO that said Randy really really needed that bed to maximize everyday living? That was submitted in the 90 day window and had a waiver of review attached to it. It was visible in VBMS. That remand hadn’t touched down more than a week before I kited a email off to Ms. Becky, Randy’s VR&E wunderkind counselor who been riding heard on the VHA’s Bed, Bath and Beyond® committees. Having access to VBMS includes the VA Outlook email function along with the VA Rolodex of everyone and I do mean Everyone.  Sure enough, Becky hit like a Smallmouth Bass in June. She dug my number out of Randy’s efile and called me up at the crack of 0700 Hrs Friday. My email had explained the fallacy of such things as bed and bath committees and Randy wasn’t going in for any more c&ps. He was P&T.

This is too cool for school. Ms. Becky says “Hold the phone, Ramone. We’ve decided we’ve already wasted too much time and money on this and VA felt it was far more reasonable to just grant the bed claim and move on. OK?”. Right. And I reckon that IMO had nothing to do with this sudden come to Jesus moment. Cool beans.

redactWinner 10302020

So, this is the second time the mere threat of an IMO, let alone a pending one in the BVA wings, provoked the VA pukes to “see reason” and surrender. Whatever. A win is a win. I expect ol’ Ms. Becky is going to soil her underdrawers when she sees the bid we were asked to obtain. She said she’d set $6 K aside for this project. The Randster sent me over bid #1 for $9,300 before tax. And that’s with the Vet discount! Throw in the headboard and footer and it’s $11,186.54 out the door.

redactAdj. Bed QUOTE_20201031

Boy howdy. I can’t wait for Monday.

Stolen Valor dude. Busted.

Posted in IMOs/IMEs, Independent Living Program, VA Agents | Tagged , , , , , , , , , , , | 2 Comments

2020 FALL NOVA CONFERENCES (VIRTUAL)

Posted on October 24, 2020 by

For the same reasons I don’t like videoconference hearings before VA Judges, so, too, I abhor what I just suffered through the last two days. NOVA’s legal conferences are scheduled for various parts of the United States in order to allow litigators across our fruited plains the opportunity to attend without denuding their wallets. If your practice was in Portland, Oregon, you could have attended daily without the added costs of a hotel. Ditto San Antonio, Las Vegas or San Diego etc. on any given year. Sadly, I don’t wish for any in Seattle-ever. It’s an embarrassment of the nth degree. When I moved here after the Vietnam “conflict” (as VFW called it),  Seattle was the Emerald City. No one should be forced to step over the homeless as they defecate and shoot up drugs outside the front door of your hotel. As for Portland, all I can say is we were fortunate the “peaceful protestors” didn’t arrive until months later.

Part of the charisma of a NOVA conference is the camaraderie and networking. Where else can you run into the big names in the VA legal arena? Where else can you greet a CAVC Judge in person and shake their hand?  Or a high muckitymuck VA representative there to spew their propaganda? Sorry, Rod but every picture doesn’t tell a story. I had no idea Ken Carpenter was shorter in stature than Robert Chisholm. To me, they’re both absolute giants in the VA litigation colosseum. Where else but in the hotel bar at 9 PM can you meet Mr. Bart Stichman of NVLSP fame and have him offer to buy you and your cupcake a B&B apertif? And have another couple next to you say “Whoa! You’re asknod? GTFOH! (or something to that effect)”. It makes you feel famous even if you aren’t and never will be. Asknod is that blowhard Vet blogger who was born on April Fool’s Day. I’m the Jedi knight of the pair.

In short, NOVA conferences not only teach you new techniques to win your claims but pitfalls to avoid on the way there. In 2015, Cupcake and I attended our first one in what was formerly San Francisco before it completely succumbed to outdoor sidewalk camping and the use of  gutters for outhouses. I was dumbfounded to meet legendary litigators who treated me as an equal and asknod as a knowledgeable voice for Veterans. Each year, I look forward to meeting both old and new members and trading war stories. One of the most frequent phrases I hear is ” Jez, you’re just never going to believe this one…” Boy howdy. I thought I had been given the bum’s rush for 27 years until I heard some of their folks’ stories.

The Department of Veterans Affairs demands we obtain a certain number of credits for continuing legal education (CLEs) every two years in order to keep our accreditation. Woe betideth any Agent or nonattorney practitioner who lets his or her accreditation lapse. Perish the thought. I guess, for that matter, these requirements apply to VA attorneys in some respects. We all have to have a CLE in Ethics every two years regardless.

I noticed yesterday that there are three (3) Veterans Service Organization members on the rolls. I’ve run into one old DAV boy at several conferences. He looks like a fish out of water. Consider the dichotomy. Most VSOs consider us slightly above whale shit. I’ve been called a VA ambulance chaser by the AMVets poohbah here in Tacoma. All I did was go in and politely ask if they might give me a client’s file or make a copy of it to aid me. Fortunately, with VBMS, I no longer have to suffer that kind of indignity.

What is sad is that our NOVA membership is not nearly as vast as I’d prefer. We hight well over 600 members which sounds robust. It isn’t by a long shot. In truth, at any given time, there are 3 million Veterans seeking compensation -and conversely desperately seeking our employ. While there are thousands of VSOs out there, the sad truth is they have little or no legal training. What’s more, if they do excel and become shining exemplars of VA jurisprudence, they are often admonished to quit being proactive and helping their clients. Well, that or the good ones become inundated in Vets seeking them. Remember always the Congressionally mandated mantra of a VSO is to “help the VA adjudicate Veterans’ claims. That’s a far cry from a VA-accredited attorney/Agent’s prime directive. We are required to represent our Vet to the utmost of our abilities and can be either sanctioned or disbarred for doing anything less.

I think the best example of this was a BVA decision I read a decade ago when I was earning my spurs. A VSO (I disremember which but they’re virtually 6 of 1 and half a dozen of another) at the BVA was arguing for a rating of 10% for tinnitus for each ear. The VLJ was polite as pie and explained in excruciatingly monosyllabic words why that was right out due to the Secretary’s regulation limiting tinnitus to 10% bilaterally. If we tried this stunt, we’d be frogmarched out the door in short order.

NOVA attorneys and agents have been accused of cherry picking high-dollar claims and ignoring horribly complicated time alligators. I disagree. If my experiences are any comparison, I would dispute that. I’ve taken on pro bono claims for R1 and made nothing off them-$0. But then I’m lucky. I don’t have an office in a high rise and a slew of administrative employees with desks and computers so I can do these. I’m fond of one fellow litigator’s rebuttal of that cherry picking view. Face it, cowboy. You’re not going to have much luck trying to hire Perry Mason to fix your traffic ticket.

NOVA attorneys do this day in and day out. Most, but not all,  are focused solely on VA law-not a catchall practice of ambulance chasing and SSA with a side of VA thrown in. Agents, of course, are limited solely to VA law. As such, we are all very well-versed in how to interact with VA bozos (be nice). I’m not insensitive to potential clients but my talents are wasted on a Vet who is seeking SC for tinnitus and hammertoes. It would be like seeking out a Ferrari mechanic to tune up your VW bug. It makes far more sense to refer them to a VSO for these claims. My practice is almost exclusively aimed at my fellow Vietnam Vets dying from AO. I do Hepatitis C claims for terminal Vets because I was once one myself. In sum, due to our small numbers, NOVA attorneys and Agents are the most useful for Vets who have difficult viable claims and have been disenfranchised for decades by ignorance of the system and poor legal counsel. Think of it as Triaging on the battlefield. Finding and convincing a practitioner to take your case is no small feat. Now, perhaps by reading this article, Veterans better understand why.

The Fall 2020 virtual NOVA conference, while valuable for learning new techniques, was, to me, more akin to a videoconference with sketchy reception instead of a face-to-face Travel Board hearing.  I also can inhale bonus knowledge sitting in the bar listening to Amy Odom and Robert Chisholm discuss the ins and outs of TDIU over single malt. In the same vein, since I’m a one-man band, I like to scout out qualified fellow litigators willing to take my immense overflow. This website attracts many Vets seeking-nay- begging for representation. I feel it is my duty to try to refer them to a willing, qualified practitioner who can win their claims. As for cherry picking,  always remember most all of the attorneys have a humongous student debt from doing 7 years of college before they can hang their shingle out. Throw in the up front hard costs of a storefront and electricity and you’re going to find some extremely skeptical lawdogs who want to make sure they aren’t investing in future inland Pacific Ocean waterfront property in Merced or Lodi. Sure, the San Andreas Fault is like totally for sure bound to calf off the western portion of California into the ocean…but when?

As of today-101 VLJs…

Vet attorneys have to pay their bills just as you and I do. In some respects, an agent is a far better prospect for a long shot claim. I have about 10 Vets in this category. I wish I had the ear of someone famous like Lt. Dan who has the deep pockets to aid Vets in their claims. I dream of a well-funded law practice that did pure pro bono law and kicked ass whilst taking names. I surely don’t aspire to run it but it would be the cat’s pajamas for disabled Vets who cannot get any traction. I expect they’d uncover a few Leroy MacKlem-style CUE claims every year and infuriate the VA.  Now that would be a daisy. Shucks. Va screws up everything they touch so this would be like fishing with DuPont spinners.

NOVA booklearning

I don’t mean this to be a depressing article. I just enjoy the old-fashioned NOVA venues where adult beverages lubricate Veterans Law and facilitate teaching way more attorneys and agents (the conferences-not the adult beverages). In Vietnam and that elongated country at the westerly-most terminus of the DMZ, we often observed what in polite circles nowadays could best be described as a “target-rich environment”. There simply was no dearth of things to bomb, strafe or nape every day. VA jurisprudence is no different. The proof is in the pudding. Excluding Extraordinary Writs of Mandamus, the CAVC reverses, vacates or sets aside 74% of all appeals that come before them. This flies in the face of the oft-claimed 98% accuracy rate touted by Fearless Leader Wilkie. Rose-tinted sunglasses are de rigueur for this statistical feat. Quite simply, if you do not appeal, your denial was “correct”. Call it a default setting statistic.

Right. So here we are in the middle of a pandemic and many find themselves un or underemployed. What the hey? Why not begin a new adventure in defending VA Vets? Shoo doggies. I didn’t know the difference between 38 CFR  and 38 USC in 2008. I’d never heard of CUE. I have no Juris Doctorate. The odds of me getting a handle on this and winning anything were like the Powerball Lotto. But here we are. Pretend you’re an Army Vet. Be all you can be. I guarantee you’ll sleep like a baby and never have a nightmare doing this. What’s more, with a NOVA membership, you’ll have an Army at your back helping you and free advice for the asking. Cool beans, huh?

Hopefully this corona beer thing will pass and we’ll all meet for NOVA in Ft. Worth next spring. That ought to be a hoot. I have more clients in Texas than I have common sense that I’ve taken on over the years.  I hope to meet some of them  while I’m there. Cupcake and I might just decide to do it as a road trip as we did in ’16 to San Antonio (via Loughlin). That’s reinventing social distancing at a whole new level-with no masks for the most part.

Be safe. Don’t forget to vote (yeah like that’s going to happen). Happy All Hallows’ Eve to you all. Be polite. Practice walking on water instead of making waves. Onward thru the fog. Vote for Oat Willie. Amen.

Here’s some more wishful thinking…

Posted in 2020 Fall NOVA (Virtual), Corona pandemic, Corona virus, Food for thought, Humor, Lawyering Up, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VA BACKLOG, vA news, VBMS, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW–10/15/2020

Posted on October 14, 2020 by

Good afternoon Pilgrims. I hope this finds everyone armed and dangerous with their votes ready to be cast. I’m told this year the admonition is to Vote Early…and Often. And here I thought you only got one vote. Naw. Just kidding. I don’t live in Chicago. We received the ballots for Cupcake’s dear departed parents for years but never even thought of trying to submit them. I can’t think what that would gain you other than an all-expenses paid vacation at the Greybar Hotel. I cotton to what my mom told me when she was alive-You should only appear in the newspaper three times if you’re a man-birth, marriage and death. It was four for ladies (debutante ‘coming out’ ball). Boy howdy did that term ever metamorphose over time. I reckon it’s three or less now.  But that’s not why I called you here.

Jerrell  lined me out for tomorrow afternoon/evening’s show several weeks back. I forgot to announce it until just now-Adult Hyperspazzed-out Disorder(AHD). Fortunately, in this new electronic jungle, we can thump the drums and get pretty good coverage in short order.

For the show, I’d like to discuss several different litigation strategies VA raters have been handed of late which ignore the law. I use the term ‘handed’ to mean it has been enunciated quite clearly to the little people by the Big Kahunas of the VAROs across the Fruited Plains that they need to do their part to trim VA’s profligate, wanton spending of compensation funds. With the corona shutdown, it’s not like they have a lot of other things to do besides Faceplace©. Hence I’m seeing and hearing about a lot of these.

Here’s the gig. VA sends you a proposal to reduce. With Kung Flu afoot and the USPS running on empty, your notice doesn’t arrive for about two weeks after the date stamp on VA’s “proposal”. You don’t think much of it until a week later and by then you’re screwed. Even if you’d acted the day you got it, you were charcoal. 30 and 60-day suspense dates are suddenly flexible, arbitrary and entirely meaningless. In the instant case I show you here, the proposal- if you could even characterize it under that misnomer- was dated 9/17/2020.

redact 9-17-20 proposal

I spotted the launch of the reduction dated 10/2/2020-a scant 19 days later. What’s even more atrocious is my client didn’t receive the letter before the reduction. I spotted it in VBMS and had him supply the requested information two days later (9/19/20). I can even see his submittals timely uploaded in VBMS. All for naught. The denial has been completed and nothing- not even my request for reconsideration under M 21-1 III.iv.7.B,3(a), has been acknowledged. Whoa. Don’t laugh. I use the M 21 denial manual when dealing with VARO bumpkins. They can cite 38 CFR but cannot read it. It’s like Greek… or Klingon.

redact reduction 10-2-2020

Yep. I, too, find it incredible the VA can “pack” that many assurances into their own missive and then promptly ignore them 19 days later. Welcome to the new AMA VA.

Now, you can fight fire with fire and pad the VBMS with wallpaper which no one at VA can ignore (technically). Once you insert it, it’s poured in concrete and promptly mislabeled as “third party correspondence”.

redact filed reconsideration 10-07-2020

Nevertheless, it’s embedded. If they don’t respond, I’m learning to broadside them with a 20-0996 Higher Level of Review (HLR). The VARO pukes at the DROCs are now getting mighty hoighty toity and refusing to allow so much as a legal brief to explain the need for an HLR. Thus, inserting the legal brief into the record technically dodges this. Not. Nothing after the Rating Decision is looked at. You have to beg them to call you and then attempt to explain it in monosyllabic words with lots of ‘ya know’s interspersed. You’re lucky if you can garner 10 minutes to do this so you better have your cites at finger’s reach when Victor Alpha rings you up.

I let the VA Bozo know the legal brief is in the VBMS file even if he’s going to refuse to look at it. It’s like old Lot’s wife Edith who felt compelled to look over her shoulder to witness the destruction of Sodom and Gomorrah and turned to a pillar of salt.  I’ve noticed this propensity among doctors at QTC and LHI at c&p exams. I think they’re all a bit insecure and want mutual validation. After all, they claim to “practice” medicine-not “perform” it.  If you take an IMO into a c&p and hand it to them, they try to beg off but will accept it. A lot of times it will reverse their rush to say your ________  isn’t service connected.

Another trick I have up my sleeve is to ferret out the HLR Officer by his notes in VBMS. I can look his email address up and bombard him with even more stuff if he cuts me off short. I always claim it’s my Tourette’s Syndrome and apologize. I don’t have Tourette’s diagnosed by any other than Cupcake, though. I learned in Laos that it was far easier to call in Nape with a side of CBU 26-49s and apologize afterwards for my indiscretions. Emergent situations require special treatment.

H hour tomorrow is 1900 Hrs on the East side of the mountains and 1600 out here in Leftland.  The phone number is:

(515) 605-9764

 

If you wish to speak to us, please push one (#1) to activate your microphone.

 

Posted in Appeals Modernization Act, Exposed Veteran Radio Show, Exposed Vets Radio Show, Humor, Tips and Tricks, VA Agents, VARO Misfeasance, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 4 Comments