VAROs–LOOKING FOR ‘LOSE’ IN ALL THE WRONG PLACES

Boy howdy do I love litigating. I read recently that VA litigators experience a lot of angst, depression and despondency. I guess I get some of that when your Vet is dying and you’re just hoping to get it done so he can pass on with less worry. I won one like that last year. Bob passed on July 1, 2018. I got Seattle to grant 100% (but not P&T) on the 19th of June. It’s a battle for DIC now. We’ll win. We always win. Today I write of two dissimilar cases but with the common thread of inept misconstrual. The first is a bald attempt to shitcan a Vet’s appeal we’ve been nursing along since 2010. He began in 1986 and carried the water to 2010. I began helping around then. Before I could be accredited he signed with a NOVA friend. Charlie is retiring and handed him back to me. The second is a daisy. VA is trying to insist my Vet is an inmate in a Texas jail and illegally collecting more than his truncated allotment of 10%.  

Johnny Vet #1

Here’s the chronological fact pattern for Johnny Vet #1.

Jimbo (name changed to protect my ass) enlisted in the Marines and went to Vietnam as a grunt. It was pretty bad. A friendly airstrike took out a bunch of his buddies. He came pretty close to getting his name immortalized on the Wall in DC. He signed for a second tour but burned out at 20 months in country. Eating a hurried lunch sitting on the body bags of your buddies can do that to you.

He came home and spent a lot of time on the sixth floor (psych ward) of the new VA Medical Center in Seattle. By 1990, they had him on elephant doses of Thorazine… and about 15 other tranquilizers just to slow him down to 78 RPM.

Then the seizures began due to drug toxicity. So he filed for seizures secondary to his SC 100% Bent Brain. Pretty simple and inextricably intertwined. Harris v. Derwinski had just been decided so he was covered-right? Not. Seattle, on remand from the BVA to issue a missed SOC for the seizures, denied Jimbo and insisted he file a VA 1-9. Jimbo got the 60-day letter about 120 days later. His VVA rep had split for parts unknown. Jimbo knew a little VA law and figured he didn’t need to file yet another VA 9 so he wrote them a 4138 love letter explaining this. They took that to be a NOD objecting to them closing his appeal out as untimely. And off to the horse races they went. Jimbo filed about 10 more 4138s before he zoned out. Seattle kept rope-a-doping him until he gave up.

He kept filing for seizures through the decades and finally one last time in 2010.  And lo, one day in 2014 on appeal again, a VA examiner actually looked at his DD214 and noted he had a Combat Action Ribbon. Bingo. The Combat presumptive under §1154b kicked in and they gave him seizures for 100% effective on his filing date of 2010…but due to TBI.

He filed a NOD for the earlier 1990 date on a 4138 April 6th, 2015–just twelve days after the VA revamped §3.155. This meant he now had to use a VAF 21-0958. I got him lined out on that just in time and he refiled on April 20th, 2015 with just nine days to his one year suspense date. The VA accepted the NOD and it’s all there in the VBMS.

In March 2016, they suddenly said “Hold the phone, Ramone. The time to object to your 1990 appeal expired June 6th, 1992.” So, he filed another NOD objecting to them closing out his legitimate NOD from the April 28th, 2014 100% grant. Are you lost yet?

My attorney friend took over in late 2016 and tried to cut the Gordian Knot the VA had tied. He finally gave up on a formal DRO review and opted in to the RAMP program in January 2018 and asked for a HLR decision.

VA got around to this in March 2019-a year later(so much for Rapid). They mulled it over for a month and closed out the original legacy appeal because-hey- your appeal can’t be in both places at once. Now it was an AMA Higher Level of Review claim. VA promptly declared they could not do it in HLR because it wasn’t a compensation claim but rather an earlier effective date claim which was not in the HLR purview.

So they closed out the AMA HLR and poof. Jimbo’s  2015 NOD evaporated into thin air.  This is where I began sharpening punji sticks and fetched a shovel. I tried to get traction with my Supergirl  Change Management Agent  Tina here in Seattle. No dice. The Veterans Service Center Manager in Winston Salem VARO refused to budge. They were not going to fix it. I emailed a few hand grenades to Kimberley and let her know I was preparing the Extraordinary Writ. I also cc:’d Wilkie and the Head of the Appeals Management Office now called the Appeals Resolution Center (ARC). Mr. McLenachen was out on summer vacation and I got one of those “I’ll be back in the office on 8/12. If you’re thinking of committing suicide, please don’t.  Call Marge instead at (202)366-1234.”

So I bided my time. About August 5th, Kimberley finally returned my email and said “So I guess it’s too late to stop the Ex Writ. I reckon we’ll see you at the CAVC.” I sent another mail bomb over saying “Negatory, Kimbo. I’m just waiting for the ARC boss to weigh in.” And the next morning he  cc:’d “We’re looking it over.” This morning, I see a brand new EP 171 announcing Jimbo’s NOD of 4/20/2015 is legit and the suspense date for some Action Jackson on this baby is 8/25/2019. That’s only fair. Christ. The NOD is now four years and four months old. Problem solved thanks to the miracle of the VBMS. It tells you who owns it. And it has their phone number, too.

On behalf of the Asknod Corporation, my thanks goes out to Mr. McLenachen for being a man of his word. Two and half attaboys for cutting the  Winston Salem Gordian knot.

Johnny Vet #2

Johnny Vet number 2 was inches away from finally getting a five-year-old claim for Agent Orange presumptives from Thailand. We Thai Vets don’t get the AO presumptive regardless of what you heard. That was the Navy pukes who scored this spring. We still have to win them one at a time the hard way.

So I wake up one morning last week. The Claims Queue shows a transaction occurred. I see it’s Johnbo but instead of a 100% grant for Prostate there’s a prison report in Johnbo’s VBMS Documents section. Seems Johnny was arrested for peeing in a park in Texas back in 2010 out in the quasi-open. He got a misdemeanor ticket and was released the next morning. The charges were dismissed when he explained he had prostate cancer secondary to his military service in Vietnam, Laos and Thailand. As he was frequently incontinent, he tried to surreptitiously “let a little bit out” near a bush. There were no outhouses and it was about ten at night. Go figure America’s finest in Blue were out on a faggot perp patrol.

Check it out. Johnny Vet 2-2 redact

I had him call the White House Hotline and report that he just found out the prison report was in his VBMS efolder. I’m guessing those gals who work there at the telephone bank in West Virginia have heard everything. I bet it plum rolled down their socks to look in there and see he was right!

Well, faster than you can say Jack Robinson in VAspeak, I saw a note in there this morning that they had somehow figured this whole mystery out. Jimbo had never filed for anything until 2014. So he wasn’t collecting 60% while living the life of Reilly in the __________ County Jail for the last 9 years. No harm, no foul. Just a slight delay of eight days for nothing. Nonadversarial, you say? I don’t see it. Daddy used to say excuses are like assholes. Everybody has one and they stink. They were shopping for dirt which is against the law in the 56 Regional Offices across our fruity plains.

 

And that’s all I have to say about that.

 

Posted in All about Veterans, AO, Duty to Assist, Earlier Effective dates, Electronic Filing of Evidence, Humor, NOVA Attorneys, RAMP Appeals (AMA), SOCs and SSOCs, TBI, Tips and Tricks, VA Agents, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments

HADIT.COM RADIO SHOW THIS PM

Good afternoon, campers. Jerrell has asked me to once again join him and his merry band of Veterans on his Blogtalk radio program tonight. As usual, I am honored to be able to pass on my fractured faery tales of VA misdeeds and ways to surmount their foibles. 

 

Today’s show will discuss Independent Medical Opinions (IMOs) and ways you can obtain these letters without having to relinquish your firstborn male child. I was recently ostracized by a fellow VA litigator last week for what I surmised as offering my IMO services for far less than his. His argument was severely disjointed and I had a hard time with the run-on sentences and dangling participles. I finally asked Cupcake if she could decypher his bent.

My IMOs are authored by a group of doctors of various medical fields who work with Mednick Associates. The owner, Adam Taranto, is now a personal friend. He tries to help Veterans as cheaply as possible while still eking out a living. In this endeavor, he has succeeded beyond his wildest dreams. As I have mentioned, his doctors are able to do this for $1,500. In addition, they will opine on secondaries to the primary illness/injury at no extra charge-within reason.

Mednick’s last IMO for Hepatitis C and it’s residuals also included cirrhosis, esophageal varices and ascites (fluid buildup in the abdomen) at no extra charge to the client. The fellow VA litigator, who will remain nameless, feels I do the profession (VA attorneys and Agents) irreparable harm by charging such a paltry fee. What can I say? I feel it would be avaricious to mark up the cost of something I have no hand in. Moreover, if the fee is $1,500, that’s what I will charge-even if it upsets some of my fellow litigators.

As it is, when a Veteran approaches me for representation, I don’t ask for a bank statement of his checking and savings accounts. Many don’t even have $1,500 to pay for the IMO. In those instances, I pay for it myself out of pocket and ask for it back when we win. I have yet to have any renege on the fee.  But then we’re talking about Veterans-folks who agreed to serve their country knowing full well they risked bodily injury doing so. Seems they’d be stand up folks who wouldn’t sky out on a debt.

We’ll talk about that and anything else you callers dream up today. Showtime is 1600 Hrs on the westerly coast and 1900 Hrs on the easterly stretch.

The call in number is

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

Thank you-all of you-for your service. I know that grates on your ears when some VA puke says it but I mean that genuinely. By the same token, I thank all you who have entrusted your claims to me and allow me to represent you. It’s a great honor and I do not take it lightly. As most know, I always answer or return your calls. I sure don’t want to gain a reputation akin to that of a Veteran Service Officer. Perish the thought.

Be there or be poorer for it. Here’s a link to the show:

https://www.blogtalkradio.com/haditcom/2019/08/08/hadit-podcast-with-guest-speaker-alex-graham-aka-asknod

 

 

 

Posted in 100% ratings, All about Veterans, Appeals Modernization Act, Humor, Independent Medical Opinions, KP Veterans, Lawyering Up, SVR Radio on hadit.com, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law | Tagged , , , , , , , , , | 2 Comments

VA SUPPLEMENTAL LANE–BEEN THROUGH THE DESERT ON A HORSE WITH NO NAME

Fort Fumble, Georgia

Thank you Smoke. I needed a good tag line. A lot of us suffered for years in the era of Non A, Non B Hepatitis before they isolated it and gave it a real name. And, much like finally giving something or someone a name, an Independent Medical Opinion gives your Hepatitis C a name.  In VA jurisprudence, we call it service connection and with it comes a VA compensation check. Now for the back story on this horse with no name.

David and his wife began fighting in October 2014 to attain service connection for this beastly disease. Even after listening to me on Hadit.com radio shows and reading my offered advice, they were unable to come up with that killer Independent Medical Opinion (or nexus letter) that put this thing in the bag.

They had their representative file the opt-in to a RAMP Higher Level of Review (HLR) to  get a quicker win back in 2018 March. As fate would have it, their VSO rep. forgot to file it. This is one of those silver lining things but I’ll get back to that later. They kept going and all of a sudden it wasn’t a RAMP HLR at all but the BVA. Nobody explained it to them. Their rep had been fired about the time the RAMP opt-in was supposed to have been filed.

Fast forward to about 4/10/2019. David’s spouse called me and begged me to take this before it went up on the rocks. It went up on the rocks on April 16th, 2019 when the BVA Veterans Law Judge affirmed the denial of service connection. Unbeknownst to me, I filed the POA and it kicked in on 4/30- a wee bit late to help them.

We NOVA attorneys and agents just got the most detailed briefing available in March at the Nashville Conference. The new process is virtually untested at the moment.  The AMA is brand new. There is little data to study on success/failure vs getting a rapid decision on using the supplemental lane. There is endless conjecture whether VA would honor the AMA’s promise you can take the denied appeal back to the Regional level and file a supplemental claim with new and relevant  evidence-like a killer IMO. This avenue allegedly lets you avoid the Motion for Reconsideration at the BVA (which would easily take a year just to agree to a new decision) or the same one-year path to the CAVC but with no new evidence allowed to be entered. Much like untested ice, no one who walked out on it has come back to tell us if VA was lying -er- peeing on our collective leg and telling us it was raining. Looks like we’re good to go from this decision, fellow litigators.

My clients sometimes don’t last five years so I try to get the benefits awarded asap. The fee is not the reason we do this. With the new AMA, and the implication I could take the BVA denial to the Supplemental lane, win for the client … and preserve the effective date of October 2014 seemed like a bait-and-switch thing with more Catch 22s than a military enlistment form. To think I could pull off this gig in fourteen days was sheer effrontery. Look up ‘slow’ in the dictionary and there’s an 1899 picture of Gen. Custer’s widow holding up her pending 1876 claim for DIC.

So with great reservations, I launched a Supplemental claim on July 5th for reopen of Hep C due to jetguns and all the other risks. I submitted my brand new IMO from the medical wizards at Mednick Associates and 14 days later-i.e. today, July 19th- the narrative and the confirmed ratings sheet came out for 100% permanent and total. I was sure one of two things would happen. First, they’d say “Yep, you proved it was service connected, David… but only as of 7/05/2019 when you sent in that new claim with the IMO”. The flip side was they’d say “Yep you won but the agent doesn’t get any dough because this is a brand new “supplemental” claim. Your 2014 legacy appeal is final.” Shockingly, I was wrong on both counts.  No, I’m not being cynical. The Legacy track isn’t convertable to the AMA after a BVA decision. Perish the thought that’s coming into your head.  VA has now spoken. The presumption of regularity posits that they can make no mistakes. Far be it from me to disturb this. We’re all taught to sit there and smile. I’ve learned how to smile while I eviscerate their asses legally. Remember, I have an ax to grind. VA insisted I never served in the Republic of Vietnam for almost twenty years(1989-2008). For the record, I served two tours back to back (5/1970 to 5/1972). And, unlike Senator Richard Blumenthal, I have plenty of medals to prove it.

Lastly, the silver lining in this VA claims cloud is simple. A VSO signed a RAMP opt-in form and failed to file it in January 2018. That failure unfortunately cannot be used against the Georgia Department of Veterans Affairs. They are lawsuit-proof. You can’t sue them for providing free quasi-legal advice and assistance.  However, it appears to have sufficiently shamed the VA into promptly adjudicating the instant claim we filed July 5th, 2019. David’s missus also called her Congressman which helped, too, I’m sure.

Here’s the opening brief and the VAF 20-0995 I used as a template for your own DIY or legally assisted claims:

Robinson filed 0995 for HCV 7-13-2015 redacted

And here’s the decision at 12:34:58 Atlanta Time today. What a wonderful thing to read first thing in the morning over coffee on Pacific Daylight Time…

redact 7-19-2019 100% P&T

And the BVA decision…

https://www.va.gov/vetapp19/files4/19129407.txt

Granted, my client was flashed for terminally ill. He’s my age and my generation. He served during my Vietnam War. He enlisted like me. He’d do this for me if he could. Of that, I have no doubt. Leave no one behind. Not on a Jungle Trail. Not on a Desert Trail. Not on a Paper Trail®. That’s Theresa Aldrich’ tagline, not mine. It evokes my sentiments though. And yes, David and his spouse found me on Hadit.com. We’re all in this together. NOVA is just the uppercase “A” in VA’s ICARE mantra.

So… take a good, long gander at the IMO we submitted above, ladies and gentleman. This is the ammunition you’ll need to win. You cannot submit a letter from your doctor that merely says ‘he got blasted with a jetgun ipso facto he got HCV from the jetgun.’ That will not put the chicken in the pot. IMOs are a medical art form most doctors do not comprehend. They mean well but writing a good nexus requires peer-reviewed citations much like the ones the IMO author referred to in the above IMO. You cannot use internet articles because they don’t have your name on them. Anything from Wikipedia is useless because anyone can post on it. BVA decisions are not precedential. You can claim HCV is caused by alien abduction on Wikipedia and it might stay on there for a week. That may be plenty of time to print up a copy before someone comes along and takes down your artful attempt at subterfuge but it won’t win the claim.

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

 

 

Posted in 100% ratings, Appeals Modernization Act, BvA Decisions, BvA HCV decisions, HCV Epidemiology, HCV Health, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 15 Comments

HADIT.COM RADIO SHOW THURSDAY 7/18/2019

Gotham City Commissioner Jerrel Cook has turned on the Batlight  on the roof of the headquarters of Gotham City Police Department. I spotted it and answered his call. It’s time for the Hadit Dot Com Radio Show again tomorrow at 1600 Hours Local on the Far Left-ward Coast, which is 1700 Hrs on the Least Coast, 1800 Hours in the great State of Texas, and Lord only knows what hour in Arizona, Mr. Cook and crew will allow me to teach you new techniques in the art of the Duty to Assist in the brave new Appeals Improvement  and Modernization Act or simply the AMA.

Most importantly, you will learn the “new” way of VA thinking about your claim(s), when you first filed them and what you filed for. And whether they even addressed all the claims. We’ll discuss how to navigate this maze of multiple-choice,  judicial disaster areas. If you aren’t careful, you’ll lose a lot of time refiling in the proper lane to get this ball rolling properly.

The call in number remains

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

Here’s a recording of the podcast if you missed it.

http://www.blogtalkradio.com/haditcom/2019/07/18/hadit-podcast-with-guest-speaker-alex-graham-aka-asknod

Call in and talk to us. Ask a question if need be.

 

Posted in All about Veterans, Appeals Modernization Act, Duty to Assist, Earlier Effective dates, Independent Medical Opinions, Inferred claims, Informal Claims, KP Veterans, Nexus Information, Obtaining a C-file, PTSD, SVR Radio on hadit.com, TBI, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

THE BVA’S “PURPLEBOOK”–THE LAST WORD ON STARE DECISIS

Every once in a while, either someone sends me a great article or a link to one. Once, I got the Army manual on the care and feeding of jetguns.  Nurse Silvia went one better and sent me a whole jetgun. Last night I received the BVA Purplebook,  known in decades past simply as the BVA handbook. It isn’t a Top Secret/Crypto For Your Eyes Only document, but then again it isn’t exactly well-known outside the BVA. In fact, the 2018 version below is one of the few known to exist outside 810 Denial Avenue NW. I’m waiting for BVA Chief Honcho Cheryl Mason to call next Monday and ask me to take it down under threat of losing my license to torment the 56 Puzzle Palaces across our fruited plains. 

Oddly, even VA Veterans Law Judges have been known to cite to it. I ran across it several days ago when one of my friends deep in the heart of Texas asked me if I’d ever heard of it. This was in relation to an interesting new CAVC appeal ( Docket #18-6798) which is only now at the appellant’s brief stage. It’s going to be a barn burner class action suit with a panel on Hypertension due to Agent Orange herbicide exposure. See https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom

Type in  18-6798 in  the case number/ range box.

As most of you know, the VA was expected to include several new service connected presumptives to include hypertension by June 30th of this year- now  three days past. Due to matters beyond the VA Secretary’s control (think Procopio), that isn’t going to happen. The entry of the Blue Water Squids (just out to the 12-mile limit, mind you) is going to create a dent in the VA compensation coffers and there will be no money left for merit pay for a while until Shulkin Wilkie gets a new budget in the next fiscal year.

The Purplebook is numbered identically as the M 21 which is a non sequitur. The  BVA, and every Law Judge I argue in front of, categorically deny they will accept the M 21 1MR as “law”. I have been interrupted in mid-sentence at oral briefing and told to convert the cite to 38 USC or CFR for the record. The Purple Book is essentially a compendium of precedence compiled by the BVA from the ever-evolving decisions of the CAVC, CAFC and the Supreme Court. Procopio is an excellent example of how Haas v Peake was rendered obsolete in less than 12 years. Karnas turned into Kuzma and so on. Law changes and so must the Purplebook.

The Purplebook is a primer for the slew of new GS 14 BVA staff attorneys-many of whom are arriving from law school with their new degrees and can’t even spell Veteran. Most Veterans do not realize that Veterans law is almost alien to most FNG law dogs. They’ve been taught nothing about this venue. When they’re hired, they have to virtually go back to law school and learn its intricacies from scratch. Unfortunately, there is no true law school devoted to teaching pure VA law in existence except here at asknod. Concepts like deferential treatment to pro se Vets, the benefit of the doubt and far more require reading 38 USC and 38 CFR to comprehend we are a sheltered class granted all manner of special considerations.

I caught a fleeting glimpse of this Purplebook mention in a February 2019 BVA decision here:

https://www.va.gov/vetapp19/files2/19113625.txt

and here in an April 2019 appeal:

https://www.va.gov/vetapp19/files4/19124345.txt

Subsequently, it appears that jurisdiction over the claims regarding
the migraine headaches was transferred to the RO in Des Moines, Iowa.  However, because this appeal originated from the RO in Waco and does not involve issues dependent on different law and facts, it will be the subject of this decision. See BVA Memorandum No. 01-18-04; VA Purple book 01-18-v1.0.0. Moreover, the Veteran currently resides
in Texas; hence, jurisdiction should be changed as appropriate.

After spotting it again in Mr. Johnson’s brief at the CAVC, it became a quest to unearth this “adjudications manual”. While the document, in and of itself, is probably not earth-shattering, it’s one more tool in the Veterans law tool belt. I see it more as a guidebook to measure how a VLJ will approach your decision. Will s/he bend over backwards to give you real justice or will s/he merely pay VA law lip service and merrily proceed to adjudicate the appeal as they see fit? At least this way you might find a piton to drive into a judicial crack and prevail.

I find it disingenuous to have a document like the Purplebook in existence and have no one the wiser of its application to VA law. It just seems sleazy and underhanded to hide it or to avoid disclosing its existence. In my mind, our claims process is stacked heavily against us as most Vets are ignorant of VA law.  For the BVA to obfuscate and dissemble to the VA lawyer or Agent is even more egregious. It sounds like a book about Barney the Dinosaur.

Please thank all of those who work at VA who feel we need to know as much as we can behind the scenes judicially.

Et voilà- the Purplebook, courtesy of a good friend who will remain nameless.

BVA Purple Book

I also placed it up above in the widgets for quick access.

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

Or, in the famous words of one Sgt. Shultz, “I know nuffink.”

Happy 4th of July and many more to all my readership

P.S. I’m flattered. I googled the term BVA Purplebook and it comes up with asknod. Funnier yet, someone attached the links to a post on appeals over at one of our competitor sites known to have VA Veterans Benefits Administration DROs as moderators . They also 86’d me after I asked too many questions about 6 years ago. The link was promptly erased to suppress any mention of  asknod, Fergoogle or the Purplebook.  You can still see it here in the screen grabs:

As you can see when you go to the link, it’s dead. The site’s censors are careful to eradicate anything I author that might be helpful to Veterans. Pro VA or Pro Veteran? We report. You decide. Ask yourself why any Veteran or Veterans website would want to suppress information which might be useful to  other Veterans.

click on this to enlarge it.

 

Posted in Agent Orange, All about Veterans, BvA Decisions, BVA Purplebook, KP Veterans, M-21 info, VA Agents, VA Attorneys, vA news, VBMS Tricks | Tagged , , , , , , , , , , , | 6 Comments

CAVC- BLACKMON v WILKIE–SHRINKS? WE DON’T NEED NO STINKIN’ SHRINKS.

Who else but Saint Margaret Bartley, of course.  This is an interesting read and will affect a large number of you who have been hornswoggled into a denial based on a Nurse Practitioner, psychologist (PsyD) or worse..a VES Certified Medical Assistant (CMA) bedpan changer. Worse, you probably blew right past it. That’s against the law at 56 Regional Offices across our glorious fruited plains.

Edited 6/29/2019 1240 hrs

Let’s cut to the chase. First, I’m surprised VLJ Ursula ‘the unmerciful’ Powell authored this one. She’s better than that. Second, there may be some harsh words between her and her pseudo-staff attorneys on how this one was developed. It’s not like they could rely on structured legal arguments put forth by Appellant Pete Blackmon’s law dog to build a grant in this decision. Hell, old Peter was pro se. He got the white gloves treatment at the CAVC. When was the last time you heard of a good pro se case at the BVA that prevailed without a killer Independent Medical Opinion?  Obviously, Judge Bartley’s staff attorneys are light years ahead of Powell’s. And, wonder of wonders, they get paid a shit ton more. The BVA has hired oodles of new sheepskins to wipe out the backlog. Instead of hiring a shit ton of Veterans Law Judges, they brought in FNGs  and are forcing them to do 70 claims a week (five days at Judicial Square). They’re getting GS-14 entry wages, not quality ES-00 pay for genuine hard work. That’s like $114 K a year with killer high rent around DC. In order to meet this grind, you have to take the work home to complete it. One of them emailed me and complained it’s a “Top Ramen” job- no time to eat and no money to afford it.

Our old friends the MK 82 GPUs. Few know we had to begin buying them back from Germany in 1968 for $900 a pop. We sold the bombs to them back in 1958 for $10 each-leftovers of the Korean Boundary Dispute.

Pete was a two-year incountry Vietnam Vet (68-70)  with real §1154b combat credentials-something BVA pukes would be wise to take note of. He managed to survive 5 mega stressors and finally got around to filing for bent brain in 2012. VA saw the light instantly and granted the PTSD. Like some of my clients, he came back in 2012 and filed for Traumatic Brain Injury. Seems like you get dinged up in war and unexpected things like explosions happen occasionally. Have you ever seen a 500 lb. Mk 82 go off nearby-like a quarter of a mile away (or less)? You can watch the concussion wave coming at you around 850 mph ahead of the sound. Trust me. It’ll roll your socks down and part your hair even if you duck. They dig a seventeen foot deep hole thirty five feet across. Most times, we dropped two at a time. They don’t always go off. Seems old Peter had a couple of these shake-and-bake experiences during his two-year fun-filled vacation. Remember, this is protected by §1154b. If you were stupid enough to go fight a proxy war and willing to die for “democracy” in the former Republic of South Vietnam, you are accorded the presumption of telling the truth. VA forgot about that.

VA denied Pete’s TBI claim and didn’t even see fit to give him a c&p exam. They made up for it by telling him some (or all) of his TBI shit was mixed in with his bent brain shit and to relax because it was all contemplated in his rating. Hell, they wouldn’t lie about something like this.

I love to argue that PTSD doesn’t give you tinnitus and headaches. Likewise I find myself arguing drug abuse doesn’t give you PTSD. It’s the other way around in spite of what VA contends. That’s always a chicken dinner winner on appeal. So… repair order #1- Give Pete another PTSD exam after two years of bitching, grant 100% disabled for the PTSD, pat him on the ass and send him home happy, right?  Well, ‘not exactly’ as they say at Dollar A Day Rentacar. Instead, VA used the old saw of “we reviewed your Service Treatment Records and see no mention of TBI in them during active service”. Well, duh. I doubt I could spell tinnitus let alone know it’s medical causation in 1972 after two tours and a few MK 82s that didn’t land anywhere near where we put our smoke. I knew I couldn’t hear shit again afterwards but that was beside the point. I’m not a doctor.

VLJ Powell and her merry band of acolytes did go Pete one better and say they actually couldn’t find any evidence of it in the STRs nor on appeal. They relied on the old saw that “VA’s duty to assist doesn’t require providing an examination in the absence of a current disability”. True enough but this is where they stepped on their necktie. Powell’s gomers  forgot the admonitions of McLendon Precedence:

The duty to assist includes providing a veteran with a medical examination and opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the
veteran qualifies; (3) an indication that the disability or persistent or recurrent symptoms of disability may be associated with the veteran’s service or with another service-connected disability;
and (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); Waters v. Shinseki, 601 F.3d 1274, 1276-77 (Fed. Cir. 2010); 38 C.F.R. § 3.159(c)(4)(i) (2018). Blackmon supra

They also forgot Congress’ §1154b codicil that whatever flows from a combat Veterans’s piehole regarding what happened is unassailable, unvarnished truth absent any mention of alien abduction. Reading comprehension is essential for the Trier of Fact in this legal business. Ignore it at your peril. You don’t just copy and paste it into a denial. It has to be more nuanced like “if the glove doesn’t fit, you cannot convict”.

St. Bartley accurately summed it it thusly:

“The Court concludes that the Board erred in its duty-to-assist analysis in two respects. First, although the Board appropriately cited the four McLendon elements, it did not correctly apply them. Notably, the first McLendon element is “competent evidence of a current disability or persistent or recurrent symptoms of a disability.” McLendon, 20 Vet.App. at 81; see R. at 5-6. The
Board found this element was not met because the competent evidence did not establish that Mr. Blackmon had a current disability, R. at 6-7; however, the Board appears to have overlooked that the first McLendon element could be satisfied with competent evidence of persistent and recurrent symptoms of a disability.” Blackmon supra

What if Pete didn’t exhibit the symptoms on the day he had the c&p? Does this condemn his claim to the ash heap of VA ‘s 98% correct, nonadversarial adjudications? Not in the least and here’s why, padewans:

” To the extent that the Board relied on the April 2015 VA examiner’s notation of no diagnosis of TBI following an interview and examination of Mr. Blackmon as competent evidence delineating his symptoms, the examiner, contrary to the Board’s characterization, did not assess whether he presented with a residual TBI disability, but instead indicated that her review of the available records did not uncover a diagnosis of TBI. Moreover, according to VA, the April 2015 examiner did not possess the requisite specialty to determine if Mr. Blackmon demonstrated TBI upon examination. Compare VA Adjudication and Procedures Manual, M21-1, III.iv.3.D.2.j (identifying physiatrists, psychiatrists, neurosurgeons, and neurologists as those examiners qualified to provide an initial TBI diagnosis) with R. at 679 (listing the April 2015 VA examiner’s specialty as psychologist).  Blackmon supra

And:

Second, although the Board acknowledged that Mr. Blackmon served under combat conditions, R. at 5; see also RO’s grant of service connection for PTSD based on combat stressors, it did not consider whether his statements regarding in-service events, under the combat presumption, would satisfy the second and third McLendon elements. See McLendon, 20 Vet.App. at 81; see also 38 U.S.C. § 1154(b). The combat presumption under section 1154(b) “reduce[s] the evidentiary burden for combat veterans with respect to evidence of in-service incurrence or aggravation of an injury or disease” by mandating that VA “‘accept as sufficient proof of service  connection . . . satisfactory lay or other evidence of service incurrence or aggravation'” of an injury or disease “‘if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service.'” Dalton v. Nicholson, 21 Vet.App. 23, 36-37 (2007) (quoting section 1154(b)). The combat presumption can be invoked to demonstrate not only that certain events occurred during service, but also that the disability occurred during service. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

 

Ruh oh, Rorge. This puppy’s headed back to  Ursula the Unmerciful for a do-over. I am having the same problem with my Vet at Fort Whacko, Texas. He was Dx’d with TBI finally- at 70%. He also wrangled a 30% for PTSD. A real psychiatrist gave him 50% for the bent brain on his NOD appeal. They continued to deny the headaches and tinnitus as not TBI-related right up until they got a peek at our IMO and then switched horses lickety spit when they read it. Of course, they tried the back door method of combining his TBI with the PTSD and effectively stole his brand new 50% rating (as well as the old 30% for it) in his SSOC. Pete’s problem is identical to Chris’. Chris’ doctors who did all this were psychologists, MDs and NPs-not psychiatrists. 

In spite of my calling Waco and explaining their screwup, they stand firmly behind their NPs, DOs and MDs. Now you know why it takes so long to win. I expect if the Petermeister had a good rainmaker, he would not have been caught up in this house of horrors for 6 years. But that is, as they say at Fort Fumble, pure speculation. Fortunately, he lucked out and drew St. Bartley instead of some others recently invested at the Court who seem to take a decidedly anti-Veteran bent. No names, folks. I have to practice there and do not want their  wrath to fall on me simply because of my contrary opinions.Remember, this whole gig is supposed to be nonadversarial- at least until we set foot inside 625 Indiana Ave. NW.

Congratulations, Mr. Blackmon. You should apply to the OGC for VA accreditation. You are a credit to all Veterans due to your stubbornness. A warm thank you to Judge Bartley and her merry crew for seeing through this travesty of justice and righting it.

Here’s the CAVC decision:

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=CaseSummary.jsp&caseNum=18-3011&incOrigDkt=Y&incDktEntries=Y

 

 

Posted in 1154(b) combat presumptions, All about Veterans, BvA Decisions, CAVC ruling, Duty to Assist, PTSD, TBI, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , | Leave a comment

Helping Veterans And Service Members: Tips For Loved Ones

Photo via Pixabay by Skeeze

Veterans and service members have played a big role in our country for many decades, defending our freedom and helping others as a way of life. Many individuals in the military don’t get what they need, however, when it comes to healthcare or financial planning. There are lots of resources out there for senior veterans and those who have served in various branches of the military, but it’s not always easy for them to find what they require. Fortunately, there are many things you can do to help your loved one get what they need to stay comfortable and healthy.

Figuring out healthcare can be complicated for senior vets, so that’s one area where you can help out. Look online to find out more about Medicare or senior benefits provided by the government, and look for the nearest veterans hospital so your loved one will know where to go when they need care.

Here are a few things to consider when you want to help someone who has served in the military.

Help them figure out healthcare

Healthcare can be extremely complicated for veterans to figure out, especially for seniors. Government benefits through the military require care via a veterans hospital, while Medicare requires care through a civilian healthcare provider. Help your loved one do a little research online to find the right doctor and to compare the pros and cons of each service.

According to MedicareAdvantage.com:

  • Having both types of coverage can give you more health care options. If you only have VA insurance, you are limited to receiving covered care only at VA facilities, but adding Medicare coverage can open up the range of hospitals, doctor’s offices, pharmacies and other types of healthcare locations in which you may receive covered care.
  • Having both types of coverage can benefit you in the event that an emergency occurs when you are not in close proximity to a VA hospital.
  • Most people do not have to pay a premium for Part A of Medicare.

Mental health

Veterans are often at risk for mental health disorders such as PTSD, depression, or symptoms associated with grief, so it’s imperative to make sure they are getting the right kind of care. Whether that means therapy or counseling, medication, or alternative treatments such as art therapy, helping your loved one find the relief they need for their mental health will allow them to feel better no matter what is going on in their life.

Assist with everyday tasks

Many older veterans have trouble completing daily tasks, such as grocery shopping or cleaning their homes. If your loved one has mobility issues or a health problem that makes performing these activities difficult, think about how you can help. Offer to stop by and clean up the kitchen, or bring over some groceries. You can also help them set up a delivery service for receiving all the ingredients and ready-made meals they need, which allows them to remain independent by enabling them to choose what they want.

Thank them

In many cases, veterans aren’t looking for gratitude for their service, but it always feels good to hear “thank you” after you have served your country. There are many little things you can do to thank a vet and honor them, from picking up their check at a restaurant to buying them a cup of coffee. You can also make a donation in their name to an organization that helps  Veterans and their families.

Helping a veteran comes in many forms, and it’s a personal choice. Think of  the best ways you can help the service members in your life when it comes to things both big and small, and keep them in your thoughts as you go about your own day. Remember that a little love and kindness can go a long way.

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