Put on the skillet, slip on the lid,
Mama’s gonna make a little short’nin’ bread.
That ain’t all she’s gonna do,
Mama’s gonna make a little coffee, too.
What an auspicious day for a Decision Review Officer (DRO) Hearing. I wonder if the Seattle RO realizes the significance of the date? Scheduling it on the birthday of the man many hold up as the essence of truth itself is very appropriate. But that’s not all he’s gonna do. Butch’s gonna make a little coffee too.
I apologize for my absence here. I had a little surgery that kicked my ass. I dislike writing when high on painkillers so I desisted and tried to heal. Like Ahhnold, I’m baaaaaaack. Butch and his wife have waited a long time for this day in history to unfold. As some of our readers may recall, Butch’s wife Barb, the perennial packrat, saved Butch’s Special Court Martial dated October 15th, 1969 wherein Butch stated under oath that the combined effects of a traumatic brain injury, combined with defective, untreated vision and hearing problems, contributed to his addled state and prevented him from appearing for work at the appointed hour. This lead to the Special Court Martial and Butch’s new digs at the Presidio’s Graybar Hotel for several months, reduction in rank from E-4 to E-1 and forfeiture of all pay. That was a pretty severe Butchslap considering Barb was somehow expected to support their now 10-month old daughter and busy carrying number two. The Army seemed to be inured to her suffering. After release from custody, the separation physical showed a PUHLES rating of E 3 for rt. eye and H 2 for hearing-either one of which would have disqualified him from any more service prior to the Court Martial-let alone after.
The short’nin’ bread we’re planning on preparing with coffee on the 22nd is especially rich in calorie content- including glossy 8 1/2 X 11s of Butch’s bunker the day before he got clobbered. I always expected the VA would accept the Court Martial testimony as evidence in and of itself. I really never figured it would be discounted as “non-medical records proving nothing” and given short shrift. That’s what this is beginning to smell like. However, all you wannabe law dogs and pro se defenders of the faith are going to love this added mustard on the hot dog.
Imagine this. Butch arrived back at Letterman Hospital, having been evacuated from Army Hospital Camp Zama (Japan) on February 27th, 1969. Inexplicably, he arrived there with absolutely no records of his prior hospitalizations at the 312th Air Evac Hospital at Chu Lai, the 95th Air Evac Hospital at Da Nang nor the Camp Zama records. Usually they tucked them into your stretcher somewhere or handed them off to the Medivac crew on your Freedom Bird. Nevertheless, the records appeared lost and gone forever.
Being a thorough investigator, I have always advocated Veterans seek out all the possible places any of their records can be-just in case. I’ve even resorted to using my secret weapon-Congressman Kilmer’s VA sleuth. He can find a fart in a snowstorm at the National Archives. The most obvious place, of course, is the National Personnel Records Center (NPRC) in St. Louis, Missouri. Somehow, Butch’s CONUS evacuation records made it into the NPRC a long while after he filed as he left service on April 7th, 1970.
7/13/1973 fire that consumed anything you ever went back and asked for-even if you served after 1973!!
What’s probably most amazing is that it’s too late to call up the NPRC and have them declare those records were consumed in the Friday the July 13th, 1973 fire. His claims file only consists of the Letterman General Hospital records which means… wait for it… all those NPRC records are what we VA advocates gleefully refer to as 38 CFR §3.156(c)(1)(i), (3)(4) records- or more commonly described in the regulation as “service department records that existed and have never been associated with the claims file.” As such, they are the De Lorean time machine to go back to 1970 and begin anew. I had hoped that VA would consider the Special Court Martial as a §3.156(c) record but their sudden desire to offer an almost immediate DRO hearing with the promise of a subsequent decision by the Decision Review Officer beginning the very next day smacked of a railroad job and a predetermined outcome prior to the actual hearing. When VA says they’re eager to expedite, it usually means they’ve reached a decision beforehand. The hearing is merely a formality prior to sentencing and the inevitable Texas Necktie Party.
Now, add to that the fact that the Assistant VARO Director, Cesar Romero, called me personally last week to apprise me of this sudden opening of a DRO hearing date and the willingness of the DRO to adjudicate it post haste and you have the makings of what we call the VA’s Short Line Railroad. VA has never been magnanimous in their gestures unless it means certain defeat. With less than ten days now, they cannot possible retrieve the records and readjudicate it sooner. Even were they to do so, they would be corralled by their very own regulations.
Simply put, VA is required to look at the new records we’ll be introducing showing extensive surgery, debridement of SFWs, closure of the largest wounds, injuries to both eyes and the presence of numerous minute shell fragment wounds with minute retained foreign bodies. If VA had followed their own regulations in 1970, Butch would have been awarded a severe rating (40%) for each muscle group affected ranging all the way from his face (Muscle Group (MG) 23 all the way down to his right and left upper thigh (MG XIV). For the record, that’s about 10 MGs @ 40% including the right arm and right and left hands, lower back, rib cage and pelvis. In addition, they’ll have to consider his unanswered informal claims mentioned at the 1970 C&P examination regarding his tinnitus, hearing loss, otitis media, blurry vision (traumatic cataracts plural), retained metal fragments to the right eye, earaches and headaches. All these are part and parcel of the traumatic high explosive event with extreme acoustical trauma he suffered that night at LZ Cork.
VA was so callous as to ignore the claims he did vocalize on the 21-526 such as the SFW to his head where a large (2.9mm) retained foreign object still resides in his temporal lobe area. Ignorance might be bliss but the VA was required by their own regulations to thoroughly investigate his injuries with neurological/psychiatric exams and x rays to discover the truth. Absent the records from Chu Lai forward, they were able to rate him strictly on the residuals of the shell fragment wound scars and little more. Everything Butch said was considered hearsay or lay testimony unsubstantiated by the 38 USC §1154(b) combat presumption. The last note appended to his CONUS evac records from Camp Zama was the most telling- “Purple Heart Not Awarded This Station. “ The most compelling of evidence that might have substantiated his testimony lay buried in St. Louis for forty six years until we unearthed it.
Click to enlarge
I expect the introduction of the new and material evidence is going to roll down some socks at the hearing. In addition, I’ve requested a VA doctor be present for a visual inspection of Butch’s injuries, the innumerable retained foreign objects which keep surfacing creating new painful scars and the the muscle atrophy et al. One of the codicils in 38 CFR §3.103(c)(2) allows you to request a VA physician be present to visually observe and read into the record what he sees and observes. He isn’t allowed to touch you with so much as a stethoscope. The inspection has to be purely visual. It will be extremely damning to view this in retrospect and the physican’s remarks and explaining how/why VA ended up giving him only a 10% rating for MG VIII for muscle impairment. Old, healed SFWs from 1969 with scars do not look like the above scars in 2017.
§ 3.103(c)(2) Procedural due process and appellate rights.
[I]n cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.
Each individual muscle group affected must be rated separately and added-not combined. VA is required to rate any muscle group with retained metal fragments at a minimum of 10% unless there is demonstrated x ray evidence of multiple minute retained metal fragments indicating intermuscular trauma. In that case, it is rated as severe. Period.
Talk about stepping on your necktie. Here’s a sample of the menu of whazzup for the 22nd.
After talking with a Veterans Law Judge friend, I decided to hold back the Camp Zama records on the off chance the Seattle VA is not dealing in good faith. It wouldn’t be the first time. We can always introduce them at the BVA on appeal if necessary. Considering the fact that Butch has been disenfranchised for nigh on 47 years, I suspect we have a good case for advancement on the docket under Rule 900. In any case, they’d be forced to grant with the introduction of the new and material evidence from Camp Zama anyway. It gives a whole new meaning to being in the catbird seat. If that isn’t enough, we have about another 150 pages of BP, temperature readings and diet records from Camp Zama and the 95th Air Evac at Da Nang.
But then, we haven’t even begun to talk about SMC and Equitable Relief… that’s another chapter. How much do you reckon Butch and Barb spent on medical for those four kids alone and what it cost to raise them?