Every once in a while the stars align at the CAVC and incredible combinations of judges on a panel coalesce into a great decision. Throw in a reverse and remand to “Make it so, Numbah One.” and you have the stuff legends (and great precedence) are made of. Here we have one of those conundrums wrapped in a paradox. At which point does a lower extremity gain designation as  ‘loss of, or loss of use of”. Fasten your safety belts and keep your upper extremities inside the vehicle at all times. This is cutting edge precedence for the ages-old SMC L argument about just how disabled you have to be prior to the magic incantation of ‘loss of use’.

Take a gander at Jensen here

Some will look at Jensen as a purely precedential decision on Specially Adapted Housing (SAH) when in reality this is the newest razor-edge cutting case for a better definition of loss of use. The long, detailed legal path from the earliest days of SMC and SAH build a solid case of cites here we can now use to obtain loss of use of lower (or upper) extremities. I presently have two different claim appeals in this matter where VA is recalcitrant to grant an L for loss of use. One involves a mixed etiology of two diseases (brain anoxia and Parkinson’s ) superimposed on one another with neither apparently sufficient to merit the leap to R1 or R2. It’s nothing more than the VA’s setup straw man argument over pyramiding-i.e. “Well, if we give you 60% for thaaaaat, then we’d have to reduce the Parkinson’s because they duplicate the symptoms”. The truer argument is the enormity of both conditions catapults the Vet into R1 or R2 anyway.

The other SMC is a muscular dystrophy claim where the Veteran is wearing leg braces, Canadian crutches and inhabiting a wheelchair 95% of the time to perambulate but is still short of the magic loss of use metric in VA’s eyes since he can still waddle (stagger?) a short distance (less than 30 ft.). Remember, I once said VA employees’ ancestors were probably members in good standing of the Spanish Inquisition and invented some of those nefarious SM torture devices we see in those Toy stores. Here, the VA Secretary, in the persona of the Commander of the OGC, attempts to prestidigitate the words ‘such as’ into miraculous new meanings depending on which part of Part Three 38 CFR you are reading from.

Here’s the pertinent passage in 38 USC §2101

 (a)Acquisition of Housing With Special Features.—

Subject to paragraphs (3) and (4), the Secretary may assist a disabled veteran described in paragraph (2) in acquiring a suitable housing unit with special fixtures or movable facilities made necessary by the nature of the veteran’s disability, and necessary land therefor.

(B)The criteria described in this subparagraph are as follows:

(i) The disability is due to the loss, or loss of use, of both lower extremities such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair.

 The essential position taken by the Board and the Secretary is that the phrase “such as” in section 2101(a)(2)(B)(i) means “and.” In the Board’s view, had Congress been more clear, it would have written that a veteran is eligible for SAH if his permanent disability produces (1) loss, or loss of use of both lower extremities; AND (2) precludes locomotion without the aid of braces, crutches, canes, or a wheelchair. The appellant asserts that the Board erred by ignoring the plain meaning of the phrase “such as.” He argues that section 2101(a)(2)(B)(i) clearly conveys that a “loss of use” exists if a veteran’s locomotion is precluded without the aid of braces, crutches, canes, or a wheelchair.

This is the ages old VA semantics game of disjunction and conjunction. VA would just as soon banish the  disjunctive ‘or’ from 38 CFR  and end this nonsense once and for all. That’s what this one is in a nutshell. It is what I, the Secretary, interpret it to say… today… in this particular appeal anyway. Pssssst! Mary Ann. We can do that, can’t we?

The most apparent reason that § 3.350(a)(2)(i) does not define the terms found in section 2101(a)(2)(B)(i) is that those two provisions apply to different abnormalities. Section 2101(a)(2)(B)(i) sets the standard for awarding SAH to a veteran suffering from a loss of use of lower extremities. Section 3.350(a)(2)(i) defines loss of use of a foot. The term “lower extremity” may include the foot but also the entirety of the “lower limb.” DORLAND’S ILLUSTRATED MEDICALDICTIONARY (DORLAND’S) 665 (32d ed. 2012).

Here, we reach the meat of the Court’s disgust with the Secretary’s shape-shifting view of loss of use. Remember, the Secretary can alter his regulations but he is not at liberty to reinvent that which Congress created -i.e.  38 USC:

The provisions discussed above reveal that the Secretary’s proposed interpretation of
section 2101(a)(2)(B)(i) is the product of a rhetorical sleight of hand. He asks the Court to
determine that the term “loss of use” is severable from the words “lower extremities” in section 2101(a)(2)(B)(i) but not from “foot” in section 1114(l) and § 3.350(a)(2)(i), state that “loss of use of . . . foot” is the same as “loss of use” in section 2101(a)(2)(B)(i), and reinsert “both lower extremities.” The Secretary’s interpretation alters the statute rather than clarifies it…

If the Court were to define “loss of use” in the SAH context in the manner that the Secretary now suggests, it would in effect reinsert into section 2101(a)(2)(B)(i) a diagnostic requirement that Congress wrote out of that provision in 1959.

But when did that ever bother the VA? Remember how I  always refer to this business or ratings as the VA 3-card Monte set up? The Court has now refined the concept as “rhetorical sleight of hand”. I reckon that’s just Judge Coral’s fancy way of trying not to call a spade a spade.

All of you VA litigators out there sit up and take notice. There’s a cornucopia of useful cites in this panel decision to use for SMC L just to begin with. Watch for the Secretary to immediately publish some new definitions in the Fed. Register soon to erase these mistakes. Fortunately he cannot strike down the earlier Congressional machinations leading up to §2101 which address the thinking process that gave birth to the concept of SAH. Think Muscular Dystrophy claims, spinal cord, use of locomotion devices,  etc. The camel’s nose is now under the tent.

Here’s the meat of this:

“Where a court concludes that Chevron deference is inapplicable, the court proceeds with the task of statutory interpretation guided by the principles of Skidmore v. Swift & Co., 323 U.S. 134 (1944).” Cook, 28 Vet.App. at 340. Pursuant to Skidmore, the Court “may properly resort for guidance” to the Secretary’s arguments. 323 U.S. at 140. “The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Merry Christmas from the crew at 625 Native American Ave. NW. Our lives just keep getting better every day the Court is in session. Purdy soon it’ll be getting nigh on as easy as going catfish fishin’ with DuPont Spinners.

Posted in Independent Living Program, KP Veterans, Medical News, NOVA Attorneys, VA Agents, VA Attorneys, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , , | 6 Comments


Next to reversals, Extraordinary Writs of Mandamus always intrigue me. When filed by VA attorneys, they are generally a good read. When constructed as a class action suit to rein in the VA’s excesses, they are generally destined for immortality akin to Gilbert v. Derwinski or Chevron USA v Natural Defense Resources Council.

The gist of this one is simple. We, as agents and attorneys, are precluded from getting a peek at a Veteran’s preliminary “confirmed rating decision” (sans signatures). However, were we VSOs, we would be accorded this courtesy in an attempt to ensure fairness and accuracy to the Veteran in question. Let that sink in.

The advocates most likely to be aware of current statute and regulation are disbarred from the process simply because we are not a Veterans Service Organization representative. The VSO rep, who invariably knows little to nothing about VA law, is given free rein to peruse the document and make suggestions on the legality, effective date and much more in spite of their virtual inability to comprehend 38 USC and 38 CFR. This fustercluck has been accepted law for aeons and the VA Secretary ardently defends his policy.

The final wrinkle in the saga occurred when they allowed a real attorney in to review a decision recently. That broke the log jam figuratively and set the stage for Mr. Doug Rosinski, admittedly one of the finest VA attorneys to enter the practice, to pounce. And pounce he did.

CAVC 17-1117 is going to be a glorious piece of work. Imagine being allowed to sashay on down to the local Fort Fumble and inveigh on how the VA rater must have been raised by wolves to arrive at such a comedy of errors before it becomes set in concrete? This single change in policy could very well portend a sea change in how we, as Veterans, are rated.

The most obvious implication is that it could take years of appeals off the table by forcing the VA to do their job correctly the first time out rather than the present hit-and-miss system of endless appeals, lowballing, lost evidence, ad nauseum.

Not to be outdone, numerous amicus curiae are lining up down Indiana Ave. NW waiting to submit their two cents as well. All in all, this minor modification could very well eliminate the backlog at the Board of Veterans Appeals in short order. If we, as advocates, were allowed into the process at this stage, a lot of grief and error would be erased. In my own case, it would have saved me over eight years of litigation.

Of course, you just know who is going to raise a hue and a cry to be heard all the way to Congress. VSOs will try to argue that they are chartered by Congress and entrusted with all Veterans welfare. Why just look at their latest remodeling of the claims process called the Fully Developed Appeal for confirmation they have their head up their collective asses and are using their belly for a porthole. My apologies to any US Navy folk who are offended with my analogy.

We’re entering a new era of Veterans law. The Fed Circus recently accorded us the right to class action suits at the CAVC level and this will be the tip of a very large iceberg of same. Senator Alan Cranston,God rest his soul, led us out of the desert when he pushed for the VJRA so vociferously in 1988. It’s been an uphill battle in the ensuing decades but the volume and quality of the justice in the interim, not to mention the judicial tenor of the newer Federal Judges sitting on the CAVC has improved remarkably.

This one’s going to be a barn burner, I assure you. Bon appétit, Veterans.


Posted in All about Veterans, CAVC Knowledge, Extraordinary Writs of Mandamus, KP Veterans, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, vA news, Veterans Law | Tagged , , , , , , , , , | 8 Comments


This just in from our Brownwater contingent on the lower peninsula. I do so love humor.





Veteran killed by flying golf club

A group of Veterans playing a round of golf at the Veterans Administration golf course located at American Lake in Tacoma encountered a terrible mishap yesterday morning. Police are investigating this as a possible homicide but it appears possible it may have been an inadvertent accident. Witnesses’ reports vary widely but several factors are known.

Apparently, a younger group of four women Veterans were teeing off from the ladies tee on the first hole and one, a Ms. Vonida Trapes, was last to tee off. Trapes whiffed her drive and followed up with a five yard blooper. She addressed the ball again in front of the box and succeeded in topping it another ten or so yards.

In an apologetic response to the men patiently waiting on the men’s tee, she turned around and remarked

“ Excuse me. I guess all those f–king lessons I took over the winter didn’t help very much.”

One of the Veterans, 66 year old Lenny Watkins volunteered some moral assistance and tried to inject humor into the moment. His fellow members of the foursome contend that the comment was not very well received.

“”Well, there you have it. You should have taken golfing lessons instead!”

Seconds later he was struck violently in the head by Trapes’  3-wood. Witnesses vary in their narrative of how this happened. The ladies’ contingent maintains the club slipped out of Ms. Trapes’ hand in the middle of her backswing during her third stroke. The men contend that the club was purposely thrown and than Mr. Watkins, who was facing away from Ms. Trapes at the time, never had a chance to duck.

Funeral Services will be held next Saturday, the 21st of September at St. John’s Episcopal Church in Lakewood and interment will follow at  Tahoma National Veterans Cemetery in Kent, Washington at 1 PM with full military honors. Remembrances are requested to be sent to the United Way. Viewing will be all day Friday, the 20th, at Von Brock Mortuary in Spanaway. Mr. Watkins is survived by his wife of 46 years, Theresa, his three children and 8 grandchildren.


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Where to receive care? : VA and private hospital ratings

Frank forwarded a botched surgery US Today article to us about a one-star VA hospital in Memphis.  Here is the link to the VHA called “a house of horrors.” By scrolling down to can read how many “stars” VHA rates its hospitals.

Limited VA hospital data is now included on Medicare’s Hospital Compare search (LINK).

Medicare explains: (LINK)

 VHA has approximately 50 percent of Veterans enrolled in the healthcare system who are eligible for Medicare and, therefore, have some choice in how and where they receive inpatient services.

Medicare lists but doesn’t give stars to VHA hospitals.

Only two Memphis hospitals earned “gold seal” status (LINK) from the Joint Commission Quality Check (JCQC) (LINK), an accreditation non-profit.

US News Best Hospitals annual reports offer another good place to gather information before surrendering your hurting body to hospital staff (LINK).

They rate Memphis hospitals here but unlike the JCQC don’t give Selby/One Regional Health any kudos.  The rating standards are listed here.

US News doesn’t say much to say about Memphis VHA either (LINK).

Well, the moral of the story Frank forwarded is to do some research if you know you need hospital services and try to pick the best one for your condition.  If you are  geographically far away from a VHA, you may have some good private choices, whether Medicare/VA dual enrolled or not.  Even within the VA system, some hospitals do have excellent reputations with some conditions and you have the right to pick care elsewhere with your VA-PC’s referral.  There might even be a Fisher’s House nearby for free and comfortable housing assistance (LINK) during your treatment period.

So I would review and compare hospitals in this order:  the VA’s star system, the Joint Commission, US News report, and lastly Medicare.  One can’t prevent all the horrible mistakes made by hospital staff but you may be able to lessen the risks with prior research during a non-emergency period.

Click to see videos in 2015: Memphis staff leaves desk and floors for daily ; patient fed with no gloves.

A vet patient in Memphis VHA 2015 took some vids that ended up on Fox.   One doesn’t want to end up in this kind of hospital bizarre–one where bonuses are/were still handed out!  Click image to see his expose.

Posted in All about Veterans, General Messages, Guest authors, Medical News, Tips and Tricks, Uncategorized, VA Health Care, vA news | Tagged , , | 4 Comments

Hurricanes Harvey, Irma and veterans

Based on news reports, governmental and community responses to Harvey have been robust so far (LINK).  There isn’t much space between Harvey and Irma, and although Jose may not become a hurricane, it’s still worrisome.  It is no exaggeration or cliche to say that this hurricane season may be of (almost) biblical proportions.

Click to go to hurricane warnings at NOAA.

About 175,000 veterans in the Houston area enrolled in VHA out of  500,00 local veterans ( -LINK).  It’s hard to know how many of them have lost loved ones, pets, homes, vehicles, or businesses.  Some will have their benefits delayed, records misplaced or destroyed and numerous other extraordinary hardships and mishaps. The VA posts updates on their activities on the VAntage blog (LINK). Irma (LINK).  Harvey (LINK).

Promises, promises

“If you are a Hurricane Harvey affected Veteran and needing urgent care, go to your nearest provider and VA will take care of the bill – this is through Choice.”

Annapurni Teague, associate chief of staff for outpatient care, Michael E. DeBakey VA Medical Center  (LINK)

Time will tell.  Since enrollment is based on lower incomes for the most part, not on having served their country–as many in the civilian public believe–many vets in need of care can be turned away.

Everyone is at risk for serious exposure to toxins such as molds after events like this, especially if they attempt to remediate their homes rather than raze and rebuild. (USA Today story– LINK)

The City of Houston tracks daily mold and pollen counts.

Click to go to the Health department.

This brings to mind an important benefit for veterans eligible to be enrolled by VA health care:  Allergy testing and treatments.  Many large VA medical centers have allergy clinics and I assume that Choice will cover the services available at those VHAs.

Many veterans with private insurance have large co-pays, deductibles and/or treatment limitations or no coverage at all.  Medicare does not  cover allergy testing without medically necessarily indications. For a list of covered and limitations, this webpage provides a comprehensive list (LINK) of medical codes.

So stay safe and let’s hope for a continued compassionate professional response in the aftermath of Hurricane Season 2017 because hurricane fatigue may settle in as the weeks and months continue.  If anyone at Asknod has had allergy-related ( ex. bad mold issues) information or insurance stories to share, please comment!

Posted in All about Veterans, General Messages, Guest authors, non-va care, Uncategorized, VA Health Care, vA news | Tagged , , | 22 Comments


Oh girls, they wanna have fun

Bruce Almighty, our east coast Ambassador, and surely the asknod Ambassador of anything worth being the Ambassador of, sends me this conundrum. Paradoxes r us and we love to answer them.

Imagine this scenario.

It’s Fall. You set out afield and have a doe tag. Hell, in Georgia, unless I’m mistaken, they hand out deer tags for either sex like plastic beads on Fat Tuesday in New Orleans. Let’s choose another state such as mine here in Washington as an example.

Our aspiring hunter, holding said doe tag, inadvertently snuffs the 3-point buck just behind his intended doe because he misestimated the range and held too high. Now, to the burning question. Can our hypothetical hunter claim the buck wasn’t really a buck? Can he put forth a viable, post hoc rationalization that perhaps the buck always wanted to be a doe, but through no choice of his own he was born with the physical attributes of a male?

Perhaps this hypothetical buck associated almost exclusively for his three years on earth strictly with the opposite sex and indeed, was terminated in the presence of same. Wouldn’t an argument that, on the inside, this putative buck had always felt he identified more closely with other does? Could it not be said that any buck, in the virtual absence of social media outlets for deer to express their true sexual LGBQRST persona, and by virtue of their propensity to fraternize with other does, in essence was actually  a doe trapped in a buck’s body?

I’m just wondering if a body could get the game warden to buy that bullshit, because society and the Supreme Court already do.

Humor abounds here as most know.

Happy Labor Day.

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


Bruce Almighty of the Georgia clan recently sent me this thought-provoking article. I knew its contents but share them with you. I was born south of the fabled Mason-Dixon Line and am only too familiar with the War of Northern Aggression as we called it. No one mourns the loss of slaves. No one aspires to see the old South rise again from its ashes. Morons abound in this world. A flag does not a political statement make. A statue of Lt. General Robert E. Lee is not eternal testimony to slavery. A soldier, regardless which side he fought for, does not a racist make-then or now. 

As for kicking and spitting on antique, inanimate statues-let alone tearing them down- I fail to see the satisfaction gained or what political statement has been vindicated or refuted. As we’re fresh out of living Confederate soldiers to hang for their crimes, I submit we are now reduced to beating images of long-dead Veterans on equally dead horses-neither of which had any druthers on slavery. Welcome to the 21st Century.

Congressional Support for Confederate Soldiers

     At the turn of the nineteenth and twentieth centuries, a move in the North was made to reconcile with Southerners. President McKinley was instrumental in this movement. When the Spanish-American War concluded successfully in December 1898, President McKinley used this as an opportunity to “mend the fences”.
     On 14 December 1898 he gave a speech in which he urged reconciliation based on the outstanding service of Southerners during the recent war with Spain. Remember, as part of the conciliation, several former Confederate officers were commissioned as generals to include former Confederate cavalry general, Wheeler. This is what McKinley said:
    “…every soldier’s grave made during our unfortunate civil war [sic] is a tribute to American valor [my emphasis]… And the time has now come… when in the spirit of fraternity we should share in the care of the graves of the Confederate soldiers…The cordial feeling now happily existing between the North and South prompts this gracious act and if it needed further justification it is found in the gallant loyalty to the Union and the flag so conspicuously shown in the year just passed by the sons and grandsons of those heroic dead.”
     The response from Congress to this plea was magnanimous and resulted in the Appropriations Act of FY 1901 (below).
Congressional Appropriations Act, FY 1901, signed 6 June 1900
     Congress passed an act of appropriations for $2,500 that enabled the “Secretary of War to have reburied in some suitable spot in the national cemetery at Arlington, Virginia, and to place proper headstones at their graves, the bodies of about 128 Confederate soldiers now buried in the National Soldiers Home near Washington, D.C., and the bodies of about 136 Confederate soldiers now buried in the national cemetery at Arlington, Virginia.”
Remarks: More important than the amount (worth substantially more in 2000 than in 1900) is the move to support reconciliation by Congressional act. In 1906, Confederate Battle flags were ordered to be returned to the states from whence they originated. Some states refused to return the flags. Wisconsin still has at least one flag it refuses to return.
Congressional Act of 9 March 1906
(P.L. 38, 59th Congress, Chap. 631-34 Stat. 56)
     Authorized the furnishing of headstones for the graves of Confederates who died, primarily in Union prison camps and were buried in Federal cemeteries.
Remarks: This act formally reaffirmed Confederate soldiers as military combatants with legal standing. It granted recognition to deceased Confederate soldiers commensurate with the status of deceased Union soldiers.
[Editor’s Note: I might also add here that the opening ceremonies off every Sons of Confederate Veterans Reunion always include a welcoming address by the commander of the Grand Army of the Republic descendent organization…jim dean]
U.S. Public Law 810, Approved by 17th Congress 26 February 1929
(45 Stat 1307 – Currently on the books as 38 U.S. Code, Sec. 2306)
     This law, passed by the U.S. Congress, authorized the “Secretary of War to erect headstones over the graves of soldiers who served in the Confederate Army and to direct him to preserve in the records of the War Department the names and places of burial of all soldiers for whom such headstones shall have been erected.”
    Remarks: This act broadened the scope of recognition further for all Confederate soldiers to receive burial benefits equivalent to Union soldiers. It authorized the use of U.S. government (public) funds to mark Confederate graves and record their locations.
U.S. Public Law 85-425: Sec. 410 Approved 23 May 1958
(US Statutes at Large Volume 72, Part 1, Page 133-134)
     The Administrator shall pay to each person who served in the military or naval forces of the Confederate States of America during the Civil War a monthly pension in the same amounts and subject to the same conditions as would have been applicable to such person under the laws in effect on December 31, 1957, if his service in such forces had been service in the military or naval forces of the United States.
     Remarks: While this was only a gesture since the last Confederate veteran died in 1958, it is meaningful in that only forty-five years ago (from 2003), the Congress of the United States saw fit to consider Confederate soldiers as equivalent to U.S. soldiers for service benefits. This final act of reconciliation was made almost one hundred years after the beginning of the war and was meant as symbolism more than substantive reward.
     Additional Note by the Critical History: Under current U.S. Federal Code, Confederate Veterans are equivalent to Union Veterans.
U.S. Code Title 38 – Veterans’ Benefits, Part II – General Benefits, Chapter 15 – Pension for Non-Service-Connected Disability or Death or for Service, Subchapter I – General, § 1501. Definitions: (3) The term “Civil War veteran” includes a person who served in the military or naval forces of the Confederate States of America during the Civil War, and the term “active military or naval service” includes active service in those forces.
Researched by: Tim Renick, Combined Arms Library Staff, Fort Leavenworth, Kansas. Member: Brigadier General William Steele SCV Camp 1857.
Gee, does this mean we have to tear down all those Union statues too? The Washington Monument and the Jefferson Memorial? How about we impeach Gen. U.S. Grant posthumously?  Where will it end? Idiot’s delight. 
 Post Script: I found this on FB by one Debbie Warren:

Your history lesson for the day.

Robert E Lee was married to George Washington’s granddaughter. He worked with Grant during the Mexican-American war and became a decorated war hero defending this country. He believed slavery was a great evil and his wife broke the law by teaching slaves to read and write. After the civil war he worked with Andrew Johnson’s program of reconstruction. He became very popular with the northern states and the Barracks at West Point were named in his honor in 1962. He was a great man who served this country his entire life in some form or other. His memorial is now being called a blight. No American military veteran should be treated as such. People keep yelling, “You can’t change history.” Sadly you can. This is no better than book burnings. ISIS tried rewriting history by destroying historical artifacts. Is that really who we want to emulate?
As they tear down this “blight” keep these few historical facts in your mind. No military veteran and highly decorated war hero should ever be treated as such. This is not Iraq and that is not a statue of Saddam.

IN ADDITION:: Lee was also very torn about the prospect of the South leaving the Union. His wife’s grandfather, George Washington, was a huge influence on him. He believed that ultimately, states rights trumped the federal government and chose to lead the Southern army. His estate, Arlington, near Washington DC was his home and while away fighting the war, the federal government demanded that Lee himself pay his taxes in person. He sent his wife but the money was not accepted from a woman. When he could not pay the taxes, the government began burying dead Union soldiers on his land. The government is still burying people there today. It is now called Arlington National Cemetery. DO THEY WANT TO TEAR THAT UP ALSO ??

Posted in History, vA news | Tagged , , , , , , , , , , , , | 12 Comments