NOVA–THERE’S NO BUSINESS LIKE VET BUSINESS

Cupcake- Spring Toga 1981

Just as Spring approaches and everyone is planning their Toga Parties, I, and other like-minded Veterans Advocates descend on the Spring Conferences. What? You guys don’t do Toga Parties? How utterly uncivilized. At the NOVA conferences, we learn new tricks on how to set up blind ambushes, invisible Punji Pits and the proper deployment of assets. How fun is that? Well, probably way less funner than  going to WallyWorld™ for most Veterans. So much to learn. So little time. Having an F4 Metavir Score is not to be confused with being a Chicken Dinner Winner so I want to make the most of what I have left. 

Imagine being given a Super Power like Capt. America or Thor. Well, that’s what the VA Power of Attorney is. It’s like walking in and flashing your badge. Whoa there, cowboys. Not so fast. Did you Miranda him? Didn’t think so. May I have a moment alone with my client?

Then imagine getting to do this for Veterans. Is that too cool for school or what? Shoot, if I could clone myself and teach others, we could spread out across the fruited plains and wipe the VA out financially. I know. That’s counterproductive if you’re a bona fide tax-paying citizen but if you want to dress up like GI Joe and go play in someone else’s sandbox, there’s bound to be collateral damage. Appropriating funds for disability compensation should go hand-in-hand with 5.56 and 7.62mm procurement. Since they never do, the Govt. has enabled VA to “underserve” us. But… they forgot to plug the slot in the complaints box. In 2007, Congress allowed attorneys to stick their noses under the litigation tent . This also created a niche enterprise that allows non-attorney practitioners and VA agents to engage in H&I from 0800-1630. Seriously, dude. You get to dress up like Perry Mason and have all the same super powers given to someone with a shiny new Juris Doctorate-along with a crushing student loan of $225,000 @ 12% interest. Boy howdy. Like Beto O’Rourke said yesterday, “Man, I was born for this job”.” Ten years ago, I spent 58 days in ICU. They nicknamed me Mr. Defib. I had no idea you can still hear them when they yell “Clear!” Weird, huh?  I’m ready for this, now. I even have my own defib unit on-board, too. Gee, I wonder if I’m supposed to yell ‘Clear’ when it goes off. Not likely. I’ll be doing the chicken at 30,000 joules. Chances are I won’t be saying shit either.

You don’t have to belong to NOVA to go to these conferences. If you just wanted to attend as an observer or student, they have a special rate for that, too. The more advocates we have, the more Veterans we can help. There are three million plus Veterans out there with disabilities ranging from 0% to 100%. Trust me when I say they are not being served very well under the existing system. To me, the crime is no one at VBA is proactive-even at  VHA hospitals – unarguably the first line of encounter for gravely ill Veterans. There ought to be a huge 14-point type at the top of the intake form that says:

PLEASE FILL OUT THE FOLLOWING BELOW

  • Would you like to apply for benefits today?                               [  ] Yes    [  ] No
  • ”                              ” establish an informal claim at this time? [  ] Yes    [  ] No
  • If already service connected, is this related to it?                     [  ] Yes     [  ] No
  • Do you have a VA representative?                                               [  ] Yes     [  ] No
  • Attorney  [  ]     Agent [  ]    VSO  [  ]   Next door neighbor  [  ]
  • Should we contact him or her?”                                                   [  ] Yes     [  ] No

I’m finally beginning to notice more folks are capitalizing the word Veterans as they should have long ago. I certainly hope that will be the norm before I pass. Thank you- all of you- not just the VA and some of their incredible CMA employees. I want to thank all of you who allow me to help you. It’s a wonderful feeling and a great honor to be entrusted with such a task.

And lastly, that burning queshun on everyone’s lips.

Posted in 2019 SPRING NOVA Nashville., All about Veterans, CAVC Knowledge, Complaints Department, Future Veterans, Humor, Important CAVC/COVA Ruling, Inspirational Veterans, KP Veterans, Lawyering Up, NOVA Attorneys, Tips and Tricks, VA Agents, VA Attorneys, vA news, vARO Decisions, VARO Misfeasance, VBMS Tricks, Veterans Law, VSOs | Tagged , , , , , , , , , , , , , , | 1 Comment

asknod MENAGERIE + ONE

LZ Grambo will have a FNG after we get back from Nashville NOVA. Cookie (I prefer Pickles) will be weaned o/a my birthday on 4/01. We will be bringing her home then. She’s a silver Lab Retriever and loves my earlobe. 

Ladies and gentlemen, meet our new baby.

Don’t let those eyes fool you. She’s going to be vicious.

Posted in All about Veterans, Humor, KP Veterans, VA Agents | Tagged , , , , , , , , , | 13 Comments

2019 NOVA–I KNOW… IT’S ONLY VA LAW BUT I LIKE IT.

“Would ya think the boy’s insane?… He’s insane.

Yes, kids. About this time every year, I have to seek warmth for my Lumbago and my tired soul. Cupcake is my caregiver. This year the doctor prescribed a two-day dose of Nashville Tennessee for my NOVA Continuing Legal Education , or CLE “credits”. Yep. You read that right. Sounds like something  lawyers would dream up. Learn law and enjoy good single malt scotch. Meet Jedi Masters. Always husband your resources and your assets. Learn about your AO from others’ experience. I’m more a Rolling Stones guy but Country is Cupcake’s cup of tea. I expect she’ll pack her cowboy boots.

The Spring Solstice NOVA is two parts learning, one part socializing and one part networking. There’s always lots of business cards flying around. There’s usually a CAVC Judge in attendance. It’s a hoot. You actually learn things or at least the why of things. With VBMS access, you really only get an insider’s view of how VA thinks-or forgets to. At a NOVA conference you meet others who encounter similar situations and react differently.  VA sends their USBs, Directors of C&P or the BVA’s Head Honcho VLJ who regale us with tales of unicorns and gold at the end of the rainbow. Being civilized, we refrain from calling each other names.  I notice the VASEC has never darkened NOVA’s door yet. This year it’s VLJ Cheryl Mason, Chairman of the BVA and David McLenachen, the director of the Appeals Management Office (AMO), formerly the AMC (and a wealth of other names like the Black Hole. or the Maelstrom of Edgar Allen Poe fame).

I nabbed a few pictures of the hoedown from the Sheraton’s site so I’m not purloining them for fun or profit. Pretty fancy but the chow hall is on the roof ? Arruuhh?

The best part is for last. After the conference, Cupcake and I are driving down to Georgia.  We’ll finally get to meet Dustoff Bruce “Almighty” McCartney and my good friend Shirley Medders and her family.

Check this one out…

 

P.S. Here, Vicki. Judge Davis in 2017 in San Antonio. I ‘d guess it will be one of the new ones. I’d give my eye teeth to meet my three-time  CAVC Greenhouse Ex Writ Judge  (Bartley). She’s NVLSP old school like Amy Odom and Bart.

Posted in 2019 SPRING NOVA Nashville., All about Veterans, KP Veterans, NOVA Attorneys, VA Agents, VA Attorneys, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

BVA–MORE DECISIONS…AND BE QUICK ABOUT IT, MIND YOU.

Ah, St. Nicholas est mort. We poor naive Veterans have been cheated, been mistreated, and just when we think Congress has finally heard our plea, we discover we didn’t get what we paid for… again.   Not only that, we-that Veterans group that can now file class action suits-  are being led to the gates of the BVA on a high-speed path to slaughter adjudications. Read on.

My good friend, former BVA Veterans Law Judge BJH, now a distinguished attorney in private practice with some of the keenest minds in the Veterans litigation world (CCK), sent me these links this morning. I found it on Google news about 8 minutes before I  began examining his email tea leaves and chicken entrails.

Say it ain’t so. Well, it merely confirms what a Court of Veteran Appeals Judge said about a decade ago that it appeared at least 75% of all BVA decisions were in error requiring remand or reversal. VA has an interesting way of “witching” statistics. In the instant case here, claiming 94% accuracy is fools gold and unfounded. 98% is right out.  I’d compare it to my first wife. She was obsessed with being skinny but loved the carbs. This led to some creative baseline measurements from which future increases were computed against. Git that?

How about if someone (like your spouse as an example) is down at the beach with you and said ‘I weigh 3 lbs less than I did when I first went on the two-week diet to slim down 10 lbs. a month ago’.  Quite obviously, my first big mistake was to attempt to figure how you divide a two week diet into a month. The second one was to open my mouth and use it to vocalize words instead of breathe in deeply….”So, how much do you weigh now?” The answer was “Well, I still have four lbs. to go.” Have you ever heard that rattle on a big ol’ 8 year-old sidewinder just before you step on it… in the dark?  The feeling of the ground starting to give down under you into the Punji pit?  Yep. 4 lbs. That’s the magic number. You just accept the statistic and move on. Nothing to see here, folks. Just some ordinary BVA statistics. Move along.

For years, Under Secretary for Benefits Allison Hickey assured us that the new 125-day miracle Fully Developed Claim (FDC) had an unparalleled, shiny 98% accuracy. See the similarity? Speed. Efficiency. Guaranteed results-but notably never so much of a hint of blowback from a DRO review, the BVA or the CAVC. If you remove ‘error’ as a setting or default, the success statistics come up dramatically, too. The operative word here is “rework” as in “The BVA returned it to us with a rework order. CEST  (Claim ESTablished)it with a EP 020 (new claim).” See? 98%…eventually. Or hell, just call it a new claim!

A year or more ago, Judge BJH told me he was being tasked with churning out 1.5 claims per day based on a five day work week. Before he left, this requirement was creeping up to contend with the 600,000 + backlog developing. Whether it had reached 2 or 3 decisions per day is immaterial. The new metric, with the exact same number of 90 Veterans Law Judges, will be tasked with producing 25-30 completed decisions per week with no corresponding increase in staff attorneys. Boy howdy does that just piss all over employee morale. Reminds me of that Lucille Ball vignette working in the Bon Bon factory. Better yet, it also conjures up visions of a huge, 25-oar Roman Trireme Warship rowed by slaves and some dude with a bull whip. The USS Vermont Ave. NW.

 

Well, anyway, here’s the wild and woolly story of how bean counters can make an elephant disappear up it’s own derriere.  Either that or the BVA Empress is clothed in invisible finery.

The Hill:

https://thehill.com/opinion/national-security/432196-when-the-va-misrepresents-performance-veterans-suffer

Quality Review of Mass Adjudications:

https://dho.stanford.edu/wp-content/uploads/bva-main.pdf

And Stanford Law Review- Due process and Mass Adjudications: Crisis and Reform

https://dho.stanford.edu/wp-content/uploads/CrisisandReform.pdf

If we weren’t shaking like a leaf on a tree before, we ought to consider taking a Protein Pill and putting our helmets on. This is going to be bumpy. I joked that they may need about 39 CAVC Judges pretty soon. I think I may have underestimated. One thing’s for sure. Pretty soon, them fellers are going to need a far bigger Courthouse than the 9th Floor of 625 Indiana Ave. NW. Come to think of it, valet parking would be nice, too.

 

Posted in All about Veterans, BvA Decisions, BvA HCV decisions, BVA records tampering, BVA Referrals, Complaints Department, DRO and BVA Hearings, KP Veterans, VA Agents, VA Attorneys, VA statistics, Veterans Law | Tagged , , , , , , , , , , , , , | 2 Comments

INDEPENDENT MEDICAL OPINIONS–WHO, WHAT, WHERE, WHY AND WHEN

Once I discovered the recipe to VA claims, I set out to teach others. I started this website in 2008 expressly for that purpose. I have taught, and discoursed endlessly on the need for a true, well-constructed Independent Medical Opinion (IMO) to support your VA claim(s). The earliest warning we had on this was handed down in Caluza vs. Brown back in 1994. The CAVC finally enunciated the three prime ingredients necessary to prevail. Numerous decisions since (Shedden, Hickson etc.) have reaffirmed and expanded the language but the premise is still basic. You need three things-1) a disease, injury or exposure to a risk factor while in service; 2)  you need the same problem now, or what we call chronicity; and 3) a medical professional to state that #2 is related to #1. In this business, we call it an IMO. Granted, if you have a Purple Heart, you usually don’t need an IMO for an increase on the damage all the shrapnel caused or the injured musculature. But then, again, with VA, maybe you will.  

Nevertheless, there seem to be quite a few of you who are still confused on the where and the why. I have had Veterans come to me with the “Okay smartypants. How come I lost ?” -swearing they had the three magic coins. A hundred bucks says I can figure it out blindfolded. You tried to win at VA poker with two pair and they’re holding three-of-a-kind. You could get away with that until the VA began saying “our dude reviewed all the records-including his contemporary STRs from service. Therefore our medical expert’s opinion is far more probative and better.”  I’ve seen VA say that even when all the “STRs” they actually held were dental records. Vets get what they think constitute IMOs that say “probably, its’possible, couldabeen, it’s not unheard of, my Uncle Earl had the same thing and it was caused by that too” or the best- “I’ve never heard no one say it wasn’t caused by ________. IMO language is an art form. What is said must be perfect. What isn’t said can destroy the IMO’s probative worth. Worse, your doctor doesn’t know how to write it so that it will win the claim. Doctors do medicine. They don’t teach it or study it. They find out the cure and apply it. Knowing what caused it isn’t as important as how to fix it.

Now, we’ve learned to conquer that VA trick by filing a FOIA for a copy of our claims files and letting our truly independent doctor(s) “review” them too. You’re never going to get  your own VA-employed doctor to crank out a winner. Don’t waste your time trying. In 2010, VA told the VHA to do it’s job. Treat the Vet. You do not need to opine on causation to treat. The job of causation is the realm of the VBA and will remain there. VA examiners are far more savvy and have access to the big picture-the claims file. The VHA does not.

I have frequently updated the widget entitled Nexus Bible above but let’s delve into this more deeply. Each time we discover the reason or rationale for why VA denies us, VA trots out a new system or wrinkle that results in a new denial tactic. It’s time for a new review of their procedures and how you can go on the offensive and prevail far sooner in a win. I’m not going to invite you to a free dinner and try to sell you my technique. I’m too busy helping Vets. I’m going to reveal the latest trick I’ve invented. That’s not to say I invented it. I just happen to be employing it now with the latest revision to our appeals Modernization Act also nicknamed RAMP or AMA.

What a Good IMO Consists Of 

Any IMO you  submit must have certain ingredients. I’ll summarize the checklist.

1)  You need an intro that the doctor isn’t your next door neighbor. He has to say he’s not going to share in your winnings and wouldn’t know if you if he met you on the street.

2) He has to state in no uncertain terms that he has reviewed a copy of the claims file dated xx/xx/xxxx  as well as other medical records from _______, MD and _____, MD. dated xx/xx/xxxx, lab reports and your best friend’s buddy letter.

3) He must explain he is independent, very knowledgeable in this particular field of medical inquiry regarding causation (oncologist, psychologist or whatever), and capable of presenting a well-reasoned logic for why his particular theory is the most compelling. He must use peer-reviewed cites of other studies confirming his theory with  real footnotes – not Wikipedia shit.  God, anybody can insert their ideas into Wikipedia. It is not a valid tool to support your claim.

4) Finally, he must use the magical incantation that it is his considered opinion “that it is at least as likely as not/as likely as not/more likely than less likely/most likely”  Johnny Vet got __________ when he was in the U.S. Army/AF etc.” Docusign is acceptable but kinda cheesy.  Last but not least, is the curriculum vitae(CV) of the author.  A CV lists every job this M.D. author ever had doing medical stuff. It will state pretty much that most of his/her work was in the same field of the particular illness/cancer/disease/injury s/he’s talking about.  A good CV would be three pages.

Remember, VA’s  local ARNP/VA examiner opinion isn’t even going to have as much smack as a real oncologist or psychiatrist. A Veterans Law Judge (VLJ) is going to look at that. Sometimes, if you do not have an IMO, the VLJ will order a new one.  VA may even try to pass off a proctologist or a podiatrist with an MD after their names as a noted authority on glioblastomas. CVs? We don’t need no stinkin’ CVs. We’re the VA. This is why you want to get that IMO in front of the Judge personally. You want to point out an ARNP is like two pair and your IMO is like a full house.

Here’s a good sample that won.

Johnny Vet Filed IMO to BVA 1-8-2018 redacted

IMO Timing

Having the correct IMO is just part of your game plan. I’ve had guys with  “workable” IMOs who deliver them with their introductory claim. I get that.  If you file 20 years after you get out, you’re gonna need a killer nexus. Submitting the IMO  at the beginning sounds pretty logical but here’s the problem. VA operates on ex parte justice. You file, they deny. You appeal. Remember Mohammed Ali? He talked of how he was going to beat Sonny Liston  before the fight. He explained his technique as “rope-a-dope”.  He let Sonny chase him and whack at him. He  just folded up and bounced into the ropes and the ref would have to break them up and move them back into the center of the ring. This rope-a-dope game exhausted Sonny and Ali came back to whack him good. This is what you’re going to do if you follow my advice. Lawyers and agents are well acquainted with Maxson vs. Gober (2000) .

The New asknod Technique

Go ahead and file with nothing. File your 214. File a doctor’s notes that say you have asthma or a bum knee.  You don’t need no nexus, senor. Not yet. Get that effective date established pronto. Check that box on the 526EZ that it’s a fully developed claim (FDC) just for shits and grins. Go out and buy that IMO and put it in the fire safe.

Okay. You get the c&p(s) and if all goes well, you get your denial in 125 days or less. If this happened on or after February 19th, 2019, you are a Chicken Dinner Winner now. Under the new system, you can file your Notice of Disagreement (NOD) directly to the BVA where real law exists. I told you earlier above that VA uses ex parte justice.  Well, here you go.

You now go get out the IMO and present it as new and relevant evidence at the BVA pertaining to the denial of your claim at the David Koresh Memorial Regional Office back in Wacko, Texas. If you’re planning on giving your house an all-over remodel from stem to stern and aren’t too worried about time, you can ask for a Travel Board hearing. Those take time to schedule. If you’re in a hurry, I’ve gotten over that hearing backlog crap by simply flying back to DC with the client and doing it there at the corner of Delay St and Deny Ave. NW. That’s certainly not cheap but it’s the asknod results-oriented napalm technique. They’re about three months out on a Face -to-Face for an hour with the VLJ who will decide it. No video cameras 10 feet away from you. This is ‘Fix Bayonets!’ distance- four feet away from his/her honor.

If you try to take the new supplemental path with a brand new IMO after  the denial and fight this out at the local Fort Fumble, you’re in for a stonewall at first. The Appeals Management Office (AMO) sits on these IMO-answered Legacy appeals and tries to figure out a way to deny them. I sent out a few and VA still has them boxed up  for close to ten months now with no action up or down. They’re all at the AMO.

Now, with the advent of the new appeals path directly to the BVA, I’m praying my Veterans will finally get real, timely justice based on facts and law and not some computer algorithm in the M 21 that computes the denial and how to rationalize it with 38 CFR. Remember, the M 21 is not law. It’s an assembly guide like the one you get from IKEA with your bookshelves or table. The BVA Judge is going to tell you they do not accept legal arguments based on M 21. Build your arguments on 38 CFR. Leave the M 21 cites and the crayons at home.

Timing Is Everything

My philosophy is simple. Present an IMO too early and you give VA time and the ammo to beat your IMO. Remember, ex parte justice is nothing more than getting the last word in. If VA commits at the beginning as to why they are denying you, your rebuttal IMO must defeat their presumptions. That makes it easier if you know why you got denied. Similarly, if you put down your IMO at the beginning, you just give VA plenty of time to figure out how to poke holes in it. You’ve used up all your IMO ammo at the beginning. That’s why you want to play VA rope-a-dope. This is a recipe- just like baking cookies. You don’t begin to heat up the oven when it’s time to put the cookies in.

The new 2019 RAMP/AMA program allows the BVA to issue a SOC if your appeal has no wings. Then it advances to the Judge just to keep all this street-legal. BVA Option #3 actually mimics the old Legacy appeal to a ‘t’  but bypasses all the chucklehead VA examiners at your local Puzzle Palace. You can even nail it down at the BVA with a Motion for Waiver of Review of New and Relevant Evidence back at your local RO. The lowest this will go is to the Appeals Management Office (AMO) for a legal tuneup.

Why Go to the BVA?

Welcome to the 21st Century, folks. Congress heard our complaints about how long it takes. They think, and VA thinks, claims will speed up here in Unicorn country. One thing few know is the  BVA needs, and wants to, drastically up it’s production output. What better way to accomplish this than a gift-wrapped present of an appeal complete with IMO? In VAland, one bummer IMO from VA against you versus one private IMO by a noted medical specialist equals a draw or a tie. Since the tie goes to the Veteran, you win. The VLJ is under the gun to crank these out. You’re giving him half his workload for the day with all the heavy lifting already done. If the IMO is solid and doesn’t involve alien abduction as the risk factor, you’re in high cotton. If you’re a doctor with an IMO factory and everyone at VA knows your name, this doesn’t work very well. Just sayin’…

The bad news is my new win technique will work for several years until VA finds a new way to deny us. The good news is we always find a new technique. It’s like trying to outwit zombies-entertaining but hardly challenging.

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

Posted in All about Veterans, KP Veterans, Lawyering Up, Tips and Tricks, VA Agents, VA BACKLOG, VA RAMP, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 10 Comments

HADIT RADIO SHOW 2/28/2019–EVERYTHING YOU WANT TO ASK ABOUT THE NEW APPEALS PROCESS

Several-hell- 20 Vets have emailed me and said they had a comprehension problem about how I explain the new Claims Appeal Procedure. The short response was ” What in Hell did you just say?” I get that. This thing has more twists and bends than the Mississippi River. And like Ol’ Miss, there are some oxbow lakes that are now cut off from the main channel. That’s the fustercluck we were just handed courtesy of all those wonderful folk like the Vietnam Veterans of America. I expect I don’t remember them calling me up and asking me what I thought on the subject. For them and the rest of the Big Six VSOs to crow about “fixing it” is a cruel joke. About the only thing good to come of it is a direct path to the BVA after the Dear Johnny Vet letter. Best to present it to someone with real legal training.

Which brings us to Hadit.com and Jerrell. I have been graciously invited to come on and try to unravel the mysteries of RAMP.  As I said in my article, RAMP died February 14th. To make sure there were no mistakes, they took a week off and began the new Appeals Management Act on February 19th. Bright and early that morning, they denied my Vietnam Vet in Phoenix R2. So… he falls into the new AMA. Cool beans. We filed this afternoon for an appeal today directly to the BVA. We opted in to the new system because it occurred 1)on or after 2/19 and 2)it’s a SOC. We’ve chosen Option 3- advancement on the docket at the BVA with a  local Travel Board Hearing and submission of new evidence.

I look forward to answering questions on this complicated subject. Feel free to call in.

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

Jez, I know some day some group of crazy people will show up here and claim BlogTalk’s British spokesgal above is being “used” and it’s/I’m misogynistic yada yada. I’m declaring right now I’ve never dressed up in blackface either. I’m happily married, don’t hit on women and open doors for them. I think I missed all those alcohol-infused parties Justice Kavanaugh attended. I attended an all-male Prep school.

Thursday night 1900 HRS on the East Coast and 1600 out West here. John, Jerrell and I would love to hear from you if you’re planning a NOD and wonder which way to go.

 

Posted in KP Veterans, SVR Radio on hadit.com, VA RAMP | Tagged , , , , , , , , , , , , | 1 Comment

RAMP–SCREW ME TWICE, SHAME ON ME.

I was running into somewhat of a pickle on the 20th of February. With the inauguration of the new RAMP program (aka Appeals Modernization Act or PL 155-15), I was in a quandary as to what to do. I dutifully read Chris Attig’s thesis on which VA form to use but had to face this controversy on my own. I had a client whom I filed a supplemental claim for (loss of use of the upper extremities) on Saturday-well past the cutoff date for legacy appeals. This put me into the new program with that loaded moniker “Appeals Modernization Act”. That’s like military rations. Remember the misnomer (and three lies in one) of MREs? Meals as defined by whom? Ready as in “some preparation required” and Eat as in questionable cuisine versus high quality dog food. We used to sit around in Southeast Asia in the evenings idly conjecturing on what the “C” in c-rations stood for. Cardboard, contaminated and a few other sobriquets came to mind. I once almost opened and ate my personal favorite-canned peaches- until someone noted that the can was swollen and misshapen. Baaaaad idea- as in ptomaine poisoning. Gosh. What happened to safety in canning? The peaches were only eighteen years old. I’d eaten many with a ‘born on’ date of 1952. This one was 1956.

As with anything you do in VAland, it pays to read all the literature VA mails you. Gone are our old friends the VAF 21-526b and the newer VAF 21-0958-after February 14th. Yeppers. You no longer file a notice of disagreement (NOD) on a VA Form 21-0958… well, that is, if you got the decision before February 14th , 2019, yes you do..VA quit work on the 14th and began again on the 19th so any decision on or after February 19th fall into the new AMA system. The use of the 0958 ceased on February 14th, 2019 at midnight for what was then RAMP. Confused yet? You now have what appears to be two 21-0958-like choices. In reality, the truth is you are going to be funneled into two equally distasteful scenarios. Either one is a poor fit compared to the old method. But first, let’s look at the demise of our venerable VA Form 21-526b.

The New 526EZ as a Initial Supplemental Claim

At first glance, as Mr. Attig pointed out, you have to file another 21-526EZ in its stead because the 526b is no longer valid or recognized by VA.  Talk about a time waster. If VA can’t find their ass with a methane detector as it is, what hope do we have they will be able to “construe” your intent using a 526EZ refiling as a “supplemental brand new claim’ (which is inextricably intertwined) with your pending claim? I can see your earlier assigned effective date of claim going down the drain immediately. It will take six months of haggling to correct it. Meanwhile, while it’s in contention, your claim goes nowhere. Remember that intent to file you put in last July 2018? Gone with the wind, Cowboy.  Why, you just asked VA to reopen it last week with your new 526EZ. VA assumes you are abandoning the original filing and asking for a new reopening. Screw July ’18, dude. You clearly and unmistakably asked VA to start over. VSOs do this fairly regularly to speed up a NOD. In essence, you just abandoned the present claim and opted in to a new, Fully Developed Claim (FDC) to avoid that 24-month delay, a new denial and a SOC. Hoo, doggies. Welcome to the new AMA, Jose. Remember the Who song “Won’t Get Fooled Again”? Meet the new boss. Same as the old boss.

Phase II-the New “NOD” Format

The Supplemental Claim Path

The only thing that changed on February 19th, 2019 was VA’s introduction of three new forms- the VAFs 20-0995, the 20-0996 and the 10182. They also finally opened the path promised us a year ago to go directly from a denial at your local Fort Fumble to the BVA. This essentially is all that has transpired. RAMP and Legacy closed down on February 14th. A week went by and now we have the AMA. As most know, VA is fond of rebranding their products to make it look as though they have magically reinvented the wheel as we know it. I remember back in the 90s when McDonnell Douglas’ DC-9s began having troubles staying airborne. The repair order was simple-rebrand it as the MD 80. Poof. Gone was the onus of a problem aircraft and all the negative PR. It simply metamorphosed into a butterfly with a new name. As you will read below, this is exactly what is afoot. But worse, there’s a subtle difference between the legacy system and the new RAMP that does not portend well.

The duty to assist has taken a mortal blow. I speak of our first newly developed Appeals Management Act -AMA for short- VA Form 20-0995. Read the instructions below that accompany the new form and note that you now have to provide “new and relevant” evidence to continue your notice of disagreement. In the old legacy system, you could simply file your VAF 21-0958 NOD without any new evidence-material, relevant or otherwise- and complain of whatever inequity they had visited on you without the submission of new evidence to buttress  (and justify) your disagreement. VA says switching the term ‘relevant’ for ‘material’ is  merely an upgraded semantic reality. They assure us the terms are interchangeable. ‘Relevant’ is simply more 21st Century in VA’s mind and won’t confuse low-intelligence Veterans.  If so, why the need for an update? We’ve managed to stumble through this process since the War of 1812 without any semantic confusion. We shall see. There’s far more here than meets the eye as I point out. Summed up, to file your NOD, you need something new that VA has never seen before. If you have nothing new, the default setting is the new Higher Level of Review (HLR) lane. It doesn’t pass my smell test as being “modernized”. It smacks of a lack of due process. It reeks of a failure in the duty to assist. You can’t ask VA to go back to a VA hospital in West LA to retrieve ‘new and relevant’ evidence. No sir. Welcome to the new VA-inspired Fox TV series-Roadtrip…with children. You get in your car, drive to LA and get it yourself. Duty to assist? We don’t have no stinkin’ duty to assist.

I had you all going there for a spell. No, if you tell VA precisely where these records are at which VA hospital/medical clinic/psychiatric ward or other private provider, they’ll go get them. The kicker in the small print says they won’t pay for them. Obamacare started a huge new industry of records reproduction providers. VA isn’t going to pay Franciscan Health $150 for a complete, unredacted set of your medrecs so you’re doomed to failure by presuming they will. But, as I said, you can go to back there and get them yourself or figure out how to get them mailed to you.

Supplemental Claim Instructions

VAF20-0995 SCF

The Higher Level of Review (HLR) Path 

I fear the new HLR appeals track many of you Veterans are  soon going to end up taking by default. Not everyone has a reservoir of endless new and relevant evidence to delve into and present to VA. Remember the VA admonishes us to submit everything we have to them at the beginning. This is akin to asking for a Decision Review Officer review (the old DRO review)-with the notable difference that you are going to attempt to argue for a favorable decision with nary a shred of new evidence. Of course, if you suddenly find you have new and relevant evidence that might hope to convince her/him, you can’t opt out of  the HLR path and switch over to the supplemental path! I have yet to see a favorable DRO review without some new exculpatory evidence that will sway your rater into granting your claim. I make exceptions for CUE claims if you have a 38 CFR cite like §3.951 that is unequivocal. Twenty years cannot be construed otherwise. With that said, I had a Vet with 27-year protected claim reduced from 20 to 0% after a DRO review. I even called the DRO in Houston and told her what was going on. She said thanks and pushed the “Rating Decision Complete” button. That’s the new HLR reality.

Essentially, a Higher Level of Review (HLR) is nothing more than a new decision made by anyone higher (in GS rating) than the gomer who did your initial rating denial. How’s that for semantic sleight of hand? It certainly does not confer on you the former legacy model of rating by a true RVSR or DRO with much more experience. It might be (and probably will be) that you’re going to get that HLR from a GS-12, step 8 VSR  rather than the GS-12, step 2 VSR who did it the first time. In any event, it’s going to be far less than a true HLR with a GS-13 step 5 regardless of what that HLR moniker implies. This is what many experienced litigators call the “What part of ‘no’ is it you don’t understand?” VA attitude. HLR opens up vast ratings resources for waaaay more VA raters to pretend to be more intelligent and versed in the machinations of VA law. This is the ‘new’ way VA is clearing out the backlog of DRO reviews.  Everybody dresses up like a DRO and begins rating your claims like one. Bingo. No more backlog. Well, no more backlog at your local Fort Fumble, anyway. Keep in mind, also, that VA took 10 (count ’em- ten) Regional offices offline- out of the business of rating claims and appeals. Their production was focused only on RAMP appeals until February 14th. That was a pretty light workload for 3,000 raters because very few of you “opted in” to RAMP. Things will pick up now that the AMA is the only game in town.  Remember, RAMP and Legacy are now finished. There is no RAMP opt-in. Legacy is gone with the wind. The only game in town is now the AMA.

Boiled down to its essence, everyone above a GS-12 step 5 is now essentially a de facto designated HLR  reviewer and that’s all she wrote. I can’t begin to count how many pissed off Vets who suddenly came to the realization that switching over to RAMP last summer garnered them nothing more than an expedited denial by an inexperienced reviewer. The downside was that they had to sign their legacy appeals path away and are (prematurely) permanently stuck in the AMA with no exit. Granted, that is all water under the  RAMP bridge now as of February 19th, but opting in to the earlier HLR path mistakenly dissuaded them from staying in the legacy system or choosing to submit  new and ‘relevant’ evidence under the Supplemental claims path. Their only option after an HLR denial is to take the long road to a BVA-expedited AMA appeal, submit that new independent medical opinion they neglected to obtain  and wait all over at the BVA for what they perceived earlier as the pronto repair order for a two-year wait locally. Can you say bait and switch?

HLR Instructions

VAF 20-0996 HLR

The Transition From Old NOD to New NOD 

If you aren’t lost yet, hold on. If you are still in the old, original Legacy system, and recently  got a decision but have not yet filed a NOD, you will continue to use the old VAF 21-0958. You will have to wait for a grant or a denial and the issuance of a SOC or SSOC  in order to opt into the new AMA system. At that time you would logically choose the Board of Veterans Appeals option and get the hell out of your local Funhouse.

The New AMA BVA NOD Path

This reform is now essentially the most important new arrow in a Veteran’s legal quiver. I intend to use it extensively for all my claims- most especially CUE claims. Yes. I’m a sucker. Many of you come to me with really egregious examples of getting screwed back in 1970. You could have been creamed by a satchel charge or a 60mm mortar like Butch Long of LZ Cork fame and been given a 10% “gift” for a moderate SFW wound from your magnanimous ratings board at the Puzzle Palace in Whacko Texas. Whereas, in reality, you took SFWs in 8 muscle groups and the records are unequivocal this was the case. In Butch’s case. they solved this in 1970 by avoiding going back to St. Louis and getting his STRs from the NPRC. How his records avoided the Friday the 13th July 1973 barbecue was pure luck. Here’s the info on the new BVA direct NOD procedure. It’s the only substantial reform I can see that is positive. The other two above can only be seen as regressive measures to limit our ability to fight our denials equitably.

And be careful. You don’t send a BVA NOD Appeal to Janesville, Wisconsin 53547. No sir. You have to mail it directly to the Board of Appeals or it will probably end up in the dead letter office.

Here’s the address:

Board of Veterans Appeals

P.O. Box 27063

Wash. D.C. 20038

or fax 844-678-8979

And here are the instructions that come with the BVA NOD path.

BVA NOD Instructions

VAF 10182 BVA review

There’s a lot of debate on just how “expedited” the BVA process will be. Many BVA staff attorneys have been burdened with far too heavy an appeals load and suffer from burnout. Worse, the BVA taskmasters all but advocate their staff ignore de novo review and ‘gitterdone’- and be quick about it, mind you. I can’t imagine being sold down the river like this. The Big Six VSOs (DAV, VFW, VVA etc.) all pushed this AMA/RAMP crap hard. Congress, in 1989, via the VJRA specifically granted us “one review on appeal”. To me that ensures an unbiased, fair, de novo review-not the new ‘in by 10, out by 3’ Chinese laundry approach.

Speed of adjudications, and by extension, appeals, should emphasize correctness. As it stands, 67% of all decisions at the agency level in Regional Offices are riddled with errors. The CAVC implies it’s as high as 74%. Speeding up the process almost guarantees even more errors. The reason is simple.  Let’s say you live in Seattle. The National Work Queue (NWQ) instituted several years ago created a miasma of fustercluck  mini-adjudications. A claim is dumped into a Bingo Ball hopper where a rater in Sioux Falls, S.D. pulls it out and checks to see if you were boots on the ground in Vietnam to ensure your entitlement to Agent Orange claims. S/he promptly throws it back in the hopper as ineligible. Your 214 did not specifically say ‘stationed in RVN’. You could have a Purple Heart  listed on it and still lose. Another rater in Jackson, Mississippi pulls it out a month later and schedules you for a c&p exam- hopefully in Seattle- based on your qualifying under a “direct” Combee path. I’ve heard of Vets being asked to travel to Portland, Oregon to attend the c&p.  After the results come back 60 days later, another rater in San Diego pulls it out of the NWQ and anoints it as RFD (ready for decision). Note the San Diego rater doesn’t actually do the rating. S/he merely certifies it as ready. Several months later, another rocket scientist in Winston Salem, N.C. will state there was no evidence you had served in ARPAC. You file a NOD with evidence of your having “stepped foot on the landmass of Vietnam” (so much for VA comprehension of the English language). 26 months later , you get the 10% rating for prostate cancer as you are recovering from the prostate surgery that removed the objectionable gland. You file a new 0996 for the 100% temporary surgery rating and then the 40% rating due you and wait another 125 days (if you believe VA). If you’re lucky and the prostate cancer doesn’t metastasize into your bones and kill you, you might survive long enough to enjoy the money. Or… they give you the 40% but deny the 100% temp. rating for the surgery and you have to appeal to the BVA. The error possibilities are endless. That’s how the M 21 was constructed.

Haste Makes Waste

The RAMP cum AMA, coming on the heels of the NWQ and the FDC, is an ugly harbinger of things to come. VA was screwing this up before the advent of the FDC without any trouble. With the advent of RAMP last year, they proposed going to lightspeed.  As of Tuesday the 19th of February, I see nothing to prevent a 98% error rate. I will reserve judgement until I begin receiving BVA decisions under the new program. If the error rate at the AOJ level was any indication after the introduction of the 125-day, 98% FDC-guaranteed accuracy rate, the AMA may prove to be an unmitigated disaster.

How the BVA hopes to create a streamlined Fully Developed Appeal process that eliminates a 3-7 year delay is the million dollar question. I, for one, am an undying optimist but reserve judgement until all the facts are in and a track record is established. How VASEC Robert “Call me Bob 2” Wilkie intends to generate more decisions faster with the exact same number of Veterans Law Judges (VLJs) should be intriguing.  If you believe the BVA bean counters, we’re talking 137,383 backlogged (docketed) appeals in their refrigerator and an AMA avalanche building up at Regional Offices across the Fruited Plain. If VLJs are cranking out 2.5  decisions a day as we speak, explain how a new, expedited BVA appeals process that permits the exact same BVA hearing and submission of new evidence is going to be the panacea to the backlog. Anyone? How about we temporarily promote all the BVA staff attorneys to Brevet Veterans Law Judges and let them adjudicate their brains out until there are no more appeals pending. Problem solved. You can see they’re also going to have to expand the CAVC from 9 judges to 39 if they do. VA doesn’t seem to understand the concept of eighteen years of continuous war and a heaping helping of Agent Orange and Burn pits.  The present dilemma is the lump-in-the-python problem they’ve created. The FDC procedure simply pawed it off on the BVA and resulted in moving the lump up to the appellate level. It won’t be long before it appears on the front doorstep of the CAVC. What next? An AMA for the CAVC?

Remember, folks. I’m the one that predicted this insanity almost four years before it happened. Granted, it was more tongue in cheek back then-but not by far.

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

As usual, I thank Army Vet Dennis for the following humor he provides us so regularly.

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