CAVC #16-0298–THE RISE AND FALL OF ANOTHER EX. WRIT

I love the Cvetcourtappealspromoourt of Appeals for Veterans Claims (CAVC) method for Extraordinary Writs of Mandamus. Just like those fabled Chinese dry cleaners’ claims of ‘In by ten, you come get when little hand on three.’, my Ex. Writ was ‘in’ June 13th and out August 25th. In 73 days I have accomplished more behind-the- scenes fact finding than I ever hoped to. In the process, the Writ precipitated  the need for a quick Office of General Counsel (OGC 027) answer with virtually no time or opportunity to stage the crime scene.

EX WRIT 16-2098 finale

As we all know, helter skelter adjudications at VAROs across our amber-waves-of -grain Nation are frighteningly similar, devoid of logic and all denials seem to be eerily similar. With the introduction of the Fully Developed Claim (FDC) and the Disability Benefits Questionnaires (DBQ), everything sped up at the VAROs. What never changed was the 85% denial rate. Instead of the duty to assist you, your claim submission, replete with all your legwork, relieved the VA of the responsibility. They oblige us by cranking out denials in half the time.

Having the ‘foreknowledge’ of what is coming, and the new electronic world of blogs on the subject, far more Veterans are now involved in pursuing their claims pro se. Ex Writ folks like me who know about it, have discovered you can go even further and ‘buy’ instant justice. For $50.00 and mass quantities of USPS postage stamps, you-Joe Average Vet- can wreak havoc on the VA and usually, in the process, get your claims promptly adjudicated or sped up dramatically.

downloadMy filing for the Extraordinary Writ was designed to bushwhack the VR&E Poohbahs before they finally got around to dealing with me. It was axiomatic that they were going to try the bait-and-switch and offer a Visqueen® igloo with two doors and an electric space heater. Often times in the judicial arena, much like a chess game, it pays to pre-position your weapons (knights, rooks etc.).  In my case, it was a careful ballet to make sure Judge Bartley would get to see VA’s true colors in real time. In that respect, the VR&E pukes more than complied by lying -on the record, no less.

The decision is well written and Saint Meg admirably summarized the VA’s shortcomings. She gave them what few of her fellow Judges would. That is, a gentle summary of all their faux pas’ and a wise piece of advice in hoping this did not grace the Court’s dockets ever again in the future.

Our legally challenged VR&E bosses in Seattle also inadvertently revealed that all the denials, NODs, Form 9s, SOCs and SSOCs were the substitute for “repeated consultations with Mr. Graham”. No meetings, no conference calls, nada, nothing. This, too, is vintage VA chutzpah.

Here’s a recent abstract of emails on this “repeated consultations” subject.

… My desire for the Veterans Benefits Manual is the same as the need for my computer-to help other Veterans attain their rightful benefits. This has always been the focus of my Veterans advocacy along with my website asknod.org. It is a volunteer effort and fits in nicely with my original request for an ILP computer program which you closed out in 2014.

If the VBM request is not feasible under the current plan or incompatible with a new IL Program request, please go ahead and transmit it to Mr. Boyd so he can perform the appropriate “administrative review”. According to VR&E Services, if you are indeed the case manager as it declares on my file, then you have to transmit it to him for his “review”. If Mr. Boyd finds it is not required to achieve “independence”, please instruct Mr. Boyd to write it up as a denial and forward it to VR&E Services for their Administrative Review.

As Mr. Boyd does not answer my emails, this task appears to fall to you as my case manager of record.

Regards Gordon A. Graham

———————————————

HOLLAWAY, KRIS, VBASEAT <kris.hollaway@va.gov>

To gaegraham@yahoo.com

Aug 12 at 8:42 AM

Yes, case manager, Vocational Rehabilitation Counselor (VRC) is the same terminology. I am assigned to your case as the case manager. In your reference below, at that particular time and event, I did not have access to your file but I was still your case manager.  As an example:  If your file went to CO headquarters for 3 months or at the Board of Appeal for 6 months, I would not have access to your file but I would still be assigned as your case manager. A decision could be made in your case and I may not know of the decision but I would still be assigned as your case manager. I hope that helps. Have a great weekend!

G.Alexander Graham <gaegraham@yahoo.com>

To HOLLAWAY, KRIS, VBASEAT

Aug 12 at 11:15 AM

Dear Kris,

I guess my next question would be inevitable. If you were and are currently my case manager, would it not seem odd that we have yet to meet and sit down and formulate an IILP as stipulated in 38 USC 3107(a) and 38 CFR 21.92(a,b,c,d). You are familiar with the requirement that you, as the Counseling psychologist and/or the VRC, are primarily responsible for creating an ILP jointly with the Veteran (me)? When, exactly, did that occur since the BVA decision September 4th, 2015- or should I ask, when is it slated to occur, if ever? 

38 U.S. Code § 3107 – Individualized vocational rehabilitation plan

(a) The Secretary shall formulate an individualized written plan of vocational rehabilitation for a veteran described in section 3106(b) of this title. Such plan shall be developed with such veteran and shall include, but not be limited to (1) a statement of long-range rehabilitation goals for such veteran and intermediate rehabilitation objectives related to achieving such goals,

(2) a statement of the specific services  (which shall include counseling in all cases) and assistance to be provided under this chapter, (3) the projected date for the initiation and the anticipated duration of each such service, and (4) objective criteria and an evaluation procedure and schedule for determining whether such objectives and goals are being achieved.

  • 21.92 Preparation of the plan.

(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.

(b) Approval of the plan. The terms and conditions of the plan must be approved and agreed to by the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC), the vocational rehabilitation specialist, and the veteran.

(c) Implementation of the plan. The vocational rehabilitation specialist or CP or VRC designated as case manager has the primary role in carrying out Department of Veterans Affairs responsibility for implementation of the plan.

(d) Responsible staff. The CP or VRC has the primary responsibility for the preparation of plans.

(Authority: 38 U.S.C. 3107(a)) [49 FR 40814, Oct. 18, 1984, as amended at 81 FR 26131, May 2, 2016]

Please also supply me with the dates of the alleged “repeated consultations” Mr. Boyd referred to in Item II.#6 of his July 7th, 2016 Declaration Under Penalty of Perjury regarding the joint formulation of my IILP as I seem to have misplaced my records of their occurrence. As my Case manager and VRC, I presume you should be able to supply me those records. If not, please be so kind as to ask Mr. Boyd for a copy of them. 

respectfully,/s/Gordon A. Graham

———

HOLLAWAY, KRIS, VBASEAT <kris.hollaway@va.gov>

To gaegraham@yahoo.com

Aug 16 at 3:13 PM

pinocchio_4The IILP was derived from the Statement of the Case, your appeal documents, VBA recommendations, Rehabilitation goals and identified needs as it relates to being able to perform; as in your case, “access” a greenhouse activity, heated and ADA standards.  You had made proposals such as Hydro-phonics [sic], computer monitoring, minimal door way access requirements, ADA accommodations, and year-round access; thus an IILP was developed. The IILP was sent to you ahead of our appointment, as you requested to review.  I agree that all the requests that you proposed for development of the IILP was not what you wanted but it was developed upon the above standards and guidance, and what your needs are from a justifiable and rehabilitation manner.  In the IILP goals and objectives that was presented, it would accomplished the I.L. needs and goals of rehabilitation, which is to be independent from others in performing an activity of daily living.

Technically, what you are disagreeing with( not to put words in your mouth and with all due respect),  is that the services that were derived, from a I.L. rehabilitation practicality is not practical or in agreement according to your standards, wants or what you wanted to accomplish in meeting your needs; whereby you are submitting a Notice of Disagreement.

Mr. Boyd, VR&E Officer; Don LaFord, contractor and myself met with you and we did discuss the IILP and we did say that we wanted to come to some agreement. We did work hard with the PWS and IILP rehabilitation needs but we were not able to agree. Thus, you prepared a Notice of Disagreement.

Mr. Boyed[sic] now has your CER folder and is preparing a statement to you regarding my Case manager’s decision; which is the next step in the NOD. Even though he has the case, I am still your case manager, just to clarify.

——

G.Alexander Graham <gaegraham@yahoo.com>

To HOLLAWAY, KRIS, VBASEAT

Aug 16 at 5:15 PM

Thank you for the explanation. I guess we will have to differ on what Miriam Webster defines as “jointly develop”.

Please note for your records, I am not filing a Notice Of Disagreement (NOD) with anything so far. I have asked only for a review under 38 USC 3107(c)(1,2). A Veteran cannot file a NOD after he has “won”. I provided Mr. Boyd a signed copy asking for a review of the IILP as required by statute and regulation during his visit on July 13th, 2016. That is far different than filing a Form 21-0958 Notice of Disagreement. In any case, a NOD is not a judicial tool available to me. VA has already granted me a greenhouse. Judge Bartley will make a decision on whether to grant my request for Mandamus and for VA to comply with the BVA decision. Mr. Boyd should just be addressing what will go inside the structure as contemplated in 38 USC 3107(a),(2) concerning a statement of specific services. If you remember, that was lacking in the April 12th IILP that I ask for a two year ILP on. If certain requests were ignored or not included, it behooved the Case manager to define the parameters early on rather than present it as a done deal ready for signing on the 13th of July. I stated as much in my email of July 7th, 2016 before you and Mr. Boyd came over This is the whole concept of a stakeholder enterprise.

Merriam Webster, the preferred dictionary of the VA, defines stakeholder thusly:

Full Definition of stakeholder

1: a person entrusted with the stakes of bettors

2: one that has a stake in an enterprise

3: one who is involved in or affected by a course of action
Please be kind enough  to inform me of the progress of the Veterans Benefits Manual denial and the Administrative Review after VR&E Services have weighed in with their Administrative Review. Since Mr. Boyd doesn’t answer my emails, I rely on you, as always, to be the eventual messenger.

I am told my file is now sitting on Under Secretary for Benefits Thomas Murphy’s desk currently. He may be the one who decides this. I don’t have any way of knowing what the ultimate decision will be with regards to hydroponics or lighting. From Mr. Boyd’s declaration provided to the Court on penalty of perjury. the IILP was developed by February 24th, 2016. Your and Mr. Boyd’s emails to me indicate you were still in the final stages of hammering out a PWS in May 2016. In fact, if you recall, you told me at our April 12th meeting that you still did not have any specifics on size. This all seems to contradict what Mr. Boyd has sworn to as fact. The March 25th, 2016 Form 28-8872 had no specifics on what was being awarded as required by 38 USC 3107(a)(2). It seems almost an impossibility for you to write up a IILP with no access to my case file or any idea of what was proposed as you claimed at the April 12th 2016 meeting. 

Hopefully, we’ll get this ironed out to everyone’s satisfaction.

Regards,

Gordon A. Graham

——————————

To date, Mr. Boyd and Mr. Holloway have not answered my email.

Surprise, surprise surprise Sgt. Carter.

Nodster



 


 

Posted in CAVC Knowledge, CAVC ruling, Extraordinary Writs of Mandamus, Independent Living Program, KP Veterans | Tagged , , , , , , , , , , , , , , , , , , , | 8 Comments

The VA and long term care

Bye bye estates? Bye bye kids’ inheritances?  Long term care is another complicated VA benefit topic worth looking into because many of us were not able to purchase long term care insurance policies during the years we were raising children and paying for higher education. We dread the possibility that we could end up in a nursing home, our spouses left in abject poverty after a lifetime of hard work, paid or unpaid. Screenshot 2016-08-22 at 1.29.35 AM

 

The VA makes grants (matching funds) for new construction and renovation projects (LINK) each year.  This post provides some links to information about veterans’ state homes.  Some states are building attractive modern facilities, such as the one in Silver Bay, MN above (LINK). Vermont’s long term veterans’ home boasts a five star rating, a trout pond and deer park. Veterans who are 70% disabled do not have to pay for services, a situation that may apply in all state homes.

The”… Veterans Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 109-461),…currently provides “No Cost” Nursing Home Care at any State Veterans Home to veterans who are 70% or more service connected disabled. (Source LINK)

State homes also take private payments, Medicare and Medicaid.  In some cases,  spouses can receive care.  Every state has different residency requirements and beds available.  Some offer dementia care, adult day care, respite care and many other services.  (VT LINK).  A list of veterans’ state homes can be found here: (LINK) or (LINK).Fawn in herd 1 (800x397)

Long term care provided at VHA facilities may have very different requirements as VHA-10-10EC form indicates.  Congress has provided resource protections for spouses who are living in the community when their mates are in long term care (for Medicare and VA). We’ll take a look at them in a different post and try to compare them with Medicaid which kicks in when Medicare benefits are exhausted.

Please note that these provisions are constantly changing.  It’s best to call local social workers and administrations for up-to-date information.  Learning about state veterans’ homes are a good starting place especially if they employ an on-site PCP, as in Ohio (LINK). And they are inspected by state health agencies and the VA.  State pride in care giving for vets will vary.

Screenshot 2016-08-26 at 4.50.18 PM

We need more modern facilities in every state–closer to where vets’ families live.

 

Posted in All about Veterans, Food for thought, General Messages, Guest authors, Uncategorized, VA Health Care | Tagged , , , | Leave a comment

BUBBA GUMP’S SHRIMP–MONTERREY

IMG_0047What could be more appropriate than to have dinner at one of the most famous restaurants relating to the boundary dispute in Vietnam? Day one of the Gilead Sciences begins this morning. I feel honored to be here with Randy.

 

 

IMG_0048

IMG_0049

Posted in HCV Health, KP Veterans, Medical News, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , , , , , | 2 Comments

Removing Net Worth Requirement From Health Care Enrollment

Topic:

AP37 – Proposed Rule – Removing Net Worth Requirement From Health Care Enrollment  (LINK and LINK)

Docket ID: VA-2015-VHA-0024

Agency: Department of Veterans Affairs (VA)

We know that not every person who has served in the military is actually eligible for health care based on income and assets–in addition to their non-service connected health status and/or rating.  One reform in the works is the elimination of the net worth assets rule that has been used to deny care.  (Annual “Means” income reporting, formerly done on paper, is now being done by computer matching with the IRS and Social Security. LINK

The asset part of this process is/was particularly cruel.  Veterans had to list the value their homes, cars, land, retirement accounts etc…What the heck should ownership of a motorcycle have to do with veterans’ rights to access healthcare, we collectively fumed?  As one frustrated commenter on the whole asset-based concept lashed out on Regulations.gov:

I think this is bullsh*t! No one was worried about the net worth of these individuals when they volunteered to enlist in the service. Just because they served their time/retired & went on to a Higher paying career, does not mean they don’t deserve equal benefits. All veterans served their time, spent countless number of Months (even years) away from family, the same thing was expected from all of them. What they did or how they handled things when they got home, should have nothing to do with the benefits the deserve!

The VA admitted that “the burden on veterans to supply asset information to VA on an annual basis was considerable” and that about 135,000 ineligible veterans will be able to enroll based on the change.

Priority rates determine co-pays for medications, in-patient and out-patient care and extended care.  See the 2016 Co-pay Fact sheet here:  (LINK)  Medication co-pays are listed here (LINK).  This meds flyer lists co-pay exemptions and important billing information if you have private insurance as well (LINK).  The income threshold limits for free care, even geographically adjusted by region, are ungenerous (LINK or LINK). Because only a small percentage of veterans actually get rated with a service-connected condition (13-15% if I recall correctly), it’s important to eliminate all income and asset tests because they are unrealistic and discriminatory.  Facing dangers in-service, distinctions based on money or possessions are irrelevant–and so it should be post-service.  VA healthcare was never meant to be a charity and operating it as such has led to widespread abuses.  Enough already. 

Because veterans are more likely to need long term VA care, and some of the new extended care facilities look very nice, we’ll have to take a look at how the VA looks at a veterans assets, his/her estate, and how survivors are protected–if they  are–another time.

Posted in All about Veterans, Guest authors, Uncategorized, VA Health Care, vA news | Tagged , , | 2 Comments

JETGUNS–WE’RE ON A MISSION FROM GOD

M FM GODCupcake has graciously offered to drive me to San Francisco for the Gilead Sciences Conference. We’re taking Silvia’s jetguns (plural) to Foster City. I have been invited as fellow HCVet Randy Nesbitt’s guest. Finding air travel less than desirable in late summer and feeling the call of the road, we are off to break bread with fellow Vietnam Veteran and good friend Brad Golding. After, we will see my oldest cousin Denise in Sacramento and then on to another good friend and Vietnam Veteran in Salinas for a joyous celebration of not being on the Vietnam Wall. 

Sunday, Monday and Tuesday will be devoted to praising and singing the virtues of Gilead Sciences. Some may feel disgruntled that the treatment costs seem high. Remember the first hand-held calculator from Texas Instruments for $1150? Everyone said that about Ross Perot, too.  This isn’t Gilead’s fault. Blame Pharmasett who wanted a cool $11 Billion for the NS5A cookie recipe. Gilead simply made the winning bid. What the hey? All that negative animosity could have just as easily fallen on Bristol Meyers or Sandoz Labs. They cured me after 44 years and not a moment too soon. The cirrhotic swan dive into an ammonia-soaked brain is no fun for you or your family. It makes Alzheimer’s look like a spectator sport. For granting me life, I will sing all four verses of The Hokey Pokey at high noon at the intersection of their choosing. If I never get Hepatocellular carcinoma (HCC) I will even do free commercials. It’s akin to beating terminal cancer five minutes before the priest arrives to administer Extreme Unction.

6th Life of 9

6th Life of 9 -March 2010

Getting a pass on inevitable early death is very exhilarating. They had my bingo date as early as 2018. It makes you feel like the cat’s pajamas with nine lives. After what happened to me in 2009-2010 at the Seattle VAMC, the analogy is even more appropriate. I think I’ve used up about eight now and am coming to believe I am not so bulletproof as I would like to be.

The teaching moment is obvious. Those folks at Gilead Sciences deserve to see what caused their windfall bonanza. Trust the lazy Government to cut corners and try to save money on disposable syringes. Idiot’s delight. It has now come around in spades and bit them upon their buttocks. The more power to Gilead. Win or Die, right?

Road Trips! Love them.

Hug 2015 3

Four Gilead successes-Win or Die.

Four Gilead successes-Win or Die.

Again, Thank you Gilead Sciences for commuting my death sentence to time served.

 

Posted in 2015 Hugfest Gig Harbor Wash, All about Veterans, Food for the soul, HCV Health, HCV Risks (documented), Jetgun Claims evidence, Jetgun Manual, KP Veterans, Medical News, Nexus Information, Sofosbuvir, transfusions and hepatitis, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , , , , | 7 Comments

All VA-enrolled veterans needing HCV antivirals may get them now

What a crazy, crazy summer:  nutty politics, all-manner of leaks, evil violence, zika and more. Time to think about HCV again, a topic and problem that now seems easier to deal with despite all the misinformation/avoidance/denial that the government puts out.  Frank sends us this news from JAMA:

VA Extends New Hepatitis C Drugs to All Veterans in Its Health System (LINK).  The article is free to read.

The government agency is now beginning hepatitis C antiviral therapy for 1100 patients a week—double the figure from a year ago—and hopes to increase that number to 2000 patients a week by the end of this year, said David Ross, MD, director of the VA’s HIV, hepatitis, and public health pathogens programs. At the same time, the VA is trying to screen all veterans born between 1945 and 1965, who account for more than 75% of hepatitis C infections.

The article links to a CDC press release, “Hepatitis C Kills More Americans than Any Other Infectious Disease” which states that there were 19,659 (known) HCV deaths in 2014. 

JAMA notes that HCV is “the nation’s deadliest infectious disease, which kills more people in the United States than HIV, tuberculosis, pneumoccocal disease, and dozens of other infectious conditions combined.”

 I didn’t know that.

Better late than never?  Of course.  Yet for thousands of deceased vets and their families, it is too late.  For tens of thousands of “cured”  veterans, there are on-going side effects–physical, economic, emotional and social–to deal with.

Posted in Guest authors, HCV Health, Uncategorized, VA Health Care, vA news | Tagged , , | 3 Comments

WHEREFORE ART THOU JANESVILLE, WISCONSIN?

222When we drove back east every time from here in The Other Washington, we took I-90 through to Maine or dropped down to Virginia depending on where we were heading. The first time we took the I-94 side route over to see Gen. George Custer’s tactical error in northern Montana. In the summer, take a shorter-barreled 12 gauge with #4s  for the rattlers. Just a head’s up if you want to go off the trail for  some super photos of all those headstones. It sounds like a gazillion cicadas up there in July. A razor blade and a tourniquet isn’t such a bad idea either.

In our travels, we always ended up in Madison,  Wisconsin about 1830 on the second day. Cheeseworld. The house of Cheese. Cheesaholics Anonymous. Yessir. They have cheese there. They must sell a ton of Miralax, too. The next day we drove through Janesville on I-90 heading to Chicago. I remember it was a pretty small burg.What I could never comprehend was why they chose Janesville as the Evidence Intake Center for all the VA correspondence. The problem has been solved.

va-janesville2

The 59th VARO

I was watching the CBS news and they announced Representative ( and House Speaker) Paul Ryan was done campaigning for The Donster and was heading home to the wife and kids in his home town of … wait for it… Janesville. Seems if the VA wanted to get Congress on board for more dinero, they were going to have to set up shop in his congressional district. That’s a shit ton of jobs, Jose.

I just thought all of you might want to know that. It’s how they work. You scratch my back and get my folks jobs in Janesville and we’ll make sure you get some down yonder in Newnan, Georgia, Congressman Westmoreland. Roger that? Too bad the guys in Newnan got busted for piling it all in the back room. The shredders would have been next.

As Roseanne Rosannadanna used to say. “It always goes to show it’s something!”

download (1)

I got a letter here from Alex in Gig Harbor and he wants to know why the VA put their collection center at the ass end of the world in Janesville, Wisconsin. Well, Alex. This is how it works…

 

Posted in All about Veterans, KP Veterans, vA news, vARO Decisions | Tagged , , , , , , , , , , , , , | 4 Comments