FRIDAY THE 13TH–WHAT ELSE COULD POSSIBLY HAPPEN?

Posted on December 13, 2019 by

Time for a squirt of asknod humor on the squeaky, cranky soul. So far today I have had no calamities. Pickles, Widget and I all went to the Post office to launch some more VA torpedos. I finally figured out what to do to repair my BVA loss of Roberto’s claim. Remember Roberto down in San Juan, PR? Nurse Silvia of the old HCVETS  Delphi days sent him to me waaaay back when in about 2014. We got him SC for HCV–but at only 20% and then worked to get him up to 100% P&T. Sadly, that became all too easy to win on appeal when he came down with liver cancer. 

The problem is Roberto’s claims file shows all kinds of problems. Documents that VA averred burned up on Friday, the thirteenth of July, 1973 magically appeared from the NPRC ashes in 2013 …right before he won… I tried to do the §3.156(c) attack but the VLJ was too dense. I guess I shouldn’t say that. I had too many contentions going on at once. I violated the old, timeworn adage of keepitsimplestupid. I did a lousy job of trying to convey it on a video linkup with San Juan, Washington, DC and Seattle Washington. We lost the link 36 minutes into it. What? It was VA’s comm system-not AT&T. I guess I was expecting to get whiskey from a bottle of wine.

In any event, I struck out. I pondered going up to the Court and trying to present another version of a CUE. That cannot be done. We call that issue exhaustion. First, if you didn’t address it at the Board, and they did not rule on it, then it most definitely is not before the Court. The Court has, in limited instances of inextricably intertwined details and evidence, agreed narrowly to view the newer CUE contention. I doubted my theory would fly and I didn’t want to waste ol’ Roberto’s time left in the cockpit of life up at the CAVC.  I made a hash of this by not being anally specific . The judge misunderstood the premis and here we are.

Alexander’s big bellyflop at the BVA

 

I work with quick fixes. I attack. I don’t pedantically build bulwarks of defense and spend months studying the Rubik’s Claim cube. I call this style of law enfilading fire. Put your M 60 pigs on the flanks on full auto with tracers and let VA run into the incontrovertible evidence. Their own evidence, I might add.

I ascertain the path through the cfile maze in a quick review, formulate the argument in my mind and build the cites around it. In old cases, you have to go a little bit farther afield to Federal Circuit decisions in the 50s-70s. Hey, it works. You are not limited by the inception of the COVA in 1989 to your cites. Shit oh dear. Where did you think the early Court got all their bathroom reading material from? Their own cutting edge legal minds?

Roberto’s repair order took longer to unearth. I decided to start from scratch and do a chonological timeline of his file. I went back to the very first document filed in his claims file and there lay the Rosetta Stone. It was too simple. All this time I was trying to fight to get an effective date that was approximately 15 months after he got out. That was the filing date of his VA Form 21-526—9/17/1971. He got out July 15th, 1970. I  incorrectly figured I couldn’t get the golden first year protection because he blew off filing until three months after that first protected year. Or did he?

The Golden First Year

I mention the golden first year. Congress, in one of their generous moments, gave us a little present. If you fell ill or discovered your foot rotting off from gangrene in the first year after separating, it was automatically service connected. Yep. No shit. Granted, with hepatitis, you would have to get infected pretty close to separation. The incubation period from infection to exhibiting symptoms of Hepatitis B ranges from 30 to 180 days (one to six months). Roberto entered the SJVAMC on 9/10/1970 with yellow jaundice. He complained of not feeling well for the two weeks prior. Cigarettes started tasting weird. Lots of gastric upset. Loss of appetite. 9/10/1970 was 57 days after separation-well within the accepted parameters of the golden year for hepatitis. 

That first document was none other than an informal claim on a VA Form 3101 Request For Information. Nowadays it’s called a PIES request (Personal Information Exchange System). The VA sends out an SOS to the military to give them records they need.This particular document glows in the dark. It has more information on it that you could pray for. In block 3, describing the type of claim, there are two abbreviations: Orig. is Original as in original claim for benefits; Hosp. is Hospital (San Juan VAMC) meaning the original claim was filed in the…wait for it…. VA hospital. It was filed 10/31/1970…seventy seven days after separation from Active Duty. And, as everyone knows, if you go into the hospital and are definitely sickie, they start an informal claim. They are legally obligated to pass it on to the Regional Office for adjudication. The only hitch is that you have to file the actual VA 21-526 Claims form within one year of the filing of the informal claim. Roberto got his 526 in with 43 days to spare.

The 3101 also has a shiny new 8-digit VA claims number which I am legally obligated to redact. This proves the claim exists. It’s the authenticity I need to show its meaning. It’s the beginning of the claims file. The very first document. It proves the claim number was issued for an informal compensation claim and not a VR&E -generated number to learn how to be a carpenter. To put whipped creme on top, the VA date stamped it not once but twice on 12/28/1970 and 1/05/1971. Now you know it’s legit.

The 3101 also supplies the needed benefit Roberto is claiming-hepatitis. As we all know now, hepatitis can be multifaceted. We have Hep A, B and C. We have steatohepatitis (fatty liver. Ad nauseum. The point is it’s hepatitis not otherwise specified (NOS). Read my legal brief below and you realize how easy it was to unravel this once I found the defect. Remember, VA screws up everything. As a litigator or even a do-it-yourselfer, you have to find the loose thread and keep tugging. It ‘s childsplay to go shopping for more claims evidence in VBMS once you find the Golden Egg. Here’s the 3101 redacted. Roberto gave me permission to share this with you. If it helps even one of you Vets then He can die happier.

redacted 2

Here’s my brief. I hope it helps one of you. I decided to focus on several pieces of evidence that eluded inspection until 2013. One was sent to Roberto on about the 8th FOIA request for documents from the VAMC in 2001. That was the liver scan six months after an earlier one that showed “persistence of the active liver disease”. That’s longhand for “chronic”.VA can’t even remember to destroy the incriminating evidence. This is who you’re dealing with.

Roberto’s new CUE

I suppose there’s another theory of CUE I didn’t pick up on until redacting the above. What if this was an informal claim never adjudicated? Was there a phantom 526 at the hospital that was torn up but somehow managed to get that claim number issued before the coup d’grace? Who knows. Let’s let VA chew on this one for a while… but not too long. Roberto is advanced on the docket of anything because he’s living on borrowed time now. I pity the poor VA Examiner who gets this baby in his inbasket. $100 bucks says they hot-potato this around the NWQ a few times before someone pulls it out and shits. 40% from 15 July 1970 to 9/12/2017.

VA Examiner

Hey it worked for guns. Why not?

Posted in 3.156(c), All about Veterans, CUE, HBV, HCV Epidemiology, HCV Risks (documented), hepatitis, Humor, Informal Claims, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | Leave a comment

HADIT.COM RADIO SHOW THIS THURSDAY (12/12/2019)

Posted on December 10, 2019 by

I just got a call from Jerrell asking me to do a show this Thursday. I gladly accepted as I’ve piled up a ton of good things to talk about for an hour or more. I look forward to it. I hope to discuss some of the problems I’ve been having with VA and the shortcomings of the new AMA that are beginning to surface. It all sounded so cool when they announced it several years ago. The truth is far different from the promises but then we figured there was going to be a disconnect when the other shoe dropped. 

Not to worry. VA’s box of tricks is empty. All they have left is retreads of earlier mischief that we have learned to skirt around.

Be there or be an L7 (square). the call in number is still the same as far as I know and you can press one (1) if you wish to talk to any of us about an individual issue.

347-237-4819

 

Posted in All about Veterans, Appeals Modernization Act, KP Veterans, PTSD, SVR Radio on hadit.com, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

12/07/2019–YOU DON’T HAVE TO LIVE LIKE A REFUGEE

Posted on December 7, 2019 by

Great song. Great band. Great sentiment and it captures what I want to talk about today. 12/07/1941 was 78 years ago but the enormity of the event still resonates today. I utilize it every year, too. My wedding anniversary is tomorrow. All you have to do is read a newspaper or look at a newsfeed channel and there will invariably be a mention of the seminal date in history. Bingo. Drop by Albertson’s and get some killer flowers tomorrow for Cupcake…

This works very well for an established date but not so much for Easter, Thanksgiving or Fat Tuesday. But I digress. Today is all about the wonderful world of nexus letters-those elusive, sought after letters from your personal care physician about what’s wrong with you and how s/he, an M.D. mind you, is pretty positive your (pick all that apply: DM II, prostate cancer, IHD, NHL, porphyria, chloracne, PN etc. came from ingesting/inhaling too much Agent Orange for breakfast in (pick one- Thailand, Guam, Laos, Philippines, Korea) ________________.  Herein lies your error. You don’t ever want to dwell on how it was done wrong. You need the repair order. You don’t want to live your life as a VA refugee.

As I hope most know, you need three things to win-a disease/injury/risk factor/stressor in service, the same thing now and a well-reasoned Independent Medical Opinion. It’s also called the Nexus Letter. VA will offer their own c&p exam and it will find your malady is not related to service. They have a Cliff Notes© book full of excuses. It’s called the M 21.

I just received a Hep C referral from a good friend and major CAVC litigator to “fix”. The problem here is it never should have arrived at the Court in the first instance. It was appealed all the way up without any IMO. Or was it? The VA provided one for free. All IMOs are not equal. We usually come to find this out when we lean very heavily on our personal care physician (PCP) to write one. They don’t do nexus letters and IMOs. They do stethoscopes, oxycontin and malpractice. Hell, they can’t read their own writing. I’ve seen some daisies written by medical transcriptionists that are unintelligible or illogical. Depending on your own doctor to successfully do this is a crap shoot. Worse, you’ll never convince him to review all your service medical records and your claims folder. That would take weeks to accomplish. As we all know, VA’s favorite refrain is “We had our doc read all the records and your doc didn’t have them. Our shit is more probative”. And they’re right. They beat you fair and square- but only because they didn’t give you a copy of the rules in Dick and Jane Speak.

Option #1

Sadly, there are really only two ways to do this. Actually three if you count all the new VA “counselors for claims” specialists out there who will ramrod your claims for 40% of the total increase in  ratings percentage dollars times 6 months. Oh, and all those IMOs they wrote at $1,000 apiece you agreed to. Thus, if you went from 10% to 30% and your monthly check increased from $142.29/mo. to $486.69/mo. and you got retro back to filing in 10/05/2017, you have 40% of 6 months of the difference between the 30% and the 10%… or $2,066.40 plus IMO costs. But wait. You have to do all the filing. You have make sure you do it correctly.  All your “counselor” is going to do is set you up with a doctor or shrink to get an IMO to win with. The only good news I see in this is if you lose and your IMO falls flatter than a cheese souflé in a daycare center, there’s no charge. That’s option #1.

Option #2

Option #2 is to go with a VSO and accept the VA examiner’s IMO which pretty much guarantees a loss all the way to the CAVC and beyond. VSOs rarely win  unless you’re holding a CIB in one hand and a Purple Heart in the other. If you bring your own “real” IMO provided by your VA counselor/expert former DRO, you very well may prevail. As usual, VA will lowball you and phase two begins on appeal for a higher initial rating. If you win that, that VA counselor will promptly show up with his hand out again. Same gig- 6 months of 40% of the increase. And so on.

Your new BFF VA counselor will soon discover you have waaaaaaaay more wrong with you than you thought. He has you file for all those extras and gets you inspected and written up for all thoooooose contentions. You refile and if you win any of those, you have to pay the… yep-40% of the first 6 months plus the costs of any of those successful IMOs. The truth is one doctor sits down with you for 30 minutes and does 5 IMO examinations all together. You feel it’s basically one. When you win, you discover you had four more than you thought and they won… at $1,000 each on top of the 40% for 6 months.

Option #3

Option #3 is the best to my thinking-and not from my perspective as a VA ambulance chaser. You’ll be wanting to hunt down a good (read NOVA) lawdog for this project-not a run-of-the-mill, Yellow Pages, jack of all trades and master of none patent attorney. You don’t want a JD with a major in tax law or divorces doing this. You want someone who lives, eats and breathes 38 USC and 38 CFR. This is far easier said than done.

I know it’s becoming common knowledge as we spread the word on how easy it is obtain high-quality IMOs from top-dog specialists in the field. The problem is most reputable IMO companies will only deal with a professional like an attorney. Face it. Your red hot IMO written by your  RN roommate who’s still on her 6 mo. trial employment at Kaiser Permanente™ about your brain glioblastoma secondary to Camp Lejeune bathwater is pretty sketchy. Fortunately, a VA lawdog (or an accredited practitioner like myself) charges a flat 20% with VA looking over his shoulder.  Your representative charges you the cost of the IMO from their specialist(s) and I would pray they are as upright as me and don’t mark it up 30% for dealer prep and destination fees. There simply are no surprises in this nexus system. You pay for postage and copy fees. You pay half up front to research the IMO and figure out if a doctor can make it fly without lying. That is nonrefundable. If he agrees, you pay the second half upon completion and mutual agreement on the final draft language. Many times, I get my specialists to opine on the secondaries for the same price and then file after I win the service connection. I then resubmit the same IMO and point out the other diagnoses as my medical proof. I argue these were implied claims and the VA simply missed them. Hey, it works. VA caves in and grants. Since they didn’t deny it in the original decision, it’s basically pro bono. I don’t make anything off getting them up to SMC S. Win-win for me (less work) and for the Vet (more money in his pocket).

So here’s my Veteran’s SOC. Fast forward to page 23 for the  denial logic. For what it’s worth, I probably would have denied based on the new IMO#1.

VET SOC redact

The IMO- Dos and Don’ts

Now let’s talk IMOs. As I mentioned, not all IMOs are equal. VA makes a commitment when they deny your claim. They usually point to an IMO-like pronouncement by a proctologist or podiatrist that your  small cell carcinoma infestation of the brain is not related to AO  and importantly, why it isn’t. At this point, they’ve made a commitment as to the cause. They cannot change their reason/rationale.  Sadly, that is acceptable and usually passes muster even though it fails the smell test. The reason you lose is you have no IMO. But the good news is you now know what you have to have to win. Rebut the denial logic. You thought VA was going to provide you with a quasi-legitimate IMO. They did. It just wasn’t fair. You’re not a doctor so you now have to come up with your own IMO about 85% of the time according to VA win/loss statistics. Or, you go down the road as most Vets do and continue to bang your head against the wall with no IMO until you die or get a good law dog who recognizes what you need to win. Don’t feel bad. It took me 19 years to absorb this concept.

Chantelle

With that said, if you just go out and try to find someone who purports to do IMOs for a living, I think you need to do some research on them. I wish I had. Some of these “professional” folks will write one and it will fail. This is what just happened to me. I called the Shrink up and said “You augered in, Doc.” He says “Well, it’s your fault then. I worked with what you gave me.” This is not how it’s done. Let’s say you’re a baker. If you see you lack a naked lady to pop out of your client’s Bachelor Party Cake (and someone is paying you $2,500 to bake it), you don’t deliver it sans Mademoiselle Chantelle and then blame the buyer for the no sale.

A run-of -the-mill attorney who does divorces just handles your paperwork. He doesn’t go out and get an IMO. He has no clue how this works most of the time. He might if he does Social Security appeals but that’s about it. Same scenario. You law dog will probably author lovely legal arguments in your favor but doesn’t provide the Magic Paper. You lose and he revokes his POA and swears he’ll never do another VA claim again. Vets don’t understand that we do not have wheelbarrows full of cash to pay for IMOs. This is why it’s a two-stage process. If it cannot be done, you don’t have to  buy the whole enchilada and find out a year later you have a useless IMO.

I always tell all my prospective IMO writers to keep the law aspect out of it. The last thing I want is a shrink in a white Lab Coat waving a bottle of Valium spouting 38 CFR and that the client deserves at least 70% for his ______.  The law side is my job and I take umbrage with someone else muddying up the legal waters.  I find I can vocalize precedence better and avoid instructing the Examiner on how to correctly read M 21.  Bad form. Never dump on a mental midget. Besides, the CAVC has already spoken to certain lawyers who are also doctors trying to ride two horses simultaneously.

So here’s an IMO, written by a doctor of Psychology that flunked the VA audition. I’ll let all of you sleuths examine it and opine on what it has or doesn’t have in the way of compelling logic for the VA examiner to grant. I was less than impressed when I first read it and it doesn’t improve with age. VA said as much, too.

The blog today is my attempt at atonement. I was new to the IMO process in late 2017 and used it quite well.  I was contacted about the same time  by a psychologist who offered his services for PTSD/MDD claims. Shoot. He even invited us out to dinner to pitch his spiel. I promptly handed him off to my client to deal with directly. Boy howdy was that about wrong and two thirds as you can read below. It looks like I hired a lawyer to write it and he had to copy and paste it twice to make it look longer. Worse, I had to pester him to make grammar corrections-really simple stuff like missing/incorrect punctuation and spelling errors. He never did change the abbreviations like AVN. It took two weeks and they still missed half of them.  Expertise on a scale of five ?

*1/2

IMO No. 1 redact

I got the Legacy SOC back on October 9th last which gave me 60 days to shit or get off the pot and lose the client’s effective date of filing. I called my good friends at Mednick Associates and they came through yesterday (Thursday) morning. I assembled it with scant days left to do so.

IMO No. 2 redact

I am rather proud of my record as a litigator. I do not take defeat easily. I consider it avoidable. I promptly decided (with Cupcake’s concurrence) to buy another IMO on my own dime to right the wrong. As you can see, the author (#2)did some intense research on reams and reams of evidence and managed to cull far more that author #1. She was less expensive and did it in less than sixty days versus four months for the first grammar-challenged IMO. The quality of the finished product is Mednick Associates’  Hallmark. I have no doubt my client will prevail.

God I hate that when that happens

Posted in Independent Medical Opinions, Tips and Tricks, VBMS Tricks | Tagged , , , , , , , , , , , , | 2 Comments

CAVC– USING McWHORTER FOR FUN AND PROFIT.

Posted on December 1, 2019 by

Every day I go on Google news in the morning to see what wild and crazy articles they have. It’s a potpourri of liberal and conservative thinking. Some are better than others.

Former WH janitor overhears President saying ______to_______!

Turns out it was President Eisenhower and the guy resides in an Alzheimer’s old folks home at 1234 Yellow Brick Road in Oz, Kansas. I’m getting rather tired of it. No one got this heated up about Benghazi. That was like forgetting the air cover for the Bay of Pigs invasion in ’61. Where’s the outrage about Congress raiding the SSA Trust fund and slipping in an IOU? And now they espouse $55 trillion for free college and Medicare for all regardless of your immigration status? Helloooooooooooooooo????

The subject above has nothing to do with McWhorter. It’s just that I keep seeing articles in this same news feed from my good friends at Attig Steel and CCK with all kinds of helpful advice on how to win your claims. Granted, imitation is the dernier cri in flattery. I began teaching the Caluza/Hickson/Shedden  theory in 2008 after my 28-year fight to a win and wrote the “What You Need to Succeed” book in 2012. I’ve done a bunch of shows with John and Jerrell on Hadit.com over the ensuing years on this subject-et voilà- the big guns are finally beginning to follow suit. Don’t get me wrong. Veterans need all the help they can get. That’s the primary reason I began this blog.

Every law dog or Johnny Veteran should have a list of go-to cites to insert in a brief or argument. Either you’re arguing case (law) or you’re arguing controversy (what the facts really are). You can’t just dial up Westlaw every time you need the perfect cite. That’s $60 a minute and most Veterans cannot afford this level of extravagance. I used CAVC and BVA decisions to find my perfect cites until I discovered NVLSP’s Veterans Benefits Manual. Nevertheless, I still use the BVA  because the search engine on the BVA site is extremely phenomenal. The CAVC search bar is so-so in my mind.

I now collect and assemble the perfect cites as I run across them at the CAVC. When I began this journey unassisted in 2007 (the fourth time), I read every single CAVC decision written from 1989 to 1995. By the time I reached  Caluza v. Brown, I  finally began to “get it”. Those early, formative years of the COVA contain some killer cites which, while maybe having been relitigated by panels at a later, more recent date, still base their logic on much of this 25-30 year old precedence. Almost all these golden oldies imported Federal Circuit precedence which became the early framework for conversion by the COVA and fashioned into Veterans law with a heapin’ helpin’ of Boone v. Lightner. Always remember, VA law has a thumb firmly placed on the Veterans’ side of the scale of justice. Or at least it should.

Every law firm, as I say, including the DAV, VFW/ YOUR VSO etc. has their favorite ten or so cases that embody certain presumptions or case law that give Veterans a leg up. In this day and age of the new AMA, we are encountering gross errors and proof that haste makes waste. Either that or the old adage that Idle hands are the Devil’s Workshop is still a valid observation. Regardless, we are seeing a race to the bottom for legal ineptness now at the VA. This puts an inordinate amount of pressure on HLRs and most especially the BVA. Sadly, they are failing us. There’s a new, post-AMA stare decisis format afoot that embodies and espouses the new, endless Hamster Wheel litigation method.

I get NWQ decisions back with wild and woolly errors every month. I have to track down and call up (or email) the DRO Coach and politely ask what they were smoking in the alley during lunch break that day. If they shine me on, I cc: it to the AMO Big Guy with the initials D.M. back in DC. Miracles of miracles, the promulgated decision magically disappears from VBMS and it’s back in the EP 499 NWQ hopper for another week to remodel it. Funny, I didn’t think you could “erase” anything in VBMS-or VACOLS for that matter. Boy howdy was I ever wrong. Gene Groves put paid to that lie ten years ago when he outed the VA’s “backdoor” to VACOLS.  That’s why I always screen grab it when I see it and save it as a .jpg. The evidence comes in handy later when the Secretary trots out his post hoc rationale for prior Agency action which, noticeably, doesn’t encompass his development actions.

This can be extremely valuable at the BVA when the WACO VSCM says the defective Rating Decision “never happened.” Of all precedence, I have been dragging out an Oldie to combat this notion that a rater can say “We denied you based on this”. Most recently, since 2/19/2019, if you resubmit anything new into evidence, they merely move sideways and change the logic for the denial to comport with defeating your new contention. Litigators used to combat this inane propensity with Martin v OSHC in the past.  This is why McWhorter now has more “punch”. It’s been sitting in the CAVC basement almost 30 years and rarely cited.

MacWhorter_90-935a

MacWhorter_90-935b

The accepted legal essence of McWhorter generally overlooks its extra inferences. Here’s the gist.  Let’s say you file a claim for Hepatitis C and claim alien abduction s/p brain transplant as one of your risk factors (in addition to the accepted HCV risk factors). The Secretary says it (the Hep C) isn’t related to jetguns, shared razors, unsafe sexual practices or shooting up with shared syringes. He says you were born between 1945 and 1965 and that’s what probably did it. However, let’s say he fails to rule out the alien abduction and artificial brain implant with unsterilized alien surgical implements as being the risk factor. On appeal you win because by not specifically denying infection of Hep C predicated on that risk factor, the Secretary essentially concedes the risk. That’s a very simplified explanation…

MacWhorter v. Derwinski, 2 Vet.App. 133, 136 (1991). “Yet,[w]here [an] appellant has presented a legally plausible position . . . and the Secretary has failed to respond appropriately, the Court deems itself free to assume . . . the points raised by [the] appellant, and ignored by [VA], to be conceded.”

see also Mari v. Shinseki, No. 08-1175, 2009 U.S. App. Vet. Claims LEXIS 1545, at *4-5 (Vet. App. Aug. 31, 2009) (nonprecedential) (“[T]he Court deems conceded ‘points raised by appellant, and ignored by the [Secretary].’”).

Now, I’m not saying being abducted by aliens is a viable, credible risk. I merely use it as a off-the-wall humorous example.  Look further.  How about once the Secretary says your claim for bladder cancer is not related to your exposure to Camp Lejeune water contamination, you bring out the direct service connection path and say working in the motor pool with excessive benzene exposure did it. VA can’t keep changing positions. Once they fail to plug a hole (read rebut) on a reasonably filed claim for benefits, it’s fair game. If they focus on the presumptive and ignore the direct, you yell Combee v Brown and hand them an IMO. Bingo. You’re a chicken dinner winner. Hart v. Mansfield/ Mariano v. Principi/Kahana v. Shinseki and its progeny prevent them from chasing down a Hoodoo Lane in search of a pliable VA examiner willing to accept 30 pieces of silver to rewrite a viable denial. Correction. It’s probably more like 36 pieces of silver due to COLA nowadays. I love Hart:

Mariano v Principi, 17 Vet.App. at 312,  states that it “would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant’s case.”  This single sentence, although rendered without further explanation, states a broad, general proposition, that was revisited by the Court in Hart v. Mansfield, 21 Vet.App. 505 (2007). Hart stated that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination. 

Even though the presumption of regularity of VA doctors is protected by Sickels v. Shinseki, as a litigator or a DIY pro se claimant, you should be begging for Chevron deference and  make the Secretary choke on his own 38 CFR. Never ignore Chevron. It can be your huckleberry in a lot of instances.

Justice Mary Schoelen w/ author

At Fall NOVA, during the Friday evening Adult Beverage Consumption Hour post-conference, I asked Judge Mary Schoelen what she considered her most famous legal contribution to Veterans Law. She confided that there were so many it was hard to pick a favorite. I get that. When you have 15 years devoted to the betterment of Veterans Law, it can be a daunting task to pick only one.

Distilled to its essence, my 10 personal favorites which I use  religiously, are the ones which confer lay credibility (Layno v. Brown), sympathetic development (Moody v. Principi), inferior legal assistance (Comer v. Peake), reasonably raised claims or arguments (Robinson v. Peake), agency deference(Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.) , you’re not a doctor so why would VA grant you that distinction when they don’t in Layno? (Clemons v. Shinseki), maximizing SMC (Buie v. Shinseki/Bradley v. Peake), going for the highest and best rating attainable (AB v. Brown)  and lastly the correct reading of 3.303(b)-[T]he regulation, 38 CFR §3.303(b) requires continuity of symptomatology, not continuity of treatment) (Wilson v. Derwinski) . I have more but these are my go-to barn burners. And of course McWhorter.

Patricia McWhorter’s epic saga is becoming ever more useful now based on the recent  proclivity of the Secretary to change or alter his decision rationale on your claim after the  initial denial in the subsequent 0995 Supplemental claim denial. It’s becoming ever more difficult to keep the claim/reopening on point short of filing a VAF 10182 NOD and taking it up to the BVA. Even then, I recently hit the wall on this with VLJ Cherry Crawford. She refused to talk about tinnitus secondary to getting blown up by a 60mm Gook mortar round. The logic? Why, he didn’t file for tinnitus. He filed for perforated eardrums (bilateral). If he wanted SC for tinnitus (which he couldn’t even spell), he should have said so. No tickee-no laundry. So what if he stated at the C&P exam that “I have ringing in my right ear”. So what if they noted in the EENT exam four days later that he indeed did have tinnitus. No dice. He didn’t file for it. No sympathetic development here. Move along. Nothing to see, folks.

VA Justice should not require a VA lawyer in our nonadversarial, Veteran-friendly ex parte justice system. If your records show a clear causation for your ills in service, you should not have to engage in a 5-year battle over acute versus chronic. My greatest joy was finding Caluza v. Brown and the VA’s Rosetta Stone for winning my claims. This is why I enjoy such an incredible win/loss rate (1500-ish/2). An IMO is like an American Express card- Don’t leave home to litigate without one.


Pour votre amusement:

Posted in All about Veterans, Appeals Modernization Act, CAVC Knowledge, CAVC/COVA Decision, Humor, Inferred claims, Informal Claims, KP Veterans, NOVA Attorneys, SMC, SVR Radio on hadit.com, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , , , | 9 Comments

Pres. Trump spends Thanksgiving in Afghanistan with the troops

Posted on November 28, 2019 by

Today, let’s forget politics!  This trip is a welcome morale booster for tomorrow’s veterans.

Presidential Proclamation on Thanksgiving Day, 2019–released 11/28/19.  (LINK)

….This Thanksgiving, we pause and acknowledge those who will have empty seats at their table.  We ask God to watch over our service members, especially those whose selfless commitment to serving our country and defending our sacred liberty has called them to duty overseas during the holiday season.  We also pray for our law enforcement officials and first responders as they carry out their duties to protect and serve our communities.  As a Nation, we owe a debt of gratitude to both those who take an oath to safeguard us and our way of life as well as to their families, and we salute them for their immeasurable sacrifices….

Happy Thanksgiving, Laura (Kiedove/Guest author)

Posted in Uncategorized | 2 Comments

A LRRP THANKSGIVING

Posted on November 28, 2019 by

Only a LRRP like my good fried Ed would search far and wide to find this kind of humor. Happy Thanksgiving to all and a quick preliminary intro to Christmas humor. 

And the new Apple I- 11 gun commercial

Last but not least, from the Eastern Entertainment Capitol of the World, I bring Bruce Almighty’s latest Christmas humor.

Posted in Humor, KP Veterans, NOVA Attorneys, VA Agents, Veterans Law | Tagged , , , , , , , , , , | 2 Comments

When not to “Take the Pain”–New Urgent Care benefit for VA enrollees

Posted on November 25, 2019 by

Shut up! It’s Sunday!

Bill jargon.  Yawn. But stay with me for a little while because the Urgent Care* benefit is worth knowing about– especially for veterans who only have VA health care.

VA > Health Care > Community Care > Urgent Care: LINK.

The old VA Patient’s Choice cards program are toast now that the Mission Act of 2018 (S. 2372) is enacted but gotcha’s still exist. (Gotcha is VA’s middle name.)  An ominous  “Scope of Care”example from Federal Register Final Rule:

VA will not provide an exhaustive list to account for the needed flexibility in administering the benefit. VA will monitor utilization of this benefit and may make further revisions to the website in the future. Any services provided that are outside of the scope of this benefit are the financial liability of the veteran.

But, but…the scope of care is not defined for patients and providers. And where are the promised educational Sec. 120 materials?  

Page 6, Mission Act LINK

‘‘(2) The Secretary may limit the types of hospital care, medical services, or extended care services covered veterans
may receive under paragraph (1) in terms of the length of time such care and services will be available, the location
at which such care and services will be available, and the
clinical care and services that will be available.

Congress says, ‘‘§ 1725A. Access to walk-in care  (Sec. 105, page 20-21)  “The Secretary shall develop procedures to ensure that eligible veterans
are able to access walk-in care from qualifying non-Department
entities or providers.”

This commandment makes sense but limits local providers because most are not connected to VA virtually and rely on fax machines.  Therefore a “continuity of care” method may not qualify as a suitable “…establishment of a mechanism to receive medical records from walk-in care providers and provide pertinent patient medical records to providers of walk-in care.”
Result? A puny list of network providers.

The Secretary may enter into contracts and set copayments.
‘‘(h) WALK-IN CARE DEFINED.—”…means non-emergent care provided by a qualifying non Department entity or provider that furnishes episodic care and not longitudinal management of conditions….”

The VA Urgent website gives a very short list of covered services, much shorter than services often available. Vets and non-VA regional hospitals have been burnt badly by promised but unpaid non-VA emergency room visits. Will this negative history repeat itself with this “high value” health program?  Some locations, like Walgreens, can give free flu shots, but don’t even think about getting any free routine preventative services at urgent care even if they could be combined with an urgent care treatment at a low cost to VA!

Are you eligible for zero ($) copays or $30 copay visits and RX (14 days max)? This depends on your Priority Group and VA-enrollment status within the last 24 months.  Caveats–unknown issues:  Service-connection copays?  How does other health insurance influence payments? 

Overview (again) page with video: https://www.va.gov/COMMUNITYCARE/programs/veterans/Urgent_Care.asp#Medication

To find contracted Urgent Care use Tricare’s imperfect locator (Call before going):

Step 1. Read the locator warning page:  https://vaurgentcarelocator.triwest.com/

Step. 2 Scroll down and Pick

VA Urgent Care and Retail Locations

https://vaurgentcarelocator.triwest.com/Locator/Care

or VA Urgent Care Pharmacy Locations

https://vaurgentcarelocator.triwest.com/Locator/RX

To see inside the rule-makers tricky minds–check out the Final Urgent Care rule. Also, it’s interesting to read the commenters thoughts about copayments and VA’s responses.

https://www.federalregister.gov/documents/2019/06/05/2019-11468/urgent-care

*  “VA refers to this benefit as urgent care, instead of walk-in care. This benefit will include care provided at both urgent care facilities and walk-in retail health clinics.

So if it is the weekend, and darn it, you’ve fractured your finger, been bitten by a deer tick, or python, or merely sliced your skin wide open for viruses to “come-on-in”–doing something reckless with rusty metal…why delay?  You’re probably covered but ask questions.  Bring your VA ID and see a VA-network doctor close to home–fast!  

by Laura (Kiedove/Guest Author)

BAD THIS YEAR IN NEW ENGLAND— The Lyme disease bacterium, Borrelia burgdorferi, is spread through the bite of infected ticks. The blacklegged tick (or deer tick, Ixodes scapularis) spreads the disease in the northeastern, mid-Atlantic, and north-central United States. The western blacklegged tick (Ixodes pacificus) spreads the disease on the Pacific Coast. Image: CDC  Click for article

Posted in All about Veterans, Food for thought, General Messages, Guest authors, Medical News, non-va care, Tips and Tricks, Uncategorized | Tagged , , , | 5 Comments

LZ GRAMBO–WHEEL IN THE SKY KEEPS ON TURNING

Posted on November 24, 2019 by

Permit me to ask you, my readership, to welcome another LRRP (pronounced Lurp) who joined the asknod Win or Die Club this week. Say Hi to Eric. The entry fee was his IHD from too much AO for breakfast. To give you an idea of what timber Eric’s cut from, let me share his redacted 214-215 below. He’s buddies with Ed the LRRP I wrote about earlier this Fall.  Seems I’m a little bit like them. I didn’t get any of my medals when I separated either.

ERIC THE LRRP 214-215

 

I was peeved I was shown the exit prior to my parade and medal presentation. It took me 43 years to extract them from the cold, deadly hands of the USAF. Ed the LRRP had buddies he served with and his commanding officer who put him in for a Silver Star back in 2014. He was my neighbor for a few years and just moved down to the south Portland Willamette River exurbs. We did lunch together at Fall NOVA this year. Ed’s the one who sends me lots of the funny stuff I put on here. Unfortunately, Ed’s filter is broken so I have to vet his submittals. When you actually survive a war with a few dings and holes, your perspective changes. A good car becomes one which can do 140. You become bulletproof right up until the time when you discover you aren’t. You think humor is how you look at it. I agree. I sat down one day for lunch in LS 15 Ban Nam on a stack of body bags because it was softer than sitting on the ground. What the hey? The folks were dead. They made damn good furniture. If I’d had more time, I could have fashioned a crudely shaped recliner.  Rigor mortis hadn’t set in yet. Necessitas est ingenii mater.

Eric the LRRP enlisted in 1965 from Idaho and is now back, retired there and loving it. He, too, went back to set the record straight in 2014 and added two Bronze Stars with Combat V and OLC.

Back in our day, in Vietnam (in the Army), the Commander got a Silver Star for  hunkering down in the TOC during the firefight with two flak vests on-with one fashioned like a diaper. The platoon commander (Slats) would get the Bronze Star and the Grunt usually got an Army Commendation Medal-with the Squad Leader maybe getting a V for valor on it. Murphy was entirely correct in positing that Shit rolls downhill- mostly to your disadvantage. Call it Military Politics. Nowadays, every Dick and Jane with an O-2 or higher rating seems to garner a Bronze Star just for a 30- minute layover to refuel in Balad. Shoot. Look at Senator Lyndsey Graham ( no relationship to me). He was a lawyer over there for a month and has a Bronze Star. They all have Berets to make them feel “inclusive” and elite. They still have “I was there” medals to pump up morale, too. Shoot, I forgot to mention Combat Action Badges saying you were within 90 miles of the front line and could actually hear the artillery. No, I’m just kidding. War is Hell. Vietnam was just a speshull kind of hell with 15 year old food.

Of course, now that I did the right thing for Eric, he belatedly decided to mention  the right hand he took the AK round through is getting funky. It’s hard to use a fork and he sometimes looses the spoon to the peripheral neuropathy. His PTSD is getting worse because.. well, hell watch the news is why. Everybody wants to sell their digs in California before they burn or the ice creme melts and move up to… Idaho. There goes Eric’s neighborhood.  After all this, I’m guessing he’s a candidate for TDIU so we’re going to cut some young bamboo and dig us a VA Punji pit. I love VA poker.

I’d like to wish you all a very happy Thanksgiving. Cupcake and I had some ups and downs with the cancer (her) and the kidneys(me). The wheel in the sky will keep on turning and I’m pretty sure we all will too. I’d give my left nut to get fifty more years of torturing the Department of Veterans Appeals. I never thought it would be the left kidney.  Considering I never thought I’d get out of Southeast Asia alive, this added time to my life is all gravy.

Posted in 2019 Fall NOVA Portland, Agent Orange, All about Veterans, FACE HUMOR, Humor, Inspirational Veterans, KP Veterans, VA Agents | Tagged , , , , , , , , , , , , | 2 Comments

VETERANS DAY 2019–UDORN RTAFB– MY BAND OF BROTHERS

Posted on November 11, 2019 by

Ray w/ captured DShK .51 cal. in 7th ACCS aircrew briefing room

Yet another Veterans Day story in the “pages of our war” lives. This one hits closer to home for me on several different levels. I wish to introduce you to Ray from Texas. Once upon a time, Ray served over me in a  C-130 with a Theatre Air Control suite. Several air controllers could summons and direct vast air assets where needed. Ray’s 130 flew a racetrack pattern over Military Region II (MRII)- code name Barrel Roll. South of us along the Vietnam/Laos border was a similar MR III called Steel Tiger. Most of it was unrecognizable at 32,000 ASL. Hillsboro’s racetrack pattern was primarily over the Plaine des Jars… once upon a time… in a farwaway country that rhymed with “mouse”. My nondisclosure agreement expires next September 20th (2020) or I’d go into greater detail. It’s a dilly of a story. It makes Terry and the Pirates look like a bunch of Snowflakes.

His was often the voice that greeted us on 118.9 Mhz upcountry when we called in requests for air strikes. His call sign was Hillsboro. The nighttime version of this was Cricket.  In all probability, I probably talked to this man more than once 49 years ago. That he would find me, Buckwheat,  and seek representation for AO in Thailand is a fantastic coincidence. Even more so, that I could take his BVA remand and turn it in to a full-blown route in his favor is better than a Supersized Roy Rodgers with three maraschino cherries and extra juice. You get better odds on  Scratch and Sniff Lotto tickets for $1000.

Ray in front of Hillsboro Operations Hqrs. Udorn RTAFB 1970

Of all Vets, even as a Thailand-based Vet, Ray should not have had to fight this fight. He was aircrew and they often had to beat feet and land at Da Nang or Cam Ranh if the NVAF sent any Migs up to snoop around. With that testimony and his Air Medal showing combat, he should have been granted presumptive exposure and not been put through five years of pure hell. Prostate cancer and the post-cancer residuals are pretty nasty. Throw in some serious DM II/PN and you have a world of misery on top of your VA claims.

Ray came to me and needed a repair order. What kind, he was unsure of. I made no bones about it about ten seconds after I got my CMA to expedite the Power of Attorney in VA’s computer. I plumb laid into the David Koresh Memorial Regional Office in Whacko, Texas. I let them know this was not going to be a Texas Necktie Party on my watch. I made it clear I was getting a SME (Subject Matter Expert) IMO (Independent Medical Opinion) to rebut anything they came up with for a new hangman’s noose and a fresh horse. I just didn’t say when. Within a month, some gomer GS-13 with a goofy voice named Fred McGonagil or similar rings me up and says he’s figured this all out. Stay with me now. This is going to grate on some of you Thailand Vets’ ears if you’ve been fighting this thing for a while.

Since our boy Ray had to pack up the 7th ACCS’s paraphernalia and take it from Udorn to Korat RTAFB via a deuce and half in ’71 when they relocated, it stood to reason that he had to have gone off base and was exposed to- guess what?- AO- or rather ‘tactical herbicides’- in polite Thai parlance. The King had forbidden its spraying in his country. He wasn’t any dummy. By now, he’d had a decade to appreciate what Agents Pink, Green, Purple and Super Orange had wrought in Laos and the Vietnams. I guess he figured A White and A Blue were not quite so toxic. Fat chance. Worse, when we quit spraying it in the RVN, they just transshipped all the leftovers where it was needed… around the inside perimeters of our bases in Thailand.

Ray airborne in ABCC A/C over MR II circa 1971.

You can see why this dog won’t hunt. AO (or whatever) was sprayed, as I just mentioned above, inside the perimeter to keep firing lines clear. Of course, if the gooks got inside the wire, our barracks were about 40 feet away anyway. We would have been toast in seconds but every one of us already walked through AO to go anywhere on base. If exposure was to be granted for being outside the wire, it brings into question all the troops who went off base every weekend to go drinking.

So, my guess is they did some JSRRC (Joint Services Records Research Center)  sniffing and the command history of the 7th ACCS popped up showing occasional diversions to a RVN base. What better way to dodge the stupidity bullet and admitting your ignorance when you can unilaterally alter the regulations by granting SC for being off base. Who will ever know? About everyone who reads this blog, I hope. Hell, based on this, having a STD should automatically give all of you Thai Vets presumptive status, right?

Regardless, VA has screwed up as only they can. §3.103(c), written by our beloved Secretary, states in no uncertain terms…

38 CFR § 3.103 – Procedural due process and other rights.

§ 3.103 Procedural due process and other rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

That’s pretty powerful Ju-Ju. What it means is VA forgot to grant Ray SMC K for loss of use of a creative organ. Worse, they short-sheeted him on SMC S as well. Buie v. Shinseki is unequivocal that you must maximize any award and most especially SMC awards. Having prostate cancer sort of screws things up as only VA knows. Worser, DM II also does, too. Worser yet, VA knows all this. How can they feign medical ignorance?

Ray got 20% for DM II, 40 % for PN R upper, 30% for L PN upper, 20% for L lower PN ; 20% for R Lower PN, 20% L lower femoral nerve PN and 20% R Lower femoral nerve PN. As you VA mathematicians can add, this is 82% (plus the bilateral factor if you’re terribly anal). Most importantly though, one of the DM II ratings is 40% or more with the balance adding up to 70% or more entitling Ray to TDIU consideration. Equally, a rating for Prostate cancer s/p remission at 60% is also equally entitled to consideration for TDIU.

VA chose to add all these ratings up to arrive at a “combined” rating of 100% or greater. However, this is incorrect. The proper way was to grant TDIU for the 60% s/p Prostate residuals and grant SMC K for LOU plus SMC S for an independently ratable 80% for the residuals of DM II. Or, in the obverse, grant TDIU for the DM II plus residuals and award SMC S for the 60% s/p Prostate. Six of one and half a dozen of another. Trust VA to come up with the least benefit possible. This is becoming the norm in VA “cost-cutting” since the AMA was dreamed up back in 2017.

So, it’s back up to the BVA hamster wheel for a few more months for poor Ray. One of these days you folks will believe me when I say VA is not your BFF. Anyway, it’s one hell of a Veterans Day warm, fuzzy tale and its entirely true, or will be, on 9/23/2020. Thank you Ray for trusting your appeals to me. I hope I passed the audition. Here’s a great shot of Ray and Muriel. It’s why I so love doing this work. You just can’t make this stuff up.

As a P.S. I wish to thank my local Les Schwab Tire Store in Gig Harbor, Washington for fixing two of my tires this morning for free and they weren’t even purchased there. The young man refused payment…and thanked me for my service. I knew that “I served in Vietnam” bumper sticker would pay off eventually. Did any of you know Les Schwab was a Veteran, too? 

 

 

 

Posted in Agent Orange, All about Veterans, DM II, From the footlocker, KP Veterans, SMC, Thailand AO presumptive path, Tips and Tricks, VA Agents, Veterans Day, Veterans Law | Tagged , , , , , , , , , , , , , | 8 Comments

The Color of Kabul—Veteran artists impress

Posted on November 11, 2019 by

Happy Veterans Day!

The VA runs social programs designed to build morale and skills by doing enjoyable things.  One just finished in Kalamazoo, Michigan (Oct. 28 -Nov.3).  It was called the National Veterans Creative Arts Competition and Festival. (LINK) The sponsors were the Am. Legion Auxiliary and Battle Creek VHA.

I’ve choosen four 1st Place Winners to share in honor of Veterans Day and in appreciation to all who shared their gifts with others.

The Color of Kabul

The Color of Kabul Military, Combat Experience, by Dennis Linn 2019 NVCA Competition   Click for larger image.

Lady in Bed

Lady in Bed, Oil Painting,  Jerry Zabel 2019 NVCA Competition   Click for larger image.

 

A Sacred Resting Place, Carving , John Lopez 2019 NVCA Competition  Click for larger image.

Sky Blue on Seven Mile Creek Pastels Richard Babcock 2019 NVCA Competition   Click for larger image.

National Veterans Sports Programs & Special Events
FAC T SHEET (LINK)

VA’s Flickr shows many different examples of the fine arts and folk arts that were in the exhibitions.  Enjoy: https://www.flickr.com/photos/veteransaffairs/albums

The above works are “museum” quality; congrats to all the creators uploaded on Flickr.  Beautiful work.

Guest author:  Laura (Kiedove)

 

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, Uncategorized, vA news, Veterans arts, Veterans Day | Tagged , , , | Leave a comment