THE WEEKEND NEWS

The good news is a Hadit.com radio show is scheduled for next Thursday, the 26th of April at the same Bat time (1600 Hrs Local or 1900 on the (L)east Coast) and the same Bat channel . We’ll be discussing all the interesting facets of VBMS including reading notes by all those busy little  appeals team elves and elvettes. More good news is I finally convinced the Seattle Fort Fumble that our LZ Cork survivor Butch Long is ready for rating. If you want to get a leg up on this interesting story, you can tune in at the CAVC ECF case search on # 18-1009. 

Now for some bad news. Member Loyal of both boards informed me yesterday of the impending demise of the Military Order of the Purple Heart (MOPH) as an independent Veterans Service Organization (VSO). The article link is here and mentions 52 Veterans Centers nationwide they operate. I’m not sure if that includes their presence in VAROs or just in outreach centers. I always hate to see one of these organizations bite the bullet. We need good stamp lickers and mailmen to ensure a timely denial to appeal from. Eventually, there will be more agents and attorneys with real legal talent involved in the game but any VSO loss is still a setback to access.

http://www.kwtx.com/content/news/Waco–Purple-Heart-veterans-service-center-to-close-its-doors-480422933.html

Shadow 2003-2018

We lost Cupcake’s Shadow to old age yesterday. He was nigh on to 15 and had a good 12 years here at LZ Grambo. We’ll plunk him down in the pet cemetery with the rest of our faithful fourlegged youngsters. We’ll observe mourning for a year. I aim to redog next spring-maybe one of those new silver labs with blue eyes. Give her one of those suggestive names like Brandywine’s Chanel No. 5. In real life she’ll be my Daisy. And we’ll be doing doggie hospice all over again in 2032. Widget is 7 or 8 so we don’t expect to have another hospice coming up until 2025 if all goes well.

 

Buddy

This is a classic reason for my buying my parrot Buddy in 1979. He was born a month after Tet 68. I got him when he was an eleven year-old snot nosed punk with a pink topknot. He’s getting pretty yellowed out now too at 50. Truth is I thought they lasted for 80-130 years. I was going to get revenge on my daughter or son. Turns out he’s an antique already. Parrot hospice is going to be tough.

To call in and talk to John, Jerrel or myself:

347-237-4819 plus the number 1

 

 

Posted in C-Files and RBAs, Food for the soul, KP Veterans, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 2 Comments

FORT FUMBLE, OAKLAND–THE TAR BABY TECHNIQUE

Every once in a while you meet a guy who needs some help and you agree to be his huckleberry. He files and loses as we all do or we wouldn’t have sites like this. It’s a right of passage. If you hadn’t lost, Hadit.com would have had it by now. If you had never filed a NOD and bit the bullet, you wouldn’t be asking me about your NOD -asknod.org. Get it? I was going to name this What Would a Veteran Do? WWVD™ just resonates and practically rolls off an old Veteran’s tongue, doesn’t it? Cupcake sure didn’t buy that shit.

Anyway, imagine the luck of the draw.  Meet Steve Vet. He lives a few states south of me. You have Stage 4 (late Hep C and you just got the cure. You’re sporting esophageal varices. Not good. CT says 7/8s fibrosis. Portal gastropathy, cognitive dysfunction, rheumatoid-like arthritic symptomatology. Need I go on? How about them kidneys? I’m blowing about a 1.62 on the creatinizer so I know. Many of my readership live this every day.

Our buddy Vet Steve here is toast. He files for Hep C but the VSO files it as a ‘geographical’ type of claim. Aruuu? Hep C from Udorn RTAFB in Udon- Thani Thailand? Thank you Mr. VFW VSO. He really helped us if you think about it. VA thought they had an easy smackdown on this. But that wasn’t all. He admitted back in 2008 to some White Lady hanky panky involving a shared straw. But not any straw.  He even said this one had what appeared to be dried blood on it. Well, shoo doggies. Anybody with a smite of brains can see VA tying that extra-speshull knot over near the big  tree and leading in a fresh horse. Tie it they did and hanged him. He contacted me with this concoction and threw in as how the STRs were AWOL and he had nothing to show anybody that might mitigate in his favor. He forgot he’s a walking encyclopedia of medical evidence.

That, my friends, is about the lousiest poker hand you can draw. Or is it? By admitting in 2008- long before he ever filed a claim- that he had a drug problem involving toot was like taking a 12 gauge to a wasp’s nest. They came out in droves and circled that statement like it was Delphic Oracle material. Here, unarguably,  was the reason he had hep c. Nobody on earth could disagree with this. Better yet, giving the poor boy heightened attention due to the lack of those STRS from 1970, it was just far more likely than less likely that he got it from failure to yield right-of-way to that nose candy. When he got around to filing for it last year, sure enough out came the damning evidence.

And then he said What’s next? Here I am, Buckwheat. Lead me out of the desert, please. Jez, what can you say to a fellow zoomie who served in the same place you did and suffers the exact same disease? I promised him but I sure didn’t know the minutiae. Of course I volunteered but I sure can’t say as I felt it wasn’t a lost cause until I began to draw up the field of battle. It was a mighty strange bag of facts, but from VA lemons eventually come Veterans’ Vodka lemonade.

Euell Gibbons to the Rescue

Yep. Ol’ Euell was a Groundpounder in the 30’s

If you had cirrhosis and ascites, it means you got the hep about 40-50 years ago depending on if you were burning the candle at both ends. If you broke it in the middle and were burning four ends simultaneously, well,  you’d be pretty near charcoal in half that time. But… if you were a Euell Gibbons Grape Nuts kind of Vet, you might last a wee bit longer like our Stevie Wonder here.

Anyway, Steve filed his claim per my instructions so we could get the drug thing out on the table. This is important. You want the VA to see your claim bet and raise you a 1988 coke blunder. That’s a finding of fact now and it remains so until you dislodge it and set your own reason out there. Right here is where they stepped on their necktie.

We promptly went to our lifelong friend of free Hep C nexus letters and asked him to opine not just on jetguns and shared razors but the 1988 coke accusation as the etiology of his hep C. Right on point. He gave us a glowing IMO- the best I’ve every had from him that poked a big hole in when VA contends the hep began. If he got it from parking Lamborghinis and Porsche’s up his nose, then he could expect to get his cirrhosis and varices by… wait for it…. 2028. Yeppers. Add 40 + years to 1988 and you’d have Steverino’s current liver state ten years from now. Stevie isn’t a big ETOH (Extremely Trashed Or Hammered) kind of  guy. Tying one on in Steve’s parlance is two glasses of wine on a weekend…on succeeding days. Beyond that, he’s a Trail Mix guy who likes nuts and Wheat Chex. Sometimes he goes off the reservation and has some Whey flakes in heavy unpasteurized creme!

The great big fire Friday the 13th of July 1973

So, no STRs… What to do? Well, first of all, since Hep C wasn’t identified until 1989, you sure aren’t going to find anything pro or con about getting hep c in the contemporary STRs. This takes a great burden of proof off the claim. We all had the jetgun/shared razor/ wild and crazy sex risks back then so these are basically documented contemporary KNOWN risk factors. Toss in we’re 66% more likely than not to have it if we’re Southeast Asia (SEA) theater Vets and the odds go up some more. So now you’ve erased what most would call a huge deficit for corroboration of the claims pro or con.

But best of all, when you play VA poker, sometimes VA just gets too eager and jumps the  gun prematurely.  They are so sure they have the Big Chicken Dinner Winner  you cannot beat. Snorted coke? You’re toast, dude. Shoot, we can have this typed up and in the mail next week . Fully Developed Claim to the rescue! Or not. If your nose was clean in service- and his was as evidenced by his military records they did manage to find- then the benefit of the doubt has to tilt towards him. Throw in a set of square medical facts that only fit into a square hole and, with a killer nexus letter, you’re in high cotton.

The Tar Baby Effect

VA now has one and only one medically shaky nexus and they have to stick with it. They saw the initial 1988 coke bet and raised. Stevie just saw their raise and called. Stevie has a pair of aces to the VA’s pair of Queens showing. This is not to say VA might not run out and buy an Independent Medical Evaluation (IME) at the BVA or beg the original rater to “review” redo the coke nexus somehow. But they cannot. They poured concrete around the cocaine straw as the sole risk factor and unless they can prove they committed cocaine CUE and retract it, it remains the coke’s fault. Remember, VA has declared the coke straw as the culprit… in 1988. That is now a finding of fact aka a binding decision. They have to stick with that story. Steve sucked them in. It’s a classic tar baby attack. I’ve used it. Inveigle the VA Examiner into glomming onto the too-obvious coke risk. You can’t hide it so use it. Remember what Muhammad Ali once called rope-a-dope? Make her look like she got her RN out of a mail order catalog. Then you present your direct connection to service with IMO and rebut this presumptive coke risk nonsense.  The claim is now more than in equipoise and §3.102 is for application.

Check out this argument. I’d say the old Stevemeister is headed towards Bucks Boulevard or Dollar Drive. Sometimes you win these things by going backwards before you even get started. Click on it to make it larger.

And the extra 7 pages…

Steve’s most excellent NOD

See. It always goes to show. Tell the truth from the git go and let it take you were it will.  So easy us  cavemen with no juris doctorates can stumble through it.

Posted in 38 CFR § 3.156(b), All about Veterans, Blood info, BvA HCV decisions, De Novo Review, HCV Health, HCV Risks (documented), Jetgun Claims evidence, KP Veterans, Medical News, NPRC 1973 Fire, Tips and Tricks, VA Agents, vARO Decisions, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 7 Comments

CAVC–DeLISIO V SHINSEKI-THE DeLOREAN PARADOX

I always roam around and look at classic cases like Larry DeLisio’s. It does no good to simply cite to it if you can’t remember old Larry’s particular DeeeeLemma. And boy howdy did Larry have a dilemma. When you throw in §3.309(e) AO presumptives and the tortuous effective dates in §3.307 (depending on if you ever filed for it plus when it was added to the list), it almost requires a Rand McNally Atlas to navigate. Hell, this thing has more permutations than a Rubik cube so take your protein pill and put your helmet on. Mental seatbelts are optional.

Larry was one of a lucky few who served in-country and survived Vietnam. Remember- not everyone who lost his life in Vietnam died there. Many of us today have more wrong with us than we do right…including me. Larry didn’t escape either. He injured his lower extremity and his lower back. Importantly, he claimed he had peripheral neuropathy in the lower left extremity. Layno v Brown says he could do that (say he had numbness down below). He also had other issues like bent brain but we’re gonna get to that waaaaaay later.

The actual CAVC Appeal proposed to deal with one intriguing concept-but- like an onion, the more they peeled it, the more layers they encountered that required an antecedent precedential cite with a predicate explanation for why they were meandering down this road. Imagine you’re hunting for illegal Faceplace™ Russian voters who threw the election to Trump. Suddenly, in an about face, you discover Stormy Daniels might be a Russian citizen. So, on that off-chance, you have to raid a law office or two  first before you can unravel the pesky Russian connection.

From the decision:

The Court referred this appeal to a panel and held oral argument to resolve the novel issue of whether a disability that is secondarily service-connected can have an effective date earlier than the date a claim was filed explicitly for the primary service-connected disability.

This all began just before Halloween on October 24th in the year of Our Lord 1980. Larry had caught wind of Agent Orange and filed for it… sort of (symptoms of skin problems, stress, and swollen lymph nodes). a few days later, on All Hallowed’s Eve proper,  he filed “a supplemental claim for agent orange condition” and listed symptoms of “numbness in his left leg,” large lymph nodes, erratic heartbeat, a breathing condition, and hair loss. Shoot. I didn’t hear  about this stuff until Cupcake saw it on TV in 1991. Larry was light years ahead of a lot of us. Too bad we never caught up with Beverly Nehmer back then.

With aplomb, the Court held :

It is undisputed, however, that these claims had not been adjudicated by June 1992, when Mr. DeLisio submitted a letter to the RO requesting adjudication of his “claim for Agent Orange Exposure.”

Ruh-roh Rorge. Forgrot to do claims. As is so often the case, VA has to play catch up and when they hurry, they tend to break a few eggs. Fortunately for Larry, he was flying solo without so much as a VSO. You would thing being pro se bought him a reprieve. Well, not so much yet until Comer v Peake . The pro se white gloves treatment was still a ways in the future.

He got a Travel Board hearing in record time and explained it all in Sept. 1992. The Judge accidentally (or perhaps intentionally?) dropped the Halloween contentions and focused on the claim filed a week earlier. Step into my den said the spider to the fly…

Let’s make a distinction for readers. The term “facts found” means the date you were injured or the disease was identified or diagnosed. The  “date entitlement arose” is generally the day you were smart enough to file for it. So what happens if the facts found you had PN …but you didn’t file for the primary cause  (Diabetes II) until about 25 years later? That ain’t the half of it. Keep reading

This went up to the CAVC and got a Joint Remand back to the Board to give Larry a shot at the bent brain and his bad back the VLJ ripped him off for. In the meantime (September 1993), Larry, independent of the Board’s processing of the above matters, was diagnosed with “right and left lower extremity peripheral neuropathy secondary to perked diskogenic disease of the lumbosacral area” following complaints of decreased sensation in his legs. He filed for PN in January 1994. Confused yet? Wait.

VA did not dispute  that the claim above was not adjudicated when, on June 5, 2006, Larry filed a claim for benefits for diabetes and peripheral neuropathy. Ruh-roh, Rarry. Forgrot to do claims again. At the time of this 2006 filing, Larry had an active diagnosis of diabetes. This  constitutes “facts found”. If you’re a guy, you mentally make two boxes-one -facts found and; two -when entitlement arose. Of course, if you’re a woman, you have a whole salmon colored filing cabinet going by now with lovely pastel folder tabs to file all this.

Now we add the DM II wrinkle. On May 8th 2001, DM II was added to §3.309(e) as a presumptive. Ruh-roh. Need new box. If Larry had filed for DM II at any time prior to 5/8/2001, that would be when his entitlement arose. But now you have to look in the facts found box and you find Peripheral Neuropathy because that is a secondary to …yup… DM II. Relax. We haven’t even gotten started yet.

So, two years later in May 2007 Larry’s local Fort Fumble (Reno) found that his diabetes was service connected on a presumptive basis and assigned a 20% disability rating, effective June 5, 2006, the date of his claim for benefits explicitly for diabetes. The same rating decision found that his peripheral neuropathy was service connected secondary to diabetes and assigned a 10% disability rating, effective June 5, 2006. Jez, now we have to start another box for the wrong dates his entitlement arose.

The VLJ on this one must have had an odd idea of medical causation or what the word “diagnosis” encompassed.

Regarding peripheral neuropathy, the VLJ acknowledged that old Larry’s January
1994 claim for benefits for peripheral neuropathy was not adjudicated until that May 2007 Reno Puzzle Palace “do over”. However, the Board found that the evidence [facts found] did not support a peripheral neuropathy diagnosis until 2001, and that the medical evidence thereafter mentioned peripheral neuropathy only as a result of diabetes, and determined that Larry was not entitled to service connection for peripheral neuropathy on any basis other than as secondary to diabetes. What was the VLJ smoking? This bordered on a Colvin violation. Apparently that doctor who diagnosed him with left leg neuropathy due to his lower back injuries was full of hooey.

Now let’s get back in the DeLisio DeLorean and journey back to the 80’s. New file cabinets and more boxes, please.

Larry had first filed a claim for service connection for a low-back disability in June
1981. His claim was denied in November 1981 and became final. On April 18, 1983,  Larry
attempted to reopen his claim with new medical evidence regarding his low-back
disability. After further development, a July 1993 Board remand, and an April 1996 Court order granting a Joint Motion for Remand (JMR), a February 1998 Board decision granted service connection for a low-back disability, as secondary to his service-connected right-leg condition. In May 1998,  the Reno Fort Fumble assigned a 10% disability rating, effective April 18, 1983. Larry appealed both the disability rating and the assigned effective date, and a March 2000 Board decision subsequently denied an earlier effective date and remanded the matter of the appropriateness of the 10% disability rating for further adjudication. He initially appealed the Board’s effective-date finding, but expressly withdrew his appeal of the effective date pursuant to a JMR that was granted by the Court in January 2001. Very bad idea, Larry.  Three BVA remands later, he did finally end up with 20% for his back from 83-88 and 60% thereafter.

Which brings us here to 2009 and Larry’s Notice of Appeal(again). Two years later in August 2011, he’d finally get some modicum of justice. Even if the BVA and the Reno Rocket scientists couldn’t unravel this, the CAVC could-and indeed did. Get out the onion peelers.

Larry wanted PN for DM II back to his Halloween filing in 1980. Remember VA now had a dx of facts found- Larry’s DM II was what caused his PN- but only when he filed for it in 2005. Larry wanted to cart that back to when he filed for it because Reno’s finest forgot to adjudicate it. Or did they deny it and figure Larry would understand it was “implicitly denied” even though they had blown him off? But wait. Larry was pro se. The presumption of Perry Mason did not attach. Always remember the Clemons Codicil-

(“[A] self-represented layperson . . . ha[s] neither the legal or medical knowledge to narrow the universe of his claim . . . . [He does] not file a claim to receive benefits only for a particular diagnosis, but for the affliction his . . . condition, whatever that is, causes him.”) Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009); see also Jandreau v.
Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)

The Court distilled it down to its essence here

Otherwise stated, if                                                                                     (1) a claimant files a claim for benefits for a condition (here, an
October 31, 1980, claim for benefits for left-leg numbness or a January 1994 claim for benefits for peripheral neuropathy),         (2) the claim remains open and not finally adjudicated, and         (3) the cause of that condition ultimately is determined to be a disease or disability incurred in or aggravated by service (here, diabetes),

then the effective date for both the secondarily service connected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits. See 38 U.S.C. § 5110(a) (“[T]he effective date of an award . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor”). The Board decision on appeal generally, and endorsed the notion that a claimant must file a claim explicitly for benefits for the causal disease or disability to establish entitlement to secondary service connection for the claimed condition. Such an argument, however, is overly technical and generally incompatible with the “veteran friendly,” nonadversarial, administrative claims system. Kouvaris v. Shinseki, 22 Vet.App. 377, 381 (2009). Moreover, this position has no support in statute or regulation, and contravenes the crux of the previously discussed case law, namely that

(1) a claimant need not file a claim for benefits for the precise medical causes of his condition,                                                            (2) the Secretary must sympathetically read a claimant’s filing and investigate potentially applicable theories of service connection, and                                                                                         (3) a claim for benefits for one disability reasonably may encompass other disabilities.  

VA jurisprudence, as I have watched metamorphose since the inception of the COVA, is unique. The VA Secretary has constantly evolved the arguments we gradually see demolished. Each defeat is like a domino as seen in the instant case. Here, the Secretary at argument, tried to insist that if you were going to file for  something, you have to be explicit about what it is you are trying to claim. That flew out the window with Clemons. But even earlier, when a Vet’s widow, one Jovita Espiritu,  once opined as to the medical cause of his passing, she was denied because she had no medical training. Similarly, the Layno Court, even though affirming, finally recognized our inherent ability to use our five senses.

Anyway, The Court began unraveling this cheap VA Wallmarket® sweater. It wasn’t hard. It had more mistakes and unadjudicated claims than you could shake a stick at. The Court had to see which domino leaned against  October 24th, 1980 first. Then whether the Halloween claim was subsumed by the 1994 BVA Appeal ad nauseum. Bless their hearts:

See Cogburn v. Shinseki, 24 Vet.App. 205 (2010) (noting factors for applying the implicit denial rule, including “the relatedness of the claims,” whether the “adjudication allude[d] to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied,” the “timing of the claims,” and “whether the claimant is represented”); Ingram, supra; see also Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009) (considering the language of the decisions, the relatedness of the claims, and the timing of the claims in deciding whether claim was implicitly denied)Thus, because the March 1995 Board decision did not implicitly or explicitly adjudicate entitlement to benefits for left-leg numbness, this [1980] matter was not encompassed in the April 1996 Court order and remained unadjudicated.

And as for all that hooey about implicit denial because Larry agreed with the 1992 VLJ who disremembered the supplemental Halloween claims (for PN, bent brain etc.) right after the 10/24/80 skin claim, the Court tidied this one up in very few words:

Because Mr. DeLisio’s October 31, 1980, claim for benefits for left-leg numbness was not withdrawn at the September 1992 pre-conference hearing or finally adjudicated in the March 1995 Board decision and subsequent April 1996 Court order, it remained open when the December 2008 Board decision on appeal was rendered. Moreover, because the claim remains open, the full scope of that claim has not yet been determined. Specifically, the cause of Mr. DeLisio’s left-leg numbness condition has not yet been established.

DeLisio teaches us not only the basics of how implicit denial works but the inherent controlling aspects of when entitlement arises versus the argument of how a finding of fact can control an effective date. Judge Lance’s concurrence uses what I feel is a better metric here.

The Secretary bases his argument on 38 C.F.R. § 3.400 (2011), which limits an effective date by “the date entitlement arose.” The majority treats this as an interpretation of the “facts found” language in section 5110(a). However, a determination of the legal limitations on entitlement is not a matter that is ordinarily considered a “fact” subject to “finding.” Rather it is an issue of law. Cf. Salve Regina Coll. v. Russell, 499 U.S. 225 (1991) (holding that a determination about an unsettled question of State law is not a factual issue to be reviewed by an appellate court for clear error, but rather is reviewed de novo).

Ladies and Gentlemen Vets, allow me to introduce your fellow Vet Larry DeLisio.

DeLisio_09-404_published_opinion_August_24_2011

The teaching moment

In my mind, implicit denial should be rarer than hen’s teeth. It would essentially be a rare occurrence based on a true implicit denial intent. VA is dumb. They make all kind of errors. I find them all the time. 20% of my claims are CUE for stupidity.  In most cases, VA argues implicitness but is really guilty of forgetting to address it. This opens the “still open” folder and a much earlier effective date. VA will manufacture a paper tiger about what you didn’t do. They always make it personal. The way to overcome this is to carefully unravel the c- file history as  the Court did. It doesn’t require a degree. I sometimes slog through a 2000-page c-file and something in my brains clicks and says “Back the boat up to the dock, Gilligan. He had X disease diagnosed in 1984 and VA denied when he filed in 1989? Then they suddenly granted in 2013 based on the same evidence-with little or no argument? That’s not the adversarial Veteran unfriendly VA I know. What gives? Why the Mr. Nice Guy all of a sudden?” When VA throws in the towel, you can almost be sure they owe you far more than you’re being offered and hope you don’t figure it out within a year.

 

Mr. DeLisio’s time machine

P.S. Rest in Peace R. Lee Ermy (1944-2018) 14 months RVN.

Posted in Agent Orange, All about Veterans, AO, CAVC Knowledge, CAVC ruling, DM II, Earlier Effective dates, Implicit denial, Informal Claims, Inspirational Veterans, KP Veterans, Lawyering Up, VA Agents, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , | 5 Comments

VA–RAMP & PRIVATIZATION RUMINATIONS

People have emailed me and even cornered me down at Walt’s in my favorite place- the meat section, of course. It’s like watching meat TV. My best friend in the world, Ray Paul, is the head butcher there. Vets have even tackled me over to the Vaughn Post Office with one or both of these questions and want to know my sentiments. Beats me why. I wouldn’t take my dog to my VA hospital. Three more operations to fix their first fustercluck? I’ve heard of the third time being the charm but VA is waaaay out of that league. When VA doctors talk about their Personal Best, they’re referring to how many medical misadventures they’ve had in one 12-month period.

Speaking of my friend Ray Paul, when he and his wife heard about our predicament, she retired and they sold their house in Salt Lick City. They moved back here to help Cupcake out when I spent that year in the VAMC. In fact, they lived with us for three years and helped out with the horses and the whole shooting match. Now that’s friends. Fact is Ray Paul isn’t even a Vet either. I was supposed to be his Best man in Vegas but I augered in a month before showtime.

Now about RAMP. You all remember I made jokes about this back when but I knew something was going to come to pass.  My daddy once said a fart is nothing more than a turd signaling for Right of Way. Apparently my verbal flatulence was more than a premonition as we see now.

https://asknod.org/2015/04/22/bva-announces-fda-fully-developed-appeals/

Launching RAMP

Since spring NOVA has come and gone, and on account of my dues are paid up, here’s the Powerpoint © presentation for the new Rapid Appeals Modernization Program. Anytime you see a VA acronym and a VA snake oil salesman trying to hawk it, you better move your wallet to your front pocket, son. For my money, no amount of lipstick on this pig is going to get it airborne. We already got the knick-knack, paddywhack with the FDC (Fully Developed Claim) by losing the duty to assist. Here, yet again, we see the same figurative removal of that Miranda warning. The NOVA presentation moves it out of the shadows and into the forefront because it isn’t enunciated.

Section3_AppealsReformPanel

By and large, we’ve come a long way, baby. Comer v. Peake managed to sandwich in a healthy dose of  Barrett v. Nicholson 466 F.3d 1038,1044 (Fed. Cir. 2006) and  Jaquay vPrincipi, 304 F.3d 1276, 1282 (FedCir. 2002) all into one donut. My take on RAMP is a beleaguered agency who keeps stepping on their necktie trying to acronym their way to a functional, timely Benefits program.

What, exactly, did USB Allison “Ace” Hickey expect she was going to set loose when she fired up the VBMS engine and 125-day claims service with 98% guaranteed denial rates? The FDC guaranteed one thing. With Vets now having access to the internet and websites that explain “how to” and DIY VA claims, guess what? If you deny a shit ton of claims, you can almost predict an avalanche of appeals soon thereafter. Ruh-oh Rorge. Now what?

Having a rapid appeals program does alleviate the BVA backlog- but for how long? Nobody wants to have a frank discussion at this cocktail party with those 3.5 million 800 lb. Vet gorillas sitting on the sofa. We’ve been busy in Iraq, Africa- and now Syria- making damaged Vets for almost 18 years.  Gee. You figure there might be a “lump in the python” of statistics that skews things a little south on the numbers? I once thought hiring more VA Veterans Law Judges would be the panacea. With 60,000 appeals in cold storage  now and a projected 72,000 by this time next year ad nauseum, 1,000 VLJs might plug the dike for the foreseeable future (2050). Of course, that doesn’t turn off the spigot of appeals. For that, we might have to take a time out on being the World’s policeman.

Several years ago, I was studying a VA stat sheet that showed the numbers of disabled Vets over a 2000-2014 period. The document showed the number of Vets rated from 0% to 100% with the TDIU numbers broken out as well. What struck me is that America started producing severely disabled Vets wholesale  since the turn of the Millenium and strangely enough, the numbers of Vets were static! Yeppers. About 3.2 million somewhere between 0-100% and 3.3 million fourteen years later. Worse, VA had predicted a massive uptick of Vietnam Agent Orange filings as we age out of the system. Quo vadis, Johnny Vet? They must’f hired my ex-wife’s accountant. He could make an elephant disappear up its own derrière.

 

Enough of those sleight of hand statistics. Let’s discuss VA Medical and this boogyman called privatization. First of all, VA has about 33,000 vacancies-big huge ones. We’re not talking janitors sanitation technicians here. We’re discussing shrinks, general practitioners and specialists in any number of fields. That vacancy rate brain fart is what killed those 45 Phoenix folks who waited too long and died. Yes sir. Vets waited for that promised cutting edge VA medical care until they could not be saved. Vets with PTSD committed suicide because there were’t enough shrinks to listen and prescribe some brain bending medication that might help. VA probably refers to this as the DRM Triage Protocol. That’s a snappy acronym for their Darwinian Reduction Method. If you’re stupid enough to keep waiting for help that will never come, you probably earned your place on the secret waiting list from Hell.

am legion

They misspelled Bozo

So let me see if I get this right.  Our good buddies at DAV, VFW, AmVets, and that whole crowd of 146 VSOs are in high dudgeon that we might do away with VA healthcare; that we might privatize it and force you Vets off the reservation. I’ll be an independent thinker here and cast my own troubles as a rare, infrequent medical misadventure that only happens once in a million years. So how do I feel about VFW’s insistence on the status quo that my brothers must die for lack of care simply because they don’t have enough hired help? In a word, speechless. In 1972, when I came home from Vietnam, the VFW told me I couldn’t join because I had not served in a war. Again, speechless. Think how much money I saved on that bitchslap. Now I get solicitations to join almost monthly…

The VA Choice Program was the repair order. It ate $3 billion over the last few years but it saved Vets’ lives. VSOs prefer the secret waiting lists and dying Vets over any scheme for privatization. I want you all to let that sink in. These VSO outfits you folks swear by are demanding you shut up and accept inferior medical care. And you even pay dues to them to advocate against your best interests. 

What I would advocate for is letting VA keep specialty care-polyplegic Vets who need immense physical therapy and prosthetics. Let them focus on PTSD,  burn pit diseases, Agent Orange disabilities and the really big, tough nuts no one else is prepared to tackle. Take the run of the mill folks with an owie on their finger or other small injuries and give them VA choice. Why clog up the scarce resources needed for severely disabled Vets with Flu shots and hemorrhoids? It’s pointless and what’s more-it’s killing a lot of Vets waiting for their shot at a timely appointment. Have regional centers as we do now next door to large medical centers like Portland and the University of Oregon Medical Center and close the rest. Likewise Seattle and the UW School of Medicine. VA does a ton of research on diseases and one of their own even came up with the cure for Hepatitis C. This is where VA should focus their talents and husband their scare resources.

When I was getting ”free” dental care at the American Lake Dental Clinic, my new fillings were falling out faster than they could replace them. During that same time, there was a hellacious VA dentist turnover there. Now why is that? What kind of working conditions would drive a fellow out of a cush 20-year and retire job? Apparently, some funky regulations might be to blame. They probably have the same guy who wrote part 3 of  38 CFR writing the dental regs. On the obverse side, I now have my old dentist back, my fillings stay put and they’re even a matching color as my factory issued ones. He’s 9 miles away (16 minutes) and not 44 with a $6.50 bridge toll. Oddly, now that I get in to see the dentist more frequently, I don’t have as many dental problems. Go figure. If VA Choice works in just this limited sense (dentistry), why can’t we sub out a lot of the nitnoy shit and take a load off them VAMC folks with tired bonus-calloused asses? In sum, how about a hybrid arrangement? DAV and their ilk insist any private encroachment into the sacrosanct area of VA medical care is a bridge too far. I guess if you have friends like that, you sure don’t need me harping about them. Fly at it.

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

 

Posted in 2018 SPRING NOVA San Diego, Agent Orange, All about Veterans, Food for thought, KP Veterans, VA Medical Mysteries Explained, vA news, Veterans Choice card, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , | 6 Comments

Great veteran lawyers at work

Some very good news.

From Stars and Stripes–

and the ever-watchful Tom Philpott, Vet lawyers got desired ‘undiagnosed pain’ case to win on appeal (LINK).

The truth and fairness lawyers:  Atty. Mel Botswick, partner at the law firm Orrick, Herrington and Sutcliffe.  He worked pro bono partnering with the National Veterans Legal Services Program (NVLSP) and Atty. Bart Stichman.

What and Where:  A challenge to a

“…1999 precedent-setting ruling of the U.S. Court of Appeals for Veterans Claims that found the Department of Veterans Affairs was not required to compensate a veteran for pain if physicians aren’t able to identify the cause.”

“The NVLSP searched Board of Appeals decisions since 1999 and found more than 11,000 adverse rulings for veterans that cited Sanchez-Benitez, giving a rough estimate of how many veterans might stand to benefit.”

When:  Saunders v. Wilkie was decided April 3, 2018 (LINK) or pdf. 17-1466.Opinion.4-2-2018.1

The government has 60 days to appeal. Do the biggies still love their “wonderful” veterans?  One to watch!

Kiedove

“We hold that the Veterans Court erred as a matter of
law in holding that pain alone, without an accompanying
diagnosis or identifiable condition, cannot constitute a
“disability” under § 1110, because pain in the absence of a
presently-diagnosed condition can cause functional impairment.”

Page 21.  

Posted in All about Veterans, BvA Decisions, CAVC ruling, CAVC/COVA Decision, Food for thought, Future Veterans, General Messages, Guest authors, Inspirational Veterans, Lawyering Up | Tagged , , , , | Leave a comment

WINNING THE LOTTO ON YOUR BIRTHDAY

Well, this is a first. I haven’t had my birthday hit on Easter Sunday since back in 1956 when I was knee high to a 9 oz. bottle of Schlitz. In our family, we always get together for Easter and cook enough for the North Korean Army. No. We don’t invite Kim over but you get the drift of the analogy. We also buy the Birthday boy or girl about 10 of them Scratch and Sniff Lotto tickets. It’s our civic duty to throw money away into the State’s coffers. Used to be for schools but then one day it got repurposed for “studies”.

Being older, I only got five tickets. I guess my kids think I’m luckier than them and only need five whacks at the Piñata. I came up with a dry hole and then scratched the last one.

So imagine my surprise, not to mention good fortune to note I was the big chicken dinner winner on my birthday. Shoo doggies. What are the odds?

My Lord. I knew I was lucky but this is pretty cool beans. My loving daughter asked me if we had to take it to Olympia to the Lotto Headquarters or if we could just go down to the local Desperation Delicatessen (7-11) where she brought it.  I flipped that baby over to get the skinny and suddenly remembered what day it was. Punked. Worse, and even more painful- punked by my kids.

Come Christmas, I reckon I’m gonna go down to our fuel dealer and rustle up some lumps of coal. Ho, ho, ho my ass. Oh yeah. Happy Easter.

Posted in Humor, KP Veterans | Tagged , , , , , , , , , , , | 10 Comments

The house that Donald built…

will not include Dr. David Shulkin.  He was fired last night as most readers already know.  Some say “Good riddance” and others are very worried.  Dr. Shulkin is upset and is talking about what he believes is a political move only (LINK).  If Dr. Jackson is approved, it is reported that he has experience with emergency medicine in Iraq–so that is a positive.  And Trump trusts him and well, it’s his cabinet.   Let’s hope for a quick confirmation if he gets through the hearings unscathed.  

Kiedove



Posted in All about Veterans, Congressional Influence, Food for thought, General Messages, Guest authors, Uncategorized, VA Health Care | Tagged , | 14 Comments