FISHING STORIES NO ONE WOULD BUY

Humor strikes me when you give me the ammo. And Least Coast Bruce (Almighty) just sent me the mother lode of fishing chuckles. In addition, at the end you will find some choice tidbits from my old friend Smoke. Life is good at the cusp of the Summer equinox. My heart has ceased misbehaving. Cupcake is over her mid-life crisis and sanity seems to be returning to our great nation. 

I’d like to say thank you to Roberto Perez-Soto of San Juan Puerto Rico allowing me to  shepherd him to permanent and total. In addition, we have other, local chicken dinner winners near me here-Bob in Puyallup, Bob in Lakebay, Wayne in Montana and Stefan in San Diego. Seems VA is writing more S, R1 and R2 ratings since I received my accreditation. And well they should. Far too few of you understand how the SMC Mississippi River flows. I take great pleasure in teaching VA how to read their own regs. But I digress from  my favorite subject-Veteran Humor…

Hey. Come on, guys. She’s wearing a flotation device.


 

Here’s some of Smoke’s I purloined off his Face Place feed.

The Ottoman Wars

Life is so much better with humor.

And that’s all I’m going to say about that.

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

AMC CHANGES TO ARC– VA COY ON MEANING

Recently, to everyone’s surprise even at 810 Yellow Brick Road NW, the VA, without so much as a by your leave, arbitrarily changed the the name of our favorite DC black hole. I speak, of course, of the Appeals Management Center, or as it has been affectionately  known since 2001, the AMC. Seems this occurred just about the time all that discord began over Shulkin’s trip to visit the European Regional Offices. 

Conjecture abounds as to why this was done and equally, as to what ARC stands for. That enigmatic ‘R’ has VA acronym pundits awash in rampant speculation. Answers abound but VA SES hierarchy are keeping their cards close to their chest.

The history of the AMC is pretty straightforward. With the gradual rise in the number of better-informed Veterans in the age of the internet, and sites like Theresa Aldrich’ 1997 Hadit.com,  so, too, has the number of Veterans Appeals increased. In spite of VSO  attempts in decades past to suppress this knowledge, the frequency of appeals dramatically increased after the passage of the VJRA in 1988.

By 1994, the Board of Veterans Appeals was forced to deal with this increase in a most unusual way. Rather than hire more Veterans Law Judges (VLJs), their twenty Boards of three each began essentially what we would call “memorandum decisions ” i.e. a Board of one single judge. The holding in Colvin v. Derwinski sounded the death knell for the  twenty “super VLJs” (Medical doctors with Juris Doctorates) and they were phased out. This tripled the numbers of decisions generated…for a while.

As most know, with the inception of the Veterans Benefits Management System (VBMS), electronic records became the norm. VA was the last government holdout to go paperless. Following that electronic freedom came the miraculous Fully Developed Claim (FDC) with a 125-day guarantee of 98% accuracy. All most of us could see was a 98% guarantee of a need to appeal the denied 125-day claim. I penned this joke way back when not knowing the VA would plagiarize my idea.

So, the Big Brother to the FDC is now the Rapid Appeals Modernization Program or RAMP. You lose your expedited claim and now lose your expedited appeal in near-record time. Pretty soon, this will be perfected into a drive-thru window approach. You pull up to the first window and submit the claim. In about four minutes or so, you arrive around the corner at the delivery window to find out what you won- if anything. It’s instant gratification VA-style. Unfortunately, it’s not quite the same experience as the  drive-thru at McFlougal’s® or a scratch-off lottery ticket. It’s more akin to the buildup and hooplah of a Publisher’s Clearinghouse Sweepstakes™- a lot of mail and very little substance.

And here’s where the AMC used to come in. VA raters and their ilk at the Fort Fumbles across the Fruited Plains are sloppy. Sometimes they bifurcate your claims and grant some only to deny or defer others. You file the NOD to get a higher rating but VA hasn’t even opined on your deferred claims. All of a sudden, the VA 8 is issued certifying your appeal to DC. It arrives there with some unfinished business- those deferred claims.  Used to be the AMC would dutifully deny them and issue the required Statement of the Case (SOC) thus “perfecting” the disputed items.

With the massive increase in claimants, due, no doubt, to the endless Iraqistan War, more and more mistakes at the regional level were being committed. The AMC was invented to “clean up” a Veteran’s  appeal posture. Remands back to the Regional Fort Fumbles could take a year. It was conjectured by VA bean counters that the time could be cut in half if the BVA had their own Regional Office Appeals Team with the authority to screw up what the Regional Folks were screwing up daily. And it came to pass in VAland that the 57th RO was born in DC- VBAWASH397.

By 2013, Brigadier General Allison Hickey (Ret.) had the FDC in full swing and the BVA began noticing a marked uptick in the incoming mail. Seems like every Tom, Dick and Hilda was filing an appeal. It stands to reason. The FDC  model of claims jurisprudence was throwing out the baby with the bathwater… and the bathtub, for that matter. No amount of remanding to the AMC was going to cure those regional Puzzle Palaces of neglecting to “develop a claim to its optimum.” So, the BVA began giving as good as they were getting. In a tit-for-tat, the AMC began remanding back to the ROs in East Bumfork, Wyoming or Denial, Michigan and telling them to repair their own g__ d____ed  submissions and return them when completed. This incidentally made the BVA look good because each remand was a “decision” -albeit a temporary one- awaiting a repair. It effectively hid the problem until about 2016 when it became obvious the BVA was inundated in unadjudicated appeals. There was simply no more warehouse space any closer in than Bethesda. They’d rented it all by now to store those 173,000 appeals. Yep. Them appeals are piling up like rabbits in summer.

With the inauguration of the National Work Queue (NWQ), all the claims are now in a basket like a Bingo Ball tumbler. Specialized claims for Camp LeJeune  go to Nashville. RAMP claims all go to Seattle. Each RO is becoming a Master of one trade and a Jack of none of the others. Pretty soon if you need a spouse or a dependent added to your entitlement, it’ll probably be done by one of these Specialty ROs. I ‘d guess Sioux Falls South Dakota’s Veterans Service Center because they have a hard time counting over ten without taking off their shoes. Fortunately, most of you aren’t big Catholic or Mormon families or this might be a two-year dealbreaker. We can see where it’s headed, though. If everyone opted into RAMP, the Seattle ratings section would seize up from overload. But not! They’ll just throw it back into the NWQ. It’s an awesome device. If there was no accountability before, you should see it in the present vacuum of leadership.

Which finally brings us back to the ARC. Knowledgeable minds-as opposed to reasonable minds- cannot agree on just what the R in ARC stands for. Much like the fustercluck over the new Ihob© rebranding, VA is letting America’s imagination run wild as to what it could mean.

Suggestions are coming in at a record pace. Appeals Resource Center ? Appeals Responsibility Center? Appeals Remand Center? Appeals Regurgitation Center? Appeals Respite Center? Appeals Retribution Center? Appeals Redistribution Center? Who knows? We need a Table of Organization that’s more up to date than the M 21 1MR (Revised 1778, 1812, 1866, 1918, 1945, 1955, 1975, 1982, 1991,  2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 (pending) in order to decypher the acronym.

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

Posted in AMC or ARC | Tagged , , , , , , , , , , , | 16 Comments

CHANGE MANAGEMENT AGENTS–THE UNSUNG HEROES

Actually, I probably blew that and should have written Heroines as most of the VA CMAs I talk to are women. One thing is certain. Change embodies what they do and they are quick about it. Today, I wish to commend the VA for something they did rather than ostracize and belittle them for something they didn’t do. Hey, when you’re lower than whale shit in the eyes of the folks you’re supposed to be serving, you need all the positive PR you can muster.

 

If (and when) you do something right, it should be shouted from the roof tops. I note the BVA was preening its feathers the other day when they remarked (with great press hooplah) that their numbers of appeals adjudicated had gone up rather dramatically. Well, duh. You can probably expect to adjudicate (and sign) a butt load more appeals if you hire 20 or 30 more VLJs and about 200 more law clerks for minimum wage. I guess I should qualify that. It amazes me this was so successful. Usually there would be a net decrease in most other VA scenarios. Credit this to the BVA where everyone speaks JD and the most frequent nickname is “Counselor”. Telecommuting is also in vogue now so you don’t have to take the Orange in and waste time in line at the Starbucks in McPherson Station.

THE CMA PHENOMENON

Back to CMAs. VA invented this position after the VBMS was opened to us law dogs. We can ‘see’ VA actions in real time and with them ‘actions’, consternation grows. Calling up the appropriate VA Director’s office used to be the way to get their attention and arrest the mistake. I run into a lot of Vets and they are amazed we aren’t forced to use that archaic 800-827-1000 dial-a-prayer system.  I can’t imagine litigating in slow motion. *Beeeeep* “Yes, please. The best time to call me back next Tuesday would be between 8 AM and 12PM East Coast time. I’ll get up at 0500 L and put the coffee on. Thank you.”

However, we do not have to suffer that indignity. I merely pick up the phone and dial (787) XXX-XXXX and am warmly greeted by Sharon D. in the San Juan Regional Office. Sharon is an exuberant, efficient VA employee who stands ready to help me with everything I need for my client Roberto there. If there’s a way to ignite a fire under the DRO, she can do it. She must have some pull. Maybe the DRO has a mistress and she threatened to tell his wife. Who knows? What’s more, who cares? Until VA sets up suggestion box@va.gov so we can thank them for giving us CMAs, I’m forced to thank them here.

Hi. My names Claire and I’ll be your CMA today.

A few of the folks who make the VA world go around (and my life immensely easier) deserve a big shout out. Among them are the aforementioned Sharon, Tina  (Seattle), Ciena (San Diego), Joe in Cleveland, JR in Phoenix, Gary in Houston and the list goes on. I’ve discovered most are GS 11-12s, worked in appeals and know their stuff. They innately know who to call to resolve a problem.  They’re so good at what they do, I’m guessing their phones hardly ever ring more than a couple times a day. I’ve never gotten the wave off or a “she’ll have to get back to you” yet.

The VA claims process just gets easier and easier to accomplish when you have accreditation. Having a CMA at your disposal is like flipping your selector switch over to auto. You almost can’t miss. One of my possible future clients was talking with his VSO and suggested he talk to the DRO to correct a mistake on his claim. The VSO’s eyebrows went up like a couple of them old fashioned window shades (flup!flup!flup!)and he chokes out “Are you mad? Nobody can just call up the VA and talk to the DRO in charge of the appeal. It doesn’t work that way. I should know. I do this for a living.” My friend  explained that he’d heard me on the Hadit.com radio show doing that as well as emailing them. Dale was told by Mr. Knowitall VSO N.J.D. (no juris doctorate) that VA agents lie a lot and he should take what they and their attorney buddies say with a grain of salt. Considering most VSOs’ SMC knowledge ends at K, if they’ve even heard tell of it at all, I guess I’d take a salt shaker if I ever had to visit a service rep. at one of the Big Six’ retail outlets.

Here’s a beautiful example. I’ll change the names to protect the innocent. I call up Ciena down in San Diego and explain my client Johnny Vet got an earlier effective date (2003) decision  from BVA VLJ Yvonne White back in February. The AMC, now the ARC, effected the decision but shortsheeted him horribly.  When you grant a EED for a Rios v. Mansfield (oops! we mailed it to the wrong address and it came back) violation, you reopen the whole enchilada in 2003 because Johnny Vet not only didn’t get the denial for the PTSD. He also didn’t get the denial for his left knee, tinnitus and DDD at L5-S1.

We filed a NOD pronto. Unfortunately, VA is now using a National Work Queue (NWQ) to adjudicate a claim. So up pops the NOD on the  National VBMS teletype  ‘to-do’ list. Meanwhile, Johnny Vet gets an unsolicited call from “Franchesco” at the ARC who says he thinks maybe they screwed up the 2003 rating and decides to issue yet another new decision.  At that exact moment, somebody from the St. Paul Puzzle Palace rips this off their printer. They immediately enter it in to VBMS but accidentally remove  his dependents from his entitlement. In less than three days, Nashville pulls it off the teletype and says ‘No. No. No. That’s all wrong. Put the dependents back on. The NOD is invalid. You can’t appeal a BVA award. You have to go to the CAVC. A day later Atlanta sees it and says  ‘Disregard Nashville. They’re full of hoooey. We’ll be needing some time to examine the chicken entrails and study the tea leaves. We also, however, will need to study this and we’ll get back to you some day. Hear?’ That was around May 12.

Enter Super Ciena. I called her up Wednesday afternoon late and said “you know…. I think something’s amiss here. I started to give her a brief overview but she cut me off. “Send me an email and explain each thing they screwed up. Tell me what you think the repair order is and I’ll get out my lightsaber and cut into it.  Thursday morning @ 0900, Timbo the DRO calls and says “Ciena says you got a problem. So whazzup?”

Instead of trying a Powerpoint™ presentation from 2,000 miles away, I said ‘open the new NOD I submitted on 5/01. It’s listed at 5/3 on his VBMS. That pretty much summarizes the legal posture by operation of law.  He pulls it up and we ran through it  point by point for law. I bit my tongue and said nothing about  Franchesco’s wolf parentage or ARC’s stupidity. He agreed, proposed to CUE themselves on the cirrhosis and correct that 4 year old “misconstrual of the diagnostic codes available”. Can you imagine a VSO trying this- sober or drunk? In ten short minutes I agreed to withdraw the recent NOD as untimely.  We then accomplished a verbal handshake and readjudicated PTSD for 100%, DEA to 2003 and an understanding we could still file a NOD subsequent to the issuance of the new decision- to everyone’s satisfaction. We mutually declared CUE on the use of DC 7345 instead of DC 7312 (no net change in benefits) and agreed to grant 50% instead of the 40%. All the while, I’m thinking “What am I missing here? This is just waaaaay too easy”. I guess we’ll see in a few days.

Western Union ribbon clerk

Now this is where you can separate the smart VA poker players from the ribbon clerks. I asked old Timbo if he knew why I insisted on the proper rating for the cirrhosis/ascites at 50%. He was clueless. He saw no possible benefit. Here’s a teaching moment. Do not wait to get all your ratings later when you are trying to climb up the SMC ladder. Remember our old friend 38 CFR §3.350(f)(3),(4) and keep it holy. That extra 50% stand alone for ascites under DC 7312 can be parlayed into a jump from SMC L for Aid and Attendance into L ½. Or a bump from M to M½ or up to N/N½. The important thing is getting it done now to preposition yourself for that inevitable future time when it can quickly kick your compensation payment up about $200/mo. when it will be most beneficial and needed. It isn’t cheating to have a game plan before the shit hits the fan. And yes. When the time comes,you’ll  be wanting to call your VA Agent or Attorney and ask him/her to contact one of these wonderful CMAs for the particular Fort Fumble involved and ask them to ‘Make that L½ so, Number 1’.  And they will. Call it what you will. It’s the new kinder, gentler version of VA claims adjudication. Who knew?

And that’s all I’m going to say about that.

 

 

Posted in KP Veterans, Tips and Tricks, VA Agents, VA Attorneys, vA news, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , | 5 Comments

VA Mission Act of 2018–signed–Regulations next step

Frank sends us an article from the Washington Post which provides an overview of some of the issues that are involved in the new attempt to “fix” the Veterans Choice Program:  “Congress sends massive veterans bill to Trump, opening door to more private health care.” (LINK)

Phil Roe, MD Army veteran, United States Army Medical Corps.

A plain language summary of the bill has been provided by Chairman of the House Committee on Veterans Affairs, Phil Roe, MD. (LINK to PDF–26 pages).

The Veterans Choice Program dies in one year (page 10):
“Section 143 would provide a sunset date for the Veterans Choice Program one year
after the date of enactment of this Act.”

The new bill is an improvement but the VA has a habit of writing regulations interpreting these bills in ways that go against the intent of Congress and against the best interests of veterans.  And 16 labor unions representing civil servants are opposed to this bill.

“The regulatory fight is going to be an even bigger fight than the legislative fight,” Bob Carey, director of policy and advocacy for veterans service organization The Independence Fund, said at a panel recently….Those people that write regulations are not going to be writing regulations that get rid of their own jobs. They’re not going to be writing regulations that get rid of their own authority.” (LINK)

The GAO released an important report on the “Choice” program this week before the signing: VETERANS CHOICE PROGRAM, Improvements Needed to Address Access-Related Challenges as VA Plans Consolidation of its Community Care Programs. (LINK to GAO 18-281  102 pages).  It outlines the failures of the Choice program which remains in place for another year, but hopefully will inform the new VA regulations.

There will be chances for us to comment on VA and non–VA care on government websites in the months ahead!

Kiedove

Posted in All about Veterans, Complaints Department, Food for thought, Future Veterans, General Messages, Guest authors, Medical News, non-va care, Uncategorized, VA Bonuses, Veterans Choice card | Tagged , , , | 7 Comments

LZ CORK–UNDERSTANDING §3.156(c)

I just received a grant of some claims and a 96-page SOC that dang near has everything from 38 CFR Part 3 in it verbatim. The postman delivered it on a 40-foot flatbed with a forklift. Naw, just kidding. It did have a hefty postage sticker on it, though. This is the fabled LZ Cork case of our long-suffering neighbors Butch and Barb. You may remember I began writing about them waaaay back in 2013 when his daughter asked me to help obtain his Purple Heart. It took a bit of dynamite and two Extraordinary Writs to dislodge the NOD from the death grip of the DRO. She sat on this like a mother hen for about two years. Now we find out why…

38 CFR §3.156(c) is a unique regulation just as §3.105(a) is. It allows you to climb into the VA DeLorean and travel back in time to the day you filed a claim for __________. The codicil in §3 .156(c) is that you must find and present new and material service department records that are not in your claims file-but undoubtedly should have been when you filed  the claim. They must be on point and relate to the claim you are disputing.  You can’t send in your Special Court Martial records for AWOL and reopen a claim for SFWs. If you didn’t answer VA way back in 19__ when they wrote you a letter and asked for any evidence you had, you screwed up. Remember, the VA claims system is a two-way street. This isn’t a shoot-and-forget project like a LAWS rocket. It’s much easier to win a §3.156(c) claim than a §3.105(a) Motion to revise an earlier final decision too -assuming the chuckheads at your local Fort Fumble can read and comprehend Part 3 in 38 CFR. Sadly, my folks at the Seattle Puzzle Palace were unable to decypher the true meaning of it. I’m fixing to enlighten them.

First, let’s clear the air by examining this little present from Congress. Much has been said and much more obviously needs to be because for some inane reason, the email hasn’t gone out from the OGC in a good Precedent decision that adequately explains it. Votre attention, s’il vous plaît.

(c)Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a)of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

As usual, VA will try to throw you with multisyllabic verbal monstrosities. Ignore that. There has been much litigation as to what constitutes “service department records” and an equal number of claims for this arguing the application. If you find some orders that showed you went TDY to Vietnam in 2018, that pretty much proves you were there. If you filed a claim for DM II back in 2001 and now present that DoD Form 626, Bingo. Your effective date for SC on DM II is 2001.  It makes no difference if you got Scarlet Fever and failed to deploy. If you present them and dishonestly claimed you were there, VA is going to have a hard time rebutting it. I do not advocate fraud. Do not misunderstand my point here. Evidence is evidence. Some evidence can help and some can hinder. Fraud will cost you everything-even what you don’t lie about.

But I digress. If you were incountry, it will grant you presumptive exposure to those delicious six flavors of herbicide Uncle Sam sprayed. As an aside, I was quite impressed the first time I saw it sprayed in 1970.  Who knew it doubled as bug spray? Not me. Mosquitoes and ants disappeared. Hell, lizards, snakes and most anything else did too. I considered it a multipurpose tool like a Swiss Army Knife.

So, you meet the first codicil in (1). You have the records proving you suffered from ________ in service or were in-country. Now let’s look towards the end of that statement. It says VA will “reconsider” the claim. Whoooooooo, doggies, gentlemen. That is an entirely different statement than “reopening a claim with new and material evidence as described in §3.156(a).  When you reconsider a claim, you go back and look at not only the evidence from 1970 or whenever, but reconsider all evidence of record that has been developed from the get go up to now. If you filed numerous times and were denied for all of them-even if you went all the way up to the CAVC- you can still reopen the claim with the service department records and obtain your original filing date. Not so with a CUE claim. If you appeal a CUE to the BVA, your claim is dead in the water when you lose. You’ll need a new theory as to why it’s CUE if you want to start over. Remember always that a §3.156(c) claim is a non-final claim. It’s still open.

Courtesy Ron Hood

(i) offers the codicil that it makes no difference if the records do not mention you by name. Let’s say you were a cook at An Khe when the gooks steamrolled through in October 1968. VA says your MOS was chief cook and bottle washer so there’s no proof of your claimed stressor. You provide orders showing deployment to Camp Radcliffe proving you were there October 30th roasting marshmallows at the big fire down at the ammo dump. It makes no difference. You win (assuming you do actually have bent brain syndrome). These are generally records developed by JSRRC. Of course, if the records you find have your name on them, this usually happens a shiton faster. A JSRRC search can take a year or more and you have to be pretty darn specific on when and most especially where it happened.

(ii) merely reiterates that the Army might have been a little slack  in their recordkeeping or that the NPRC neglected to send VA those inpatient records from the 312th Air Evac. Hospital in Chu Lai. Always remember, there’s a treasure trove of VA records at the NPRC from any hospital stays. They are located in a different building (fortunately) and didn’t suffer from the Friday the 13th burnoff back in ’73. The same applies to military personnel records. The ’73 fire hit mostly the STRs. Hell, those STRs from the hospital may still be at Camp Zama or Tachikawa AB.

1st Secret Squirrel Group shoulder patch (Rangers)

(iii) covers the secret squirrel aspect. I found some interesting stuff at the University of Texas Dallas on my 1970-72 Air America adventures back in 2009. It just took a while to “surface”.

(2) was added in 2006 when VA divorced §3.156(c) from §3.400 and gave it its own rightful place in §3.156. This is a disqualifier as I mentioned above. A lot of you with bent brain forget to answer VA correspondence when they ask you about why you want all the wishwampum.  VA would like you to think they are nonadversarial. (2) strikes me as pretty damn adversarial but I am jaded and have had unique, unfortunate experiences in my claims history- or so VA claims. Funny thing is, virtually every Vet I encounter has the exact same story…

Understanding “ENTITLEMENT”

(3) finally gets to meat of the regulation. Read it slowly and it clearly and unequivocally says “An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose.” This is the important part. Let’s discuss entitlement because the word has multiple meanings. To VA, entitlement is a double-edged sword. If you dined on a 60mm mortar like Butch, your “entitlement” to service connection arose the day you ate said mortar-in this case at the stroke of 2325 hrs (L) on January 18th, 1969 several klics west of Dong Ha, RVN (LZ Cork). Your entitlement to VA benefits, however, arose on the day you filed for it. If you were discharged and walked off base to AmVets and put down your marker the next day (or any time within the first year of discharge). your effective date of entitlement is the day after discharge-i.e. your first day of being a civilian. If you stupidly dawdled and  filed on the 366th day, you effectively screwed yourself out of a year’s $ and that would be your effective date. If you filed in 2001 and produced these records, then 2001 is the earliest date your entitlement arose. Remember that entitlement word. 

Now let’s carefully dissect (4). This is where the error at Fort Fumble #346 rears its ugly head…

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

VA would like to adjudicate these claims based on the medical evidence presented solely in the new service department records but that is not how it is written. The language is clear and unequivocal. If you have records created at your local VAMC that say you have a hard time hearing over the bodacious tinnitus they forgot to rate you for in ’70 but they graciously offer to give you 10% for it now in 2018, that’s error. If you complained about it then-and filed for it- they have to pay all the way back regardless of whether they just now determined you actually have tinnitus. Likewise, if you filed for ju-ju eyeball and blurred vision in ’70, because of those 9 retained metal fragments they just found last month, yep, the date of entitlement to that 10% for eye injury (unhealed) was 1970. Reconsideration views all the evidence of record to date-not just the service department records from 1970. §3.156(c) requires VA to reopen 1970 from scratch and study all the medical evidence of record- or what we call intercurrent records created over the ensuing years.

VA attempts to say that if there was no medical proof until 2018 of the injuries, then the date of entitlement is the date you filed to reopen. At this point it’s time to tell them to back the boat back up to the dock, thank you Gilligan. It isn’t clear and unmistakable error because the claim is now being reconsidered-all of it- all the way back to 1970. At any time after 1970 you prove the injury was compensable-even now in 2018- your effective date with the service department records is 1970. No ifs, ands or buts. Clear and unmistakable error claims are called a Motion to Revise a previously decided claim which is final. Final, for those word-challenged VA employees is 1970. When you reconsider a claim, you are reconsidering the original claim for those benefits.

In Butch’s case, the DRO purposefully misconstrues the thrust of the regulation. She insists that nothing she read in the newly associated records convinced her that Butch was entitled to anything more than was awarded in 1970. This is the wrong legal standard of review.  Remember that when you run into this conundrum. Congress was very explicit on this subject and wanted to ensure VA made right a wrong  if it erred in the past or, in this case, when service department records were finally associated with the file which categorically addressed the error and discussed it.

The reason we know that (4) can be interpreted to grant retroactivity is simple. If you filed for Bent Brain in 1970 and were denied (implicitly or otherwise), and you now have a bonafide diagnosis of Bent Brain granted in 2006, you have no medical evidence from 1970 to prove it. All you have is evidence now to support the 1970 filing. In this case VA is required to grant the retroactive claim based entirely on the 2006 evidence. The only wrinkle Vets stub their toe on is whether they filed for it. Butch happened to mention at his 8/10/1970 C&P exam, and VA idiotically put it in quotes, that he had ringing in his ears, blurry vision, pus coming out of his ears and frequent headaches. Gee, you reckon this might be due to TBI or that 60mm breakfast? Butch thus gets to use Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) which says…lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Ruh-oh Rorge.

The teaching moment is obvious. Don’t let these gomers VAspeak you out of your due compensation. To understand this better or to write your very own claim for a §3.156(c) adjudication, I attach the following. I had to search for the perfect example and use a current appeal to illustrate this. The obvious beauty of a §3.156(c) claim is you get to use current law to defend yourself against VA’s stupidity in 1970. With a CUE claim, you are limited by the law as it was written in 1970.

https://www.va.gov/vetapp17/files7/1738821.txt

I would like to add that you will notice this little gem was won by a VA agent-one  Terri Perciavalle. Here’s her info in case you desire to have her do your claim. I expect her dance card is plumb filled up after this gem.

https://www.linkedin.com/in/terri-perciavalle-7621a156

 
 
Posted in 3.156(c), Agent Orange, All about Veterans, BvA Decisions, C&P exams, CAVC Knowledge, Informal Claims, KP Veterans, Lawyering Up, Nexus Information, TBI, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 10 Comments

“The Price of Freedom: Americans at War”

The Smithsonian published an online exhibit and timeline (LINK) of recent American Wars. 

The Vietnam Veterans Memorial has been a site where mourners have left very personal items and which the National Park Service has collected and archived. 

“Note and Colt 45 Beer Can Date: 1989 Credit: National Park Service Dimensions / Weight Dimensions: 4.8″ H x 2.75″ W x 2.75” D Physical Description Paper with writing and aluminum can with “Colt 45” printed on it. Note states: “Hey Bro!, / Here’s the beer I owe you – 24yrs late. You were right – I did make it back to the world. Great seeing you again. Sorry not to be with you but I”ll be along soon. / Thanx / Sarge””

Smithsonian text:

“Specific History

This collection of objects was left at the Vietnam Veterans Memorial Wall during the time period from May to June 1989. Left at Panel 3E.

From 1992 until 2003, the National Museum of American History, in conjunction with the National Park Service, mounted a major exhibit entitled “Personal Legacy: The Healing of a Nation” of more than 1,500 objects that had been left at the Memorial over it’s first 10 years. This was the first time any of the objects from this collection had been placed on view for the public. Many of the objects were service related such as military patches, dog tags, and service bars. Other objects were things of a more personal nature such as photographs, letters and teddy bears. The curator’s tried to include objects that were representative of the different types of objects that are now part of the Vietnam Veterans Memorial Collection, at the National Park Service.

General History

Visitors began leaving tokens of remembrance at the Vietnam Veterans Memorial in 1982, while it was still under construction. Flags and flowers historically have decorated veterans’ monuments, but the presence of many other mementos is unique to the Vietnam Veterans Memorial. The first, a Purple Heart, was thrown by a Vietnam veteran into the wet cement of the Memorial’s foundation.

Since then, visitors from at home and abroad have left more than 25,000 keepsakes at the Memorial, collected daily by National Park Service rangers. Each has its own story, often known only to the donor. This collection of messages and gifts from the heart was created by relatives, former comrades-in-arms, friends, neighbors, and members of civic and fraternal organizations. It expresses the love, grief, and pain they associate with the 58,220 names on the Memorial’s 140 black granite panels.

This unsolicited outpouring occurs year round, particularly at Christmas, Memorial Day, July 4th, and Veterans Day. The gifts also commemorate birthdays of dead and missing veterans and other days of personal importance. This selection of remembrances provides us an opportunity to ponder the continuing impact of the Vietnam Veterans Memorial on the generation that lived through that conflict.”

I’ve visited “The Wall” once, a long time ago, and it had an emotional impact that I wasn’t expecting;  I left nothing physical except tears. This is an inspired work.  I’m glad the NPS didn’t throw these words and relics away.

Today we have remembered American war dead with parades, speeches, flags, communal meals, photographs, candles and with quiet thoughts.  And we pray that those fighting and serving now will come home safely and be treated fairly.

Kiedove

Fredericksburg National Cemetery “The luminaria honors soldiers who have died in the service of this country. Members of the Mattaponi and Aquia Districts of the Boy Scouts of America and the Commonwealth Council Girl Scouts of the USA will light 15,300 candles in the cemetery – one for each soldier buried there. In addition, a bugler will play “Taps” every 30 minutes during the evening and park staff posted throughout the cemetery will tell stories about some of the soldiers. As this year marks the centennial of World War I, there will be a special emphasis placed upon the forty “Great War” veterans interred among the Civil War dead.”

 

Posted in All about Veterans, Food for the soul, Food for thought, Future Veterans, General Messages, Guest authors, History, Memorial Day, Uncategorized, Vietnam War history | Tagged , | Leave a comment

Shingrix vaccine available at some VA clinics now

My old Marine requested and received his first Shingrix (Zoster Vaccine Recombinant, Adjuvanted) shot, the new vaccine for shingles, at the VA Burlington Clinic in Vermont.  It’s injected into a muscle so expect some soreness. Two shots are needed.

Shingrix is approved to prevent shingles in people 50 years and older (Link). Medicare does not cover the cost under Part A or B (Link). Coverage with Part D’s or a Medicare Advantage Plan’s will vary depending on insurer.   Private insurance costs vary widely.  Medicaid coverage varies by state.

The cost for the shots are high.  GoodRx (Link) has a search engine that allows users to check cash pharmacy prices by zip code and plan and offer coupons.  Blink Health is another search engine/discount program (LINK).

(No or Scrooge insurance?  There are a few options.  GlaxoSmtihKline Patient Assistance Program (Link) is worth investigating.

The CDC has a contract to buy Shingrix for health programs it supports–$102.19 per vial.

shingrix cdc

Click to go to CDC “Prices last reviewed/updated: May 1, 2018 Note: The CDC Vaccine Price Lists posted on this website provide current vaccine contract prices and list the private sector vaccine prices for general information. Contract prices are those for CDC vaccine contracts that are established for the purchase of vaccines by immunization programs that receive CDC immunization grant funds (i.e., state health departments, certain large city immunization projects, and certain current and former U.S. territories). Private providers and private citizens cannot directly purchase vaccines through CDC contracts. Private sector prices are those reported by vaccine manufacturers annually to CDC.”

 

Not all veterans are allowed to enroll in VA health care and many do not have access to VA clinics.  The Federal Community Health Centers can help veterans and everyone receive primary health care on an income-based sliding scale.  To search for a center by zip code go to: https://findahealthcenter.hrsa.gov/

To check out current VA income and co-pay requirements, go to:

http://nationalincomelimits.vaftl.us/

https://www.va.gov/HEALTHBENEFITS/cost/copay_rates.asp

For general advice, Consumer Reports:

https://www.consumerreports.org/shingles-vaccine/new-shingles-vaccine-shingrix-what-you-should-know/

For a shingles overview, see Mayo article:

https://www.mayoclinic.org/diseases-conditions/shingles/symptoms-causes/syc-20353054

If you have any $ tips to share, please comment because people are reporting bills of $300 and up.  The VA is expecting shipping delays due to high demand.  I’m wondering if the VA is doing regional outreach to older veterans or do they have to request the vaccine?

Update:  Under Obamacare (ACA), this may have to be covered by insurance within a year of a CDC MMWR recommendation–which was published 1/26/18.  Some companies have already added it to their coverage. (LINK)

Kiedove

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