Memorial Day greetings to you all. I’d probably be excoriated for being politically inept if I said Happy Memorial Day. Rightfully so. This isn’t a holiday to hand out attaboys for being a Vet. It’s all about remembrance of loved ones who bothered to serve his or her country rather than just pay lip service to the grand idea. Sure, some made the ultimate sacrifice but fortunately, like this insane chinavirus, most survived it with a bit of chipped paint and dented fenders. And then there are some who were totaled-either mentally or physically… It’s to those now gone we especially pay tribute to.
You don’t have to be a combat Vet or a fighter ace to get this attaboy. It was enough that you were so selfless with your time that you decided to pay America’s Freedoms forward. Your ticket to fame is being dead. I know that sounds harsh but it’s a fairly exclusive club with strict credentials required to qualify.
I/we (asknod et al) have been “on the air” now for almost 12 years. Cupcake says I’m overly loquacious and can’t figure out why a body would come back here over and over and read my blogs. Well, honey, it’s informative, I hope. Like hydroxychloroquine, if it only helps one of you succeed in your claims then it was ultimately worth every penny. One of my readership (Dennis) sent me an email and said he had to keep a dictionary and thesaurus nearby when reading to decypher me. I’m sorry. I’m not going to reduce myself to a 300-word vocabulary to get my point across. The English language is like a Baskins and Robbins© store. Why settle for vanilla day-in and day-out?
This Memorial Day is more poignant than most. This hasn’t been a good year for me on Vets. Most of you know (or might) that I take the most grievously injured and dying to represent. Almost all are Vietnam Vets and now we’re seeing a new bow wave of Blue Water Navy Vets. I eagerly await the inclusion of herbicide presumption to all my fellow Soldiers and Airmen who served with me in Thailand as well as that country to the north that rhymes with Mouse. Each month, through their diligence, our military mortuary forensics teams find another of our lost pilots who augered in up there never to be seen again. That’s what this celebration is about. I hope that in my lifetime, we can convert all those KHA/BNRs to real, identifiable remains for suitable burial.
Many times now I end up representing the surviving spouse. This has increasingly been one of those years and we haven’t even reached the Summer solstice. I’ve lost more than a client when this happens. I’ve lost a good friend. Anyone who knows me is aware my client list is pretty short and I keep it that way. After my treatment at the hands of numerous VSOs over the decades before my Awakening, I’ve resented the fact that one of them drew a complete blank on who I was at a DRO hearing in 1991. He erroneously began the hearing with “My client, who served honorably in the Coast Guard during peacetime has filed a claim for flat feet…” With that said, I salute the many of you VSOs with that same verve and zest for justice. I’d probably get unfavorable ankylosis of the fingers trying to name you all so you just get an honorable mention. And to correct that VSO, I only got a General under Honorable conditions- not the Full Monty Honorable. Seems I had a few dents and chipped paint when I came home, too.
Losing those you represent is not for the weak of heart. I’ve represented some for almost 12 years as their Sherpa-long before my acceptance to help Vets legally. I’ve shared the thrill of victory and the agony of loss with them and their whole family. Hell’s bells. I’m even beginning to represent some multigenerationally (sons and daughters of clients I’ve already won claims for). There. I saved you looking that one up, Dennis. This year I’m experiencing the agony of death with a few more than in years past. Perhaps more of you in dire straits are beginning to contact me. It shouldn’t have to be that way (substituting the surviving spouse to complete the claims) but that’s what this year’s blog is going to touch on.
The new AMA (Appeals Improvement Act), enacted in 2017 and fully deployed in February 2019, certainly looked like a propitious moment for all of us Vetkind. We were promised much and for a while it looked splendid. But suddenly, a horrible plague settled in around the VA. No, guys. Not the covidtrastrophy. I’m referring to the Houdini-like disappearance of VA intelligence in figuring out how to adjudicate claims. The first thing that comes to my mind is an almost anal obsession with making sure you file the claim on the correct form. But then it got worse last fall. And worser last winter. By March of this year, what I suspected as something that couldn’t get any more fusterclucked than it was already managed to compound itself with interest. It’s as if telecommuting VA raters came down with a severe case of dumbshititis. It’s like reading a revisionist version of the Ten Commandments and someone saying “See. Right here. It says ‘It’s cool to bear false witness against another’.” I’m not making this up. Other VA attorneys I talk to (we’re a loquacious bunch) all say the same thing- Does the virus make you stupid? Are these folks carriers? Is this one of them QAnon conspiracy things? No. Just kidding on the last one. But now that you think about it…
As you know, if you’ve ever filed a claim for something in the past, you now can only use the VAF 20-995 “Supplemental” claims form to reopen it. Of course, this now comes with a requirement that you (not VA) produce new and relevant evidence in order to get a can opener into your old claim. That duty to assist you thing is now a one-shot coupon. If you filed a 526 to start a new claim, that’s the last time you get the duty to assist on it-ever. So… if you lose, it becomes infinitely harder to prove your claim ever after. However, this legal concept doesn’t carry over into the VA world of Motions to Revise (CUE) old, final decisions from the ancient past. In these instances, we can use a paper towel as long as it has your name, rank, airspeed, tail number and last known heading. Or so we were told. I filed a CUE for my client on a 526 back in December. A month later, I got the Dear Alex letter back informing me the “claim” could not be ‘accepted’ this way. I was told to choose from the menu of three (995, 996 or 10182). I immediately refiled on a 995. As this was a new iteration of CUE, it was certainly permissible legally to use anything-including toilet paper (as if I could find any). The dolt in San Juan, P.R. who drew this out of the queue informed me in a decision four days later that it was being tossed out because I had not presented any “new and relevant evidence” to reopen my CUE. Let that sink in if you know a lot about CUE. If you don’t, here’s the primer.
But that is not the end of the matter. I love to use that phrase in my legal briefs. It has a rather ominous rumbling sound like dark clouds on the horizon portending lightning. Since Mario Caluza’s revelation to us all in 1994 on what we needed to have to prevail escaped from its Pandora’s box, we know we need three things. This was the subject of my book in 2012 because the Vetsphere was an utter vacuum on the subject. I lectured and preached for years on that precept and it’s always held true right up until it didn’t about a week or ten days into the corona lockdown in early March. I’d counseled a Vet’s wife back in ’15 into how to file a “hybrid” claim for her husband. It was a cross between an §1151 medical malpractice and a service connection for the underlying reason for the VA’s liver transplant fiasco. I raised it for the first time as a direct claim in the NOD a la Combee v Brown. Just before the Little Rock DRO fired off the denial of the §1151, she noticed I’d snuckered that “either/or” Combee codicil in there. This meant disengaging the afterburner, standing on the binders and popping the drogue chute as you sail past V1. She had to send it back to production to deny the contraction of the Hep C in service. Bingo. They bit down hard. Hey, I warned her if she denied I was going to go out and get an IMO. A VARO’s gotta know their limitations when dealing with me. They bit and denied it based only on this being an §1151 claim. I called up the DRO and said “Hey, sugar. It was you who went into the HCV denial-not me. You recognized it as a reasonably raised claim in your denial. I’m only responding to your denial-and on the right 995 form to boot. VA isn’t allowed to play
Indiangiver. Ooops. Can’t say that. They immediately choked and puked and granted. What else could they do? Three days later my blind client with a killer IMO for malaria prophylaxis overdose (Primaquine) who ended up in the Cam Ranh Bay hospital was denied by a Jackson Mississippi rater saying a Optometrist’s data and conclusions outweighed my well-reasoned IMO by a real Ophthalmologist surgeon with 8 peer-reviewed cites and a ten-page CV. To reach this amazing finding of fact, you need to compare it to an Optometrist as a bed pan changer arguing with a Board Certified Brain Surgeon. Yeppers. The Jackson boy said an optometrist was like a Full House with aces over eights compared to my ophthalmologist’s pair of kings any day. Arrrrooohhh? Then it got worse-again at the Jackson Puzzle Palace.
This time it was a well-reasoned IMO for a Vet out of Kansas for Hep C. They blamed this ol’ boy for drinking himself silly and the high ASTs/ALTs showing all that liver distress were due solely to his being extremely trashed or hammered (ETOH). My Hep C hepatologist/ gastrodoc corrected that misconception and went on to explain how your liver disintegrates on a very steady, predictable timeline-with or without the help of Scotch. In VA’s dyslexic eyes, the fact that he was cirrhotic and in need of a new liver had everything to do with the booze. But that wasn’t enough. The rater went off road and dragged §3.309(a) into it. Seems if you don’t come down with cirrhosis within that first year of separation, why, you cain’t claim it 40 years later. That’s right out. Claim denied. The IMO doctor has rocks in her socks. You’re wasting your time, Graham. Go tell it to a BVA VLJ.
I called up our fixer gal at the Appeals Management Office on the banks of the Potomac and screamed Help! Stupid Rater Alert in Jackson! The Head Vets Service Center Manager down there had refused to even consider replying to lowly asknod’s email. The AMO was a different matter. He promptly emailed us both and said “Relax. I’m on it and we’ll fix it.” Now, a month later, not a finger has been lifted to readjudicate Kansas Chuck’s claim using the proper legal standard of review-i.e. Caluza. Nary a word about the probative value of the IMO. Negatory. The rater avers this puppy fails on §3.309(a) alone. So I give up. Where can I get some of this killer Fort Jackson Funderthuck ganja? My local pot shop (essential service, mind you) doesn’t carry it. I gave (wait for the unmasking) Mr. Sam Young, Jackson VARO VSC, a month to clothesline himself and correct the legal error. Ooops. Times ups Sammy. You get a three day vacation in the interim. Zero hour is now 0800 Local (1100 EST) Tuesday. The email will be sent to VASEC Wilkie and all the Poohbahs at the AMO. Somehow, I’m thinkin’ as I’m gonna disremember to cc ol’ Sammy. I’d allow the shitstorm will arrive over Mississippi about an hour later. A Vet shouldn’t have to put up with this tomfoolery. And with the chinashit going around, I read that VA telecommuter raters’ work performance has increased fourfold. Arrrroooohh?
I figure if you can unmask a Lieutenant General of the Marines who didn’t do anything wrong but serve his country, then VA isn’t going to get their nose bent out of shape about me unmasking some so-and-so GS-14 at a nowheresville RO who can’t find his ass with a methane detector. We shall see.
Take a moment to remember your loved ones who served America. They done good. America is still here just as strong and proud as it was in 1776. Set your politics aside and consider this conundrum. Somehow, there’s always going to be one nation under God that is the top dog. Right now, we’re it. Is there something wrong with that?
Memorial Day always reminds me that for those of us who have borne the battle, alive or dead, the battle seems to never end and the folks hired to help us seem to spend an inordinate amount of time on our tax nickel coming up with increasingly more far-fetched theories on why they don’t owe us a dime. Considering I’ve won everything I set out to do for my Vets so far, it’s my considered opinion that we’re working with folks who are dealing with marked cards or a stacked deck. Worse, they look me right in the eye with a straight face and tell me they are doing everything but breaking the regulations to give my clients “everything they got coming.” Sadly, that phrase is always a double entendre. Don’t get me wrong. We’re not losing. We’re just uncovering how despicable these folks are- one by one. Too bad they’ve outlawed capital punishment dang near everywhere. Lucky my daddy taught me how to tie a hangman’s noose.
Here’ my favorite Vets- my Daddy and my Uncle.
I was born south of the Mason Dixon line so I apologize if a bit of my past sneaks into my speech. I was taught you cut on the water and you cut it off. You turn off when you get to the road where you’re going. Reckon is a verb et cetera.
And that’s all I’m going to say about that.
P.S. If you really need toilet paper, wear a bulky sweatshirt/jacket and take a paperclip down to Cheapo Depot® Hardware Store. I hear the TP dispensers are incredibly easy to pick the locks on. Just sayin’.
P.P.S. Practicing Dog social distancing. (M-Mature Audience Suggested)