This is one of those stories I have been itching to write. I have been waiting exactly six thousand nine hundred and thirty nine days. Due to the backlog in 1994, somehow this one got overlooked. I am fond of the Shakespearean verse from Richard III where he shouts “A horse! A horse!. My kingdom for a horse!” and the verse it spawned (or vice versa)
For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.
The modern day appendage to this is my 1994 claim for what I thought was Porphyria Cutanea Tarda (PCT), secondary to Hepatitis in service or from Agent Orange. For lack of a lawyer, the claim was lost. VA can’t leave these things alone and immediately turned it into a claim for hepatitis and a claim for porphyria due strictly to AO. In relatively short order (seven months and seven days), they denied because there were no records in my SMRs of hepatitis and that I was never in Vietnam. At some point they had mailed me a C&P for a tinnitus exam and I missed it.
I dutifully filed my NOD and sent them evidence to rebut both the above. They received it and also issued a Statement Of the Case (SOC) January 9th, 1995 admitting as much. I was chastised for missing my last C&P for tinnitus and rescheduled for February 8th. I attended that and sat back to wait. I became ill and gradually forgot about it. These matters take time. My AMVET told me so. Apparently there was a backlog in 1995- or not.
When I became far too ill to work any more in 2006, I refiled for the same three claims. My shiny new Military Order of the Purple Heart (MOPH) SO chose to use exactly what the VA had used so it would be a “reopening” of the 1994 claim. Thank You Bruce. Within three months VA had approved me for tinnitus but paid me back to 1994. Being stupid, I thought that was perfectly normal. That’s when they screwed up. If they’d just given me my new date of 2007, I’d be dumb and happy and wouldn’t be typing this.
When I prevailed on the hepatitis in 2008, I found it odd that I had won on the exact same 1994 evidence I resubmitted in the reopening. VA had not acknowledged I was in Vietnam until April of 2007 even though I sent them those very same records on December 2nd, 1994. I decided to fight. If they paid the tinnitus back to 1994, something was going on.
Just because you hold the winning cards and no one can dispute it, you still don’t own the gambling hall where you’re playing. The VA dealer can say “Sorry, bud. That’s a losing hand. You didn’t file your Form 9.” In order to verify it’s a losing hand, you have to know what the dealer is holding. You can’t just take his word for it. I requested my C-file to see who was funning whom. There, in black and white was the new and horribly material evidence I submitted that they admitted receiving and dated stamped December 7th, 1994- a day that will live in infamy. It was also the evidence they were now denying existed until 2007.
VA has no operations plan to describe what happened in 1994-95. The evidence in the file, called the EOR (evidence of record), is a record of what transpired-not what was supposed to have transpired. However, VA attempted to reconstruct the 1994 decision based on what should have happened if it had been done according to Hoyle. They looked at the SOC as having a cutoff date sixty days from the receipt of the SOC or, in the alternative, within one year of the initial denial. VA looked through the file and saw no further correspondence or activity after my tinnitus C&P in February and simply forgot about it. Case closed. Claimant forgot to perfect appeal. This was explanation number one. If you ignore the evidence prior to the SOC, you can come to this conclusion. Since VA said the decision was based on all the EOR, something was amiss.
When I was finally granted my PCT claim five months later, VA short sheeted me once again and refused to revisit 1994. This time the Decision Review Officer (DRO) freely admitted (and contradicted the denial rationale of the hepatitis claim) they had indeed received the new evidence of duty in Vietnam. No mention of any hepatitis records submitted, mind you. That was another subject. Stay with us, Mr. Nod. This is very confusing. This evidence did not prove I had PCT according to them. It merely proved I was there. Explanation #2 was to say that if… IF…I had sent in my Form 9 in time, they would have mailed me a Supplemental SOC continuing the denial even though my service in Vietnam (and presumptive exposure)was conceded. This lovely explanation failed to take into account that they never acknowledged I was there (in Vietnam) until April 2007.
Last but not least, a third explanation was proffered. Yes we paid you back to 1994 for tinnitus because your claim was still open and there was some “disagreement” about the terms. However, do not confuse the Tinnitus claim with the Hepatitis or PCT claim because Tinnitus was a separate claim and had nothing to do with the other two. This explanation, too, fell flat because it doesn’t explain why they didn’t pay me the $85/month for another thirteen years. When you lie, you have to have a perfect timeline. You need to have the same rater doing the claim so his excuse or lie is going to dovetail in with the prior tale he was weaving. Here, you have three different authors with three different stories as to how 1994 went down. The dichotomy is so glaring that the proper procedure is to bring out the bowl and wash your hands of the whole affair like Pontius Pilate.
The die was cast. VA refused to budge. Since they controlled the RO and the wallet, there was no more argument. I went the extra mile on a DRO review to boot on all three claims thinking this was the ticket to a rational, intelligent individual who could sort it out. Wrong. No one could see or admit the presence of the submitted evidence in 1994. Or, if they did, it was to say it was not probative. What was never discussed was that by the act of submitting the evidence, a new decision was required as mentioned in the 1995 SOC. If you anally pursue the lack of a Form 9, you can divert attention to the want of that horseshoe nail. Eventually someone has to acknowledge that the shoe was never nailed on in the first place.
Fully confident in my verbal abilities, I had a Board hearing face-to-face for an hour and forty minutes and felt I had finally removed the cobwebs and resolved the confusion. The Veterans Law Judge merely rubber-stamped the RO decision and carefully avoided the tarbaby of the Pearl Harbor Day evidence. How long they thought they could skirt this issue and refuse to discuss it and the pertinence to 38 CFR §3.156(b) and/or (c) was predicated on their assumption that I would abandon it. VA counts on this. VA depends on this. This is why you have to keep that Win or Die mentality about you. Hold your cards and don’t fold. Call the pit boss over to look at your hand again. Have him tell you the dealer is right. Get it on paper.
VA is loathe to pay out old, large settlements. How much is a large one? Probably over $25,000 dollars these days. Ever since they were forced by the MOPH to rescind the Exorbitant Awards Program in 2008, VA has been communicating these on back channels to avoid appearances of impropriety. My settlement, based on medical evidence well-documented, is on the order of 20% for Hepatitis under the older, more permissible Diagnostic Code 7345, 40% for Porphyria and 10% for tinnitus. I have a CUE claim in for PCT scarring (10%) which VA rescinded to 0% after issuing the 40% Porphyria grant. 40%+20%+10%+10% in VA math is 60%. Multiply that for 237 months and VA gets green around the gills. This, then is the crux of the problem. It was what prevented them from striking a bargain earlier. Had I folded, this crossroads would never have been reached.
VA was not even inclined to even meet my attorney halfway in October. They ignored our appellant’s brief and opposed a motion for oral briefing. Suddenly, four years into my appeal, they had a change of heart. After a month of trying to find a politically correct way of telling the VLJ he made an error, we have progressed to this.
So, after six years from filing, the hamster wheel is still spinning merrily along. I estimate several months to get any response out of the VLJ. After that, another six month delay in finding suitable mailing arrangements to get the eight-volume C- file back to Seattle. Then we begin the much anticipated Fenderson rating where VA will attempt to claim they have no records whatsoever of my health in 1994 and give me the 0% ice creme cone with no ice creme in, on, or near it. After a suitable number of years , we’ll probably be back at the BVA or the Court to argue the correct percentages all over again.
I know many of you do not have Tiger blood in you. The HCV saps it out of you. That’s why I took point on this one. VA kindled a fire in me that cannot be quenched. They gave me the Tim Poe/Dr. Phil treatment. They said I was never there. They said I was a liar.
You do not know how hurtful those words are. You cannot know that I had to curb my words over my 1989 filing because I had signed non-disclosure agreements after my service in Laos. I kept my pledge in 1994 as well by only filing the records needed to substantiate my claim. VA chose not to recognize it or ignored it. They did finally acknowledge it in 2007 but abruptly changed their story yet again in 2009. Perhaps you can see some of my anger when I write of someone who engages in stolen valour. I can’t even get my legitimate service acknowledged and here are bozos running around with upside down medals getting free meals at Mickey D’s. I don’t want fame. I don’t want medals. I want compensation I filed for.
Now, with not the least hesitation, VA has reversed course. No “We regret we made a mistake in 1994, sir.” is forthcoming. No “The miscreants at the RO will be drawn and quartered and fed to the dogs at first light.” will ever pass their lips. There is no rhyme or reason for this on its face. It’s akin to that old Neil Young song The Last Trip to Tulsa during his LSD days:
Well, I used to be asleep
With blankets on my bed.
I stayed there for a while
‘Til they discovered I was dead.
The coroner was friendly
And I liked him quite a lot.
If I hadn’t ‘ve been a woman
I guess I’d never have been caught.
They gave me back my house and car
And nothing more was said.
And that, inevitably, is what will happen here. The question is how much longer will they continue and will they tire of this game? Given the statistics, I’m liable to be dead before this is completed.
Currently, fifty three Veterans perish every day while waiting for benefits earned and due.
That pencils out to slightly more than two Veterans per hour. If more Americans were aware of this horrible statistic, it would create an uproar. Or would it?