BVA–DUDE. YOU’RE NOT GETTING A DELL!


Imagine running around and getting everyone on board for an ILP grant for a computer. Everything is moving along smoothly until the 30 pieces of silver trade hands. Suddenly, your shrink, heretofore loyally in your corner, changes his mind and says ” Olly Olly Income Free. Philadelphia Jack is all better now. Cancel the request.”  That is exactly what happens here.

You can always enjoy an ILP claim. They move quickly. Denials are swift because they are automatic. No need for long soul-searching trips to the M-21 and M-28. Just a simple claim adjudication- perchance  a trip to the dry cleaners- In by 10, out by 3. Watch this go zooming by. I’ll try to slow it down with BVA high speed photography-one day per frame. Stay with me now. I’ll put the dates in purple so you can appreciate how super the new VBMS is going to function by 2060:

In an April 2008 VA Form 28-8861, the Veteran’s treating psychiatrist indicated that the Veteran was not capable of employment.

Keep an eye on this psychiatrist. You are going to hear a lot about him. A lot.

During a follow-up VR&E counseling appointment later the same month, the rehabilitation counselor determined that achievement of a vocational goal was not reasonably feasible due to the Veteran’s service-connected mental and physical disabilities. He was provided with a denial letter for vocational services and his [Miranda] appellate rights and was given an IILP orientation. A preliminary independent living assessment was completed pursuant to 38 C.F.R. § 21.53(f) (2009); and the Veteran was informed that no independent living needs could be identified at that time. Concurrence was sought and received from the Assistant VR&E Officer.

So now, in the space of less than a month, the shrink and the “rehabilitation counselor” have both come to the same conclusion- Jack is not going to be a WalMart greeter. In addition, a VARO counselor,  the one with a BA in Information Technology and a minor in Hotel Management, has done the Minnesota Multiphasic Personality  human resources intake  and discovered that nothing-Nothing– is going to improve this man’s Independence in Daily Living. He even got his boss to agree with him that this was the case. All in one month or less.  Score? Vet 2, VA 1.

In a May 1, 2008 administrative decision, the VR&E denied entitlement to the independent living services requested by the Veteran, noting that a preliminary living assessment revealed that he was functioning independently with regard to his activities of daily living and the VR&E was unable to identify any needs that were not being met.

Considering he was 100% on PTSD, it’s virtually inconceivable this guy didn’t need something. Nevertheless, he was given the clean bill of health-not even so much as an electric toothbrush or a grab bar next to the water closet to tuck magazines into.

The Veteran filed a notice of disagreement, accompanied by statements from his VA psychiatrist and therapist.

In a May 8, 2008 letter, his VA psychiatrist stated that, since such services are available through the VA, the Veteran is entirely appropriate and deserving of them. The psychiatrist noted that the Veteran is 100 percent service- disabled with PTSD, which increases his tendency to self- isolate and to estrange himself from social situations, in addition to severe arthritis that limits his ability to easily walk and socialize. A computer, he reasoned, would grant the Veteran access to email and allow him to stay in touch with the people in his life, including family, as well as to connect to the Internet to read and learn about the world. That is, it would help the Veteran a great deal in terms of his ability to stay connected, versus spending his time alone with his thoughts, including depression and anxiety.

Jack is all over this like white on rice. Fresh from denial in April, he has his NOD filed and is busy scaring up nexus letters. He’s on it. This is a slam dunk win-right up until it isn’t.

In a May 15, 2008 letter, the Veteran’s VA therapist indicated that she had been working with the Veteran in therapy since the Spring of 1999; that he attends monthly individual therapy, monthly psychiatric treatment and weekly group therapy; and that the support he receives from both his peers and mental health professionals has helped him to regain balance in his life. She added that the Veteran had joined a number of veterans’ groups and meets several times a year around the country with other veterans that served in both the Special Forces and the 82nd Airborne. Having a computer would enable the Veteran to have ongoing contact with these individuals. She also stated that he is a very bright man, but has resisted all efforts made in the direction of getting himself reconnected with pursuing higher education, adding that the Veteran finds the crowds in classrooms difficult to deal with. His therapist concluded that, having a computer would greatly enhance his ability to learn new material and to stay current with new developments in the world, that is, it would keep him connected; and, thus, she asked that the VR&E decision be reconsidered.

There you have it. Two extremely intelligent therapists schooled in the art of bent brains have come to the exact same conclusion. This man needs intervention and a computer is just the ticket. No quibbling or equivocal fence-sitting. No “well there’s this… but then there’s that…” . The unequivocal consensus is “Throw this man a computer and be quick about it”.

And then the “phone call” from VR&E to the pretzel benders goes out. The silver crosses the palm of the head shrinker and suddenly he sees the light. Computers? He don’t need no stinkin’ computers.

 In June 2008, the VR&E sent copies of the preliminary independent living needs assessment to the Veteran’s VA psychiatrist and treating therapist. In a July 2008 telephone conversation, the Veteran’s treating therapist confirmed that the Veteran presents to her in the same manner that he presents to the vocational rehabilitation counselor. Later that month, the Veteran’s psychiatrist indicated in an email that the preliminary independent living assessment is consistent with his understanding of the Veteran’s current functioning. This psychiatrist stated that he felt the Veteran’s application for a computer can be disregarded and that the matter should definitely be considered resolved.

Well. Jim Dandy to the rescue, huh? The VR&E poohbah has now queered the shrink into bailing out. The group therapy  supervisor, seeing his GS-6 job dangling in the wind, quickly follows suit.  But the important thing is that the man with the 8 year degree and 2 years of internship has spoken. Staying connected just flew out the window and over the cuckoo’s nest.

Armed with this contrite retraction, they send out another “Dear Jack” letter and say “Gee, Jackster, we really tried and went to the wall for you on this but the shrink knows what’s best and he says you really need to get out and visit the library more often. Time to put that PTSD and agoraphobia on the back burner and rejoin society.”

In a July 29, 2008 administrative decision, the VR&E informed the Veteran that, after reviewing additional evidence, and finding that both his treating psychiatrist and therapist agreed with the assessment of his functioning done by the VR&E, his request for independent living service continued to be denied and he again was provided with his [Miranda] rights.

In August 2008, the RO received a memorandum from the Veteran’s representative confirming his intention to continue his appeal.

As usual, it takes them a month of Sundays to “perfect the appeal” That involves filling out a Form 8 that says “Not it!” and putting it in the diplomatic pouch headed to DC. This occurs in October of 2008.

Admittedly, Jack starts getting desperate  He’s scrambling around looking for the ILP lever to win with. He accidentally starts saying things that could best be described as claim killers. VA loves this phase. He’s providing them with all the ammo needed to scuttle his claim. Remember he’s rated for arthritis and all manner of knee problems. Pain is his constant companion and suddenly…

In this regard, the Veteran reported that he walks independently, cares for his great grandson at times, walks, swims, and goes to the gym. He has the support of family members and friends and participates in hobbies. The Veteran requested a home computer so that he could communicate with others. However, he reported that he has been able to use the computers at the library. As a result, no independent living needs were identified.

Bingo. Case closed. If you want to use a computer, go to the library. That’s why they have them. Since you already use theirs, why do you need your own? You just solved your own problem.

Given that the Veteran’s disability picture is such that achievement of a vocational goal is not currently reasonably feasible, the requested computer and associated training, although desirable, is not shown to be vital.

This is the denial tool. Look up VA OGC Precedent 6-2001, and you will see the tarbaby inserted into ILP claims from that day forward. No longer could we just say “Gee. I wish I had a computer. My brain is turning to mush. If I watch one more episode of Days of our Lives I may go stark raving mad.” Now we had to hire a shrink to say it for us. It also had to be “necessary and vital”. Jack, here, had a hard time buying a psych doggie and keeping him bought. Once they got the “briefing” from the VR&E Goons, they saw the flaw in their logic and recanted. If this had been spread out over 6 or 7 years, we’d all forget. The shrink would have moved on to private practice and a new one would have to be coddled to produce a favorable assessment. Continuity would have  been broken and the Vet would throw up his hands and give up. But this happened in one summer and then sat dormant for sixteen months. It awoke in 2010 with a well-constructed denial built on all Jack said-or didn’t say.

When you speed up the timeline and condense it like Campbell’s soup, it appears as though something isn’t quite Kosher. Next, the straw man argument:

Based upon the preliminary independent living needs assessment, despite the Veteran’s mental and physical disabilities, he is capable of performing self-care skills and activities of daily living independently. Moreover, he can leave his home independently, when needed or when desired. The Veteran has not disputed this.

Being able to “leave one’s home” is nowhere to be found in the lexicon of Independence in Daily Living (IDL). IDL can be as much mental as physical. It is a determination that is purely subjective. In the case of Jack, he has admitted that he has mobility. VA immediately races off into the mobility = IDL argument. They do not examine a Veteran’s desire to have this accoutrement at home. The definitive assessment is to push him into engaging in socialization and drive X miles to access it. Hellooooooooooooo? Maybe he doesn’t want to go to town to use a computer. What if it’s the  45th anniversary of his best friend getting in the way of that B-40 that cut him neatly in half outside of Qui Nhon during 68 Tet?

Last, but not least, The Boys insert the “Let them eat cake” argument. No VA decision would be complete without it.

Disallowance of the Veteran’s request would force him to access the computer at the library, thus discourage his tendency to self-isolate. The requested equipment and training is not required to allow him to achieve independent living, as the Veteran can use the telephone to communicate with others and read periodicals and newspaper and/or listen to the radio or watch the television to learn new material and to stay current with new developments in the world. Therefore, although the requested equipment and training would be desirable, it does not meet the “necessity” standard set out in the regulations. See 38 C.F.R. § 21.160.

Well hell. pilgrim. Haven’t you ever heard of a wet blanket, green, smoky wood and a mountaintop? What do you want? Egg in your beer? Analog newspapers are far superior to computers and are eco-friendly because they don’t use electricity.

About the only thing not enunciated here was the “The claimant is 100% service connected and receives almost $3,000.00 a month in compensation. It cannot be said that a computer is outside his means. The so-and-so is trying to get the American taxpayer into buying one for him and we’re not falling for it. Talk about a cheapskate.”

VA uses these little tricks on each and every one of you. Every day. They do it with ILP claims and regular claims. The modus operandi is identical. You will notice there is no mention of OGC Precedent 34-1997? Had Jack known about that one, his VSO would be saying “Dude. You’re getting a Dell!” As Rosanna Roseannadanna said, “It always goes to show it’s somthin’!”

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About asknod

VA claims blogger
This entry was posted in Independent Living Program, VR&E and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

3 Responses to BVA–DUDE. YOU’RE NOT GETTING A DELL!

  1. RedCloud says:

    G’Day Mr. Nod. I have searched for “OGC Precedent 34-1997” without success. Could you tell me where to find more information about that precedent? You do great work, keep up the fire.

    • asknod says:

      At the top, under the VCM on the lower left of all the widgets is VA OGC Opinions. Click on it and then click on the link. Select 1997 and look for #34. Also look at 6-2001.

      • RedCloud says:

        Thank You for pointing me in the right direction. I read both of the cases you suggested. Those are great finds and valuable information for going for ILP.

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