I have thought long and hard about how I would write about this event. What the hey? I had twenty years to contemplate it. I was alerted, as many of you have observed on your own claims, to the imminent deposit of a large, well, extremely large, amount of funds several days into the future last Friday. Unsurprisingly, Monday morning brought the Big Brown Envelope- or BBE as some of you over at Hadit like to refer to it. Judging by it’s weight, it was obviously not a four-page denial with apologies about how they tried soooo hard to grant if they only could but were forced to deny due to those nasty laws Congress enacted that prevent them from being generous.
Having fought this long, I was prepared for some long, convoluted Fenderson rating that would simply begin the fight anew. I have watched VA do this innumerable times and fully expected the same treatment. A slow, pedantic grant of 20 or 30% for hepatitis under the old DC 7345 Hepatitis schedule followed by a new NOD. Two more years of DRO review and then back to DC at the BVA for yet another fight. I was prepared for this. I had fully expected it. What I think may have happened is that VA is aware of this Blog. I certainly have not made any secret of it.
My surprise at seeing the Appeals Management Center logo on the address was complete. The claim, by rights, should have gone back to the Seattle Regional Office for the Fenderson staged rating determination to ascertain just exactly how ill I was and when. This can only be done legally by what is in the C-file. You might have newer info and you can submit it but it will take years to enter you new, electronic file. First stop is Janesville, Wisconsin for the conversion process into a .pdf. Why they cannot do this locally remains a mystery and has something to do with where they need shovel-ready jobs.
I will say that I chose to write about this from a standpoint of law. I made a commitment to teach others how to do it when I hit the wall. We can all learn from our communal denials-and from our successes. I had no idea I would be quite this good at it. I suspect that, at 3,715 pages and seven volumes (in 2011), that VA has had their fill of me. I want you to know I did not do this for the money. Ever. I was called a liar and my good name was smeared. I was told I was never in Vietnam. I was told I never had Hepatitis of any type in the service. I was told I never attended my tinnitus C&P. That is why I did this.
When I fought for my earlier effective date of my original claim, I was told so many different things that none of it added up. We call this credibility. When your credibility is shot, you are not believed by anyone. VA went so far as to say they had looked at my new evidence submitted in 1994 but that none of it was “material”. It became a case of controversy rather than law. I contended I had submitted new and material evidence. VA maintained that I had not mailed in my Form 9 and it was game over for failure to perfect an appeal. No one opened the C-file to ascertain the truth of my contentions. New denials all the way up to the BVA continued the same hackneyed phrases cut and pasted for a new Texas Necktie Party.
This continued all the way to the CAVC. There, a smart cookie named Emily Purcell of the OGC decided to do her homework and discovered the horrible truth- VA had received the new evidence December 7th, 1994 and never actually done anything with it. A bargain was hastily struck over back channel emails and it was whisked back to the BVA for a long overdue do-over. Judge Mark Hinden wasn’t too impressed, but with an OGC sword at his back, he was forced to admit the truth and grant.
Here the claim sat for- hold on to something- nine days- before the AMC, or Black Hole as we know it, jumped on it and cranked out the grant on December 3rd, 2013. As you can well imagine, it took three signatures to sign off on this redistribution of wealth. I received it Monday the 27th of January. As most know, the AMC can’t even take a pee break in less than a week. Most Veterans who enter there on remand disappear for years and wander out dazed and confused. Nine days is like Hans and Chewey’s Millenium Falcon making the Kessel run at .65 lightspeed.
I do not like to talk about what I received financially. I wasn’t raised that way. I know you can figure it out simply by clicking on the Backpay calculator widget above under the Vietnam Campaign Medal but I still hesitated to reveal it. I choose to show you because it illustrates 1) how they do it and 2) that they rarely do things this way. Somebody, and it was not my rainmaker, decided that this squeaky wheel had been making too much noise for far too long.
To be honest, if you took all my medical records as a whole, you would never come to the conclusion I was 100% disabled solely by the Hepatitis in 1994. I suffered from a bad back due to one of my pilots choosing to park a PC-6 C in some trees. That might have been good back to 89 if I refiled the CUE and pursued it for 20% X six years. I suffered from Crohn’s which has not been determined to be related to Agent Orange. I did suffer from Porphyria Cutanea Tarda and scarring but my Hepatitis Doctor opted to tie it in as a secondary to the Hepatitis and guarantee a VA rating rather than fight the crazy PCT rules VA has on it. Oddly, you will not find any mention of PCT in the grant. It’s simply a blank sheet—100% from 1994 with P&T. No major discussion of why they gave 100% back to then and you all just know how much VA likes to play with words for paragraph after paragraph on how they determined you are eligible for 0% on hemorrhoids and hearing. I don’t have any hemorrhoids. I do have 0% for hearing but it’s just in my left ear. That was the one closest to the Mk 82 that landed way too close one time.
The rating decision is here.
As I say, I offer the payout sheet as a summary so others can see what it looks like and dream their dreams too. It can be done. Do not let any chucklehead from the VA or a VSO convince you it cannot be done. The words of Pat Buyer, the Military Order of the Purple Heart representative I fired in 2008 said: ” Let’s get something perfectly straight. You are never going to win this Hepatitis claim-ever. You aren’t going to win the AO claim for Porphria either. I can get you the tinnitus for 10% and you ought to just go home happy. That’s how VA works. Get used to it and don’t make waves. ”
Ladies and gentlemen Vets, I give you quite possibly the shortest Fenderson rating ever produced by VA- and also one of the most inaccurate. Why do I say this without fear of VA reprisal? Because on March 30th, 2014–a mere sixty days from now– my rating is protected due to it’s being over twenty years old. VA couldn’t find their ass with a methane detector in sixty days. Remember also, that as a finding of fact, it cannot be overturned unless the VA files a CUE claim against themselves and declares it null and void. That would be difficult even for them at this late stage of the game.
I take no pride in whipping these guys. If they had done what they should have in 1994, we wouldn’t have this blog. Because they did not, we do. Over forty of you have benefited so far from this course knowledge with more arriving daily. That is what we do-one Vet helping another with no expectation of remuneration for doing so. I also take no pleasure in the increase in wealth. Sorry. No Corvettes. I am blessed and it isn’t a make or break issue. It was done for all of you to illustrate how, and often why, you need to do certain things to protect yourselves. My grandchildren and other needy Vets will benefit from the VA’s largesse. Pay it forward to those who need it most.
P.S. you just know I’m going to drop by the MOPH and thank old Pat for that spot-on advice back in 2007.