For five days I have sat, picked berries, contemplated my navel and wondered how I could apologize to all of you for being so incredibly dense. Cupcake says I’m oblivious to my surroundings yet I see many things she doesn’t. In public, I constantly gauge those around me for aberrant behaviour that might signal mental illness. She finds these types “quirky” and stimulating. If someone is toting a shotgun into Safeway, I notice it because I was trained to see danger once. She might be able to tell me what the color of the lady’s handbag was across the parking lot and whether it accessorized with her blouse . Colors don’t kill you. On that count, I plead guilty.
Here, for over six years, I have been sounding the alarm on the Caluza triangle, aka the Hickson elements, aka the Shedden principles et cetera. Every day I read decisions from the BVA clearly stating the VA claimant, ably represented by the _____________(pick one of the Big Forty Six) arrived all the way up to DC on appeal with no nexus letter. Somehow, everyone who represented the poor fellow had overlooked this important element in their presentation of his claim. The mere fact that it has been enunciated law since Mr. Mario Caluza appealed his migratory
left/right ankle/ knee/lower leg injury claims to the Court of Veterans Appeals in 1995, we have known the need for this. VA attorneys who represent us have known VA required it even before that. It was just unwritten until Caluza legally. Therein lay the problem. I call it the secret handshake or the “club password” to get into the treehouse. No tickee-no laundry as they say at the Chinese cleaners in town. Without it we were and are lost.
When I wrote my book I didn’t enunciate all of the history of VA jurisprudence and the gradual forfeiture of secret handshakes and passwords. Over the years, via the CAVC, the Federal Circuit Court of Appeals and sometimes even the lofty heights of the Supreme Court, we Veterans have forced the VA to relinquish a wealth of information they hoard regarding adjudication of our claims. Each revelation, each stone overturned-indeed, each case- be it single judge memorandum or panel ,uncovers a heretofore basic, fundamental right and corrects the path of justice for us. It’s been a long haul since 1989 and the Veterans Judicial Review Act (VJRA). Each day brings new epiphanies to the CAVC judges.
Of note, we were accorded the Veterans Claims Assistance Act (VCAA) in 2000. It compelled the VA to tell us what the defects were in our claims and suggest possible remedies. Few of you will remember the old days. I’ll show you one. In 1989, when you got denied or received a Statement of the Case (SOC), it merely informed you that you weren’t going to get the new Corvette with AM/FM stereo and cassette player. What it failed to discuss was why. Thus began the “reasons and bases” part of our jurisprudence. If you lost, the only way to fight it was to be able to dissect it. VA was not very forthcoming and surprisingly, neither were our National Service Officers (NSOs) who were representing us. To say we were mushrooms in the basement being fed poop was an economy of words. By 1994, they were giving us some vague idea but it was written by retards in the typist pool or Adobe 1 for Neanderthals. Dangling participles were the least of our worries. Getting the correct tense on the verbs was often the issue.
By 2000, we had amassed a wealth of Veterans Case law in the legal library but the process still seemed stilted and adversarial. This provoked Congress to lower the bar still further and force VA to suggest remedies for our predicament when we didn’t prevail. That law is still evolving and we see brief glimpses every several years where a new paradox emerges that needs a special band aid. Nevertheless, some precepts like the Caluza triangle are immutable, bedrock principles. How that manages to escape the Big Six twenty -plus years later will remain an enduring mystery. This is where my obtuse mentality ran aground, too.
All these years, I always thought the principles of compensation claims adjudication (and by extension, the evidentiary requirements) were parked when we entered into the Vocation, Rehabilitation and Education (VR&E) Temple. Here, we were to be accorded the “Hail, fellow Veteran. Well met. And how can we be of assistance?” speech. We had passed the test of compensation and were inside the wire. Our bona fides were established and now it was a matter of what services could be rendered, in what quantities and how soon. Sound familiar? Seems I got this speech when I went to the Disabled American Veterans in 1989. They even showed me the compensation rates in $US. Hell, back then they probably could have sold me a Pacific ocean condo time-share in Arizona. I trusted them implicitly.
Recently, as you know, I received my Supplemental Statement of the Case with the latest “What part of ‘No’ don’t you understand? This is the fourth time we told you the greenhouse isn’t in the cards.” After putting it down in disgust, I had to begin research to rebut their latest logic. I had a thirty-day suspense date this time out and time was of the essence. This was the VCAA moment. All these years, the VR&E crews had been operating in “splendid isolation” as Senator Alan Cranston said it back in 1988 during the discussions that led up to the VJRA. Similarly, over at VR&E, the VCAA’s tenets somehow seemed to evaporate or revert to the pre-1992 technique of a simple, polite “No. I’m sorry but it wouldn’t improve your life one bit. Of course, you are free to come back and beat your head against our wall any time you’d like to. We’re open Monday through Friday, 9 to 5 except for Federal holidays.”
The OIG or some enlightened soul suddenly noticed VR&E folks weren’t complying with the Reasons and Bases part of the denial gig. Moreover, they were also violating the VCAA by not suggesting a repair order. While reviewing the SSOC, I began to look in earnest at the requirements they were suddenly iterating for the first time. The denial was still in force but suddenly it wasn’t simply couched in “You have all the greenhouses you’ll ever need. You can buy your veggies like normal folks in the organic section.” Suddenly there was a new, belated explanation for what the actual requirements were that we need to prevail. Granted, they are the new March 31st, 2014 revisions but they are the first glimmering of a “VCAA for ILP claims”. Yup. Prior to this it was simply “No.” Maybe a blithe reference to 38 USC §3120 or 38 CFR §21.160 to make it look official but no substantive paragraph on a 4107 telling you what you might do to prevail. Until now. It’s still not on a 4107 . Hell, I didn’t even get a 4107 as far as that goes which is probably a remandable action in its own right.
However, what finally penetrated my hardwood-encased noggin was this seminal phrase that evoked the echo of “nexus”. When you are trained to examine these denials with a fine-tooth comb looking for the smoking verb as to why you lost, things like:
“The following criteria must be met before providing services designed to promote the pursuit of an avocational interest:
1. The disability condition(s) limits or prevents participation in the avocational interest.
2. The activity must have been previously performed for a significant amount of time, defined as over a twelve-month period.
3. A medical and/or mental health provider must provide documentation that continued support of the activity is not contraindicated.
4. An expert consultation to identify accommodations required to enable continued support of the activity must be completed by a qualified person, such as an occupational therapist.
5. The pursuit of the avocational interest must improve the individual’s independence in daily living in a measurable and verifiable manner.
6. The individual must have the ability and resources to sustain the activity or pursuit after the period of rehabilitation services are completed.
This is the Rosetta Stone we’ve been looking for. It’s the secret handshake. It’s the guarded password known to everyone at VR&E’s ILP shop that forbade entry. Their problem was that I was bold and laid my cards out on the table from the outset with the gomers up in Seattle. I let them know in no uncertain terms that I was President and Founding member of the Win or Die Club. I made sure they knew this would be appealed as high as necessary and to make sure they had their Is dotted and the Ts crossed. In order to make sure they had complied, they promptly sat on it for six months and changed the regulations to comport with the VCAA. Above, in red, is the crucial element that had eluded me. It was right there in front of me all these years and I should have suspected as much. Roger that. You need a nexus letter for your dream greenhouse. Who woulda thunk it?
VA is as predictable as the snow in winter in the northern climes. They are hidebound and have a one-size fits all to their madness. Thus it should come as no surprise to expect them to copy the M-21 Adjudications Manual chapter and verse and relabel it the M-28. The one thing missing all these years was the above requirements finally committed to paper to make the Texas Necktie Parties perfectly legal. As you can see, the problem is that it’s three years too late. I filed in 2011 so it is inapposite to my claim. Had they included this in my November 2011 denial, they might have had a quasi-legal leg to stand on. I think they outlawed changing laws in mid-stream after they disenfranchised all the
Indians Native Americans out of their land holdings and penned them up on reservations.
We at asknod and the eastern consortium of The Tip of the Spear in Georgia (Bruce McCartney) are bound and determined to see this excised from the M21 as it, and other recent additions, are unsupported in ILP law as it is written. The problem is someone will have to carry the flag forward. Since I planned on this anyway, it may come to pass that I’ll be the guinea pig. I feel honored to be tasked with this. I remember the immortal words of old Wavy Gravy the day after I got to Max Yasgur’s farm back in August 1969- “We must be in Heaven, man.” Man, I just love going up to the Court and playing with Willy Gunn. It could be that VA and the VR&E crew will realize they don’t have a pot to piss in or a window to throw it out of and grant me the greenhouse. I know better after all these years. Once VA sets their heels in the dirt, they begin to manufacture reasons and become a prodigious denial machine. They hire even more lawyers to research how this can be sustained. They’ll do this for years if they find a compliant VLJ. If s/he affirms the Fort Fumble decision, the Office of General Counsel will bring their 16-inch guns to bear and spend hundreds of thousands of dollars more with specious arguments defending their defective logic.
Here’s the repair order, Vets. If you’re like me, you go to your personal care provider and ask for a referral to an occupational therapist just as it says in red in #4 above. You have a complete consult with all your evidence at hand. You present the why and the how. You knock down every straw man argument they propose of the six above. You prove by a preponderance of the evidence why you need your tempurpedic bed, your woodworking shop, your riding lawnmower or tractor, your digital photography gear, your metal detector for beachcombing, ad nauseum. The only obstacle is impressing this need for “independence in the activities of everyday living” and all the other horsepucky phases VA VR&E people contrive to prove you are independent of the community etc. I like to throw in “self-actualize” as that’s one of their buzzwords. Here. Let me use it in a sentence. “A greenhouse would allow me to self-actualize my desires while occupying many hours in pursuit of activities which will help other Veterans in my community as well as activities in my own everyday life. It will also help me gain proximity to the outdoors as that avenue is currently not available to me because of my Porphyria Cutanea Tarda”.
I dropped by my provider this morning and asked for a referral because the new Obamacare requirements state I can’t do this without a note from my doctor. It will cost $40 as a co-pay to obtain this home visit/assessment on my Obamacare-approved Medicare Advantage Plan. I will have a lot of information pre-printed to provide the occupational therapist every thing she or he needs to understand the VA mindset, requirements and restrictions. I also will have everything ready for inspection in the garden.
VA for years played the game and the VSOs were accomplices in it. They still are today. The “game” is allowing VA to provide the nexus fully well knowing what that will say. They’ve gone so far now as to construct the Disability Benefits Questionnaires (DBQs) with no “nexus box”. Thus, when you have you doctor fill it out, there is no place for him to include that all-important, Caluza-required statement that your disease/ injury is service connected. Similarly, applying for an ILP grant requires it as well and getting one in advance should be the opening shot across the bow in the future for all of you who aspire to tap into this rich vein of opportunity.
Fortunately for me, I found out before I got to the CAVC and am still able to add this to my evidence pile. It also occurs at a fortuitous time since this is apparently headed to DC. The new occupational therapist’s assessment will be reviewed in the first instance by a Veterans Law Judge (VLJ) de novo. The Seattle Bozos will be unable to rebut it, though how they would is an interesting thought. Would it boil down to who’s psychology degree was shinier or which institution of higher learning issuing the sheepskin was more august?
Apologies are in order as I said. I cannot believe I could stare at a forest for so long and never see the trees. I do hope this will embolden each and every one of you with “severe disabilities” to throw your hat in the ILP ring, too. There is strength in numbers. VA has been artificially abbreviating this program and desperately trying to put it in mothballs. They are on the verge of it with the bogus “revisions” in M 28R which are unsupported by their own regulations and the pertinent statute. But what the hey? Mission creep is VA’s middle name. Look at the fine job they did in revamping patient scheduling at VAMCs nationwide.