While this may appear to be a “food for the soul” post, it is far more. Like a date stamp on the milk carton, like the newspaper held up on a FB page to identify the day categorically, so too does this post date and time stamp the article as to where and when it occurred. Likewise, the vegetables/fruit cannot be imported for a Hollywood theatrical “hot stage”effect. Remember? We’re poor.
As most know, I’ve been probing the depths of the VA’s VR&E underbelly for some weakness. In my quest for my greenhouse, I must document that I’ve done this for over twelve months, that I am physically and mentally capable of it and that it is necessary and vital to my activities of daily living and my pursuit of Independence in my everyday life and (it’s a long list). We’ve found many flaws but they remain intransigent like our VA medical Defender of the Faith Sharon Helman. She keeps insisting no one was harmed in the filming of this VA Scheduling brouhaha in Phoenix. Does she live in Washington or Colorado? Is she allowed to be legally medicated on that shit?
Evidence Is King
The idea here is to create even more evidence like this for our new electronic age. I must confess. I’ve been reading CAVC Opinions and Memorandums for a long time and am seeing more and more websites cited as references or supportive of the claim such that they often become an integral part of the evidence admissible to the BVA. Remember, all you Vet campers and scouts- Be prepared! That’s right. Boldly go into the new electronic cloud and cache your evidence right there at your fingertips-dated and stamped- common mail box law accomplished. Enter the address into the claims file and point to it with pride. Once you enter it in, be it via a simple Standard Form 8.5X11 or 21-4138 by snail mail w/ CM3R, electronically “attach” it to a ebenefits file in your name as having been “submitted” (least preferred method) or hand deliver it to your smiley friends in person at the local RO, it becomes evidence. They date stamp it in front of you and voila- constructive possession begins. Incontrovertible evidence. Bedrock evidence. And, as they say, a picture is often worth a thousand words.
When you’ve fought these guys to a draw and the BVA punts to the CAVC, all this is going to be pure gold. You always want, by the totality of the evidence, to overwhelm them with the evidence that supports your hypothesis, the known facts, and the Presumption of Regularity. Roger that. The Presumption of validity can be yours for the taking, too. It’s presumed that these pictures you posted on June 29th, 2014 are actual pictures you took the same day unless VA can rebut the presumption. Once it becomes accepted fact (a finding in legal terms), then the weight assigned to it comes into play.
Benefit of the Doubt Dance
Weight assigned to evidence is pro or con. If it is extraneous, it is discarded or set aside presuming it may be probative if other evidence brings it into play later. After all the evidence is weighed, the scales are assessed. The Court has said often the the presumption of a thumb on the scale in the Vet’s favor is always paramount in these matters. VA didn’t get the email.
To circumvent this requirement, they can claim they didn’t have all the evidence, the evidence they did have was unsupportive or that the Vet’s credibility is questionable. It’s all immaterial. You build the record on the assumption that you will be talking to someone truly educated eventually who has normal powers of inductive and deductive thinking and can cogently describe the difference between the two concepts.
We are boldly entering a new electronic kingdom of evidence where the winners in this can whip out the documents anywhere on a tablet. No more of “Oh, shit. I left that document at home and there’s no Wi-Fi here to make a GO TO ASSIST CUSTOMER Connection to access my files. Now what?” Hell, at the BVA Hearing, you have all this set up and whip out the tablet and say “Here’s my WordPress Blog. Asknod.org. Go to Blogs by subject and click on ILP. There you will see Xtyseven posts on the history of my claim including the 8 1/2 X 11 inch glossy photographs of my orchard and garden since 2011.” You can place all you medical on there with SSNs blacked out because hey- you’ve also filed them with the c-file and the presumption of possession-that if they are anything VA, then VA has them constructively in their possession attaches! You want presumptions in your favor. Presumptions win claims if they are yours.
VA may fight me to a 4th and long punt to the CAVC on my greenhouse. We look forward to this. It will create valuable precedence in the ILP field and may be instrumental in dismembering this VR&E cabal. It is becoming a game of Caluza. Initially, we just had to file to get the tractor. Then one day, someone said no avocational stuff. Then it became a means test of “necessary and vital”. You see the analogy? Caluza/Shedden/Hickson are about the three necessities needed to prevail on a VA claim. Like a secret handshake, they were jealously guarded until the CAVC let the cat out of the bag and named them out loud in 1994. VA neglected to advertize this necessity until Congress corrected the oversight with the VCAA. Suddenly VA was obligated to attach a Miranda Warning to the claims packet . It innocuously says “What do we need?”
The Independent Living Program is taking a page from the M21 and introducing formative changes without any Congressional Oversight. That’s a Bozo No-No. The Congressional Presumption of What It All Means is that Congress wrote it and it is presumed they meant what they said. No mission creep. This latest change order magically appeared the day before my birthday (April Fools). You think there was any ulterior motive there? Nah. Just kidding. No conspiracy.
Creating Your “CLOUD”
Anyone can have a WordPress blog page. It’s free. Who cares if no one visits it? It has an internet address. It’s like Dropbox and everyone on the planet can look inside and see whazzup. Faceplace is not where you want this. Ditto for Utube. This is the perfect new vehicle to be a repository for your claim with certain documents discreetly redacted that still offer an easy bread crumb trail to follow. It will become a painful suppository for VA later on. It’s not like they can say “Well, we sent a 21-4142 to St. Anthony’s Hospital but they never responded.” You can say “Refer to page 3415 on the Record of Appeal (ROA) and you will see where the Veteran informed the VA not only of the location, but indeed provided them a copy available electronically to download twenty four hours a day for months before the denial. The documents clearly show a date stamp of XX/XX/XXXX proving constructive possession. Therefore the Presumption of Regularity assumes that the documents were available to the rater in an electronic VBMS file or on paper in the Veteran’s old C-file on the date of the decision.”
This is what produces reversals at the CAVC. The totality of the evidence must be so overwhelming that any sane man would be hard pressed to construe it in any fashion other than in favor of the Vet. Remember my admonition in my book. You want a steep, impervious slope that VA cannot find a hand or toehold on. Think Teflon. Think Wesson Oil party. Hell, I don’t care what you think but concentrate on having every T crossed and every I dotted. You are not allowed to submit new evidence on appeal to the CAVC so you want to get it excruciatingly correct before you leave 810 Vermin Ave. NW and set sail for the Big House up on Indiana Ave. NW.
And now, a word from our sponsor.
Oh yes. Remember my comment about the “grapes resembling mosquito gonads about two months ago. Nevermind. I’m an accidental gardener. Those apparently were flowers. The grapes will issue forth some day. I’ll report back. I’ve never done point in grape country.