Once upon a time, in a village on Vermin Avenue Northwest, there lived an Agency who couldn’t give a hoot about the Veterans they were entrusted with. Senator Alan Cranston, during the leadup to the Veterans Judicial Reform Act (VJRA) of 1988 granting the VA cabinet status, referred to the neanderthal tendencies of this ancient quasi-military dinosaur still living in the Pentagon as (and I liberally paraphrase) “We’re gonna drag their asses out of the stone age. Som’biches been hidin’ in the shadows screwing Vets for nigh on sixty years with no judicial oversight.”
The Supremes, using a more polished vernacular said in Brown v. Gardner,
Finally, we dispose of the Government’s argument that the VAs regulatory interpretation of § 1151 deserves judicial deference due to its undisturbed endurance for 60 years. A regulation’s age is no antidote to clear inconsistency with a statute, and the fact, again, that § 3.358(c)(3) flies against the plain language of the statutory text exempts courts from any obligation to defer to it. Dole v. Steelworkers,494 U. S. 26, 42-43 (1990); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., supra, at 842-843. But even if this were a close case, where consistent application and age can enhance the force of administrative interpretation, see Zenith Radio Corp. v.United States, 437 U. S. 443, 450 (1978), the Government’s position would suffer from the further factual embarrassment that Congress established no judicial review for VA decisions until 1988, only then removing the VA from what one congressional Report spoke of as the agency’s “splendid isolation.” H. R. Rep. No. 100-963, pt. 1, p. 10 (1988). As the Court of Appeals for the Federal Circuit aptly stated: “Many VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations’ unscrutinized and unscrutinizable existence” could not alone, therefore, enhance any claim to deference. 5 F. 3d, at 1463-1464.
Which brings us to today and VA’s latest fiasco. Long ago, back when doctors first started putting those little lines through the long capital Rs and pronouncing it “prescription” and attaching leeches to us, they wrote copious notes in longhand. These were then subsequently added to but were inviolate in their original format. That’s why they used ink instead of pencils. In the more modern day and age of torts and lawsuits over the most trivial of things like medical malpractice, the transition to electronic format from longhand needed an imprimatur- a guarantee, if you will- that they had not been tampered with later. Thus VA’s VHA (Veterans Health Administration), the medical arm of the VA, inaugurated a new Windows XP system in 1996 called VISTA ( Veterans Health Information Systems and Technology Architecture) which was touted as being secure and inviolate. Once you pushed print that’s what the record said. No ifs, ands or buts. If you later had a change of heart and wanted to revise it, the only avenue was to enter an addendum where you corrected an earlier statement or phrase. Both versions would stand side by side for all time protecting doctor and patient alike… or so we thought.
The VA’s latest imbroglio that began unraveling like a Walmart® sweater last October was the troubling reports emanating from the Columbia, SC VAMC of ”tampering” and off the books appointments that never actually materialized. As the Mafia can tell you, loose lips are only useful in blackmail. Too many conspirators to a project eventually gives birth to a disgruntled one. Now expand that exponentially to 141 VA medical facilities where they are cooking the appointment books at a rolling boil. It’s a recipe for disaster in the covert world of purported VA statistics versus the reality we all know and live. I guess I should add the reality that some of us have now died waiting for, too.
As many times as Veterans have cried “Wolf!” and raised a hue and cry over their miserable treatment, the VA and it’s former iterations would politely show up like dogcatchers, net and tranquilize the offending Vet or usher him into a back room and hand him service connection at 100% for mental issues to shut him up. This worked, as Sen. Alan Cranston pointed out, for aeons until we were accorded a true Court and access to the upper tiers of normal justice. Unfortunately, all VA did was move the goal posts and the same MO further down the field and write up some tricky new Catch 22 interpretations of 38 USC. That, in essence, is what Brown v. Gardner stood for. It may dwell on 38 USC §1151 but the focus is on what was actually written by Congress- not the VA Secretary’s tortured, fevered imagination/interpretation of what the USCS says.
Through all of this changeover to the VJRA, we, as Veterans, were asked to suspend our disbelief and accept that VA was henceforth an honorable bunch of gentlemen and the new, post-1988 class of employees were above suspicion. This might be characterized as the first of the “Presumption” theories VA has promulgated over the decades. Call it the Presumption of Unchecked Mismanagement hiding behind the Presumption of Regularity. Once you let Exlax into the conversation, it won’t be long before the shit hits the fan. VA might have changed its name and added the catchy logos but they neglected to flush the upper management’s legal water closet and start with a clean bowl.
Everything that has ensued following our emancipation in 1988 has been studiously constructed to look and appear above board and equally above reproach. As I mentioned above, the VHA secured its patient base (on paper) with the assurance that their records would be incorruptible. Any computer has a back door and it obviously wasn’t long before a few learned how. Fortunately, they were caught but that story is still unfolding and is merely the predicate for today’s revelations about the Board of Veterans Appeals.
Laura Eskenazi is an amazing VA employee. If she were a fish bobber, I doubt you could pull her under. She’s floated to the top faster than an ice cube in a martini. It’s uncanny. If we didn’t know any better, we’d have to assume she’s one of Allison Hickey’s relatives or a former employee of Accenture she met on Linkedin™. The only other gal who floated like creme to the top faster was Mary Lou Keener at the Office of General Counsel (OGC 027) who was playing house with Hershel Gober- at the time the acting VA Secretary. Granted they made it legal and tied the knot but this was while they both were “single”. Look for her to move over to the OGC and take Will Gunn’s slot in the near future. It’s a given after what they found out from former BVA staff attorney Kelli Kordich. In the halls of the BVA this morning, they’re calling this KKK (Kelli Kordich’ Konversations). Rarely do we get to peek behind the curtain with such clarity and illumination. VA has had the secret handshake and password for these Mafia henchmen for decades and no one was able to pry open the worm can and take a good peek until now much less get a whistleblower to step forward.
The AFGE, the much-maligned union that ostensibly represents the rank and file VA employee, caught wind of the date-manipulation malfeasance at the BVA and sent a flyer over to Ric Shinseki. Ric, well, what can we say? He trusted these chowderheads implicitly so he probably innocently handed it off to his gopher. Baaaad idea. Gopher boy handed it off to the OGC who handed it off to Steve Keller, the “acting” Chairman of the Board. He, in turned walked it down to Laura’s office and innocently said something like “The Natives are restless. You got some fast-talking to do, lady.” Laura, being up to the task, promptly went over to M/Gen Rob Worley’s IT office and got the instruction manual on how to defeat the the electronic case tracking system safeguards. It’s probably as old as VISTA and humming merrily along unsupported, too. In fact, chances are anyone with a degree in sleuthing will probably find her fingerprints all over it. Well, not exactly. After an in-depth two year investigation, the VA OIG will probably not be able to substantiate that there was any evidence of impropriety that can be directly tied to the deaths of Veterans who had to wait four years.
Which brings us here today to witness Miz Laura’s shuck and jive Moon walk. Nobody here but us chickens, Rep. Miller. Everyone’s accounted for. No secret manipulation of anything. Rumors and propaganda. Nothing here to see. Move along. Everyone go home. These aren’t the droids you’re looking for. But then along came Kelli. You can’t just net and tranq Kelli. Kelli is one of the Chosen. She knows where the bones are buried-including Laura’s five (5) full-length skeleton ensembles in her Vice-Chairman’s closet.
We don’t get very many “Ruh-oh, Rorge” Astro revelations about VA’s inside proclivities but when we do, they surprise even toughened Veterans like me. We as a class of claimants, are accorded some of the slowest, shoddiest, illogical justice ever perpetrated on our fellow man by a legal system swearing that they will accord us every benefit of the doubt and give the tie to the runner (us). In reality, it’s all just a glorious Dog and Pony show for the media. Kelli Kordich finally confirmed this as a knowledgeable participant and firsthand observer. No amount of whitewash can cover her up.
Miz Kelli summed it up nicely when she said:
a “toxic” office atmosphere characterized by “unchecked mismanagement, corruption and blatant disregard for our nation’s veterans.” Kordich said all the managers involved in delaying the appeals received employee bonuses and were later promoted.
Well, duh. I thought that was how VA does it. I’m really waiting for the hat trick where they “repurpose” Sharon Helman of the Phoenix VAMC to the head of the Manila Philippines VAMC (and promote/bonus her). That will be a miracle right up there with that water-to-wine trick Jesus pulled off back in 31 AD.
Seems the VA just can’t catch a break. I predict that Miz Eskenazi’s gonna have a rough time of it explaining this one away. It’s one thing to get caught with the cookie crumbs of unadjudicated Vet claims on her lips and hands. It’s quite another thing to discover the cookie jar was hidden in the bottom drawer of her desk. She was able to hide the evidence but for one disgruntled co-conspirator. That’s all it takes. My dad had a philosophy about this that is making a comeback. When you’re dead, you don’t know you’re dead. You don’t notice anything amiss. It’s pretty much the same when you’re stupid. Having a Juris Doctor degree is supposed to immunize you against this disease but apparently it isn’t one hundred percent effective.
We at asknod held a Kumbaya Konsensus Konfab and suggest she plead guilty and use the VA peroxide defense-i.e. Hydrogen Peroxide is one of the known causes of brain damage. Hell, all you have to do to confirm that theory is to look at Gen. Hickey.
Or Sharon Miller. Anyone see a pattern developing here?
P.S. True to form VA “promoted” Ms. Eskinazi up to Human Resources. I guess McDonald figured it’s pretty hard to screw that one up.
P.P.S. As if former VLJ Laura Eskinazi didn’t have enough problems at the BVA, she got a reprieve and was moved over to Human Resources to avoid having to answer any embarrassing questions about the BVA backlog. This is a tried and true technique. Transfer (promote) the chowderhead to another area and the new titular head of the BVA can now feign ignorance and say s/he isn’t up to speed yet but will get back to Congress (in the immortal words of Rocky Raccoon) “just as soon as I am able”.
However, this new article March 6th, 2017 shows she fails to learn from her prior transgressions. http://dailycaller.com/2017/03/06/exclusive-va-watchdog-promised-to-stop-misleading-congress-then-rewrote-report-to-hide-misconduct/. Oh, what tangled webs we weave…