THREE BVA REMANDS–WHAT TO DO?


downloadMember Shaniqua writes me again after a three-year silence to tell of her ping pong match with the Veterans Administration and the apparent inability to get her claims to stay put at the BVA. This began when the Forrest Gump Memorial Regional Office (RO) in Alabamah sent her appeal to Washington DC without her Social Security Disability files. That’s against the law at all 58 ROs and it was guaranteed to provoke a rubber band remand. 

Shaniqua had an IED go off under her deuce and  a half near Tikrit in 2005 that turned her, her truck and her life upside down. She felt she had an able ally in the Military Order of the Purple Heart (MOPH) and things went swimmingly until they got down to the nitty gritty of an actual rating for her injuries. VA took the low ball approach and felt the damage to her knees was rather minimal (10%). That wasn’t the deal breaker. 24837Her back, more specifically the L5-S1 juncture, suffered major trauma that wasn’t visible on x rays. The military was “backed up” on MRI requests and somehow this fell through the cracks before she was given her Medical Evaluation Board (MEB) and separation. She was assured VA would pick it up from there.  Other than the wildly gyrating muscle twitches and spasms visible on the surface occasionally, the radiculopathy down into her legs from her hips jumped back and forth and never when she was in for a check up under the hood. VA deemed that 0% even though it effectively prevented her from getting up to go to work on any given day. I’ve been there and done that in 1989 so I commiserate. Getting your injuries to perform on command is a circus trick I have never managed to master. Shaniqua suffers the same problem.

When she approached her service representative to discuss an appeal, she said the look of horror that crossed his face was a Kodak moment she should have immortalized on .JPEG. He convinced her to ask for a reconsideration first which went nowhere fast and finally she filed her Notice of Disagreement (NOD) to protect her right to appeal. Again, the service rep. from MOPH intervened and turned it into a DRO review telling her it would be much faster and safer to handle this locally rather than lose control of it to others in DC.

By 2010, she had the shiny DRO review in hand and it said pretty much what the 2006 decision said- 10% for each knee and they magnanimously upped her back from 0 to 10%. The MOPH chowderhead was ready to rent a ballroom to celebrate the Big Win. Shaniqua now qualified for dependency at 30%- a whopping $459.00 samoles-per month, no less. Shaniqua didn’t share his enthusiasm and wrote me asking what most of you do. WWVD? What Would a Veteran Do? Some don’t always take advice well.

Given the most brief description of her woes, I suggested she get a law dog but she insisted on the idiotic faith she put in the MOPH. Her rep. had given her the standard “Why cough up 20% of your eventual settlement to a shylock when we can do it for free?” Considering two years of fooling around in Greenbough, Alabama netted her 10%, I’d say it was time for a change of scenery. She refused to answer my questions of just what it was up to then (the DRO award of an additional 10%) that made her so enamored of the MOPH’s legal acumen. Obviously she was disenchanted with the two-year wait and the resultant short straw but she said she would feel awkward trying to tell her rep. his services were no longer needed after he had invested so much time helping her. “Help” is a subjective assessment apparently. So, too, is the proclivity of women to allow emotions of loyalty to cloud their thinking in matters legal.

And here we are today (or yesterday to be precise). Shaniqua is angry. Shaniqua is not a happy camper and the object of her ire is the MOPH. After numerous attempts to speak to the Big Dogs in DC who are overseeing her appeal, she turned to her local rep. again and asked for some assistance, explanation or at least an accounting . None was forthcoming. Her appeal had disappeared into a black hole and nothing could be done to locate it. After talking personally with a nice old lady at the BVA, she discovered what most do when they travel this road. Her appeal was in the hands of several old timers who have lots and lots of experience in these appeals. They are a mixture of seasoned DAV, AmLeg and, of course, MOPH  representatives who “team up” and jointly represent Veterans at the BVA. What their representation consists of is unclear. Shaniqua sure can’t penetrate the veil.

Dear Mr. Nod,

 Perhaps you don’t remeber me but I contact you in 2010 when my claim got to the dock at the appeals court. They have remand it 3 times and no one tell me anything. I am on SS so they now that but they still want the SS record. Then remand I got CP exam for my knee just one. Then they remand again to do CP on right knee and back. Can they do this it is 3 years at the dock and my rep. says it just take time.

Shaniqua has hit an ugly nerve. She feels obligated after all this time to keep faith with the MOPH. Truth be told, she’s in an untenable situation. No one at the MOPH has told her to file a Waiver of Review in the first instance and just let the BVA adjudicate it. If and when they finally rule in her favor next year, it will be a remand back to the Forest Gump Memorial Regional Office for the same idiots to lowball her all over again.

A Waiver of Review gives the BVA the authority to fix this sooner, although with the interminable backlog, it may not feel sooner. The Appeals Management Center (AMC), sometimes called the 58th RO or the Black Hole, was set up in 2004 specifically to solve this dilemma. In 2014, they are hopelessly inundated in what the ROs are in but can marginally do better than the alternative of shipping it back to her local RO and let them play badminton with it for a year or lose it. The problem is multifold now. Shaniqua has given them her POA and cannot blithely skate away and begin pro se. She doesn’t have the legal acumen to attempt it. She could attempt to wrest control of the claim away from the MOPH but that will set her back further. She could file a Waiver of Review with the BVA on her own but by now, the decision is almost ripe for adjudication. I’ve noticed that when you have a VSO repping you and you start filing legal papers on your own, lots of mistakes, errors and anger surface. No one knows definitively who is driving the claims boat and which “dock”(et) it is tethered to. Throwing more legal paper at it is like sand in the gears.

Sadly, my advice to Shaniqua is sparse. I think she should wait and pray for one of two things. downloadIf it comes back from the BVA with another remand, she can revoke the POA and get a law dog involved pronto. On the other hand, a denial allows her to proceed past Go and head to the CAVC with a real leagle beagle at her side. The National Organization of Veterans Advocates (NOVA) or the National Veterans Legal Services Program (NVLSP) are set up to help Vets after they escape the ferris wheel of VA justice and VSO “help”.

download (1)

No SSD-No dice

Filing a Waiver of Review now is locking up the barn after the horses have departed for Calgary. Shaniqua’s case is not complicated but VA (and MOPH) have played her for a fool. We all know in this game that when you appeal, your SSI/SSD records ( if you are on SSD or merely applied for it) must be a part of the file on appeal. To ship the c-file there without them is a Bozo No-No and a guaranteed remand. Strike one on the MOPH and RO for doing so.

Remanding for only one part of the appealed claims and ignoring the rest is a classic ploy. Shaniqua did not indicate if the RO simply screwed up the C&P request or if the remand was actually just for one knee to the exclusion of all the rest of her injuries. Again, VA knows better and this myopic, singular approach to her injuries by investigating part, but not all, is another attempt to buy more time. Strike two.

Lastly, it is well known in VA legal circles (meaning the VA attorneys who rep. us) that VA purposefully attempts to misunderstand anything it can by claiming we are unclear in what we seek. Here, they cannot feign stupidity or ignorance. Shaniqua was injured in a quasi-combat environment. She was boarded out medically with certain injuries which were “pre-rated” by the Army at her separation. VA purposefully downgraded these ratings to much less than what was awarded based on their C&P assessment of what currently exists in 2014-not what was extant in 2006 when she filed. They know she’s not going to get better but is delaying the inevitable award of a suitable rating for as long as possible. This is what I suspect is happening.

6881499716_9e5142bb31_kI have often theorized that VA’s rationale for this is funding. If there are only X number of dollars available to Vets for compensation and the cookie jar is nigh on to empty, it follows that you have to wait for a few Vets to reach room temperature for the coffers to replenish themselves. VA bonuses cut deeply into this pool of money and we know how important it is not to disturb that sleeping dog. Quality help in the Senior Executive System (SES) is hard to find. All you need to do is witness the exodus now afoot to confirm they are leaving for greener pastures due to this VA scheduling scandal. Why hang around when you aren’t appreciated?

I think Shaniqua has struck a bargain with the devil and cannot rescind it. She is now finding out you get what you don’t pay for in shoddy legal help in this game. Unfortunately, coming to me at this late date and asking for a repair order is equally futile. She’s in so deep now, it’s probably in her best interests to just allow it to reach its logical conclusion (if such a thing ever happens at the VA) and either refile or get a law dog to sort it out. It’s not complicated. It was just severely mishandled. No Vet should have to suffer 8 years on welfare with two kids and have their country treat them this way. That to me is a crime. VA feels it is just “part and parcel of an orderly process that ensures Veterans get everything coming to them”.

About asknod

VA claims blogger
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6 Responses to THREE BVA REMANDS–WHAT TO DO?

  1. Karen S. says:

    Thankfully, not all of us have that proclivity. Some of us bleed JP4.

  2. Kiedove says:

    I hope that if Shaniqua does get another denial she won’t give up like they hope she will. One legal group from the list can help veterans from all states so she has options. The Army was lucky to have such a tough soldier. I’m glad she’s angry and not defeated by these jerks.

  3. david j murphy says:

    Mz Shaniqua would be well served to play it out, like you said. I Thank my lucky stars that I found this site via Hadit a few years back. Finally go to a DRO hearing in Oct, supposed to be on both appeals and I feel good about at least being on solid ground. No way to know if what is said at the hearing will have anything to do with the decision , hopefully my little recorder will help.

    • asknod says:

      You just make sure it’s a formal hearing and not an “informal” one which is like pee in the snow. It disappears come spring.
      a

    • Kiedove says:

      Good luck in October. If a veteran cannot understand the meaning of the DRO hearing questions asked, can someone familiar with the case answer for them? I think such an emotional and stressful situation would be very hard for some veterans to cope with.

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