Hold on to your hats, ladies and gentlemen. First I wish to express an abject apology to Robert. A. McDonald, our newest and potentially most intriguing of all VA Secretaries to date. I was cynical after over twenty years of obfuscation, denial and inaction that anything of import would ensue from my “Call to Bob”. How wrong a Vet can get in the new, revised Veterans Administration.
As a timeline, I called Secretary McDonald on Wednesday morning. In short order, a message came back telling me to send in an email summary of the problem.
“Gordon, please send Me this in an email so I can have someone investigat (sic). My email address is Robert.email@example.com. Thx. Bob”
Now, this may be a standard TWX sent out as an autoreply or perhaps a genuine thumb script (note the misspelling of investigate), but it suffices to begin a line of communication. As I mentioned in my first post on this subject Wednesday, I submitted the detailed .pdf explaining the problem and what I perceived as the repair order.
Within twenty hours, I had a staff attorney on the line from the Board of Veterans Appeals asking what he could do to fix it. I explained the dilemma again and he tried valiantly to grasp it from afar in DC. One problem here. VA refers to me as a “frequent flier”. My c-file has now mushroomed out to eight brown c-file envelopes and the postage to Janesville, Wisconsin has become problematic. Remember the UPS guys who started delivering all the kid’s letters to Tim Allen in The Santa Clause? It’s that magnitude of order. Turning this into a VBMS, word-searchable .pdf is going to be akin to the first printing of the Gutenberg Bible. Mr. Staff attorney in DC was relegated to viewing my CAVC appeal and trying to glean as much from that locally as he could. Some day, they will turn my opus in Seattle into that VBMS .pdf but chances are I’ll be room temperature by then. They can’t part with it until I finish my appeals anyway. The time to convert it would be measured in days or weeks.
My basic problem with my claim was the Joint Motion for Remand (JMR). It should have fallen under 38 CFR § 3.156(b). VA decided to Chieu Hoi on another BVA legality-38 CFR § 19.29.
§ 19.29 Statement of the Case.
The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:
(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;
(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and
(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.
Please note the plural in (a) and the encompassing word “each” in (c). In the JMR from the CAVC, the decision was railroaded into only one decision-on Hepatitis C. My porphyria, which is really all I filed for in 1994, was AWOL. Gone. Deserted. Mr. Staff attorney in DC expressed amazement that §19.29 contained a plurality. He promised to look into it and get back to me ASAP. I gave him a piece of advice for legal direction and cited to the recent holding in Pirkl v. Shinseki. Even though it is an imperfect fit, the CUE in the original October 1, 2008 grant of service connection actually serves as the fulcrum for the reopening of the Porphyria claim back to 1994. Pirkl is on point because it illustrates that time is not malleable and subject to being in two places at the same time. If §19.29 says HCV was still on the table, then the Porphyria is by virtue of being secondary to it.
VA always intones “One decision on appeal” meaning you get another bite of the apple at the BVA. What happens when they grant a Earlier Effective Date (EED) for the filing to 1994? Why, all claims involved at the time of the filing get the same treatment. Bingo. Whether you arrive there by CUE as Mr. (Mrs. substituted after his demise) Pirkl did or by § 19.29(C), the result is identical. You reset your watch to Local time and begin anew. This doesn’t require a DeLorean with an extremely large flux capacitor-just an open mind. The added principle of everything that occurred in 2007 is void ab initio is also for application.
My BVA judge Mark Hindin was so determined to fence the porphyria claim out for lack of a timely filed Form 9 that he missed the forest for the trees (the plurality of § 19.29(c)). VA adjudicators before and in his wake proceeded to commit the same error.
So what to my wonder this afternoon when the Seattle Regional Office called to discuss my recent emails with my BFF Bob.I immediately recognized Cheryl Mackey’s voice. She and I had many conversations leading up to my April 5th, 2011 Local Board hearing in Seattle before VLJ Hindin. In fact, she was the VA greeter and coffee gopher at the RO who took us up to the inner sanctum on the 11th floor. Very attractive and polished young whippersnapper. She oozes Human Resources out of every pore.
Cheryl apparently drew the short straw and had to call me. This is where you better start taking notes, ladies and gentlemen Vets. Hip waders to avoid errant feces might be de rigeur as well. Cheryl, in a nutshell, wanted to know what I wanted. She laid it right out. What’s more, she informed me that my case had quite miraculously risen from the dead and come up for a DRO review as we were speaking. My devoted Decision Review Officer wanted to just gloss the thing over” one last time before they signed off on the SOC. Come on, folks. I submitted the NOD on April 30th, 2014. Seattle’s RO is 546 days out on DRO reviews. Do the math. It’s been five months and three days and suddenly they want to clear up any ambiguities before proceeding? My read is an email to a feller named Bob in DC set a bunch of dominoes in motion. Dominoes can be bery bery goot for Vets.
Cheryl and I continued to banter and I asked her if she had access to the VBMS c-file as the folks in DC were unable to locate it. Seems when your c-file looks like OctoMom with octuplet files, they roll up their sleeves and go analog. Can you imagine slogging through 5,500 pages dating back to July of 1988? Fortunately for me, Cheryl apparently had electronic access to my Record Before the Agency (RBA) a very useful tool (word-searchable, I might add) that emulates the c-file up to the CAVC case filing.
I asked Cheryl to turn to page 1076-77 where VA’s very own QTC doctor opined that I was 100% disabled July 18th, 2008. A large volume of air was consumed in Seattle and Cheryl pondered this for a moment. Not to be outdone she bluffed with a pair of threes. She pointed out:
“Mr. Graham, you are already rated 100% P&T back to 1994. There is simply no way you can go any higher. You are currently receiving $3017.60 for you and your wife. That’s as high as it goes. What, exactly, is your argument?” I’ll give you all a moment to don the hip waders if you have not done so yet…
I explained to Cheryl the magic world of Special Monthly Compensation S and how I was substantially housebound. I explained that the October, 2008 Porphyria decision was both CUE to hand me 10% in lieu of 100% P&T and that the plurality evoked in §19.29(a),(c) demanded an EED of March 31, 1994. Oxygen must be at a premium on the eleventh floor of the Henry M. Jackson Federal Building. The subdued gasp was still audible. In measured tones, Cheryl then asked me what (“and be precise so I can effectively pass this on to the Decision Review Officer”) I was requesting. I felt it was academic but played along for her benefit.
“Cheryl. I’m asking for my rating of 100% P&T for Porphyria effective March 31, 1994. That will give me 100% plus and additional rating(s) of 60% or more (another 100%) thus entitling me to SMC S from the filing date forward to today’s date.” Gasp number three was alllllllmost inaudible.Cheryl said she would transmit this information to the DRO officer handling my appeal and I should have an answer soon in the mail. Or a SOC if they want to play piss on a flat rock…
The times they are a’changin’ as Bob (Dylan) sang. Seems Bob McDonald is singing the same song, folks. No Vet should have to spend the majority of his adult life going head to head over something this elementary. Just imagine what might happen if they did it correctly the first time? There wouldn’t be a backlog. Unicorns would frolic in the sunshine under the VA rainbow. Dreams would come true and flowers would bloom eternal. In fact, it might become so easy, even a cave man could do it.
P.S. We found Cheryllanne with our patented VA employee locator:
|MACKEY, CHERYLLANN M||VETERANS BENEFITS ADMINISTRATION|
|VETERANS CLAIMS EXAMINING||GS 10||$59,471||$1,327|
The $1,327 is her 2010 VA bonus payment. I hear it’s bad form to talk about that now so they don’t post current amounts to keep the complaints down to a dull roar. Shoot. $60 K for that job is a rip off. She should be getting $80 K/year for her telephone voice alone.
P.S. I had a brainstorm after talking with member Sue (who will refrain from killing her significant other until the appeal is decided). How about we name the phenomenon of calling Bob McDonald with our woes the “eBobBenefits path” or “SpongeBob ePants”? Any other suggestions?