CAVC–THE BIRTH OF A WRIT- ACT II SCENE 1- THE PUCKER FACTOR


imagesIn airborne parlance, the pucker factor was a mathematical formula expressed thusly: The correlation between how tight the anal sphincter is, divided by the degree of danger and multiplied by the number of bullets with a near trajectory. Expressed mathematically, it appears as PF=AS/D X 7.62x39mm+n. If the ordnance coming at you was 12.7 or 37 mm, the pucker factor increased by a multiple of 10 and 100 respectively.

Similarly, in Writ jurisprudence, there comes a like moment when envelopes are opened and realization dawns at the hierarchy of the Veterans Administration that something is amiss-that a Veteran somewhere has been overlooked and it is going to have grave repercussions. Ignore for a moment that virtually all Veterans are overlooked for a goodly portion of their lives when they deal with the VA. When a Vet finally reaches the end of his or her rope, and they are capable of vocalizing it, they retaliate. Few are willing to do this because the VSOs across our fruited plain have inculcated a culture of fear- fear that if you speak up and express your dissatisfaction that you will be singled out for “special treatment”. Tales of Vets whose ratings have been reduced are the fodder for these lies.

Granted, Keith Roberts seems to have received this treatment. Few will dispute that and some even hold it up as the quintessential example. Keith had a ditz for a VSO. The VFW who was repping him and the chucklehead NSO simply egged him on into a untenable claim that irked the VA. We have not heard the last of Keith’s travails and I eagerly look forward to writing that story. It hasn’t played out yet but will shortly. The director of Comp and Pen. is still fence-sitting and desperately trying to figure out how to do it on a Sunday to avoid the excoriating press he’s going to receive when he does so. Rumor has it that Allison is apoplectic that it hasn’t been accomplished as well. How long this submarine of worms can stay submerged is a good question. Eventually Call me Bob is going to catch wind of it like an overflowing septic tank. Bob hates to be the last one to know. Shoot, maybe Keith ought to call Bob. I did. Unfortunately, my plea backfired which is why we’re here today.

A writ is a powerful tool when properly constructed. One need look no further than Gene Groves’ recent efforts to recognize the Court gets its nose bent out of shape when ignored. This is, in great part, what I am praying for as well. Writs generally result in the Secretary complying with what should have been done long ago. This satisfies all and the matter is dismissed. On the other hand, when you piss on the Court, you do so at your own peril whether you meant to or not. For several decades, we have rarely seen egregious behavior on the VA’s part rise to the level of outright blatant intransigence. I can count four with Mr. Groves being the most recent several months ago. I felt his Writ was the perfect introduction for mine. If it appears the VA is engaged in this in a wholesale fashion, you get far more traction.

In my case, much like Mr. Groves, we have a Joint Motion for Partial Remand (JMPR) that has been studiously ignored. However, the fingerprints of adversarial intent are all over my claims which sets them apart from the pure stupidity Mr. Groves encountered at the hands of the BVA. This is primarily why I filed the Writ-well, that and they were trying to give me the bum’s rush on about $75,000.00. I know you won’t believe me but the money is immaterial. I am blessed so it was not the make or break rationale for the filing. Simply put, the VA has bitchslapped me nonstop for nigh on to twenty one years. You are correct. I am mad as hell and the Writ is my not-so-subtle way of expressing my dismay.

I’m sure a majority of you are familiar with the 1976 movie Network where Howard Beale reaches that excruciating point where anger can neither be contained nor expressed with enough verve. I have reached that plateau. After twenty plus years of inaction, mistakes, ignorance, obfuscation, purposeful misconstrual and innocent-appearing gaffes on VA’s part, I’m throwing down the gauntlet. I, too, am mad as Hell and I’m not going to take it anymore. I felt my letter to Mr. McDonald was a finale. If the VA Secretary and his little people can’t right these wrongs, pray tell how is VA ever going to evolve into a truly nonadversarial agency?

The VA has, through a combination of inaction, indifference and pure malevolence, purposefully refused to grant that which even they know is due. Each legal action to compel their compliance is met with a partial remuneration rather than a full accounting. The number of laws and legal cases they have ignored to arrive here today is why my Writ ran on to 96 pages. I would have listed it all and run to 120 but I felt the point had been made adequately with what I submitted.

I do not fault Mr. McDonald or Ric Shinseki for this. The seeds of stupidity and ignorance were sown many years before in the era of Jesse Brown.  The miscreants were, with the exception of Veterans law Judge Mark Hindin, the ratings weenies of Fort Fumble in Seattle. They, like their counterparts in all Regional Offices, have been carefully instructed over the years to start with the premise that you are not entitled to that which you seek. Only by gradually accumulating evidence or forcing them to acknowledge what you have sent in does the scale slowly tip in your favor. Should you somehow be successful, the next battle is enjoined over an appropriate rating percentage. In combination, it is not uncommon to spend a decade just getting the basics established correctly as any of you can attest. What, then, to make of a legal process that drags on for twenty one years and is still unresolved? This is the conundrum I faced and which I was tasked to resolve.

When LawBob Squarepants won what I had been claiming all along at the CAVC in April 2013, he counseled me to sit tight and let justice play out. Even though the OGC had not been anally specific about my Porphyria Cutanea Tarda claim in the JMPR, it was all part and parcel of the Hepatitis C and would be assimilated into the new BVA decision. If it was somehow AWOL, he was prepared to come back and set matters aright. And here we are. Filing pro se is a subterfuge to get more sympathy from the Court. LawBob will be there next week to put a straight jacket on me and take me back to the asylum. At the same time he will raise his eyebrows and ask whether Judge Hindin was raised by wolves. In short order, the Court will be asking much the same thing.

1138C3E0C62EE9Judge Hindin sat at our Board hearing in April 2011 across from Cupcake et moi and did his level best bobblehead doll imitation of all time. He completely and unambiguously noted every point and the timeline I laid out. When we completed this friendly ninety minute meeting, we were all in agreement that this was a done deal. Having talked with thousands of Veterans, the takeaway I had always held is that the adjudicator, be s/he a DRO or a VLJ, would go out of his/her way to agree wholeheartedly with your synopsis and theory. Six month to a year later, you’d discover you were talking to the wall. All the evidence cited, all the medical records proving your contentions and incontrovertible testimony was an exercise in futility. I honestly felt I had prevailed. I was not disappointed. After fourteen years, this was the rule rather than the exception.

Had Judge Hindin not been so officious or rude in the follow-on enforcement of the JPMR, I may not have felt the anger I express today. His attitude of being “constrained”at gunpoint by the OGC to grant my 1994 effective date was clearly the antithesis of a “nonadversarial, paternalistic ex parte process that ensure fairness and honor to those who have served their country”. In fact, my treatment all the way from 1989 to the present has been notable for VA’s refusal to believe anything I say. It took me thirteen years to convince them I was in Vietnam. It took me six years to convince them they promised me a new rating decision in 1994. It took me two more years of waiting to discover they have no intention of timely finishing my claims-if ever.

This morning at 0523 HRSL EDT, one A. Prandy showed up and collected the Secretary’s, the OGC’s and the USB’s mail. In it, he will find my individual missives to Mr. McDonald, Ms, Hickey and Ms. Bradley. Here is what they will be ingesting:

Grahambo Writ

As with Mr. Groves, I expect a mad scramble will ensue to repair the screwups before the Court dockets this puppy and starts asking questions. Unfortunately, once the Court sinks its collective teeth into these things, they are loath to release them until they are satisfied the Secretary has complied with their commands. I didn’t ask for sanctions. There’s plenty of time for that. What would EAJA fees be for flogging the dog lo these twenty years?

The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/15/cavc-birth-of-a-writ-act-ii-scene-2-the-eagle-has-landed/

About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Tips and Tricks and tagged , , , , , , , , , , , , , , , , , . Bookmark the permalink.

11 Responses to CAVC–THE BIRTH OF A WRIT- ACT II SCENE 1- THE PUCKER FACTOR

  1. steve says:

    The worst part of all of the corruption is the loss of ones precious time. The judges go home and sleep well, as it was just a day at work for them, and thier salary is gauranteed, no matter how much of a shitbird they may be, but the veteran is subject to many years of worry, agony, dispair, depression, loss of property, and the list goes on. This despicable treatment of veterans is a NATIONAL DISGRACE.

  2. Vicki Foley says:

    How do you feel finally knowing that the writ has hit its targets square on and you’ve put the maelstrom in motion? Pretty damn good, I bet. I’m guessing you’ve suspected for a long time that this day was coming. Would love to see the VA’s white paper responding to this.

    • asknod says:

      Vicky, to be truthful, it’s a hollow feeling. For any number of reasons. Why do I (or more appropriately any Vet) have to cough up a Ulysses S. Grant coupon in order to fix something they are too hyperspazzed out to comprehend? I’m speaking English and they are… what? It’s a loop recording. “We can understand your frustration that you’ve been waiting 25 months. But rest assured kind sir that we will be helping you soon. We are currently fifteen months out at Seattle and you are being served in the order you got here. And the CUE claim? You are not totally disabled. Well, you are by the Hepatitis but we generously gave you 100% for that. See, the phlebotomies make you medically okay, well except for the anaemia but we are giving you 0% for that already.” Their apologists are probably in India. Apparently, getting the VA to fix this is like herding cats. I guess it all boils down to the seminal argument of “Can a Veteran be 100% schedular for two different diseases if one is secondary to the other?”. Or perhaps Define “totally disabled.” That seems to be the hill Mr Prieb and the rest of VA’s 7th Cavalry have decided to die on. It appears Call me Bob agrees by his silence to my last email. A very hollow feeling. I thought they were my friends.

      • Vicki Foley says:

        I’ve never thought they were our friends. I was fortunate to realize that very early on, in 1994, so I’ve never expected them to do the right thing and thus have never felt betrayed. The MEB/PEB folks did us a favor when they lied to our Congressman about never hearing from us trying to stop the clock on my husband’s regular retirement over 20 years and changing it to a medical retirement when he was diagnosed with a brain tumor a few months before he was due to retire. I had even visited the offices in San Antonio. I could tell you the color of puke green paint on the wall, and what kind of plant the guy I talked to had sitting on his windowsill. I had a file full of phone bills proving how many times I called them, each time they tried to convince us to let him retire normally and let the VA handle the rest. What a screwing that would have been! I figured if they could bold face lie like that, so would the VA and we proceeded accordingly. They are the protectors of their bonuses, not of disabled veterans. They view you guys as a liability, a drain on their ability to line their pockets when a job well done means they stiffed a disabled veteran who deserved the benefits they denied and they got a percentage. You outlived your usefulness to the government, and now you are assumed to be malingerers until you can prove otherwise, usually to the CAVC because you need to get your issues out from under the self-serving VA system of “Justice.” Hopefully, that hollow feeling you are experiencing will morph into something more positive. However, In my world, I’d be putting away some cash for the Fed Circuit appeal while hoping it won’t be necessary. That’s been my MO for 21 years, so it’s a hard habit to break.

      • Vicki Foley says:

        In my husband’s case, with the assistance of counsel, we are going to nail the VA to the cross on how, exactly, a veteran who is 100% Permanentlly and Totally disabled, with the
        highest percentage currently under appeal at 60%, with an additional 80% on top of the 100% for totally unrelated disabilities to the others, is supposedly not eligible to be considered for SMCs, or if needed for that, TDIU. He’s on SSA disability solely for the service connected disability rated at 60%. The VA denied TDIU only because he’s already 100% schedular rated — that was the extent of the Reasons and Bases. So, we’re going to help you make them define what “totally disabled” means. Also, what “unemployable” means, and finally, what “separately rated” means.

  3. SquidlyOne says:

    Sick ’em dawg! I wish I could say you are correct about congress. All I have seen is grandstanding that appeases the public. Their legislation doesn’t do jack to help veterans. If they were really serious about being “expeditious” we would see some hard deadlines at various points in the process. Thanks for standing up to be counted. Only then can we see the advent of change.

  4. Todd Totzke says:

    Page 8 last sentence, date year is “201” . . .

    • Todd Totzke says:

      Good luck, hope the date doesn’t mean anything. Knowing the VA they look for anything to disallow.

      • asknod says:

        Yep. I spotted that too. I think I’m okay as every reference to DRO Mackey is in reference to the October 6, 2014 SOC. We hope. That’s what follow on amended filings are for. If they don’t catch my drift with what’s there, then we’re all on a shit boat headed to Hell anyway.

  5. Karen S. says:

    “Expeditiously handle” does not mean wait for decades…well done! I am going to write Hickey re: hubby’s Thailand appeal. VA accepted the illnesses by DBQ, but rejected by Thailand. St Pete RO wait for appeals is 557 days, at least. BS

  6. david j murphy says:

    You are entitled to compensation for your service connection , need it or not.

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