As some pointed out, going down for double can be a dicey enterprise. Splitting up the cards into two bets isn’t the best way to do it either. It also appears this is Judge Davis’ way of saying get lost. We knew that the moment we drew the short judge straw. I’m 0-2 with him (see also CAVC #10-300). This case has been banging around that long. God forbid I draw him if I have to go up yet again. Yep. The dreaded hamster wheel is still my nemesis.
UPDATED——————-March 23, 2015—————————————–
Well, pilgrims. Let’s do an inventory of what was asked for and what was granted. It could be that already having a 100% schedular rating inured Davis to my request for another. Here’s the inventory.
1) Topping the wish list was a 100% schedular rating for Porphyria Cutanea Tarda analogous to dialysis as the two processes (phlebotomy and dialysis) are similar in that they involve needles, veins and purifying the blood. In any event, the aim was to get into the SMC S zone. I was 40%+10%= 50%. I needed a 20% kicker to get there.
-Outcome- VA met me halfway and upped the 40% rating to 60% and restored the 10% (CUE) clawback of the skin rating. 60% +10% = 60%. My combined total is now 170% (100% + 60% + 10% +10%).
-Outcome- Granted in full. This was where the moneybags were hidden and the primary financial reason LawBob Squarepants liked this vehicle. He’s remodeling his new hacienda and needed two new furnaces and heat pumps. I needed closure. Problem solved.
3) Finish my claims for Cryoglobulinemia and Fibromyalgia filed October 1, 2012 which were accidentally closed out or disremembered for the last two years.
-Outcome- claims decided in my favor and C&P was accomplished March 6th, 2015. Awaiting ratings decision. This was my back door plan for SMC S. I don’t need it now but VA is stuck on stupid and continues to pursue rating it. That will add to the 170% which is asinine and meaningless towards getting SMC S now.
4) Certify claim for ILP greenhouse which has grown roots at Seattle’s VR&E office since November 2012 NOD. Advancement on the docket was asked for as well.
-Outcome- Claim certified, Form 8 issued and Travel Board Hearing is in the slot awaiting a date. Advancement is doubtful. I might win before I die if they advance it. They simply can’t have that.
Actual photo of a real Form 8 which we so frequently talk about. Rarer than hen’s teeth. Handle with care. Evaporates when exposed to light. For the sharp-eyed, notice the backdating trick Coach Cherryl Anne Mackey-Rivas uses from 3/27/15 to 2/27/15. Apparently, Decision Review Officers have the authority to change dates. They were in such a rush to get this back to the Court that they didn’t bother to fill out a new one. Badges? They don’t need no stinkin’ badges.
5) Convert my 12 volume c-file into VBMS electronic word-searchable .PDF pronto so I can fight my ILP claims.
<<<<<<< If you can’t hear, let me turn it up for you, bud. Your c-file isn’t “ripe” yet. From now on, it’s “okay” for VA to tell Veterans that they are no longer allowed to have the one document that might help them win their claims! Did I just hear due process being strangled? We at asknod call this the “Marie Antoinette” syndrome VA always deploys (using the Court as their mouthpiece) i.e. “Let them eat cake until we get around to making a copy of the file”. The Court takes the broad, general view that it isn’t really denial so much as delay. Once VA is allowed to talk about delay, two and one half to three years would be the expected “edge of outside parameters” of good taste.
6) Make sure VLJ Hindin never touches my claims file ever again.
-Outcome- Go piss up a rope. Just to spite you, we’re gonna make you appeal both the 60% for the Porphyria and the ILP greenhouse. We may even assign Hindin to your appeal again- because Davis didn’t say we couldn’t. Therefore we can. Ah ha ha ha ha.
In sum, for a $50 filing fee and some heavy duty postage, I was able to accomplish in two months and two weeks what had heretofore taken me 21 years, 11 months and 21 days to accomplish. I think that is the best investment in my life short of hornswoggling Cupcake into marrying me and producing my firstborn (and only) male child.
On the other hand, two disturbing specters have now raised their heads. I speak of the above Cushman violation-but worse. We don’t have to alter the records. In fact, we don’t even have to allow discovery and let you poor Vets in on what we have. Blatant, overt adversarial displays of temper, cast in stone in a BVA decision that sarcastically opined but that for lack of a shoe, the battle was lost. The Vet won by chicanery and bending VA’s lenient rules into tortured meanings never before elicited. Indeed, the VA Secretary’s regulations often segue into interpretations the Congress never intended. Where else but at the VA would it behoove you to saw off a leg to obtain SMC L by chicanery? Fortunately, alert raters at VAROs steadfastly stand guard against this Veteran proclivity.
I will have to appeal the 60% Porphyria rating up to the BVA. Childsplay. I feel confident this will win. If VA gave away the whole farm in one fell swoop every time we bitched, the rest of you might get the idea they’re getting soft. They can’t have that. The resultant rush to the benefits trough would be financially catastrophic for bonuses. Thus, some time in 2017 or so, a VLJ will state the obvious that a doctor saying totally disabled is… gosh…just that. Duh? Or ten days before the VLJ rules, VA will grant the 100%. Either way, they will make me wait. I”m pretty sure I have now officially been declared persona non grata and taken off Secretary Bob’s Christmas Card list.
The centerpiece jewel in all this is the ILP claim. All the rest was just window dressing. I know some of you choke at the thought of $70,000.00 being window dressing but let’s be frank. The Independent Living Program is dying. It’s very important and worthy of a strong defense. There is no good case law on it of mention at the BVA. If it’s denied at the Board, we get to go up to the Big House at 625 Native American Avenue NW and open up the biggest coverup in VA’s storied history of same. ILP is going to become the next scandal if I have my way. Nobody in Wyoming has ever heard of it let alone been granted an ILP. Same for the folks in Manila. White River Junction has been AWOL on it since 2005. Check it out:
VA continues to remodel these numbers in the totals above. Congress authorized 2,700 lotto tickets to this but unfortunately the people giving the tickets away appear to be unable to find any of us and ignore the ones like me who try to redeem our tickets. Your odds of winning in Wyoming are 0 in 1,000,000,000,000,000,000.00 as you can see.
VR&E Officers consider ILP to be a giveaway of valuable vocational assets to a bunch of undeserving whiners who just happen to have a shit ton of severe disabilities like PTSD, missing arms, legs or liverboxes. VA’s take on all this is to do intake all spring and summer and wait for September. That is the cutoff date for allocation of ILP spending. If they didn’t use it by then, it reverts back to the general fund for use “elsewhere”. Elsewhere has been discovered to include Kareoke parties in Orlando with their sidekicks in the HR crew. Oddly, it happens every year ( the misapplication of the funds-I think the party locations change though). A $25,000.00 allocation available for each one of you who applies is withheld, reviewed or artifically denied until it can be redirected. This authority emanates not from DC’s Central Office of VR&E but at the local level. Yeppers. The local offices have no oversight from DC. Each are mini-fiefdoms and the whims of the Head VR&E Officer are dictum. That is the battle we hope to enjoin. Seems if you’re going to deceive and deny Vets this valuable asset, you probably shouldn’t be keeping a record of it that clearly demonstrates it’s being “downsized”. Can it be our paraplegic/severely disabled Veteran numbers have dramatically dropped after a 15-year war? Statistics like those above do not lie.
Davis was not expected to become Solomon and make weighty decisions on PCT ratings. We certainly hoped he would but the Force is weak in that one. Likewise, I don’t see where he could have thrown his weight around on the ILP either. VA chieu hoi’d too quickly before he could answer that. The matter of getting a slot for the Travel Board hearing sooner, rather than later, is also “iffy” and VA mentions it in passing. Often, that is the same as not mentioning it at all. We shall see.
The battle lines will be drawn around the Presumption of Regularity on the ILP. VA took an interesting path to denial at each stage of the process heading to appeal. The first error was to blatantly declare in writing that there is no “avocational” in VR&E. Every grant is aimed toward restoring the Vet to work. The boys at VR&E 346 (Seattle) forgot to read §21.160 or consult VAOPGCPREC 34-97. The next mistake was to say I had three greenhouses. I don’t. Next was the “He’s trying to avoid buying veggies by growing them”. The last was the crowning touch. They simply waited for the regulation to change last March 31, 2014 and issued the SSOC May 14th incorporating the brand new regs. Boy Howdy, that’s against the law in 38 states and all 58 VAROs. This provokes the thought of just how tightly wrapped these folk are. If they don’t even know their own regulations and are incapable of interpreting the M 28, do they have a checklist to get their underwear on facing front every morning (yellow in front/brown in back ⇒ check ⇐)? The Presumption of Regularity says they know what they are doing and do it well. If you rebut that by saying what appears irregular-is indeed irregular, then the decisions at the RO were fatally flawed.
§19.29 says a SOC or SSOC has to clearly and unequivocally evince reasons and bases for a denial. It must be clear to the claimant what is afoot and why. Merely saying “Mon, we be castin’ dem bones and you be losin’.” isn’t a valid reason to appeal from. If there is no nuanced discussion at the VARO of the severity of the disabilities, how is the Vet to know how to proceed with a denial? Absent a real C&P for ILP, your decision is based on whether the VR&E guy is having a bad hair day. Unfortunately, there are no good hair days at Seattle so their ILP numbers are sinking much like their sister ROs across the fruited plain.
By signing the waiver of review in the first instance and avoiding a remand to readjudicate, the rebuttal of the Presumption that Seattle knows what they are doing is complete i.e. they don’t. Whether s/he wants to, the VLJ is going to have an ILP Tarbaby stuck to her/him and have to rule up or down. My ILP is a case study in how not to do one. They have variously denied on it using four different arguments-each distinctly different from the one before. It’s beginning to resemble a “whack a mole” game at the county fair. Even worse, there is no supporting rationale for the denials from which to appeal. Bald assertions with no supporting rationale are not probative evidence and therefore not entitled to deference in a rating decision. Absent any mention of disabilities and having considered them, the decision is fatally flawed.
We aim to fix this. ILP is a valuable asset that looks like it got a crew-cut with a weedeater over the years. Very little of substance is left there now and any benefits at all hinge on the whims of the local VR&E Officer at your RO. Some are amenable to reality. Others consider it an extinct dinosaur but occasionally grant grab bars and shoe horns. We know some in the R1/R2 crowd are getting HISA and other grants but they are few and far between, too. Little, if any, entail avocational pursuits such as an Ipad or similar items. Considering the enormity of severe disability and the prevalence these days of social media, Ianythings should be being granted wholesale to help our Vets unwind from the Afraq hostilities. This niggardly approach to ILP grants with Mardi Gras beads must be halted. A rollback to the eighties back to true avocational pursuits for those of us less abled but still desirous of accomplishing something of substance is what is called for. Congress appropriates the funds. VA surreptitiously diverts them.
I, for one, look forward to having fellow disabled Veterans gather here to engage in horticultural pursuits should I win. If it gets you off your ass and gives you the will to be more than a mushroom in Fort Livingroom, why try to curtail the behaviour? Why not encourage it? Unless they simply don’t give a hoot about us. Perish the thought.
P.P.S. On September 4th, 2015, VA granted 100 % for my porphyria cutanea tarda and granted my greenhouse request.