Veterans Press-dateline April 29, 2015–Seattle VARO 346. Wowser. As I mentioned several weeks ago, VA opted to take me seriously and get me in to see a Travel Board Judge (VLJ) from the BVA at my earliest convenience. Since we know the VA does nothing for the personal convenience of Veterans, it appears this was a way to appease the big boys at the OGC that chewed their (Seattle’s) ass over their untimely delay of my 21 year claim.
LawBob Squarepants flew in as expected and we set up the TUOC across the street in the Hotel Alexis coffee shop that morning to go over the order of battle. The assigned VLJ, Vito Clemente, I believe, is a Veteran-possibly of the immediate post-Vietnam era. Nevertheless, he’s the first one I have met that didn’t give me the piercing goldbrick stare. Face it. Veterans seeking compensation will always be viewed as charter members of the Safeway Slip on the Floor Club by VA personnel. We are considered trailer trash to put it mildly. Thus it was refreshing to be greeted by a Judge (Call me Vito) with no preconceived notions of my motives.
Judge Clemente first asked if he had the authority to grant me a greenhouse and asked where the authority emanated from. Obviously, this was all new to him. Once apprised of the legality of 38 USC §3120 and the ILP family of regulations, he replied with the greatest effervescence and said “Awesome. I’ve never awarded Vets anything but ratings. This will be interesting to say the least”. Boy howdy did we give him an education on ILP-or the extreme lack of it these days.
LawBob touched on the skin disease and cryoglobulinemia to make sure he understood the concept of photosensitivety and vasculitis (extreme pain associated with exposure of extremities to temperatures below 40 degrees). This was important on two fronts. It was important to prove a) I have both diseases and b)how they drive my need for protection from the elements outdoors (the greenhouse).
Next, we tackled the thorny issue of why VA seems unable to just cut the Gordian knot and grant a 100% rating for the porphyria. Never, in all the time of studying diseases and ratings, have I seen VA so recalcitrant about handing out what most would consider the proper analogous rating based on the predominant features of the disease. Following the C&P diagnosing total disability, they issued a paltry 10%. This didn’t shock me as I know VA tries to low ball. After a NOD requesting a DRO review, they clawed back the 10% (pyramiding) and gave me 40% for the phlebotomies. After the four-year CUE battle, they returned the 10% for skin and upped the porphyria to 60% following submission of the Writ.
Judge Clemente looked me in the eye and asked me what I thought was the most applicable code to apply for the Porphyria and why. I immediately made the analogy to blood cleansing ( §4.115a dialysis) and plebotomies. I was able to insert the American Red Cross’ admonition that donating blood may only be done every 57 days versus my monthly phlebotomies of the identical amount (800 ml=one pint). I also confessed that a 100% rating under the old DC 7700 anemia rating was also equally for application at 100% in spite of VA’s vain attempt to characterize phlebotomies as “acute events”. Veterans really have no idea how far VA will go in their attempts to characterize your illnesses/injuries as far more minor and insignificant than they really are. Hell, all you have to do is look at their initial 10% award for totally disabled to verify that.
Judge Vito summarized his hearing with a brief synopsis of what we’d covered, and then uttered the magic phrase to Bob. “I’m gonna approve your AOD request. It’s only fair here.” AOD, to all of you Vets and budding NOVA kids is Advancement on the Docket- as in 38 CFR §20.900 (c). This is the penultimate cherry on top and guarantees the decision will be promulgated within the next two months or so.
In sum, I refuse to count my chickens in their embryo form. It was my unpleasant experience to have VLJ Mark Hindin smile and tell me how speshull I was. Less than a month later, he refused my request for advancement (AOD) and then went on to deny using the same VARO logic to the point of plagiarizing the denial language. This proves my point about BVA staff attorneys top -sheeting claims and not bothering to investigate the contentions put forth by the appellant.
I do wish to apologize for a misconception I have been aiding and abetting over the last year. Contrary to mys assertions, my VA c-file, which is still in it’s original brown file folders, is not eleven folders thick. I lied. We ascertained it was only ten folders yesterday morning but the tenth file is almost full. It will be eleven by the time we have the hearing deposition typed up and the new decision from Judge Clemente. We also stuffed a bunch of new evidence into it in support of my greenhouse.
What was strangely absent was what I had specifically asked for and signed a request for on April 17th. I/we need a copy of my VR&E file and we were assured one would be copied and provided either before the hearing (mailed) or provided an hour or so beforehand to facilitate review and our argument/presentation at the hearing. Toward that end, we arrived early. VA’s travel Board coordinator, Ms. Tammy Skrinski, arrived empty-handed claiming she had disremembered to copy it and promised it in short order as the c-file cart containing my 80 pound file was in the hearing room. She pranced in and rescued it only to find there were no VR&E records within. Ruh-oh Rorge. This prompted a VARO-wide search for them that turned up nothing. Someone ran across the street to the scanning vendor in charge of copying these things, but alas-t’was not there. As most know, it’s against the law in 56 states (and the AMC) to separate the contents of c-files.
My guess when we got to the elevator to go down after the hearing was that the VR&E files were very, very near and busy being revamped/shredded or in the process of being lost. A c-file travels like an army- together as one. Considering the VR&E offices are on the same 13th Floor where the hearing was held, the “misplaced” files would still legally be in the general vicinity of the rest of my c-file. Ms. Skrinski assures me that I’ll have them “soon” because her coach said I would. We have 60 days to submit additional evidence from the hearing. Remember, VR&E’s head honcho refused to issue a SSOC (or SSSOC) rebutting the latest new and material evidence last May. That, too, is against the law across the VA’s fruited RO plain. Fortunately, Judge Clemente agreed to accept the new/old package of new and material evidence and forego a remand for a de novo denial in the first instance. I got the impression he wasn’t too enchanted with Seattle’s finest if they couldn’t even find a VR&E folder in a pile ten-high. By now, I expect I have my very own file cabinet so it’s not likely they stuck it in Alan Grant’s file. I strongly expect he’s after me alphabetically because I have some of his in mine.
Stay tuned for the remains of the CAVC Writ and it’s gradual fallout. For the moment, I remain at 180% disabled. Should Judge Clemente grant the extra 100% schedular and 30% for my skin, I’ll be officially 100%+100%+40% +30%+10%- or 270%. All I wanted was 20% remuneration for porphyria and 10% for my ears in 1994. I had no idea I had HCV back then. I suppose this is a classic example of get ‘er done early instead of waiting for the house to fall down in an earthquake.