Over the course of years watching the claims process, rarely have I seen such a desperate gambit to clear the books of all backlogged claims by the magical 2015 date promised several years ago. Read this file closely and see how it comports with my recent write up of Carter v. McDonald. The same comedy of errors is paraded out for display with nary a batted eyelash at the incongruity of sending out all the correspondence to an address used to file a claim in 1970. They even have his VSO listed as AmVets!
Butch and I went over his litany of ills and decided to just pick the easy ones. No outlandish theatrics. This was a Joe Friday “just the facts, ma’m.” case. Butch gets blown up by 60 mike mike mortar. Butch files in 1970. C&P diagnoses minor this and thats and gives him 10% doggy bone. His VA Examiner writes in that he has tinnitus but somehow that never made it in to the rating. He’s pretty much blind in one eye from the SFW that drilled into his eye box. The fact that Butch can’t even hear himself think through his right ear is immaterial. VA says that’s why God gave us two of them. Same for the right eye that had been remodeled by a big chunk of the mortar. TBI? Sorry Butch. We didn’t have TBI in Vietnam. You lose. The same goes for the PTSD. We didn’t invent that until 1981 so you couldn’t possibly have bent brain in 1969. Here’s the cheat sheet.
Fast forward to 2014 and a nine-month chase for the c-file. Butchmeister finally refiles in March 2015 and what do you suppose happens to the mailed requests for him to show up at his scheduled Comp. and Pen. examinations? Those Einsteins down at the Seattle Puzzle Palace open up the c-file, which has lain in the dust down in St. Louis since June 1970, and rightfully assume that the address therein is the current address of record. They completely ignore that the C&P exams came back as undeliverable. They don’t even hiccup when no one shows up on the appointed time on July Sixth, Eighth or the Fifteenth for the scheduled exams. No sir. They know Butch is in a bad way in a wheelchair needing Aid and Attendance and proceed to adjudicate his new and reopened claims using the June 7th, 1970 Comp. and Pen. exams because he failed to show up. Nothing nonadversarial about that. He had a chance and this is a two-way street. Maybe he had a change of heart.
No calls, no letters. No correspondence of any kind to rectify this injustice. The new address has been on all correspondence since this began. VA was put on notice that Mr. Long was seeking his c-file as early as December 2013 using the same address they suddenly “discovered” last week. This in no way encompasses Rios v. Mansfield and the Presumption of Regularity. VA clearly knows they cannot contact Butch and proceed to an adjudication full well knowing he has not been apprised of his need to present for the C&P exams. Occam’s Razor doesn’t leave much to surmise except for the village idiot’s observation that if he bothered to file, then he would probably show up. Add to that the attempts to deliver the denial have been remarkably futile up to now, and you have successfully rebutted the Presumption of Mail Service. This is against the law in 56 states and their respective VAROs.
Now the violations of good taste:
Nowhere is there any mention of the off-chance that the Rater considered whether the Butchster is entitled to a Pension for serving in a time of war
Failure to grant the 38 USC 1154(b) Combat Presumption
Failure to grant equitable tolling to “Find Waldo”
Failure to recognize presumptive of herbicide exposure on IHD claim.
Coming to the conclusion that he most definitely does not have Tinnitus in spite of 1970 VA examiner opining just the opposite.
Cushman due process violation for denial of all claims due to failure to contact Veteran and ascertain his correct address. Being a pro se Vet, he is entitled to many protections and VA is giving him the Bum’s rush for his unwitting ignorance
Can we believe the M21 1MR is responsible for this miscarriage of justice? Can it be a glitch that slipped through the cogs and Butch was a unique anomaly never to be repeated again? Or is this the more nuanced “deny it all and see if he comes back with a NOD” technique VA is so famous for? You have to admit that Butch is the 46-year Perfect Storm for misfortune. It took that long just to get his Purple Heart and a CIB so he could get a seat at this table. Can you imagine the hard road he’d have gotten without? Jez, what am I saying? The road doesn’t get any bumpier than this.
Mr. Long was given an opportunity to present evidence of his injuries in service and to date, he has not. There’s absolutely no record of him being injured by a mortar. His testimony is merely presented as history and is not borne out by the record. The STRs go on to describe “SFW injuries” without substantiating what SFW actually stands for. The VA Examiner finds it far too speculatiive to just accept the Veteran’s assurance that SFW indeed stands for “Shell Fragment Wound”. Thus his credibility is rebutted and all his lay testimony is too incredible to be accepted. In fact, there is no record of his injury in his military files and no combat medals to prove what he alleges.
Now who can we pin the medal on for all this incredible investigation and subsequent address searching? Why, we simply look at the decision for the author. Watch closely if you want to learn something. Every VSR (Veterans Service Representative) has to “sign” his decision. VA tries mightily to redact that so as to not embarrass them later when 65% of their decisions come back as incorrect. I’ve even met attorneys who didn’t know this trick.
At the top of the decision on the right is the identifier. Let’s decipher the code. Here’s the “In reply refer to: box:
346 refers to the Seattle Regional Office. No, there are not 350-odd VAROs but perhaps it makes them feel better like getting new checks from the bank and beginning the numbering at 5,001. It’s an ego thing. Next, we see WPS. These are the initials of the VA rater. In this case, they belong to none other than :
Mr. Wendell P. Skiffington (WPS), VA Examiner, GS-12, who recently received a $400 dollar bonus for being such a suuuuuuuper rater, is the progenitor of this abortion. In short order he has denied each and every request for increase or new claim based on…. yessir, the June 7th, 1970 VA C&P. I find it admirable that they can do this with a straight face. If you’re hiding behind the barricades at Fort Fumble, you’re nameless-or were. This is the new Fully Developed Claim technique. In their haste to deny him it appears the folks up in Cheeseville Wisconsin also misplaced the Form 21-8940 and that means no more 78 rpm claim. My, how do dey do that? Here’s the game roster.
Ever since the War of 1812, a claim for compensation has always been a claim for pension. A claim for pension is always a claim for compensation. Look it up. VA even writes as much on their application form.
Butch has gotten the slap on both cheeks. He isn’t entitled to Agent Orange claim status and, from what we can see, he’s not even being accorded combat status or consideration for a non-service connected pension.
This has just begun. It may be time for General Allison Hickey, who was only 17 when Butch ate the mortar round, to intercede on his behalf. Butch is beginning that path now. He doesn’t have 10 spare years to play the Hamster wheel board game with Wendell P. Skiffington and his friends- nor should he be forced to.
What has America come to? What incredible force of events has led to the arbitrary denial of benefits out of hand with no opportunity to rectify or communicate with the Veteran? Really? This is VA’s new VBMS (Veterans Benefits Management System)-the much vaunted cure-all for the backlog -and it’s the best they can do? We’re in a world of shit, folks.
Celebrate a historic low for VA claims. Is that being sarcastic or is it merely a double entendre to imply how much lower they plan to sink?