As the title suggests, we’re Boldly Going Somewhere-finally. In fits and spurts, we are dragging, and being dragged, into the new claims frontier known as the Veterans Benefits Management System, or simply VBMS. It has a few other scatological analogies (VBSM) and reflects poorly on whoever dreamed up the moniker. Let’s face it. PR is definitely not VA’s strong point. With that said, let’s focus on what it means henceforth to you-Johnny Sixpack Veteran.
Congress put a gun to VA’s head and told them to go paperless a while back. They weren’t quite as specific as they should have been about when this was going to be required so VA, as usual, took that to mean it had to be done sometime in the 21st century. Great joy and good tidings like this naturally brought grins to all the folks down at 810 Yellow Brick Rd. NW. They relished the idea of adding $30 or $40 billion to to the budget. Everyone would get new iPhones and big, fat bonuses for being the last federal agency to go electronic. Imagine getting paid handsomely for doing what needed to be done in 1995.
It’s almost time to pay the Pied Piper-Congressman Miller et al-over at the HVAC. Towards that end, VA has engaged in much PR hooplah rather than Marine Ooorahhh in an effort to distract from the obvious. The USS BVA (CF 810) is sinking under the weight of hundreds of thousands of beleaguered appeals and BVA Head Honcho Laura Eskinazi is cowering in place with what? Rocket Dockets. No overtime. Few, if any, new Veterans Law Judges (VLJ) and a plethora of inexperienced “Acting” VLJ’s who are being handed what can best be described as ‘gimme’s or Law Lite decisions which are, for the most part, foregone conclusions legally. They aren’t even beginning to keep up with the incoming appeals.
My recent article on Butch Long’s plight is a classic example. Let’s look at the 125-day Archimedes principle. Butch went in for total immersion March 30th. Allowing for the VBMS to work it’s magic via Cheeseville, Wisconsin, he was scheduled in for QTC medical (or VA) Compensation and Pension Examinations on July 6th, 8th and 10th. That’s roughly 96 calendar days but in VAland, that ain’t 96 working days. Even so, let’s give them a round of applause despite the fact they chose to use Butch’s old address of June 1970 to notify him. Accidents happen at VA Regional Offices. That’s still a vast improvement over years past in timely scheduling C&P exams- when scheduled at all.
Next, the decision. It was announced July 27th- almost exactly 125 days to the minute. It was 98% accurate based on the dearth of information available. Again, no one can dispute that. The stunning revelation that it could only be arrived at by misfeasance and planned obfuscation is the due process crime. I give them 4 Pinocchios on that one. So how do we outwit these gomers?
TACTICAL VBMS CLAIMS TECHNIQUES
2015 is also the first year we have been corralled onto the reservation using VA forms exclusively to the exclusion of paper towels and my favorite- putting the Tickle Me Elmo Stickers on the top right in my personal “In reply, refer to:” area. I see someone industriously peeled them all off before converting it into electronic format on the VR&E file. Quo Vadis, VA humor? Those days of yore are politically incorrect now. Someone at VA might think you believe VA raters have the IQ of poor Elmo or are humor-challenged. If the rater is a woman, she might feel that was sexual harrassment. That’s grounds for a punitive Fiduciary decision these days at RO LZs.
From now on (March 25th, 2015) , we only get to play this game using their deck of cards. So, how can we improve our odds? Many of you (us) from my generation of Vietnam-era Vets, are not very well-schooled in computers. We have had to work for a living all this time before our bodies disintegrated. We never had the time to sit down and get computer educated. My advice is to pair up with another Vet who is versed in the c-box and can teach/lead you. It’s going to be a life skill soon just for VA claims if nothing else. My Cupcake showed me little more than where to turn it on in 2007. My real education began on Google Search with “Veterans Administration” and “Hepatitis C”. But that doesn’t help you. If you can find me, you can find a VA Form 526EZ at the top of my site as well as all the other forms you may need. The knowledge is here. We’ve been left behind too long and lied to.
VBMS DOCUMENTS ARE .PDF WORD-SEARCHABLE
VBMS documents are word-searchable products. That means you can find anything in them with a little diligence. It also means VA raters can too. Whether they choose to or not will determine the success of this endeavour. Old paper documents converted into word-searchable .pdfs simply will not pick up the written scribblings of a tired doctor. For that you need a new breed of forensic medical sleuths who charge about $40 an hour with a minimum of 5 hours. Starting to get the picture? If you were born after 1990, this all works out fine. Medical records were in typed format by then. Everyone born before undoubtedly has written stuff somewhere and that will never be reviewed by the new Dick Tracys of the 21st Century. You have to be proactive and get them into submittable format or lose them as evidence.
A Form 21-526EZ is now the beginning of the new Frontier. From here on out, it’s a Follow the Yellow Brick Road process-but with a few new twists. It’s fairly simple if you are remotely savvy but again, this assumes you have a computer and a combination printer/scanner/fax machine. If you are going down the pension path rather than the compensation one, you’re going to use the VA 21-527EZ. Pensions are for non-service connected injuries and are available to Vets who served in time of war-even if it was only for one day. If your income is an either/or proposition versus Social Security, it might be more using a VA pension. Check it out.
NO DUTY TO ASSIST WITH FULLY DEVELOPED CLAIMS
The Fully Developed Claim, or FDC, is a new program VA designed to relieve them of mounting a posse and going after all your documents. This consumes a lot of time and is one major reason why our claims have taken so long to accomplish in the past. By arriving with all the ingredients, it becomes a denial based on what you, Johnny Vet, bring to the table. At least you have a better idea of what’s going on.
The 526EZ is going to harvest information you provide. The days of the sacred duty to assist are too cumbersome. We now live in a post-Shafrath DIY world. VA has finally come around to my theory and employed this. Chances are you know where your supporting civilian medical documents are and can obtain them if you have not already. Since most require a payment for the records copying, and the fact that VA refuses to pay anything, we often never get those records into the evidence file. You, on the other hand, can obtain them for free by asking for them. Tell your provider you’re doing it for VA and they fairly jump to the task. I guess they watch the news about VA on TV.
The first thing you notice on a Disability Benefits Questionnaire (DBQ) is the fact that it is a report on how you are now. Nowhere is there a real place to note the history of the claim. The VA requires us to provide a cohesive, cogent, well-reasoned theory of how we got the problem and when it started. A DBQ is thus a checkup. It’s like a physical where you list all your defects but not how you got them. This sin of omission effectively prevents your physician from opining on the subject for compensation purposes. It requires a complete, new nexus submission from him if he wishes to. Considering these are electronic documents, how much effort would it be to alter them to permit it? Apparently far too much in the VA’s eyes.
The Disability Benefits Questionnaires are also a slightly bigger obstacle with conflicting rules. VA doctors have been ordered to do them. Not all are smiley and helpful, though. Tough luck. It’s the law. Go to their VA Medical Center (VAMC) superiors and drive a hard bargain. The regulation simply states they must include the truth about your current medical condition but are not allowed to theorize on the cause. Period. That means no nexus letters from VA doctors who are employed at VAMCs by VA. However, doctors who work in research symbiosis with VA like Duke with Winston Salem and UW with Seattle, often allow their doctors to do as they please. I’ve run into a few civilian doctors who are not as amenable either. Face it. Filling out a DBQ can be a long, tedious process and detract from a doctor’s other duties. That can pose a problem. You can’t force them to and bribes are right out. Even my fresh peaches didn’t work.
Independent Medical Opinions
The path to a purchased independent opinion, called an IMO or Independent Medical Opinion, is always for consideration. If you’ve had your personal physician for ages, this is probably going to be easier and no cost. For those who don’t, paying for an opinion that passes muster is a prerequisite. You are going to get this benefit for life. Why not pay the doctor once, get it in the record and chalk it up to the cost of doing business.
HOW TO MEET AND TALK TO YOUR VA RATER AFTER A DENIAL
The next layer of bureaucracy after denial is normally the filing of the Form 21-0958 which I’ll discuss someday soon. Too many rush into this without thinking it through. You lost. Why? What was missing that was needed? Doing claims by rote is a thing of the past. If the denial only takes 125 days, you still have 365 days to tune this puppy up before you push the NOD button. Analyze the denial and repair it. You have a year to do so before the carriage and the horses turn back into a pumpkin and mice. One of the strongest methods I have discovered is to show up at the front desk of your Regional Office and ask to talk to the rater who authored your denial. They hate this. You can also inform the 827-1000 Prize Redemption clerks that you’re coming in so they can be forewarned on the off chance you cannot convince the rater to call you back. My favorite is to use your celphone outside to tell them all this and then walk into a building with zero signal. Dang. The phone dropped the call. Go figure. Right before I heard Peggy say “But sir, You can’….
The closer you can get to the decision maker, the sooner you can resolve this amicably. In this new day and age, assuming your file is entirely in VBMS and converted into a portable document format (.pdf), the easier it is for the rater to pull it up for review. Now watch closely on what you can do to enunciate a point of important fact. A .PDF is a document with the newest information submitted always at the forefront of the document. Thus, if you are preparing to have a conference, a hearing before a judge or any interaction that will require opening that .PDF, you can ‘pad the record’ by electronically faxing in an existing document in the file to Cheeseville or Newnan- thus placing it at the top of the file and the first to be viewed.
This is an electronic variation of the old ploy I suggested in my book a few years ago when I said to get all the salient facts onto your initial VA Form 21-4138 at filing. In the paper days, that would have the most french fry grease or mustard stains on it than any other document in the claims file (c-file)-and the one a lot of raters would read. Transferring the grease onto an electronic document is more difficult as the rater can only view one page at a time. Ergo, you get the winning Lotto ticket info on the top of the pile to be spotted instantly. There is no law against submitting duplicate documents to VA. Do it at least 10 to 14 days before your sudden, unscheduled appearance so it will be there waiting.
VA uses ex parte justice to decide claims. Simply put, it’s like a rock/paper/scissors game with a nasty twist. At the count of three you throw out your hand and display your ‘sign’-let’s say, paper. VA analyzes this for 125 days and responds with the appropriate sign to defeat it-in this case scissors. The inherent unfairness is self-explanatory. The only recipe for success is to adhere to the old Caluza/Shedden/Hickson path. You arrive with all the ingredients to win with and a spare Independent Medical Opinion (IMO) up your sleeve. When VA pulls the standard scissors out, you meet them with the extra IMO ‘rock’. It’s in there because you faxed it in. It’s new and material. In the event it is the only IMO you have, getting it up on top of the .PDF claims file makes it unavoidable. It’s still material evidence and indisputable. You have no idea how often VA raters top sheet our claims. This effectively circumvents their bad habit and rubs their nose in it. Nevertheless, having more ammo is the ticket. Never shoot your gun dry. Don’t you remember you were taught that once in Basic?
I find too many of you ‘oversupervise’ your service representative by trying to ‘lipwhip’ a claim to death. It’s even more so with pro se Veterans. You want to write endlessly on and on about why you’re right and what VA did wrong. Newsflash. You’re putting them to sleep, folks. The new .pdf paradigm is simple.
- Identify what they did wrong.
- Describe the normal procedure and what the statute and regulation state. Don’t waste a lot of time citing Fenderson versus West or Gilbert versus Derwinski.
- Inform them of what you should have versus what you got.
- Be sure to sign it. It’s a legal document.
- Fax it to Cheeseville/Newnan.
- Show up 12 days later unannounced and politely ask to talk to the guy who f—-ed up.
- Tell them you called and told Peggy you were coming. Make them feel guilty.
- Bring a day’s worth of loud, messy food and drink that stains carpets, a Tetra game with a loud audio and a friend with a hideous laugh that sounds like a goat.
- Keep your hands out of your pockets and in view for the security camera. Hum Kumbaya, My Lord sotto voce every once in a while each hour.
- Tap your feet a lot. Tell everyone you filed for restless foot syndrome.
Don’t be surprised at the outset if they say the VA employee you seek audience with is in a Human Resources Training Day and can’t see you for five hours. Tell them you just drove XX(X) miles, simply have oodles of time and brought lunch and a large container of Pom®. Eat while you walk around. Make sure the sandwich(es) gets crumbs all over Hell’s half acre. Tip that Pom® over occasionally down between your feet and apologize loudly each time. Make a dilatory effort to mop up. Blow your nose a lot and sniff loudly. Eat really loud potato chips with your mouth open like a front loading washer. Share your mastications with the others. Make frequent eye contact and smile like the Cheshire Cat. Use the bathroom about every 21 minutes religiously using your watch to time it by. Stay in the bathroom for exactly 30 seconds each time. Talk to yourself. Better yet, bring a friend and do a lot of Facebooking with suitably wild, off the wall comments in a loud whisper. Watch how quickly John Q. Rater shows up. Chances are it may be John Q. Rater’s supervisor (with security in tow).
Remember, VA is now ‘VA-centric’. The VA’s employees have been instructed to grin and say cheese. Every phone with a camera is a tool of destruction so they have to be careful what they say now. What happened to Butch recently was a slip-up of unparalleled stupidity and can easily be fixed using this technique.
One other excellent tactical approach is to call your Congressman. I’d do that anyway whether or not it actually has any effect. Here. where Butch is concerned, it’s quite apropos because Congressman Kilmer was responsible for getting Butch his CIB and Purple Heart- and most recently, his c-file. He has a vested interest in how Butch fares and the Seattle Fort Fumble has been put on notice- again. Now that he’s seen the intransigence of VA in action (again), it takes very little to provoke an appropriate response.
VBMS is a new horizon we must be willing to learn in order to navigate. Each job needs the right tools but that doesn’t mean we are precluded from taking it up a notch and fashioning our own. Every VA scheme is rife with shortcomings, incongruities and misinterpreted statutes. When you try to computerize the process, you have to dum (without the b) it down as the village idiot will eventually gain employment there. VA hasn’t done that yet with VBMS. Their M 21 adjudication logic looks like IRS law. That will take time to repair and is a different subject.
Why not boldly go where no one has gone before in Vet law and technique? As much as it sounds like a cliché, Win Or Die has great resonance in this argument. Many died waiting. That’s what my skull and crossbones were meant to convey. Being a trailblazer is my cup of tea. I’m one eighth Ute Indian and part Contrary. I ride to the fight. I do not wait for it to approach me. Tactical approaches are dynamic as opposed to static defense. Sitting in Fort Livingroom doing nothing is unproductive.
VBMS may be a new requirement, but any law or rule can be brought to bear in Our favor by turning it on it’s head. Electronic sleight of hand is just the beginning. Here’s my nexus on Page thirty nine–but wait— here’s my nexus on Page one now.