I’m sure that at one time or another in our foggy, golden pasts during that disagreeable, humid hot spell in the South Pacific we endured for a year (or more), we all overheard Scotty tell Kirk more than once the Dilithium crystals were smokin’ and threatening to nuke. The analogy has always been drawn as synonymous with dire straits. In the VA context, because that is the way my brain works, I find no matter how many times you evoke the dreaded dilithium crystals story of how your house is in foreclosure, you’ve been held hostage to a claims system for umpteen years and your wife is threatening to decamp- the VA is unmoved. Not even the least bit perturbed.
As most know, I am now the master and Seattle’s VR&E is the padewan. I control the Force. I have a BVA decision ordering them to fetch me a greenhouse and be quick about it. VR&E folks are 20-year shelter-in-place personalities. While I may have prevailed after a prolonged battle, the BVA decision doesn’t have that “expeditiously handle” sobriquet attached. VR&E pukes take that to mean they can dawdle and meander for months before “discovering” it in their in-basket. Even with a generous dollop of low balling, the cost is ratcheting up at a phenomenal rate. When I began, I thought a $30-35,000 dollar g house was exorbitant and figured I’d have hard time selling them on it even if I could memorize the password and the secret handshake to join this prestigious club.
Bruce McCartney, the ILP guru who began this greenhouse parade back in the dawn of the 21st Century, suggested I contact the good folks at Farmtek. After all, they have a wonderful ILP gal named Karen Meister who has a Masters in VAspeak. Being a novitiate, I gave her my parameters medically and asked her if she could whip up a basic Earl Schieb package. I never mentioned square footage. Her “basic package” was 24’X48′ $74 K plus install. Apparently Obamanomics was more successful than I had thought and a rising National Debt floats all ILP boats. Labor, too, for this shovel-ready job was far more than expected- from $27 K up to a lofty $45 K at New York City prevailing rates. Fortunately, we wouldn’t be needing traffic cops but VA has to write that in.
And so, as with most shovel-ready VA jobs, the VR&E now requires a GSA contractor on top of all the other costs, to run the dog and pony show. VA no longer entrusts this to Vocational Rehabilitation Counselors. You have to figure someone somewhere let slip the contract info to a brother or relative general contractor who by chance happened to be on the approved list of VA contractors(or became one in record time using VA’s Fully Developed Contractor (FDC) form). Add in that GSA contractor/leech and you siphon off another $25 K because you just know they’ll bring him in from Tulsa and put him up at the Hyatt Regency in Seattle for three months. Two hours each way to commute and the fact that booze in the United Soviet State Of Washington is going to cost them spells cost overrun. From my latest email, I now note I have no less than three Vocational Rehabilitation Counselors as well. Que si passe-t-il? Their collective annual salaries are $122,783 (2015 bonus $1,250), $103,904 (2015 bonus $932) and $100,217(2015 bonus $783). I’d like to think they get their bonuses for working so diligently to help us Veterans with ILP entitlement services rather than the opposite.
In order to overcome this built-in ennui, and now being an ILP Jedi Master, I decided to stir the pot. I have now waited eight months and ten days. Allowing things to progress at this pace might mean I will run the risk of being rendered into soylent green and added to my future hydroponic tanks. With my new found knowledge and success at writing Extraordinary Writs of Mandamus, I set to and started building a new tarbaby for VBASEAT (Veterans Benefits Administration-Seattle).
You’re going to like this one. Nothing gets their collective goat at the Local Puzzle Palace quite like playing Badminton with their own regulations. I always serve a few back to them to begin with. It salts the conversation with equality and lets them know the U.S.S. Mayflower didn’t sail up unannounced and drop anchor in front of your home last night.
THE FIRST SHOT ACROSS THE BOW
In order to accomplish this grant, VA is required to have a licensed Vocational Rehabilitation Counselor (VRC) implement it if I am reading 38 CFR 21.160 and .162 correctly. Reading the Seattle VA leadership team resumes, I note that Mr. Boyd’s accomplishments are
“Prior to joining VA, Mr. Boyd served in the U.S. Army. Among other assignments, he patrolled the German border during the Cold War, commanded tanks in the European 7th Corps during Operation Desert Storm, and jumped out of airplanes with the 82nd Airborne Division.”
Nowhere do I see any of his professional qualifications that would permit him to be my VRC. 38 CFR 21.35 (k)(1)(2) is unequivocal as to what a VRC’s professional curriculum vitae need constitute and the professional requirements necessary to supervise my IILP- let alone write it. If, as you indicate, he is in charge of my IILP (Individualized Independent Living Plan), my attorney questions the validity of his VRC qualifications. If he indeed has VRC credentials, please provide the attorney with them.
In addition, I see another insurmountable problem building here. It would appear from what you have said so far regarding GSA involvement, that you are looking at the new VR&E Manual 28R (M28 Revised)for guidance. Please be advised that my claim for the greenhouse was filed in 2011, several years before the inception of the M 28R which became effective March 31, 2014. As such, the prior version (M 28) is still for application in this grant as it represents an unbroken claim stream from 2011 to present via my successful appeal. For legal cites, please see Holliday v. Principi (2001), Cohen v. Brown (1997) and Karnas v. Derwinski (1990). To wit, the regulation in effect at the time of filing will be the controlling one. Later changes to a regulation during the course of adjudication can never be for application unless the regulation grants retroactive reach. I see nothing in M 28 R granting that.
Further, the presumption of regularity assumes VA personnel are competent in the regular performance of their duties. However, that presumption can be overturned when what appears irregular is irregular. See Butler v. Principi 244 F.3d 1337,1340 (Fed. Cir. 2001). Considering the loss of not one, but two important documents I have submitted (2012 NOD & 2014 SSOC) which were documented via certified mail, return receipt requested, Seattle’s VR&E office clearly and unmistakably lost the protection of that presumption before my appeal began. I was forced to submit my SSOC with a waiver of review in the first instance at my BVA hearing April 29th, 2015 as it was nowhere to be found in the c-file. As for erroneously depending on the new M 28R for implementation of the IILP, once again, the presumption of regularity has been abrogated. Once abrogated, any and all presumptions of regularity regarding this grant became null and void.
All I asked for last month was an extended evaluation of two years versus your (or Mr. Boyd’s) suggested 60 days (or one year) rehabilitation initially proposed in the first Form 28-8872 which required little more than concurrence from Mr. Boyd. That is assuming, arguendo, that he is indeed “in charge”. That is within the parameters prescribed in 38 U.S.C. 3105 and 38 CFR 21.76. I do not see where this would require the involvement of a Vocational Rehabilitation Panel (VRP) or, for that matter, anyone above Mr. Boyd. 38 CFR 21.76 grants him that authority.
VA has been in constructive possession of the Farmtek bid now for over nine months. With this information in hand, planning for the grant can not come as an unexpected surprise requiring extensive planning. Knowing the cost, the obvious requirement was to forward it to VACO VR&E for their approval and action once the BVA decision was rendered. Eight months is ample time to coordinate this.
As all are aware, my health is tenuous and further delay based on inapplicable guidance dictated by relying on the wrong Adjudications Manual is no longer an operable excuse. I feel submittal of the IILP to Mr. Boyd along with the FL 28-520, IL Plan Approval Request this week is all that is required to get this project rolling. The old M 28 makes no mention of any GSA requirements or sending out for a GSA construction manager. As we have a qualified contractor on tap standing by ready to perform this at a confirmed price using both standard or prevailing Davis Bacon wage structure, the reason for further delay is useless posturing. Those in charge are free to disagree with my assessment and I welcome the dissent. Absent any positive action this week, Mr. Walsh or I will begin my legal quest to correct this at the Court.
Prompt attention is requested because any further delay will confirm one of two things: either an unwillingness to honor the BVA decision or an arbitrary refusal to act on the VA Secretary’s part. I do hope you understand my dilemma. I have been patient and awaited action now for eight months. Any further delay can only be, and indeed will be, construed as an implied denial. Mr. Walsh stands ready to file the Extraordinary Writ of Mandamus if I do not see tangible written progress this week in the form of a signed VA 21-8872. I would have hoped the Veterans Administration would have realized the tenor of my resolve after four long years of appeals and the filing of my last Writ in January 2015.
You indicated that once this surpassed $2,500.00, it was “above your pay grade” to authorize, Kris. I would strongly advise that I be put in touch with Seattle VA director Pritz Navaratnasingam in order to avoid this confusing chain of command of who is, or, perhaps, who is not, truly in charge. You have my telephone numbers. Should Mr. Navaratnasingam feel it beneath his station to discuss this with me directly, please have him contact Mr. Walsh. He can be reached at 269-962-9693. I don’t seem to be able to impress upon anyone there the enormity of the consequences of further delay. I am sorry that you have been caught in the crossfire and become a de facto message runner. A little foresight by your superiors and a professional hands-on approach could have avoided this contretemps early on. Sadly, it was lacking.
In the event you eventually become my VRC on this project, I do hope this unpleasantness can be put behind us and we can accomplish this in a professional manner. You have been very personable and easy to deal with over the ensuing four years we’ve been acquainted. I respect your professionalism and your willingness to roll up your sleeves and dig in to accomplish it. It’s unfortunate that all VA employees do not share your VA commitment to core values. I sincerely hope you can convey the urgency (and necessity) of a prompt response this week to the responsible individuals.
Dog and Pony show reponse
Sorry to get back to you late on your email. I am waiting on further orders to proceed, if it is me that will assist?. I know that your case has been picked up by a GSA contractor and things are progressing.
Returning the VA Badminton volley
I fully understand your predicament of being the tail end Charlie in all this but please understand that I am a very much a stakeholder and have what most would consider to be the majority interest in this matter. My confidence in VA, based on their prior performance metrics in all areas of the VHA and VBA I have come in contact with leads me to believe this will drag on endlessly or move at a glacial pace.
As an aside, from looking at the VA’s VR&E organizational chart, each VR&E regional office is autonomous and the Washington DC central office has no command/authority other than an advisory role. Other than keeping track of monies spent on the IL program in order to avoid budget problems, the sole authority for the administration of the ILP lies here in Seattle- presumably with Mr. Boyd. Since I cannot seem to impress upon him the urgency this matter requires via my communications with you, nor begin a dialogue with him, I will proceed under the assumption that there is no game plan.
Absent any other dialogue, a signed IILP or proof of intent to comply with the BVA decision, I will proceed with the Extraordinary Writ of Mandamus next week. I had fervently hoped to avoid this but see no other “lever” to pull to obtain compliance. Ignoring even the extraordinary delay in the implementation of the grant, the recalcitrance of those in charge to communicate (other than you) is very telling.
Integrity, Commitment, Advocacy, Respect and Excellence (ICARE) are the core values repeatedly expressed by VA but all seem to ring hollow here. You do realize that absent your involvement, I have never had any meaningful conversation on ILP- let alone commitment or advocacy from higher authority. The most important element (excellence) is non existent from my perspective.
Buckwheat standing by on 118.9…
VA now dials in on the email and reconsiders its stance. By now, my VA resume is becoming known all the way back to DC… Oh God, please. Not the Ex Writ again. Somebody send this moron a email and tell him we’ll get to it when we get to it. Who does he think he is?
Stand by…Urgent traffic follows. Repeat, urgent traffic
We acknowledge that this has been a long process and we thank you for your patience on what you may interpret as our unwillingness to honor the BVA decision or an arbitrary refusal to act on the VA Secretary’s part. The earlier delay in providing services was because your request is a highly unusual independent living request that required us seek(sic) advisory opinions from our higher headquarters to answer questions raised about the delivery of services. I would also like to clear up a few misconception (sic) you may have about the process, this is not a grant, but a service delivered by VR&E Services. [fragment/run on sentence. consider changing] The greenhouse you are requesting must be provided by VR&E Services and we must certify both at the beginning of the process and again at the end of the process that it meets the required intent.
Although we are the regional representatives of VR&E Services, we cannot deviate from prescribed policies and practices for delivering those services. As vocational specialist (sic), we are not trained or prepared to oversee major construction projects, therefore we had to submit your request through the regional contracting office to solicit bids for a Construction Manager that will be assigned to work with Mr. Hollaway to deliver the services prescribed. I contacted the contracting office today and they are working to bring closure to your bid process, they anticipate another 30 to 45 days for completion. The intervention by a Construction Manager is necessary because in the past there were concerns raised by reviewing officials, permitting officials, as well as rehabilitation counselors themselves about assigned construction projects, therefore VR&E Services changed procedures a few years ago requiring the assignment of Construction Managers to provide guidance and expertise on these IL projects.
Again, I thank you for your patience on this endeavor and hope as you do that it can be accomplished as soon as possible. If you have further questions or concerns, please contact your Vocational Rehabilitation Counselor, Kris Holloway at (206) 341-XXXX.
Apparently, all that tank driving and jumping out of airplanes created some cognitive disabilities on the proper construction of tenses and sentence structure. Telling me how the ILP works is like reading the New Testament to Jesus. Telling me the VA is proceeding as fast as they can under these difficult circumstances but still needs another month and a half merely reveals that they’ve been denying Veterans’ ILP claims for so long they’ve lost the knowledge of how to grant and administer one. In VR&E circles this fustercluck seems to have devolved in Boldly Going Nowhere at sublight speed. When in doubt, put it in neutral. Ask for a shout out if they won’t let you call a friend.
The end of Patience arrives
Attention: Mr. David W. Boyd, Ms. Karolyn D. Hannem, Mr. Kris M. Holloway
May 14, 2016
Please make sure this email is copied and filed in my VR&E claims file.
After perusing my VR&E files and the September 4, 2015 Board of Appeals decision in the affirmative, I concur with your assessment that an IL program is not a “grant” per se. However, it does not become a “service” as you maintain, until an entitlement is established. The entitlement began over eight months ago. The appeal was advanced on the docket for good reasons. Further delay is unwarranted. VA has had ample time to learn this entitlement process as the law (38 USC § 3120) was promulgated and passed by Congress in 1981.
Please review the three findings of fact by the Board of Veterans Appeals Veterans Law Judge Vito Clemente. I list them here (paraphrased) for you.
1) Veteran is severely disabled and vocational path is not currently feasible. VA has been in constructive possession of the medical knowledge since 1994.
2) Veteran is housebound in fact and has a well-documented years-long hobby growing vegetables and fruit. Disabilities clearly and unmistakably of VAMC record document photosensitivity, intolerance to cold exposure and sometimes requires the use of a wheelchair or walker. These disabilities are well-known to VA and most are, in fact, twenty year protected ratings. VA has been in constructive possession of the number of unheated, non-ADA compliant greenhouses on site (1) since July 6th 2011.
3) Based on the facts in this case, the evidence is at least in equipoise regarding whether having a heated, ADA-compliant greenhouse would allow the Veteran to function more independently in the family and community without the assistance of others or a reduced level of the assistance of others.
These findings of fact were all evidence of record (EOR) in 2011, 2012, 2013, 2014 and 2015. It took four and one half years to arrive at a correct decision based on these facts-including the appeal. None of them materially changed in the interim other than a net increase/severity in disabilities. In that same four plus years, a November 21, 2012 Notice of Disagreement (NOD) of the denial was “lost” as well as a rebuttal to the May 7th, 2014 SSOC timely filed on May 21, 2014. The VA hews to an interpretation of VA law that it is presumed the employees and the agency are well-versed in 38 CFR. This is called the Presumption of Regularity and is much discussed in Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (“The [presumption of regularity] doctrine thus allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary.”); Mindenhall v. Brown, 7 Vet. App. 271 (1994) (this presumption of regularity applies to procedures at the RO). Butler also states, however, that what appears irregular is irregular. For over four years, the Seattle VR&E personnel have been laboring under the misconception that avocational pursuits (read hobbies) are not covered by the IL Program. Further, important legal filings in constructive possession of VA employees have been lost or misplaced voiding the presumption of regularity doctrine regarding handling of submitted claims evidence.
Any statements claiming to have perused my voluminous 10,078-page claims file and taking note of my physical limitations regarding harmful exposure to sunlight and cryoglobulinemia (cold sensitivity in extremities) simply does not comport with the facts in the denial. The Veterans Law Judge was amply clear on this inasmuch as the denials did not even mention the disabilities. Each and every discrepancy above voids any protections afforded the VR&E that employees properly discharged their duties. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (“‘[I]n the absence of clear evidence to the contrary, courts presume that [Government agents] have properly discharged their official duties.'”).
Once this presumption is violated, the afforded protection is null and void. This is now where VA’s Seattle VR&E finds itself, ladies and gentlemen.
In light of these failings, I hope VA can understand my position. I have been forced to litigate nonstop for almost twenty two years to obtain my correct disability ratings due to a misinterpretation of the regulations. Now, I find I have invested another four plus years in litigation over a VR&E program- again over a VA misinterpretation of their own laws. VA lost my filings needed to timely appeal or rebut my VR&E denial. I had to prove I had timely appealed my greenhouse denial in order to reinstate it. VA dismissed or made light of my medical disabilities which clearly and unambiguously demonstrated entitlement to this ILP “service”. For Seattle’s VR&E Officer to suddenly come forward eight months after the long-overdue “entitlement” was awarded to explain the interminable delay is welcome news. However, it is long overdue and explains nothing. VA has now been administering the IL Program for over thirty five years. Familiarity should be a given with the process by now.
VR&E has been engaged in this endeavor since my submittal of Form 28-1902w on March 18th, 2011. Bremerton intake specialist Colleen Grainey, initially declared that there was no such thing as an Independent Living Program (May 4, 2011). VA has been adversarial ever since. Mr. Holloway steadfastly maintained on July 6th, 2011, and Mr. Boyd signed off on it, that the Vocational Rehabilitation program under ILP did not permit “avocational” pursuits. This assessment directly contradicted VA’s Office of General Counsel (OGC) legal precedent 34-1997 decided November 5th, 1997. Since the OGC(021) precedent specifically addressed a) recreational applications and b) a request for a computer and peripherals, my cite to it for legal purposes of my “entitlement” was on point. The VR&E officer never addressed this precedent. My computer request had to be “granted” by VR&E’s Central Office via Administrative Appeal.
The Veterans Law Judge alluded to a litany of denials throughout the process that were either poorly reasoned or unsupported by VA”s own VR&E regulations and OGC precedents. I have no reason now to expect any different, nonadversarial treatment which is why VA may perceive my tenor as uncalled for or overheated rhetoric. Absent any communications or explanations from your office, my status as a stakeholder in the IL program essentially has been as an observer and little more. Worse, my concerns and queries about this process go unanswered or denied without legal sufficiency.
Please consider this thirty (30) day notice that absent any meaningful effort to begin an active, meaningful colloquy, my representative will resume efforts to obtain compliance with the BVA decision.
Please try to communicate soon when you require full-time access to the site for commencement of construction, a good faith timetable for construction and completion as well as confirmation of contact with Karen Meister, Farmtek’s IL Proogram Coordinator. Farmtek is licensed and bonded to install their products and are VA approved contractors according to Ms. Meister. Contact information on the GSA contractor Mr. Boyd contends is assigned to the project is requested as well.
On the advice of my representative, I have decided to wait to file a Writ with the Court of Appeals for Veterans Claims (CAVC) petitioning for compliance. Absent any substantial evidence of progress on VA’s part within the thirty day notice, he will revisit the decision.
PITA 6 Actual is standing by on 118.9 Meg, over.
Cc: Robert P. Walsh Esq.
This is what I loosely describe as the “Bull in the China Shop” approach. My Win or Die technique has stood me in good stead for these last two decades. From what I gather, it is starting to pay off. I’ve never had VA apologize for any of their transgressions so I’ll take this as a quasi-white flag. We shall see what 30 days buys.