That’s all she wrote, Cap’n

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-g-house-2Bruce 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.


Dear Kris, 

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.


Buckwheat sends

Dog and Pony show reponse

Dear Gordon,


About asknod

VA claims blogger
This entry was posted in All about Veterans, Independent Living Program, KP Veterans, Porphyria Cutanea Tarda, Presumption of Regularity, VR&E and tagged , , , , , , , , , , , , , , , , , . Bookmark the permalink.


  1. Sherry says:

    WOW! That write up was incredible! I can’t wait to read how this all turns out. You use words to describe like nobody I have ever seen, it flows like butter. Sure hope they get the message.

  2. david murphy says:


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