Almost right on the money, the Seattle VR&E Insurance Adjusters are mounting up a posse to head off that Grahambo troublemaker. He’s got their ass in a terrible jam, fifty years later after Viet- Nam. Last week, once again, Mr. Holloway drew the short straw and was elected to call and ask about afternoon tea soon to discuss when and how the new greenhouse would be situated. I’m pretty sure they weren’t coming over with a portfolio of choices to decide which one was themed better aesthetically. Come on guys. I wasn’t born at night and the USS Mayflower is not tied up outside my front door. I know VA better than that by now.
All funnin’ aside. As some know, I filed an Extraordinary Writ of Mandamus with a standard filing fee of a U.S. Grant coupon. I now am CAVC #16-2098 in the able and very liberal hands of Judge Meg Bartley. I begged for my by now 10-month delayed delivery of my promised greenhouse. I predicted a response in 30 to 45 days of the 10 June mailing. Since we’re talking about the VR&E who have time to burn, it occurred sooner. The weightiest thing they have going this month is to deny Johnny Vet’s ILP request for a riding lawnmower. That’d be the Johnny that ate the IED outside Fallujah in 2003 and lost both his legs. The same Johnny who is on SMC O. How do they summons up the gall to make those denial decisions? These fellers are making $114 K and $101 K a year to deny a Vet a one-time shot at a greenhouse. The problem is the same two have been denying me for over five years. Add them salaries up and you see One Million and sixty six thousand dollars devoted to a denial which turned out to be wrong to boot. Shocked. Did I mention I was shocked?
I digress. It took 27 calendar days to make the phone ring. In keeping with the spirit of the summer (Independence Day weekend), I scheduled the conference and the ceremonial signing of the Individualized Independent Living Plan (VA Form 28-8872) for the day after my VA Agent’s test. Mr. Holloway was equally cool, calm and collected. No mention of Extraordinary Writs arose. It was as if quite coincidentally, The VR&E had suddenly made great inroads in the delay and had finally hired their On-site Construction Manager. It was now time for all to sit down and sign the memorandum of understanding. No flies on VA.
WEDNESDAY, 13 JULY AGENDA
This is where it gets humorous. My secret weapon at Congressman Kilmer’s office, Nick Carr, is letting me borrow the Congressman’s Veterans Affairs technician, one Eric Williams, to sit in next Wednesday and officially represent the Congressman. This should be an eye opener for him.
Meanwhile, at the suggestion of certain VA VACO employees in DC, I was strongly urged to call Secretary Bob and tell him about this. Since shit rolls downhill, it was theorized that bitching at the top would provoke a call to the VR&E office and a status report. Then certain folks could become involved directly at the behest of the Secretary. This will elicit a microscopic review of just what in Sam Hill is transpiring in Seattle.
Add in the pressure to deliver a report or status update to the OGC (027) about the Extraordinary Writ before July 24th and you have the perfect storm of employees running around who don’t know whether to shit or go blind. Pardon my salty French.
What has happened is painfully obvious. The BVA Veterans Law Judge (VLJ) was looking at New and Material Evidence submitted with a Waiver of Review by the Seattle VR&E chowderheads in the first instance. Since the RO pukes were so rude as to throw my timely filed May 22, 2014 SSOC rebuttal into the circular file and fail to read it, VLJ Vito Clemente accepted it for the first time into the record during the April 2015 Travel Board Hearing. By law, the VA has to consider that evidence as it is far more current and immensely probative of the here and now-not 2011. Think of it as a Fenderson Staged Rating. I filed in 2011 but I’m far worse now. The ILP accommodations have to be commensurate with my current physical capabilities- not what I was capable of in 2011. Similarly, what I asked for then and what I ask for now is immaterial. VR&E has to fashion the fix to the circumstances. One size greenhouse does not fit all circumstances or disabilities. Think of this also like Clemons v. Shinseki. I’m not well enough versed in the arts of ILP to know what size greenhouse I need. I just know I need a larger greenhouse. VA is obligated to determine how large that should be on a case by case basis.
Let’s compare this to a regular claim for compensation, too. I’ve now satisfied the three Caluza Elements. Mega-disability, a need for a repair order and a track record at this hobby. It is tantamount to winning at the BVA. Vito remands it back to Seattle where our VR&E Ratings Rangers are paralyzed from the neck up. They stare at it for 4 months and punt it to VR&E VACO (Central Office Hqrs.). The Big Poohbahs figure out how to shrink it into the smallest square footage permissible and still call it ADA. Oh, and absolutely no grow lighting permitted. This would be feasible if I was going to grow mushrooms.
So the claim is granted and the rating is a standard lowball. VA bets 15’X 20′ Spartan Model. I see them and raise it to 24 X 48 with growlux and hydroponics. Next Wednesday we’re going to discuss the documents below and the marked up areas in the BVA Decision.
Judge Clemente has left a treasure trove of legal findings for the Ratings Rangers to follow in order for this to be legal. A greenhouse with no storage means having to go outdoors to bring in supplies. A greenhouse without hydroponics means a lot of heavy lifting to get potting soil inside. This means a lot help from family and friends-quite the opposite of the objective of Independence in everyday living without the help of others.
Playing ILP poker is a science. The counselors are fond of trendy terms like ‘self-actualization’ and freely bandy about the term ‘independence’. When it gets down to it, VA’s independence in everyday living metric is being able to get up from the water closet all by yourself using their famous IL grab bar (stainless steel antimicrobial). Having hydroponic tables in a well-accoutered greenhouse is so far off their radar as to be inconceivable.
This is no longer humorous. The date of the IILP was July 7th. That meant it was drawn up several hours after my email in a fit of pique. Who knows how long they’ve been sitting on this 15 X 20 foot floor plan? I wager it wasn’t arrived at on the Left Coast recently. Here’ what I did that got me coal in my stocking:
In your recent phone call you mentioned you had a brief (working paper)summation of what was being considered on the greenhouse parameters. Before we meet, I would appreciate a copy of it or an IILP you might be considering for my signature so we can accomplish this in one visit. If we are not in substantial agreement on the goals, the actual size and configuration of the greenhouse or what VA considers a “reasonable accommodation”, your drive over would be a waste of time.
I have striven over time to be an active stakeholder in this but the lack of information is causing an irreparable breakdown in communications. This is what prompted my filing to the CAVC. The VA Secretary, as you probably know, has until July 24th, 2016 to respond to that current Extraordinary Writ petition before the Court. I was hoping I could file a Petitioner’s reply brief afterwards saying we have reach a mutually agreed upon modus vivendi. Absent any input or a beginning dialogue until we meet face-to-face is counterproductive and will only lead to further delays.
The Farmtek ILP coordinator, Karen Meister, was given the full list of my disabilities and asked to craft a bid that hewed to the medical shortcomings and the ADA nature of my disabilities. A 24 foot by 48 foot greenhouse will encompass the same area I presently have under cultivation. ADA requirements also show a need for two entrance/exits at opposite ends. Due to my 6 ventral hernias and permanent lifting constraints of 10 lbs., using potting soil is sadly no longer an option. This was discussed in the opening colloquy with the Veterans Law Judge. We impressed upon him that 38 CFR § 21.160(a)’s “General” introductory statement encompasses all disabilities-both service and non-service connected. Any IILP must take all my disabilities into account. Simply providing a covered structure with a 120VAC outlet and a water spigot will not suffice to satisfy the BVA findings. I hope we are clear on that. As you may be aware, too, my rated disabilities have increased to dramatically to 100%,100%,60%,40%,30% and 10% since my original filing in 2011. These percentages do not include my Crohn’s disease, numerous hernias or balance issues. Merely trying to comply with the original 2011 greenhouse parameters is no longer a limited option left on the table now.
Obviously, if the The VR&E parameters fail to encompass the BVA findings and appeals language, we will shortly find ourselves at an impasse before we even sit down. VR&E already finds themselves on shaky ground and in violation 38 CFR § 21.192(a)(2). As of today’s date, it has been ten months and two days since the BVA decision was released. As this is a matter of first impression before the Court, it is possible Judge Bartley may construe it as essentially an arbitrary refusal to act on the VA Secretary’s part.
Additionally, as covered in 38 USC § 3107(a), the statute clearly states:
Such plan shall be developed with such veteran and shall include, but not be limited to
(1) a statement of long-range rehabilitation goals for such veteran and intermediate rehabilitation objectives related to achieving such goals,
(2) a statement of the specific services (which shall include counseling in all cases) and assistance to be provided under this chapter,
Court Of Veterans Appeals precedence unequivocally states that the usage of the verb “shall”, as opposed to “may”, clearly and unmistakably demands compliance with the regulation. 38 USC § 3107(c)(2) :
In any case in which a veteran does not agree to such plan as proposed, to such plan as redeveloped, or to the disapproval of redevelopment of such plan,
such veteran may submit to the person described in section 3106(f) of this title a written statement containing such veteran’s objections and request a review of such plan as proposed or redeveloped, or a review of the disapproval of redevelopment of such plan, as the case may be.
See also § 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.
It would be preferable to sit down with a preconceived idea of VA’s intentions to avoid further discord or misconceptions. As I have no knowledge of hydroponics, I am hoping for some guidance or educational instruction along the lines of what was provided to me on the 2012 ILP computer services from Jim Moss. We all desire the same outcome-one free of dissention and disagreement. Towards that end, it might be time to begin our own colloquy towards a mutual agreement of what will be provided as opposed to a one-way, dictatorial statement of what VA is prepared to offer. As mutual stakeholders, it is imperative to communicate openly and frequently to accomplish this in a timely manner. Absent that, we are merely working at cross purposes and may never find common ground.
On another note, during your last visit, I asked you to submit a request for the Lexis Nexis Veterans Benefits Manual and supporting CD disc. I am sitting this month for the VA nonattorney practitioner’s test and am desirous of having the materials to assist in my future preparations for helping Veterans. VA’s laws and regulations, as well as the M 21 and M28 change frequently. Absent any updates, my pro bono work stands a chance of being incorrect or inaccurate. Since VA’s VR&E program is increasingly shrinking in the number of Veterans helped, this should not impede or grossly impact other deserving seriously disabled Veterans as defined in 39 USC § 3120. I note for several years now that the VR&E has been unable to identify (only 1,426) and award the full compliment of 2,700 individuals authorized by law to entitlement to the IL Program. VA’s own IL Case Reports show in FY 2004, Seattle had 41 successful rehabs versus the 7 recorded in FY 2015. Either the number of severely disabled Veterans is in decline or the program suffers gross underutilization. In any case, there appear to be ample funds available and waiting to be awarded. I would appreciate an update on that request when I see you on the 12th unless you have information on the status presently. Presuming an inevitable denial, I would respectfully request you send it back to VR&E VACO for Administrative Review as soon as possible.
Without a VR&E position paper on what is proposed, any potential agreement will be stymied and your valuable time wasted. I’m fairly sure we don’t want that. In the event you cannot supply me with the documents, we should reschedule our meeting until we have a mutual understanding hammered out that will be productive and a viable IILP that encompasses what the BVA held in its findings.
I look forward to a timely response and the requested documents.
Zero Hour’s 10 AM. I expect the Jesters will all be in high spirits for a minute or two until Eric is introduced. The garden is in full bloom for inspection. The original cold frame cum VR&E greenhouse will be open for viewing. A good time will be had by
all some. I expect a lot of huffing and puffing over a failure to sign the IILP will ensue. I consider not signing the IILP a symbolic NOD and an inferred request for an Administrative Review. Or, we can talk turkey and get it over with.
And that all I’m gonna say about that.
This is the fifth installment of the Extraordinary Writ #16-2098. To view the next one, click here