I love the Court of Appeals for Veterans Claims (CAVC) method for Extraordinary Writs of Mandamus. Just like those fabled Chinese dry cleaners’ claims of ‘In by ten, you come get when little hand on three.’, my Ex. Writ was ‘in’ June 13th and out August 25th. In 73 days I have accomplished more behind-the- scenes fact finding than I ever hoped to. In the process, the Writ precipitated the need for a quick Office of General Counsel (OGC 027) answer with virtually no time or opportunity to stage the crime scene.
As we all know, helter skelter adjudications at VAROs across our amber-waves-of -grain Nation are frighteningly similar, devoid of logic and all denials seem to be eerily similar. With the introduction of the Fully Developed Claim (FDC) and the Disability Benefits Questionnaires (DBQ), everything sped up at the VAROs. What never changed was the 85% denial rate. Instead of the duty to assist you, your claim submission, replete with all your legwork, relieved the VA of the responsibility. They oblige us by cranking out denials in half the time.
Having the ‘foreknowledge’ of what is coming, and the new electronic world of blogs on the subject, far more Veterans are now involved in pursuing their claims pro se. Ex Writ folks like me who know about it, have discovered you can go even further and ‘buy’ instant justice. For $50.00 and mass quantities of USPS postage stamps, you-Joe Average Vet- can wreak havoc on the VA and usually, in the process, get your claims promptly adjudicated or sped up dramatically.
My filing for the Extraordinary Writ was designed to bushwhack the VR&E Poohbahs before they finally got around to dealing with me. It was axiomatic that they were going to try the bait-and-switch and offer a Visqueen® igloo with two doors and an electric space heater. Often times in the judicial arena, much like a chess game, it pays to pre-position your weapons (knights, rooks etc.). In my case, it was a careful ballet to make sure Judge Bartley would get to see VA’s true colors in real time. In that respect, the VR&E pukes more than complied by lying -on the record, no less.
The decision is well written and Saint Meg admirably summarized the VA’s shortcomings. She gave them what few of her fellow Judges would. That is, a gentle summary of all their faux pas’ and a wise piece of advice in hoping this did not grace the Court’s dockets ever again in the future.
Our legally challenged VR&E bosses in Seattle also inadvertently revealed that all the denials, NODs, Form 9s, SOCs and SSOCs were the substitute for “repeated consultations with Mr. Graham”. No meetings, no conference calls, nada, nothing. This, too, is vintage VA chutzpah.
Here’s a recent abstract of emails on this “repeated consultations” subject.
… My desire for the Veterans Benefits Manual is the same as the need for my computer-to help other Veterans attain their rightful benefits. This has always been the focus of my Veterans advocacy along with my website asknod.org. It is a volunteer effort and fits in nicely with my original request for an ILP computer program which you closed out in 2014.
If the VBM request is not feasible under the current plan or incompatible with a new IL Program request, please go ahead and transmit it to Mr. Boyd so he can perform the appropriate “administrative review”. According to VR&E Services, if you are indeed the case manager as it declares on my file, then you have to transmit it to him for his “review”. If Mr. Boyd finds it is not required to achieve “independence”, please instruct Mr. Boyd to write it up as a denial and forward it to VR&E Services for their Administrative Review.
As Mr. Boyd does not answer my emails, this task appears to fall to you as my case manager of record.
Regards Gordon A. Graham
Aug 12 at 8:42 AM
Yes, case manager, Vocational Rehabilitation Counselor (VRC) is the same terminology. I am assigned to your case as the case manager. In your reference below, at that particular time and event, I did not have access to your file but I was still your case manager. As an example: If your file went to CO headquarters for 3 months or at the Board of Appeal for 6 months, I would not have access to your file but I would still be assigned as your case manager. A decision could be made in your case and I may not know of the decision but I would still be assigned as your case manager. I hope that helps. Have a great weekend!
Aug 12 at 11:15 AM
I guess my next question would be inevitable. If you were and are currently my case manager, would it not seem odd that we have yet to meet and sit down and formulate an IILP as stipulated in 38 USC 3107(a) and 38 CFR 21.92(a,b,c,d). You are familiar with the requirement that you, as the Counseling psychologist and/or the VRC, are primarily responsible for creating an ILP jointly with the Veteran (me)? When, exactly, did that occur since the BVA decision September 4th, 2015- or should I ask, when is it slated to occur, if ever?
38 U.S. Code § 3107 – Individualized vocational rehabilitation plan
(a) The Secretary shall formulate an individualized written plan of vocational rehabilitation for a veteran described in section 3106(b) of this title. 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, (3) the projected date for the initiation and the anticipated duration of each such service, and (4) objective criteria and an evaluation procedure and schedule for determining whether such objectives and goals are being achieved.
- 21.92 Preparation of the plan.
(a) General. The plan will be jointly developed by Department of Veterans Affairs staff and the veteran.
(b) Approval of the plan. The terms and conditions of the plan must be approved and agreed to by the Counseling Psychologist (CP) or Vocational Rehabilitation Counselor (VRC), the vocational rehabilitation specialist, and the veteran.
(c) Implementation of the plan. The vocational rehabilitation specialist or CP or VRC designated as case manager has the primary role in carrying out Department of Veterans Affairs responsibility for implementation of the plan.
(d) Responsible staff. The CP or VRC has the primary responsibility for the preparation of plans.
Please also supply me with the dates of the alleged “repeated consultations” Mr. Boyd referred to in Item II.#6 of his July 7th, 2016 Declaration Under Penalty of Perjury regarding the joint formulation of my IILP as I seem to have misplaced my records of their occurrence. As my Case manager and VRC, I presume you should be able to supply me those records. If not, please be so kind as to ask Mr. Boyd for a copy of them.
respectfully,/s/Gordon A. Graham
Aug 16 at 3:13 PM
The IILP was derived from the Statement of the Case, your appeal documents, VBA recommendations, Rehabilitation goals and identified needs as it relates to being able to perform; as in your case, “access” a greenhouse activity, heated and ADA standards. You had made proposals such as Hydro-phonics [sic], computer monitoring, minimal door way access requirements, ADA accommodations, and year-round access; thus an IILP was developed. The IILP was sent to you ahead of our appointment, as you requested to review. I agree that all the requests that you proposed for development of the IILP was not what you wanted but it was developed upon the above standards and guidance, and what your needs are from a justifiable and rehabilitation manner. In the IILP goals and objectives that was presented, it would accomplished the I.L. needs and goals of rehabilitation, which is to be independent from others in performing an activity of daily living.
Technically, what you are disagreeing with( not to put words in your mouth and with all due respect), is that the services that were derived, from a I.L. rehabilitation practicality is not practical or in agreement according to your standards, wants or what you wanted to accomplish in meeting your needs; whereby you are submitting a Notice of Disagreement.
Mr. Boyd, VR&E Officer; Don LaFord, contractor and myself met with you and we did discuss the IILP and we did say that we wanted to come to some agreement. We did work hard with the PWS and IILP rehabilitation needs but we were not able to agree. Thus, you prepared a Notice of Disagreement.
Mr. Boyed[sic] now has your CER folder and is preparing a statement to you regarding my Case manager’s decision; which is the next step in the NOD. Even though he has the case, I am still your case manager, just to clarify.
Aug 16 at 5:15 PM
Thank you for the explanation. I guess we will have to differ on what Miriam Webster defines as “jointly develop”.
Please note for your records, I am not filing a Notice Of Disagreement (NOD) with anything so far. I have asked only for a review under 38 USC 3107(c)(1,2). A Veteran cannot file a NOD after he has “won”. I provided Mr. Boyd a signed copy asking for a review of the IILP as required by statute and regulation during his visit on July 13th, 2016. That is far different than filing a Form 21-0958 Notice of Disagreement. In any case, a NOD is not a judicial tool available to me. VA has already granted me a greenhouse. Judge Bartley will make a decision on whether to grant my request for Mandamus and for VA to comply with the BVA decision. Mr. Boyd should just be addressing what will go inside the structure as contemplated in 38 USC 3107(a),(2) concerning a statement of specific services. If you remember, that was lacking in the April 12th IILP that I ask for a two year ILP on. If certain requests were ignored or not included, it behooved the Case manager to define the parameters early on rather than present it as a done deal ready for signing on the 13th of July. I stated as much in my email of July 7th, 2016 before you and Mr. Boyd came over This is the whole concept of a stakeholder enterprise.
Merriam Webster, the preferred dictionary of the VA, defines stakeholder thusly:
Full Definition of stakeholder
1: a person entrusted with the stakes of bettors
2: one that has a stake in an enterprise
3: one who is involved in or affected by a course of action
Please be kind enough to inform me of the progress of the Veterans Benefits Manual denial and the Administrative Review after VR&E Services have weighed in with their Administrative Review. Since Mr. Boyd doesn’t answer my emails, I rely on you, as always, to be the eventual messenger.
I am told my file is now sitting on Under Secretary for Benefits Thomas Murphy’s desk currently. He may be the one who decides this. I don’t have any way of knowing what the ultimate decision will be with regards to hydroponics or lighting. From Mr. Boyd’s declaration provided to the Court on penalty of perjury. the IILP was developed by February 24th, 2016. Your and Mr. Boyd’s emails to me indicate you were still in the final stages of hammering out a PWS in May 2016. In fact, if you recall, you told me at our April 12th meeting that you still did not have any specifics on size. This all seems to contradict what Mr. Boyd has sworn to as fact. The March 25th, 2016 Form 28-8872 had no specifics on what was being awarded as required by 38 USC 3107(a)(2). It seems almost an impossibility for you to write up a IILP with no access to my case file or any idea of what was proposed as you claimed at the April 12th 2016 meeting.
Hopefully, we’ll get this ironed out to everyone’s satisfaction.
Gordon A. Graham
To date, Mr. Boyd and Mr. Holloway have not answered my email.
Surprise, surprise surprise Sgt. Carter.