If you’re read my book, you know playing VA poker is an art form. You keep your cards up and don’t let prying eyes see what you’re holding. Yeah, I know the drill they espouse. “Whatdaya got? Send it allllll in. Denied. Got anything else? Sorry, nexxxxt? Now serving Number 44.” Well, every once in a lifetime, if you’re a packrat like Butch Long’s lovely wife, you luck out and hold on to the Holy Grail of contemporary evidence that allows you to get in your DeLorean and go back to 1970.
Early on, Miz Long showed me Butch’s Special Court Martial and said she’d kept it but was embarrassed somewhat that Butch had to go through this at the end of his career in the Army. I said we didn’t need it in the scheme of things to win as Butch positively glows in the dark in an x ray machine with all that metal. His eye has healed for the most part except for the blank spot. He still gets herking earaches but they aren’t constant. So, from the standpoint of submitting it to ensure a TDIU or 100% rating, was superfluous.
On the other hand, when VA gave him the ultimate bitchslap and a bare minimum for most of that retained gook metal, I began taking another look at the court martial to see what it really said. This is why I love timelines. Think about this. The attack on LZ Cork occurred January 18th, 1969.Butch was hospitalized for two and one half months recuperating from a 60 mm gook mortar round that went off several feet away from him. Several feet as in 2 or 3. He survived, just as some of his platoon mates like Bob and Dennis did nearby when another mortar landed in their midst. Now let’s move forward. Approximately the first week of April 69, Butch was discharged and temporarily sent over to Treasure Island or Oakland to a make-work job. He still didn’t have any medals and was a low man E-4 draftee on the totem pool. All those stay-at-home E-5 and E-6 lifer pukes had it in for him. He got the nastiest jobs and the shifts no one else wanted.
Butch still suffered from poor eyesight and his hearing was toast with all the pus draining out. He got in trouble. He was living in a hotel off base and his wife had a ten-month old daughter. She was also pregnant with number two. He’d had to borrow some money from the Red Cross just to make ends meet because Payroll wasn’t including the spouse and housing in his paycheck. He was frantic to find an apartment and get settled in. It all hit the wall in early September-just five months and some change after he was discharged from the hospital with a profile. He still was getting bad headaches and had all the symptoms of TBI. He was discouraged from even going on sick call because he was on report for being perennially late. And then he missed a reporting time-completely. He’d misheard when he was supposed to be there. Instant AWOL. Instead of reviewing his folder and figuring out he wasn’t hitting on all eight cykinders after the TBI, the big boys decided to make an example of him.
Butch was railroaded into the Special Court Martial and told to plead for mercy. Mercy, on October 14th, 1969-a shy eleven months after he was almost blown to Kingdom Come- was a five-month stay in the stockade, reduction in rank to E-1 with forfeiture of 2/3 monies, and separation the day he exited the stockade. April Fool’s Butch. Just kidding. Here’s your Honorable Discharge. Sorry. No money for your wife and child. Shit Creek had just turned into a raging river for Butch, Barb and his daughter.
Here’s Butch’s plea for mercy:
Mercy, from the US Army came in this form:
VA, in turn, three months after discharge, gave him 10% for a scar or two on his arm, ignored his claim for retained metal in his noggin and rt. eye and a goose egg for the hearing in spite of PULHES scores of 3 on hearing and vision in the right eye before his discharge. Look up Bum’s rush in the VA dictionary and there’s a picture of Butch.
Forty six years later, after VA conceded they might have missed a few muscle groups and the Bent Brain Syndrome when they did the 1970 comp. and pen. exam, upped his 10% to 70% TDIU effective April 2015. As racist white folks back in the 50’s were wont to say sarcastically “That was mighty white of them (VA) to finally make it right”. The big problem was they hadn’t even scratched the surface of his claims in 1970. Much was left undone which meant it was still open. VA likes to drag out the “Hey, dude. You had plenty of time (one year) to pitch that bitch and we never heard from you so it is now deemed denied.” In other words Butch Long, juris doctor and lawyer, should have known he was supposed to appeal or it was a done deal.
Which brings us to that packrat problem with Miz Long’s. Butch’s Special Court Martial, all 39 pages of it in its original blue folder, had been handed to her the day Butch was interned. Since it is dated during his service time, it falls into a special kind of evidence. 38 CFR §3.156(c)(1)(i) fits this to a T. By keeping back some of his evidence, this last Silver Dollar is the “I’ll see you, raise and call” for Butch. The problem is that VA is choking.
To date, they’ve asked Butch to separately “open” a claim for TBI and ear problems. They’ve demanded he sign a 4142 and 4142a for a fruitless search of more medical records. They have tried to bifurcate his claims into two piles of CUE and the ones listed on the NOD. They insist he will have to “reopen his old claims” in order to ask for a de novo review of the 3.156(c) evidence. They went so far when my Congressman asked for info as to say his Release of Information to the Congressman had “expired” and he’d have to get a new one. In spite of the claim for shrapnel in his left arm/hand at his Court martial, they even refused to x ray it. We had to go out and have it done privately to submit to VA because they said we had not submitted any proof of it yet. Seems they could have looked at the court martial records and spotted it. Or not…
Now, to add insult to much injury, Butch and Barb recently lost their house. I dutifully informed VA they were technically homeless and after 56 days they called me and asked “Whazzup?” VA’s repair order was
- Butch is getting 100% so he has enough to rent a motel room
- If he has two old dogs, he should get rid of them so he can rent a motel room
- If he didn’t smoke, he could rent a place. Who cares if he has to sign a year’s lease?
- If they insist on living in his kid’s garage and waiting for us, we may decide he’s loony tunes and get him a fiduciary.
- It will take 45-90 days to get his claim done even if he’s homeless.
- He’s probably getting SSI too so they aren’t broke. See also #1.
- It sounds like he’s gaming the meaning of “homeless” to get his claim done ahead of others.
This is a perfect example of why you always keep an Ace as a hole card in this VA poker game. Here, we were lucky. Had we not had it, VA would bifurcate this thing to death and run Butch through the hamster wheel for ten years before relenting. Getting them to come to the table is hard when they are in shock.
And that’s what we’re up against. VA is blowing bubbles because they’ve taken a look at the historic compensation tables for 100% from 1970 to 2016 for a spouse and four dependents and it’s downright ugly. Merry Christmas Butch. Eventually. One of these Christmases, anyway. These things take time.