LZ CORK–CLEAR AND UNMISTAKABLE ERROR


USS Mayflower

Arrival of the USS Mayflower  20 Dec. 2016

It’s one thing to recite 38 CFR to me and tell me what some arcane VA manual said about how to rate _____________ and under what circumstances and how the regulation has percolated down to us in the ensuing forty six years. It’s an entirely different thing to presume the USS Mayflower docked and tied up to my front porch yesterday morning.

For years, I blithely accepted everything VA told me because they were the government. They weren’t permitted to lie or deceive or misconstrue what I was trying to say. Just as the day I discovered Santa, the Tooth Faery and a lot of other childish constructs were just that- fabrications made up of whole cloth- so too did it finally dawn on me that these folks are cheating…

A big thank you goes out to  Benjamin Krause over at Disabledveterans.org for finding and publishing the old 1964 VA Schedule for Rating Disabilities (VASRD). Up until now, I searched through haystacks to find versions of old ratings and what they gave in percentages. When the VA maestros tried this song and dance avec la Moonwalk, it was too much to swallow. Of course, the deeper I dug, the more lenient the regulations were -especially for combat trauma. Remember, they modernized and modified these at the end of World War II to incorporate all the newer ways man has devised to maim his fellow man short of death. By Vietnam, nothing major had changed. In fact, PTSD was right there in Diagnostic Code 9411 in pretty much the same lingua franca as 2016. The definition as an acronym is the only major change.

Here’s a copy if you need one: 1964-vasrd-ratings

A short preface: Mr. Long has had his NOD divided into two parts and the CUE decision separated from the rest of his claims. This is after presentation of 38 CFR §3.156(c)(i),(1),(3)-wasting money to make it appear work is being done.

In the following denial of Clear and Unmistakable Error, Mr. Long contended he should have been rated in 1970 for certain injuries he complained of. He filed for perforated eardrums in 1970 and VA only gave him loss of the hearing ice cream cone without any ice cream (0%). Same for his shell fragment wounds. He filed for wounds and they gave him a rating for scars-0%.  Bait and switch.

va-cue-letter-denial-12-20-2016redact

pinocchio_4In the NOD answer, you will find how to utterly demolish this ” four Pinocchio”  type of rater’s logic and leave their argument in pieces on the floor. The tragedy is they are too stupid to understand it. Relax. You only get one opportunity to shovel all the evidence into the hopper (c-file). When it comes time for someone with a modicum of intelligence (VLJ) who is familiar with 38 CFR rather than the M 21 Fantasy Ratings Game booklet, you win. If the VLJ is dense or anti-Vet, you’ll prevail at the CAVC. It’s like a Claymore. Eventually someone’s going to trip on the wire. CUE is always won when those in charge of denying it are finally shown the error. They’ll only see it when they believe it and not a moment sooner.

Another point I always stress is to carefully read every word of a denial. There lies the path to a win. VA gets diarrhea of the mouth and says too much. Here they try to paraphrase CFR and do not even attempt to print it for everyone’s edification.

Butch’s claim is just too expensive to negotiate. It’s going to be over six figures and no one local wants that on their resume when they’re up for that GS-13 step 6 rating to senior DRO in charge of  the Special Ops lane. Worse, that’s where it is now due to the declaration of Homelessness. VA’s Congressional Interests liaison has told Congressman Kilmer’s VA Intermediary that this is a)non negotiable; b) no new N&M Evidence submitted; c) don’t understand what 3.156(c) has to do with it and d) perhaps Butch needs a fiduciary. They have suggested he quit smoking and get rid of the 15-year-old dogs so he’ll qualify for low income housing from the city of Tacoma (waiting list-3 years). VA is a veritable fountain of bright ideas. If you want to rent a house for a reasonable price in the NW, you may have to move out to the boondocks. The price is unbelievable and the terms are often a two-year lease. Take it or leave it. If you don’t, there will still be a bidding war for it. As for buying homes hereabouts, it’s even worse. Cupcake says people are buying without even looking at it- and from out of state to boot. With Cash no less. You can’t even get an appt. with the realtor to view it if you mention you’re using a VA or FHA loan.

Congressman Kilmer’s  crew has now informed the VA that Derek pinned his PH and CIB on him last year and he’s not going to stop until they fix what they screwed up in 1970. Remember, CBS loves good stories about poor Vets getting hosed  for medals or VA screwups and KIRO is just a hop, skip and an Uber up the street and over a few blocks to 3rd and Broad St. Hey, if they refuse to negotiate according to Hoyle, Kilmer has the Nuclear Option and feels strongly enough about this one to throw the first (V)A bomb of his career.

capture-101

So, VA Attorneys and agents and all you wanna be VA CUE aficionados, here’s a beautiful outline for rolling these dolts on old informal claims. An added bonus is the ridiculous assertion about only being able to rate painful scars en bloc in 1970. I’ll send in an addendum for that to be considered at the DRO hearing.  Be sure to look up Diagnostic code 7804 (1970) where it clearly allows exceeding the rating for amputation for any given extremity- read the plural “scars” as in “painful scars“. Mr. Rater is correct that they have rewritten 4.118  DC 7800-7805 since 1970- but most assuredly not in a more Veteran-friendly manner. In fact, Part 4, over the ensuing 46 years,has experienced quite a bit of revisionist history.

38 CFR§4.118 Schedule of ratings- Skin Diagnostic Code 7804 Scars, superficial, tender and painful on objective demonstration (1970)——————————–  10%

Note: The 10% rating will be assigned, when the requirements are met, even though the location may be on the tip of a finger or toe, and the rating may exceed the amputation value for the limited involvement.

But not according to Seattle’s CUEmesiters…

Here’s the 21-0958 redacted. Mr. Long has given me written permission to use his ratings fiasco as a teaching moment. This is not a drill. It’s eighteen pages of horribly redundant logic pounded in repeatedly with a  1970 CFR hammer. VA loves to use this technique and restate the obvious about 3 times in a denial or SOC. Here, we merely provide sauce for the goose to simmer in.

cue-nod-complete-filed-1-13-17-redacted

This is better than an ambush on a dead end trail in a horseshoe valley. Informal claims my ass. Suck on your 1970 version of §4.42, bubba. We may have to go to DC but the evidence will be tightly packed in before departure.

Capture

 

About asknod

VA claims blogger
This entry was posted in 1154(b) combat presumptions, C-Files and RBAs, Congressional Influence, CUE, Inferred claims, Informal Claims, KP Veterans, VA Agents, VA Medical Mysteries Explained and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to LZ CORK–CLEAR AND UNMISTAKABLE ERROR

  1. Kiedove says:

    If the DRO is a visual learner like me, some bloody color photos of shrapnel wounds would be instructive. Google images has a selection. Also a chart showing the difference between a bullet path versus a shrapnel path, which is more damaging. In Google Books, there was one preview of Skeletal Trauma: Identification of Injuries Resulting from Human Rights ..By Erin H. Kimmerle, has a b & w corpse with scattered shrapnel damage which makes the point that shrapnel kills. It’s not “just shrapnel.” A military medical book would probably be a good resource for images. Didn’t spend much time looking at youtube.

  2. Longfellow Rogoczy says:

    Thank you, A!
    I love this:
    USC title 38 § 3.156 New and material evidence, (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

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