Put on the skillet, slip on the lid,
Mama’s gonna make a little short’nin’ bread.
That ain’t all she’s gonna do,
Mama’s gonna make a little coffee, too.
What an auspicious day for a Decision Review Officer (DRO) Hearing. I wonder if the Seattle RO realizes the significance of the date? Scheduling it on the birthday of the man many hold up as the essence of truth itself is very appropriate. But that’s not all he’s gonna do. Butch’s gonna make a little coffee too.
I apologize for my absence here. I had a little surgery that kicked my ass. I dislike writing when high on painkillers so I desisted and tried to heal. Like Ahhnold, I’m baaaaaaack. Butch and his wife have waited a long time for this day in history to unfold. As some of our readers may recall, Butch’s wife Barb, the perennial packrat, saved Butch’s Special Court Martial dated October 15th, 1969 wherein Butch stated under oath that the combined effects of a traumatic brain injury, combined with defective, untreated vision and hearing problems, contributed to his addled state and prevented him from appearing for work at the appointed hour. This lead to the Special Court Martial and Butch’s new digs at the Presidio’s Graybar Hotel for several months, reduction in rank from E-4 to E-1 and forfeiture of all pay. That was a pretty severe Butchslap considering Barb was somehow expected to support their now 10-month old daughter and busy carrying number two. The Army seemed to be inured to her suffering. After release from custody, the separation physical showed a PUHLES rating of E 3 for rt. eye and H 2 for hearing-either one of which would have disqualified him from any more service prior to the Court Martial-let alone after.
The short’nin’ bread we’re planning on preparing with coffee on the 22nd is especially rich in calorie content- including glossy 8 1/2 X 11s of Butch’s bunker the day before he got clobbered. I always expected the VA would accept the Court Martial testimony as evidence in and of itself. I really never figured it would be discounted as “non-medical records proving nothing” and given short shrift. That’s what this is beginning to smell like. However, all you wannabe law dogs and pro se defenders of the faith are going to love this added mustard on the hot dog.
Imagine this. Butch arrived back at Letterman Hospital, having been evacuated from Army Hospital Camp Zama (Japan) on February 27th, 1969. Inexplicably, he arrived there with absolutely no records of his prior hospitalizations at the 312th Air Evac Hospital at Chu Lai, the 95th Air Evac Hospital at Da Nang nor the Camp Zama records. Usually they tucked them into your stretcher somewhere or handed them off to the Medivac crew on your Freedom Bird. Nevertheless, the records appeared lost and gone forever.
Being a thorough investigator, I have always advocated Veterans seek out all the possible places any of their records can be-just in case. I’ve even resorted to using my secret weapon-Congressman Kilmer’s VA sleuth. He can find a fart in a snowstorm at the National Archives. The most obvious place, of course, is the National Personnel Records Center (NPRC) in St. Louis, Missouri. Somehow, Butch’s CONUS evacuation records made it into the NPRC a long while after he filed as he left service on April 7th, 1970.
What’s probably most amazing is that it’s too late to call up the NPRC and have them declare those records were consumed in the Friday the July 13th, 1973 fire. His claims file only consists of the Letterman General Hospital records which means… wait for it… all those NPRC records are what we VA advocates gleefully refer to as 38 CFR §3.156(c)(1)(i), (3)(4) records- or more commonly described in the regulation as “service department records that existed and have never been associated with the claims file.” As such, they are the De Lorean time machine to go back to 1970 and begin anew. I had hoped that VA would consider the Special Court Martial as a §3.156(c) record but their sudden desire to offer an almost immediate DRO hearing with the promise of a subsequent decision by the Decision Review Officer beginning the very next day smacked of a railroad job and a predetermined outcome prior to the actual hearing. When VA says they’re eager to expedite, it usually means they’ve reached a decision beforehand. The hearing is merely a formality prior to sentencing and the inevitable Texas Necktie Party.
Now, add to that the fact that the Assistant VARO Director, Cesar Romero, called me personally last week to apprise me of this sudden opening of a DRO hearing date and the willingness of the DRO to adjudicate it post haste and you have the makings of what we call the VA’s Short Line Railroad. VA has never been magnanimous in their gestures unless it means certain defeat. With less than ten days now, they cannot possible retrieve the records and readjudicate it sooner. Even were they to do so, they would be corralled by their very own regulations.
Simply put, VA is required to look at the new records we’ll be introducing showing extensive surgery, debridement of SFWs, closure of the largest wounds, injuries to both eyes and the presence of numerous minute shell fragment wounds with minute retained foreign bodies. If VA had followed their own regulations in 1970, Butch would have been awarded a severe rating (40%) for each muscle group affected ranging all the way from his face (Muscle Group (MG) 23 all the way down to his right and left upper thigh (MG XIV). For the record, that’s about 10 MGs @ 40% including the right arm and right and left hands, lower back, rib cage and pelvis. In addition, they’ll have to consider his unanswered informal claims mentioned at the 1970 C&P examination regarding his tinnitus, hearing loss, otitis media, blurry vision (traumatic cataracts plural), retained metal fragments to the right eye, earaches and headaches. All these are part and parcel of the traumatic high explosive event with extreme acoustical trauma he suffered that night at LZ Cork.
VA was so callous as to ignore the claims he did vocalize on the 21-526 such as the SFW to his head where a large (2.9mm) retained foreign object still resides in his temporal lobe area. Ignorance might be bliss but the VA was required by their own regulations to thoroughly investigate his injuries with neurological/psychiatric exams and x rays to discover the truth. Absent the records from Chu Lai forward, they were able to rate him strictly on the residuals of the shell fragment wound scars and little more. Everything Butch said was considered hearsay or lay testimony unsubstantiated by the 38 USC §1154(b) combat presumption. The last note appended to his CONUS evac records from Camp Zama was the most telling- “Purple Heart Not Awarded This Station. “ The most compelling of evidence that might have substantiated his testimony lay buried in St. Louis for forty six years until we unearthed it.
I expect the introduction of the new and material evidence is going to roll down some socks at the hearing. In addition, I’ve requested a VA doctor be present for a visual inspection of Butch’s injuries, the innumerable retained foreign objects which keep surfacing creating new painful scars and the the muscle atrophy et al. One of the codicils in 38 CFR §3.103(c)(2) allows you to request a VA physician be present to visually observe and read into the record what he sees and observes. He isn’t allowed to touch you with so much as a stethoscope. The inspection has to be purely visual. It will be extremely damning to view this in retrospect and the physican’s remarks and explaining how/why VA ended up giving him only a 10% rating for MG VIII for muscle impairment. Old, healed SFWs from 1969 with scars do not look like the above scars in 2017.
§ 3.103(c)(2) Procedural due process and appellate rights.
[I]n cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.
Each individual muscle group affected must be rated separately and added-not combined. VA is required to rate any muscle group with retained metal fragments at a minimum of 10% unless there is demonstrated x ray evidence of multiple minute retained metal fragments indicating intermuscular trauma. In that case, it is rated as severe. Period.
Talk about stepping on your necktie. Here’s a sample of the menu of whazzup for the 22nd.
After talking with a Veterans Law Judge friend, I decided to hold back the Camp Zama records on the off chance the Seattle VA is not dealing in good faith. It wouldn’t be the first time. We can always introduce them at the BVA on appeal if necessary. Considering the fact that Butch has been disenfranchised for nigh on 47 years, I suspect we have a good case for advancement on the docket under Rule 900. In any case, they’d be forced to grant with the introduction of the new and material evidence from Camp Zama anyway. It gives a whole new meaning to being in the catbird seat. If that isn’t enough, we have about another 150 pages of BP, temperature readings and diet records from Camp Zama and the 95th Air Evac at Da Nang.
But then, we haven’t even begun to talk about SMC and Equitable Relief… that’s another chapter. How much do you reckon Butch and Barb spent on medical for those four kids alone and what it cost to raise them?
Ty Alex for all your help you been doing for my dad. Us kids really appreciate what you have been doing.
You haven’t seen anything yet, Carol. We’re going to have a party next Wednesday morning. You’re invited if you wish to attend. 915 2nd Ave. Eleventh Floor. Enter VA on 1st ave.Butch and Barb would do it for me if the shoe was on the other foot.
Visual inspection….hmm…does that mean he has to show up naked?
The second sheet says…
“Curettage debridement multiple fragment wounds face, right arm and left
and right thigh.
Suture corneal laceration right eye”
Glad to hear your surgery went well.
Surgery and debridement combined with a long hospital recovery are some of the prime ingredients for severe muscle injury rating. Multiple retained metal fragments supported by x rays is another one. Butch has all of them which begs the question of how they ignored all this. The answer was simple. They didn’t have the records. Rather convenient, really.
I don’t see how they can possibly squirm out of this one. For God’s sake VA, do the right thing.
It says “operations none”. Maybe they don’t know that surgery and operation is the same…ha!
SP–I have been looking for information/pic on what types of surgical scrub brushes were used in Vietnam to clean out pus filled jungle rot. Would the scrubbing also be called debridement? Would they have been thrown out or reused? Do you have any info. in your vintage medical books? Thanks.
My husband Rick is a Navy Corpsman from the Vietnam era and he responded to your question. Rick says the scrub brushes were always reused when supplies ran low (which was a constant) and after each use they were trained to pour a solution of iodine and alcohol over them. He also says yes, the scrubbing would be called debridement. I just wanted to pass that along.
Thanks Sherry and Rick, My old Marine had this done to him when he got a pus-filled jungle rot lesion on his foot in Vietnam.
The iodine and alcohol sanitation method would not have killed HCV on the scrub brush! Another very likely transmission route on non-intact skin given how many of these infections occurred in the wet conditions. Would Rick consider this treatment a risk factor for hcv if the brush was re-used between patients ?
It doesn’t necessarily need to be brushes. You can scrub a wound with a sponge, gauze, or by inserting moist gauze into a wound and letting it dry and then you pull it out when it’s dry.
I have some beautiful pictures of wounds being debrided that I borrowed from the Aussies. Sending them to you.
According to family lore my father-in-law was blown up on Guam in WWII. He suffered a TBI and was out of his mind for months in a navy hospital. He did not even know his own wife or child. Then when he had “recovered” according to the Marines he was put back on some kind of duty and had a mental breakdown and struck an officer. He was then given some sort of immediate discharge with no disability and then his records disappeared forever. I did not know him or my wife while all this was going on due to the fact I was not even born until he had been tossed out of the Marines. From the time of the TBI until the day he died he suffered fits of insanity including hallucinations and crazy behavior which was sometimes criminal and sometimes just insane. I just wonder how in the world the Marines could have kicked him out knowing his extensive combat history and his mental state which included epileptic attacks. He died ten years ago and I never got the full story since he lived in Maine and we lived in Florida. His family was ashamed of his mental illness and criminal insanity. When I met him for the one and only time my wife and I had only been together for about two years. The VA claimed his records were burned up in the 1973 fire and he had no discharge records or any medical records. One of his problems was when he got stressed he would set the current dwellings on fire, so if there were any records they burned twice. He even set my wife’s house on fire when she was a teenager and was asleep on the second floor of some house they had at the time. I think he tried to kill them all and he was prosecuted and sent to prison for the first of many times. He clearly suffered from fits of insanity and yet he received no treatment and no compensation. I wonder how many times things like this happened and I wonder what the real truth is which I will never know I guess.
I’m sorry to hear that history. I have a WW2 Marine who “did” Guadalcanal and Okinawa in the first wave. He then pulled his primary MOS of Graves Registration after each. He fought VA for years and I read his c-file. Large as life and twice as natural it was there. They instantly gave him 30%-effective 12/21/15. He’s one of my clients and we’re going for the gold- increase and 2003 effective date based on everything that was in the file then-and now. Butch got the same brown end of the Punji stick we know so well. I aim to change that.
I’m curious…..can the hearing be taped? I’d love to see it posted on YouTube. Any chance of that happening?
Well, boy howdy, Jack. Of course it’ll be taped. I’ve asked for a transcription but I’m free to record it myself as well. All of you are. There are two kinds of DRO hearings- formal and informal. The latter are now more rare but they sometimes try to horswoggle you into them with the promise they will make a decision right there on the spot. The alternative is to record it “on the record” and wait six months for a decision. Some get suckered into the informal game and still get the denial-but it’s instant like a scratch off lottery ticket.I’d always want a more reasoned examination and the time for them to figure out the error.
Be a great service to have it recorded! Just saying!
Great Q & A.
TAKE NO PRISONERS
I am very happy for Butch. He has been tortured long enough.
I love It ♥
I never had a good experience with Seattle VA either!
Great Work A