I apologize to my readership for being AWOL. I do have a pass from Teacher. Teacher being the VA. After a summer spent trying to inveigle the VA into completing his claims, Butch took matters into his own hands and decided to kite off a letter to the CAVC in a vain attempt to speed up the process. Face it, if you’ve spent two and a half years waiting for a C&P exam for your Ischemic Heart Disease, had your leg amputated above the knee and VA is insisting you need to “refile” the claim because it was denied in 2015 but they plumb forgot to tell you about it, it’s probably high time to consider an Ex Writ.
One thing about an Extraordinary Writ of Mandamus is that it grabs the VA by the short hairs at your local VA. Butch’s love letter to the Court sure had a pretty dramatic result as well. Let me explain how this works in DickandJanespeak. VA goes from 0 to 60 in slightly under 4 seconds. That doesn’t mean they’ll get it right though, And in some cases, there is clear bias and yes, dare I say, adversarial retribution for having the gall not to discuss it with the local yokels beforehand or giving them the opportunity to shuck and jive you for another year or two.
As advocates, we are taught to advance in measured paces toward an Ex Writ. The Lexis Nexis Veterans Benefits Manual (VBM), our “Bible” on how to litigate, advises us to write a letter begging- begging, mind you- the RO bozos to get their defecation in an orderly pile and do us the favor of producing that which is overdue. If, after a month or two, it fails to jar them into some semblance of obeying our wishes, we are instructed to try, try again. A third (or fourth)entreaty after another polite 30-90 days is advised with the Ex Writ “carrot on the stick” now unveiled from out of the advocate’s bag of tricks as a threat. But just a threat, mind you. The object is to avoid being an asshat and politely try to convince them that your patience will be reaching its end in a year or two.
After this six to nine month “dance”, it is deemed permissible to finally send them the 30-day letter with the pin removed from the hand grenade and the promise that it will be tossed sans bail if no action is forthcoming. I don’t cotton to that technique. If VA knows they can blow smoke up the Advocate’s ass for six to seven months with no repercussions, it’s a good bet they’ll just delay anyway to see what you’re made of. I prefer the “Surprise, Surprise, Surprise, Sgt. Carter” method. I call my technique Ex Parte Fait Accompli. There’s just nothing that says F*ck You like answering the VARO front door on Monday morning and finding that Ex Writ hand grenade on the doorstep with no bail. In Butch’s case, it’s 47 years overdue. Don’t forget they handed him a hat full of 0% ratings for his SFWs back in 1970.
I discovered my readership had increased the last time I filed an Ex Writ. I had VA correspondence completing a few bitches in my mailbox before I even got my docket number back from the CAVC the last time. Obviously, the Seattle RO has assigned a “minder” to me and they caught it coming out of the chute. The standard practice in Ex Writs is a) you bitch to the Court; b)the Court gives the VA 30 days to report back to them and explain why Mr. Asknod is so upset; and c) in that thirty days, the shit contacts the rotary oscillator with gusto. Everything is “fixed” after a fashion and the VA reports back that they cannot, for the life of them, figure out what in Sam Hill that demented jackwad in Seattle is complaining about because they already did it (last week). They aren’t apologetic about the fact that they finished it thirty minutes before they submitted their response to the Court. Jez, they don’t even blush or apologize. I don’t reckon I could pull that off without a big, shit-eatin’ grin from ear to ear.
In Butch’s case, the repair order for this Ex Writ was a resounding bitchslap. Butch filed the Writ September 15th or so. The Court sent out the “whazzup?” 30-day letter on September 28th. VA denied the IHD on October 12th. Coincidence, you say? They declared it wasn’t on the list of presumptives for AO. I kid you not. They purposefully came up with some bogus diagnosis on his heart and ignored all the evidence we submitted clearly diagnosing it as atherosclerosis and ischemia. Butch even let them know his new moniker was “Hopalong Long”. The problem with this type of 78 RPM justice is they freely admitted they were in constructive possession of the evidence of the coronary artery disease. This wasn’t the run-of-the-mill “Wow, sorry Butch. We didn’t dial on that dx of CAD. We’ve been holding that in the evidence locker since March 2015 but somehow we disremembered the amputation. We’ll be getting back to you real soon, hear? And don’t forget to mail in another NOD on it so we can begin your substantive appeal in 2018.”
These folks seem to forget what they’ve already said and done. When we went in for the DRO hearing in February this year, the DRO politely refused to discuss the IHD on appeal saying she couldn’t adjudicate a decision on a claim that had not been decided up or down yet. Three months later she was telling us we had to refile for it if we wanted VA to adjudicate it in this lifetime. Can’t you just see Tim Allen saying “Aruuuu?” about now?
This explains my silence on the subject around here as well. I’m not admitted to practice at the CAVC yet so I walk softly and carry a big stick. After he had filed pro se, I agreed to help Butch “revise and extend” his remarks on how VA has been treating him in more polished English. A day after I sent in an explanation of the 2.5 year delay, the October 12th denial showed up. To say I was flabbergasted is a masterpiece of understatement. I figured, at a bare minimum, a 100% SMC M was going to be in the envelope. Hence my analogy to Groundhog Day (the movie). I should not have expected anything less than a denial. Doing VA claims is a classic study of repetitive error. They’re condemned to getting it wrong every time. But is it contrived error or simply innocent stupidity?
VA can do many things to us and get away with it. They have since the War of 1812 and I don’t see it changing any time soon. What they cannot do is act in a vindictive, adversarial manner. Now granted, Butch didn’t exactly played the Ex Writ game according to Hoyle in VA’s eyes. I admit he didn’t go through the hoopla of three or four 30-days letters with dire warnings that baaaaaaaad things were going to happen if they didn’t play nice. He did what Veterans always do. He waited patiently for two and half years. In CAVCland, they give you two years to git’rdone. After that, it’s considered “an arbitrary refusal to act”. And if VA comes back and tell you to refile a claim that has not been decided in the first instance, why, that’s out and out error. A claim remains pending until there is some evidence a Veteran can see and understand something-preferably written- that would convince him the claim was dead, done and denied. It sure doesn’t require having to keep sending in requests begging for finality. But boy howdy if you kite off a letter to the Court begging them to fix it and VA comes back with a bogus denial like a quickie divorce in Reno, the Court views that as “adversarial” and not very “veteran friendly”. VA can punish us in a lot of different ways and they frequently do. They just can’t do it while the Court is watching. That’s a Bozo no-no at all our 56 VAROs across the fruited plain. Why, the Court might get the impression that the VA is mean-spirited and anti-Vet. Perish the thought, mon ami.
They say a picture is worth a thousand words. Hopalong Butch sent the Court this picture of his brand new Agent Orange present along with the Ex Writ. I wonder how the VA is going to to look CAVC Judge Michael Allen straight in the face and say “Reasonable minds can agree that a diagnosis of cardiac diastolic dysfunction with mild left ventricular hypertrophy does not, in and of itself, occasion the amputation of a lower extremity above the knee, your honor. Personally, we think he’s bullshitting us. We sure hope you don’t fall for it, too.”
I expect that had Butch allowed me to give the readership a blow-by-blow description of this Ex Writ in a blog writeup a month ago, VA would have quickly counterpunched with gusto and headed us off at the pass. The last thing I figured was they’d screw this up and deny it. That’s why we waited and allowed them to clothesline themselves. That’s also why this Groundhog Day analogy is so à propos. A leopard simply cannot change his spots. This is vintage VA denial and par for the course. My guess is they’ll claim it was accidentally dumped into the National Work Queue and some FNG gomer GS-7 in Togus or Sioux Falls cranked out a denial 30 minutes before lunch hour on the 12th. Ooops. Wrong End Product. Too bad (s)he didn’t actually read the evidence of record. You can’t just undo a denial.VA has to CUE themselves.
VA has some taaaaaaaaaaaall talking to do and their Respondent’s response is due on October 26th or they turn into a pumpkin and mice. For you numerically challenged VA minders, that works out to next Friday night by 2359 hrs EDT. Stay tuned here for the next update. I’m sure it’s going to be a daisy. Same Vet time. Same Vet channel.
P.S. Here’s Butch’s 10/16/17 update to the Court. Incoming!
Long ExWrit with VA IHD denial filed 10-16-17
To It May Concern, My Father Passed Away March 21,2017 From What Happened To Him In Vitamin in 1967 to 1976. Not sure on the yrs I will have to look at Lawrence Thomas Gladson paperwork. But get to the point. I was diagnosed with the same disease my dad has or had in my body and I am going through so much pain and I can’t work. Now I don’t know what to do. The VA won’t get back to me on anything. I watched my father suffer through it. With pain and can’t walk or move his body. I don’t want my children see me like this or watch me suffer from this. I need someone to Help Me. I live in ILLINOIS.
AskNOD, on June 6, 2017: “It’s a good thing President Trump instituted the new Vet hotline when he did. I got to use it this morning for the first time. I was on hold for all of 31 seconds. […] I’ve been promised “resolution” of one sort or another for Butch within three calendar days of my call […]”
How’d that ever go?
Same old dog and pony production
Then I’m in good company:
I called them on 6/1, with word promised in 14 days.
I waited without word until 8/25, and called them again. They seemed unable to put their finger on the record of my first call. Spent 1 hour, and change, going over my situation from scratch. Word promised in 14 *business* days.
9/7, Emailed apologies, we’re running late. Hang in there until 9/21.
9/29, I called to ask just where my complaint stood. They told me it had been forwarded to the very folks I had complained about, for their “assessment.”
Those folks (big surprise!) had “assessed” (paraphrased): The Veteran keeps bringing up our errors in the record of his ‘case,’ and we keep telling him, the record be damned, you don’t have a ‘case.’”
I had a BVA Traveling Board some years ago. All the judge did was just glance at my lawyer’s brief and then he exited with the words “At least you know what a CUE means”. He acted just like an in-take clerk. The hearing took about 15 minutes. About a year later I got the denial. Why bother with a hearing? My lawyer did research and made 6 trips to the VARO, BVA and the CAVC. At the CAVC he hired in one of the most experienced lawyers to actually argue my case. We lost over the concept of any of my claim as being “debatable”. The VA did not include or did exclude my private doctor’s IMO, but since the CUE happened in 1973 we could not prove it. What about concept of “reasonable minds”? Any reasonable mind would have known my IMO was not included in the VA’s rating, but again since the VA did not have to list all the evidence at that time we lost. The VA concluded that just because the VA never mentioned or referred to my IMO that they still must have evaluated it. My IMO stated that I was 100% disabled within one year of discharge. The VA awarded me 10% ($28) a month. I was only 21 years old when I filed my original claim. How was I supposed to know the VA would pull truckloads of rabbits out of their hats? I was believing the VA would look at the evidence and make a decent rating. I had to get on with my life since $28 a month did not give me space to think about appeals and I never even got appeal rights. I did not know I could appeal this decision. Back in the bad old days when we depended on hostile VSO’s run by WWII vets who thought Vietnam vets were &&^^%%. it was hard to get a square deal. I filed that CUE in 2006 and seven years later I lost in Federal Court because they refused to hear it. My lawyer gave up even though there were so many things wrong with the VA’s behavior I don’t know where to start. It was a learning experience that when you leave the “Benefit of Doubt” behind the VA can and will often screw you to the wall and you dependents with you. They have a host of very experienced lawyers with almost unlimited funds to argue against your lawyer who is working on a contingency. How many lawyers will wait 6-10 years to get paid? My lawyer sat through a DRO Hearing, Two BVA hearings and two CAVC hearings on my claim and filed enormous briefs. He never got a dime and neither did I. Try and win your claim at the lowest possible level is my advice. The higher you go the worse it gets.
PS: I went as high as it gets. 8/4/17, with his leave, I handed Secretary Shulkin 1- & 10-page summaries of my situation (13-month delayed cancer diagnosis, and everything untoward that flowed from it). To date, his office hasn’t responded.
Butch, this is so terrible for you and everyone else kicked around and around for years. But Seattle, how unprofessional and incompetent can you be?
With regard to the first three comments, you know there isn’t even a recent label–like racism, sexism, homophobia, antisemitism, etc..–that I’m aware of that this behavior can be called. Perhaps none has been coined yet. But this institutional-wide bad behavior is a phenomena. You can’t really call it anti-veteran-ism because many VA employees are vets and can counter that particular expression. Well, there are self-hating members in all identity groups and perhaps when ones bread is being liberally buttered by the VA, identity switches to government employee identity group, period. That good ole’ Clintonian public-private opinions. I don’t really go for identity politics or obsessive identity self-naming. I think I heard Ben Shapiro, a conservative orthodox Jew, ask why he can’t call himself Chinese and be taken seriously?
It’s gotten ridiculous across the generations at this point.
And yet, with only 1% of the American population actually enlisting in the military, well, that IS a large minority. Sociologists speculate that 3% of the population is LBGTQ and they do not have to have their issues addressed in a separate quasi-courts and specialized REAL courts like veterans do.
Something is seriously amiss. Why this special poor treatment? I mean, Af-Americans don’t have to go to the Court of Appeals for Black Americans when they have a grievances.
Politicians sing loudly for the military/veteran vote, but I think this vote should be withheld until veterans can hire attorneys and representatives to file the very first claim if they choose to. The system must get disrupted. I believe that only attorney associations will be able to accomplish this because the non-profit vet groups’ leadership will never let go of their influence, goodies and perks, income, and power trips. Attorney associations know what’s going on and have the collective education to file lawsuits in the proper manner and places. It will be good for business if they win the right to represent veterans from day 1 of filing their first claim for benefits.
“With regard to the first three comments, you know there isn’t even a recent label–like racism, sexism, homophobia, antisemitism, etc..–that I’m aware of that this behavior can be called. Perhaps none has been coined yet.”
Well, perhaps it has been labeled, and Aesop’s is as good as any:
“It’s the scorpion’s nature:”
“A scorpion asks a frog to carry it across a river. The frog hesitates, afraid of being stung, but the scorpion argues that if it did so, they would both drown. Considering this, the frog agrees, but midway across the river the scorpion does indeed sting the frog, dooming them both. When the frog asks the scorpion why, the scorpion replies that it was in its nature to do so.”
I had a claim go all the way to the CAVC where it sat for about 6 months and then they discovered that the VA was using the wrong regulations to frame their response to my claim. The CAVC then shipped my appeal back to the BVA and they had to reexamine the appeal to come up with exactly the same foregone conclusion. This took another 6 months and now back to the CAVC and wait another 6 months to be shot down in flames. From the time I filed my CUE at the VARO to being shot down at CAVC it took over 7 years. Why not just tell me “No way in hell we gunna grant yo’ claim, boy. We don’t like your kind around here.”
Research! Research! Research!. Then find the Fed Circus legal precendent that gives you this legal standard in a year prior your CUE claim. Be anally specific. And only use the evidence that was in the c-file at the time and the exact 38 CFR §3 and §4 then in effect- never the current ones. Even then it’s a roll of the dice to get them to see it your way. We shall see.
Those bastards want you to die before awarding you a claim. I know what to expect on my claim. It’s been 3 years waiting to get to the BVA. It just got there 3 weeks ago. I am trying to stay positive but after reading this post when he was clearly deserving of said claim. Unbelievable