I feel remiss in forgetting to share this earlier-like about five or six years ago earlier. Some who have mastered the art of Google Search must have inevitably run across this gentleman’s blog. He and I converse on the great matters of VRE ILP and VA law fairly frequently. Sometimes, when I just can’t find that perfect cite, he can. That man is uncanny. He’s even more famous for being one of the very few who have won an Extraordinary Writ. He makes Westlaw look like dialup and then idiotsearch.com. Even single-judge memorandum decisions! I use many tools, including his. Among my favorites is Casetext but I am not above using any source with a stable link. Why sift through ECF if you have VCB (Vetclaim’s blog)?
Mr. Veteranclaim’s Blogs are on point for ferreting out the nuggets of law that give us our rights-especially due process. My favorite forte, as most know is the Almighty Presumptions. There are more presumptions than you can shake a stick at, folks. Ignore the basics like soundness at entry or the fabled benefit of the doubt. There’s a whole new world of presumptions out there waiting to be cited-the most precious of which is the presumption of regularity. It’s been Supreme Court tested (Rosenthal v. Walker, 111 U.S. 185, 193) (1884) so VA can’t start chipping away at it using post hoc rationalizations. Rios v. Mansfield and then Rios v. Nicholson cemented it in VA law just to keep the Secretary from coloring outside the lines. Mr. VB delivers these goods faster ( and waaaaay cheaper than many alternatives. I think he ought to put a Go Fund Me™ clicker up there next to the search bar. Scratch that. He has a donate button. Use it. He really earns his keep. Shit oh dear I can think of about 35 FNGs who’d give their left nut for that in those smaller VA designer firms. I hope they read this. You just can’t pack enough hand grenades and five five six in this business. I’ve been known to illustrate it (presumption of regularity) for an old CUE by delving clean back to 1926…
From a brief:
[T]he legislative history of the Presumption of Regularity did not manifest with Miley. (See Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004); Rizzo v. Shinseki, 580 F.3d 1288, 1290–91 (Fed. Cir. 2009) (“what appears regular is regular and what appears irregular is irregular- the burden of proof of irregularity falling on the appellant to rebut.”
Examples of contemporary case law prior to 1972 expounding on the presumption of regularity are below:
-Turberville v. U.S. 303 F.2d 411 (D.C. Cir. 1962) (Applying the presumption of regularity where government offered evidence in form of detective’s testimony that appellant was advised of his right to silence, contrary to Turberville’s assertions)
-U.S. v. Baker 416 F.2d 202 (9th Cir. 1969) (Applying the presumption of regularity where the Government need not affirmatively prove that a Selective Service registrant was irregularly selected out of order but may rely upon the presumption of regularity surrounding official proceedings to establish that fact). See also Greer v. United States, 378 F.2d 931 (5th Cir. 1967); Yates v. United States, 404 F.2d 462 (1st Cir. 1968).
-Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971) (Applying the presumption of regularity where Government (Secretary of Transportation) decision to route a federal highway through a park was entitled to a presumption of regularity but that the presumption did not shield his action from a thorough, probing, in-depth review). See also Pacific States Box Basket Co. v. White, 296 U.S. 176, 185 (1935); United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926).
Just as the CAVC was forced to cite to Federal Circuit decisions in its early, formative years in order to fashion Veterans law, so too does appellant/movant rely on similar case law here that was precedential case law at the time. Hence, the presumption of regularity must be similarly applicable to Veterans Law just as Gilbert v. Derwinski (1991) relied on the CUE standard in United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); cf. Anderson v. City of Bessemer City, 470 U.S. 564 (1985). (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous”). United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949).
Asknod has always been a refuge for last-ditch Vets in their claims appeals. Maybe I’m using the wrong “key words” tags for Google search. Between the three of us (hadit.com, VCBlog and asknod), you have allies in this quest. Yes, there are other Veterans sites who offer advice but you will find very few who can offer real-time assessments and on-point law that supports your claims. Not conjecture. Not honest, misguided opinions- but real help. If we can’t help you or point you in the right direction, I wager to say it involves alien abduction or NSC MDD. And of course, if you don’t ask, you’ll never know. Remember, we were all FNGs once.
I try to point out to prospective clients that it doesn’t help you to walk in and preach about what VA did wrong in 1987. It doesn’t help anyone to tell about how they got shafted or the records got lost or about the Drill Sgt. who crammed them into a trashcan and beat on it. If the Drill Sgt. didn’t write it into your military records or the Doctors on sick call didn’t annotate it…. then it didn’t happen. VA attorneys have gradually opened a window for women Vets to attain Service connection via a Major Sexual Trauma defense (MST). I have a few of those, too. I’ll let you all in on the big secret. There is a simple rhyme and reason for how this all works.
THE BIG SECRET TO WINNING THE VA CLAIM
This is how we win. “We” being the few VA attorneys who think like me. Certainly, this is my technique carefully shaped after 29 years of bent spears and dull swords. I have to presume, in the absence of a Juris Doctorate, that other VA law dogs are at least this erudite and conversant in the art. Sit and listen Padewans. Here’s the Earl Schieb $99.95 method.
First you file. These days you have to use a VAF 21-526EZ. Gone are the days of paper towels and scrap paper. I haven’t put any Tickle Me Elmo stickers on any of my briefs since I got my accreditation but don’t let that inhibit you. Just make sure the evidence intake technicians can peel them off in Janesville, Wisconsin before scanning.
You don’t file with any evidence. Screw that. It’s VA’s duty to assist in this and they are getting totally slack about it nowadays. They’re going to go get your Service med recs even if you do supply yours. Shoot, Cowboy, your copies might be fakes. They are not going to trust you when you say you have TBI from the IED. So let them do all the heavy lifting. Face it. 85 % are going to lose and the remainder are going to get low-balled anyway. Send in a DD 214 and grab an IPA. Put on some Rolling Stones and chill out.
So, six weeks/ two months later you have a lowball/noball ( underated/denial). What now? You hire one of us to run this show. Don’t laugh. This is like baking cookies. The oven is always on at the right temperature. The dough is kneaded and ready. All we do is pour in the claim and stir. By law, we cannot elicit your business. You have to come to us. We can only enter (legally) to defend you (for $) after you receive a denial or lowball. I help a lot of guys win at the local level and they owe me zip. Why not? Pay it forward, right? It’s one less claim choking up the machine.
In order to win, you need a nexus letter or what we call an Independent Medical Opinion (IMO). This is the same exact recipe used to win Social Security claims. You are limited by your wallet and the propaganda you hear from the Disabled American Veterans and all the other VSOs. “Those damn lawyers will suck you dry”. They’re right. Some will. Some will ignore your claims or milk them for years by inaction. Be careful. It must be something they put in the water at law school. As one of my clients who is also a lawyer said. “This is your brain. This is your brain after law school.”
The IMO/nexus letter you need costs $1500.00 nowadays. That’s the latest price quote from my broker. I don’t mark it up. Some lawyers have high overhead and a glorious view of 810 Vermont Ave. NW. Location will drive the cost up. I don’t need to screw you. I have a beautiful territorial view of my horse pastures and the Olympic Mountains. This is not an advertisement. I don’t do that. My website here is devoid of advertisements. These IMO providers will only work with lawyers or agents. I didn’t make the rules. I dislike it but this isn’t my parade.
My recipe now involves writing up the Notice of Disagreement and enclosing the new IMO. This provokes the benefit of the doubt. I have an IMO that says my client’s __________ is caused by the __________ which the medical records show he incurred in service. It’s at least as likely as not he’s all screwed up and here’s why:__________________. Throw in about five good cites to peer-reviewed articles in JAMA and a Curiculum Vitae that has American Universities and familiar names like Mayo Clinic and you have “equipoise”. Your IMO counterbalances what the VA said in their denial. Who’s telling the truth? VA or your rainmaker (me)? Who cares, really? Your IMO makes you a Chicken Dinner Winner. Really, folks. It doesn’t take three witches stirring a cauldron throwing in dried lizard eyeballs. It’s way simpler than that and won’t cost you your first-born male child.
The next phase is the most boring. By rummaging through the VBMS and watching my “repaired” denials progress, I can see a pattern of disposition. The local yokels can’t write an SOC denying you because, well, duh- you have a winner. They hem and haw and finally send it up to the AMO in DC. The giveaway in VBMS will be in the Notes section. You’ll see a reference to “referred to AMO” (Appeals Management Office) or “Ewwww. Send to 372” or something similar. All of a sudden your appeal has porcupine quills sticking out of it. Eventually, (a year plus) you’ll get the decision. I have yet to see anyone in the National Work Queue (NWQ) pull an IMO “rework” EP 170 winner out and write it up. I’m sure it happens every day. Just because I’m oblivious doesn’t mean it’s untrue to say that.
Now, on the other hand, when the decision is granted, be it at the AMO or the BVA, start the Alex Trebek theme song. I have an appeal I began last Christmas. We won with the new IMO March 18th. It took the White House Hotline to prod Atlanta or Columbia or whoever into writing it. That finally happened in late August. Disbursement of funds was authorized in mid-September. That starts the 60-day clock. In late November, which is about now, I’ll get a notice saying the 20% payment is “being processed”. This starts the 30 day clock. Realistically, I’ll be lucky to see it by mid-January. It’s a good thing Cupcake has a day job or we’d be on the Rice-a-roni, tubesteak and Pepsi diet.
Now, you can apply this compensation claims formula to any claim, be it PTSD or DM II. I exclude CUE claims and §1151 claims from this. About the only requirement is that you actually suffer from what you are filing for. I’ve had guys come to me and say they want to file for Hepatitis A or B. I ask what their residual symptoms are today and they have none. The diseases are “acute” rather than chronic and do not qualify for financial compensation once you recover. Even if you are cured of Hepatitis C by the new direct-acting antivirals like Harvoni or Zepatier, you will invariably have secondary illnesses such as Fibromyalgia, Sjogren’s syndrome, Cryoglobulinemia, dysthemia, cognitive dysfunction and even DM II. The list is probably far longer. That’s why we have IMO doctors to help us.
The teaching moment here is simple. If you have a legitimate claim and you have not won it yet, it’s because you lack one of the three ingredients. Most often, you are lacking one or more. The IMO is the most elusive because Veterans labor under the misconception that they can just state they had X happen to them in service and be believed. Veterans Service Representatives from the Big VSOs do not tell you what, why or how to overcome the denial. We do. You buy it-just exactly the way the VA buys it. They hire doctors who will say whatever VA wants them to say for $273,000.00 a year and a covered, reserved parking spot close to the entrance. So, being an efficient business model, we figured out how to do it for far less. Everyone is happy and the IMO doctors can sleep at night knowing they didn’t just collect 30 pieces of Silver.
I won’t go into a long list of folks who can provide you with those IMOs. There are several well-known gentlemen who are both attorneys and doctors who perform this function. There’s an outfit down in Florida that does it for a “commission” of sorts. The Florida outfit does not involve a lawyer but if you hire one, you end up with a pretty skinny retro payment. The beauty of my system I describe here is elementary. It’s a fixed price. A prompt VA adjudication is the only impediment to a timely payment. I help a large number of terminally ill Vets and it is usually accomplished in short order…unless it’s Atlanta or Houston or Jackson or Columbia or wherever. There’s nothing I can do about that unless you’re terminally ill or well on the way down that road. In those cases, I getterdone in about four or five months from filing to money in the bank (theirs-not mine).
The real beauty of this system for the average Vet is we do not have to wait four or five months to get your claims file. I generally can see it in VBMS within 3-4 weeks of my VAF 21-22a Power of Attorney filing. As I may have mentioned in the past, the e-file is all sorted out chronologically and a piece of cake. All we need is to see why you were denied, fashion a defense and obtain your prepaid IMO. The rest is a cake walk. Sure, you’re going to run into some chucklehead RVSR or DRO who will never give you R1. They are prevented by the M 21. Somewhere in there it says “Thou shall not award R 1/2”. So what? That’s what the BVA is for. The BVA doesn’t use the M 21 claim assembly instructions. Why would they? It’s yesterday’s fishwrap judicially. The DVA still hasn’t absorbed the import of the Jensen decision re R1.
And there you have it. The VA Claim according to asknod. It didn’t cost you a dime. Sometimes, what you find for free by diligently searching here or over at Mr. Veteransclaim’sBlog has great value.
Today’s show is brought to you by the Letters I, M and O.
And that’s all I’m gonna say about that. Time to feed the horses.