CAFC-HUDICK V. WILKIE–THEY ARE ONE PERSON


 I took my first AO-in-Thailand case last month. Welcome aboard the U.S.S. Asknod, Ray. I guess we all gravitate back mentally to the place we served when we were over there. Even though I was in many places, both west of and on the other side of the fence north of Udorn at different times, it still was always “home” for all intents and purposes. At least that was where my checks went. This is why I have a very close affinity to others who served there. As some of you know, I’m also repping Steve from No. California on our bread and butter issue here-Hepatitis C. Steve served at Udorn at the same time I was going in and out. Funny, that’s about the same time I got my Hep C, too. 

Which is where the title comes from (CSNY):

We are one person

We are two alone

We are three together

We are [four] for each other

 

 

 

 

 

 

Helplessly Hoping is what rises in my breast when I think of all the Thailand Vets who are now the new inhabitants  in the back of the bus after the Blue Squids win. I lucked out and happened to keep paper proof of boots on the ground in RVN. Many others did not.  We need to pull together to get this done. The VA and Congress have granted the presumption of exposure to dang near everyone in Southeast Asia except for Thai Vets. You have to win it by direct causation a la Combee v. Brown.

Snow

First of all, it seems we are the west coast distributors of snow this weekend. Tons of it. 6-10 inches are forecast. [we ended up with 17.5] Here’s the view from the asknod cockpit.  The FNGs hereabouts are calling this event Snowmageddon 19. Shoo doggies. Hold on to your socks. I’ve seen it do 24″ in 11 hours on my birthday in 1989. Truth be told, we’ve suffered an immigrant invasion here in Washington in the last decade. It might have something to do with no state income tax or the multitude of problems the states below us are suffering. At any rate, seems all these Califoregon Newbies have never seen the white stuff outside their front doors- or worse- on a road. For pure entertainment, you need  to take a thermos of Earl Gray, some snakebite medicine and a folding chair down to the county highway and watch the demolition derby. Dress warm, too. Its 25° out there, Pilgrim. I sure hope Punxsutawney Phil isn’t having us on this year. We’re only 41 days away from my Spring Solstice Toga Party. We just had the deck redone with new glass railings and Cupcake has the hors d’oeuvre bar planned to be set up near the fireplace. Wintry weather is right out.

17 1/2 inches as of 2/13/2019.

 

Hudick v Wilkie

I was cruising the new CAVC decisions this morning and ran across Hudick v. Wilkie  coming back down from a reversal at the Fed. Circus. Anything with REVERSE in red letters draws my attention. A reversal at the Fed Circus guarantees an exceptionally good read.

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-2234.Opinion.12-3-2018.pdf

Here’s the mea culpa written by Judge Toth as he gift-wraps it for VLJ S. L. Kennedy’s mea culpa.

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01205573604&caseId=88006&dktType=dktPublic

Here’s VLJ Kennedy’s original BVA Decision that provoked this tempest.

https://efiling.uscourts.cavc.gov/cmecf/servlet/TransportRoom?servlet=ShowDoc&dls_id=01203647800&caseId=88006&dktType=dktPublic

Saint Kathleen of the Holy Order of Our Lady of the Federal Circuit

Judge Kathleen O’Malley, a gal about our age (early 60s), wrote this decision for the panel. It’s a daisy. You’ll remember she recently wrote a separate and rather scalding concurrence in Procopio for the Blue Water Squids Victory. Here, she not only reverses the CAVC but sends it back to the CAVC with instructions to instruct the VLJ to order VA Secretary Robert “Call me Bob II” Wilkie to cut a check-pronto. We often talk about “pro-Veteran” judges like St. Mary Schoelen and Friar Greenberg. Well, Saint Kathleen is up one floor on the next level at the CAFC. Nothing like having Veteran friendly folks in high places. As LawBob ‘Squarepants’ Walsh always says, “You can never be too rich, too verbose or have enough like-minded friends in the Judiciary.”

Mr. Robert M Hudick was stationed for a year at Udorn down at the bomb dump. The whole area was rarely visited except by the security personnel in the guard towers, the fence walkers with their dogs… and everyone who worked in the bomb dump or came there to pick up or deliver bombs. Lotsa bombs.  Marker Rockets. Napalm. MK 82s in all flavors. There wasn’t a lot of space and it was jammed right up against the perimeter. The geographical fact a lot of these armchair raters at the VA don’t understand is that our bases  (Udorn, NKP, Takhli, Ubon, Utapao and Korat) were not filled with spacious skies and amber waves of grain. They were usually long enough to sport a 10,000 foot runway, cantonments, barracks, BX, Class VI store, chow hall, the O club and the pool. And a bomb dump. The only real  aircraft hangers were  over in Air America and leftovers from the Japanese in WW2. After the sapper attack in 1968, we began hosing the perimeters with Agent Roundup which just happens to strongly mimic what Agent Orange, Blue, Pink, Purple, Green and White do. It kills shit. Ants. Gingjoks. Tookehs, Snakes. Monkeys. Vegetation. It’s multi-purpose stuff.  Since the King of Thailand wasn’t all het up about us spraying that shit all over Thailand after he saw what happened on the Ho Chi Minh Trail, he nixed the idea. That meant the Air Force had to repackage (and relabel) the shit as a more benevolent “tactical herbicide”. That’s like repackaging napalm by calling it “Liquid Sunshine”. They sprayed quite a bit of this tactical shit down at the bomb dump (and everywhere else up to the perimeter fence) to keep a minimum 60-foot line of fire open. And the Robertmeister worked there every day for a year. When it got hot, he took off his shirt like we all did. The opportunities to get AO on you (and in you) were everywhere and not just down at the bomb dump. The entrance door of the new “Barn” barracks I usually stayed in when I was in transit was about 60 feet from the perimeter. A 30 foot wide roadway and a 30 foot strip of red clay dirt were all that separated us from the fence. To say Security Policemen were the only ones exposed beggars the imagination. The parking lot for the chow hall was jammed right up against the…yep… perimeter fence. Nothing grew there but red clay and 3/4″ minus gravel. Nothing around the taxiways, revetments or the runway remotely suggested vegetation. It was all naked red clay as far as the eye could see-even during Monsoon. It was the same whether you were at NKP, Ubon or any of the other bases-even Don Muang.

Mr. Hudick credibly reported this. It falls under Layno v. Brown in that we can report on what comes to us via our five senses. Diagnosing your Prostate problems falls to a doctor. Mr. Hudick’s  problem was our old friend the M 21-1 Manual on how to Misadjudicate  Claims. The long and the short of it is that the Board of Appeals Veterans Law Judge (S. L. Kennedy) started quoting the M-21 as being applicable. Then, in a follow-on decision, refusing to utilize it to grant him the presumption of credibility.

You Thailand Vets might not run into this exact same scenario vis-a-vis getting a Texas Necktie Party with the M 21 when you get to the BVA. The decision is still valuable course knowledge on how-to. There are no true presumptives for Thailand AO Veterans as there are for Vietnam Vets. If, and this is a medium “if”, you can demonstrate proximity to the perimeter outside of a magic Air Force Specialty Code (AFSC or MOS) for the Security Police Squadron, and if you have a good IMO ascribing the chances the Prostate/DM/Parkinson’s/cancer etc. as being at least as likely as not related to your extensive exposure to a “tactical” herbicide,, you will win. It’s an art form most of the time. Here, in Mr. Hudick’s case, it was a bait and switch using first the M 21 and then not. This created a major due process violation as you shall read. Mr. Phil Cushman will be proud to see his fan club is growing.

As usual, this is another feather in the hat of Chisholm, Chisholm & Kirkpatrick (CCK)  and Zachary Stolz. I don’t see how he has time to do all these claims.

Lastly, thank you Mr. Hudick for being persistent and reinforcing the concept of due process.

 

About asknod

VA claims blogger
This entry was posted in Agent Orange, All about Veterans, BvA Decisions, CAFC Rulings, CAVC Knowledge, CAVC ruling, Fed. Cir. & Supreme Ct., KP Veterans, Lawyering Up, Lay testimony, M-21 info, NOVA Attorneys, Thailand AO presumptive path, Tips and Tricks, VA Agents, Veterans Law and tagged , , , , , , , , , , , . Bookmark the permalink.

2 Responses to CAFC-HUDICK V. WILKIE–THEY ARE ONE PERSON

  1. Ray parker says:

    NO MATTER WHAT OUR KIDS AND THE NEW GENERATION THINK ABOUT US
    WE ARE AWESOME !!!
    Our Lives are LIVING PROOF !!!

    >
    To Those of Us Born
    1925 – 1955:

    At the end of this email is a quote of the month by Jay Leno.
    If you don’t read anything else, Please read what he said.
    ~~~~~~~~~
    TO ALL THE
    KIDS WHO SURVIVED THE
    1930’s, 40’s, and
    50’s !!

    First, we survived being born to mothers who may have smoked and/or drank
    While they were pregnant.

    They took aspirin, ate blue cheese dressing, tuna from a can, and didn’t get tested for diabetes.

    Then, after that trauma, we were put to sleep on our tummies in baby cribs
    Covered with bright colored
    Lead-based paints.

    We had no childproof lids on medicine bottles, locks on doors or cabinets,
    And, when we rode our bikes,
    We had baseball caps,
    Not helmets, on our heads.

    As infants and children, we would ride in cars with no car seats, no booster seats, no seat belts, no air bags, bald tires and sometimes no brakes..

    Riding in the back of a pick- up truck on a warm day was always a special treat.

    We drank water from the garden hose and not from a bottle.

    We shared one soft drink with four friends, from one bottle, and no one actually died from this.

    We ate cupcakes, white bread, real butter, and bacon. We drank Kool-Aid made with real white sugar.
    And we weren’t overweight.
    WHY?

    Because we were always outside playing…that’s why!

    We would leave home in the morning and play all day, as long as we were back when the streetlights came on.
    No one was able to reach us all day ..
    And, we were OKAY.

    We would spend hours building
    Our go-carts out of scrapsand
    then ride them down the hill,
    Only to find out
    We forgot the brakes. After running into the bushes a few times, we learned To Solve the problem.

    We did not
    Have Play Stations, Nintendo
    and X-boxes. There were
    No video games,
    No 150 channels on cable,
    No video movies
    Or DVDs,
    No surround-sound or
    CDs,
    No cell phones,
    No personal computers,
    No Internet and
    No chat rooms.

    WE HAD FRIENDS
    And we went
    Outside and found them!

    We fell out of
    trees, got cut,
    Broke bones and
    Teeth,
    And there were
    No lawsuits
    From those accidents.

    We would get
    Spankings with wooden spoons, switches, ping-pong paddles, or just a bare hand,
    And no one would call child services to report abuse.

    We ate worms,
    And mud pies
    Made from dirt,
    And
    The worms did
    Not live in us forever.

    We were given
    BB guns for our 10th birthdays,
    22 rifles for our 12th, rode horses,
    made up games with sticks and
    tennis balls, and
    -although we were
    Told it would happen- we did not put out very many eyes.

    We rode bikes
    Or walked to a friend’s house and knocked on the door or rang the bell,
    or just Walked in and talked to them.
    Little League had
    tryouts
    And not everyone
    Made the team
    Those who didn’t
    Had to learn
    To deal with
    Disappointment.

    Imagine that!!

    The idea of a parent
    Bailing us out
    If we broke the law
    was unheard of …
    They actually sided with the law!

    These generations have
    Produced some of the best risk-takers,
    Problem solvers, and
    Inventors ever.

    The past 60 to 85 years
    Have seen an explosion
    of innovation and new ideas.

    We had freedom,
    Failure, success and responsibility,
    and we learned
    How to deal with it all.

    If YOU are
    One of those born
    Between 1925-1955, CONGRATULATIONS!

    You might want
    to share this with others who have had the
    luck to grow up as kids before the lawyers
    and the government regulated so much of our lives for our own good.

    While you are at it,
    forward it to your kids,
    so they will know
    how brave and lucky
    their parents were.

    Kind of makes
    you want to run through the house
    with scissors, doesn’t it ?
    ~~~~~~~
    The quote of
    the month
    by
    Jay Leno:

    “With hurricanes, tornadoes,
    fires out of control, mud slides, flooding, severe thunderstorms tearing up the
    country from one end to another, and with the threat of bird flu and terrorist
    attacks, are we sure this is a good time to take God out of the Pledge of Allegiance?”

    For those that
    prefer to think that God is not
    watching over us…
    go ahead and delete this..
    For the rest
    of us…..
    please pass this
    on.

  2. Ray Parker says:

    Are we looking good or is there any big ?marks?

    Sent from my iPhone

    >

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