VA SUPPLEMENTAL LANE–BEEN THROUGH THE DESERT ON A HORSE WITH NO NAME


Fort Fumble, Georgia

Thank you Smoke. I needed a good tag line. A lot of us suffered for years in the era of Non A, Non B Hepatitis before they isolated it and gave it a real name. And, much like finally giving something or someone a name, an Independent Medical Opinion gives your Hepatitis C a name.  In VA jurisprudence, we call it service connection and with it comes a VA compensation check. Now for the back story on this horse with no name.

David and his wife began fighting in October 2014 to attain service connection for this beastly disease. Even after listening to me on Hadit.com radio shows and reading my offered advice, they were unable to come up with that killer Independent Medical Opinion (or nexus letter) that put this thing in the bag.

They had their representative file the opt-in to a RAMP Higher Level of Review (HLR) to  get a quicker win back in 2018 March. As fate would have it, their VSO rep. forgot to file it. This is one of those silver lining things but I’ll get back to that later. They kept going and all of a sudden it wasn’t a RAMP HLR at all but the BVA. Nobody explained it to them. Their rep had been fired about the time the RAMP opt-in was supposed to have been filed.

Fast forward to about 4/10/2019. David’s spouse called me and begged me to take this before it went up on the rocks. It went up on the rocks on April 16th, 2019 when the BVA Veterans Law Judge affirmed the denial of service connection. Unbeknownst to me, I filed the POA and it kicked in on 4/30- a wee bit late to help them.

We NOVA attorneys and agents just got the most detailed briefing available in March at the Nashville Conference. The new process is virtually untested at the moment.  The AMA is brand new. There is little data to study on success/failure vs getting a rapid decision on using the supplemental lane. There is endless conjecture whether VA would honor the AMA’s promise you can take the denied appeal back to the Regional level and file a supplemental claim with new and relevant  evidence-like a killer IMO. This avenue allegedly lets you avoid the Motion for Reconsideration at the BVA (which would easily take a year just to agree to a new decision) or the same one-year path to the CAVC but with no new evidence allowed to be entered. Much like untested ice, no one who walked out on it has come back to tell us if VA was lying -er- peeing on our collective leg and telling us it was raining. Looks like we’re good to go from this decision, fellow litigators.

My clients sometimes don’t last five years so I try to get the benefits awarded asap. The fee is not the reason we do this. With the new AMA, and the implication I could take the BVA denial to the Supplemental lane, win for the client … and preserve the effective date of October 2014 seemed like a bait-and-switch thing with more Catch 22s than a military enlistment form. To think I could pull off this gig in fourteen days was sheer effrontery. Look up ‘slow’ in the dictionary and there’s an 1899 picture of Gen. Custer’s widow holding up her pending 1876 claim for DIC.

So with great reservations, I launched a Supplemental claim on July 5th for reopen of Hep C due to jetguns and all the other risks. I submitted my brand new IMO from the medical wizards at Mednick Associates and 14 days later-i.e. today, July 19th- the narrative and the confirmed ratings sheet came out for 100% permanent and total. I was sure one of two things would happen. First, they’d say “Yep, you proved it was service connected, David… but only as of 7/05/2019 when you sent in that new claim with the IMO”. The flip side was they’d say “Yep you won but the agent doesn’t get any dough because this is a brand new “supplemental” claim. Your 2014 legacy appeal is final.” Shockingly, I was wrong on both counts.  No, I’m not being cynical. The Legacy track isn’t convertable to the AMA after a BVA decision. Perish the thought that’s coming into your head.  VA has now spoken. The presumption of regularity posits that they can make no mistakes. Far be it from me to disturb this. We’re all taught to sit there and smile. I’ve learned how to smile while I eviscerate their asses legally. Remember, I have an ax to grind. VA insisted I never served in the Republic of Vietnam for almost twenty years(1989-2008). For the record, I served two tours back to back (5/1970 to 5/1972). And, unlike Senator Richard Blumenthal, I have plenty of medals to prove it.

Lastly, the silver lining in this VA claims cloud is simple. A VSO signed a RAMP opt-in form and failed to file it in January 2018. That failure unfortunately cannot be used against the Georgia Department of Veterans Affairs. They are lawsuit-proof. You can’t sue them for providing free quasi-legal advice and assistance.  However, it appears to have sufficiently shamed the VA into promptly adjudicating the instant claim we filed July 5th, 2019. David’s missus also called her Congressman which helped, too, I’m sure.

Here’s the opening brief and the VAF 20-0995 I used as a template for your own DIY or legally assisted claims:

Robinson filed 0995 for HCV 7-13-2015 redacted

And here’s the decision at 12:34:58 Atlanta Time today. What a wonderful thing to read first thing in the morning over coffee on Pacific Daylight Time…

redact 7-19-2019 100% P&T

And the BVA decision…

https://www.va.gov/vetapp19/files4/19129407.txt

Granted, my client was flashed for terminally ill. He’s my age and my generation. He served during my Vietnam War. He enlisted like me. He’d do this for me if he could. Of that, I have no doubt. Leave no one behind. Not on a Jungle Trail. Not on a Desert Trail. Not on a Paper Trail®. That’s Theresa Aldrich’ tagline, not mine. It evokes my sentiments though. And yes, David and his spouse found me on Hadit.com. We’re all in this together. NOVA is just the uppercase “A” in VA’s ICARE mantra.

So… take a good, long gander at the IMO we submitted above, ladies and gentleman. This is the ammunition you’ll need to win. You cannot submit a letter from your doctor that merely says ‘he got blasted with a jetgun ipso facto he got HCV from the jetgun.’ That will not put the chicken in the pot. IMOs are a medical art form most doctors do not comprehend. They mean well but writing a good nexus requires peer-reviewed citations much like the ones the IMO author referred to in the above IMO. You cannot use internet articles because they don’t have your name on them. Anything from Wikipedia is useless because anyone can post on it. BVA decisions are not precedential. You can claim HCV is caused by alien abduction on Wikipedia and it might stay on there for a week. That may be plenty of time to print up a copy before someone comes along and takes down your artful attempt at subterfuge but it won’t win the claim.

And that’s all I’m gonna say about that.

 

 

About asknod

VA claims blogger
This entry was posted in 100% ratings, Appeals Modernization Act, BvA Decisions, BvA HCV decisions, HCV Epidemiology, HCV Health, HCV Risks (documented), IMOs/IMEs, Jetgun BvA Decisions, Jetgun Claims evidence, KP Veterans, Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA RAMP, VBMS Tricks, Veterans Law and tagged , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

15 Responses to VA SUPPLEMENTAL LANE–BEEN THROUGH THE DESERT ON A HORSE WITH NO NAME

  1. Kiedove says:

    Great win. The IMO is impressive and honest in tone. It must cost a pretty penny to use a professional firm to write what is basically a very good research paper or essay backed up by work experience. What are the economics involved for people of modest means? Go Fund Me?

    In my neck of the woods, many experienced nurses are only offered part-time positions so that the hospitals don’t have to pay for their, yup, health insurance. Some work for two or more employers and still can’t afford health insurance. It seems to me that some might be interested in doing a little extra work helping veterans, as independent contractors, for a little more per hour than they might earn at their jobs. Projects like IMO’s, which could be worked on from home, feet up, might be very appealing.
    Are there any legals prohibitions for writing opinions? Would state nursing labor unions be friends or foes?
    I don’t think it would be difficult for a RN to read the VA Training Letters, grasp the concepts, review the files, etc..
    HCV, ugh. Still a stigma. Hubby had a HCV pre-op test to make sure no little monsters were hiding somewhere waiting to infect the surgeon. Still clear after all these years. Three weeks post “rare” hernia op, he’s doing better.
    Oh, regarding the sharing of razors issue–don’t forget the village street barbers. Their clippers, razors, and other equipment were probably teaming with all the heps. They were popular with soldiers serving in Vietnam–cheap and with a bit of French Colonial-influenced style.

    • asknod says:

      There are no legal prohibitions about doing IMOs. You need, at a minimum, a RN licence to opine on this. The real meat is the cites at the end of each IMO. They have to be peer-reviewed articles and not Wikipedia/internet conjecture. Your IMO will fall flat as a soufle if it only consists of data and conclusions. I always get the claims file and let the doctor read it and say he did. VA likes to say “Our IMO is more probative than yours because our examiner read the claims file and yours didn’t.”

      • Kiedove says:

        For dental claims, would a professional degreed hygienist be okay then?
        From the ADA website:
        “Dental Hygienist Education and Training Requirements
        Education/Training & Admission Requirements
        Dental hygienists receive their education through academic programs at community colleges, technical colleges, dental schools or universities. The majority of community college programs take at least two years to complete, with graduates receiving associate degrees. Receipt of this degree allows a hygienist to take licensure examinations (national and state or regional), become licensed and to work in a dental office.

        University-based dental hygiene programs may offer baccalaureate and master’s degrees, which generally require at least two years of further schooling. These additional degrees may be required for a career in teaching and/or research, as well as for clinical practice in school or public health programs.”
        ———
        And, so I understand things, the VA is currently not obligated to pay for IMO’s if a veteran cannot afford to pay for one. Is that correct?
        It seems like a non-profit might be interested in this problem–with some sort of sliding income fee for vets needing an IMO. Perhaps one already exists? Then, like the visiting nurses, who work for non-profits, professionals could sign on as resources for IMOs–until Congress acts.
        Heck, maybe a new radical sharing system, like giving someone your frequent flyer miles, wouldn’t it be nice if you could donate unused medical services points to vets for–whatever is needed.
        I like this idea borrowed from corporate America.
        Laura

  2. John AKA Gio says:

    I want to Get my certification please tell me how to go about it through your organization i am a American Legion member But their training is in Indianapolis and only twice a year I can’t make it that far I just want to do it on my own could you help me John

    • asknod says:

      John- Here is a complete article with all the links to the knowledge you will need. You need to know Part 3 of the 38 CFR or at least be very familiar with it. I spent two weeks reading every regulation from 3.1 to 3.960. All the test info is there. Just read the whole thing. Don’t try to “top-sheet” the blog or Part 3. Familiarize yourself with 14.628-14.636. https://asknod.org/2019/05/25/memorial-day-2019-dirty-deeds-done-dirt-cheap/

      • Johnny Gio says:

        Thank you so much I hope you remember me is been a while since the big win you post the Waco VA building along with my story Johnny I am sill living in Texas retired going to see my friend in Milwaukee Oregon in August who was in the Air Force veteran for 30 years good friend and Vietnam Veteran I was in the Marine Corps we both grew up in the same neighborhood that than met each other at the same company we happen to be working for and we were on the veterans committee ! Another question I feel I been studying VA Claims really well what after you take the course how do you get certification and take the test at the VA

  3. John says:

    Good one have not talk to you since my win in 2007 or 2008 but still have Claims pending remands form the BVA from Jan 2 2019 They approved a few but they disapproved 7 of them for early effective date prior to Sept 2014 and they renamed 4 issues and sent back to the VA regional office other we appeal to CAVC I made to my 100% back in 2014 the real one I been fighting is the TBI denied at the VA and BVA MD I seen prior for independent medical examination said it was his fault for not being more direct we recently had another independent medical examination for TBI we submitted that to the VA after that amount from the BVA local VA denied it saying he was a medical doctor or not a psychiatrist or a neurologist we are going to appeal that one that one has been going on for years

  4. Good job Alex…..There is so much BS to get awarded a claim. I am happy for your client also. I got my Hep-c remanded ,went to a C&P exam and after the doc said I’ll do the best I can ,she measured the scar on my abdomen asked if I could work now that I have neuropathy in feet and hands I said no. Been 7 months since the RO got it from the BVA.

  5. Ronald Smith says:

    It is truly not surprising is it. When you try to play the game with the VA, they change the rules so you cannot win most of the time.
    “Oh we need this letter from your doctor. What is his name?” and likely those same ones call the doctor you name and tell him not to give the letter to you. That is, in my opinion why they–the doctor– won’t give you that much needed letter.
    According to Doctor Eric Byrne, Psychiatist, who authored the book “Games People Play” he mentions the “Why Don’t You Yes But” game. If one hasn’t read that book it is available through Amazon, no plug intended. Everyone should possess a copy and read it religiously when dealing with the VA. It is how I eventually got a 100 percent rating. Plus I didn’t give up either.
    Always remember the words of Captain Joyce Reilly, USAFR, “The only winning move is not to play their game.”

    • asknod says:

      It’s not nearly that vindictive, Ronald. VA has a manual (M21) that instructs what to do. How to do it when to do it. Your job is to come up with three ingredients. Asking VA to supply one of them is ludicrous. They are an insurance co. They don’t like to fix your body or pay you. Regardless of what they say about nonadversarial, it is. You play VA poker right and you win every time. No mirrors. No ace up your sleeve. No cheating. Beat them with their own rules.

  6. T Robinson says:

    >

  7. Longfellow Rogoczy says:

    Outstanding job A!
    I can see this was a particularly tough claim to prove as according to the paperwork shown, this soldier only had 77 days active duty.

  8. cdneh says:

    Excellent.

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