First of all, I wish to state that I am a person of color in addition to being an American citizen. I’ve been wanting to say that ever since they reminted the word ‘racist’. Look in the mirror. We are all persons of color. Here’s a cool story about my neighbor, Ed. We knew each other from way back in the 90s long before we finally realized we were both Boots on the Ground brothers. That happened about the time I won 100% in 2008. Today, we welcome Ed into the 100%er’s club. It took far longer than I would have ever expected and the B40 that got things moving was none other than the White House Hotline. Pop a cold one and sit down.
Ed signed up in ’68 and took the 67P20 MOS rotary wing repairman course in AIT. Next stop was Germany. He re-upped after a year and promptly drew a winning ticket and an all expenses paid vacation at Phu Hoi for a year with the 128th Tomahawks. He said one of his high points was flying the old D models. They tried to egress a hot LZ one afternoon with 9 grunts in the back. The Peter pilot pulled hard pitch to get moving and dipped forward a little too much too early. The rotors barely touched the dirt in front but it was too much. They barely made altitude and promptly lost pitch. Ed’s unbroken record of an equal number of takeoffs and landings went down the drain about 30 seconds later… outside the perimeter of the by now very hot LZ. They splatted into the tree canopy and toasted the Huey. Everyone made it to the ground and waited it out with the gooks all around them til the next morning to egress and hitch a ride out.
Come on. To a VA rater, an M 60 isn’t really that loud if you have your flight helmet on, right? Wait a minute. Flight helmet? Like in aircrew? Huey jet engine scream? So how did the hearing loss claim fly out the window for the next eighteen years? Remember, Ed’s a combat Veteran. He has an ACM and an Air Medal. §1154b Combat presumption? Anyone? Or Moody and the sympathetic development of his claims?
I met Ed through another fellow who did my dirt work sometime back in the 90s. Unbeknownst to me, Ed began filing in 2001 for what was obvious- PTSD, skin conditions, hearing, headaches, peripheral neuropathy and persistent urinary tract infections. He managed to snag a 30% for Bent brain for a few shekels in 2003. In spite of filing for hearing loss, he kept coming up with a dry hole. Seems like DAV wasn’t up to speed on filing him for bodacious tinnitus. He knew he had it just like we all do except he didn’t get his from an IBM Selectric typewriter while flying a desk. He didn’t have a name for it and VA (and DAV) weren’t going to help him sound it out with Phonics™.
After his heart attack in 2005, he got 60% for IHD. He did all this with little or no help at all. We got together after I began legally helping folks here locally in late 2016. I filed his increase claims for the bent brain, IHD increase and tinnitus on 3/10/2017 and went ahead with a POA ahead of time just to be street legal. VA countered with an increase to 50% for bent brain and 10% for the ear ring …but reduced his IHD back to 30%. It resulted in a push- he stayed at 70% but it pretty much screwed up any chance of TDIU. I think that was their plan from the outset.
This “file and get reduced” game is a classic VA scare tactic. Most Vets- and most certainly their VSO representatives-always shit in their shoes when Vets go up for increases that put them in range of TDIU. They’ll even tell you how VA will take it all away from you if you get greedy. My guess is his own rep. probably told the VA rater they could get away with it. I’ve seen them argue against their client’s best interests more than once.
This is where we took off the nice guy gloves. We filed 12/7/2017 and got to work assembling a bulletproof NOD with a heart record showing LVEF below 50%. His private doctors agreed it was really 49%. VA predictably had said 55-60%. And then the wait began. We’d asked for an increase on the bent brain to 70%, restoration of the IHD back to 60% and TDIU… and all we heard was crickets.
I’d call the DRO up in Boise every six months and ask whazzup with Ed? More crickets. I started asking my CMA Tina if she could jar it loose to ratings. No dice. Even more crickets. They were sitting on this like a constipated hen. The standard wave off was “We take every claim in the order it is received. Tell Ed he will just have to put on his big-boy pants and suck eggs for a while longer.” I didn’t buy it.
The White House Red Carpet Treatment
Last week, Ed called and said the savings account was getting a little skinny and how could we get this puppy rolling. I noted it had been twenty months-608 days. Considering we Vietnam Vets are at the top of the pile for priority decisions right behind the last WW2 guys and the Korean Boundary Dispute Vets, we should get top-drawer service. The VA says 535 days right now is average for a SOC or a favorable grant on appeal. I suggested we take off the nice guy pants and supplied him with the White House Hotline Number ( 1-855-948-2311).
Ed called the WHH Monday morning, 8/19/2019 at 0800 sharp. And here’s where the bullshit gets pretty deep. The booth bitch took the complaint and promised to look into it with VA. Count ’em. Tuesday, Wednesday, Thursday go by. Friday morning at 0923 hrs, Sheila from Boise calls me and introduces herself. We exchanged pleasantries about the weather and confirmed my POA. Sheila tells me they had blisters on their fingers nigh down to the bone diligently working Ed’s claim since (gasp) 8/14/2019. It seems they had gotten a nasty inquiry Monday the 19th about an alleged delay. Sheila wanted to assure me that was not the case. No siree, Alex. In fact, miracle of miracles, they’d been burning the midnight oil all week long and just finished promulgating his decision with a “favorable grant” and wanted to know if I would waive the 72-hour hold (sight unseen) to review it. I guess she thought I was a room temp VSO. I had VBMS online and pulled him up on the screen. Sure as shit, there it was. I played dumb about VBMS and said as long as it was “favorable”, I’d blindly agree to the rating in full and told her to push print. Of course, that would be against the law not to consult with Ed, but since I could actually see it was a real 100% P&T grant and not another bait and switch, I agreed.
The bullshit factor here is I can see every note and every action the raters take on any day, and often the hour and minute they take it. Ed’s NOD had been as cold as a dead mackerel in winter. There hadn’t been so much as a fingerprint on it since it was stored in VBMS on 12/17/2017. The note in “Go to Work” files said “initial development- NRTR (not ready to rate).” The truth is simple. Somebody looked it up and realized they had blown the suspense date for ackshun by about six months. But remember, VA employees do not lie. Never. Verboten. This is not the first time it’s happened. Since few of us have access to VBMS, they think they can blow smoke and we’ll just be no wiser forever.
I promptly put on my ignorant hat. Being a civilized litigator, I thanked Sheila dearest profusely and begged her to overlook my client’s incredible lack of tact, rudeness and impatience and his uncalled for WHH faux pas. Boy howdy, he sure hadn’t run it by me ahead of time or I would have forbidden it. Trump has a lot on his plate right now trying to buy Greeenland. Since she had promised the decision granted everything we wanted, I assured her we wouldn’t darken her door again. Well, not soon anyway. I’m sharpening up the SMC punji sticks as we speak. What about TBI for that unscheduled Huey landing in the upper canopy? Jeopardy, anyone? I’ll take headaches for 50%, Alex.
No Mo’ Dough
An addendum to this. It’s apparent VA has run out of dough for the current fiscal year ending 8/31/2019. The reason? I’ve been watching the posture of my oldest clients’ claims-including Ed’s-and the delay in adjudications is getting embarrassing. I have a Navy Vet over in Allyn, WA. He’s a SW Asia Vet from the Iraqistan misunderstanding so I get it if he isn’t at the front of the line. The problem is VBMS shows him RFD (ready for decision) on 3/18/2019. Do you mean to tell me with the National Work Queue (NWQ) in high gear, they can’t find someone to write this decision? It’s not a crapshoot. I got him a dynamite IMO for bent brain and they’ve been chewing on pencil erasers like bubble gum for a year trying to rebut it. He is just one of about eight or nine others in the same RFD status. VA doesn’t appear to have any money and their litigation posture seems to be “wait until after 9/01/2019”. If it goes past then, the WHH is going to really get some traffic.
I’ve also suggested you folks doing this yourselves (pro se) to let VA deny you before you go on the offensive. Let them show you their denial hole cards first. It’s easier to rebut the denial and argue each one of their reasons than to send in an IMO and let them eviscerate yours first.
Rope-a-doping the VA
I described this on the last Hadit.com radio show a few weeks ago. Remember (if you’re my age) in 1967 when Muhammad Ali (born Cassius Marcellus Clay Jr.) went up against Sonny Liston? Ali did a “rope-a-dope” defense for five rounds and let Sonny bounce him off the ropes. He let old Sonny get plumb tuckered out. In the sixth, he came out and gave him a right cross to the noggin and TKO’d him. This is how you want to win.
Here’s my rope-a-dope defense. I file the bare minimum to begin with. I gladly fill out the VAF 21-4142s and send them in with all the info. Have you ever wondered why, after you do all that, the private records never get into your files? Newsflash. VA will not pay your providers for your private medical records. When the VA calls and says
“What’s the deal? We asked for JohnnyVet’s records and you haven’t coughed them up.”.
The transcription office assistant says
“Sure. That’ll be $151.63- payable to CHS for Mr. ____________’s medrecs.”.
“Sorry, no dice. We don’t ever pay for them, ma’m.”
Ms. Transcription assistant promptly says “No problem. We don’t ever hand them out for free either. Ta Ta for now.”
You get denied and never know they didn’t obtain and review those requested files unless you get your c-file. That usually happens about six months after you lose and ask to obtain a copy.
My time-proven technique seems excellent-even more so with the new, improved AMA system. Unless you’re filing for a missing foot due to an IED and there’s absolutely no reason on earth to deny, it’s pointless these days to construct a beautiful 20-page brief explaining why your client is entitled to Hep C and you have all these wonderful cites with Internet links and 8 1/2” by 11” glossy photos in color. Let VA show you their two pair. Get the IMO, if necessary, and only then lay down your full house.
Here’s Ed’s brand new rating. The best part is his daughter is still within the magic age limit to get free college under Chapter 35 DEA benefits. I guess the thing that eats me is the interminable delay that increased my representation fees. VA could have had this thing out in January 2018 after everyone’s hangover had subsided. So much for nonadversarial.
Check this one out if you wanted to know what”air assault” looked like in Vietnam.