Wowser, I thought I had a good week with three wins but now I find it was four. Nothing gives me greater pleasure than to announce my squid/grunt/doorgunners’ success over the Eeeevil Goliath VA. You Veteran clients don’t realize it but you are one of those statistics that VA keeps track of. A chicken dinner winner (100% or TDIU) occurs exactly 12% of the time at the VARO level. The percentage jumps up to 22% at the BVA and to 74% at the CAVC counting all forms of set aside/reverse/vacate. Even better, when broken down, VA attorneys and the Great Unwashed Agents account for a whopping 35% of wins at the Board level alone. I’m appalled. It should be 100% of the time.
Seriously, folks. I’m just a JohnnyVet myself and new to this claims game but if the claim has merit, you can win it. I look at my early, feeble efforts to fight my own appeals. Like most of you, I foolishly relied on VSOs who couldn’t find their derrieres with a methane detector. It took me 18 years of defeat before the VA Rosetta Stone gave up its secrets to me.
What set this story off was US Congressman Derek Kilmer helping me get my medals 43 years after they were awarded in 2013. In 2015, a close neighbor’s old platoon company got together and helped him get a long-overdue Silver Star. Naturally, Congressman Kilmer (who helped immensely) was there to pin it on him. For reference, a Silver Star is one step below the Medal of Honor. Usually, the Company Commander, a 90-day wonder with slats, is the big winner and the enlisted underlings get a Bronze Star- maybe even one with a “V”. Or an ACM…or nothing
Anyway, Ed was having big problems with his VA claims. Congressman Kilmer called in his chit and asked me to represent Ed. What could I say? Kilmer’s Krewe can prestidigitate NARA records from Vietnam out of thin air in less than a week. That’s an important asset in this day and age of trying to get a Monday Morning Report showing your client present and accounted for at Phu Cat Air Base, RVN 96368 (Binh Dinh) on TDY. Yep. Becoming a member of the Nehmer class is getting that difficult.
Ed didn’t have to worry too much about proving he was in-country. He was a two-year ARPAC idiot like me. He also racked up a BS, a PH, and an Air Medal. Ed was a LRRP. He managed to eat a hand grenade or the better part of one up in I Corps. Army guys like shrapnel scars. It makes them feel tough. Ed’s problem was he had plenty of shrapnel scars but he didn’t have enough ratings to get a TDIU. He was certifiable after two tours in country but 20 years as a LA County Sheriff and Lieutenant really amplified the Bent Brain Syndrome. The bigger problem in my mind was the Ischemic Heart Disease. Ed had the Big One (Myocardial Infarction) back in 2005 and some important muscles died. And, knowing cops, he probably ate his weight in donuts 5,000 times over which didn’t help the coronary artery circus in his chest.
Ed the LRRP’s problem was identical to my Ed the Huey Doorgunner who won last week. See https://asknod.org/2019/08/25/phu-hoi-the-128th-aviation-co-assault/. He had the same exact balance of 60% for IHD and 70% for Bent Brain. After I lit the fuse correctly, it was just a matter of time for the win for Ed the doorgunner. We just stirred in a call to the WH hotline to bring it to a boil.
Ed the LRRP went down the exact same road. I patiently guided his PTSD up from 50% to 70%, His IHD had fallen to 30% based on his METS score but he was blowing less than 50% on his Left Ventricular Ejection Fraction (LVEF). That deserved a 60% rating which I got- but they denied the TDIU. This is Portland VBA 348. They are some kind of hard asses down there. Even the CMA is a dick. It must be depressing with all the Antifa/White Supremacist riots. Why do all these yayhoos have to congregate in the Northwest?
Somehow, the Portland Poobahs had gotten this misguided impression they could deny based only on the IHD. I filed a NOD and pointed out the denial only discussed the IHD disability to the exclusion of any mention of the PTSD rated at 70%. The combination of the two disabilities, in concert, were simply too much to overcome in seeking meaningful employment. That cush job selling Hawaiian timeshare condos for $12,000 a week just wasn’t going to be in Ed the LRRP’s cards during his current incarnation.
Now, we all know about Hart v. Mansfield, 21 Vet App. 505(2007). Hart held that additional development is not permitted “if the purpose was to obtain evidence against the claim,” and further noted that if the evidence was insufficient to make a decision on the claim, then the Secretary was required to obtain a medical examination. Id. at 508 (emphasis added). Well, I guess the folks in Portland never heard of Hart-let alone Messieurs Mariano and Kahana. They already had baskets full of medical evidence and VR&E reports from shrinks saying Ed the LRRP was incorrigible. He enjoyed kicking ass and taking names. The VA “examiner” proceeded to hammer two VES doctors (a shrink and a ARNP gal) to “modify” their diagnoses. Was mitral valve prolapse really part of IHD? Was having a raging anger management problem really an issue to sedentary employment out of the home? This went on for about three months. Then two more. Then another month. Each point where I expected this to bust open, another c&p was scheduled.
Finally, two years later I draw a pair of Eds. Identical ratings. Identical TDIUs. Both started out in my neighborhood and both were in the Army. Ed the LRRP moved down to Oregon which is why his took so long. And two Hepatitis C wins. Same war. Different continents. It ‘s a small world but I’d hate to have to paint it- as a good friend put it once..
Ed the LRRP’s TDIU:
And that’s all I’m gonna say about that.
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THIS truly one of your all-time best posts. Could you have imagined thirty years ago that you would be used in 2019 for such a meaningful purpose? Further, regarding “The Silver Star”, my own late father; CWO M.W. Oliver was awarded the Silver in 1948; San Diego, CA; precisely on the Island of Coronado, where the Naval Air base exists today.The late Admiral Chester Nimitz flew from D.C. to present him for an incident that occurred in the Sea of Japan in 1943 on Oliver’s submarine, an “incident” never mentioned to his three children during the eleven years I knew him. Oliver served as submariner from 1929 to 1948 when the Navy would finally discharge he and others they were reluctant to dismiss.