I guess that header will grab you by the eyeballs if nothing else doesn’t. Yes, Ladies and Gentleman Veterans, to plagiarize a horse-racing term, I am finally busting my maiden as “First Chair” as litigators refer to the lead attorney at the Federal Circuit-or hell- any circuit for all I know about this shit. Remember, I’ve been flying by the seat of my pants in this VA law business now for all of three years and two months that I can admit to legally. My DIY “help” blog and book could have been used to prosecute me back in a more litigious-minded era a decade or three ago-but hold the phone, Joan. Speaking of the Devil.
Wait until I tell you about them spilling the beans at the Portland Fall NOVA extravaganza about all these hokey-paloky companies who play VA Sherpa and charge you $(XXX),XXX.OO or about 40% of your gross retro befoooooooore any shekels for the 20% attorney/agent fee. But wait. They get to fill in the blanks for all the “IMO”s and “Vocational Expert-Employability” costs with one of those fancy LRC, MMR CRI suffixes. Like the VA rater’s gonna know what they are, right? No way. They’re looking for M.D. or ARNP. Okay. Imagine getting $50 K retro as a nice round figure. Your law dog, assuming you can never win using a VSO, gets 20% of this. It pays for the office, the secretaries, the $10,000 copy machine, six computers and a server. It pays for one of those secretaries whom is going to be a a paralegal. More $$. It pays for the electricity, the internet hookup and a whole lot more. So that’s pretty straightforward. Oh, and that $200,000.00 student loan has to be serviced along with your home mortgage etc. So you cough up $10 K to the law dog and take home $40 K in the real world. But, if you fell for the ploy of getting a bush-league IMO (Independent Medical Opinion) from anyone but a top-drawer outfit like Mednick Associates and paid twice the price, watch out. If you can’t even spell the guy’s last name-let alone pronounce it (and his address is 1234 RR # 1, Lahore, Pakistan (did I mention that before?), you may be in for a rude surprise. Did I mention they don’t charge if you lose? So you’ve got that going for you.
See? You find out why DAV, VFW, AmVets, AmLeg, **P and the other 144 Veterans Service Organizations do it for free. It’s also why only 12% of you prevail and win. This isn’t Powerball Lotto luck. It’s a science with a defined recipe for instant success. This is why I’m a “practitioner” as they define me. I’m no longer a bystander. There are two kinds- a VA attorney or a VA Agent. If you are admitted to the Court of Appeals for Veterans Claims, they promote you to “nonattorney practitioner”. I was granted that austere honor in November 2017-a day that will live in infamy for Shulkin and his progeny. Since the Court is always right in everything they do, I’m not going to pester them and tell them the “Esq.” after my name is incorrect. They’ll figure it out. What the hey. Maybe I got one of those “honorary degrees” in law and slept through it. Shit happens when you get old.
The Statute and Regulation permit only accredited legal help. It’s not a very exclusive club. Thousands and thousands all have their hats in this ring for Pension work/A&A in old folks’ homes. There is the second group who specialize in true litigation-benefits. NOVA consists of the creme de la creme of VA practitioners. So if you used one of these new illegal interlopers with no VA accreditation, they have no legal standing to sue you for failure to pay them. Let’s look at this.
The regulations are easy to read. §§14.628- ,636 explains it all. Twenty percent is the norm if you let VA collect it and give it to the lawyer. You never see it. Hey, they earned it in 99% of the cases I see. A VSO guarantees 100% of nothing and invariably delivers- for the advertized price (free).Then there are the “bigwigs” who charge up to 33%. You can do this if you agree with your leagle beagle that you will pay him directly and cut out the VA middleman. I would never think of charging more than 20%. Now throw in a 40% pre-gross rider from your new Sherpa VA bloodsucker. Should be easy peasy shooting to put this scoundrel in jail for practicing without a license? Ne c’est pas?
That very question was asked in front of not only Board of Veterans Appeals Chairman Cheryl Mason and Director, AMC -Mr. David McLenachen. I deeply respect both of them. They are, by financial necessity, a captive audience and are not expected to bite the hand that feeds them. Nevertheless, it is interesting to note that they were the ones to let the cat out of the bag. As officers of the court, they aren’t allowed to lie. The VA Office of Accreditation(OGC 21 D) nor the VA Office of Inspector General (VAOIG) has made any concerted effort whatsoever, to quash this new obscenity. Worse, a new one is popping up every month! The excuse seems to be a quandary over just who has judicial authority to ask for an indictment to desist or to enact a congressional statute to specifically forbid it with monetary and/or incarceration penalties. While VASEC fiddles, 810 Vermont Ave NW burns.
Back to LZ Cork. If you’ve been reading any the 42 blogs that come up on the Search bar, you know all about my neighbors Butch and Barb. This all began over a missing Purple Heart back in 2012-or early 13. I disremember exactly when Butch and I hooked up and had a beer summit in downtown Key Center, Washington. We live there. The town is like a John Denver song.
After mulling over my second loss in over a thousand, I’m satisfied that it’s not case or controversy so much as the money. We’re talking about an incredible amount and I don’t mind saying so. It’s always the 800-pound-elephant-on-the-sofa conversation topic but no one ever says so to my face. VA always calls it a “travesty of Justice” or an unfortunate confluence of events that created the fustercluck but ‘we made it right in 2015 so it’s all better. We’ll have no talk of §3.156(c) (1)(3)(4) here. There’s no claim.” Poof. Back to work. I choose to agree. When I set out on this journey, there was never any money in it for me. Nor, by law, was there any when they won in December 2015. Since I had begun my quest to become an agent in 2015 before they ever filed, it cannot be said with any certainty that I would become accredited in time to benefit financially. VA likes to say Justice Delayed is not Justice Denied. (Caffrey v. Brown). Horseshit, I say. It’s a matter of honor now for Butch. You call a man a liar who has a Purple Heart and CIB and you may get a spirited discussion on the subject. I think that falls into the category of a #ExistentialThreattoVeterans.
Cupcake and I have invested an incredible amount of our lives to this project-not just Butch and Barb. I saw a BlueBloods show last night about Project Innocence legal clinics and their worth. I read a great novel to and fro from Phoenix about the same subject- John Grisham’s The Guardian. Great book. I liken myself to them. Our object in VA law is not to exonerate an accused felon. It’s to exonerate a Veteran wronged of his entitlement under law. I refuse to drag out all the eggs to omelettes analogies. Suffice it to say, I’ve discussed this with Butch and Barb many a time. We’ve had two noticeable financial successes but true entitlement- and a clear path to it legally-is simply too much to swallow for the VA fisc without a good fight. I expect I’ll be citing a lot of Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (explaining that “litigating positions’ are not entitled to deference when they are merely appellate counsel’s ‘post hoc rationalizations’ for prior agency action”). Thank you Mr. Martin.
I’m waiting on the Secretary to supply us with the damning Record Before the Agency (RBA) and a sixty day shot at the Rule 33 conference afterwards. The legal position is simple- no JMRs, No JPMRs. I want a Judge’s stamp order to remand this for implementation of entitlement to compensable TBI @ 30%, Tinnitus at 10%, headaches at 50%, and LOU of vision in the right eye @10% effective from 4/29/1970 RAD. That’s, of course, in addition to the 10% for the R hand SFW @10% and the new CUE of 10% for R Upper arm @ 10% which are now effective as of 4/29/1970. And, if I want to be a vindictive asshole, I should ask for a Fenderson staged rating on all entitlements over the intercurrent fifty years. Here’s why you can do this.
Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)
The regulation (38 CFR §3.303(b) requires continuity
of symptomatology, not continuity of treatment.
Think of that. You have the combat presumption under §1154b. Anything that comes out of your piehole is the truth regarding the etiology of your injuries and the resultant symptomatology that accompanies it for life. VA has to rebut your testimony of your symptomatology by clear and unmistakable evidence that rebuts your testimony. As anyone in this business knows, VA is held to the same CUE requirements we are. They don’t get a leg up in this dog and pony show. If there are no medical records to review in the last 50 years to make a determination, that is not the fault of Butch. Had they gone back to the NPRC to get the STRs, we wouldn’t be having this conversation.
And that’s all I’m gonna say about that. Stay tuned on CM/EFR TV for an exciting conclusion to this now almost seven-year Odyssey.
Here’s the best of recent submissions. Humor is essential to life.