CAVC–#19-7301–LZ CORK-BUTCH’S LAST STAND


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?

BVA Chairman Cheryl Mason

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.

LZ CORK

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.

About asknod

VA claims blogger
This entry was posted in 2019 Fall NOVA Portland, 3.156(c), All about Veterans, CAVC Knowledge, CUE, KP Veterans, LZ Cork, Tips and Tricks, VA Agents, Veterans Law, VSOs and tagged , , , , , , , , , , , , , . Bookmark the permalink.

6 Responses to CAVC–#19-7301–LZ CORK-BUTCH’S LAST STAND

  1. I’m impressed with much you have said herein. In my own Legacy Appeal of 156 months (Certified); we are in the primary stage of the 2nd JR with the BVA. Since their last denial; #1. Used the “incorrect legal standard”, and #2. Their performance with a non-C and P exam in 2017; i.e. VA “Clinician” instructed me at first sighting that he was instructed to NOT exam , to not discuss (he did briefly) and to write from the record; which did not include remand evidence that proved materially that VA was “in error”, a minor issue discussed amid the churning of my 2nd CAVC appearance, and which said BVA admitted same error. Nonetheless, two years wasted and incorrect legal so-called expertise from the BVA v/s puny moi; now with shy but effective 20% Attorney since our JR in the CAVC and who has been correct at every legal junction we have encountered. Previously described legal liabilities appear ready to bite BVA ass..

  2. Kiedove says:

    I did read the Mednick Associates IMO you uploaded a while back and was impressed. I also like the fact that they are fixed rate. But even at $750 case review + $750 written report = $1,500 upfront is unaffordable for many.
    Suppose VA pays an “outsider” $150 for a C & P exam….why should Congress allow vets to pick their own private doctor and have the check go to that doctor instead. Bias could be present in either case but less so, in my opinion, with a private doctor picked by the veteran. So the vet doesn’t have to feel as if he is begging for a favor.

    https://www.mednickassociates.com/wp-content/uploads/2018/11/Fee-Schedule-VA-3.pdf

    Is the fee schedule for C&P exams (non-VA) posted anywhere online. I expect its not priviledged information because Medicare posts fees it pays for exams and services. Ex. What does VA pay for a hearing C&P exam to an outside doctor?

    • asknod says:

      The need for Mednick is simple. I do not know the doctor. S/he is picked at random so I can’t “buy” an IMO. If the dr. doesn’t say it flies, it won’t. Remember, this is about putting your John Hancock on something. That’s your reputation. These Docs have 3 or 4 page CVs spanning decades- not some scrub nurse LPN or a lowly GP MD with no specialty.

  3. john king says:

    I got an ex-VA psychiatrist to do a report for me and she accepted my medical insurance payment for the report that won me P&T. $600 for a report that costs the MD a couple of minutes of work is absurd. I have never paid for any IME or IMO. My doctors did them as part of their treating me.

    • Kiedove says:

      John, You are fortunate. I think that even some the Questionnaires can take a lot longer than 30 minutes. And they aren’t exactly written to help the veteran! It might be good to write another questionnaire or addendum one can bring to a doctor that will cover the bases. Medicare doesn’t pay many providers very well so any way to reduce the time for IMOs would be good for vet and doctor.
      Many veterans simply cannot afford $600 or more for an IMO and I suspect, neither can many advocates pay upfront. If VA is willling to pay for a C & P exam, why can’t that money be used for a private IMO? Vets choice…

  4. Raymond Frus says:

    Very good report. You always have a way with your words. I had to talk to a shrink and an MD which my lawdog set up. Maybe 15 min. w/MD and 30 min. with the shrink. The law firm charged me 600 for each. But they do only take the 20%. Thanks again for all of your expertise. Ray

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