Merry Christmas to you all. If you are not Christians, I apologize. Happy whatever. Let there be joy in these troubled times regardless of what religion (if any) floats your boat. This year has been very, very good to my clients. I write, however, to a much more vast audience than just Veterans. Or at least I hope I do. As most know, I belong to NOVA. Many of these members claim they read my blog. If so, I hope I provide useful information to them as well.
It seems, regardless of what season we are in, we have trials and travails that seem insurmountable. I get that. If you have never had a denial by the VA, you could never experience the thrill of what it feels like to open that big, brown envelope and discover what’s behind Door #3. This is one joy of practicing VA law. I am honored to provide that ray of hope or financial stability in my Veterans’ lives.
Many of us who practice law are appalled at the interminable delays in the process. Worse, statistically, only 12 to 15% of you Veterans win your claims at the outset. It should be far higher by my reckoning. I won’t brag but this year saw only two losses-both at the BVA. I pride myself on using the new VBMS to the utmost as a crowbar for my unparalleled success. It’s much like being the fly on the wall at the local Fort Fumbles across our fruited plains. For the most part, I can literally see the VSR, RVSR or DRO involved in an individual claim and its relative progress through the system. I can see when the c&p exam is scheduled, the parameters of what they are going to ask for and the expected outcome they are looking for.
VA raters tend to “telegraph” what they expect from a rating when they write instructions to the QTC/VES folks. It used to be a c&p for Hepatitis C would instruct the examining doctor to comment on the fact that Jetguns were not proven to transmit Hepatitis C-a sotto voce de facto request to deny based on the Vet’s claim alone. True. Jetguns were never proven to do so but that ignores the fact that the CDC suggested strongly about Yule time in 1997 that they were mighty darn suspect in transmitting the disease. Et voilá! No more jetguns and surprisingly, the horrific number of cases in the military evaporated.
Towards that end, I have retired my Jetgun from BVA hearings. Science and the VBMS have made it possible. Nowadays, I just call up or email the rater and inform him/her to please proceed post haste to issue a decision-pro or con- so I can begin obtaining an Independent Medical Opinion rebutting their findings of fact. Twice now, this has induced them to rethink whatever denial logic they had planned and concede service connection for Hepatitis C or Agent Orange complications from service in Thailand. In another case, on a §1151 claim, I told the Coach she was wasting her time looking for a signed consent form to use Interferon. She ignored me and kept kiting requests over to the Little Rock VAMC for three months asking where in Sam Hill was the document? I guess I didn’t convince that one.
I plan to use this technique far more in the coming year. At $2,000.00 a pop, I can save my clients money and stress and even substantial delay in most cases. I call it the Chieu Hoi technique. Chieu Hoi, as my Vietnam Brethren know, means surrender in Vietnamese. It seems VA raters are beginning to see a major uptick in VA litigators using IMO outfits like Mednick Associates to supply them with viable nexus letters. VA has no defence against this. They can deny but by law they cannot go out and get negative opinions to keep on denying you. Check out Hart v. Mansfield, 21 Vet.App. 505 (2007) to see why. Also Mariano v Principi/ Kahana v Shinseki ad nauseum.
As the title of this blog implies, the waiting is most definitely the hardest part of the stress and financial strain a decade-long battle with the VA does to you. Now, imagine what it does to your VA shield bearer (attorney or agent). I, myself am not quite as challenged financially. I don’t have to service a $200,000 Pell grant for a student loan debt. I’m a smug, over-entitled white guy on SMC S and SSA so I don’t have to watch the mailbox with 9X50 binoculars and bated breath for every check from VA to arrive for my 20% representation fees. In many cases, I receive nothing because I prevail at the outset without having to file those 20-0995s for a supplemental shot at a win. As for the newer 0996s, I don’t do Higher Levels of Review (HLRs). They’re worthless and I won’t give the VA pukes satisfaction with their grotesque caricature of nonadversarial justice. I prefer to go to the BVA with a new VAF 10182 and have a real judge adjudicate it using real VA law- not the M 21-1 abortion version. Unless it’s obvious as the wart on the Wicked Witch of the East’s nose, you’re wasting your breathe and the client’s valuable time.
VA attorneys and Agents, often are disenfranchised by the VA’s finance department. I’ve seen Attorney/Agent Finance Coordinators (AAFCs) take waaaaay over the allotted 60 days from a decision to issue the authorization for the release of funds. It usually takes another month to push “Print” and send it to me. In two cases this year, they came back and issued a change order authorizing disbursement of 20% over three months after claims I won on the first try. The VA rationale was the new AMA theory- that if you ever applied for a benefit under the Legacy system and were denied, any subsequent grant was a “successful” appeal of sorts-even 9 years later! This is dubious law but far be it from me to argue. I just wonder who pays. I can’t see any evidence my clients got whacked post-decision for the error. Do they just eat it? Who paid for this? It sure don’t come out of the Christmas Party fund we pay for ($100 dealer prep and destination fees)
ATTORNEY FEES PAYABLE
Even funnier, for those of you who have VBMS access, I have noticed another aberration that telegraphs VA’s intention to grant long before we litigators or the client get the Magic Paper-or even see the grant posted in the VBMS. Allow me a little show and tell. Once you gain access to the client’s efolder with your Power of Attorney (POA), you can go to the Veteran’s Profile. Look in the upper right where you choose which tab to view (i.e. Veteran; Informal Claim; Documents; Ratings; Notes. Click on it and it opens to mundane info like name, rank, airspeed, tail number and last known heading. Scroll down to “FLASHES” and click on the +. Several things are listed. If the client is terminally ill or flashed for hardship, that is listed. Likewise, since April 2019, any clients with a Purple Heart Medal will have that listed as well which also gives them a quicker adjudication. If the documents are very old or there has been no new claim in 30 years, they show as still being unscanned at the Records Management Center (RMC). If you were boots on the ground in Vietnam, it will list that, too. There are other inconsequential entries which are immaterial to this blog so I won’t address them. Of most import to litigators, however, are three entries.
After you initially file to represent, you usually file a VAF 21-526EZ or a 20-0995 Supplemental to begin your client’s legal journey. At this point (but not always), the VA AAFC will enter “Attorney Fee”. The clear implication is that you have filed a POA and an acceptable Fee Agreement to qualify for your 20%. After a denial, I usually file a rebuttal and begin the appeal process with an IMO. At that time, I often see the entry “Potential Attorney Fee”. Lastly, when it’s fairly obvious the raters have no legal reason to continue to deny your client, you will see a new entry-“Attorney Fees Payable”. Sometimes this appears prior to that. I have no hard and fast info on why but I merely report what I have observed over the last four years.
I’ m sure there are better descriptive terms to describe what this means. In Southeast Asia, during our war games fifty years ago, I once heard a Sargent tell a guy you could almost always predict when a gook was getting ready to launch a B 40 RPG at you. He’d pop up and try to get his range in the first appearance and promptly duck down. Ten seconds later, almost to the dime, he’d pop back up with the armed rocket in the tube cocked and locked and pick his target. Poof. Gone again. The third time he showed himself was showtime. Sgt. Ralph described this procedure as “telegraphing” his intentions. Hence my appropriation of the term above. The agreed-upon procedure was to keep you rifle pointed exactly where he popped up the first time and get two tries to take him out. We had great success using this technique if you had the balls to expose yourself that long.
Conversely, I have begun representing clients and found “Potential Atty. Fees” added before I begin my litigation in earnest with a NOD. One thing is for sure. You will rarely, if ever, see “Atty. Fees Payable” on anyone they do not intend to grant to in the early stages absent a trip up to the BVA. By the same token, I have clients who have already won and nary an entry about anything more than the initial “Atty. Fees” entry. It seems there are lazy AAFCs out there. Seems every Regional Office has two or three of these troopers. Considering how few of us win, it’s intriguing why they are slackers on data entry.
There are many little widgets to click in a Veterans VBMS efolder that unveil interesting trends. One notable one is important. VA rarely sends out for a new c&p exam after a prior denial unless they have already chieu hoi’d and are preparing to grant. The reason is simple. They need to know how disabled you are in order to assign a rating. In the case of my Vets with Hepatitis C claims, I always see a new QTC/LHI/VES request for a c&p shortly after I see the “Attorney Fees Payable” populate in the Flashes section.
As I mentioned at the Fall NOVA conferences in Portland, one of the most intriguing sources of whazzup? info appear in the “Go To Work Item” widget up in the left when you open the Claims tab and click on the instant appeal. I’ve found preliminary rating decisions spilling the beans sitting there awaiting rater approval or a second signature. Look for sneaky deferral notes. Screen grab them to show claims gerrymandering as they will disappear after the rating fiasco.
Unfortunately, the 20% for the calf scar was 26-year protected…
Now, granted, almost all of my clients are combat Vets-the very least of which almost always have a Purple Heart. Most have a few CIBs, CARs and combat V’s or other giveaways as to their jobs in the military. For some reason, VA gives them added attention and a more deferential treatment-especially if they are filing for Bent Brain Syndrome.
Thank you, all of you who have entrusted your claims to me. On behalf of Cupcake and myself, I hope we pass the audition. I don’t need to go into particulars but I lost my religious beliefs about six months into my first tour during the War but I still consider doing this to be God’s work. I only hope my body (and mind) will continue to permit me to do this for years to come.
Again, a Merry Christmas to all of you who come here. Forget my insufferable ego that drives me to be so sarcastic. Remember that my end goal is the highest and best rating I can attain for my people. Money will never be the reason. I wear my insult from a National DAV Service Officer proudly like a Scarlet Letter on my breast. He called me a bloodsucking VA Ambulance Chaser. So be it. I’m probably going to go to Hell but I’m going to make life absolute Hell for the VA until I get there.
P.S. Now that I spilled the beans on the Atty. fees payable, I’m guessing it will be removed from the Profile flashes!
Take a moment to remember those who have fallen this season.