HOME ALONE–THE AMA


View from the cockpit.

Live… From the VA Entertainment Capital of the World… Iiiiiiiit’s asknod! As the title suggests, I’m home alone if you exclude my extended menagerie of pets. Cupcake is off to do her radiation therapy and CT afterwards. I’m recovering from my surgery yesterday to remove the Gozilla-sized kidney stone (16mm) from my leftmost renal architecture. No “I’m so sorry to hear it” platitudes requested. No pity parties. I’m glad to be done of it. I’ve been pissing blood for two months which has saved me from doing monthly phlebotomies in the interim.  With the exception of the abominable global warming  outside today and the fact that I can’t even approach the water closet without my kidney and bladder screaming in advance, I’m fine. Dilaudid takes the edge off …and a little more. I sure wouldn’t want to perform (I don’t practice) law in this altered state but my humor is unimpaired. What I find amazing is my kidney has GPS and even knows I’m in the bathroom. For sure, Dude. I walked in just now to see and it began to hurt in anticipation of an impending urination. Who knew kidneys and bladders have nerves? Not me.   

Princess Pickles just had her first encounter with snow this PM. She’s eleven months now and decided it’s the cat’s pajamas. Not only can you skid on it but you can eat it, too. How cool is that?  The age-old problem of finding the snowball and fetching it is brand new sport for her.

Check it out:

A fellow NOVA attorney contacted me this AM and wants a copy of my killer cites designed to win claims. Every time I run across a real daisy, I copy and paste it into my library. It’s a compendium of case law, statute, regulation, and yes, even the occasional M 21 cite to make my competitors eat Chevron/Auer Deference.  It’s become Dropbox™ -sized now like the Encyclopaedia Britannica. Some folders could be better named but it’s all spur of the moment copy-and-paste grabs while reading other cases and they each require a folder and a .docx. What the hey? It’s cheaper than West Law. Even better, sometimes you find an extraneous quote from a decision that isn’t touted as the bright line precedence… but is equally valuable on some other case you’re working. What I found while reading this recent year’s Morgan v Wilkie 31 Vet App. 162 (2019) is a treasure trove of all manner of cites. Thank you Zach, Amy et al. at CCK. It’s like repaving the old AB v. Brown Road with 2020 thinking and extra legal sprinkles on top.

THE NEW AMIA

The subject today is simple. Do VA folks call it Ama like ‘mama’ without the m or do they throw in the i and call it amia like a girl’s name?  By now we’ve all had a heapin’ helpin’ of the AM(I)A and are less than enthralled by it. It’s like being told Baskin and Robbins© is coming out with White Chocolate Macadamia Nut Cookie Ice Creme and they hand you Avocado-Bacon flavored shit on 2/19/19 in its stead. The errors are so mundane and egregious, we (litigators-not VSOs) all are astounded anyone VA can come up with them. I just got back a 526 EZ I used for a CUE and was told to refile it on the “correct” form. This, mind you, from some astute young GS-8 VA Turk who knows what a “prescribed form” really is. Arrgh. My kingdom for some kompetence. It seems I remember David McLenachen  or Judge Cheryl Mason saying it didn’t make any difference because there was no specified form to use. That was in Portland less than 110 days ago. I disremember seeing it in the Fed. Reg.

While rereading the new, improved §3.103 Due Process to grab the (a) for “every benefit that can be supported in law” and insert it into my ‘AB v Brown and progeny’ file, I read down further and came to the part guaranteeing us a right to a hearing.  Thence it dawned on me. While this “right” is still available, it has been enormously truncated. Gone are the days of the DRO Hearing (on or off the record) at the local Puzzle Palace. What we’ve been seeing with our new friend Amia is a lighthearted attempt at ex parte justice. Cupcake calls it “All VA hat and no Wilkie.

Imagine if you will. There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available. This is a chimera. I get  emails saying “Can you imagine that? The HLR guy emailed me and declines to hold the informal telephone call “conference”. He said nothing would change his mind anyway.” Well, hush my due process. These jackwads invented all this hooey and now are blowing us off. If you truck all the way up to Part III (D)-§3.2601, you’ll find this gem under (h) Informal Conferences

For purposes of this section, informal conference means contact with a claimant’s representative or, if not represented, with the claimant, telephonically, or as otherwise determined by VA, for the sole purpose of allowing the claimant or representative to identify any errors of law or fact in a prior decision based on the record at the time the decision was issued. If requested, VA will make reasonable efforts to contact the claimant and/or the authorized representative to conduct one informal conference during a higher-level review, but if such reasonable efforts are not successful, a decision may be issued in the absence of an informal conference.

So, a formal face-to-face hearing has evaporated into, at best, an unannounced  informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran. If you want a real scheduled sit down BVA hearing now, you have to go sit on the Washington DC Group W bench of Alice’s Restaurant fame and wait your turn. and wait…and wait…and wait. Welcome to Camp Delay and Deny. Did I mention the I in A.M.I.A. stands for Improvement? The good news is the BVA waiting room at 1425 I street is really buff and freshly remodeled. The chairs are comfy too.

The new AMA surprises are endless and well-concealed over the four corners of 38 CFR. You think they’ve reinvented the wheel when in reality we’re back to horse-drawn carts and nobody knows which side of the road to drive on again. You cannot but wonder how (or why) an “intake specialist” chooses when to say you used the wrong form. They pointedly do not tell you which to use-only that the one you’ve chosen is incorrect. With only two input choices, you had a 50-50 chance of getting it right. So why is it always the wrong one?  With CUE, your odds should go up to 100%-maybe. I refiled my CUE yesterday before surgery on a 995 and can’t wait to see a) another rejection for the wrong form; b) a two-week delay in CESTing it while they try to construe the meaning of “Motion to Revise”or; c) sending it back to me and demanding the client wet ink sign it even though the POA is in the VBMS. This is worse that Forest Gump’s box of chocolates. It’s not that you never know what you’re going to get. It’s that you never know if you’ll get anything.

We’re encountering the same thing at the BVA with 10182s. The Litigation and Support kids call it a 10 182-two number groups- not a one-oh-one-eighty-two. Just for shits and grins, from now on I think I’ll start using the word “Ama”, or better yet, the word Amia and see if I can conflusticate these acronym-obsessed dickheads. How about “Well, I hold his Poah (POA) so I’m confused as to what else I need to discuss this claim, sir.” “……….Ah, poah? What’s a, a what’s a poah Mr. Graham?… Wait.  Did you say her first name was Amia? How do you spell that?” Hiller for HLR? The choices are myriad. Have fun.

“There’s a dog in Wisconsin that tells jokes.”

 

 

 

About asknod

VA claims blogger
This entry was posted in Appeals Modernization Act, FACE HUMOR, Food for thought, Humor, KP Veterans, Pickles, Tips and Tricks, VBMS Tricks, Veterans Law and tagged , , , , , , , , , , . Bookmark the permalink.

6 Responses to HOME ALONE–THE AMA

  1. Jim Radogna says:

    I agree that with the AMA VA is far less than forthcoming about the Veteran’s right to a VARO hearing. I suspect that may Veterans (and advocates) have no idea about their entitlement to a VARO hearing upon request. The least they could have done is noted it on the 21-526EZ and 20-0995. But alas, that would be far too reasonable.

  2. Calvin Winchell says:

    A fellow NOVA Attorney knows genius as I do… You being the premier litigator on V.A. Law, as you have both personal experience and a flair for knowing and utilizing law in your cases & conversation…coupled with your desires to help other veterans and keep V.A. As honest as possible in their corrupt system… including your outstanding communication skills in the English language… There is only one Alex Graham as, you cannot teach all these attributes! No pity party as you requested but, am pleased your surgery went well…Pickles chases snow balls but the retrieve part is a bit fuzzy, just like V.A. due process and reasonable efforts???

  3. Jim Radogna says:

    I’m confused. Your statement “There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available…So, a formal face-to-face hearing has evaporated into, at best, an unannounced informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran.” doesn’t jibe at all with my reading of §3.103 (d). Am I missing something??? What part of §3.103 leads you to believe that Veterans aren’t any longer entitled to a comprehensive face-to-face hearing at the AOJ???

    §3.103 (d) The right to a hearing
    (1) Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial or supplemental claim. A hearing is not available in connection with a request for higher-level review under § 3.2601. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or videoconference capabilities, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Upon request, a claimant is entitled to a hearing in connection with proposed adverse actions before one or more VA employees having original determinative authority who did not participate in the proposed action. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

    (2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.

    • asknod says:

      Thanks for the comment, Jim. Good point. I didn’t explain it as well as I had intended. I’m writing a new post today to compare the old §3.103 to the newer AMA one to show the transition to no NOD w/ hearing request at the denial phase unless you file the NOD with the VA. That provides the due process Hearing requirement. Remember too, the VA cannot just do away with the old Legacy system regulations. Should a Vet win an old CUE to, say 1965, they would still have to use the old pre-2019 CFRs and 0958s/VA9s for all NODs/appeals.

      • Jim Radogna says:

        I agree that with the AMA VA is far less than forthcoming about the Veteran’s right to a VARO hearing. I suspect that may Veterans (and advocates) have no idea about their entitlement to a VARO hearing upon request. The least they could have done is noted it on the 21-526EZ and 20-0995. But alas, that would be far too reasonable.

  4. Longfellow Rogoczy says:

    A, I’d also love to have a copy of your gleaned killer cites?

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