As all of you Coronaphobiacs know, April Fool’s is my Birthday. And that being the case, life would not be worth a hoot if I didn’t gig some poor soul somewhere in the world. Somebody must pay for this crime. What was my mother thinking? I know what Cain felt like. I got the “mark” put on me for life, too. Which brings up an interesting story that provoked me to come out of a CAVC brief haze. God I hate writing those things. The Court is anally retentive. Every t is crossed and every cite is correctly cited or it’s non conforming and back to the drawing board to fix it. This story is about Kate and Chase. It seems all my very oldest Veterans are finally getting their ‘day in court’ and winning (fortunately).
Chase and Kate came to me along about 2014-15. Chase had been hornswoggled into doing the triple drug cocktail of Telepravir/Interferon/Ribavirin with a Stage 4.9 liver with esophageal varices and a positive antinuclear antibodies test (ANA) in 3/2012. That’s medicalspeak for don’t even think about Interferon. VA doctors talked him into it with wild tales of 80 % success rates. In your dreams, jellybeans. It was more like 37% in reality and 0% for guys as far down the Hepatitis C road as we are. His liver gave down on him a month later after the fourth dose. The sad thing was if he’d waited about 2 years (which was feasible) he could have done the Harvoni like the rest of us. He wouldn’t be signing up for hospice today if he had. I have another Vet (WGM) down in Texas with the same story. The triple drug poison cocktail. VA bought a trainload of it right before the advent of Sovaldi/Harvoni. They were pushing it like Junk down in Harlem on Friday night.
Chase was unique. VA had already run up the white flag and awarded him $100 K for a FTCA claim. I explained to them how you could file for both the FTCA as well as an §1151 medical malpractice claim. The VA comp. is the higher value benefit because in three years you’ll have $105 K in the bank but if you stay alive ten years, you’ve banked $370 K and so on. If you win a FTCA claim and then win a §1151 claim later, you have to pay back the FTCA bucks. Hey, I get that. You can’t collect twice on a life insurance policy, right? So Kate filed and we sat back and cut bait.
I ghosted their 2015 filing for a trainload of liver transplant problems as well as a basic hepatitis claim on top of it as a catchall. It’s inferred and informal. It’s required by law to look at all potential causes if you represent yourself. Here, all medical roads led to Rome. If it wasn’t medical malpractice that led to the need for the new liver, then it was due to getting the Hep C in the first place. Six of one and half a dozen of another.
We fought long and hard. I did about a 23-page brief on the NOD after the boiler plate blowoff job. Two VA doctors said it was a really bad idea to do the triple cocktail but they weren’t “real” IMOs. Play four bars of the Jeopardy™ song and wait for the grant/SOC.
Now, mind you, VA forgot to do a signed consent form for Chase. VA does this by handing you a black electronic pad with a stylus and you sign. You don’t know anything more than that you are complying with 38 CFR §17.32(d)(1)(i) which demands VA get an electronic signature into the VistA VHA computer before they can legally inject any drug into a body cavity (i.e. abdomen). No consent = FTCA/§1151 win.
They spent about an extra month or two investigating if his HCV was service connected. I called up Fort Pea Gravel and talked with the DRO “Coach” Darla. She was polite as pie and said they were going to do me a speshull favor and get a c&p for Chase and see if just maybe they could grant HCV based on jetguns and sharing haircuts.
Right. You folks don’t see the Mayflower tied up to my front porch nor was I born last night. I told ol’ Darla that if the kind folks at Little Rock Puzzle Palace couldn’t find it in their hearts to actually grant, why I’d just step out and fetch me one of them fancy IMOs from some city slicker doctor. We laughed and laughed and laughed. They sent the SOC a week later on 1/13/2020. The SOC said “we tol’ you twice, son. You nodded your head okay. Sorry, Charlie. Won’t fly” Besides, we searched your (nonexistant) STRs and there’s no mention of you having Hep C.” Well shoot. That’s like looking for a front bumper for your 1965 Mustang in a junkyard in 1946. Duh?
Anyway, I did just what I said I’d do. I even bought it with my own money. I submitted on March 6th, 2020 on a 60-day SOC fuse with seven days to spare. Thank you Adam and Jessica at Mednick Associates. You folks rock! I then saw a filing pop up in VBMS with a weird Form 9 discussion and realized they were not taking it as a Supplemental claim but keeping it in the Legacy system. And this is where our nonadversarial, Veteran friendly, Mother VA reared its ugly head like a pissed on pit bull.
I contacted the guy who left the note in VBMS down in Phoenix via VA email and said “Negatory on the Legacy. I’m sending you a new 995 Supplemental with box 13 checked to opt-in from Legacy. It’ll pop up in the Queue today if you want to redo it properly”. The munchkin in Phoenix called me back 4 minutes later and accepted my change order to fix it. They uploaded it the next day. Unfortunately, in the meantime, some brain dead Zombie Snowflake in Arkansas decided to a) cut the IMO off the .pdf leaving only the old 995 with no opt-in box checked and b) tossed it into the trashcan because… well, why now there was no new evidence attached. That was just the beginning. Two days later, I got it re-established by emailing the poohbahs in DC and explaining it to them. Not to be thwarted, the little people at Fort Little Brains got even more pissed and tossed it a second time by saying “No. This was once inferred as a VA 9 Legacy Appeal and we are not going accept it as a Supplemental. No. No. No. Our Coach agreed we don’t have to do it. We’re closing it. Neener, neener neener.”
I emailed the really super duper bigwigs ( including Hon. Robert Wilkie) again on March 24th and said “Help. I’m dealing with mental midgets replete with room temperature IQs in a backwards state called Arkansas. Can someone explain the new AMA to them? Boom shaka laka laka. Just like that, the music stopped. Everybody in Arkansas immediately became submissive said Sorry for the snafu, Buckwheat. It’s back in the claims queue. Some poohbah Coach back there even sent me an email and said”We’ve got this handled in Little Rock, sir. I’m personally monitoring it. You can count on me. We’ll have a decision out for you in an Arkansas minute. Stand by”.
Literally 20 hours later Friday morning, I wake up and tune in to VBMS to get the “Oh. So you think you can just call up DC and sic the Secretary on us? Well, suck on this one Mr. Graham. We’re denying your stupid IMO. The IMO is so flaky, we gave up reading it. It looks like it was written by a third grader. Thank Chase for his service, hear? Ta Ta For Now. Signed Your friends in Little old Rock town ” Now, this is really sad because Chase is lying 8 hours away in the Nashville TN ICU on O2 w/nasogastric feeder and catheter and a 5-port PICC line in his arm trying to kill his double pneumonia and recent strokes (7) which have paralyzed him from the neck down. The jackbooted VA police won’t let his wife in to see him because she wasn’t on the approved “List”. They suspect the coronabug-if not now- soon. Does this man look like 30% for s/p liver txplant or 40% for HCV? So I hit the Bullshit button.
Well, I guess you know me. I won’t sit still for this silliness. Friends in Laos remember me as the guy who always had a spare HE or two for my thumper in one of my cargo pockets. I popped one first thing Monday morning. Cupcake made me rewrite it five times to make it less hostile and filled with rainbows and unicorns stuff. I don’t do unicorns but I did this time. If Chase passed before I got his service connection for this, I would be years at the BVA trying to get accrued bennies and DIC for Kate. Kate didn’t have years and they didn’t have a lot of money to hold out on for months of isolation. Chase wasn’t going to go far. His medical situation doesn’t lend itself to anywhere other than a hospital or upscale intensive care nursing home. VA isn’t accepting any new clients even though they are starting to get a lot of bed vacancies due to the virus. Kate doesn’t consider that anything more than consigning him to a horrible death. The only other choice is to isolate there on the palliative ward at Nashville and stay in the care of the one doctor who has been the loudest voice who spoke for Chase and wait for the obvious. It’s one of the saddest cases I’ve ever worked. It gets harder and harder to do the Last Rodeo. It’s like Vietnam all over again. We just did this with my good friend Sam Bailey this last last February.
Lo and behold my pleas landed on welcoming ears. I woke up this morning and found the DC honchos got out the bullwhips and went down to Little Rock yesterday morning. Faster than you could say Jack Robinson, Fort 3/8″ Minus discovered they had plumb stepped all over their neckties and overlooked certain regulations. They CUE’d themselves almost as many times as that time I called them out on R1 down in Phoenix back in ’17. I think that was 9 CUEs. Of course, they low-balled us and gave him a rotten effective date. I sent them another love letter this morning and thanked everybody but suggested they sharpen their pencils again and read the records. The effective date is 3/30/2015- not 3/06/2020.
Boy howdy when you just cheat all the time, it becomes an imbedded bad habit. When you finally get called out by the Corporate bosses, and you still can’t bring yourself to do the right thing, you’re certifiably defective. It must be hell being a VA rater or DRO. You’d have to hate Vets and probably the whole human race to do this. Madoff, Hitler and Stalin would have loved the job. Sometimes I think if DROs had been of draft age in 1942 Germany, they would have sought out jobs at Treblinka and Auschwitz. That’s how low my opinion has sunk over the last 10 years.
Chase and Kate have finally prevailed. If he were to pass tomorrow, Kate will still get DIC. That was my biggest worry. Well, anyway, April Fool’s to all you jackwads in Little Rock. How does it feel to get bitchslapped? Remember me you should. Yessssssssss. I hope that stain ends up in the permanent record. Sadly, if history is any harbinger, at VA, it will portend a promotion and a bonus.
The good news is I got to meet Kate and Chase back in 2016 or 17. They drove out to Washington and left their shootin’ irons here for safe keeping while they went up to Canada for a week. I don’t always get to meet my Vets but this was a client I’ll always be glad I was given the honor of representing.
I’m attaching the actual documents and the email chains back and forth between the conspirators. If you didn’t see it with your own eyes, you wouldn’t believe me. Sometimes I feel like a fly on the wall. It isn’t the first time and won’t be the last. Jackson and Houston are famous for this, too.
See Virginia? There really is an April Fools faery. I’m living proof. Say a prayer for these two wonderful souls tonight if you would.