Happy Thanksgiving to all you morose, unhappy campers. I’ll let it go at that. This reminds me of Hunker in the Bunker in 1970 when Capt. Charles decided to drop a few B40s and some 60s on us at 0200 to see if we were on our toes. FNGs cried for their mothers. FYGMOs did too. Those of us in between lit another Marb and wondered what else could go wrong…while hunkering in said bunkers. Add masks and a nasty virus and it isn’t much different. It’s just not as loud.
The reason I called you all here is, as the title above suggests, I’ve discerned a new pattern in the M 21 Cliff Notes book. It’s interesting to note that anytime someone in government says they’re going to improve something, take your protein pill and put your helmet on. VA is fond of rearranging the judicial furniture without explaining it. You simply wake up one morning and discover they’re doing it differently and you just got denied. What’s more, you never get denied doing it this way. After you get whacked about three times, (five if you’re a man) the light bulb goes on over the head. Mmmmmm. Pattern there is. Yessss.
You feel like you’ve just deciphered the Rosetta Stone… again. Back in about 2007 when I was sicker than anything this ‘ronavirus can throw at you short of death, I read every BVA hepatitis c decision from 1992 to 2007 trying to find out why, for the one Vet who won, there were more than 85 who lost. Even I, in my fevered state figured this one out. They mentioned Caluza, Shedden and Hickson over and over. So who was this Mario Caluza? What in Sam Hill was his claim to fame? How ’bout this Jerry Shedden dude and Arthur Hickson? How come they all lost? Pretty soon, I decided to read every COVA decision from 1989 to about 1995 and asknod was born a few weeks after I won in ’08. Nineteen years to get it sorted.
So, to my immense grief, I was flummoxed this fall to see a hep c piece of cake supplemental get the thumbs down. Okay it was Fort Fumble in Jackson Mississippi. They deny everything anyway but the VA spirit of fairness dictates when you know the Vet and his Sherpa have figured out the secret handshake, you just let them pass. There’s plenty more suckers lined up with their VSO pals waiting for the slaughter. And then I lost another piece of cake supplemental for MST. And a third one -blindness due to Malaria prophylaxis (Primaquine) for two weeks in Cam Ranh Bay AB hosptial. What’s going on here?
There is nothing more deceptive than an obvious fact. If your mind is not programmed to “see” it in the correct light, you cannot employ it.
THE OLD LEGACY PATH
Think back to the olden days. You filed a claim. VA denied it and, if you were smart enough to know how to play VA poker, you got an IMO to fix it. The story usually ended there. If you dawdled or didn’t get the email, sometimes you hired a Sherpa at the BVA and got it fixed there. The worst cases ended up at the CAVC (if you were smart enough) to get another chance to fix it on remand where you could salvage it. Otherwise it was back to the salt mine and begin anew. This generally meant ten years worth of litigation down the drain.
The unique thing was in the last 20 years it had become easier to win. The secret was getting out. VA determined it was time for a new M 21 Cliff Notes book on how to deny. Enter the AMA, or more properly, the AMIA-the Appeals Management Improvement Act. I’m sure Congress had the best of intentions. It’s just that something always gets lost in the translation from intent to 38 USC and suffers even further when translated into 38 CFR.
Here’s the difference in a nutshell. In Legacy, you filed and they denied. Your “repair order” (an IMO) rebutted their denial logic. But, because we enjoy the Benefit of the Doubt, our Doctor IMO is as equal to justice as their gomer denial written by a Certified Nursing Assistant. The important fact was that there was an opinion in your favor instead of your useless lay testimony like a TV doctor with a stethoscope around your neck. Suddenly, all that changed… but not all at once-and not everywhere. Just here and there like Little Rock, Jackson or Wichita. The DROCs like St. Pete’s and Seattle began attempting it. It’s more difficult when it’s a grant coming back from the BVA. They just do the Zeros for Heroes technique and make you appeal all over again.
What the hey? Each RD (rating decision) was horribly flawed in the denial logic as only the VA can do that. They will be easy to beat at the BVA but something more basic is afoot. Who, or what, gives them the right to go out and get a new opinion to defeat your IMO? Welcome to the AMA rodeo. You file. They deny. You file a supplemental with your IMO and they send you to a C&P. That used to mean a rubber stamp and a shiny new rating. Now, with the advent of the new AMA, suddenly they are denying you at that c&p. Aruuuu??? as Tim Allen was fond of opining.
The new rodeo works like this. Think of each filing as a “package”. A new filing, with a 526, is used to get in the door. If it has legs, you win and go to door number 1 for a low ball rating. If it needs to be “worked” like a Vietnam boots on the ground determination, you go sit on the Group W (Wait) bench. If it can be pole-axed, it is. That denial is now the end of the “package” and it is consigned to the done pile. But… Yes, you can keep it alive forever if you file a new supplemental claim with N&RE within a year. The AMA bar for ‘new and relevant evidence’ is low. You can dang near file a picture of yourself in Basic to get it reopened. But here’s the reason they’re letting us all in the front door with no ID. You’re going to get denied again anyway. Your new supplemental claim with a shiny new IMO from Dr. _______ is reviewed and set aside. VA sends you out for a c&p and their “clinician” denies as less likely than not. Ignore the M 21 thing where it says only a VA examiner can make the legal determination. The c&p sucks but it rebuts your IMO. They are not allowed to do this. It’s called Mission Creep in military parlance.
Here’s the difference. Each package can be denied this way. Of course it flies in the face of Mariano v Principi but the mistake won’t be cured for a year or two and only up at the BVA. I’m sending them up for direct review. The VA will eventually accuse me of “appeal harvesting ” if I keep bringing them up there in bundles as I am right now. My IMOs are bulletproof. The decision is a travesty of justice but the AMA doesn’t provide for a simple NOD and IMO to “fix” it at the AOJ like the old days. Your only local resource is a Higher Level of Review(HLR) which is usually a brusque ten-minute affair where a wannabe GS 11 gets to pretend he’s Queen for a Day. Your supplemental gets a 20,000 ASL flyover with no new evidence permitted. Hmm. Explain that §3.156(b) thingie to me again?
THE NEW (OLD) REPAIR ORDER
There is nothing more deceptive than an obvious fact. I should have recognized this. When we all were being herded towards the RAMP corral, I resisted. I kept all my Vets in Legacy. It paid off. We can still switch over at any time if we wish to AMA or we can stay put. Could be that VA’s impatience with weeding out all the old Legacy stuff at BVA grows thin. With RAMP dead, we are left with the AMA anyway. The BVA wants them done and put paid to. As with the old Legacy program, the winning ticket should henceforth be to proceed to the BVA with your new IMO pronto and get in line. There, it will be entered into evidence and will rebut the original denial you filed in the same original “package” back at the RO 17 months ago. Simply put, you’re back to 1) file claim; 2) get denied and; 3) file NOD (at BVA now) with new IMO and get a decision that pits your new IMO against the original denial by the QTC bedpan changer/MD.
The sad part about all this is I had suspected all along the AMA was going to have a “Well…not exactly” escape clause in it somewhere. We all had that confirmed at the Fall Virtual NOVA conferences. BVA Head Cheryl Mason dragged out all her fancy charts and mansplained how they were all way off base in assuming everyone would just keep on circling the drain down below at the Regional level with Supplemental claims. Who woulda thunk it? The Stupid Vets were choosing the BVA appeal path instead… in droves. Well that means they have to hire a shit ton more VA VLJs and their minions to catch up. They predict they’re going to do 50,000 (fifty thousand) videoconferences this coming year. I’m not sure if this was announced before they discovered the new
preference stampede to the BVA, the Kung Flu shutdown or another in a long line of optimistic predictions . So much for any appeals improvement act.
The short story is simple. Continue as you were, gentlemen. Proceed to BVA post haste after obtaining the VARO dental rearrangement of your front teeth. Obtain IMO and get your ticket punched at the BVA Docket Booth. Just like in them olden days, after an interminable delay of years, the grant will be remanded back to the Fort Fumbles across our wintry plains where they can lowball you and begin the process all over again. In the military we shortened this story to SOSDD. It’s like rearranging the deck furniture higher on the fantail on the Titanic to keep it dry. The Regionals know they are going to lose these appeals but they can delay them until another day. To what end I’m not sure.
The new AMA is adroit at confusing Veterans. When they lose, they don’t see the repair order. They can play this poker game until they die without figuring out the scam. Mariano is still good law. It just has to be employed like a parachute at the right time. You don’t pull the IMO ripcord while you’re still in the VA’s airplane. Timing is everything (once again).
Most Masks are regrettably; a Joke.
The N-95 protects the wearer from others. The surgical masks protect the patient under the knife from the doctor’s breath. Same for you. You wear the mask incase you have been infected and do not want to infect others. So, non-masker, you do not give a shit about anyone but yourself, RIGHT!
Thanks for the post Mr. Speck. Too few understand the mask purpose. If you want to protect yourself, get an N-95 and hazmat suit and stay inside. If you are human and want to protect others wear a damn mask and do the social distancing like Mr. Speck says.
I am one of Alexa’s vets that he kept in legacy lane! There was moments it seemed the road less traveled? But, like every step of my appeal it has been handled exquisite! A bit more waiting than one would expect but, when dealing with BVA who would of thunk it? As Alex stated SOSDD.
Mr. Bray has an interesting history. He has won his IU back to ’85. He should start a blog and teach others VA law.
Handicapped by a severe temporal lobe TBI with mistreated temporal lobe epilepsy for most of those 26 years, asknod.
We’ll see if my 32+ year effort on TBI organic brain syndromes bears anymore fruit. Took the first 20 years and a lot of missteps to get the seeds planted to grow into a Congressional recognition of only part of the problem.
The Courts are stagnant on precedence often ignoring the letter of the law and the letter of the Constitution in favor of another or earlier court’s decision. Look at the Feres Doctrine that does not take into account the Fifth and Seventh Amendments. When, if ever, will SCOTUS amend that decision? I spent over $2,500.00 trying but hit the wrong clerks with some missteps in my brief. (Where was a SCOTUS attorney when I needed one?) If one of the 3 Judges at the 10th’s Decision had been in on the review it would have been heard. Read the misgivings of the Circuit Courts of Appeals on the Feres Doctrine in their Decisions stating only SCOTUS can amend the Doctrine. Champion return challenges to the Feres Doctrine until it is brought into line with the Amendments to the Constitution which must be seen in the times they were written. A time when all American Wars were fought on American soil. Not this period when a civilian worker can be brought home from Japan for murder he committed on base in Japan. Even Sgt. Bales was brought home for his General Court Martial. Not so with most previous wars.
Check out section 4 of the Fourteenth. In 1988, when I started, there were two volumes of abridged index decisions in a wall of index of decision Law Books on the Fourteenth but not one short paragraph on Section 4(d) having to do with guarantees to Veterans.
Please read 38 CFR 4.2 and 4.42 again. What do they mean? Or more specifically what do they say and what do they require in the face of Section 4(d) of the Fourteenth. Does Section 5 give the Congress power to take away that which is granted by one section via another granting the authority to the Secretary?
Where were you when I was on the Mall demonstrating in 1995? Where were you during the times I was outside the VA Central Office 1995-2003 sleeping on the streets of DC? I applaud the journalist that grew the seed with his article in 2008 on TBI whether it was directly or indirectly or not even the result of papers I wrote and distributed from 1995 to 2003.
The current wars fought by a military of almost total combat troops with logistics being done by contractors instead of military logistical personnel, as in prior wars at a 10 to 1 ratio, brought focus on what I was saying about combat ribbon veterans with organic brain syndromes from 1988 thru the present. I would post my unadjudicated Substantive Appeal that was written at my worst temporal lobe epilepsy state on 11/26/1994 here if this site allowed attachments.
Yes, I have to go back to the BVA and then probably up to the CAVC again because the DRO did not follow the BVA Remands. The Secretary can literally thumb his nose at the BVA Remands. At some point during this process will I be able to get that unadjudicated 11/26/1994 Substantive Appeal with then allowed “Next of Friend” claims for specific organic brain syndromes outlined in the case cited that becomes a formal claim for all affected veterans sent to the Director, Compensation Services as it should have been in 1994? If you want to see it, mention that you would like me to post it on Hadit.com . I can also post the Feres Doctrine attempt at SCOTUS. Would do a lot of amendments to it and shorten the brief if I had a chance to send it up again.
Yes, I need an attorney but it will not be another one that gives up before they get started waiting and looking for that slam dunk $403,000.00 back pay netting a quick $80,000.00 for a couple of weeks full time work. Been there and done that and all it did was take away my leverage to get a CAVC/CAFC attorney.
asknod, I am 79. I’d rather post on your blog, sometimes on Benjamin Krause’s, or on Hadit. With temporal lobe epilepsy, I am not always there to respond so expect others to put in their 2 cents when I am in a fog.
You are welcome to contribute. The problem is I pay for my WordPress Blog out of pocket. You will not find any Russian wives for sale. You will not be able to purchase Viagra for pennies on the dollar. But, due to the costs of life here and the costs of my litigation techniques, I like to remind others would-be authors that WordPress will give you your own soapbox free to do this. You do not need to camp out and teach VA law here. It falls into the folder of too many chiefs and not enough Indians. There are myriad other Vetcentric sites using what we call the “Forum” model where everyone can chime in whether they have any legal training or not. Asknod is not a forum model for a reason. We teach law technique in DickandJanespeak.
Psychologists have discovered most folks only read about the first couple of paragraphs of each comment for congruity. The train of thought is not much more than a locomotive, the coal car and the caboose. With that knowledge in hand, you can see the reason I object to your preaching law without a pedigree. Worse, regardless of your disabilities, you cannot use them as the predicate for your protracted, interminable legal battles.
I’m 290% disabled with two 100%s using VA math. Somehow, I overcame all that to get here. I was supposed to be in a box by 2018. I admire your spirit and persistence. I just ask you to keep it down to 100 words pertinent to the subject rather than a Bray-centric recital the VASRD and Feres precedence. Contribute, sir. Don’t proselytize.
Thanks for your response. Will take my long winded actions to Hadit. You do a good service. I will not get in your way. May say hi now and then.
Hey, we welcome legal insight. Don’t get me wrong. We just have a limit-like the CAVC but far less than 30 pages. Stay warm and be safe. I have the ultimate respect for those of us who did two tours over there. My dad did 7/66 to 3/68. I did 5/70-5/72. I remember today 50 years ago and recall1954 turkey c-rats and fruit cocktail. There are only 830,000 of us left even if you throw in the new 12-mile Squids. We were probably supposed to all be dead by now according to the VA statistical model.
I have a CAVC decision that I should take my “delayed old Legacy” without processing (after an SOC and SSOC were issued) to the “new” Legacy Appeal with a 10182. Waiting on Hill and Ponton to decide if they will take my case.
Have a delayed Remand from the BVA that was back in the Old Legacy arena where a “certification to the BVA” could dictate the issues. Now, it appears, we can state our CUE and 1151 issues on the 10182 and they are before the Board.
Gary, you are getting the old delaying technique. I suggest you fill out a 10182 and send it to the BVA explaining your issues with VARO including the switches in avenue. It goes to the BVA and then VARO has to explain itself directly to the BVA. My understanding is everyone has the right to switch to the “new” 10182 directly to the BVA since the certification delay decision of Godsey v Wilkie after 10/01/2020.
The CAVC delayed its decision on Bray v Wilkie until after the 10/1/2020 implementation date of the “new” Legacy Appeal. If you were to file a Rule 21 Petition to the CAVC for a delay of over 18 months getting certified to the BVA you would get the same decision I received from the CAVC on Bray v Wilkie 20-1323 and Bray v Wilkie 20-1415 filed in February of 2020. My claims and Remand are much older than yours unless you have a 20 year old claim.
One of my issues is a 1994 unadjudicated I-9 Substantive Appeal. The May 1994 SOC was sent to a very old address, I believe purposely, to cause a delay in forwarding delaying my SA 3 months. Also at that time, instead of a substantive appeal you could as for a local DRO hearing to, in essence, substitute for the I-9. Never received the hearing I ask for. The Director, VARO Denver denied the existence of my SA in a letter to the VA OIG in July of 1998 after my complaint of delay in certification. I was homeless at the time and the DRO scheduled hearings during the times I notified him of having to move and would be unavailable until a new date. He scheduled hearings during my unavailability and then closed the appeal for failing to make the hearings.
My unadjudicated SA has a next of friend claim for all veterans with TBI syndromes, including from incoming and outgoing blast concussions, and cerebral malaria syndromes. A big layout of compensation for Vietnam War veterans back to 1988 from 2009 if the BVA finds the claims I submitted valid under the extra-schedular criteria. So it is no wonder they are blocking in order to reduce entitlements.
My latest Decision is 10/28/2020? post the 09/14/2020 SOC and 09/15/2020 SSOC.
I believe your 90 day window begins with the letter switching you back to the old legacy. I think the current play of the DRO is to confuse you with switches and delays in the hope of getting you to that finality of a decision argument on the VA’s part.
I think the CAVC Decision of 11/18/2020 on my Rule 21 Petitions to get my case before the BVA extends my filing of the 10182 but I am not going to count on that. I’ll file by December 1 with or without Hill and Ponton.
Actually it was the BVA that sent the “no go letter” on the 10182 that was submitted almost 6 months ago (within 90 days from the SOC…) but the VA-9 was still pending. I am 75 so I put in for MTA and I have hearing via computer to judge. I am happy, Jan 6. I have hearing with VLJ and I can introduce new evidence. I will be reading to the judge for 15 minutes with additional evidence they failed to allow with my Lay Statement attached to the 10182.
So you got to the BVA. And the submission of evidence extends for 90 days after the hearing. You will not need to read into the record prepared remarks or submitted evidence. Those should be submitted prior to the hearing as a brief and only referred to briefly in your opening statement. More detail can be provided without upsetting the Judge for taking too much time. The Judge will probably give you the benefit of the doubt though. The old BVA hearings with 9 hearing officers would not have.
Look for the reference to credibility in what I am copying below from my BVA decision. See ***
I think you can go to the CAVC and look at my cases and the Godsey V Wilkie case to supplement your statements.
I am copying and pasting some of the BVA Judge’s statements from my BVA Decision of 05/11/2017 below. Have not been able to get the file completed or the BVA Remanded examinations and I will be going back to the BVA soon. It is not likely the BVA Judge is going to be happy with the DRO responses. Ask for a De Novo Review as a starting point. That will take you back through your entire record irrespective of the RO and DRO decisions. I do not know how much of this will apply to you. I am 79 with 2 years in RVN and over 13 years of service so we are in the same era.
(copy and paste removed by admin).
Wish there was an edit so I could correct the format from the copy and paste.
I am confused. I sent a letter and a 10282 requesting to switch to AMA and they put me in the new lane then six months said it was a clerical error kicked it out and said they would continue to process under the old system because they had the original VA9 . They said I missed the allowed time frame, I believe 90 days after the SOC or 1 year from the denied decision?
Legacy = VA 9 60 days from a SOC or 30 days after the SSOC. Unless they somehow litigated the whole thing including the SOC/SSOC in less than 365 days from the NOD
My brilliant former attorney gave up my fourteen year Legacy so we could get a decision in the fast lane. Nine days later we had our decision, a re-hash of the Regional’s blundering that led him to his decision to sacrifice my legacy. Guess any recourse I had; gone with the wind, regarding retrieving Legacy
My attorney tried to take me there. I got an out from the CAVC because of my petition on delays. The Court specifically stated the Legacy route was open to me since October 1 and my petition was mute. I could file directly to the BVA without waiting for a certification from VARO.
Yes, wear a mask. We lost family and friends to COVID. It’s no joke.