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).