Welcome to the New Year. It’s apparent we have a new metric afoot in the Veterans Service Centers across our fruited plains. Right. VAROs are now called VSCs and have been for a while. The boss of the “service” center is called the VSCM (manager). The Assistant manager is- you guessed it- the AVSCM. They run the Ratings show. There’s still a Director in the Senior Executive Service (SES) sector for each VSC except for North and South Dakota. He handles the PR. Used to be, and maybe still be, that if you called the Montana RO, they picked up in Salt Lick City. Ditto for Fargo, Cheyenne and Sioux Falls. They probably don’t have telephone lines out that far yet and rely on green firewood and wet blankets. Or Pony Express.
We no longer have raters. Public relations experts have determined America does better with terms like “associate” or “team member”. Hence the days of the old Decision Review Officers (DROs) are dwindling. They’re segueing into Coaches, Assistant Coaches, Ratings Quality Control Veterans Service Representatives and more. I appreciate they’ve given us agents and attorneys Change Management Agents (CMAs). Too bad we can’t get them to change anything. As for managing, they do manage to get it in front of the right Denial Coach. Check this out.
Cupcake has a lot of real estate agents working for her. Real estate agents have dads who are my age. Some of them were in the military and have disabilities. I inherit them because it’s the right thing to do-even if I’m utterly overwhelmed. Meet Jim- Blue Water Navy- or BWN. Yep. His daughter is her Agent
My BWN Vet
Jim (pseudonym) filed in 2002 for a bunch of things like IHD and DM II w/ PN. He’d had a couple of heart attacks and the ticker was heading south. Wonder of wonders, he lost. And then along came Joe Procopio and the revised BWN do over of Hasse v. Peake. I filed him for them under §3.816 and scored a home run- or thought I had. This is called a Fenderson Staged rating. It’s named after Joe Fenderson. Who else? Now, ever since 1999, when we win an old CUE claim, an antique §3.156(c) or one of these AO claims which the Vet filed for and lost previously, the VA has to perform a retrospective rating covering the past to the present. Most always, you get a Zero for the Hero rating up to magic moment in 2020 when you suddenly qualify for 100%. You can predict it.
VA sure couldn’t say Jimbo was Boston Marathon material. He was blowing less than 50% on the ejection fraction (EF). This gets you a 60% rating under DC 7005 for Ischemic Heart Disease. If your EF falls below 30%, you advance to Boardwalk and start erecting hotels. But what happens if you get better? Or more aptly put, what happens if VA says you got better during a Fenderson Staged rating 14 years ago?
Reducing a Veteran’s rating is a strange, difficult procedure. Look up §3.105(e) to begin with. Hellooooooo? I’d like a hearing, please? Due process must be observed. Reducing it in an eighteen year old retrospective Fenderson-style staged rating is a whole different animal. How can you inform the Vet you intend to reduce him from 60% to 40% beginning in June in 2006 in 2020? Rent a DeLorean with a ginormous Flux capacitor in the trunk? How can you reduce him for a cardiomyopathy issue with only one c&p? Ruh-oh, Rorge. Raters are oblivious to §3.344. It doesn’t exist to them. The short answer is you can’t reduce him. The long answer is Hell no, you can’t reduce him on one c&p. Well everywhere but at a VSC.
The Jimster’s a retiree so we’re talking about Concurrent Receipt of military and VA pay if he was over 50%. Much like the art of gerrymandering in congressional districts, VA prevented (as much as possible) any big retro based on Dual receipt. They gave him 10% out of the gate for the IHD- then 60% for a year or two combined with his DM II ratings. But then they whacked him down to 40% in ’06 to keep him out of the concurrent receipt column until 2019 when he had his septal infarction and sank below 20% EF. Then two things happened. I began reading volumes and volumes of his records and decided to go back to 2002 and the old denial to see if I’d missed anything. I had. Seems he’d filed for MDD secondary to his IHD and they’d denied it strictly based on his IHD denial. The VA shrink had generously stated he was more f****d up than Hogan’s goat and mildly to moderately depressed at his c&p-and it was all due to that nasty IHD. I’m sure Dr. Demento never thought Mr. Jim was ever going to catch air on the IHD so it was a safe diagnosis. Cool. Free Thorazine, right?
So I “re”filed him for MDD, 2ndy to the IHD as a CUE saying what the brain box expert said in 2002. I even reprinted his diagnosis and submitted it with the filing. VA was so sure they’d pole-axed my boy on concurrent receipt with the Fenderson screwing, they never did their homework. Jiminy Cricket will get that 30% for Bent Brain Syndrome. Maybe not at the VSC but §3.310 is far more respected at the BVA than the M 21. But that was not the end of the matter. No sir. Not by a long shot.
Due to this infernal Beer Virus, it took from our March filing until Christmas to get my hands on one of his doctor’s files. They were locked up in a storage area as the good doctor had retired back in ’18. Fortunately, he kept the records. They showed Jim had an EF of 25% beginning in June 2016. I promptly filed them on 12/29/2020 as a supplemental and saw him getting 100% for three more years using the Fenderson red carpet. Not.
Eight (8, badt, ocho, tám, huit) days later (over the New Year’s weekend, no less) on January 6th, 2021 VBMS (Honolulu) regurgitated the fact that the retired doctor had been too vague. The rater, in desperation, had stated they received nothing that would change their Fenderson rating. I called up Allison, my CMA here in Seattle and asked her to please find the chowderhead who authored this abortion and explain to me in DickandJanespeak why a 25% EF (or less) under DC 7005 would NOT warrant a 100% rating.
Wait for it...
Seems the VA rater is perturbed that Jimster’s cardiologist had failed to specify which ejection fraction was 25%-right or left ventricle. VA was just not going to hand out some serious folding money for something this vague. Hoo doggies. If you want to measure the right ventricular EF, it takes an MRI with contrast as opposed to the way everyone else in the world (including VA cardiodocs) measure it (on the left with ultrasound). Since the EF on the right side is kinda immaterial to this ischemic heart gig, it’s presumed by anyone in the medical world that an EF would mean it was done on the left side. The right ventricle simply pushes blood into the lungs. VA is saying the doc’s failure to say “Left Ventricular Ejection Fraction” was going to cost my Vet $105,000.oo in retro on top of everything else so far. Or so VA thought. Thank you for your Service. Next?
Of course, they could have Googled ejection fraction:
Ejection fraction (EF) is a measurement, expressed as a percentage, of how much blood the left ventricle pumps out with each contraction. An ejection fraction of 60 percent means that 60 percent of the total amount of blood in the left ventricle is pushed out with each heartbeat.
I called up Jim’s wife and asked her if they could get a letter from Dr. Retired who was also a personal friend. I wanted him to clarify that the EF was done on the left side. Mrs. Jim proceeded to lay the following on me. Shoodoodle, Alex. Those records I sent you at Christmas were from his personal care physician. You want I should contact Franciscan Health Care and ask for his cardiac doctor’s medical records from 2010 to now? You know, he’s still seeing the same doctor. His EF (on the left side) had been plumb nasty until 2019 when he had the septal infarction due to the infection after the defibrilator implant. It went to hell in a handbasket after that. They hit him so many times with the paddles he’s got burn marks. He’s blowing less than 20% right now and he’s on Entresto™.
Now, with all that said, Fenderson gives us some explicit rights. I summed it all up in my legal brief. Read all the records, not just the ones you cherry picked. But… when you do a Fenderson on someone like Jim, you already know the future. You can see he’s not going to get better. In fact, the village idiot could opine that the shit was going to hit the fan big time in the future. Duh? So, to reduce him in 2006 using §3.344 knowing full well he couldn’t go to the supermarket without packing an AED in a decade is error. To ignore §3.105 is fatal CUE.
It’s always lots of fun to be in the Catbird seat. Jim will one day see his whole CRDP come back to him. I also caught them trying to say he only got spousal dependency for his wife from the 2019 100% rating. Oddly, right in the old 2002 VA Form 21-526, he had submitted his wife’s birth certificate, SSN and their marriage certificate in hopes that St. Nick would soon be there when he won. 2002 was the effective date of dependency now. I had a hard time pounding that nail home until I sent them a copy of the 526… from VBMS.
Seems like the third time’s the charm.
The 3rd Time at the BVA
Hopefully that will occur on my Roberto claim below. This is the third BVA assault. It’s hard to admit CUE in a 1972 decision for financial reasons. VA has so many of these they have a hard time figuring out how much to ask for in Appropriations before Congress every year. VA folks I talk to always say “We never look at the potential payout. We’re objective. Our motto has and always will be Grant if you can. Deny if you must.” What in the hell do I look like? A turnip wagon driver? Do you see the Mayflower tied up to my front porch? If that’s so, why have all my hardest claims to win been ones involving an absolute shit ton of money for the client? Admitting CUE is admitting you screwed up bigtime. At VA, you’d think it was tantamount to admitting to your wife that you cheated on her with her best friend…on your honeymoon.
P.S. I had some late arrivals to add to this.
This one below isn’t too far off the mark considering what’s afoot these days on social media. Just think. They know every thing you’ve said and felt for all these years. Cupcake and I decided it’s just too weird these days to say anything in public for fear of offending someone. Thus, we no longer comment or Like so do not think we’re ignoring you.
That’s why I relegate all that nonsense to this blog. Who cares what asknod thinks?