Once upon a time in the mining hills of West Virginia there lived a young boy named Rocky-hold it. Wrong one. Gary and I met online somewhere back at the dawn of VA time after I got my license to litigate. He was a County Mountie VSO for Indiana or some place I disremember now. He took a shine to the idea of becoming a full-fledged VA Agent with all the concomitant authority it bestows upon you. Several others I have encouraged have done so, too. I commend them for helping Vets win their claims. Gary’s a computer whizbang. He delved into the intricacies of the VBMS and began roaming hither and yon seeking whatever he could turn up. Or, better yet, how far he could trespass before someone slammed the electronic door in his face and restricted his access to certain areas.
Being’s as I don’t have a) the electronic knowledge or; b) the balls to do this, I haven’t anything to show for having VBMS access for 4 years other than to discover I can see my own claims file (illegal) or access to VACOLS (Veterans Appeals Control and Locator System) (forbidden to VA attorneys and Agents). An interesting side note is that one of our more illustrious Veteran litigators- Gene Groves(one who has actually won an Extraordinary Writ)- discovered there is a “back door” to VACOLS allowing you to revise earlier entries in spite of VA’s insistence it is inviolate . I guess VA rolls with the Presidential definition of what “is” is.
Being a VA Agent is too cool for school. First and foremost, you don’t begin your new job following graduation from law school after 7 years of preparation with a $200,000.00 student loan that will hound you to the Funeral Home. You have all the authority as an Agent to do anything an attorney can do in VA land. That’s pretty heady shit when you think about it. I try not to. I devote every waking moment to learning about Veterans law and how to bend it to my needs. I don’t have time to devote to chasing down a Hoodoo lane in VBMS. I really wish I did but I’m 70-not 35. I have horses and dogs- and a Cupcake.
Thus I wish to give credit to Gary for turning up some interesting documents that- on their face- tend to support that hackneyed “delay, deny- until we die” rag. Here’s an interesting peek behind the green curtain into the VA Land of Oz and how this all works.
These are the first of many more “doc dumps” I hope to receive which shine a light on the “How to” in VA adjudications. Considering our job is Veterans and the VA is considered the Neutral Zone and nonadversarial, it strikes me as odd how these conversations and briefings/working papers arise.
The Presumption of Soundness at Entry
The Presumption of Soundness is one of those bedrock principles we rely on to show service connection. Certainly, there are going to be Vets who enlist and disremember to mention that bum knee or the raging GERD during the SF 88 Meet and Greet at AFEES. 60 days later at Basic in a wheelchair, they get shown the door as having problems which pre-existed service. You’ll find a lot of these folks also race off base to VSOs and file claims faster than you can say Jack Robinson. VA spends an inordinate amount of time searching to make sure they aren’t being dishonest. I get that. So… why an Office of Learning and Management article to teach VA raters how to get around Congress’ clear intent to give that Vet the benefit of the doubt? Well, duh. To teach them how to deny.
Moving along, here’s a treatise on Traumatic brain injury and how to studiously avoid inadvertently creating an inference as to the possibility of other, related injuries secondary to the primary service connected ailment (page 9).
Practice Tip: In finding that the criteria for a current disability are met, do not attempt to identify the residuals with precision, for the reasons stated in B.5 below. Instead, make a finding that is not limiting. For example, “The TBI the Veteran sustained in service resulted in chronic residuals such as X and Y.”
See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (noting that the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list).
See how they did that? No reason for us raters to go on an unguided safari in search of all that ol’ boy’s injuries. Give him tinnitus for 10% and see if he pitches a bitch about his headaches, dizziness and trouble remembering when to go potty.
Here’s an unknown tidbit-
The U.S. Army Medical Research and Materiel Command Joint
Trauma Analysis and Prevention of Injury in Combat (JTAPIC) has
developed a registry of service members who were within 50 feet of a blast since mid-2010. When existing DoD records, to include STRs, are not sufficient to verify exposure to a blast injury that occurred since mid-2010, verification may be requested from JTAPIC.
Interestingly, this was prepared by an OGC gal I tangled with up at the CAVC in Butch Long’s CAVC Appeal (Shereen Marcus). Small world, eh?
Here’s another How to for rating novices when
denying ah, deciding TBI claims by April Maddox. She freely admits it’s not an official statement of policy or legal interpretation of VA law-just one of them “inward-facing” documents that someone who was incredibly bored decided to cobble together in their spare time for extra credits (read attaboy er, attagirl I mean attaperson bonus). Gotta be careful these days with this cancel culture dictionary shit.
Last in this treasure trove of Cliff Notes© is a discussion of Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) For those of you who are novices to this poker game, for years they (both VA and the Courts) employed §3.303(b) by ignoring the second half of it. §3.303(b) refers back to VA’s list of presumptive “chronic” diseases discussed in §§3.307;3.309-not whatever we claim as chronic. Our only defense in this is an old standby- the use of the phrase “continuity of symptomatology” versus VA’s propensity to say we have no paper trail of “continuity of treatment”. See Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991) or “Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology.” Savage v Gober, 10 Vet. App. 494, 496 (1997).
A lot of times VA is trapped into having to acknowledge what they have actually written versus what they really meant to mansplain. Imagine writing §3.303(b) back in 1961 and glossing over that second half restricting it dramatically for 52 years. I’m surprised VA doesn’t go back and CUE themselves on the umpteen gazillion claims where they screwed it up. Thank God for the § 3.951 20-year rule huh?
On behalf of myself and the rest of the asknod menagerie, I wish you all a Happy Groundhog Day. I hear it’s one of VA’s favorite movies. Be good. Be safe. Be nice to one another even if you hold different views on how to run America. Rodney King, God rest his soul, actually summed it up quite well for us-“Can’t we all just get along?” Granted, that was a heapin’ helpin’ of Monday Morning quarterbacking after he’d just gotten the tar whupped out of him but still a noble statement nevertheless. We learn from history-but only if we listen.
Thank you Gary. I’ll be publishing some more gems from him here directly but I don’t want to drown you all in too many documents at one sitting. Enjoy.
P.S. Edward Aloysius Murphy Jr.’s first law is inviolate. No good deed goes unpunished. By studying and becoming an Agent, Gary screwed himself right out of a job. Seems VSOs don’t cotton to their service representatives actually helping Vets. They fired his ass the same day he told them the good news.