I’ve been reading a lot of birth announcements on FacePlace™ recently. It must be Circadian rhythm that brings forth this Spring phenomenon. I’m a product of this with my birthday as well. But how about a Prequel? Indeed, a picture of your new granddaughter, Penelope Rose Graham before her expected 6/18/21 splashdown. I was ecstatic to be so rewarded this weekend. Too bad we didn’t have prenatal TV when we had our broods. I think she favors my side of the family. She has high cheekbones like my Oklahoma Cherokee ancestors…

Check out the ICU2TV:

But that’s not why I started this blog a week or more ago. For some unknown reason, VA went into an introspective state. Nothing of consequence was accomplished across our fruited plains. BVA decisions which were cut-and-paste wins became remands for the most idiotic of reasons. As we all know, every man jack who was drafted back in “our war” still carried a duty to serve another 2 years after separation should the need arise. This is not to say it could ever be mischaracterized as Nasty Guard or Reserve. It was a guillotine hanging over your head which was essentially meaningless.  Now imagine a shiny new FNG acting Veterans Law Judge who remands back and notes the the DD 214 indicated the Veteran had additional duty in the Reserves and the record is incomplete. She wants to see these Reserve STRs to determine if the injury might have arisen during an ACDUTRA or INACDUTRA period of service.

Or a denial of a Legacy Appeal on it’s [sic] second SSOC trip back up to the Board and an acting VLJ denies saying she doesn’t have the authority to revise the effective date of a prior grant of injury in a Fenderson staged rating appeal. Gez Louise. What part of original Legacy appeal did you miss in law school, ma’am?

Intelligent VA life forms are becoming rare sightings like Unicorns these days. I guess I never saw it happening at the BVA. I can remember the good ol’ days where every rater was a Veteran and familiar with the trials and tribulations that service entailed. Nowadays, you go to AlState© Automobile Insurer rater’s school for 8 weeks and then cross train into a GS-10 VA claims- Examining (VSR) on the VA’s dime to get your wings. In about 10 years, assuming you can survive watching Veterans being hornswoggled and inveigled out of anything resembling due process, you get your Pilot’s star and an RVSR. If you hang around another 5, you might get your Command Pilot wings and promoted to Asst. Coach. You have to be a special kind of team player and willing to climb over your fellow employees by now in your quest for the VA hierarchy. Nothing is beneath you in terms of backstabbing or lying in your journey to the top.

I discussed a case with a prospective client last week. Contrary to popular belief, I’m not above taking on new clients if s/he has a poignant tale of perfidy. This gal was tossing out Clemmons and AB v Brown so she didn’t need me for anything more than vindication she was on the right path to an appeal win. The kicker was the VA’s denial of her MST claim. Imagine reading this in the current era of Womens’ rights after all the trials for the Harvey Weinstein’s of the world.

“Thank you for your service. Unfortunately, we are unable to grant your claim. Your Major Sexual Trauma claim is based on an assault that occurred while you were away from active duty on leave. The individual convicted of this crime was also not a servicemember. Therefore we cannot grant the claim. Had you been on active duty and documented in your STRs, the claim would have been considered service-connected.  However, you are eligible to file for a pension claim as a nonservice connected disease or injury.”

Now, tell my how you pull this chestnut out of your ass? I can’t find any support for it in the M 21 and, of course the 38 CFR regulation tries to couch it in §3.103 as a willful misconduct issue. Won’t fly. It’s ripe for a CUE but she doesn’t need me to carry the water. I’d love to see the VLJ take a gander at the RD and say  Hmmm, there must be something I’m not getting here… I think the thing that disturbs me most is that this denial didn’t occur in 1974 but 2014.

You always see these gems occur with the most godawful cut-and paste semantic errors. Dangling participles, the wrong tense, plural usage where singular was applicable and more are par for the course. If this doesn’t convince you you’re dealing with sub par IQ, nothing will. One presumes these folks proofread their work because they all require two-or in some cases- three signatures. I could even see it if they were working at the Anchorage VA Regional Office and smoking some bodacious Mantanuska Funderthuck on break. When it occurs nationwide, you have to rule out mental aberration or lack of anything higher than an eight grade education.

Really, I don’t mean to dump on VA employees. I’ve met some real gems at the local level who respect and try their damnedest to fix a wrong. But then there are the heel-draggers. Imagine a squid over 75 and dying. He should get the top drawer treatment but my local Fort Fumble hierarchy (the lowest GS working it was a 13) have conspired- and I do not use that word lightly- to fence him out of any meaningful retro pay. I’ve whacked them for $28 K, $8 K and $112 K but they haven’t paid out a dime yet. I have yet another 10182 NOD in the chute to relieve them of another $100 K and they stand like deer in the headlights. They’ve never seen this level of what they consider unbridled avarice and gross adjudicatory aggressiveness.

I can’t tell you how many Veterans who recite to me an i-fking-dentical story of how their VSO admonished them to accept a 0% for tinnitus back in 1999 and to come back in 10 years for the 10% “just so you don’t look greedy, see?” Cupcake was out working with a new client in real estate who was rated at 90%. He was thinking of going for TDIU and they discussed that. He was totally unaware-and his VSO had categorically denied-there was any more money after IU/P&T… like, perhaps SMC? Either they are unschooled in the higher ratings for SMC or they are purposefully deprived of the knowledge by National Service Officers so as to not spill the beans to greedy Vets or put ideas in their Walmarket®-addled heads.

Due to this malfeasance in properly adjudicating claims, VA is purposefully driving good litigators away from this style of legal practice. The VA generally takes 60 day alone for a holdback on fees and another 30-40 days to release them after they are due and owing. Sometimes, they decide you are not entitled to anything- period- for your work. Sometimes… well, I could go on but the end result is a feeling that traditional law is more rewarding and honest with higher financial rewards. Veterans then become more disadvantaged when it comes to attaining justice. Someone called VA law a target-rich environment. I agree. The problem is getting an equitable decision. If everyone you deal with is permitted to ignore you and purposefully misconstrue what it is you are claiming, you cannot make any headway. You lose that joie de vivre for this practice and move on to greener pastures. That is why I’ll be doing this until the day I kiss the keyboard.

I hope all of you are staying safe and doing whatever you feel is adequate to accomplish same. Some are adamant they will not be seeking a vaccination. I will make no call on that. Everyone marches to the beat of a different drummer. That’s what makes this the greatest country on earth. Never confuse freedom from… with freedom to… It’s a narrow concept-like trying to stand on a razor blade.