Good Sunday to you all. I have been AWOL for a few weeks due to losing a Vet client and being under the gun to write some bodacious legal briefs. Now, mind you, our highly gifted Attorneys at NOVA counsel us to write legal briefs which are…well, brief. Roger that. I get it. You don’t want to put them to sleep reading your Gutenberg Bible. But sometimes there aren’t enough trees for paper to express yourself to a Board chairman. Besides, I’d like to think my briefs are better than the average bear’s. I don’t mean that narcissistically. I’m lucky in that I had a good upbringing. My parents shipped me off to private schools to get rid of me. They didn’t say why and I didn’t inquire. I let them down. I graduated 59th in a class of 64- no small feat. Too bad my draft number was 39.
So, without further ado, let us say a prayer for Leigh Burch, one of my oldest acquaintances in the hepatitis C claims world and not quite 62. She came to me from our old HCVets site (HCVets.com). She and her husband fought long and hard to win her claim. All I did was point out that she needed a good nexus letter. That she promptly obtained and moved on to win.
Her husband Paul and a Marine Vet, sadly passed in 2016. Leigh developed problems with her liver transplant last fall and it went downhill from there. She was denied a new organ this February due to her body being in full revolt against the ten yr. old transplanted liver. It was theorized her immune system would reject the new one out of hand. Seeing’s how livers are kinda hard to come by, she was given a death sentence. She passed April 28th with no one to be substituted in her claim. The kids are all over 21. I hate that when that happens.
But that isn’t why I began this missive today. It’s just part of my asknod story. My clients frequently become part of our ‘family’. Once you sign up with me, it’s for life-all the way to R2. I file for the spouse when they pass. I have three multi-generational claimants-sons and daughters of clients I have served in the past. They come to visit or pass through and have lunch. When Cupcake and I go to NOVA conferences, inevitably one of our family comes to see us or we travel to them. I know my Vets want to share their stories because they give me written permission to write these articles. VA has strict rules about divulging person information. Last year, I lost four of you-but not a one to the Kung Flu virus oddly. It’s tough enough to lose a Vet for me but it is tenfold worse when he or she is the last heir in the chain of substitution. Finality is a bitch. It’s the ultimate VA bitchslap.
Rarely do we (representatives) get to represent really old Veterans of World War II or Korea. I have been twice-blessed in this respect. One of my very first clients was a 94 yr old Marine who went ashore in New Georgia (first wave), a second at another island and lastly at Okinawa. His MOS became Graves Registration after hostilities ceased and his duties as an Infantryman were no longer needed. Boy howdy will that give you a bent brain about a mile wide sashaying down the beach pushing a wheelbarrow picking up pieces of humans like a Mr. Potatohead™ game. The problem is that fifty years later you’re still watching this movie every night from 2 to 5 AM in living color with Dolby® Sound.
My second one landed in my lap due purely to this infernal pandemic. Their VSO representative (and his office) were closed up tighter than a clam and they were desperate. I get that. When you’re 87 and VA is playing the delay and deny Badminton game with you, you get antsy. Shit, you get waaaay past antsy. You get frantic. Ray had gotten his BVA remand in August 2020 and VA was looking to hire a proctologist to do a deep dive neuropsychiatric workup despite the VLJ specifying a top dog neurologist. Check it out.
I put them on notice via my CMA and via Outlook VA email to the Coach to read the remand instructions veeeery carefully. They ignored me. It must be a power trip thing-like who gets to hold the TV remote.
I called bullshit on the first doctor (an 85 yr. old retired anesthesiologist) who would take 30 pieces of silver from anyone to say whatever they wanted said. I noted in my brief he used my client’s wife’s testimony that Ray’s explosive anger and inability to hold a job was due to his PTSD. Now shoot, I like Ray’s wife. She can read him pretty good after all these years but psychologist… like PsyD? Not. Fortunately, we have legal cites to point to that says we (both VA or us) can’t cheat and pull that Ben Casey-Dr. Kildare shit.
Doctor # 2 was a real neurodoc. He was also about ten years older than God and 5,000 miles away in Honolulu. So much for a real face-to-face c&p. Worse, both these jokers said Ray had nothing-NOTHING- wrong with him and certainly no lingering 68 year old status post encephalitis symptoms such as the subjective complaints he had been reciting for six decades. Uh-oh. The second dr. was insulted that he even had to put up with this upstart malingerer. He went so far as to say my boy might be a combat Veteran but he was a baldfaced liar. Baaaaaad idea. §1154b carries a lot of weight in front of a real Judge. If you’re willing to die for your country, it kinda goes without saying you probably have good moral character and might be a credible witness. The regulation, §1154b, says the Secretary can rebut your contentions with ‘clear and convincing evidence”. That, my friends, is a very high legal bar to surmount.
If the doctors had actually read the claims file (what survived the circular file catastrophe in 1953), they might have realized the Secretary had already granted 10% for the very same things they said he didn’t suffer from. Shoo doggies. That’s what happens when VA tries to cut IMO corners and hire drs. with Alzheimers. Maybe they just need a refresher course from the Evelyn Wood speedreading school. As near as I can tell, they depended entirely on the c file record right up to where they gave him SC back to 53. Whateeeever….(as 16 yr. olds say).
Here’s the CUE that opened up this claims Tsunami. It’s a daisy. In 2016, on his second trip to the BVA, a VLJ finally saw the light and granted the CUE back to 1953. https://www.va.gov/vetapp16/files4/1629124.txt VA promptly gave him 10% for “residuals” under §4.124a DC 8000. The problem is you have to rate all the subjective residuals like headaches, numb face, loss of smell, anxiety, nervousness, tinnitus and a host of other goodies like insomnia separately. VA was hoping Ray might not figure that out and ask for more baksheesh. 10% from 1953 up to 2009 sounds like a shit ton of a windfall. It wasn’t and Ray came to see me and ask if he got screwed. It felt good like being in one of those telephone booths at the Fair trying to grab all the dollar bills flying around in the windstorm but you discover you got about $26 bucks for a minute of grabbing.
It took my IMO outfit, Mednick Associates, a while to find a good neurodoc who was capable and willing to rebut this latest horseshit. It’s difficult when VA shitcans your original filing in 1953. But not impossible. Unfortunately for VA, they didn’t use a big enough eraser. They forgot to eradicate his brand new claims file number and other documents on dependency.
I explained to Mr. and Mrs. Ray how Caluza/Hickson/ Shedden and all their progeny worked and set out to get the mother of Nexus letters. A note to the wise here. Never let your IMO author denigrate the VA’s IMO directly. Never use phrases like “the Doctor must have gotten his degree in medicine and practiced at Havana University…in the 1930s because medicine has advanced dramatically in the interim.”
A good nexus letter has to have several ingredients. Here, it was difficult due to the destruction of his c file. Fortunately for Ray though, they never went back to get his NPRC records. When they finally did in 1965, they did ol’ Ray a favor. They prevented them from going up in the Friday the 13th of July Barbecue seven years later in St. Louis. From those records, everyone can see he was unconscious for over a month and shaking like a leaf on a tree with nonstop convulsions.
Now, if that isn’t enough to kick ass and take names, throw in that Ray was an invited guest to the 1950 Chosin Reservoir Christmas Party and, along with 16 of his 64 men in the platoon, managed to survive to talk about it. Somehow, even though they were all just lowly Negroes, they each managed to snag a Combat Infantryman Badge for their valor. Ray says his MOS was EOD- human minesweeper.
Ray was out of the action for nigh on to three months lounging around at the hospital. They finally sent him back to the front July 15, 1951, with the ends of four toes (Right) still all messed up from frostbite. Blacks in the segregated Army back then were no deposit- no return items much like used toilet paper. Imagine being used as human minesweepers and ordered to march across a field line abreast while the officers (white) watched and laughed. Yeppers. We’ve come a long way, baby. I’m not banging the BLM drum here. I was born and raised in the South south. I lived there until I left for the war in 1969. When we went to see The Sleeping Beauty in Albany, Georgia (Turner AFB) in Spring 1959, I asked my mom why there were two water fountains and one had a sign overhead saying “Whites Only”. Truthfully, I don’t recall her answer. That was the south 6 years after they tore up Ray’s file. Ray was allowed to begin voting in 1965, too. That was mighty white of them, huh?
Ray’s choosing me is a special honor. His treatment by the VA, not to mention America, resonates with me. I like helping the underdog and if you look up screwed Veteran in the Miriam Webster Dictionary there’s probably a picture of Ray. The Seattle Puzzle Palace has been screwing Ray over for a month of decades. This will be BVA Appeal #4. The last VLJ, God bless his soul (Mike Skaltsounis), recognized the three-card Monte aspect of his 68-year odyssey in search of justice and how he kept drawing the Monopoly Chance card and getting whacked. He (the VLJ) wrote 6 pages of very explicit c&p remand instructions. VA’s two “doctors” who were asked to opine on hs subjective symptoms couldn’t even bring themselves to admit he had anything at all wrong with him o-let alone having to do with s/p encephalitis. Zip. Zero. Nada. No neuro, Pedro. Moat lao. Fini. Pai lao dude. Now that’s a hoot when the most recent rating code sheet says he’s been SMC S for 13 years running with 100% for DC 8000. That kinda pokes a gigantic black hole (no pun intended) in your probative VA c&p findings of fact. Worse, the fact that the VA examiners were willing to put their John Hancocks on them as well says a bit about VA’s benefit of the doubt being slanted crossways. But we knew that, right?
Since Ray is waaaay to hell and gone over 75, this will be advanced on the docket pronto. I’d sorely like to see this go back to Judge Skaltsounis. I have a premonition like one of them willies that runs up your spine when you’re happy that he’d have afield day with it. And that’s all I’m gonna say about that.
Oh, almost forgot the best part… you are better than the average bear with your legal briefs! And everything else you do for veterans! As I have said many times, personally don’t want anyone else defending me in my appeal…feel fortunate to have you on my side! Now if We could only receive a date to be heard???
The VA “benefit of doubt” seems missing here? Know your field day with these monkeys will be very very satisfying! Pray you make it right for Ray!
Leigh Ann Burch R.I.P. as gone, but never forgotten!