Sunday Morning in America…Overstated? Undue alarm? A bestial scream in the afternoon for more readership? Naw. Nothing like that, I assure you. In fact, this is meant to be one person’s subjective, Sunday Morning Quartertback, personal view of the VBA Compensation Poker Game from a litigator’s perspective. Others who ply this trade may have a different experience but mine is tempered by 32 years of VA rodeos and a bookshelf full of VA How-to Cliff Notes™.
First, from the perspective of the Jane or Joe Average Veteran of any war, how have things changed in your lifetime on -say- Veteran suicides? Better? Worse? The same? Now look at the data. How much baksheesh has been thrown at this intractable problem and for how many years? How many new “programs” have been employed that were going to positively, fer sure reduce the bloodshed and help repair all the bent brains out there? How many thousands of new slots at VAMCs across our purple mountains’ majesties have been created for new psychologists and mental health munchkins? I can remember when this all first came up on my radar in 2006-7. The number was staggering- 20 Vets per day were driving into freeway bridge abutments at 80 mph. They were sucking on lead lollipops or OD’ing on drugs.
All the VA’s men and all the VA’s horses seem to have encountered some unforeseen circumstances if I’m writing today that the number has increased to 22 per day. If the people in charge of these things spend millions, nay, possibly billions, in pursuit of the dry socks and toothbrushes at Standowns over fifteen years with such abysmal results, I think it’s safe to say the time has come to piss on that fire and call in the dogs. A new perspective is needed. More importantly, if the Grand Poobahs in the VHA hierarchy have flogged the dog this long with nothing to show for it, perhaps a new paradigm is in order. Having walked in those boots once upon a time, I have no panacea to offer. I have a hard time myself distinguishing the forest from the trees. Offering advice to anyone with MDD would be rank tomfoolery. I don’t think I’d ever feel comfortable at a VA Kumbaya circle jerk for Vietnam Vets on Tuesday evenings down at the Vet Center. Considering the moderators are renowned for taking notes on the whole thing for inclusion in your VistA/CAPRI records, you’re giving them the ammo to deny your PTSD claims later. Whoa, Leroy. Says here you admitted at the meetings to being a a heroin junkie and self-medicating. But you denied using any drugs at the c&p. What gives? Our VA shrink says your heroin habit is the cause of your major mental disorder. Denied. Next?
Let’s look at another of my pet peeves-Veterans Service Organizations. True, a lot of my anger stems from that jackwad at the Lancaster, California VFW in 1972 telling me to go over to the AmLeg (American Legion) to apply for membership because VFW only extended membership to folks who’d served in a war. Ergo, since Vietnam was a conflict, get lost.
I’ve had many encounters in the last ten years with VSO mini-poohbahs and to a man, they are mini-power trippers. Power corrupts ad nauseum. The high point of my career so far was being called a VA ambulance chaser by the AmLeg guy in Tacoma. With that aside, why on earth don’t they (VSOs) teach their service representatives VA law? Why not make them every bit as astute as a VA agent like myself? What, pray tell, is the impediment? An openminded person learns a lot every day. Just being immersed in this business means you encounter tons of new things that will help you win existing claims. Better yet, in the NOVA organization to which I belong, there are hundreds of attorneys willing to freely convey a winning strategy to any of us who ask. Most have walked point on it already. With that Encyclopedia Britannica of knowledge at our fingertips, it seems incongruous that VFW et al would not have hundreds of attorneys on their staffs well-versed in VA law and available to dispense it. But noooooooooooo. They have National Commanders ($538 K/Yr) nattily dressed up in thousand dollar threads along with all their entourage bouncing around our fruited plains in their Gulfstream Vs vying with each other to get everyone to buy address labels and Christmas cards. Oh, and a membership. Donate is the watchword. The last exhortation arrived in the mail last week with a shiny new nickel visible in the window. Here’ one for you. Now, send in the other nineteen for me. And be quick about it.
Veterans expect a designated Agency of the Executive branch, one created solely to deal with us, to be streamlined and able to adapt to any circumstance. True, we’ve been at war in SWA for nigh on to 21 years. Vietnam wasn’t too terribly different plus or minus five years. So why is it that each successive reinvention of the VA, each innovative technological “breakthrough” and the entire electronification of the claims files has not resulted in an equally wonderful reduction in the time needed to adjudicate a claim? Remember USB Allison Hickey’s repeated assurances that success was just around the next corner? Why, what I remember was her explaining to a Congressmen one day that they were just “using up all the old DBQs before printing the new ones for distribution” and that was the delay in revamping the forms. Okay. So the problem here is elementary- the forms were (and still are) electronic, not paper. If you insist on letting the folks who perpetrated the problem provide the solution, you’re just buying more of the same problem. To that I would add VA’s entire “IT” department-or what passes for one. VAMC Hospital planning is another problem area. Has anyone in Congress ever considered cutting our losses and privatizing this gig? If we can’t even entice a lot of altruistic, high-minded liberal/progressive psychologists to come work for VA, there’s something wrong with the formula. I expect it has less to do with dental benefits than it does strictures on helping Veterans. If you recall, in 2010, the VBA unilaterally commanded the VHA to stop the annoying habit of writing nexus letters for Veterans seeking compensation benefits. That is the bailiwick of the VBA so keep out. Nonadversarial, indeed.
Considering you can listen to the fart of a mosquito .0009 seconds after it was recorded (and simultaneously uploaded) by someone on Instaglam® in Nigeria, why can’t we have a drive thru lane at our local Veterans Service Center? Really, in this day and age of vaccine passports, RFIDs and credit card chips, why not a VA ID card to prove your identity, a simple video touchscreen TV with menu for category and Diagnostic code, and a thumbdrive with your IMO by a subject matter expert? Insert ID card and remove on prompt. Choose your malady. Plug the thumbdrive into the USB port and upload it. Remove when prompted. Proceed to pull around the corner to the pickup window. Collect the rating decision and enter your bank account and tracking number. Since VA has your entire medical hx in STRs, this should be a thirty-second piece of cake.
But something is amiss in Unicornland. The perils of coronavirus aside, we’ve been inundated in Blue Water Navy claims. And the new Agent Orange Presumptives. And the new chronic MUCMI presumptives. And more Vets filing. And more more more. Pardon me, but I thought all these new electronic jewjaws were to be the cat’s pajamas. Remember when some Rocket boy at VACO dreamed up the Central Mail Processing (CMP) Unit? Let’s set up one gigantic printing press shop up in Janesville WI and send all the RDs and other mail out from one place. Seems they, along with about half of America, ran out of employees around July 2021 and that was all they wrote (pun intended). After a few bitches, in September they discovered the outgoing mail…wasn’t. I’m still getting mail dated early September, But for my computer access to VBMS and my clients’ files, I’d have no idea what was afoot. Considering a Vet has 30 days to answer a proposed reduction and abate the process, this can be lethal to due process. VA could care less.
I won’t even discuss the myopic chokepoint of having two (2) Decision Review Operating Centers (DROCs) at opposite ends of the country. Two. Two centers for decyphering BVA’s grants to Veterans. 6 Actual. Say all after backlog, over.
The VA process is broken once again. No one is to blame. No one is ever to blame. Our woes are merely the aftermath of a new unforeseen event-or the reincarnation of an old problem come back to haunt them. Who woulda thunk the Fed Circus would ever throw out Haas v. Peake? Why, the effrontery of those jerks. As for including SC for bladder cancer due to AO, that’s pure conjecture. Ditto hypothyroidism. The one phrase that makes me want to blow chunks is the threadbare saw: ” The important thing to note is that the mistake was a valuable teaching experience and prepares VA for the future. We’ll never pull that boner again.” So why do we have 200,000 appeals in backlog after streamlining the claims process two years ago? Why do we even have any Legacy claims still awaiting hearings? Back that up. Why do we even have any Legacy claims awaiting anything? 6 Actual. Say all after backlog, over.
I don’t want to be an Influencer. I have no desire to try to fix VA’s myriad problems. I want to be a litigator. I want to fix dying Vietnam Veterans’ claims and prepare their spouses for what’s over the Hill. Each and every one of you deserves a skilled advocate to win your claims. VA is making it infinitely more difficult and harder each day. But why? To what purpose? The lack of a Veteran’s signature on a 526 is now grounds to legally reject it or simply close out the claim. Poof. Gone with the wind. Welcome to End Product Code EP 000. But… at the bottom of the 526, it says a rep. can sign if he has a POA on file. But…the M 21 says you can’t. Who’s running this circus? Who’s right? Sadly, a lot of attorneys are beginning to become disenchanted with VA’s obstructive, untenable litigating postures. They rationalize bailing out on being able to make money with half the work in, say, social security law. This doesn’t bode well for Veterans.
The BVA has assured us they now have secured financing and are hiring 10 (ten) new Veterans Law Judges and training them up to speed. Shut the front door. Why weren’t these VLJs in the pipeline two years ago when February 19th, 2019, dawned? How about another 40? We are drowning in administrative mediocrity and legal shortsightedness. It is jokingly said that it now takes three signatures to get permission to go to the bathroom for VSRs. A claimed DROC specialist in SMC couldn’t even enter the correct parameters into the VA SMC ratings calculator which reputedly will spit out the correct rating. Seriously, she didn’t understand it. Two (2) SMC Ls for two different 100% disabilities = SMC O= R1. Result? Deny. No such thing as two A&A ratings. Go away. Go up to the BVA and sort it out. That’s what a 10182 is for, silly. The BVA is getting equally as obnoxious and remanding them back to the local Fort Fumbles and telling them to fix it before it gets kited back up to the BVA.
The VA has finally descended into the maelstrom of “I don’t give a shit”ism. If it’s complicated (and virtually all my Vets’ claims are) the default setting is to study it like Rubik’s Cube© for about 6 months and try to find the perfect denial phrase using three double negatives and dangling participles. I’ve even had IMOs denied by their doctors or nurses. Where art thou, Norman Gilbert? Equipoise quo vadis?
Here’s a recent verbatim wording from a rating decision.
“The BVA decision found that all service connected disabilities, and not necessarily just on the respiratory [sic] so there wouldn’t be entitlement to separate and distinct 50% or more at that time. In reference to the 9/7/2018 PTSD exam, the 8/23/2018 increase to PTSD (which had the wrong effective date and is a clear and unmistakable error, CUE) would warrant A/A for mental all by itself and then the COPD/Asthma/sleep apnea is separate and distinct 100% so the full P-step to M would be warranted.”
“Although only your respiratory disorder was 100% at this time, it is not clearly and unmistakably erroneous that the decision of August 27, 2021, found that the respiratory disorder and diabetes mellitus with residual complications excluding erectile dysfunction required the regular aid and attendance with activities of daily living without consideration of the psychiatric disorder rated as 100% disabling from 8/23/2018.”
Didja follow that one? We’re CUEing ourselves and giving you SMC M but our 3/04/2020 decision wasn’t CUE because we are telling you so even though we got the effective date wrong. As for the 100% you’ve had for COPD since 2008? Well, that didn’t warrant SMC L until we noticed it did. But you had to use up all your ratings to get to that SMC L so we couldn’t give you the bump to SMC L 1/2. Well, until we gave you the SMC to M but you can’t have both. Got it? The HLR got even more outlandish. I can’t make this stuff up.
VA is in denial. It’s time to roll up their collective sleeves and quit making excuses for their inability to get their underwear on correctly in the morning. “Yellow in Front and brown in back” can no longer be the operable phrase. Promoting stupid people based on longevity has always been a deciding factor coupled with a reward for loyalty regardless how outrageous the outcome. VA should get back to focusing on their “framework” as folks are fond of bandying back and forth these days. I beg the President to fix this “paralyzed from the neck up” mentality dilemma and cease concentrating on teaching pigs to fly- with or without lipstick. Our Veterans are sick and tired of this lip service. I have a Legacy Vet from 2017 finally getting his Travel Board Hearing before a VLJ on January 12, 2021. 6 Actual. Say all after backlog, over.
Currently, it takes a village of VA employees to decide a claim. I think it’s called the Chinese water torture technique. One to do intake supervision and reroute FLASH’d Veterans claims. About 5 Senior Adjudicators to handle it and pass it on to an untermenschen. 5-10 to “develop” it and make sure you’re eligible for a presumptive. A ratings team to rate it. A supervisor to check the rater’s work. If it’s over $25 K, a third supervisor to sign it. If over $100 K, the VACO Director or VSCM to sign it. And if it’s ginormous, it’s off to VACO and three more peeks. When finished, there are a bunch of paper pushers who write it, do a code sheet, enter it into a number of computer processes and begin the payments. All in all, one hundred people will “touch” a claim in some way. In the military, that would be 100 opportunities for something to get screwed up. Whoa. I thought your folks arranged for air support… In the old world of pre-2008, one rater would take your file and get to know you literally. He was usually a Veteran himself. It was no guarantee you would win, but it was a far more nuanced hands-on experience. Hell, you could actually call them and they answered their phone.
In today’s world, I contact my CMA here in Seattle and she antiseptically sends me back a reply saying “We have received your query. We’ll get back to you when we get an answer”. Sometimes I see the problem resolved and in most cases, that’s the only evidence I can see that she did something. And then the prolonged email obfuscation game. Me: Where is Mrs. ___’s DIC claim at? Her: Her claim is at the BVA. Me: You are correct. My query is where is she in the DIC process? Her: Did she file for that? Me: Yes. Look in VBMS. Her: Oh, yeah. I see it. I’ll look into it. Whatever became of inductive logic? Transactional Analysis was invented. Probably by VA.
And that’s all I’m gonna say about that. Alpha 6 out.