§5104(b)–WHAT’S IN YOUR RD?


February 22. In Bent Brain land, the folks in white coats call it a trigger or precipitator of depression. You watch that date approach inexorably every year and dread its arrival. After two weeks in a horrible funk, you crawl out the other side and try to better prepare for next year. And the year after that. Multiply that by 51 years. I’m fortunate. I didn’t find out Chuck had augered in until May 2008 when I went looking for him so I’ve only suffered this malady fourteen years. Time heals most wounds-not all. And I reckon that’s all I’m going to need to say about that. 

Palace Dog was run out of Udorn. RAVEN (Detachment 1, 56th SOW) was listed on the Udorn base roster but was run out of  AirAm’s Air Operations Center (see? the acronym was already taken before the Bronx Barista arrived in 2018) up north at Alternate (LS 20A/LS 98) over the fence in Long Tieng. The 56th SOW HQ was over to the southeast at Nakhon Phanom Airpatch (NKP) under the able command of an old friend of our family… Col. Heinie Aderholt. His son Ross and I went to school together at Seymour Johnson AFB, NC back then. My dad and Heinie loved bird hunting so we saw a lot of each other. And we even went to St. Stephen’s  together …1964 Confirmation Record with Ross Adderholt

A close 37mm AA rd.

It was a pretty small world back in ’64. My dad got transferred to Dir. of Ops at TAC HQ up at Langley and Lt. Col. Aderholt decided to move into Special Ops the next year and was transferred to the spook farm down at Hurlburt Field (Eglin Auxiliary Field No. 9) in Florida. That was the last I saw of either one until I ran into Col. Aderholt up at Alternate one day in ’70. But that’s a whoooooole ‘nother story.

38 USC §5104

I digress. After passage of the AMA in 2017, they (Congress) had to go back and rewrite/add extra things into existing 38 USC Statutes to encompass the wildly different new forms of screwing us out of our benefits. I know the regs/statutes are resplendent with words telling us we are God’s Greatest Gift to America but please- enough bullshit. If only 12% of us get our benefits without a godawful 2-year fight, then the system is rigged. If 74% of everything (excluding Ex. Writs) that goes to the CAVC is vacated, set aside, or reversed, then there’s something queer afoot.  You don’t need a shopping cart full of pronouns to figure this out. If the VA proudly touts its 98% accuracy rate (as did USB Hickey for years) and you, Johnny Vet, are holding twenty eight years’ worth of denials topped by a lowball grant last year, then you know this stinks to high heavens. Why even profess to be nonadversarial? Why not just call a spade a spade, piss on the fire and quit wasting money on a Veteran-friendly façade of bullshit. We could take those billions from boondoggles like Vantage Point and eliminate Veteran homelessness. Keep on dreaming, GI.

One of the little idiot items which we are supposed to get in this Brave New AMA World Order is compliance with 38 USC §5104. It’s also reiterated in §3.103(f)(5). Let’s take a peek at it and see what it says. I don’t think I need to turn it into DickandJanespeak. It’s my opinion that §5104(b) flows from Bryant v. Shinseki, 23 Vet.App. 488 (2010). The Court held that 38 CFR §3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Helloooooooooooooooo?

38 U.S. Code § 5104 – Decisions and notices of decisions

(a) In the case of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant’s representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.

 

(b) Each notice provided under subsection (a) shall also include all of the following:

(1) Identification of the issues adjudicated.

(2) A summary of the evidence considered by the Secretary.

(3) A summary of the applicable laws and regulations.

(4) Identification of findings favorable to the claimant.

(5) In the case of a denial, identification of elements not satisfied leading to the denial.

(6) An explanation of how to obtain or access evidence used in making the decision.

(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.

After you read this, if you’ve had a recent denial, I would ask you to take a gander at the end of any of your rating decision (RD) epistles if they were authored after 2/19/2019. Do any of them list any of this? Granted, a RD will always list the items being adjudicated at the beginning thus satisfying the dictates of (1). (2) is  sometimes a goldmine. VA prints up a bodaciously long list of evidence and often pointedly leaves out one essential document- usually the veritable Rosetta Stone needed- to unravel the Gordian knot of service connection. It isn’t by accident. Nothing at VA is by accident. They didn’t disremember. I feel for you when you have this moment. It’s like finding out the tooth faery was your mom. Get over it. VA lies. So did your Mom.

I caught them at this recently when they assembled the QTC/LHI/VES letter to the assigned “clinician”. Absent for review was a very important IMO from my private doctor which was the only way to win. I sent an email to the booth bitch and demanded that the document be tabbed and included for review. It was but the dickhead Doctor treated it as contaminated and worthless. The RD didn’t even bother to list it.Whoop! Whoop! Whoop! Violation of §5104(b)! Predecisional error. The RD is fatally flawed and must be readjudicated.

(3) Here’s another one that looks to be legitimate. Check it carefully. If you filed for loss of use and they are telling you that your SMC rate is at a&a and you do not have loss of use of your arms or eyes, they’re screwing up. If you  find no mention of §4.71a DC 5110 loss of use of lower extremities, they’re funning you. You probably won’t find any mention of §3.350(b)(1) either. In short, they will inadvertently use the wrong reg/statute and pretend they’re legitimate like dress up lawyers.  Again- it’s a §5104(b) violation. Argue it in a HLR. Call them out on it.

Never heard of using a thumper in a tunnel but it would have to be easier on the ears than a .45.

 

(4) is a big one. VA sometimes gets this quasi-correct. They’ll probably redundantly announce you need a&a when you’re already getting it. It’s what they do not say that makes this an error too. So, if you’re falling down a lot due to that mega-PN problem in you feet and can’t even feel them, that’s called functional loss (§4.10). If they just up your ratings for PN in the lower extremities from 20% to 40% and call it good, they haven’t addressed your new and relevant evidence from the VAMC that you were an inpatient (again) due to continued falls and a need for a neurological workup to find out why you fall down a lot. VA cuts corners and hopes you won’t notice.

Hue. Tet ’68

(5) is the biggee for Vets. Did these pukes ever discuss what was missing that they needed to help them grant your claim? Did they just obliquely say you do not have X or Y? This is important. It would normally be discussed somewhere in a denial under each disability being rated or denied. If it isn’t , then proceed to HLR  or  a 10182 NOD after the denial.

(6) is not very helpful to Joe Average Vet. He doesn’t have VBMS so he can’t “see” what VA c&p adjudicators write about him. You’d be surprised what they don’t write down and /or get wrong. I have Vets with DM II go in for a PN increase and the clinician checks off the no box where it says “does he have DM II?”

(7) is the absolute must for  most of us. You need to know exactly what it is you need to win. If VA doesn’t tell you, it’s a pretty good chance you’re going to be sitting on the Group L bench for losers forever. If you ask and the folks just shrug their shoulders and say ‘that’s not our job’, then you again have a pre-decisional error. But once they write the RD, the record is closed. You can’t stick in the new IMO or the new 4138 buddy letter. So, the §5104 data you need only occurs at the end when it’s too late. The only way to get a can opener into it again is to produce some new and relevant evidence ( a buddy letter) and file a 995 supplemental. At that point, you can take advantage of  data what you earlier lacked and §5104(b) demands they inform you of. But if they fail to tell you, you won’t ever know.

This popped up the other day in a CAVC oral argument. Ken Carpenter was arguing this very point. Where is it written that the BVA doesn’t have to do this too? §5104 is not specific as to which august body is required to comply. Certainly, the fact that this is also summarized in §3.103(f)(5) is indicative that it certainly applies to the Agency of Original Jurisdiction, but think about it. The Statute doesn’t give the BVA VLJ a bye to foist §5104(b) dicta off on the rater below. Food for thought. Boy howdy, listen to Judge Allen ream the OGC attorney. It’s fun to watch.

And that’s our lesson on how to win a claim today. On behalf of myself and asknod Inc., I hope we passed the audition today.

About asknod

VA claims blogger
This entry was posted in Appeals Modernization Act, Duty to Assist, Higher Level of Review (HLR), Humor, Tips and Tricks, VA Agents, VARO Misfeasance, VBMS Tricks, Veterans Law and tagged , , , , , , , , , , , . Bookmark the permalink.

4 Responses to §5104(b)–WHAT’S IN YOUR RD?

  1. Dennis Selby says:

    Very briefly, I came back from the ‘Nam (Army) in August ’70 after 18 months. Re-enlisted in ’73, discharged in ’87.
    FF to 2008, learned about A/O and filed several claims including Sleep Apnea. No treatment in service. Sleep Apnea was denied, appealed, denied, appealed, remanded, etc. FF again to 2017, got my 100% P&T, including PTSD. Now to 2022; I was notified last week that my Sleep Apnea had been granted secondary to PTSD! Only took them 14 years.
    I have learned much from your writings so my thanks to you and special thanks to my friend and VA legal expert, Bob Walsh!
    Also, FYI, as to your note today regarding compliance with 38 USC §5104, it was quite lengthily evident in my grant that both points were very evident. So, at least one judge has received the word.
    Denny Selby

  2. I first met Col Aderholt in 75 when he was heading up JUSMAG in Bangkok. Through his intervention, JUSMAG extended use of their facilities to us evacuees from Saigon. The next time we met was also in Bangkok at a small reunion of ops types and others who ‘ran through the jungle’ in Laos (which I, technically, was not) – when he was then BG (Ret) Aderholt. At that time I was finally able to thank him for the considerations.

  3. Calvin Winchell says:

    Charles Edwin Engle Another American Hero…

  4. Calvin Winchell says:

    Thought Mr Carpenter arguably succeeded in his thinking. He did an outstanding job having faced three really knowledgeable judges. Over my head!

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