Unless I miss my guess, I reckon summer, or what’s going to pass for summer hereabouts, has arrived. We’ve had two successive days where it actually got near 80°. I’m playing it safe and keeping the pool at 88° until it stays in that vicinity for a week or two. Life is good. Pray for no rain. And thank the Lord VA started a new fiscal year and turned on the ratings spigot again. I don’t think I’ve ever seen a VA dry spell like this one in my thirty plus years of playing VA poker.
Right off, I have to ask my readership if anyone gets bombarded by idiot commercials on their Goggle™ news feed. You know what I mean. Who are the best attorneys in Gig Harbor? You click on it and it takes you far afield to law dogs in East Bumluck, Egypt. Or you have to click to find out why you need to carry a crayon in your wallet. Shoot. It’d melt in short order or break into small pieces so what’s that all about? How about wrapping your doorknob with tinfoil if you’re staying in a hotel? Or putting a water bottle on top of your tire in a strange parking lot? Or the one that I’m tempted to click on showing how you can always tell when a one-armed bandit is getting ready to shit shekels all over you. Why is it that Rich Dad, Poor Dad is still telling us “I don’t think we’ve seen how high silver can go.” He was saying that in 2008. Why do I need to do something to my iphone before Sunday? I’ve been seeing that one for about six months of Sundays and my iphone still works.
I don’t know about you but I’m a man. I have pockets but I don’t think I have enough to carry all this crap around with me and I’m not about to start carrying a ‘man purse’. Most guys have four pockets like me. One for the phone, one for the car keys and the PPKS, one for the wallet and one for the Kleenex/other. I don’t have cargo pockets in my jeans but it’s an idea if I start packing tinfoil, extra water bottles and crayons.
As for all things VA, on July 1, 2022, VA commenced their new fiscal year for funding. They’re fat and sassy at the beginning before all the VA employees start syphoning off pharmaceuticals and anything else that’s not nailed down. My daddy once pointed out the difference between holding up a gas station and holding up a gas station on a Military base. The difference is about 40 years in Leavenworth versus 2-5 with time off for good behaviour at the state pen. I read the other day some Army O-3 and a couple of his E-8 NCO idiot hierarchy bagged 23 scopes for M4s and then were trying to figure out how to hide what they did when the CID folks showed up. That’s a whole new kind of dum-without a ‘b’.
With the fresh infusion of Benjamin Franklin coupons comes an equally large number of ratings decisions with actual grants of $. I have a few Vets from the ’91 Iraq/Kuwait who have all the prelim stuff complete, all the c&ps exams done and are patiently waiting for their ratings… since March. Crickets. Obviously there’s some Ethereums involved because a VA denial hits the front page faster than you can say ‘God Bless You’ after a sneeze. It just takes them a month to lick the stamp and take it to the mailbox. Gee. Ain’t automation and computers the cat’s pajamas?
I wanted to tell the story about one of my really old customers who got caught in the Corona Beer virus and its fallout. Back in ’19, they got the bum’s rush on a jetguns= hep c claim. VA wasn’t buying and I get that. You have to have your IMO ticket punched to win these. I dutifully took it up to the BVA on a direct review after I’d tried to take the Regional shortcut with a supplemental 995 and a great IMO. They re-denied using some bogus rationale so it was off to the BVA. After a few years, cirrhosis caught up with him and we got a good Advance to Boardwalk letter from his doctor. The BVA obliged and granted pronto.
Then it was back to the RO Puzzle Palace and the whims of the village idiots there. The latest VA trick on Hep C claims is the Zeros for Heroes® program as most of you know. Man, if you think you can tell when the one-armed bandit is going to spew its largesse, I can predict every one of my Hep c claims is going to get this treatment now- in 2022. You have to start from scratch and get an addendum to the original IMO. This time around you have to point out that DC 7354 starts out its preamble thusly “With serologic evidence of Hepatitis C.” That’s a far cry from being actively infected. Ever hear of antibodies after healing?
You have to write a legal brief for dolts and walk them through their own regulation. No, ma’am. It need not be active. Healed hep c with the following symptoms qualifies. I win these now at the HLR (Higher Level of Review) after a careful DickandJanespeak soliloquy at the informal conference. I can almost picture the light bulbs going on over their pointed little heads when they “get it”. Then we haggle over 10% or 20% instead of TDIU.
This provokes the next line of attack. You begin anew with a fresh filing (only on a 526, mind you) for DC 7312 cirrhosis and sense that same déjà vu coming on. Advancing up the cirrhosis ratings ladder is even more maddening. Examine the regulation.
Generalized weakness, substantial weight loss, and persistent jaundice,
with one of the following refractory to treatment: ascites, hepatic encephalopathy, hemorrhage from varices or portal gastropathy (erosive gastritis).
VA raters have been busy little squirrels during the pandemic. They’ve been given lots of time doing remote ratings and have learned all manner of new bad habits unsupervised. In addition to the purposeful misconstrual of DC 7354’s phrasing, they have applied the same money-saving technique here. Granted, no one is going to qualify for all three of the first-mentioned symptoms of generalized weakness, substantial weight loss, and persistent jaundice but that’s what it says. The ‘and’ is conjunctive so all the ailments are required to get a 100% rating. You don’t get to the Weight Watchers© state or that permanent orange juice pallor until you’re about ten minutes away from punching out. So let’s put that aside and look at the second set of disjunctive symptoms needed to get any baksheesh.
The regulation clearly states you need only one of the next batch of 1)ascites, 2)hepatic encephalopathy, 3)hemorrhage from varices or 4)portal gastropathy (erosive gastritis). Please note the preamble that says you need to eat tons of meds and still keeps suffering this stuff. “Refractory to treatment” means you eat the propranolol (or nadalol) but the esophageal varices never heal. They might quit bleeding (hemorrhaging) but the actual varices persist because of the (wait for it) portal gastropathy-also known as erosive gastritis- keeps getting pushed up your throat. But it gets worse. VA c&p clinicians have been trained to say you have GERD -gastro-esophageal reflux disease. Six of one and half a dozen of another everywhere in the medical lexicon world but sadly, not at VA, Jose. No sirree, Bob. The failure to use the right term is the death knell to that one. Ditto the hemorrhaging varices. They prescribe the propranolol specifically to thin the blood and relieve the portal hypertension. This keeps the varices from bleeding. Same thing with lactulose. You take that to purge the ammonia out of your blood and reduce ascites (free fluid in the abdomen). VA doctors carefully refrain from saying ascites calling it instead “free fluid in abdomen near spleen”. Yep. Missed ascites by thaaaaaaaaaaaat much, 99.
VA will try like the devil to say you need all these ingredients rather than just one. VA will argue your varices need to bleed to get to Bucks Boulevard. That fluid sloshing around in your belly that you have to go in and get tapped for every four months? Negatory on the ascites because your med recs don’t state you’ve been dx’d with ascites. Remember? That’s just “leakage” from the spleen.
Thus, VA can (and does) deprive you of virtually anything to keep you off Dollar Drive. I can’t count how many decisions I’ve read where the rater says ” You were denied entitlement to PTSD because you did not have a diagnosis of PTSD.” Well, by golly that is 100% correct. VA told the truth. VA’s very own psychologist or a contract clinician made that call and said you didn’t. And until you get your own private psychologist or psychiatrist to rebut that and diagnose you with bent brain, you will remain denied until death does its part.
So, how do you fight these jokers? In this case, we went after the hepatic encephalopathy after beating our fists against the wall for the ascites and varices. That’s just a mouthful of word salad saying your brain is full of ammonia and it gives you brain fog. Brain fog is the non-medical way of saying you can’t remember who the president is, or what day of the week it is. If you cannot recall where you are or when, that’s brain fog. In this case, the c&p clinician quickly “saw” the medrecs prescribing the lactulose and the Vet’s inability to perform the who, what, where, why and when test. It’s one of those rare occurrences where the truth escaped their lips.
The Vet’s spouse was careful to keep pounding that brain fog nail into the clinician’s noggin, too. It finally stuck and I used it to argue the TDIU under an extraschedular clause (§3.321) and §4.16(b). Because VA had done such a great job of low balling my Vet, he only had 10% for hep c, 30% for cirrhosis and 10% for anemia from all the blood he was losing to the ascites/varices which they insist are not bleeding. It’s downright difficult to put your iPhone 13 on a selfie stick and jam it down your throat to get video evidence of the bleeding. Maybe a small GoPro? VA isn’t very eager to schedule an endoscopy either.
Most who know me are aware I don’t take a denial as VA’s last word on anything. I’ve been blessed with an acerbic, silver-plated tongue. It works wonders when you’re doing an HLR IC. Call these pukes out. Cite their own regulations to them. Get it in the record for an appeal. Eventually, someone with an ounce of intelligence will “see” the legal flaw and warn the Coach their denial ain’t gonna get airborne. With the new AMA, you can ride this bronco over and over until you get your 8 seconds on board. And I’m always sure to let drop to the HLR booth bitch I’m just dotting the ‘i’s and crossing the ‘t’s to ensure the duty to assist is covered so I can win on appeal without another remand for AOJ errors. That’s guaranteed to make her feel really insecure like she has a piece of black licorice stuck between her front teeth.
Every time some law dog says I’ll never win a claim/appeal, I do. It’s uncanny. How can I still be batting .1000 doing this? I even see the big names getting whacked every once in a while. I promise you I do not cherry pick my claims. I’m obligated to take all my relatives’ claims hereabouts. My daughter married into a huge clan and all the folks my age signed up for the Vietnam War. Some need a&a and the higher SMCs but most are just like all you Johnny Vets -flat feet, bad knees from jumping out of perfectly good 130s at Fort Bragg etc. The usual stuff. My guess is the SMC claims come to me because I’ve written so extensively about the subject.
As I mentioned in my book back in 2012, this process is nothing more than carefully following a recipe. There are no shortcuts. You don’t start before you turn on the oven. You don’t substitute ingredients. You follow the instructions and get what you expected. Failure to follow the game plan results in twice as much work and endless aggravation. Too often I have a Vet call/email me and ask why he lost. He points to his bulletproof IMO for $5000 and doesn’t see the word “probably” or “possibly”. He can’t fathom why reading the claims file makes VA’s $599 QTC Earl Scheib Special™ better than his private doctor’s.
I’ll be writing an article here directly on the new Stover Decision about AO in Thailand. Its thrust appears to be moot now with the imminent passage of the PACT Act. We shall see. Congress speaks and then VA hamburgers their statute into something unrecognizable. I’m guessing you’ll have to be born in an odd month on a Thursday to be considered presumptive. And boy howdy. Think about all my fellow Air America compadres who served in Laos and Cambodia. I see the presumptive only goes back to mid-1969 for those in Laos. WTF, over? I watched AO, AB and AW being liberally applied at 20 Alternate in 1970. By Hmong youngsters. Every month. Go figure.