OUR NEW VA PACT ACT AND THAT PESKY PROBLEM AT THE BVA


Wowser. Congress finally got it sorted. I’m not completely impressed or floored just yet. What’s certain is that, as usual, in a few short years, we’ll find out what was left out, deliberately ignored or never contemplated when mapping out this juggernaut. Just as we’ve discovered the magic AMA isn’t even touching the backlog problem as promised, we always discover some boneheaded “assumption” upon which billions were bet. Kinda like that intractable Oracle/Millennium Cerner EHR medical computer at $16 Bil and counting. I’m betting Congress will shoot out the tires along about when it hits $25 Bil and they can’t figure out why it’s still killing Vets. Please, Congressman Tarkano. Just another $10 bil. We’re almost there. 

 

What’s in this pork barrel? Lots of stuff I don’t think belongs and lots that’s way overdue. Vietnam Vets got Hypertension (HTN) and monoclonal gammopathy (MGUS). That’s a nightmare in its own right brewing. VA will now have to go back and find every one of us Vietnam Vets who put in for HTN secondary to DM II or IHD. Believe me. They’ll take about 15% or the raters off the normal flow of intake for new claims and devote them to this alone. Expect one-year delays as in the days of old when there was one line VA examiner for every 200 ready for decision claims. If it’s one for a 0%, add a year. Chances are most of the HTN and MGUS stuff will come back as a 0% and require a new supplemental to get a legitimate rating. Many trees will be cut down and pulped to feed this endeavor.

To me, the big win is for us Thailand/Laos/ Cambodian/Anderson Island/ Johnston Atoll folks. Again, the number of claims denied which , incidentally can fall under the auspices of §3.816(c) assuming the Vet is savvy, is also staggering to even consider. On top of that will be the tsunami of follow on Vets queuing up to file tomorrow thus ensuring an earlier effective date.

Once again, they are going to somehow phase this entitlement in gradually so as not to bankrupt the US treasury. Whoops. Too late. That happened when they started shoving IOUs in the Social Security lockbox. Veterans of all war eras are going to get more compensation for legitimate diseases. The wonder of all this is why it took so long. No wonder, this. It’s all about money. Your tax dollars are needed for the National Institutes of Health to send to China to support research into bioweapons like COVID. We have to install ecotoilets in Yosemite that are earth friendly… but have no $ for Veterans.

I have a theory on how to ensure world peace. Henceforth, when we opt to go to war anywhere, we should be forced to set aside X $ for VA to fix the injured folks. I’m guessing no one in Congress would have the stomach for erasing a $52 billion initial outlay on some boondoggle in East Bumfork Egypt and penciling in $350-$? billion in the appropriations guestimate blank. Well, it might give them pause. Maybe not considering Speaker Pelosi just landed in Taipei after flipping off the Mig 29 pilots flying off her right wing. Gotta hand it to her. That takes balls.

But now I wish to address what’s afoot at the BVA. The advent of the AMA was promised to cure the backlog at all venues – be it the AOJ (Agency of Original Jurisdiction) aka the VARO or our friendly Veterans Service Center (VSC) or the Board of Veterans Appeals (BVA). Misjudged they did. Yesssssssss. No pun intended.  When it became apparent that an inordinate number of Veterans were not going to piss on the fire and go home, they were dumbfounded. Apparently, the new AMA maze wasn’t confusing enough. More and more Vets opted in and appealed to the BVA in spite of what the BVA Poohbahs were told. This stampede toward justice meant they needed more Veterans Law Judges (VLJs). Finding attorneys who understand or practice VA law is dicey. Most potential candidates come from within the pool of VA’s staff attorneys at the BVA itself. Some (very few) come from the ranks of us who do this for a living. Regardless, you have to know that VA law is to Law as Military music is to Music. It’s two entirely different venues. Having a shiny Juris Doctorate and applying for a VA attorney job means a solid year of grueling indoctrination in just the basics without dwelling on the intricacies of CUE, SMC and §3.156(c).

So, without mentioning any actual names, the BVA chairman of the Board opted to hire unschooled, FNG JDs with nary an ounce of VA legal knowledge. Well, as anyone can tell you, when this happens at the XYZ Mousetrap company, you have to teach the FNG the proper way to build one and how to operate the machinery. After about six months, he graduates from Padewan to Moustrap Journeyman and can work unsupervised. Nevertheless, it requires taking someone out of production to teach him. In a nutshell, that’s is what has transpired at the BVA. They’re so busy training new VLJs, they have fewer warm bodies to operate the production line. Prying a decision out of them is becoming more and more time consuming to put it politely.

Chisholm, Chisholm and Kilpatrick (CCK) recently filed a petition in U.S. District Court to complain about this and argue the AMA never legislated permission to do what they’re doing at the BVA re Legacy versus the newer AMA appeals. The backlog of Legacy appeals was supposed to have been done by now yet they still remain embedded at the BVA like cockroaches. The AMA work seems to have taken precedence. Worse, these are two different systems with two different sets of regulations. Imagine training judges on a system that will soon be obsolete. You or I could come up with a better game plan. Hell, Homer’s monkey Mojo could, too.

Last night I received a copy of a letter an unknown number of VLJs penned to enlighten Mr. Chisholm on just why there’s such a problem at the BVA. Since I know very few VLJs both past and present and rarely meet new ones now, I can only venture a guess as to how many signed it.  Probably every one of the overworked, underpaid and ignored VLJs is my guess. Take a gander:

Concerned-Judges-Letter_final1_stripped

That’s the latest roundup of the VA News. You may discover I take a different slant on reporting it compared to other Vets help sites. That’s because I don’t have a filter. I’m sorry if it conflicts with your reality in doing VA claims. I litigate to win and I don’t settle for the 10% lowballs VA hands out. Since no one taught me how to do this, I get to stumble around and act uncouth. It works.

About asknod

VA claims blogger
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12 Responses to OUR NEW VA PACT ACT AND THAT PESKY PROBLEM AT THE BVA

  1. holly says:

    Hmmm, it appears a super deep dive of research is required.

  2. ej rowland says:

    Those of us that spent time at Ft McClellan were dropped once again. For YEARS there has been supposed to be a registry etc. Never happened. Now it has been dropped to a “study”. with no start date and no end date. My guess………when it seems we are all dead. My recent diagnosis of liver cancer and waiting to results or PET to see if it is also in my pancreas etc. Already lost my thyroid and have 3 autoimmune diseases.

  3. holly says:

    A little something is better than a little nothing. In utero and small child at CL.

  4. Jim Radogna says:

    Here are the biggest dirty little secrets in the PACT Act that are going to make many veterans extremely unhappy once the ether wears off:

    There will be no retroactive benefits for veterans for hypertension, MGUS, Thailand, Guam etc., or Gulf War veterans (only DIC recipients). As such Nehmer effective date provisions will not apply to hypertension & MGUS and VA will not be doing outreach to veterans who were previously denied.

    See PACT Act Section 404: Retroactive application for hypertension & MGUS.– “Notwithstanding any Federal court decisions or settlements in effect on the day before the date of the enactment of this Act, the Secretary of Veterans Affairs shall award retroactive claims for a condition under section 1116(a)(2)(M) of title 38, United States Code, as added by subsection (c) of this section, only to claimants for dependency and indemnity compensation under chapter 13 of such title described in subparagraph (A)(i) of this paragraph.” Further, the hypertension presumption will not go into effect until October 1, 2026

    Earlier effective date provisions (similar to Blue Water Navy) were included it the original House version of the PACT Act but were removed in the Senate version (except for DIC recipients).

    See Section 203: “Nothing in this section shall be construed as requiring a retroactively applied effective date of a claim earlier than the date a presumption of service connection is established or modified.”

    Also see Section 1305: “Reevaluation of dependency and indemnity compensation determinations pursuant to changes in presumptions of service connection: “notwithstanding section 5110 of this title, with respect to claims approved pursuant to such reevaluation, provide compensation under this chapter effective as if the establishment or modification of the presumption of service connection had been in effect on the date of the submission of the original claim.”

    Dreams of big Nehmer/BWN payouts shall not come to fruition for many veterans who rely on the PACT Act presumptions to get their claims or appeals granted. That’s why we’re recommending staying the course with pending direct service connection claims or appeals. VA would just love screwing vets (and attorneys/agents) out of their rightful retroactive benefits.

    • asknod says:

      Thanks for digging out the particulars on the EED presumptives, Jim. I tried to read through it five times but kept getting bushwhacked by my new granddaughter who has discovered the art of walking. To me, it’s a horrible example of a rushed bill to placate the Big Six VSOs and nothing more. EEDs under §3.816 aside, the inclusion of obvious exposure for Thailand Vets is, to me, the big banana. But look at the effective dates for exposure to AO in Laos (Sec. 403(d)(3): “performed in Laos during the period beginning on December 1, 1965, and ending on September 30, 1969. I was watching Hmong kids ‘spraying’ this crap with cut off bleach bottle scoopers as late as October 1970. We had tons of it (AO and A Blue/White) stacked up in the bomb dump at Alternate. Besides, visit that area of Laos now , or even areas adjacent to the HCM Trail and you’ll find thousands of birth defects in children fifty years after the last drop touched the ground.

  5. john terence king says:

    I just filed for HBP as a Vietnam vet. I wonder how long this claim will take? I am not worried about it as it won’t affect my rating. However, if I have a stroke next week that would be a secondary condition no doubt.

  6. Desert Storm 1111 says:

    In my inexperienced opinion, I think it’s the DROC’s and Regional Offices who are dumping undeveloped cases, en masse, onto the BVA in order to improve their own metrics. I presume it’s not the fault of Mrs. Mason or the BVA. The BVA is the best part of the VA. If Cheryl leaves, I hope she becomes the VA secretary someday. But right now, I think McDonough is the best VA Secretary in history. The source of VA trouble resides at the RO’s – who are hamstrung with thousands of rules, but are master BS artists (no one can hustle a Vet like they can). The Seattle & St. Pete DROC’s are laughably uncontrollable. They’re a failed experiment. I’m assuming the new Wash. DC one will be the same. In sum, I also believe the ALJ’s letter and the content, but it’s much worse out there at the RO’s. BVA is getting slaughtered and they aren’t seeing it because they’re pro’s and educated. The RO’s aren’t developing claims, in favor of letting the Vet appeal to BVA and let the new VLJ’s do it for them. I’m sure I have many facts wrong, but I feel that with McDonough, everything will be better in the future. We need him and Mason to stay a long time.

  7. cdneh says:

    Also does a little something for Marines and their survivors/dependents poisoned at Camp Lejeune. Section 804. It is all about Camp Lejeune and contaminated water.

    • asknod says:

      Honey, you have to ask yourself what isn’t in the PACT act. It’s chock full of Santa shit that will soon explain why they’re going to be handing out 0s for everything soon and hamsterwheeling you to the grave.

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