Once upon a time down on a peaceful Pacific Island, the US Navy began testing a-bombs. My Vet was there (Johnston Atoll) standing on deck at parade rest (as ordered) in April ’62 to observe and, unbeknowst to him, being used as a human radiation dosimeter along with all his buddies. That title might seem incongruous as applied to a presumptive claim for an AO story but bear with me until we reach its final chapter.

Notice the “dead ” areas adjacent to the hardstands?

Doug was a trooper. He served proudly from ’59 to mid-’62 and then the bug bit him to do the whole 20 years. He came back that same October and pressed on until ’77. By then he’d also seen two tours inside the 12-mile limit off the coast of ‘Nam, too. Back then, if you weren’t boots on the ground, you never got to see the extraordinary effects of Agent Orange and it’s sister flavors. I reckon most of us who were there thought this new herbicide shit was totally awesome. No mosquitoes or spiders for a while. No red biting piss ants. No snakes or those 4 foot-long centipedes. The monkeys disappeared along with the tigers and pretty much everything else alive, come to think of it. Oh yeah. And the vegetation, too. Add a side of liquid sunshine and a couple five 1000 pounder MK 82s and the land around you resembled the moon-devoid of life.

So, along about ’87, Doug noticed he had myelodysplastic syndrome…bad. And then the MI hit (myocardial infarction)-i.e., heart attack. They air-evac’d him to a hospital licketyspit, cut him open like they was gutting a deer and triple-stented him. Doctor Doug had this all figured out. He was convinced it had a lot to do with bending those atoms down in the Marshall Islands in ’62. So much for his medical training. But each and every one of those filings-including hypothyroidism- would just happen to eventually become recognized herbicide presumptives.  If I was a betting man, I’d give even odds that it was just as equally related to the radiation, too.

About 2002, he started getting angina and SOB (shortness of breath). He was skinny as a rail but suddenly was dx’d with the diabetes. Then his left venticular ejection fraction sank to 30%. Then he started getting peripheral neuropathy in the lower extremities. Depression set in and Winky quit working. Doug decided to call in his marker from back in ’59 when he held up his right hand in marriage to the Squids and said ‘I do’. He filed his 526 and averred it was all due to Operation Dominic.

I guess I don’t need to cut a passel of trees down to go into detail on the denial. Suffice it to say that went over like screen doors in submarines. By now, Doug was getting mighty peeked in the gills. His check engine light kept coming on. He was out of gas and reduced to doing much of anything in the way of work except for making these beautiful wooden boxes with the different seals of the five branches of service. They were truly gorgeous and I considered myself lucky to own one.

Fact is, his daughter was one of my Cupcake’s real estate agents. Cupcake kept pestering Janine (not her real name) to get Doug to come see me to file for what was virtually guaranteed Procopio stuff. He told Janine they’d served close enough to ‘Nam to do fire missions from their destroyer. Finally, I went to see him in ’20. His wife had pretty bad COPD after 35 years of Marb reds and he had to do all the house chores. She was weak as a kitten and on oxygen. I mean to tell you he wasn’t much better though.

Foxtrot 6 Actual. Call your smoke over

I got the lowdown on the ship info from him to look it up. In fact, my friends at CCK have created a great website to identify entitlement to Procopio claims here- . I put it at the top of my blog above in the Widgets section. Sure enough it said he had a shit ton of sailing time inside the line spread over several destroyers so that box was checked. Too bad it took the VA nine months to retrieve those same ships’ logs even though I told them where to look. I swear sometimes it feels like I’m dealing with the shallow end of the dry lake bed of the gene pool for intelligence here.

Finally, in late September of ’20, VA cut the paper but did something I least expected. They did a retrospective Fenderson staged ratings based only on the records we’d been able to recover. No c&p exams- just a chainsaw Fenderson rating that looked like a roller coaster on a graph. 10% from ’02,  30% six months later (’06) and then 60% a year later for the IHD and then back to 30% for 8 years from ’06 to ’15. Then 100% for a year and then back to 60% for three more.  WTF, over? The DM II? Why, 20% and 10% (for just a year) for the PN in the lower extremities. They denied the erectile dysfunction and failed to even mention the bent brain syndrome secondary to the IHD. Finally, after more ups and downs, they granted 100 for the IHD in ’19 when his LVEF sank to 20% and stayed there. From where I stood, it looked like if it wasn’t for bad luck, ol’ Doug wouldn’t have no luck at all in this VA poker game.

I pointed out the obvious. What about 2002? Just because the Dougster didn’t attribute it to herbicides in ’02 didn’t mean it was dead in the water for Nehmer purposes under §3.816(c) now. VA acted like they were ignorant country bumpkins and allowed as they musta overlooked that and were plumb sorry they missed the fact… large as life and twice as natural right there in VBMS. Yeah. Right. But, being exceedingly generous, they had munificently given him 40%…which just happened to keep him out of range of his  DFAS retirement money until 2019, too. Missed it by thaaaaaaat much, Doug. Piss poor luck. What?

But thanks to Under Secretary of VA Allison Hickey and the modern marvel of VBMS, I had spotted that MDD diagnosis earlier and decided to play country bumpkin, too. The doctor had been anally specific and wrote it up as being 50% disabling due solely to his IHD under Part 4 of the VA’s schedule of rating disabilities (the VASRD). The Boys down at the corner RO didn’t like me springing that on them and denied it. It took a bit of arm twisting and an Advancement on the Docket at the BVA to get it SC’d. Effective date? Why shucks, 2021 of course. We made a u turn and quick like a bunny rabbit doubled back to DC to get it retro’d back to 2002. Sure enough, the VLJ agreed a disability secondary to a Nehmer disease was… wait for it… a Nehmer disease too. Of course, this was Dick Tracy 101 but VA was stonewalling the inevitable. Bingo. It was DFAS time.

This put ol’ Doug in the catbird seat and his 40% jumped to 80%. His DFAS avalanche had finally come in. But VA wasn’t having any of my TDIU argument back to 2006. No way, Jose. Try as I might, I couldn’t dynamite them out of that denial. They were digging in. They wouldn’t even entertain a extraschedular review back to Tom Murphy at the Director of comp. and pen. And that’s where matters stood on September 21, 2021 when Doug’s heart  finally went tits up.

I threw in a HLR just for shits and grins but I could tell it was futile.  The HLR booth bitch was as cold as a mackerel and had the denial published in VBMS in a record 28 minutes. So, never having been taught the definition of the term ‘defeat’, I armored up and went to my favorite Nexus letter factory. No, silly. Not Doctor Bash or VA Claims Insiders. We’re talking the Jedi Masters of the IMO- Mednick Associates. As if this story wasn’t incredible enough, these chuckleheads established the EP 040 claim on August 15, ’22 and had it denied by the 29th. Amazing. These DROC folks thought they were Smokin’…. as Jim Carry was prone to say in The Mask.

redact 8.29.2022 redenial of IMO info for 2002

redact 2022 final CS

Apparently, these GS 14s had their marching orders from Day One back in ’20. The  8/29/22 denial was a hoot. Every finding in the IMO was new but not relevant. Every c&p retrospective they’d cranked out said our IMO dog wouldn’t hunt. So, once again, it was off to the BVA in search of a friendly ear… which is what occurred on Thursday, April 20th while I was busy learning my ABCs of VA law in Orlando. VLJ Mike Skaltsounis, after mulling it for several weeks, arrived at the definite conviction that somebody was funnin’ him and it wasn’t me.

He gave us exactly what we asked for and what I knew ol’ Doug was entitled to- TDIU back to March of ’06 and SMC S from ’15.  Shooooooooooooooo, doggies. This appeal was more fun than Nape and CBU 26/49 at 0730 when Captain Charles was just rising and making his tea. Forty minutes later them delayed CBU bombis would begin to light up all over again.  Sorry. I’m not allow to keep my membership in a certain Veterans legal organization if I use contemporary pejoratives synonymous with nasty racist connotations to describe the folks who were shooting at me and trying to kill me every day for two years.

Doug can rest easy now up there in Heaven. I promised him back when I started that even if he augered in, I wouldn’t give down on him until I had this in the bag for the better half. And here we are. Mission accomplished. I guess it’s time to start looking for another client now that Doug’s file is ready for the archives. If I wasn’t a lost soul, I’d think it’s proof of a Higher Being looking out for these folks.

Reminds me of the lyrics in The Last Trip to Tulsa by Neil Young where he sang “They gave me back my house and car and nothing more was said.” Here, they gave Doug’s wife back her life in some small measure after they drove her husband to the grave with stress. This sucks. Which is why I do it. Somebody has to.

redact BVA decision 4.20.2023

redact RD 4.21.2023

redact 2023 final CS

P.S. Here’s to International Women’s Day from our resident LRRP humor supervisor.

About asknod

VA claims blogger
This entry was posted in Agent Orange, BvA Decisions, DM II, Independent Medical Opinions, TDIU, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law, Vietnam War history and tagged , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to BVA-§3.816(c)(1)–BENDIN’ ATOMS DOWN IN BIKINI

  1. asknod says:

    Well, shoot. It pisses me off to get a bitchslap when these pukes act stupid and purposefully deny folks. This was carefully orchestrated to fence Doug out of the big $. It wasn’t a mistake. I knew they were going to try some stunt the moment they rated him without a c&p. The bent brain hand grenade was nothing more than a trick I learned in a country far away where Togetherweneverserved. Make them think they’re waaaay smarter than you and they’ll eventually step on their neckties.

  2. MI Whitetail Hunter says:

    Good story, Alex – thanks for winning for his widow. It’s particularly satisfying to see you win after the VA has dug in.

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