Happy New Year’s Eve to you all. I’d like to extend my heartfelt joy to Karoni Forrester on the recovery of her father’s remains fifty one years after he was shot down over the DRV. She can now hold that funeral that was denied her as a child when he went missing on December 27, 1972. I only hope we’ll be able to bring them all home some day and retire the POW/MIA flag forever on that chapter of the Vietnam Boundary Dispute. That is a welcome remote footnote in history finally resolved. VA also just solved another enigma-albeit only 34 years old and belatedly granted my Veteran his due after quite the fight. Pop an IPA and kick back. This is a good one.

Harvey and his wife

Harvey was a young go-getter back in the day. He eagerly signed up in December of ’80 for what promised to be an exciting career in the Navy. Had he prevailed, he might have still been in when the 1991 shootin’ match began down in Iraq/Kuwait. But that wasn’t meant to be.

Harvey came to me from my website. He was homeless and living out of his van in East Bumfork South Dakota with his dog and attempting to fight VA over his Hepatitis C claim. I was appalled and promptly sent him $100 for dog food.  I finally steered him to an attorney down in San Diego who was able to help him get his TDIU. That’s a story for another day. What’s salient about this tale is that he’d been sent ashore to the US Naval Hospital in Yokosuka Japan for treatment after a load of heavy notebooks fell on him in heavy seas one night in ’85.

As they had no EMG gear to check his nerve impulses there, they sent him out to a Japanese hospital for the test. Bummer. The Japanese were skinflints and neglected to sterilize the needles they used for the conduction tests. And, just like a jetgun, he came down with Hep C which wouldn’t rear it’s ugly head for several more decades. The damage to his cervical vertebrae was ugly. He had a nasty C8 nerve root impingement that was causing him immense pain. All his Navy doctors freely acknowledged this and recommended a medical discharge. The Navy Administrative arm wasn’t feeling as generous and refused to grant it. After a year or so, they discharged him at the end of his current enlistment.

 Three years later, he filed for the neck issues after they failed to resolve. VA did grant for rheumatoid arthritis under DC 5002 at 40% but vociferously denied the 20% for the C8 nerve gig. They insisted there were no STR records to support it and they were quasi-correct. VA failed to associate his Yokosuka inpatient records with his claims file. Fast forward to 2010 and South Dakota’s Fort Fumble.

The immortal $1.19

By now, the Hep C was literally killing ol’ Harvey. After an extended fight to find the Yokosuka records, he convinced a DRO at the Sioux Falls Puzzle Palace to send out a 3101 query to Yokosuka in an attempt to win the hepatitis claim. He succeeded in that respect but didn’t quite realize the import of the introduction of those STRs in 2013. Whether or not his VA attorney did recognize the significance of the new records, she declined to file the claim under the authority of §3.156(c). Her loss has turned into my gain, I reckon.

After reading my blog for a few years, Harvey came back to me and asked me if I’d be interested in a fight to win this. By now, I was accredited and felt it was a travesty that he hadn’t been vindicated in 2013 by the introduction of the new records. To be truthful, fighting for a §3.156(c) win back that far was (and still is) as equally daunting legally as a fight for a CUE that far back. Not many VA litigators can be induced to pick up that flag and charge up the hill. It’s a labor of love.

Redact 10182 filed 6-14-2019

VA is fond of redirecting you down the wrong legal rabbit hole and Harvey got the  treatment I somewhat thought we would. VA attempted to misconstrue it as a CUE claim. Try as I might to turn the discussion and legal argument back to §3.156(c), VA continued to yell “No CUE”.  Finally, after exhausting all the venues below, I filed for an appeal to the Board. Being unable to foresee the impending backlog-to-be at the Board from the AMA and the Pandemic, I chose the hearing option to untangle this mess. If the chuckleheads in Sioux Falls couldn’t unravel it, I figured it was gonna take a heapin’ helping of word salad and a well-polished silver tongue to help a VLJ “see the light”.

Fast forward to June 16, 2023 and a Videoconference with VLJ David Robertson. For whatever reason, Harvey declined to do an in-person hearing at the Albuquerque Regional Office and so we did it remotely. It still worked out because of one important fact. When Harvey entered, some idiot mistyped his social security number into the system. They used 485 as the prefix instead of his real 484 one. He pointed this out early-on and the Navy gomers said “Roger that. We’ll get it sorted. In the meantime, report to Basic RFN, son.” Which he did. Six years later it still had not been corrected when he was unceremoniously shown the door.

Napalm. It’s what’s for Breakfast.

Harvey filed in ’89 in San Diego under the aforementioned wrong SSN prefix and VA granted under that number. What the hey? His DD 214 had the 485 on it.  When he filed to reopen for the hep up in South Dakota twenty one years later under the correct 484, VA became extremely discombobulated.  No one could find his records. Worse, they couldn’t for the life of them figure out how he was getting a 40% comp check for the last 22 years absent a c file to support it. Worser, from VA’s standpoint, since it was a protected rating under §3.951, they couldn’t just rescind it and send him on his way.

After a year or more of intense fighting and a belated recognition of the incorrect social security number, the records from Yokosuka arrived and he won. But there would be no talk of a retroactive date back to 1989. No sireee, Bob. Not yet. I began the battle six years later in April of 2019. As I mentioned above, VA went off on a tear and ignored the whole 156(c) argument. All they could surmise with their pointed little heads was that it had to be a CUE claim and promptly denied.

When this happens, you have a better chance of convincing them the Earth is flat or that chem trails are hazardous to your health. Realizing how futile this would be, I elected to cut to the chase and place it before a VA judge on appeal with a college education and a real law degree. I just didn’t realize it would take four years and four months to obtain the hearing. I sure can’t fault the VLJ for remanding it. Judge Alexandra P. Simpson, before whom I will be arguing my greenhouse appeal directly on January 10, 2024, in D.C., wrote the decision correctly. Thank you, Lelli!

REDACT BVA remand 11.17.23

After surveying the legal wreckage below, she rightly remanded it as a pending claim which had been incorrectly adjudicated under §3.105(a) as a CUE-leaving the matter of entitlement under §3.156(c)(1)(3)(4) unadjudicated. It was promptly sent down to   Albuquerque’s village idiots for a do over. Still convinced they were right, they decided to shitcan it as a no-go. Can you imagine the chutzpah of a lower tribunal (and I use the phrase loosely) wadding a remand up from a higher tribunal and hucking it into the circular file? Balls he has. Yessssssssssss. That’s the “legacy” we’re experiencing nowadays under the new AMA. Any jackwad can make these determinations without any oversight whatsoever from above. Pretty scary, huh?

Not the least perturbed, I fired off an email to the gomer Coach who’d 86’d it and pointed out that yes, indeed, the 2013 records were new and they had two choices. Either reconsider them under the remand instructions or I’d be sashaying on down to DC and filing an Extraordinary Writ of Mandamus to get my claim done there. I like to make them feel guilty. Poor Harvey’s liver isn’t doing well and he might fall into the old saw about delay, deny until we die if this continued. I also cc:’d it to Denis the Menace just in case they doubted my resolve to pursue it.

Well, boy howdy did this float to the top licketyspit like a fishing bobber. After ignoring the Remand and refusing to CEST it from November 17th to December 28th, the industrious raters sharpened their pencils, CEST’d an EP 930 and cranked out a grant in record time-24 hours after the email. And here it is. What’s that beer commercial?  Paraphrased, it comes out sort of like “I don’t normally do §3.156(c) claims but when I do, I like to kick ass and take names”.  A VA rater has to know his limitations. I’m a bonafide asshole. Sometimes I don’t even like myself. My mantra has always been Win or Die™. Did these muffinheads actually think I was going to walk away and tell Harvey I gave it my all but VA said it just wasn’t in the cards? Oh hell no.

Ladies and gentlemen Veterans, I give you my next to the last production of 2023. I also got another long-suffering Vietnam Vet his rightfully earned 100% a day later. How VA could deny (for years) his being inside the 12-mile limit when his DD 214 clearly and unmistakably showed the award of a Combat Action Ribbon (CAR) escapes me. What do these gomers think? That the Navy awards CARs for combat KP duty? Shut the front door.

Redact RD 12.28.2023

Harvey even insisted on paying me back the $100. And that’s all I’m going to say about that this year. I look forward eagerly to doing battle in 2024. Who knows what adventures await my clients? All I know is I no longer feel like a one-legged representative in a VA ass-kicking contest when I win one of these claims.

P.S. I do realize that the photographs you Veterans send me to publish sometimes contain disturbing images involving death and destruction. I make no apology for them as they are your memories, not mine specifically. In truth, they convey far less than what I saw with my own eyes in my two years over there. Perhaps they’ll induce our fearless leaders to carefully reconsider waging war in the future. Somehow, after observing the debacle of Afghanistan, I doubt it.

HNY

alex sends