I honestly never thought I’d be writing about something like this ever again. I disremember the earlier article’s date but the thrust is equally as ugly as the above case. While some may consider this ancient history and long-ago resolved with VA’s standard boilerplate “We’re extremely sorry. This was a learning experience for all stakeholders and an opportunity to make the process immune to these errors in the future”, it seems the VHA never got the email. 

Parse that again, partner. You and I are Veterans and if we ain’t stakeholders in this VA poker game, who in Sam Hill is? I even reread the contract just to be sure we didn’t get hornswoggled with an obvious misspelling like steakholder. No, indeedy. This is partially our fault somehow and we get to listen in on the how and why we’ll never get justice. The simple fact is they think we’re a bunch of mental feebs. Trailer trash. Walmarket™ shoppers. Welfare queens.

  There’s always a kernel of truth in there somewhere. Running it through the VAspeak AI generator, this would come out closer to ” Okay. We’re busted. So what? From now on, we won’t be putting it into the VistA records so we don’t get caught again.”  Gez, remember the Phoenix appointments fiasco back in 2014? Good thing we nipped that in the bud… except we didn’t. Turns out Columbia VAMC was doing it, too … and Detroit and Salem and Dayton and ad nauseum. I even read where they got caught doing it again in Spokane two years ago. They blamed it on the new Cerner medical computer this time. At some point you have to wonder if it isn’t programmed in to do it as a default setting…

But go back further. In about 1998, after VA was forced to admit a new kind of RNA virus called Hepatitis C was afoot, they began testing Vets who used the VAMCs across our fruited plains. They didn’t bother to ask permission and if you did have it, they didn’t tell you. I get that. How do you look one of America’s patriots in the eye and say “Ah, we didn’t ask for permission to test you for Hep C and drugs in your urine, but while we were doing so, we noticed you have hep C and smoke pot. No big deal, right? Of course, if you don’t do something about the Hep, you’re gonna die in about 15 years so there’s that, too. As for the pot, we’re reducing your PTSD rating for self-medicating.”

Which brings us to poor Mr. Richard Ley, former Gyreene (USMC)  and one of us increasingly few, proud Vietnam Veterans still standing. You can verify this at CAVC 2023-1547. The Richster’s  first mistake, like mine, was thinking VA medical is commensurate with regular old civilian medical like Franciscan or Kaiser. Boy howdy is that ever an eye opener when the cat gets out of the bag. Think Kenya and 1953 and you’d be closer to the reality at some VAMCs. At Franciscan, they at least tell you what is wrong with you. So here’s the BVA decision and the Appellant’s brief. I’m looking forward to how this plays out.

Ley v Dennis BVA Decision

Ley Appellant’s Brief

And here’s the oral brief.

In 2003, the VA added chronic lymphocytic leukemia-or CLL- to the Agent Orange list. I’m abbreviating it  so I don’t get a crick in my hand typing it a bunch of times.  VA realized as early as 2008 that Mr. Ley had some nasties in his blood but it legitimately was not yet a big deal. In 2010, a VA lab report miscounted his CLL boogers in the blood. So this is where the argument gets critical. VA now knows (constructive possession) that he’s got a presumptive bug from §3.309(e), the list of Agent Orange bugs but they’d claim the lab worker is at fault. Six of one and half a dozen of another. Mr. Lab Worker works for VA. VA workers shit ice creme and walk on water. Unless you can rebut that (Rizzo v. Shinseki), you’re stuck with it.  But wait. It gets worse.

I’ll just peel this out of the appellant’s brief. It’s a daisy.

“In 2012, the same PCM noted Mr. Ley’s history of skin cancer and
listed it as an active problem. Noting his bloodwork and skin cancer issues and aware of his Agent Orange exposure in Vietnam, Mr. Ley’s PCM referred him to a cancer specialist in hematology. Mr. Ley believed this doctor would tell him if he had any issues that might qualify for VA benefits. Instead, this VA hematologist deliberately chose not to tell Mr. Ley that he was experiencing the early stages of leukemia. Referencing the 2010 labs, the doctor incorrectly wrote Mr. Ley did not meet the cutoff criteria for CLL and noted, “and even with the label as such, this would/will be stage ZERO and warrant only an annual cbcd.” The VA doctor later wrote in his notes, “…I did not use the term leukemia; told him that maybe in 20 y[ea]rs he would need further investigation…”  The doctor categorized Mr. Ley’s disease as “monoclonal B-cell lymphocytosis.” (emphasis in original).

This would make George Santayana proud and it didn’t even take fifty years to recur. VA’s Cliff Notes ® Book of M 21 tricks is pretty skinny. If this was the NFL, they’d say the team lacked any depth in their backfield or some such horseshit. VA doesn’t teach innovation. They teach blind obedience. Color outside the lines and you’re outside on the unemployment line. But if the hierarchy fudges a bit or engages in Mission Creep, the lowerarchy knows which side of the bread is buttered on and react appropriately.

Anyway, Mr. Ley moved to Tennessee because he lost his job. He couldn’t shake the fatigue and malaise. It was cheaper to live there and when he sashayed over to the local VAMC, they noticed the CLL and said ‘Richard, you are in a world of shit. You gots the CLL.” Four days later he filed for it and of course he won. But he got screwed out of six years of 100% and that’s some serious folding money. Why, you could afford a triplewide mortgage for that many Benjamins every month. And probably a Dodge Powerwagon for you and one of them gassaver Kias for the missus. Just funnin’ ya. I meant a Toyota Corolla.

Now, from the legal standpoint, the Richmeister doesn’t have a leg to stand on. You can’t sue the government. That’s been argued more times than the white “stain” on Monica’s Blue Dress. In essence, what the VA oncologist did was estoppel. He withheld information that he should have shared. Fortunately, Mr. Ley didn’t die from the act. But he got the poopy end of the punji stick- the end with all the shit on it. Doesn’t that mean anything?

Estoppel is the concept that a person of authority (think VA rater or VA doctor) gives you bogus info that causes you to act- or in this case, not to act- and it causes you to lose a lot of money or your health or you die because of what they told you.

Back to Mr. Ley. Because estoppel cannot lie against the government,  2010 for a 100% rating (or any rating) for the CLL is not available. The reason being was that Mr. Ley didn’t file for it in 2010. But how could he? In this business, I can’t start throwing claim spaghetti at the wall to see what sticks. DAV or VFW VSOs do it all the time but real, accredited representatives are forbidden to-just like you Vets. See that little blurb at the bottom of all the VA forms? “I swear that the above is true and correct to the best of my knowledge and belief.” There ain’t much wiggle room in that statement. It’s  like putting your  hand on a Bible and saying the “I do” part. Say…Come to think of it, that’s a bit like getting married. You say the same thing….

So, Mr. Ley’s attorneys went to Court to see if they could poke some holes in the idea that when the government screws you like this, there must be some way to make it right. As much as I believe Mr. Ley bought the Brooklyn Bridge, I can’t see how he can get those 6 years of back pay. We shall see.

P.S. I’ll add here that it came to mind that some of us, or should I say the few of us left from the Vietnam Conflict (as the VFW phrased it for decades) had jobs that required sheep dipping or serving in locales that had little or no designations other than Lima or Tango Sites. Their travails to obtain service connection are legend as their records were classified for 50 to 70 years due to Form 10 NDAs (Nondisclosure agreements).

P.P.S. https://federalnewsnetwork.com/it-modernization/2024/09/vas-new-ehr-saw-826-major-incidents-since-its-launch/

P.P.P.S. https://www.fox5vegas.com/2024/09/19/las-vegas-va-medical-facility-holds-patient-against-will-says-oig/

We can’t make this shit up here.