Great song by the Moody Blues. As I mentioned in an earlier blog here, a PIC (pilot in charge) I often flew with was fond of the group and that particular song. He flew into a mountain one morning up north and we had to go pick up the pieces. Flying takes balls, unflinching confidence and incredible luck. I reckon he forgot to pack one of them that day. But let’s talk about my boy Orville. He did survive the Southeast Asia Olympic games- sort of. Grab a brewski or a g&t and some chips and listen to this incredible luck… or should I say, perseverance. He suffers greatly from PTSD and one thing all who do suffer is a desire to “get it right”. Some take it to the level of obsessive compulsive disorder; some not. Orville’s obsession was driven by medical necessity-not so much Bent Brain Syndrome. Read on.
As usual, the Pig jams just when you need it.
Orville ain’t very tall by a long shot. In fact, by Marine Corps standards, he was hard-pressed to convince them he was gonna be up the job. Pun intended. Being’s as the Viet Nam “conflict”, as the VFW called it, was in full swing, acceptance for any branch of service was a foregone conclusion. If you could turn your head to the right and cough, and your balls didn’t jump, you were good to go for the next exciting adventure in you new life.
Orville aspired to be a Machine Gunner and pack a Pig. He simply wasn’t big enough to make it so he tried harder, volunteered for the dirty jobs and tried to become the nastiest Marine 0311 Rifleman ever manufactured at Parris Island. In the Marines (not so much the Army), Infantrymen are taught how to march to the job site, affix a bayonet to their M 14s and run around shooting and stabbing shit. Especially any shit that stabs or shoots back. They’re like Neanderthals. They’ll continue doing that until they get finished shooting and stabbing everyone or somebody tells them to cease and desist. I suspect Orville suffered short people syndrome so this was an opportunity to excel. Oo-rah.
Army (Air Cav) guys fly into battle on their rotary wing stallions. They’ll wander around shooting the shit, smoking Marb Reds and making a racket until the shit hits. When they lose their point man, they fall back while calling in arty or an air strike. After the napalm ceases burning and the last 45 minute delayed-fuse CBU has gone off, they advance and see whazzup. Lather, rinse and repeat. Welcome to Viet Nam.
About three quarters through his first tour in country, he best friend caught a sniper round through the noggin right beside him. Killed that dude deader than shit. Understandably, that pissed Orville off no end. Up to then, he’d been average gung ho. Now, he began that reckless streak we have come to associate with severe PTSD. Orville began volunteering for long range patrols and ambush missions west of Khe Sanh -most in the general vicinity of the boundary with Laos. The Nam Sam River is the line so it isn’t like you could get confused as to your location. Orville said they saw a lot of rivers and streams and they all looked alike. He said if you go deer hunting, logic says you have to hunt where the deer are. In Viet Nam, there were no border entry stations or signs saying “Welcome to Laos. Please check in with the Immigration Office.” Rules of Engagement were whatever you said they were.
I suppose this will offend someone but it’s my “lived experience” as they say in California.
Also about that time, Orville signed up for a second tour, made E 5 Sergeant and took to this ambush business like a Labradog to water. Not so strangely, Orville’s platoon began to have an incredibly poor track record on capturing any prisoners. Nobody found that strange. South Korean (ROK) Army “Tiger” Units and SOG never seemed to capture anyone either. War is Hell. Combat is something entirely different. Shit happens. At some point during his second tour, Orville began to go”bugf**ky”. Somebody had to start supervising him and explain that when the enemy puts their hands up, Geneva Conventions Rules dictate you’re supposed to quit shooting and stabbing them, get some baling wire off a mortar box to tie their wrists and take them back to the LZ for interrogation.
Orville didn’t much cotton to that procedure and wouldn’t have it. Sadly, like all too many of us back then, he had a blood score to settle and continued with his “the only good gook is a dead gook” philosophy. His superiors finally couldn’t ignore this any longer and they decided maybe he needed a break. Mind you, he hadn’t done anything wrong. Hell, they’d already given him a CAR for his numerous actions in combat. Besides, My Lai and Lieutenant William Calley were in the news and the USMC didn’t need that kind of black eye. They were still smarting from that Khe Sanh shellacking they got in Tet ’68. Sayonara Orville.
Orville was sent back to Fort Lewis’ Madigan Hospital in Tacoma WA for a quick overdue R&R and why his check engine light was on. The shrinks didn’t like what they saw. While they were all jaw jacking about how big a Thorazine suppository to shove up his butt, he requisitioned a shiny new Plymouth Duster in the hospital parking lot and set out for Virginia to go see his girlfriend. They caught up with him a few days later in Indiana. The Marine Corps sent an escort to collect him and back to Seattle he went.
As you can expect, ol’ Orville got the standard 258 Big Chicken Dinner for his mistake. Well, that and a demotion to E 1 to go with it, a stint in the Brig waiting for his Courts Martial and the snail’s pace of outprocessing. They sure didn’t want to be rude and not give him that one last physical so they could say he was alert and oriented in all three planes, didn’t have any sexually transmitted diseases and was mentally competent for legal purposes. Bye bye Orville.
Orville began taking extended, all-expenses-paid vacations to the Seattle VA hospital afterwards. You know. The sixth floor suites-the one you need a key in the elevator to get to. VA began stuffing Orville with all manner of medications when he came to visit… and in huge doses. It didn’t have much effect. At one point they were hitting him three times a day with enough Thorazine to take out an adult rhinoceros. From there they began experimenting. At one point, they had him on 15 different mood remodeling drugs. By then, his psychologists were convinced that Orville was suffering a wee bit more than a personality disorder. But nobody at the hospital filed him for it.
By now (1981), they’d come out with the DSM 1 and invented Bent Brain Syndrome (PTSD). The Marine Corps weenies finally agreed Orville wasn’t in his right mind when he took off for Virginia. He got his DD 214 changed to honorable and received his 0% for his shiny new bent brain. VA fought long and hard to keep that rating low. Orville fought right back like a banty rooster. Finally, in 1988 or thereabouts, they conceded he wasn’t going to run for President and gave him the 100%. In the interim a weird thing began to happen…seizures. Lots of them. Orville ain’t no doctor but he married a LPN. She read the PDR and noted that certain combinations of mood-altering drugs were contraindicated for use with each other because they caused…wait for it… seizures. Duh.
Naturally, Orville quit taking all of them and VA said ” Hold the phone, Ramone. If you’re not going to take our meds, then you must be healed. Praise the Lord for this miracle and here’s your new 70% rating.” Orville filed his objection to this and threw in a claim for seizures secondary to all them VA drugs for the bent brain at his DRO hearing for the reduction. That went over like screen doors in submarines and they pretty much ignored it all.
Things got all monkeyed up together after that and he ended up testifying at the November 1991 BVA hearing about the seizures. The Board gave him back the 100% for the mental but referred the seizure gig back to Seattle because the chuckleheads had never cranked out a Statement of the Case after he complained. His Viet Nam Vets of America VSO had moved on and forgotten to leave a forwarding address. Orville never did get his SOC and eventually realized he needed to get a VA 9 in muy pronto. By then it was too late to file and the nascent appeal was final. Sort of. Orville didn’t give up completely. He tried again in ’96 and ’98 to reopen it but didn’t have any ammo.
Then he met me in 2010. I showed him how to win or die and he finally scored the big 100 for seizures and SMC S in ’14. As many of my clients know, about this time, I usually pop the question-Hey bubba. In for a penny. In for a pound. Wanna keep going for 1990? Orville was all ears about that and the fight began. I handed him over to an attorney friend and explained my theory of how to win the earlier effective date. I hung my whole argument on the fact that the BVA Board had accepted testimony and thus had taken control of it for adjudicative purposes. In Legacy, if you testified at the Board on disability X before the local RO had issued your SOC and VA 8, the Board owned it. All they could do is remand it down to be “cured” of the defect, given a new decision , and if denied, return it to the Board to be given the “one decision on appeal” promised in §7104(a). I still think my argument was valid but it pancaked at the Board as you will see.
My buddy attorney retired in 2019 and handed Orville back to me before we had reached the new AMA process. I plugged him in and began deeper research as I waited for the Board Hearing date to arrive. Sure enough, the light bulb finally went off. §3.156(b) evidence is anything that arrives in the file during the course of the claim. If new shit is introduced, a new decision has to be promulgated. When Orville’s seizure claim came back from DC in 1991, the jackwads forgot to include the Hearing testimony as part of the new evidence. Bingo. A pending claim…but not without a fight to the CAVC thirty five years later.
I took that to the Board and they wouldn’t hear of it. In fact, they never even talked about it even though I poured my heart out on the §3.156(b) evidence theory. We lost and I immediately contacted my secret weapon (Chisholm, Chisholm and Kilpatrick) and Amy Odom agreed to take it up to the CAVC. VA chieu hoi’d at the Rule 33 conference and agreed to a remand to address this little error in not looking at the hearing evidence. Bingo.
The Board granted using my exact §3.156(b) logic as originally presented. If you’re gonna hang someone, there are three essential rules for success: a) Make sure it’s a strong rope; b) The horse doesn’t have a lame leg; and c) The tree branch is high enough and ain’t rotten. VA is notorious for forgetting one of these rules and now Orville wins what’s behind door Number 3 which just happens to be Doug Collins’ Cookie Jar. He’s gonna get a check for SMC S from June 18, 1990 up to when his 2010 win for SMC S kicked in on June 16, 2010. Not bad for a hare-lipped VA Agent, huh?
Just think of that. 34 years, eleven months and 356 days to win a claim. What’s wrong with this picture? Thank you Orville for having confidence in me to unravel this sucker and win it for you. I also want to thank Amy for her expertise at the Court. She’s a real firecracker of a legal beagle. If I worked for OGC, I’d really hate to argue against her.
I don’t usually do this but many have asked just what Orville’s entitled to and what 20% looks like. Since VA characterizes us all as bloodsucking VA ambulance chasers, I want all of you to take a gander at what 15 years of research and work pays. The fact of the matter is that I would have done it for free and was prepared to before I became accredited. I’m unsure what that works out to but I’m guessing you can make more per hour at McFluggles Burger joint over 15 years.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 
Good point.
Good point, that sometimes, we’re chasing after peanuts.
Fascinating tale. Thanks. Took me only 7 or 8 years to get to 100. Thirteen to get the Sleep Apnea, thanks to Bob Walsh. He taught me a lot and when the subject comes up, I always advise patience and persistence!
Well earned, friend. A trip up to the Court can do wonders. Good brief in 23, too. Nice picture. War is hell.