MILESTONES– CHUCK ENGLE

Posted on February 26, 2024 by asknod

Every year, about this time, I think back on the enigma of 1st Lieutenant Charles E. Engle (promoted posthumously to Captain). I’ve watched over the last fifteen years as the Bigwigs come back and review his file and award additional medals. Good deal. I expect they’re eventually going to hang a CMOH around his neck. Chuck qualified as a “Wild and crazy guy” up in the sky when he was still cutting air. 

Truth be told, I hadn’t thought about Chuck for 37 years until the summer of 2008 when I was fighting the last part of getting service connected for hepatitis C. Chuck was aware of a GSW I incurred over the fence up in the country that rhymed with Mouse in September ’70 so I was hoping to get a buddy letter from him to confirm it. Jez, you’d think the scar would be proof enough. But nooooooooo. The VA ratings crew asked me if anyone could vouch for me on it. Chuck immediately popped up in my mind-but how to find him?

Still missing the RVN Cross of Gallantry with Palm

I wasn’t too savvy on computers yet so I asked Cupcake to help me. She found him in about 3 minutes. Unfortunately, he was was on the Wall and no longer among us. The last time I saw him was December ’70 outside the Class VI store which just happened to be next to the O Club there at Udorn. I’d flown in for a cigarettes and booze run because we didn’t have those amenities up where we were at East Bumfork.  He was on crutches and had flown down on the Klong flight for them to debride and sew up his foot over at the 432nd Hospital. He’d caught a round through the bottom of the A/C recently and they’d taken him off Flight status until he could push the right rudder pedal without his crutch.

We shook hands,  said hi and bye and I headed back out the next day back to O/L Charlie (Tango Eleven) (up in the northwesterly part of Thailand). The fact that I never ran into him again wasn’t weird. Most folks who were sane did a one-year tour and bugged out back to the World. Six months was the max up at Alternate. I never expected to need to speak to him again. Sadly, he’d be dead in less than two months.

The information is sketchy but I believe he was ferrying an O 1 back to Udorn on February 22 from Alternate for maintenance and augered in somewhere in between. The AvGas we were using was always contaminated by the red clay silica which got stirred up on the flight line and revetments every time a propeller got near it. To counteract it, we had to operate our engines with a richer fuel mixture which made them run hot. It eventually clogged up the carburetor bowls requiring a cleanout and rebuild. We were lucky if we got more than 350 hours of run time before maintenance.

I did get a chance to fly back to Indiana for other business and made a side trip up to Winchester (where he’s buried) in 2015. It’s too bad he didn’t make it back. So, for whatever reason, his date of passing always comes up subconsciously on my radar every year. I’ll look down at the date when I’m doing something on the computer and notice it’s February 22…all over again. Fifty two years this time.

It’s said in Indian Country you will live forever as long as your name continues to be spoken. I’d hope that’s true. Chuck will continue to live in my mind in that sense until I bite the dust, too. I’m sure there are others who will also remember him as fondly as I do. He was definitely unforgettable as far as human beings go. What we’d call a ‘keeper’.

Posted in All about Veterans, From the footlocker, Milestones, The Vietnam Wall, Vietnam War history | Tagged , , , , , , , , , , , , | 4 Comments

CUE-ROBERTO’S LAST STAND–SYMPATHETICALLY READING YOUR PLEA

Posted on February 18, 2024 by asknod

Regardless of anything you hear about Motions to Revise an old decision, also known as filing a CUE, remember one salient principle. While VA does not, and will not, entertain the benefit of the doubt (BOTD), they are required under law to engage in a sympathetic reading of your claim if you are Pro Se… or represented by a VSO or Agent like myself. Finally. A Catch 22 in a Vet’s favor for once.

One of the major benefits of being an Agent is I have no Juris Doctorate (JD) after my name. I don’t have an Esq(uire) after my name.  I also don’t have one of those ugly student loan debts that can never be repaid and retired because the interest rate metastasizes faster than cancer. I’ve never been to law school and have no college degrees. While I am admitted to practice at the Court of Appeals for Veterans Claims (CAVC) and have all the authority of an attorney, I still have to have a real attorney who is responsible for my shenanigans if I step on my necktie.

Pickles doing her RCA Victor Dog imitation

Because my practice is focused solely on those of you who are dying, or the spouses of the recently departed, my time available to practice at the Court has gradually become severely limited. Fortunately, I belong to an outfit that encompasses over a thousand of the very best attorneys in the land. Many actually choose to practice there (CAVC) and some are frequently successful. On the rare occasions when I lose a claim at the Board of Appeals (BVA), I resort to calling one of them and asking them to take the appeal on for me. Since I don’t take on unicorn or alien abduction claims, I usually am assured a taker.

There are approximately three million or more of you who are injured or disabled who seek representation before VA. Many use VSOs which are generally effective at the beginning levels of fighting VA. If you lose or end up with a Zeros for Heroes rating of 0%, it’s time to seek out professional help with legal training to win. With that said, it always amazes me how many of you choose to fight your own battle by learning this crazy system as I did back in 2008.

The term pro se means you are representing yourself but it encompasses far more legally. If you are represented by a National Service Officer (NSO), in the eyes of the law you are still pro se. Ditto if you use a VA Agent like me. The major difference is a NSO is not required to learn VA law. He only needs to know which VA form to submit and give you a very generalized idea of what you need to win. Some are extremely intelligent and go the extra mile to learn what it takes to win legally. Some do not. VA Agents are required to pass a very difficult examination to ensure they can provide you with legal services commensurate with those of a skilled VA attorney. But go figure. A VA attorney is not required to take the exam.

So how does this play out in the VA litigation arena? When I appeal a claim up to the BVA, I need extensive knowledge of what the Court has already declared as binding law. That requires far more than basic knowledge of which form to submit or which benefit to seek. My legal briefs are not pleas begging a Veterans Law Judge (VLJ) for the BOTD. I have to present an argument supported by all those Veterans who went before you and already walked point on the injury/disability. CUE is a bitch to win at any level- and way harder if you’re talking fifty years ago.

ROBERTO’S GREAT BIG CUE 

But… as a VA Agent with no JD, in order to win I have to talk like an attorney at hearings and write briefs that supports my client’s entitlement to the benefit. With all that said, let’s discuss this CUE. CUE is shorthand for Clear and Unmistakable Error. I’ve written many articles about CUE on my site. What I have never done is discuss the legal reason for a sympathetic reading of a CUE claim. Frankly, I figured it was out of bounds like BOTD. Don’t confuse it with BOTD. I think I stated Roberto’s CUE quite clearly.

Redacted CUE filed 1-15-2021

Buried in the sympathetic reading laws are their foundations below. Veterans are not trained in the art of litigation war. Few are attorneys themselves. Even worse, if they are, they are skilled in regular law- tax law, divorce, real estate, murder. After JD school, they still have to learn the intricacies of VA law. As a comparison, think of VA law as John Philips Souza military music compared to the civilian rock and roll of the Rolling Stones. Civil law doesn’t have can openers like CUE or the BOTD. How about the Presumption of Soundness at Entry to service?

Try this on for size:

VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

Here’s one of my favorite phrases in my briefs:

Because appellant is proceeding pro se with an Agent, he is entitled to both a sympathetic reading of his informal brief and a liberal construction of his arguments. See Calma v. Brown, 9 Vet.App. 11,15 (1996); De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). Although aides from veterans’ service organizations provide invaluable assistance to claimants seeking to find their way through the labyrinthine corridors of the veterans’ adjudicatory system, they are “not generally trained or licensed in the practice of law.” Cook v. Brown, 68 F.3d 447, 451 (Fed.Cir.1995).

Cool beans, huh? The reason for this article is based on the above. My oldest client, in terms of how long I have been representing Vets, is Roberto. He, like me, came down with Hepatitis C and it dang near killed him. By the time they came out with the cure, it was too late. Roberto now has liver cancer and his days are numbered. After I won it, I promised him I would fight this to the bitter end and beyond for his wife-if he augers in before I win. And here we are nine years later. He’s hanging on by a thread with some of those “just a few more years” drugs like Nivolumab™. I hear they make you horribly nauseous so Roberto’s quite the Eleven Bravo Twenty on this for continuing to fog a mirror. He inspires me.

I made several passes (3) with different legal theories of CUE all the way to the Board for Roberto. Each was shot down. But by acting and sounding like an attorney, it caused all those VLJs to treat me like one. My bad. The legal standard of review was ignored and the denials were vicious. Even worse, I didn’t wave the ‘Comer v. Peake’ flag and demand that we get a sympathetic reading.

So, wanting the best for Roberto, off we went to the Court. Here’s Ken’s masterful offense below-some of which I’d never even considered. Check out the defective notice argument. The reason they wouldn’t “see” my argument was a gross failure to treat me (and Roberto) as a pair of village idiots who shouldn’t be allowed to play with matches.

Roberto’s Last Stand

Granted, Denis the Menace and his OGC cronies did a masterful job of  a smoke screen before the Court, but they didn’t even address the prong of CUE I was arguing-i.e., the statutory and regulatory provisions extant at the time were incorrectly applied. Roberto went in to the hospital on September 15, 1970-sixty two days after he separated on July 15, 1970. VA got his claim on September 18, at the earliest. As probably anyone in VA law knows, the date of claim if you come down with something in the first year after you part company and file is day following separation- or July 16, 1970- assuming, arguendo, it isn’t the clap. It’s also enshrined on many a VSO’s wall as the Golden One-Year Rule. His request for medical assistance generated a claims file number and an intent-to-file (ITF) claim. He completed his ITF claim exactly 365 days to the day later-well within the suspense date of September 26 (date of discharge from the San Juan VAMC hospital)by timely filing his 526. This isn’t rocket science unless you work at the BVA.

Roberto’s Last Stand II-the reply brief

As luck would have it, we drew Judge Greenberg. For any of you who do this for a living know, we got the cat’s pajamas. Judge Greenberg ‘s feelings about Veterans are stronger than most folks’ love for their dogs. Here’s his take on this.

Judge Greenberg’s Edict

Roberto’s case just popped back up in Caseflow Friday morning so it’s time to fetch a shovel and begin sharpening my punji sticks again. This time, the village idiots at the Board will have no excuse for their ignorance if they can’t construe what it is I’m alleging. Actually, any argument from me would only echo what Ken and Judge Greenberg already said.

Here, justice was almost thwarted by the Secretary’s attempts to purposefully misconstrue Roberto’s claim any ol’ whichway for service connection in 1970. I get it. That’s a shit ton of shekels. In fact, I’m guessing it probably wouldn’t even fit in ol’ Monty’s famous Cookie Jar behind Door Number 3. That was reason enough to try to pull this off. Which brings back one of my favorite cites to law…

Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome. See Foman v. Davis, 371 U.S. 178, 181-82 (1962).

Gotta love them cites. Let the Courts do your talkin’ for you.

Posted in All about Veterans, BvA and VARO CUE DECISIONS, BvA Decisions, CUE, Humor, Informal Claims, Tips and Tricks, VA Agents, VA suspense dates, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

GETTING BACK TO BASICS IN THE NEW AMA SYSTEM

Posted on February 3, 2024 by asknod

Punxsutawney Phil must have seen something I’m missing if he didn’t see his shadow. We’re expecting another one of these things called an “atmospheric river” this coming week. Who’s their writer for all this Snowmaggedon-type tripe? I actually liked the good old days when you took what you got in the weather department. If it dumped 2 feet of snow the night before, you woke up and dealt with it. The supermarket store shelves didn’t get ransacked like a San Francisco 7-11. Folks didn’t run down to the liquor store and clean out the entire supply of Tanqueray, limes and tonic water before I arrived. Hell, no. We were like Boy Scouts are nowadays. Pretty much prepared for any eventuality as long as there’s a nearby source to charge their phones. Our neighbors even put in a nuclear bomb shelter back then (1959). 

Fortunately for us all now, we can see what’s coming way ahead of time and those hordes of panicky doomsday hoarders have ample time to buy up a lifetime supply of bottled water. But enough about the Philster and his annual weather prognostication gig. Let’s talk about the fustercluck the VA has become in the last couple four years. I don’t frequently criticize the VA. But when I do, I drink single malt scotch as I write the email. I have to work with them and most of them know who I am. In fact, many read the blog. Most, but not all, are very pleasant to work with and bend over backwards to help me help my Vets. The operable word here is ‘most’.

Then there are the others who inhabit what they call the VSC or Veterans Service Center. VSC is synonymous with the VBA or Veterans Benefits Administration. The VSC is the nerve center of the ratings employees-or, in the governmental vernacular- GS 9 Examiner, Veterans Rating. This includes the DROCs (Decision Review Operations Centers) in St. Pete’s and Seattle. There’s a third one in DC but they fall under the direct purview of the OAR (Office of Administrative Review-formerly the AMC, ARC or the Black Hole)). For the most part, VBAWash397 does the repair work after the BVA judge makes a decision in your favor. If it’s a run of the mill denial, the local yokels across our fruited  Regional Office (RO) plains do the copy-and-paste. When all is done, they send it to Janesville Wisconsin for printing and mailing. That, fer sure, has it’s own acronym as well-the CMP or Central Mail Processing.

Assuming you’re not cross-eyed from the above, imagine a process like a Detroit assembly line for cars. Each person puts something onto the car as it travels down the line. Tires are affixed to the chassis and all the wiring harnesses and brakes/brake lines are connected. Next the body is attached and so on. A half a mile or so later on, the completed product rolls off the line and is ready for the road. Now imagine a VA assembly line five miles long and growing longer by the month. Imagine it moving along briskly at three feet a week. VSC’s motto? So much coffee. So little time.

Back in the olden days before they “invented” the AMA system, one (1, uno, nung) rater, usually a Veteran himself, would check out your file and take it back to his desk for a month or so. He ate, slept, bathed and pottied with your claim until it was complete. To be sure, when completed, he would take it to his supervisor for a review to ensure quality control. If everything passed muster, the secretary pushed print, licked the stamp and envelope and threw it into the outgoing mail. A week or so later, you’d read about your Zeros for Heroes award and how you were now entitled to free hearing aids for life. The blown out knees from jumping out of perfectly airworthy $1.19s and 123s would take another decade or two to win and you would then start getting a compensation check.

Along about 2012, it was decided that working with paper was right out and VA must enter the 21st century of computers. The idea was to streamline the process and make it so easy a caveman could do it. In fact, it’s rumored that’s where Geico™ came up with the idea for their killer commercial. A Neanderthal VA employee quit and went to work for them.  Now, with little effort,  VA’s finest could assemble all the Vet’s parameters, feed it into their newly computerized M 21 Magic Eight Ball and obtain a rating in minutes instead of years. What could possibly go wrong?

After a few years, the system’s bugs were cured and we had a quasi-workable Legacy procedure with an accuracy rate of about 25% on a good day. No longer were records lost or  misplaced. Everything was available at a moment’s notice and efficiency was the operable word. About then, the bean counters entered (again) and began tampering with it. Who, pray tell, was in charge of Quality Control? No one? Why, then, we need a QC officer- or what the hell. How about a complete office full of QC Officer experts?

At some point, back in the darker ages, the Poohbahs had already figured some employees were slackers and might cheat at this so everything required a signature or two for dispersal of funds. Over time, they even decided if it went over $125 K, it would require three signatures. Since that was rarer than unicorn poop, it didn’t happen frequently. As VA became more efficient with their computers, they discovered a bunch of errors they had committed over the previous decades. Fortunately, most of the Veterans had died so they were off the hook for those. But some were still alive so they began to scheme on how to give these really big awards a haircut to protect their integrity and their Christmas bonus checks. Face it. It’s a dang hard sell to ask for proficiency awards when your error rate is running 75%.

The employees became lazy at some point and discovered the new shredder rooms didn’t have cameras or anything to dissuade them from getting rid of their file backlogs. Thousands of Vets’ claims turned into hamster bedding until they got smart and put a lock on the door like fast food restrooms. You had to go get the key and sign the log book. Needless to say, the error rate once again began to climb. Naturally, they had to hire someone to sign off on what you were hoping to shred, too. More signatures. More employees. VA began to metastasize like a non-small cell carcinoma and it’s never stopped since.

 

The good news-and there always is some at VA- was that they effectively eliminated the danger of anyone getting writer’s cramp or carpal tunnel syndrome from having to spend all day applying their John Hancock on all the paperwork. With the advent of the computers, it required a simple keystroke. Some bright soul even suggested VA could save even more money by getting rid of pencils and pens soon. More signatures were needed for all these changes, but now, with their new computers, this was a breeze. They even put in their own IT department to fix all their misbehaving computers.

 

And then along came the AMA. On its heels almost immediately came the Procopio decision and with it the Agent Orange presumption for all those Squids who were working on their tans out in the South China Sea. And before you could say Jack Robinson, the PACT Act was passed. All these new entitlements required even more QC and signatures. By now, with inflation and COLA increases, a $125K retro payment for a screwup was a low ball award. Think $250 K for a CUE boner back to 1950. Remember Leroy MacKlem back in 2008? Here’s the story I wrote up about him. Somehow he found out about my article and even emailed me to thank me for telling other Veterans about his ‘haircut’. I called him up and we had a good laugh. He  passed away in 2014 but his story will live on. At least he got to buy his dream Cadillac-one of those old 1970 Fleetwoods that’s longer than my garage is deep.

 

So, here Veterans still sit ten years later with an intractable backlog that defies the imagination. VA continues to insist this is still a 125-day process and very few, if any, take much longer than six months at the outside. Of course they’ve been repeating that lie that since the inception of computers back in 2014. I expect it’s true if you measuring your claim duration in days on Venus. But what the hey? If you live on Mercury, it only takes five days.

VA swore every which way to Sunday that AMA was guaranteed to erase the backlog at the Board of Veterans Appeals (BVA). But again, some unscrupulous, spiteful employees, bereft of their precious shredder rooms, were now denying virtually everything that came across their desks. So naturally most of  their work moved up the chain to the BVA on appeal. The poor overworked VA staff attorneys were rapidly overwhelmed as the backlog began to pile up there. Feeling picked on, the staff attorneys, with VLJs’ blessings, began remanding (regurgitating?) all the crap right back down to the VSCs and stamping “You forgot to _____________.” on them. All this did was redistribute the backlog out more evenly like spreading frosting on a cake. And give birth to more signatures. And yet even more VA employees.

And so here we are. All these perennial promises ring hollow for Veterans who are homeless, poor, and severely disabled. Is it fair to build two more miles of tunnel onto a very long claims tunnel? Is it fair to add so many workers into the chain just to ensure quality control when you’re sporting a 75% error rate with a process that requires about 500 signatures already? I look at my 2011 claim for my greenhouse and figure they have more than $2 million invested in saying “What part of ‘no’ don’t you understand, sonny?”

I remember those olden days fondly. At least if you got a denial at your local Fort Fumble, you could get it up to the BVA, have a hearing (face to face) with three VLJs and be done in 18 months from start to finish. With only one rater at the local level, his comprehension of your predicament was total. You could actually go down to the RO and ask to see him to argue about why no one went and got your records-or if they did, why didn’t anyone read them?

Trying to reach anyone at the RO these days is dicey. With all the modern communications gear, you’d think this would really be a snap. I email VSC folks and never hear back.  The only way I get any traction is when I email the VA Secretary himself. I reckon they must be too busy Quality Controlling, keystroking their signatures and sipping Starbucks™. And to think computers were supposed to fix all this. Shoot. I’m still waiting for the Drive Thru windows they promised us to be installed. You know the one where they say “Please pull forward to the next window. Your claim is being prepared and checked for accuracy. It should be ready in a few minutes, sir.”

 

I think what really gets my goat is I won’t be alive in 2174 when the VA Secretary finally announces on X (formerly known as Prince) that the backlog has almost been eliminated and the average processing time has shrunken remarkably to a mere 125 days… or less.

And that’s all I have to say about that.

Posted in All about Veterans, Appeals Modernization Act, Humor, SHREDDERGATE, VA Agents, vA news | Tagged , , , , , , , , , , | 4 Comments

EXPOSED VET RADIO SHOW–THURSDAY MARCH 14 @ 1900 HOURS (E)

Posted on January 23, 2024 by asknod

Fresh from the East Coast and having recuperated from the time change, I’ve been invited to discuss the legal conferences I attended March 7 through 9. Quite a bit to be said and I plan to do so. Join us tomorrow evening for some Veterans talk about the state of process.

 

 

 

 

The call in number, assuming the John Boy hasn’t changed it, is

(515) 605-9764

If you wish to link in via the computer, here’s the device with which to do so.

https://www.blogtalkradio.com/jbasser/12322264/connect/2591d59d066433fb20bb08c33ebd13ef4a3fa665

Looking forward to a great show with lots of listeners.

r

a

Posted in All about Veterans, Appeals Modernization Act, BvA Decisions, Humor, PCAFC, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , | 1 Comment

THE 2ND AMENDMENT AND VETERANS BEING DECLARED INCOMPETENT

Posted on January 7, 2024 by asknod

This is an interesting subject I get into with my “lunch group” at Applebee’s™ every so often. We meet at the Gig Harbor restaurant infrequently for lunch and enjoy one another’s camaraderie. We’re all pretty openminded and even willing to let Marines join us.  The group continues to grow and it’s a wonderful opportunity to discuss our lives and all things VA. If you’re  a local, let me know and I’ll put you on the call list to join us. Vietnam Era Vets only.

So, let’s dive into this. The subject was published recently in the NRA American Rifleman magazine (above) on how VA treats us when they declare us incompetent to handle our a finances. The article is by Randy Kozuch and does a great job describing the illegality and the proposed revision to rid us of this burden. As an aside, I’m proud to say I’m a Patron member of the NRA. My father bought me my membership shortly after I was born. I did the same for my son. And, politics aside, here’s the Senator driving this bill who I wish I had representing me.

To be honest, Cupcake would tell you I’m as certifiable as the Mad Hatter regarding PTSD. I understand my shortcomings in that area and try to behave myself in public. In fact, I’ve been exceptionally well-behaved and haven’t shot anyone in over two years. That business with the ding-a-ling who stole my Expedition was a fluke. It was determined to be self defense so it really doesn’t count.

In my book, anyone who’d steal my car from me and then try to run over me with it must be certifiably insane and needs waaaay more than a fiduciary. That’s why I took mercy on him and only trimmed his right ear a mite and temporarily “disabled” his right arm so he couldn’t steer. Truth be told, I didn’t miss. A blind man couldn’t at that distance.  I just didn’t have the heart to kill someone that mentally deranged. Too bad about the jail shut down for Covid. They let him go.

I know many of my clients resent getting tarred and feathered as bugf**ky and declared so unstable as to require them to relinquish their firearms. Many fight to defeat this overstepping of their rights and hire a psychologist to swear otherwise. I would too. Being criminally insane is a far cry from being unable to make wise decisions on how to spend one’s money or how to deal with car thieves. VA unfortunately makes all these folks sit on the Group F bench and demands they accept a fiduciary to administer their funds.

I don’t deny there are some whose TBI or PTSD render them in need of  one  and that may be okay for some whose wife/significant other can take over paying bills. But what of the single Vet? She or he is at the mercy of some gomer the VA assigns to them who collects about $100 a month for performing this function. Could be it’s far more than that as inflation these days drives everything up. One thing’s for sure is that we know it attracts an inordinate number of sleazy characters because you read about them regularly in the monthly VAOIG reports. They tend to help themselves to your dough and it takes forever for the VA cops to catch them at it.

Mr. Kozuch points to the fact that being declared incompetent to handle your VA funds is a far cry from being declared incompetent as you or I might understand it. In his own words, Mr. Kozuch said:

“It is not an “adjudication” in the sense of opposing sides going before a judge to argue about the person’s mental capacity based on evidence submitted by a court-appointed mental-health professional. Moreover, the determination is strictly limed to the beneficiary’s ability to manage VA benefits and applies only in the VA context.”

“Nevertheless, in every case, no matter what the reason is for the veteran receiving benefits or for having a fiduciary appointed, the VA automatically reports the veteran to NICS (National Instant Criminal Background Check System)as a “mental defective”. This means the veteran cannot lawfully purchase or receive a firearm. It also means the veteran could face felony prosecution simply for possessing firearms the veteran already owns.”

So you can see the problem facing Veterans. I’m not going into a long diatribe about who should, or should not be allowed to possess firearms. Cain knocked off Abel with nothing more than a rock. Knives are responsible for more deaths per capita than firearms. Sure, every once in a while we get some joker with a 214 who goes NASDAQ and decides to shoot up a church or supermarket. They’re the outliers that do not represent mainstream Veterans. To have a lesser standard of who’s demented and who’s not is grossly unfair.

But.. we don’t condemn a whole class of folks with a unique signature like religion or race to this indignity. Were I to file for PTSD as a byproduct of my adventures in Southeast Asia fifty years ago, the first thing I’d lose would be my VA accreditation RFN. Undoubtedly, if they rated me at 100%, I’d get the fiduciary treatment regardless of my mental deficiencies.

So how do they do this? Well, it all occurs on the VA Form 21-2680. When I file one of my Veterans for Special Monthly Compensation (SMC), the first thing I am required to supply is the document filled out by , at a minimum, a MD, a Doctor of Osteopathic medicine, a PA or a APRN. Yeppers, kids. Look on page two of the new four-page version under Section V: Certification and Signature.  Here’s a copy to verify this.

VAF 21-2680 no template OCR

Now think about this. Jimi Hendrix summed it up with his song about “Hey Joe where you going with that gun in your hand?” I think  we could all agree planning on shooting your old lady down for fooling around is a valid metric for saying Joe shouldn’t have access to guns-Veteran or not. But VA goes a shit ton further when they open this evaluation up to include folks with no PsyD. after their names. I could buy into a psychiatrist or psychologist being allowed to make this determination but what in Sam Hill would a doctor of osteopathic medicine bring to the conversation? Or, for that matter a Physician’s Assistant or an Advance Practice Registered Nurse?  If it takes three years on top of a college degree to do this, seems a PA would be mighty skinny on diagnosing brain box injuries. In fact, all would be ineligible in a civilian court of law.

Nevertheless, on page 3 of 4 on the 2680, in Block 30., the VA asks the clinician, whoever s/he may be or their qualifications,:

“In your judgement, does the patient have the mental capacity to manage their benefit payments or are they able to direct someone to do it?”

Talk about a power trip. VA invests a nurse with no clue of what’s in the DSM V the plenipotentiary powers to strip him of his 2nd Amendment rights without due process. That’s like giving your auto mechanic the right to perform brain surgery with no medical training. I’m guessing that’s against the law everywhere but California.

Fortunately, legislation is in the pipeline to correct this gross injustice to us Veterans. A House version is pending that would attach a revocation of this insanity to any funding bills-including VA’s annual appropriation. Ditto a version at the Senate that would revoke VA’s arbitrary authority to report the Vet to NICS based on a mentally defective moniker.

Think about the enormity of this crap. Due process means you get to argue this in a court of law as to whether you’re insane. A shrink would be the one to decide and then a Judge who finds in favor of his determination. To let anyone else into the discussion would fly in the face of logic. What’s next? We let state Attorneys General decide who we get to nominate as President in the absence of any conviction whatsoever (except for bad taste in prostitutes) for a crime?

The first time this happened to one of my clients was 2018. He’d come down with Parkinson’s and they granted 100% for the sum total of his deficits. So far so good. Then they diagnosed him with stage IV leukemia and gave him about 3 months to live. I filed John for a&a because he was in a world of shit medically (not mentally). Nurse Ratched checked off the Box 30 for incompetent.

Bingo. Take his guns pronto. They even call you and give you the Brady Briefing as they refer to it. Pardon, sir. Thank you for your service. You have now been warned that you can no longer possess guns or ammo and need to remove them from your home. Failure to do so will result in the revocation of your VA benefits. Please notify us at the VA Dial-a-Prayer number and let us know when you’ve complied. We’re assigning a fiduciary who will have to inspect your domicile and determine if you have complied. If you choose your wife to be the fiduciary, we’ll accept her signature to sign off on the gun gig.

I look forward to a prompt resolution to this insanity. It’s been going on for 25 years and has unfairly deprived untold tens of thousands of Veterans the ability to defend themselves in their own homes (or driveways). In this day and age of home invasions, I can’t even conceive of any government being granted that authority. Well, except for Governor Moonbeam down in California. If he had his druthers, he’d let you keep your guns but outlaw ammo so as to neuter you very, very subtly.

And that’s all I’m going to say about that.

Posted in Aid and Attendance, All about Veterans, Fiduciary, Legislation, PTSD, TBI, Tips and Tricks, VA Agents, vA news, VA TBI | Tagged , , , , , , , , , , , , , | 2 Comments

How a claim shark operating illegally caused a Veteran to miss out on almost a year and a half of retroactive benefits.

Posted on January 7, 2024 by robinhoodesqvetsatty

So on Facebook the other day in a Veterans claims related group that I’m in, a Veteran posted the following:

Veteran: Hello all! Called the VA to ask some questions today but wanted a second opinion from the group.

So I got denied for PTSD Sept 2022, fast forward to June 23 after getting in contact with a lawfirm I submitted a whole packet too the VA, After not hearing any feedback I called around October and was informed the packet was the wrong type? And it needed to be redone. Lawfirm sends new packet and I submit around first week of Nov. Have a CnP after Thanksgiving. Today when I called I was told that due to having my intent to file deadline being Sept 2023 I couldn’t have multiple intents to file and that if I was rewarded any backpay it would only backdate to Nov 23 and not July 23 or Sept 22 but one would think that making an attempt to file should be honored as an intent too file or am I wrong? Should the law firm be at fault for sending me the wrong forms in the first place? And yes I’m paying for there service. Quite handsomely I might add.

So lets analyze just what he said here. He got a denial in September 2022, that starts his one year clock for appealing the denial (via a supplemental claim, higher level review, or appeal to BVA). Then he says “AFTER getting in contact with a LAW FIRM” “I SUBMITTED A WHOLE PACKET”. And apparently the “wrong form” was recieved by VA, and his deadline to continue the appeal passed before the “LAWFIRM SENDS A NEW PACKET” which the Veteran says “I SUBMIT”. Assuming he gets granted though, his effective date will be when he resubmitted the forms, because he missed his one year window to continuously prosecute. (Claim was June 2022, denial September 2022, wrong formsubmitted June 2023, correct form submitted November 2023.

So at first, due to the nature of the work that I’m in, I just flat out assume that the VA is incompetent. I routinely get “wrong form” rejections on the Supp Claims and HLRs I file, and I have to cloud up and rain on the VA Regional Office Director to get it fixed.

Me:Sometimes the VA says the wrong form is used when it’s not. You might want to ask the law firm why Form X was used when Form Y was necessary, or if that’s even the case. If the law firm made a mistake, and it costs you retro for their mistake, ask them to reduce or waive their fees to make it up to you.

I’ve been doing this a long time, and despite being pretty good at it, I have screwed up before (can count one one hand with fingers left over) and it cost my client. I waived my fees on those cases once it was over. I hope your attorney will do the same if it really was their mistake and not the VA being wrong about their own procedures which happens ALL THE TIME.

And then I started thinking about, “hey, how did a an accredited Veterans Attorney make this type of mistake, if one was made? They would have been sure to submit the right documents, or respond to a wrong-form kickback letter, just like I do, right? Wait a sec… the law firm didn’t submit anything, the VETERAN did?!?! Whiskey Tango Foxtrot?!?!

Me: Wait… what do you mean “law firm sends a new packet and YOU submit”?!?!?! It’s your lawyers job to submit things for you! If they represented you then the June 2023 submission should have caused VA to send them a “wrong form” letter on your behalf, cluing them in about a problem!

Veteran: they said they was a silent partner

Me: Anonymous member They’re claim sharks then. I bet they aren’t even a law firm. Please tell us who they are.

Veteran: Vet Guardian

Me: One of the sharkiest of the sharks.

Veteran: so is my claim basically doomed or is there hope?

Me: well your effective date is probably screwed. you need to change any passwords for your e-benefits and other logins. Did you give any of that information to them? you also need to call the VA number and set a pin so that they will not give any information out over the phone to anybody who does not know that pin. that will stop them from knowing when you get your money, because they will start hounding you for it. with regard to your claims, that’s based on what the evidence shows… if you got the increase, great.

 this is an anonymous forum, would you mind if I take screenshots and use this in a presentation so that people can see what happens when they use these claim sharks?

Veteran: Yes absolutely you can use it. And thank you very much for the response. The Va asked me yesterday if I wanted to set up a pin and I declined. Guess I will be calling back Monday.

So there you go. These cats were (and no doubt still plan to) charge this guy five times his increase when it finally gets granted (which is more than the 20/30 percent of past due benefits because there ARE NO PAST DUE benefits for a new claim, only appeals! I”m accreddited and I’m not legally allowed to charge for a mere new claim or claim for increase. (Actually, yeah, if it’s a supp claim with new evidence but outside the appeal window I still technically can charge a fee because of MVA v. VA but there ain’t exactly a lot of retro in a four month long case and 20 percent of “not much” is “even less” which is WHY THESE JACKWAGONS CHARGE ILLEGAL EXHORBITANT FEES. I was watching one of these crooks testify before congress and the head honcho at Veterans Guardian said that “it would break our business model” (paraphrased) because they want to be able to charge for initial claims.

Video proof: https://www.youtube.com/live/zR_8byEaKUg?si=Yr7Z_4Ud1yonqUs_&t=7118

And they probably are not a law firm, because no rational attorney will risk their accreditation or law license this way. I doubt seriously whatever contract was signed here was signed by an attorney. But I’m sure that Veterans Guardian employs at least one attorney, so maybe I can identify them and grieve them to their state Bar for aiding a literal illegal enterprise. I need to follow up with the Veteran this happened to and see if they will share a copy of whatever agreements or declarations that the company made.

Ugh. So. Bottom line, if this guy had gone to either a VSO or to an accredited attorney, they probably would not have screwed up the paperwork in the first place, and even if they did, the VA would have reached out to THEM giving them a chance to cure the problem while the guy was still in his one year appeal window. They would also have access to the VA’s VBMS system so they can see what’s going on with a claim/appeal.

Don’t make the same mistake this guy did. Use someone that’s accredited.

Questions comments put ’em below.:)

P.S. This postscript is added to clarify certain things. Mr. Hood is a guest author and, as such, is permitted to vocalize his thoughts on any subject under the sun. He can expound here or at the NY Times if they let him. Asknod Inc., asknod.com/asknod.org do not necessarily share the same philosophy. As we do not charge anyone to access the site, nor do we accept advertising here, the site is merely a soapbox for Veterans to voice their concerns-be they attorneys, Veterans or illegal immigrants. Mr. Hood certainly expresses thoughts that many in the Veterans’ venue of affairs feel concerns them. Any opinions expressed on the subject of Claims Sharks, or any named legal entities/ companies who do not adhere to DVA regulations/Congressional Statutes are merely opinions of the individual. Asknod does not advocate for or against the parties involved. We just report. You decide.

Posted in Uncategorized | Tagged , | 4 Comments

BVA– R1-WHEN IT RAINS, IT POURS.

Posted on January 5, 2024 by asknod

I think I can safely say this will not go on forever but I’ve been extremely blessed to bring in yet another SMC R1 rating for one of my blind Veterans today. As is typical, VA neglected to tell him any time in the last decade he was entitled to far more than the meagre portion he was being served every month. But that should surprise no one in this business.

I’m getting writer’s cramp typing all these up and it’s only the Fifth of January. Without more ado, here’s the Magic paper for my longsuffering client Jim. Congratulations, bubba. Welcome to that rarified atmosphere of the higher SMCs. You earned it long ago. I wish we’d met sooner. I wrote about Jim here back in March of last year. After we won this battle, I pushed on for R1. VA, of course, wasn’t having any part of that.

Redact R1

Now, for all you SMC sleuths, spot the error in how this was added up. He was at L under §3.350(b)(2)for blind. He went to M for blind + need for a&a under §3.350(c)(1)(v). Then he got a 100% for Bent brain syndrome but they dove off the deep end into SMC P and tried to award him both that and the bump you’d get from M to N… but failed to do so on both counts. The only thing that redeems it is they granted the SMC R1 back to May of 2022 which makes it six of one and half a dozen of another. Always remember §3.103- you have to grant everything you can-not the least you can get away with. Here, it was painless but I catch VA constantly failing to award what is lawfully due.

Happy New Years, Jim. Thanks for letting me give you a hand. This SMC gig is more fun than fishing with dynamite.

 

Posted in 100% ratings, Aid and Attendance, BvA Decisions, How to Qualify for VA SMC, SMC, Special Monthly Compensation, TBI, Tips and Tricks, VA TBI, Veterans Law | Tagged , , , , , , , , , , , , , , | 8 Comments

HLR–SMC T-ANOTHER PLEASANT VALLEY SUNDAY

Posted on January 4, 2024 by asknod

The Monkees might have been a “canned” musical ensemble but they put out some good music in my mind. Who cares who wrote it or how much filler and backup singers they had to infuse it with. The line in the above song  had the phrase “charcoal burning everywhere” in the bridge. One of the terms I use to describe what happens after a TBI is charcoal brain. Nothing works. It won’t even light. All those normal functions we take for granted are screwed up and life is infinitely harder. And that, ladies and gentlemen, is why they deserve SMC at the T rate. Their needs are far greater than yours or mine-by a magnitude of ten.

Did any of you ever see that drug commercial where the old boy holds up an egg and says “This is your brain.” Then he cracks the egg into the frying pan and says “This is your brain on drugs.” Well, multiply that. Think of TBI more like scrambled egg brain.

I don’t mean to come across as devoid of emotion or characterize charcoal brain as an insult either. If you’ve ever had your bell rung, you know full well what it feels like for a while-maybe forever- depending on the severity. An IED that reaches a 9 on the TBI Richter scale is some serious business. The longer you’re unconscious, the worse it’s going to be. It’s comparable to what happens to a NFL lineman after about 6 seasons all at once. You get fuzzy. You can’t remember your kids’ names. You sometimes get so dizzy you’d flunk the straight line test stone cold sober. You pull up to a stop sign and sit there waiting for it to turn green. That’s assuming you’re still foolish enough to be out driving and want to take your- and anyone else’s- lives into your hands.

As the title  of this article implies, I write to say that our Juju was good at Tony’s SMC T  Higher Level Review (HLR) informal conference last week. This is only the second one where  I’ve prevailed locally via an HLR. Most times, I have to go to the BVA and employ the carrot-and-stick technique and lead them to the obvious conclusion. Occam’s Razor doesn’t exist in VAland. At the VA, they’ll only believe in  SMC when they actually see  SMC.

I think I was blessed to draw Rebecca ________ as my Reviewer. She’s a DRO and was brutally honest in agreeing with me that on a scale of one to ten, SMC is right up there with brain surgery to VA raters. Most of these folks give you the dog-and-pony show approach and promise they’ll employ their electron microscopes and keep an open mind. On average, twenty eight minutes later the Rating Decision  pops up like a cork bobber on your fishing line. Sorry, Kimosabe but SMC isn’t in the cards for you today but thank you for your service.

I’m going to refrain from sharing all my SMC secrets from here on in for several reasons- the biggest one being I don’t want to keep tipping my poker hand to VA. Rebecca knew who I was- or had at least heard of me. Either that or she had spotted my name on a legal brief in the file with the asknod header at the top. In any case, I guess it isn’t a state secret I do a lot of SMC claims for the higher levels. I reckon I’d need more than a ghillie suit  to keep this all a secret.

If you don’t know how to win it, don’t expect VA to get all warm and fuzzy and explain what you need to achieve it. Every rating decision denying a higher SMC I’ve ever set eyes on merely said “Your current rating is confirmed and continued. Y’all come back now, hear?”  And, weirdly, by law, they know that under §3.103(f), there’s a punch list of things they need to explain to aid you in repairing your application for SMC T or R- or which ever SMC you’re fighting for. How is it they keep blowing us off on that regulation though?

I’m not sure if someone lit a fire under somebody’s ass somewhere to hurry up and crank out decisions RFN to make the stats look better in 2023, but my clients have all been on a tear. In just the last two weeks, a Vietnam Vet from LZ Cork won his BVA appeal for an L up to M rating back from early 2018 to the present, another Vietnam Vet with a CAR finally proved he’d been inside the 12-mile limit and got his DEA P&T back to early 2022, a surviving spouse got her DIC win in just over a year, my very good friend Terry, whom I also induced to become a VA Agent, got his R2 after an interminable seventeen-month delay, Allen got his SMC T up at the BVA, Tony just got his T last night and Harvey won his §3.156(c) claim back to 1989. Cool beans. My blind Vet Jim’s appeal just got the ‘signed by judge’ status from VLJ Osborne in Caseflow so that may metamorphose into another R1 tomorrow… or not.

Here’s Tony’s T in case any of you/they wish to see if he/she/they can glean any insights from it to win their claims. I publish these to show you winning SMC can be done but requires infinite patience. From start to finish, Tony’s win took slightly over a year from the day I pulled the POA.   Redact SMC T

I sure don’t want anyone to think this  SMC poker game is like falling off a log easy. It isn’t. Not by a long shot.  As for getting two SMC Ts in a week- now that is pretty heady stuff like scoring a hit with a .338 Win. Mag from a mile out. While claims for tinnitus or flat feet require you to follow a recipe like baking cookies, SMC resembles more of a pedantic chess game.  You have to react to your opponent’s every move accordingly. The wrong move can be fatal both legally and financially.

Congratulations Tony and Sheila. You’re now in a very small VA club. Thank you for letting me be your SMC Sherpa.

And that’s all I’m gonna say about that.

Posted in 3.156(c), Aid and Attendance, BvA Decisions, How to Qualify for VA SMC, R1/R2, SMC, Special Monthly Compensation, TBI, VA Agents, VA special monthly compensation, VA TBI, Veterans Law | Tagged , , , , , , , , , | 5 Comments

§3.156(c)–HARVEY’S DELOREAN TIME MACHINE

Posted on December 31, 2023 by asknod

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

Posted in 3.156(c), §3.156(c) claims, BvA Decisions, Food for the soul, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

HLR @ SAINT PETER’S=AID & ATTENDANCE (FINALLY)

Posted on December 24, 2023 by asknod

Me and my law dog Pickles

Season’s Greetings to you all. I’m getting a lot of the Iraquistan TBI chickens coming home to roost these days. The majority of them are like my Vet Allen I wrote about earlier this week. At some point, the Marines’ FacePage or Ticktock jungle drums started talking about me and my ‘relative’ success in the business of SMC. Ever since, it’s been a veritable gully washer of phone calls asking for representation to “get over the hump” of SMC S and move on to L and T.

Tony and Sheila

And hump it is. VA goombahs fully well know the moment they let these fellers through the gates of aid and attendance that they’re destined to be eligible for SMC T. After all, that’s what it was inaugurated for in 2010. Unfortunately, someone down at the corner of Delay Street and Deny Avenue put out a sub silentio codicil that entitlement to this was going to be done strictly by VA’s Thursday Rule. That would be the invisible regulation (§3.?????) that says Heads I win and tails you lose. Sorry but you weren’t born on a Thursday. And if you were, we’ll just change it to the Wednesday rule. Same difference. You don’t qualify. The reason is simple. We have X amount of money for X number of Vets. Brandonomics is rough so we need more money than you. Besides, we VA employees “work” for a living and most of you don’t. Tough shit if your quality of life sucks. Imagine having to work for VA. We need three signatures for permission to go to the latrine. Get it?

Of all those who have asked for representation, none was probably more entitled than Tony. To shrink the story down, Tony was severely burned and has yet to recover completely from the burns, scars and subsequent pruritis. He has a Combat Action Ribbon so the usual PTSD and post -concussion TBI from the explosion are a given. Nobody at VA debates any of this. The problem is simple. Nobody at VA will acknowledge that his four-page Code Sheet List of disabilities actually rises to the level of needing (or being entitled by law) to a&a.  To those unschooled in medicine, pruritis is the  sensation that commands you to subconsciously scratch an itch. Now imagine the insane urge to scratch 60 percent of your body 24/7/365. The term ‘sucks” doesn’t quite describe it.

Imagine further, if you will, the sleep deficit you incur when you constantly wake up and scratch yourself so hard you bleed. Add Obstructive Sleep Apnea (OSA) and stir briskly. What the hey? How ’bout we throw in a tablespoon or two of Myocarditis with a myocardial infarction (heart attack)? What’s missing for an entitlement to SMC L? Why,  major debilitating headaches every day, of course. But SMC for housebound (rather than the higher level of true aid and attendance) status just wouldn’t be complete without major muscle injuries to the upper body and arms. Apply the tinnitus as the final topping and you had Tony as he arrived at my front doorstep at SMC S. Here’ Tony’s burn damage several days after the injury:

Shucks. It doesn’t make any difference what’s wrong with Tony… or you. Add it all up and every last one of  you missed it by thaaaaaaaaaaaaaaaaaat much-burns or no burns. As far as VA was concerned, Tony could have just climbed out of a deep fat fryer and still lost. It would seem the only way to get over this hump and put the mustard on the hotdog is to find someone that’s walked point on this and actually won.  My website seems to attract a lot of TBI Vets and we have an inordinately high success so far doing this. “We” means me and my law dog Pickles (above). Don’t laugh. She’s an integral part of asknod Inc. She keeps me focused on the task.  “Inordinately high success rate” means I haven’t lost any yet. Knock on wood. Which is not to say I decline to take hard cases. Some cases have been hamburgered by VSOs or the Veteran themselves so thoroughly, there’s no hope for them. I speak of using certain unsavory types found on the VA IMO Sh*tlist.

Once you invite these folks with truth-telling issues in to opine on your medical state, you condemn yourself to the ranks of the Flat Earth Society and Chemtrail Sniffers. VA raters open your efolder in VBMS and begin to laugh uncontrollably at your poor choices for medical opinions. Hey. It’s not your fault. These jackwads advertise or somehow gain a following on various Veterans’ Help Websites -even if they charge $10,000.00 a pop for their wild theories. I don’t doubt some have even attributed a Vet’s PTSD to Alien abduction. Name withheld to protect the naïve, hornswoggled Veteran.

Winning SMC T for TBI could be compared to sneaking up on an alligator and hogtieing him before he even smells the duct tape. You build the claim components to accentuate the deficits before you launch the frontal attack for the actual SMC itself. I watch Vets file an eighteen-wheeler full of claims and then throw the SMC  LMNOT in on the top of the heap. When the rating decision comes out, they get to read an incredibly long list of all them denials in HD stereo.

Now, one thing I do know and it’s not any Vets’ fault, but TBI/Bent Brain syndrome tends to cause chronic sleep impairment. That, in turn, begets fuzzy brain. You turn into an insomniac trying to envisage multiple scenarios on how, when and where you’re going to fight this, analyze prior failures and plan new strategies. Hey guys (and gals). I’ve been there. This movie starts in your head every night around 2030 Hrs. Don’t feel pregnant and alone. Unfortunately, you a) don’t have access to VBMS, b) can’t see what your VA opponent is holding in his hand; and c) the legal course knowledge on how to defeat their bogus illegal denials.

Not to put too fine a point on it but if you’re calling or emailing me, chances are playing SMC poker with VA didn’t pan out as you’d planned. I don’t guarantee anything but I will fight like a rabid, cornered dog for you. That’s pretty much what I did here for Tony. If you read his code sheet, it appears he has more wrong with him than he has right. He has severe burn scars with pruritis over 60% of his body. He has the usual combo of 9411-8045 with a Combat Action Ribbon to go with it. In a nutshell, he has the same identical disabilities as all the rest of my TBI clients with a heapin’ helpin’ of burn scars on top. Headaches? Check. GERD? Check. Multiple musculoskeletal damages from the aftermath of being tossed ass over teakettle after the blast. The list goes on. Dizzy. Visual auras. Hallucinations. Anger management “deficits”.

Tony came to me at about the same time Donald, Cordney, Courtney, Allen and Roger did. He won’t be the last. To be truthful, it was confusing. They were almost indistinguishable from one another as they all had so much in common. Worse, they all were either stalled out at SMC S or L or any forward progress had come to a screeching halt. Their VA rating decisions all said the same thing. “Here’s what you need to get to L but you don’t have it”. One of the decisions went into more detail and said the  Vet needed a moderate amount of help with dressing, a moderate amount of help bathing, and a moderate amount of help with medication management. Where do they find these enterprising raters who manufacture a whole new (moderate) legal standard of review? Either you can accomplish the activities of daily living most of the time (but not continuously)… or you can’t. Either you can cook for yourself…or you can’t without burning down the house.

Tony had gone out of his way(as had a few of the others) to obtain Independent Medical  Opinions (IMOs) documenting his need for a&a but still didn’t get any traction. I won’t go into a long diatribe about why but it’s a vintage VA denial technique.  VA has been in this  disability business since the Revolutionary War and actually have become quite the consummate denial factory. For the most part, the denial is ambiguous. Sure, at the end of the denial, they’ll insert a postscript that you have a few of the ingredients…but not all. By operation of law and §3.103(f), there’s a laundry list of what they’re required by law to tell you and suggest you obtain in order to win. Laundry list? We don’ need no stinkin’ laundry list. We have spoken. Thank you for your service. Next victim er Veteran.

And like all of these Veterans, I find myself having to fight first for the SMC L for aid and attendance and then spring the SMC T trap on them. Outside of some Special Forces, Deltas or LRPs, most of you are unfamiliar with the horseshoe ambush. There’s one way in and no one comes back out alive. I’ve heard this called Claymore Disease back in my day. With my technique, you get the a&a first while simultaneously obtaining everything evidentiary-wise needed to support your SMC T in the interim following  the closed out L claim for the aid and attendance. By the time they figure they’ve been duct taped into a T rating, it’s too late to bullshit their way out of it.

Sure. You’re going to get denied at the outset. You may snag it at the HLR but I’ve only had that happen once. Nowadays, I use the duct tape method and combine it with the Hansel and Gretel “breadcrumb” ambush. You present everything needed to qualify for T and itemize it in triplicate but don’t push it. The HLR booth bitch will take desultory notes and ignore half of it and discount the rest as the “vapors” anyway. Twenty eight minutes later, Bingo. More often than not, they’ll grant the a&a but deny the T. They don’t want that shit on their resume. It’s easier to deny on some nebulous M 21 stricture than to run the gamut of 5 or 6 RQSRVSR quality assurance checks which eventually question whether you were raised by wolves. Oh. And forget the Christmas bonus, bubba.

SMC T is a second cousin to Unicorns and pots of gold guarded by leprechauns. Sure. They exist, but like ol’ Nessie in the Loch of Ness, it’s an utter bitch to get a picture of her (assuming arguendo ‘she’ identifies as a cisgender female and uses those pronouns). Add into the equation the Heads I win/Tails you lose technique  and you begin to understand why you can’t get to T from here.

Tony had all the ingredients but he couldn’t assemble them all into a coherent attack because he thought VA was there for him. By the time he realized his mistake, he’d used  up all his hand grenades, shot his 249 dry and we had to concoct a brand new ambush. This is where having VBMS is a Godsend. Your efolder is chronological and well laid out. All the old evidence is carefully assembled and word-searchable. You do the dumpster dive on the file and assemble all the “hoo-doggies, he needs a&a” from 2014 to 2023. VA finally concedes he does… but only as of last week. And then you begin anew with Phase II and set up the horseshoe T ambush. It’s a recipe. Just like baking cookies.

Merry Christmas Tony. We’re halfway there. I have his HLR informal conference and some duct tape set up for next Wednesday to give the HLR Reviewer plenty of time to recover from his/her/their hangover. I must confess I’m kinda lost on this whole plural pronoun thing re the folks who aren’t totally dialed in to what’s down there in their underwear. Is this a Sybil gig with multiple personalities like the ’60s movie? Not that it matters, mind you. Just my Tourette’s rearing its ugly head. All these queshuns runnin’ ’round my brain. Anyway, here’s Act II of the  SMC T Program.

Redact a&a RD 12.18.2023

Redact CS a&a 12.18.2023

Stay tuned next week (0r next Spring) for the exciting conclusion. The one thing I can always guarantee my Veterans is I will prevail. Defeat is not an option with VA. As most know, my mantra has always been Win or Die™. Seriously. I even patented it and the flag.

TTFN

And Christmas (or any other post) just wouldn’t be complete without Ed the LURP’s video contributions…

Posted in 1154(b) combat presumptions, Aid and Attendance, Combat Presumption, Food for the soul, Higher Level of Review (HLR), How to Qualify for VA SMC, Independent Medical Opinions, OSA, SMC, TBI, Tips and Tricks, VA Agents, VA TBI, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , | 2 Comments