VARO 346– 40% MORE- HE’S HIGHLY OVERRATED

Posted on April 10, 2015 by asknod

va_sealIn a never ending cascade of ratings, VA has now bequeathed upon me an additional 40% for cryoglobulinemia and fibromyalgia. As inane as this may sound, I don’t want or need the ratings. It’s not a prerequisite for any more money or a higher SMC. Quite simply, it is typical VA redundancy to the extreme. As the title above suggests, I’m highly overrated. I say this with no fear of retribution or claw backs. If you knew how hard it is for VA to rescind their actions, it would appall you. They would have to CUE themselves or prove fraud on my part. Ain’t gonna happen.

redacted 4-6-15 rating

I teach many here on how to accomplish the basics of claims. More nuanced attacks rarely surface unless VA is using subterfuge to fence you out. A classic example of that is the Hepatitis/cirrhosis conundrum. Imagine being in stage 4 liver disease (incipient cirrhosis) from Hepatitis  C (or B). If you file for both, VA will often rate you on both. Rather than look at the predominant disease (Hep C), they will choose to look at the effects of the Hep (cirrhosis) and rate on that as the predominant facet. As we all know, VA vociferously refuses to allow pyramiding which now sets up a contretemps of immense proportions. They cannot, and will not, give you 100% for cirrhosis until you reach the Farah Fawcett stage of incipient death. Meanwhile, due to pyramiding restrictions in §4.14, they are precluded from giving you 100% for the Hep due to the overlap of some similar ratings symptoms language. Many write me to ask how to escape this Bermuda triangle. Obviously, the Hep is the chicken that preceded the egg of cirrhosis. Getting VA to absorb that concept can be a long affair and will eventually require an appeal to the BVA to straighten it out in most cases. This is why I have strongly advocated Vets file only for the HCV even if they are in full-blown cirrhosis. It’s far easier to qualify for the 100% for near-constant debilitating symptoms as envisioned at 100% for HCV (DC 7354) than the 100% for cirrhosis (DC 7312).

In a similar vein, VA was refusing me my SMC S which I legitimately deserved for being “substantially housebound”. My Porphyria Cutanea Tarda or PCT, according to VA, is a secondary of my HCV. I dispute that inasmuch as I began suffering all the symptoms of it while I was still eating Agent Tang for breakfast every morning in 1971. Fact is, I was even coughing up blood. Regardless, VA graciously conceded it was service connected but held back Nehmer status (Agent Orange presumptive). VA artfully underrated me to preclude entitlement to SMC S. This was accomplished by offering 10% for skin and finally 40% for phlebotomies. The disease and phlebotomies combine to create a true 100% disability-one VA is loath to grant. Thus we have engaged in a running gun battle over it for eight years.

In order to overcome this, I filed for cryoglobulinemia and fibromyalgia in  October 2012. My hope was to pick up (at a minimum) an additional 20% to add to my 40% and 10%(tinnitus) giving me the magic extra 60% and SMC S. VA fixed that by ignoring the claim until now. My extraordinary Writ filing forced their hand and they finally had to face the music. Instead, they upped my Porphyria rating to 60%, restored the  illegal claw back of the earlier 10% for my skin (CUE) which was not pyramiding and granted the SMC S all the way back to 1994. This was what I have longed for since I filed my original 1994 claim. My expectation was that it would be a long, bloody battle. I was not disappointed. VA is horribly predictable.

The Extraordinary Writ opened the flood gates that had been closed for 22 years. All of a sudden, everything old and new came to fruition. Yesterday, the Big Brown Envelope arrived bearing the extra 40% needed to combine with the other ratings to qualify for SMC S. In retrospect,  I would gladly have sat down or instructed Law Bob Squarepants to barter with them to reach a modus vivendi to avoid all this needless waste of precious judicial resources.

VA would have you believe no back room trading sessions ever occur and all is above board. I can give you the names of eight attorneys right off the top of my head that could put that argument in the circular file. In fact, the OGC approached LawBob at the CAVC in April 2013 and proffered me my earlier effective date of 1994 if only I could see clear to dropping a puny extra year for tinnitus payments and a CUE claim for an old Air America back injury filed in 1989. I gladly threw in the towel as they were bargaining chips from the outset and peanuts financially. The big money has always been in the 1994 Hep and the PCT claims. I also strongly suspect VA wants to avoid any imperial entanglements regarding Air America personnel filing claims.

Had VA been amenable to a quid pro quo, we could have ended this charade years ago. Being pedantic and pathetic, they refused and insisted on adding another volume to my already legendary 11-volume c-file. All I wanted (and still desire) is a legitimate recognition of what VA’s own doctors admit- that my Porphyria is 100% disabling. Unfortunately, to accomplish that, I am off to to see the wizard again at the BVA. Judge Davis was adamant that the CAVC would not be abused as a shortcut for the appeals process and ordered me to follow the Yellow Brick Road yet again. This will be my fourth trip to 810 Vermin Avenue since 1992 and the third time for this particular item. And then there is the Independent Living Program request for a greenhouse. With the addition of these new ailments, my case for one is even stronger.

Winning 100% for the Porphyria will be a Pyrrhic victory insofar as it will squander scarce judicial resources that could be better accorded to more needy Vets patiently waiting their turn. I apologize for this. My belief is that I am plowing a path for those that follow in hopes they will not be fenced out as I was. SMC S is under-awarded, misunderstood and purposefully ignored until they (VA) are forced by the exigencies of litigation to award it. No Vet should have to suffer this indignity. Begging for what is rightfully mine is beneath me- and all of you, too. As for the ILP request, that, too, is worth the fight for all of you whether you recognize it’s value yet or not.

In sum, VA has done an admirable job of fencing me out-whether by design or animosity- for eight years in the near term and 22 years in the long term over something that was as inevitable as the sun rising this morning. In any case, it was illegal, adversarial and not in accordance with their own regulations. Awarding the cryo/fibro yesterday was simply the last fallout of the Writ and the completion of my pending claims. A viable quid pro quo saving us all time, money and benefiting all would have been tossing the cryo/ fibro on the ash heap and simply acquiescing to a 100% rating for the Porphyria. Apparently, VA could not bring themselves to do this. It shows how intractable the process is and always has been.

The last gunfight will be over something as yet intangible. When I am finally forced to turn in my driver’s license and take the wheel of my new wheelchair, I want the maximum due-a bump up from SMC L (Aid and Attendance 1) to SMC M. For the record, that is $384.72 more per month currently. This will help Cupcake financially in some small measure. VA is willing to wrestle me to the mat over this and consume hundreds of thousands of dollars more to defend the indefensible. And we wonder why it takes aeons to complete our claims.  This case clearly illustrates what is wrong with the system.

Here is how inane the process has become:

Capture

I had hoped to retire from my second calling of VA claims adjudications. After all, I’ve been engaged in this for over two decades. After the BVA weighs in and grants the inevitable 100%, we will then begin the fight for equitable relief caused by the hardships of waiting over 20 years for VA to award that which they freely admit they owed all along. Let this be your reason to never stumble or give up in the pursuit of your VA claims. If you are justified, you will prevail. If you stay the course, you will receive your justice. Do not expect VA to meet you half way or be gracious. There will never be an apology or recognition of their errors. You’re dealing with an insurance company who hates to pay out claims. Oddly, it’s not even their money and certainly doesn’t affect their bottom line in the least which makes their actions all the more incomprehensible-and reprehensible.

Onward through the fog, ladies and gentlemen. Stay tuned for the next exciting installment(s) at the BVA coming soon. I have my VA 8s now for the ILP greenhouse as well as the PCT battle and that’s a start. I suppose in the interest of judicial economy they will bifurcate the two decisions and consume even more money and time. They sure wouldn’t want to change their Modus Operandi now and confuse me. Perish the thought.

small-farmers.inferior correct jpg

Posted in Extraordinary Writs of Mandamus, vARO Decisions, VARO Misfeasance, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , , | 8 Comments

CAVC–BOND V McDONALD–IMPLICIT DENIAL REQUIREMENTS

Posted on April 8, 2015 by asknod

vetcourtappealspromoI’ve been waiting for a good decision-not necessarily a precedential one- that illustrates the concept of implicit denial. Judge Kasold, not my favorite Judge at the CAVC, defends this concept in his affirmation of Mr. James E. Bond’s (no relation to the more famous 007)  BVA denial decision. The problem here is elementary. Mr. Bond is not a doctor nor was his exalted VSO who constructed this claim.

James Bond implicit denial 

To begin with, you can see the fingerprints of the VSO all over this thing at the VARO. Filing a claim should be lined out in no uncertain terms so as to avoid the confusion Mr. Clemmons went through back in 2009.  As LawBob Squarepants opines every morning- Belts and Suspenders, gentlemen. Quite simply. Mr. Bond was and is not a doctor or psychiatrist. It is not in his power medically to diagnose himself regardless of what the VA feels. The second problem is the semantics the ROs impose when they get the claim. They automatically feel emboldened to recharacterize what it is, specifically, that you are asking for. There is no defining period where they write back and ask for clarification. No sirree, Bob. They magically “construe” what it is you asked for even if it is diametrically opposite what you actually filed. I experienced this phenomenon in 1994. In explicitly and excruciatingly clear Anglais, I asked for “Porphyria Cutanea Tarda (PCT), secondary to hepatitis in service and/or exposure to herbicides.” VA immediately donned their tortured thinking caps and extrapolated what I really sought was 1) entitlement to Hepatitis and  2) entitlement to PCT due to herbicide exposure. Note that this reinterpretation wiped out the “direct” service connection path evoked in the “and/or” and categorized it strictly as a presumptive exposure issue. VA does that a lot in hopes you won’t notice. It’s easier to deny it based on one facet. See my post on this in Fradkin v. Shinseki, too.

In the instant case, Mr. Bond was so caught up in the belief he had filed two separate claims for bent brain that he did what many do and misconstrued the denial as being solely for PTSD, leaving the other unadjudicated. VA can be remarkably vague, and without a copy of his denial, it’s probably useless to speculate here as to what it said and did not say. VA insists it was very clear and stated (from the BVA decision):

Bond BVA decision

While the Veteran now attempts to tie his reference to “anxiety” with the September 2004 diagnosis of adjustment disorder, in fact, he never mentioned an adjustment disorder in the claim. The Board finds that it was entirely reasonable for the RO to have interpreted his assertions as raising a single claim of entitlement to service connection for any psychiatric disorder stemming from his in-service stressors.

What’s missing from this BVA decision is any mention of Moody v. Principi   Fed. Circus (2004).  Implied or inferred claims must be considered. The Vet is an imperfect diagnostician of his own ailments. If he applies for bent brain as Mr. Clemons did, he should have a complete workup to determine what, exactly, he does or doesn’t suffer. Rather than a mad dash to the steno pool to type up the denial, a measured response would be the norm. In our nonadversarial niche in the VA universe of litigation, we are given many gifts. One important one is that we are basically idiots at this process and Comer v. Peake clearly stated having a VSO as a legal rep. was and is about as useless as screen doors in submarines. In addition, Layno v. Brown said we are limited to our five senses in confirming our boo-boos. Last time I checked, you couldn’t smell, taste, hear, feel or see bent brain. Much like tinnitus, you knew you had it. Trying to convince a VA examiner is a whole new project but should not have to be. Sensing the “gottcha” VA technique they used on Mr. Clemons, Mr. Bond appears to have tried to cover that base via a dual filing to encompass both possibilities. No dice.

downloadPursuing the “idiot” scenario, it should be clear that Mr. Bond was going to want to see a clearcut denial for both claims filed in order to be more knowledgeable when constructing his NOD and subsequent argument. 38 CFR § 19.29 was the trip wire I ended up with when VA was caught fudging the evidence at the CAVC in #12-1980. I said it fell into 3.156(b) as evidence submitted in the course of the one year appeal period following denial. It’s immaterial which regulation was violated. The salient point is absent a real lawyer with a real American Juris Doctorate from a real law school, anything Mr. Bond did legally was automatically deficient and required far more introspection before calling in the dogs and pissing on the fire. Before I point out Judge Kasold’s flawed introspection of Mr. Bond’s plight, lets look at the recognized hallmarks that define an implicit denial.

First, for legal grounding, the salient precedential decisions of Cogburn and Locklear which form the predicate for implicit denial

Cogburn_08-1561_published_opinion_12-13-2010

Locklear_09-2675_published_opinion_2-11-2011

Judge Kasold cites to these to outline the four conditions that form the basis to ascertain how and whether a finding of implicit denial should be determined:

In making its finding, the Board considered four factors:

(1) specificity and relatedness of the claims

As to the first factor, the Board noted that Mr. Bond sought benefits for a generalized set of symptoms (anxiety) and a specifically diagnosed disorder (PTSD), and further noted that both are mental disorders that are commonly associated with each other, with PTSD recognized as an anxiety disorder

(2) whether the adjudication alludes to the matter in a manner such that a person could reasonably infer that benefits were denied,

(3) timing of the matters, and

As to the second and third factors, the Board noted that Mr. Bond set forth his claim for benefits for anxiety and PTSD in a single, March 11, 2005, filing, and further noted that, although the August 2005 RO decision denied benefits for PTSD, it also specifically referred to his March 11, 2005, claim.

(4) whether the veteran was represented.

With regard to the fourth factor, the Board noted that Mr. Bond was represented by an accredited service organization throughout the relevant period of his claim, and the representative agreed that Mr. Bond’s intent was to seek benefits for his PTSD, which caused him anxiety and related issues. Although Mr. Bond gives great weight in his argument to the fact that he was represented below by an accredited service organization and not an attorney, this is only one factor for consideration. Moreover, there is no requirement that representation by an accredited service organization be considered, per se, inadequate;

The logic defending the fourth factor flies in the face of Comer. No one can state that having a VSO repping you is tantamount to true, viable legal help. Lordy, don’t I know that multiplied by three VSOs and fifteen years. Additionally, the underlined and bolded portion above lets you know who your VSO’s true employer is. The guy is busy sandbagging his claimant by telling VA their guy was really just seeking one and only one claim for bent brain. Best friends forever, dude. Remember that.

Mr. Bond falls afoul of several false premises which he should appeal to the Fed. Circus. The least of which is factor #4. The defense of his co-filing two bent brain etiologies in no way, shape or form allows VA to combine them in the ratings blender and come out with a thin purée of one denial for both without concisely explaining the rationale for each. Kasold implies he should have filed them as two disparate claims at two different times in order to get two decisions. Furthermore, it frustrates judicial review. It creates an ambiguity for a Vet- let alone his legally challenged VSO rep. By not addressing one claim, it creates the perception that the adjudication was incomplete. How can anyone come to an alternate conclusion (other than our esteemed jurist) above? Moreover, considering the BVA often suffers diarrhea of the mouth to their detriment, why now the sudden paucity of words and abbreviated decision that failed to address it at the RO? On it’s face, the whole thing looks and smells like VA, and Judge Kasold, trying to rationalize the indefensible with the old saw ” Well, the Veteran should have been able to sound it out like Phonics, right? Besides, he had a service officer that had been trained in the arts.”

Royle_Maryanne

Mary Anne Royle

§19.29 is as clear as it can be. You have to understand the overarching concept of a bitchslap in order to understand you just got bitchslapped twice. This is what Mary Anne Royle Esq. was trying to enunciate and it somehow was lost in the subsequent arguments at the BVA and thence the CAVC. Granted, had Meg Bartley been assigned this, I suspect we’d be reading about the vacate and remand in order for poor Mr. Bond  and Mary Anne to rephrase what it was they sought more clearly.

§ 19.29 Statement of the Case.

The Statement of the Case must be complete enough to allow the appellant to present written and/or oral arguments before the Board of Veterans’ Appeals. It must contain:

(a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement;

(b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and

(c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed.

(Authority: 38 U.S.C. 7105(d)(1))

Seems pretty clear to me. File for PTSD and/or anxiety disorder as two separate etiologies and get two separate decisions- one of which will hopefully get it right. One might note that Mr. Bond wasn’t trying to obtain SC for both. He clearly filed using the preferred VSO technique of shotgun/ spaghetti. One or the other usually hits or sticks. With VA, it’s almost imperative to winning anything considering they stymie our attempts based almost entirely on our inability to vocalize that which we desire. This is what prompts them to “reconstruct” the claim in a new context that artfully creates the corral around SC with no gate to enter.

So many of you get these implicit denials at the early stages and try to fight it in the wrong context legally. Sadly, I don’t see where Ms. Royle could ever have gotten any traction with Kasold. She was doomed the moment Greg Block assigned it to him. The luck of the draw at the Court can doom you to imperfect justice. I’ve drawn Davis twice and I’m batting .000 with him.

 

Posted in CAVC Knowledge, CAVC ruling, Implicit denial | Tagged , , , , , , , , , , , , , , , , | 8 Comments

PTSD–TEACHING TO THE TEST

Posted on April 7, 2015 by asknod

vietnamI received an interesting email yesterday (Monday) from a fellow (Hank R.) who feels we (Veterans advocates) are in some way “coaching” our brethren  on how to best answer the DBQs (Disability Benefits Questionnaires)and VA psychiatrists/Doctors. The implicit suggestion was that we also game the C&P exams.

We at asknod do not subscribe to the practice nor would we ever. I suppose that someone has already come out with a Cliff Notes pamphlet on how to ace the bent brain tests by now, or any and all the other ailments. In this day and age with the Internet, it would almost be expected.

20A w 9mm Swedish K July 70 AirAmI wrote my book on VA claims to help Vets out but I never ever advocated dishonesty or shading the truth in spite of the hell VA puts us through. Our moral compass must always be far more sterling than theirs.

Getting back to Mr. Hank, the tenor of his email was very clear. He holds that the VA compensation and pension plans are far too lenient and almost beg to be abused. Hank also feels that those among us injured in the service of our country knew full well of the risks before we signed on the line. Ergo any injuries sustained in the military profession are just part of a remuneration scheme and should be covered by VA medical personnel. In a nutshell, free medical for the ailment for life should be compensation enough.

While I strongly hew to the idea that each and every one of us Americans is entitled to his or her opinion, I expect it may be difficult for Hank to understand the sacrifices we endure when we give up McDonald’s for MREs or c-rations left over from an earlier war. I felt it was a sacrifice to have to give up many creature comforts when the draft gong rang out #39 in 1969. I felt it was a sacrifice to trade in a sure college education for an M-79. Admittedly, I did have a killer tan after two years in country but that didn’t improve the bottom line on a resume.

For those who have never heard the siren call of war, military service might be perceived like an extended Boy Scout Jamboree. Experience changes any perception. I don’t expect Mr. Hank to change his conception of our 3 or 4 -year paid vacations to far-flung countries around the world. I doubt he will ever feel that Pucker Factor of being shot at. I’m glad he’ll never have to experience it. It’s not something one wishes on any other.

But by the same token, Mr. Hank, remember when we signed up that Uncle Sam made some very explicit promises. One was if we ended up missing any of those 2000 body parts we were born with that we would be remunerated. A bent brain certainly falls into that category. Not quite seven percent of us hold the unique distinction of having served our country. Of that number slightly less than 3 percent are paid compensation for missing/damaged parts. That’s an infinitesimal number when expressed in the context of 500 million Americans safe at home posting on Facebook. Few of us ask for more than what is due yet we have to fight to get any of it. My personal fight has taken twenty two years and I now find myself back at the Board of Veterans Appeals because VA still thinks I’m asking for too much.

In my opinion, America opens up its heart to Veterans. Perhaps not as much as they give to the ASPCA  but what the hey. We receive what most consider a pittance in compensation even when completely disabled. We’re far below the poverty line in most cases and the irony is most of us are too proud to ask for our due. To add insult to injury, we aren’t even allowed legal representation in our pursuit of these entitlements until we lose the first time.  With $3K a month at stake, it makes a fellow want to plumb run out and enlist immediately, huh?

P.S. I emailed this back to Hank in the off-chance he might not come back to read about how we swindle Americans out of their taxpayer dollars.

Posted in All about Veterans, Complaints Department, Food for thought | Tagged , , , , , , , , , , , , , , , , , , , | 13 Comments

CAVC– DWYER V. SHINSEKI–DEAD SKUNK IN THE MIDDLE OF THE ROAD

Posted on April 3, 2015 by asknod

vetcourtappealspromoHere’s a wonderful single judge decision on Hepatitis C/HCC (hepatocellular carcinoma) jurisprudence. Ms. Dwyer should never have been subjected to this effrontery. The BVA weenies sent this thing out to get a clarification on “at least as likely as not” and the VA’s whizbang “hepatologist”, who was probably a EENT guy, couldn’t get the wording right. Not once but twice. Judge Hagel has to remand this to fix it but it should be a cut and dried reversal in Vetworld.

We get one shot at getting our nexus info correct. VA still manages to denigrate it and make it sound as if everyone the Vet asks to opine is medically challenged or has less than the requisite credentials to be probative. VA is fond of trotting out the talisman that their doctor has read the c-file and is far more informed. Here, Mr. Dwyer’s  c-file has “burned up” in the miraculous Friday the 13th Of July 1973 fire. Perhaps it didn’t and they just wanted to see if it would catch air.

DwyerM_09-2077

Capture

Sean Ravin, Esq.

Meet Meridyth Dwyer, ably represented by one Sean Ravin, Esq. who is no stranger to 625 Wagon Burner Lane NW. Ms. Dwyer has been flogging this dog since her beloved William moved on to the next plane of his existence in 1995. VA has just as vociferously been telling her to get lost that long. Everything she did was futile because VA suspected they could blow her off. They did for a number of years as you shall read. It took a sleuth like Sean to go in and disassemble it to find VA’s fatal flaws. When you deal with the Katzenjammer Kids at BVA, you never know what kind of justice they’ll pull out of their hats. In this case, the OGC was desperately trying to get Hagel to just shut up, quit finding more and more things wrong with the denial and let them get it back to the BVA judge for a fresh horse, a new rope and a tall tree to hang her from.

Mr. Dwyer filed in November 1994 and punched out four months later in March 1995. Mrs Dwyer promptly stepped in and picked up the reins within the magic year for DIC and accrued bennies.  In July 1997, she finally got a BVA hearing in front of a Judge. The claim stalled there until March 2004 for an IMO. Think about that, folks. Seven years and six months delay to have a learned hepatologist peruse the record and opine from Mt. Olympus. Most VA remands from the BVA come with a RFN codicil. Seems Ms. Dwyer wasn’t on the A-list. Perhaps Vets’ spouses don’t get this consideration. Imagine how long this would take at VARO Detroit.

The major error was the BVA twit, Mary Gallagher and her staff attorneys didn’t perform due diligence and make sure the IMO from Dr. Aytaman (of India) was properly constructed. We live in the benefit of the doubt world so a decision must rest on whether it is “at least as likely as not” (50.000000001%) that Mr. Dwyer contracted this from jetguns in the service. Dr. Aytaman, as most doctors are prone to do, just had to put his own personal imprimatur on it with wording of his own choice. He chose a much higher standard of “more likely than not” which is against the law at the VA– but only if you actually get caught trying to pull this stunt.

Dwyer BVA decision

However, the prevalence of [hepatitis C virus] infection in the 1950[s] was quite low, and the risk of nosocomial transmission from improperly sterilized reusable needles is also quite low. Therefore, we cannot say that the acquisition of [hepatitis C virus] in [Mr. Dwyer] is more likely than not related to vaccinations.

and

In this case, however, we cannot determine the origin of the [hepatitis C virus] infection, and therefore, we cannot say it is more likely than not that the patient died as a complication of illness acquired during military service.

Almost a year later, in January 2005, when called out on it, the good doctor asked for another 30 pieces of silver to correct it. The second time was no better than the first because doctors are soooooo pigheaded. They think regular rules do not apply to them.

the incidence of [hepatitis C virus] in [World War II] era or pre[-]Vietnam era veterans remains low and not higher than seen in general population. Review of available records does not allow us to conclude…

and

with the . . . records [available] to me hepatitis C infection during service is not very likely.“

alvin

VA hepatologists

I keep waiting for his pet chipmunks to pop up out of his pocket and begin singing about the nexus in three-part harmony somewhere here. The inclusion of numerous “us”s and “we”s leads me to believe he might have suffered a schizoaffective disorder and had some of his “friends” in the office with him as he composed these opuses. If I’d been old Sean, I’d have been asking for some clarification on Alvin’s, Simon’s and Theodore’s last names so he could bring them in for questioning. If it was a consensus nexus, it would only seem fair to round up the other suspects doctors who were party to it.

Nevertheless, many more errors were made but current CAVC rules say it only takes one good one like this to derail the denial. Meridyth and Sean get to head back to St. Petersburg and sharpen their pencils again. The VA may decide to throw in the towel but it looks iffy. My money is on the third coming of Dr. Aytaman for his “third time is the charm” nexus where he sounds it out with Phonics (and a lot of coaching from the OGC). You can almost hear Leigh Bradley reciting ” The rain in St. Petersburg at least as likely as not falls on the plain”.

It’s sad that we as Veterans  can’t have a waiver of endless review at the Court that forbids VA  to keep sending out to “fix” claims so they stay denied. I look forward to the day when Judge Meg Bartley gets to say “Well, I mighta remanded it for just the screwed up IMO, but when you dolts claimed that Miz Dwyer’s Registered Nurse didn’t have the benefit of perusing the c-file nor was she the treating physician, you stepped on your necktie. You already said Mr. Dwyer’s records were not available so what was so probative about what Dr. Aytaman read that the registered nurse didn’t, pray tell? And I don’t see any evidence that Dr. Aytaman ever set eyes on Mr. Dwyer while he walked among us so why would that entail dragging in the contention that the registered nurse was somehow less informed. She actually saw and talked to Mr. Sullivan before he passed.”

I personally would welcome a poker game at the CAVC where your two nexus letters beat a defective VA doctor’s febrile attempts at hornswogglology. In my mind, Dr. Aytaman and his singing chipmunks have demonstrated misfeasance by trying to appear objective too many times. Judge Hagel should have been allowed to say  “Sorry, Will. You can’t resurrect a fallen soufflé. Ain’t gonna happen”.

download (1)

Posted in CAvC HCV Ruling, DIC, HCV Health, HCV Risks (documented), Jetgun BvA Decisions, Jetgun Claims evidence, Nexus Information, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

VA FILINGS–MURPHY’S NEW LAW

Posted on March 31, 2015 by asknod

download (3)We are starting to see a new metric develop with staggering implications. For over thirty years, around the time of the VJRA of 1988, there has been a gradual increase in claims adjudication times that cannot be excused due to an ever-increasing influx of filings. My claims in 1989 took exactly three months to deny from July to October. I did get a hearing exam of sorts. I’d never had a hearing test where the tones were in excess of 100 decibels such that you could hear them for weeks afterwards. Could be that’s what caused my tinnitus.

In 1994, a mere five years later,  the delay had stretched to eight months from March to November. A SOC was only a month out from the filing of a NOD then. Interesting, huh?

Fast forward to 2007 and it had metastasized into sixteen months from Feb. 2007 to July 2008 just for a rating. VA needed another year for the SOC to deny my earlier effective date. Oddly, the VA kept dropping my claims after settling each one (of three). They granted the tinnitus in 2007 from 1994 but dropped the Hepatitis and Porphyria. Then they granted the Hepatitis and dropped the Porphyria. Finally, in October 2008, three days after I complained to Sen. Patty Murray, I got the Porphyria rating. That was still in the pre-VBMS electronic wunderworld we now inhabit.

We find ourselves in a vastly different landscape as of last Wednesday. We now can no longer grace our Regional Office with claims filed on Woody Woodpecker stationary and affix Tickle me Elmo stickers to our NODs and VA 9s for fear of obscuring important data for the word-searchable .PDFs. In fact, we have no access to justice other than via electronic portholes in Cheeseville, Wisconsin and Newnan’s own in Georgia. Woe betideth the WW2 or Korean Vet who was slow on the uptake to accept VR&E’s offer to retrain into computers a decade ago. Attaining service connection just became measurably more distant for them and for all who are computer challenged.

Access to the VA filing System

Actual rendition of reputed service rep after POA signing

Actual photo of reputed service rep after POA signing

The break point in this new world order is access. Many of you with little or no acumen in the legal arena are going to be left to the devices of Veterans Service Organizations with less than stellar service representatives to “defend” you. Defend is a generous attempt to infuse a transitive ideal into a notably intransitive  VSO verb. Most VSOs feel their job has been essentially completed after obtaining the POA. If you are lucky, you can extricate a filing on the new VA 21-526-ez short form from them before they evaporate into thin air before your very eyes. After that, they transform into magic Unicorns never to be seen again. Actually, I take that back. Lori and Tom’s American Legion rep. was like a bad penny. He kept calling up to arrange a photo shoot for Tom’s big 250% win even though he wouldn’t have recognized them if they held him up at gunpoint in a brightly lit alleyway. Granted, it had been seven long years since he had last seen them and quit taking their phone calls but what they hey? He did have a legitimate POA and, in his opinion,  was entitled to his photo.

This is what provokes my gallivanting romp into the “what ifs” of the New Frontier of VA claims. What if you file via a VSO and cannot reconnect with them as the claim progresses? Pretty dumb question. We’ve been faced with that conundrum for over fifty years. How about what happens when you get the Big Brown Envelope with the Big Denial and you need good advice on how/whether to proceed?  For most, the party ends here.

The Attorney Paradigm

In 2007, we were given what most Veterans consider a Godsend. At the first moment we hear or read the words ” Dear Johnny Vet, we are so sorry to inform you…”. we can pick up the phone and begin a quest for real legal help. Real inasmuch as the person you are calling will have a) a vested interest in the outcome, and b) the legal training to actually do the job of helping you as s/he was hired to do.

Every day, I receive emails from Vets bemoaning the inaccessibility to their VSO rep. -let alone the indifference and ennui. Most Vets are lucky to see their rep. more than four times in the course of the claim- the filing/POA, the NOD, a wasted DRO review/hearing and, if s/he is still employed there five years later, the VA 9 appeal. From there on out, their individual rep. is no longer in the loop and merely awaiting his fifteen minutes of Andy Warhol fame should you prevail at the BVA.  Apparently, actual large dollar wins are so rare at American Legion Posts that they form a posse and mount up in search of you for the photo op. Their trophy walls must be naked. Pity the AmLeg Post whose successful service rep retires and takes his accolades home with him.

Which brings us to last Wednesday’s Thomas Murphy moment when he announced that henceforth, only electronic filings will be permitted. This was a sad day for older Vets. They now find themselves at the mercy of a system they are ill-equipped to tackle. Worse, their only recourse is a dying art form of VSO representative which is even more clueless than his forbears of the 1960s-2000s era. Murphy’s new law dictates that only electronic filings will be accepted. We can see the writing on the wall. I am now holding impromptu classes via email with a number of wives of extremely disabled Vets from my war. All of them have been forced to learn the ins and outs of Special Monthly Compensation regulations to navigate these treacherous waters because VSO reps have no clue what they are about. The absolute worst example is the gal who went in with all the ammo pushing her spouse in a wheelchair before her. Unarguably, he qualifies for a bump from SMC L to M due solely to his two 100% ratings for disparate disabilities. Her new service rep had to call up his district supervisor at the Seattle VSO office to ask how to proceed. I gave Sarah the pertinent regulation ( 38 CFR § 3.350(f)(4) to cite to. The rep couldn’t find it so she pointed it out to him in his own manual. Fortunately, they had an office copy to cite to even though it was outdated (2009). Get it through your heads, folks. This is the legal help you are depending on and what VA is attempting foist off on you as legitimate “help”.

NO SHIRTS, NO SHOES, NO CHARTER-NO DICE

Sadly, we are encountering a new facet of VSO desperation. I also get nasty letters from VSO service reps that insist if it were not for them, many Vets would never get anything. Worse, they insist their representation is free and paying a lawyer 20% is a fool’s errand. Let’s examine the VSO charter more closely. Charters to exist and represent Veterans are granted by Congress with a special oversight by the VA. In other words, if you don’t play by VA’s rules, you don’t play at all. If you are adversarial and represent the Veteran’s best interests, you are not a VA team player. In VA’s eyes, a charter grants you the right to represent the VA’s best interests to the detriment of those you seek to help. This is ass-backwards in my book. Do you want the lawyer representing your opponent to represent you as well? Doesn’t the term “conflict of interest” ever float to the top of this conversation? Worse, when you get to the BVA and you have one last opportunity to salvage this, do you want more of the same Dogpatch Justice Department pleading futilely for the benefit of the doubt? Hell, no. You want Clarence Darrow in the driver’s seat or at least O.J.’s dream team.

Many fail to comprehend that the BVA is the last stop for getting all the evidence in that your vaunted VSO rep forgot to mention you needed. You basically have one last chance to fix this before the USS Claims Boat sinks with your VSO giving you nothing more than attaboys and slaps on the back.

Real Legal Help

The moment the VA says “no” should be the galvanizing moment if you hope to prevail. How many times have I pointed out the foolish argument that you are going to win nothing if you cannot put up a viable legal defense? How many times have I heard the Vet’s refrain ” My rep says he can win it and I would be a fool to give away 20% of my win when he can do it for free?” Well, kids, if 85% of you lose using this “free” system, I’d say there’s a built-in “lose” clause everyone is overlooking. One way or another, if you use VSOs and lose at the BVA, you are still forced to use that nasty lawyer they abhor who will be standing there demanding the same 20% to bail your ass out of jail-assuming s/he can.

As I pointed out above, if your “free” Crackerjack service rep manages to drive your claims boat up on the rocks, it can be almost impossible to salvage it. Evidence is the name of the game and lawyers recognize that. Sadly, VSOs don’t or we’d see some different outcomes with noticeably different statistics on the board. I can’t count the number of you who arrive here with that “Nexus? what is this nexus thing you keep alluding to? How come my DAV rep hasn’t mentioned it? Can I win without it?”

I don’t expect to convince all of you to seek real legal help. I merely point out the need for a real attorney who can defend you against the 500 who will be arrayed against you in this process. No attorney pays me to speak these words. It would be against the law anyway for me to receive remuneration. My goal is to inform. If possible, I try to teach how to win before you are faced with the need to even contemplate the necessity for an attorney. If and when that day arrives, you must set aside your mental reservations about what constitutes “free” when the spectre of winning is jeopardized.

Giving up 20% of your instant win is peanuts if you are in this for the long haul. The obverse of this enigma is 0% of nothing- but your rep will console you with the fact that it was a “free” nothing.  On the other hand, after this 20% tithe, you can continue to win every month afterwards. In fact, you can expand on your winnings at a later date by filing for periodic increases. The most important facet is that once you are “inside the wire” your claims for increase are immeasurably easier to attain as opposed to that first finding of service connection. The need for an attorney at this juncture is quite obviously not as critical. Your medical evidence is your magic wand.

Lastly, I admonish Vets to do what thousands of Social Security Lotto seekers do. After their first denial, assuming arguendo that they are indeed disabled, they enlist the services of a Social Security lawyer who is well-versed in these things. And wonder of wonders, guess how much they charge for this service? If you find one who will do it for 20%. I’ll gladly go out and buy a hat and eat it. You get what you pay for in this endeavor. If the law dog doesn’t prevail, he gets nothing. That’s a mighty strong incentive to win. Unfortunately, it’s also an incentive to take a sure win and leave questionable ones behind and the Vet’s legal needs unmet. Such is justice. Most VA lawyers are far more compassionate-almost to a fault. Certainly, there are some claims that are unsalvageable. I don’t argue otherwise. My Win or Die philosophy refuses to acknowledge that, however.

Fortunately for us, the twin life preservers of NOVA and the NVLSP attorneys are there for all of us who arrive at the Court pro se. Since none of the VSOs have staff attorneys for this purpose, it guarantees all of you will arrive pro se. Many make the choice to get real attorneys committed to helping them live to fight another day. In a more perfect world, we wouldn’t need them. But then, in a truly Veteran-friendly, nonadversarial environment where the benefit of the doubt is accorded to all of us, none should be required.  The aforementioned Attorneys do this for free. The are required by law to donate 30 hours to pro bono causes and many go far beyond that. Try finding an ambulance chaser to do it.

So when that VSO rep looks across the desk at you and sneers “You’re going to throw away 20% of your win? Are you mad?”, look him back in the eye and say “Unless you have a Juris Doctorate hiding up your sleeve and have been keeping it a deep, dark secret, what makes you so sure you’ll win? Statistically, for the last one hundred years,  you and your ilk have been batting a consistent .150. Why the sudden exuberance and confidence?”

Win or Die VA

Please. Don’t leave this job to your widow. Be responsible. Use your head for more than a hat rack. If air support is available, call it in. Don’t be macho and think you and your DAV dream team are going to kick ass and take names.

Posted in CAVC Knowledge, Electronic Filing of Evidence, Food for thought, KP Veterans, Lawyering Up, Nexus Information, Tips and Tricks, VA BACKLOG, vA news, vARO Decisions, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 4 Comments

ILP–LZ GOLF HOTEL 1- SPRING

Posted on March 29, 2015 by asknod
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Strawberry World 2015

When I had my construction company, each house we built had a designator to identify it for billing paperwork. I found it much easier to remember a letter/number combo rather than assign a PO to everything. Hence we had Palmer Lake 22 (PL22), Lake Holiday 12 (LH12)  or my own house GH-1. GH stood for Graham/Harrell for Cupcake’s parents. Hence when communicating expenditures from the field with the poor cel phone service, we often used the military phonetics to eliminate error. Since we built in many lake communities, this was even more helpful. To this day, we still refer to home as Golf Hotel. I’d prefer Strawberry Fields but that one is already taken.

One of the eternal joys of spring is the rebirth of life and, of course, witnessing the inexorable onset of more strawberries than can be imagined-let alone eaten. I try to get out and shoot a bit of it all and to let my VA ILP minder Kris know that a) I have not given up on my quest for my greenhouse and b) that I still am involved in growing.

Here are some lovely shots of GH-1 and the ungodly early spring we are again encountering. Strawberries will be ripening in a month or so with the raspberries right behind. It already sounds like an airport with B-52 stumblebees and Mason Orchard reconnaissance bee patrols in full swing. The honey bees are slow to awake this spring.

Lettuce in what VA refers to as one of my greenhouses

Lettuce in what VA refers to as one of my greenhouses

"Purple Heart" broccoli

“Purple Heart” broccoli

Red pear blooms

Red pear blooms

Royal Anne Cherry blossoms

Royal Anne Cherry blossoms

Peach blossoms

Peach blossoms

Blue flowers

Blue flowers.I’m sure they have a name but if you can’t eat them they don’t need a name.

Greenhouse starts. So much to grow, so little space.

Greenhouse starts. So much to grow, so little space.

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New sign at entrance to warn Jehovah Witnesses about Ambush.

 

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Ambush the untrustworthy feral kitty

 

Posted in Food for the soul, Independent Living Program | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments

Weekend photos to enjoy

Posted on March 29, 2015 by Laura
germ

Army : A U.S. Soldier assigned to 1st Battalion, 10th Special Forces Group (Airborne) salutes his fellow Soldiers while jumping out of a C-130 Hercules aircraft over a drop zone in Germany, Feb. 24, 2015. (U.S. Army photo by Visual Information Specialist Jason Johnston/Released)

 

coast

COAST GUARD: Ice Prep Crews from Air Station Traverse City, Michigan, measure ice thickness in preparation for the Great Lakes shipping season and the opening of the Soo Locks in Lake Superior March 17, 2015. Coast Guard crews conduct ice breaking operations throughout the Great Lakes and are responsible for ensuring open shipping lanes prior to lock opening. U.S. Coast Guard photo.

 

marine

MARINES  Blowing Smoke A Marine engages targets from a UH-1Y Venom with Marine Medium Tiltrotor Squadron 161, 15th Marine Expeditionary Unit, during Composite Training Unit Exercise (COMPTUEX) above San Clemente Island, California, March 20, 2015. COMPTUEX gives the Marines of VMM-161 the opportunity to practice real-world scenarios and hone their skill sets. (U.S. Marine Corps photo by Sgt. Jamean Berry/Released)

air force

U.S. Air Force F-16 Fighting Falcon from the 14th Fighter Squadron flies along the coastline of Guam before joining on an aircraft formation at Cope North 15, Feb. 17, 2015. Through training exercises like Exercise Cope North 15, the U.S., Japan and Australia air forces develop combat capabilities, enhancing air superiority, electronic warfare, air interdiction, tactical airlift and aerial refueling. (U.S. Air Force photo by Tech. Sgt. Jason Robertson/Released)

 

arabian

NAVY:  USS Carl Vinson conducts a replenishment. ARABIAN GULF (Feb. 18, 2015) Boatswain’s Mate 2nd Class Timmothy Annoni signals fuel probe seats on a sponson aboard the aircraft carrier USS Carl Vinson (CVN 70) during a replenishment-at-sea with the Military Sealift Command fleet replenishment oiler USNS Walter S. Diehl (T-AO 193). Carl Vinson is deployed in the U.S. 5th Fleet area of responsibility supporting Operation Inherent Resolve, strike operations in Iraq and Syria as directed, maritime security operations, and theater security cooperation efforts in the region. (U.S. Navy photo by Mass Communication Specialist 2nd Class Scott Fenaroli/Released)

 So proud of you.  

 

Posted in Future Veterans | Tagged , , , , , , , , , , , , | 2 Comments

VA CHANGES 40-MILE RULE

Posted on March 24, 2015 by asknod

CaptureSecretary Bob announced today they will be changing the unique language that measured the distance from a Veteran’s house to the nearest VA facility as the crow flies and in nautical miles. Since odometers measure it in statute miles, this has caused endless confusion and many is the Vet who paid to have his odometer checked for accuracy.

As some of you are wont to say “Get the f*** outta here!”, I will voice your incredulity for you. One would almost have to ask why anyone would measure miles in any format other than the standard, accepted practice. Here’s the explanation from none other than the whizbang who ordered it up.

“We’ve determined that changing the distance calculation will help ensure more veterans have access to care when and where they want it,” Veterans Affairs Secretary Robert McDonald said in a statement. The change will be unveiled at a hearing Tuesday before the Senate Veterans Affairs Committee.

How ’bout them apples? VA working for us rather than against us. I told you all that they are nonadversarial and Veteran friendly but no one would believe me. I stand vindicated.

I do love the aplomb with which ol’ Bob can stand there in front of the press and say something inane like:

McDonald told senators last month that he was open to changes in the way the 40-mile rule is interpreted, but he and other VA officials stressed that relaxing the rule’s requirements was likely to result in higher costs for the program. 

Hellooooooooooo? Enacting the program in the first place was a thorn in the VA’s bonus program from the get go. Having to actually measure time and distance the way all of us do was going to be more expensive? Who do they hire to research these weighty subjects? The same gurus who determined how many shekels the new Denver VAMC was gonna run? And we wonder why it takes two years to do a claim for a burial flag?

Capture

Benefits may appear larger than they are in the mirror (but certainly no closer).

Here’s a precursor to this post in the same vein.

 

Posted in Medical News, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , , , , | 3 Comments

THE CIGARETTE POLICE

Posted on March 24, 2015 by asknod

images (1)I know it sounds pedantic in this day and age to be discussing the politically correct folks out there who give you the hairy eyeball and the “talk” about smoking close to entrances to restaurants. Some high-minded individual who has never tasted tobacco will always be the first to inveigh on its evils. Journey back with me to the glorious age before it was frowned upon everywhere. My belief is it began at Disney World/Disneyland and I have irrefutable proof of it.

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Disney’s SS. VOMIT (circa 1996)

Cupcake, Buckwheat Junior and I set sail on the Great Big Bacation (as he called it) in early summer of 1996. #1 son had seen Disney World in 1991 when he was three, but for the most part, only from a stroller. This trip was to encompass the new Disney Cruise to the Bahamas and then a week at the Park. We especially chose this period as there are no hurricanes at that time of year. Unfortunately, “tropical depressions” do occur and the difference is measured in wind speed. A depression is measured as “less than 79 MPH”. Even though Disney’s boat was laid over at a 30° list and passengers were hurling chunks in the hallways, we were assured it was a minor perturbation and we were in no danger but to watch where we stepped. This was the first instance I ever saw where any ship’s crew smartly taped barf bags to hallway railings for convenience’ sake. Hell, Carnival Cruises could learn from these guys.

After returning ashore from the Bahamas Triangle, we proceeded to Kissimee and Terra Firma. I enjoy reading the newspaper in the morning while performing my ablutions and back in those days, I smoked. What could be more natural than a cup of coffee, a compendium of the previous day’s political foibles and a smoke? The only thing missing was an ashtray. After breakfast each day, we’d return to the room to gather our cameras, sunscreen and snacks for the day’s expedition. As usual, the urge to void would strike about an hour later into the morning walk. Since Mr. Disney was a far thinker, there were numerous restrooms available along any route one took.

On the first day, I announced I would be utilizing one of Walt’s outstanding facilities and asked my family to grant me my usual 15 minutes of newspaper/ tobacco appreciation time. Cupcake pointed out the absolutely ginormous sign on the entrance that forbade smoking in the boy’s room and suggested it might be grounds for ejection from Epcot Center if I disobeyed. In what is now immortalized in the Graham history books, I turned to Cupcake and Buckwheat junior and opined in the most sarcastic tone I could summons ” What’s going to happen if I do? You think the cigarette police are going to descend on the outhouse and drag me out in handcuffs?”

downloadI settled in to a nicely appointed, clean stall, lit up and proceeded to immerse myself in the National scene section. In less than five minutes, I heard much commotion and a faint alarm in the distance. Another father and his son were in the restroom and the little boy’s voice sounded very excited: “Daddy, what’s the red flashing light outside on the roof mean?” Daddy averred it might have something to do with the fetid smell of burnt tobacco emanating from a stall near mine. I hastily extinguished the cigarette and made my exit as surreptitiously as possible. Too late. Two uniformed security guards appeared out of nowhere and blocked me as I attempted a hasty retreat. By this time I was the sole denizen left in the restroom. Even a rent-a-cop could sound this one out.

“Excuse me, sir but were you smoking in here?” they both asked simultaneously in unison. I was going to lie but the perfectly synchronized delivery of the question took me aback. I sheepishly acknowledged my behaviour  and feigned ignorance of their policy. This is a character fault I suffer from along with Tourette’s syndrome. It did come out with perfect aplomb though. ” Why yes, officer. Is there some stricture against the practice in here?” Following an in-depth briefing of the evils of tobacco and having the sign pointed out to me, I promised never to violate their Holy Rules again. Only then did Cop #1 insert his Magic Kingdom key into the wall receptacle and turned off the flashing red light and silence the alarm.  I walked back out into the sunny morning escorted by Disney’s finest (sans handcuffs) to greet Cupcake and Buckwheat in paroxysms of laughter. For the next five years, they would look at each other occasionally and murmur “cigarette police” and begin laughing all over. This grows old in a hurry but gives them pleasure to this day.

Consequently, life has been hell for me since 1996. Each and every time I voice any sarcastic, offhand remark that might imply there can’t possibly be a first responder waiting in the wings to arrest me for some minor infraction, I am reminded anew of the Disney malapropism. This often happens when I’m 13 mph over the speed limit and get a friendly admonition from Cupcake about it. Getting the ticket isn’t so hard to swallow. Listening to the “I thought that experience with the cigarette police in Florida would have cured you of this but I was sadly mistaken” wears on my nerves. From my worldly travels, I know it is illegal to kill your spouse in all 50 states. We also know the other side of this equation. My wife can be going 95 in a 25 MPH school zone when a cop pulls her over. With nothing more than a smile, long eyelashes and cleavage, she can, with a straight face, say ” Why no, officer. I had nooooo idea I was speeding. I’m so sorry. Lock me up. I’m guilty.” And they never do. I am not allowed to discuss the rare times she has received tickets.

I hate that when that happens. What’s more, I blame it all on the military. If cigarettes hadn’t been priced at the ridiculously low price of 17¢ a pack when I arrived in Southeast Asia for the War Games, I never would have suffered this indignity. It’s not my fault.

Posted in Humor | Tagged , , , , , , , , | 3 Comments

CAVC–BIRTH OF A WRIT-ACT III SCENE 9-WELCOME TO THE HOTEL CALIFORNIA (AGAIN).

Posted on March 22, 2015 by asknod

vetcourtappealspromoAs some pointed out, going down for double can be a dicey enterprise. Splitting up the cards into two bets isn’t the best way to do it either.  It also appears this is Judge Davis’ way of saying get lost. We knew that the moment we drew the short judge straw. I’m 0-2 with him (see also CAVC #10-300). This case has been banging around that long. God forbid I draw him if I have to go up yet again. Yep. The dreaded hamster wheel is still my nemesis.

UPDATED——————-March 23, 2015—————————————–

Hotel California

Well, pilgrims. Let’s do an inventory of what was asked for and what was granted. It could be that already having a 100% schedular rating  inured Davis to my request for another. Here’s the inventory.

Grahambo’s Extraordinary Denial

1) Topping the wish list was a 100% schedular rating for Porphyria Cutanea Tarda analogous to dialysis as the two processes (phlebotomy and dialysis) are similar in that they involve needles, veins and purifying the blood. In any event, the aim was to get into the SMC S zone. I was 40%+10%= 50%. I needed a 20% kicker to get there.

-Outcome- VA met me halfway and upped the 40% rating to 60% and restored the 10% (CUE) clawback of the skin rating. 60% +10% = 60%. My combined total is now 170% (100% + 60% + 10% +10%).

download (2)2) entitlement to SMC-S from filing date of Porphyria on 3/31/1994

-Outcome- Granted in full. This was where the moneybags were hidden and the primary financial reason LawBob Squarepants liked this vehicle. He’s remodeling his new hacienda and needed two new furnaces and heat pumps. I needed closure. Problem solved.

3) Finish my claims for Cryoglobulinemia and Fibromyalgia filed October 1, 2012 which were accidentally closed out or disremembered for the last two years.

-Outcome- claims decided in my favor and C&P was accomplished March 6th, 2015. Awaiting ratings decision. This was my back door plan for SMC S. I don’t need it now but VA is stuck on stupid and continues to pursue rating it. That will add to the 170% which is asinine and meaningless towards getting SMC S now.

4) Certify claim for ILP greenhouse which has grown roots at Seattle’s VR&E office since November 2012 NOD. Advancement on the docket was asked for as well.

-Outcome- Claim certified, Form 8 issued and Travel Board Hearing is in the slot awaiting a date. Advancement is doubtful. I might win before I die if they advance it. They simply can’t have that.

VA 8

Actual photo of a real Form 8 which we so frequently talk about. Rarer than hen’s teeth. Handle with care. Evaporates when exposed to light. For the sharp-eyed, notice the backdating trick Coach Cherryl Anne Mackey-Rivas uses from 3/27/15 to 2/27/15. Apparently, Decision Review Officers have the authority to change dates. They were in such a rush to get this back to the Court that they didn’t bother to fill out a new one. Badges? They don’t need no stinkin’ badges.

5) Convert my 12 volume c-file into VBMS electronic word-searchable .PDF  pronto so I can fight my  ILP claims.

download-Outcome- We’ll convert your files when we’re good and ready to. Can you hear this, dude?>>>>

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<<<<<<< If you can’t hear, let me turn it up for you, bud. Your c-file isn’t “ripe” yet. From now on, it’s “okay” for VA to tell Veterans that they are no longer allowed to have the one document that might help them win their claims! Did I just hear due process being strangled? We at asknod call this the “Marie Antoinette” syndrome VA always deploys (using the Court as their mouthpiece) i.e. “Let them eat cake until we get around to making a copy of the file”. The Court takes the broad, general view that it isn’t really denial so much as delay. Once VA is allowed to talk about delay, two and one half to three years would be the expected  “edge of outside parameters” of good taste.

6) Make sure VLJ Hindin never touches my claims file ever again.

-Outcome- Go piss up a rope. Just to spite you, we’re gonna make you appeal both the 60% for the Porphyria and the ILP greenhouse. We may even assign Hindin to your appeal again- because  Davis didn’t say we couldn’t. Therefore we can. Ah ha ha ha ha.

In sum, for a $50 filing fee and some heavy duty postage, I was able to accomplish in two months and two weeks what had heretofore taken me 21 years, 11 months and 21 days to accomplish. I think that is the best investment in my life short of hornswoggling Cupcake into marrying me and producing my firstborn (and only) male child.

On the other hand, two disturbing specters have now raised their heads. I speak of the above Cushman violation-but worse. We don’t have to alter the records. In fact, we don’t even have to allow discovery and let you poor Vets in on what we have. Blatant, overt adversarial displays of temper, cast in stone in a BVA decision that sarcastically opined but that for lack of a shoe, the battle was lost. The Vet won by chicanery and bending VA’s lenient rules into tortured meanings never before elicited. Indeed, the VA Secretary’s regulations often segue into interpretations the Congress never intended. Where else but at the VA would it behoove you to saw off a leg to obtain SMC L by chicanery? Fortunately, alert raters at VAROs steadfastly stand guard against this Veteran proclivity.

I will have to appeal the 60% Porphyria rating up to the BVA. Childsplay. I feel confident this will win. If VA gave away the whole farm in one fell swoop every time we bitched, the rest of you might get the idea they’re getting soft. They can’t have that. The resultant rush to the benefits trough would be financially catastrophic for bonuses. Thus, some time in 2017 or so, a VLJ will state the obvious that a doctor saying totally disabled is… gosh…just that. Duh? Or ten days before the VLJ rules, VA will grant the 100%. Either way, they will make me wait. I”m pretty sure I have now officially been declared persona non grata and taken off Secretary Bob’s Christmas Card list.

The centerpiece jewel in all this is the ILP claim. All the rest was just window dressing. I know some of you choke at the thought of $70,000.00 being window dressing but let’s be frank. The Independent Living Program is dying. It’s very important and worthy of a strong defense. There is no good case law on it of mention at the BVA. If it’s denied at the Board, we get to go up to the Big House at 625 Native American Avenue NW and open up the biggest coverup in VA’s storied history of same. ILP is going to become the next scandal if I have my way. Nobody in Wyoming has ever heard of it let alone been granted an ILP. Same for the folks in Manila. White River Junction has been AWOL on it since 2005. Check it out:

VR-E ILP states

vre2vr3vr4

vr6

VA continues to remodel these numbers in the totals above. Congress authorized 2,700 lotto tickets to this but unfortunately the people giving the tickets away appear to be unable to find any of us and ignore the ones like me who try to redeem our tickets. Your odds of winning in Wyoming are 0 in 1,000,000,000,000,000,000.00 as you can see.

VR&E Officers consider ILP to be a giveaway of valuable vocational assets to a bunch of undeserving whiners who just happen to have a shit ton of severe disabilities like PTSD, missing arms, legs or liverboxes. VA’s take on all this is to do intake all spring and summer and wait for September. That is the cutoff date for allocation of ILP spending. If they didn’t use it by then, it reverts back to the general fund for use “elsewhere”. Elsewhere has been discovered to include Kareoke parties in Orlando with their sidekicks in the HR crew. Oddly, it happens every year ( the misapplication of the funds-I think the party locations change though). A $25,000.00 allocation available for each one of you who applies is withheld, reviewed or artifically denied until it can be redirected. This authority emanates not from DC’s Central Office of VR&E but at the local level. Yeppers. The local offices have no oversight from DC. Each are mini-fiefdoms and the whims of the Head VR&E Officer are dictum. That is the battle we hope to enjoin. Seems if you’re going to deceive and deny Vets this valuable asset, you probably shouldn’t be keeping a record of it that clearly demonstrates it’s being “downsized”. Can it be our paraplegic/severely disabled Veteran numbers have dramatically dropped after a 15-year war? Statistics like those above do not lie.

Davis was not expected to become Solomon and make weighty decisions on PCT ratings. We certainly hoped he would but the Force is weak in that one. Likewise, I don’t see where he could have thrown his weight around on the ILP either. VA chieu hoi’d too quickly before he could answer that. The matter of getting a slot for the Travel Board hearing sooner, rather than later, is also “iffy” and VA mentions it in passing. Often, that is the same as not mentioning it at all. We shall see.

The battle lines will be drawn around the Presumption of Regularity on the ILP. VA took an interesting path to denial at each stage of the process heading to appeal. The first error was to blatantly declare in writing that there is no “avocational” in VR&E. Every grant is aimed toward restoring the Vet to work. The boys at VR&E 346 (Seattle) forgot to read §21.160 or consult VAOPGCPREC 34-97. The next mistake was to say I had three greenhouses. I don’t.  Next was the “He’s trying to avoid buying veggies by growing them”. The last was the crowning touch. They simply waited for the regulation to change last March 31, 2014 and issued the SSOC May 14th incorporating the brand new regs. Boy Howdy, that’s against the law in 38 states and all 58 VAROs. This provokes the thought of just how tightly wrapped these folk are. If they don’t even know their own regulations and are incapable of interpreting the M 28, do they have a checklist to get their underwear on facing front every morning (yellow in front/brown in back ⇒ check ⇐)? The Presumption of Regularity says they know what they are doing and do it well. If you rebut that by saying what appears irregular-is indeed irregular, then the decisions at the RO were fatally flawed.

§19.29 says a SOC or SSOC has to clearly and unequivocally evince reasons and bases for a denial. It must be clear to the claimant what is afoot and why. Merely saying “Mon, we be castin’ dem bones and you be losin’.” isn’t a valid reason to appeal from. If there is no nuanced discussion at the VARO of the severity of the disabilities, how is the Vet to know how to proceed with a denial? Absent a real C&P for ILP, your decision is based on whether the VR&E guy is having a bad hair day. Unfortunately, there are no good hair days at Seattle so their ILP numbers are sinking much like their sister ROs across the fruited plain.

By signing the waiver of review in the first instance and avoiding a remand to readjudicate, the rebuttal of the Presumption that Seattle knows what they are doing is complete i.e. they don’t. Whether s/he wants to, the VLJ is going to have an ILP Tarbaby stuck to her/him and have to rule up or down. My ILP is a case study in how not to do one. They have variously denied on it using four different arguments-each distinctly different from the one before. It’s beginning to resemble a “whack a mole” game at the county fair. Even worse, there is no supporting rationale for the denials from which to appeal. Bald assertions with no supporting rationale are not probative evidence and therefore not entitled to deference in a rating decision. Absent any mention of disabilities and having considered them, the decision is fatally flawed.

We aim to fix this. ILP is a valuable asset that looks like it got a  crew-cut with a weedeater over the years.  Very little of substance is left there now and any benefits at all hinge on the whims of the local VR&E Officer at your RO. Some are amenable to reality. Others consider it an extinct dinosaur but occasionally grant grab bars and shoe horns. We know some in the R1/R2 crowd are getting HISA and other grants but they are few and far between, too.  Little, if any, entail avocational pursuits such as an Ipad or similar items. Considering the enormity of severe disability and the prevalence these days of social media, Ianythings should be being granted wholesale to help our Vets unwind from the Afraq hostilities. This niggardly approach to ILP grants with Mardi Gras beads must be halted. A rollback to the eighties back to true avocational pursuits for those of us less abled but still desirous of accomplishing something of substance is what is called for. Congress appropriates the funds. VA surreptitiously diverts them.

I, for one, look forward to having fellow disabled Veterans gather here to engage in horticultural pursuits should I win. If it gets you off your ass and gives you the will to be more than a mushroom in Fort Livingroom, why try to curtail the behaviour? Why not encourage it? Unless they simply don’t give a hoot about us. Perish the thought.

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P.P.S. On September 4th, 2015, VA granted 100 % for my porphyria cutanea tarda and granted my greenhouse request.

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1538035.txt

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp15/Files5/1538123.txt

 

 

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