FRIENDLY FIRE IN 1967 FINALLY RESULTS IN BELATED PURPLE HEART AWARDS

downloadI’m not sure why it is that the US Government cannot bring itself to honor those it puts in harm’s way until forced to by the court of public opinion or shamed into it. Our erstwhile member, Veteran Butch Long, whom we advocated for, and finally succeeded, also endured this interminable wait.

Maple Syrup Frank of the miniature state of Vermont, sends us this interesting tidbit. Marines at an adjacent firebase north of Da Nang inadvertently shot down a Chinook CH-46 with four aboard after their resupply mission to an LZ. I suppose it could also be said that the chopper crew might have run into the 155 howitzer round. However, there is no confirmation yet that Brian Williams was in the Chinook right behind it and hit by shrapnel from the artillery round. You know how those pseudo -combat Marine types are always chasing a headline and looking for medals. In this case, the Marine hierarchy decided to cover up what was undoubtedly going to be some bad PR at the time by simply denying the awards. To continue to do so in the ensuing years long after the Southeast Asia War Games concluded was simply over the top. REMFs often get that feeling of dread and are paralyzed from the neck up when faced with these decisions decades later. The tired axiom of “let sleeping dogs lie” seems to be their motto.

Ladies and Gentlemen, please belatedly welcome (clockwise from top left) Dan Jones, Raymond W. Templeton, Glenn J. Zamorski and Conrad Lerman to the pantheon of Purple Heart recipients long overdue.

14PURPLEHEART-blog427

With the decision in Ft. Hood, Texas to award Purple Hearts to all the wounded and dead at the hands of the crazy raghead Major, it only seems natural that this 48-year holdover be settled and the debt to America’s fallen paid in full. Actually, in 1993, Congress opted to do away with this and award the medal regardless of whose bullets were involved. How in good conscience could you put troops in harm’s way in any conflict (or war) and deny them a medal based on it being the wrong flavor of ordnance fired by the wrong party? From my own personal experience, I have observed that bullets are notorious for being equal opportunity seekers. Some Poohbah figured this out in Iraqistan and made the magnanimous gesture of mis-awarding it (in the Military’s tortured mind) while others were denied under like circumstances.

The downside is that eventually Purple Hearts will be awarded for ingrown toenail owies that occur in near-combat situations. I can’t say Ft. Hood was a combat environment no matter how much it might of felt like it. Make no mistake. I do not imply that the medal should or should not have been awarded to those wounded and killed by Major Hassan. I merely point out the circumstances (non-combat) do not remotely qualify them for the award. By this metric, the medal could, in the future, lose any intrinsic meaning of the sacrifice involved prior to the actual wound. This disturbs me. The award of the medal had gradually been relaxed in a meaningful manner and the award for friendly fire was well within the parameters of what most would constitute a logical interpretation. In the heat of combat, bad things happen to good folks. When we got a FRAG order for TIC (troops in contact) and rushed to a beleaguered Lima Site, we tried to be as careful as possible when marking it for the airstrike. Napalm respects no one-friend or foe. Shit happens. To deny a medal simply because the wrong troops administered the ordnance is certainly not what Gen. George Washington envisioned when he created the medal.

021313-dist-warfare-medal-800-300x253As we know Secretary Chuck Hagel was faced with this dilemma in the formative stages of the new medal for drone operators which would have ranked above a Bronze Star. Would choking on M&Ms or spilling Mountain Dew on your tunic further entitle you to a V for Valor as well? You can see where I am heading with this. A Purple Heart implies much more than the cloth and the color. It is (or used to be) testimony to bravery under fire much like a Combat Infantry Badge where you have the misfortune to incur a permanent mental reminder of your encounter rather than a mere stain on your uniform.

Constantly moving the goal posts for any medal criteria cheapens them for all those who came before. Perhaps it would be smarter to create a “friendly fire” medal for those rare folks who encounter this at the Fort Hoods across the fruited plain. Mayhap even a similar (or the same) medal for those near-combat experiences in the rear echelons like Kuwait where the potential, imminent threat of violence was ever-present from… well…from someone or something. Perhaps food poisoning from MREs?  I have read there are cases of Vets filing for PTSD in these circumstances. I make no judgement on their choice to file or their belief they were irreparably and permanently injured/harmed. I merely employ my “Devil’s advocate” argument to bring it up for discussion.

Medals, as a whole, are a throwback to chivalry, knighthood and honor in battle. They have gradually segued into somewhat of a necessity. Anyone who was near the conflict suddenly is awarded a medal simply for being in the vicinity. That progressed into numerous “campaign ribbons” from various countries on top of America’s recognition. Thus Vietnam Veterans sport the VSM, the VCM and the Cross of Gallantry. Those who fought in Europe in WW2 were awarded the ETO campaign as well as a Victory in Europe medal in addition to any awards for individual bravery. I call this the “Everybody was impacted” syndrome. It must be good for morale. Conversely, I cannot say the prospect of a MOH for jumping on a hand grenade would be an inducement to do so. Everyone’s hero meter has a different setting. In Vietnam, I witnessed the phenomenon of both troops running towards the sound of gunfire as well as the obverse.

This approach to medals eerily reminds me of the proclivity among youth sports leagues nowadays. In the nineties, my son played soccer. One year, they ceased awarding trophies to only the most successful team at the end of the season. In lieu of this, all teams were given the same size trophy as a “participant” so Jane’s and Johnny’s feelings wouldn’t be irreparably damaged and their psyche forever rent asunder by the failure to be a winner. What the hey? Everyone’s a winner. 14 missions on the soccer field and a campaign medal for participation.  Onward for St. George! God sends the Right!

Mind you, this is my opinion. I come from the old world metric that says a military medal should be a reward for a given action- especially a heroic one. By rights, the more heroic the action, the higher the award should be. At this rate, the town of Sandy Hook, Connecticut will be awarding Medals of Honor for the poor children struck down by that insane Lanza fellow. Eventually, every town in America will be striking their own for their citizens and policemen. Wait. They already do. Hell, many of you may have already won an award and are simply unaware of it.

Congressional Pain in the Ass award

 

 

Posted in All about Veterans, Inspirational Veterans, Milestones, Vietnam War history | Tagged , , , , , , , , , , , , , , | 3 Comments

VA Office of Research and Development (ORD)

Hansel_und_Gretel_(1)

Image: Wikipedia Commons

The VA conducts research, some of which is later published in scholarly journals; some which remains unpublished.   The ORD also has information on research in the publishing pipeline that the public doesn’t have access to because it’s on a private VA intranet.

It’s frustrating to encounter publisher pay-walls when wishing to read taxpayer-funded VA research.  Although it’s clear that many, perhaps most, VA research is seriously biased in their study designs and conclusions, they still contain data that we can use to help us understand the HCV epidemic in the veteran population.  And besides, some sympathetic VA researchers, the Hansel’s, leave “breadcrumbs” to unbiased conclusions and research that close reading of footnotes and remarks may reveal. 

The VA’s access rules are here (LINK): VHA HANDBOOK 1200.19, July 10, 2014

PRESENTATION OF RESEARCH RESULTS

…The American public has a right to know how public funds are expended as well as the outcomes of funded research…

…To meet this requirement, investigators are responsible for depositing manuscripts in PubMed Central, operated by the National Institutes of Health’s National Library of Medicine (NLM), upon the manuscripts’ acceptance for publication. Articles with a publication acceptance date of February 1, 2015, or later are to be included. Deposited manuscripts are made available to the public in PubMed Central no later than 12 months after their publication in a journal. For specific procedures for depositing manuscripts, please visit the following NIH page:http://www.ncbi.nlm.nih.gov/pmc/…

When you know where the VA research you’re interested in was conducted, you can search by state or city or name here (LINK); going directly to the researcher might be a quicker way to access research still within the 12-month window. What I would really like to know however is how to read the titles of the unpublished research and perhaps nominate them for publication in an open access journal. 

Questions?  You are invited to e-mail vhacordera.vhacordera@va.gov or call 202-443-5600 about public access to VA research.  We paid for it; we should be able to read it.

To search papers and citations by keyword, or center and year, go here (LINK).

 

Posted in Guest authors, vA news, VA statistics | Tagged , , , , , , , , , , , , , , , , , , , , | 1 Comment

Century-old hepatitis miscellany from Minnesota

bad way

The Pierz Journal (Pierz, Morrison County, Minnesota), 1915-12-02

1915

In a Bad Way

“Where are you off to in such a hurry?”

“To fetch the doctor for my husband.”

“What’s up with him?”

“He tells me he has got hepatitis, dyspepsia, rheumatism, enteritis, gastritis, appendicitis, nephritis and cerebro spinal meningitis.”

“Holy terrors!  Where did he get all that?”

Why a man induced him to buy a medical dictionary, and he’s just been reading it.”

______________________________________________________________ Gee, folks with virulent liver trouble had it made in 1911–only 25 cents for Dr. King’s New Life Pills.

jaundice

Starts Much Trouble. If all people knew that neglect of constipation would result in severe indigestion, yellow jaundice or virulent liver trouble they would soon take Dr. King’s New Life Pills, and end it. Its the only safe way. Best for biliousness, headache and dyspepsia, chills and debility. 25c at E. L. Kaliher. The Pierz Journal (Pierz, Morrison County, Minnesota), 1911-11-02

______________________________________________________________

Old-timey MN remarks on a British Lancet article.  Anyone with a history hepatitis knows the itch referred to here in 1937.

itch

Itching Pruritis. It has been truly said that “all the world itches, but for different reasons in different persons.” Thus the very cleanest and the very dirtiest individuals itch; those who perspire too much or not enough, itch; those who are big eaters and those who are small eaters, itch. Itching, or pruritis as it is called by physicians, when it exists for any length of time has usually been referred to a skin specialist. However itching can be a symptom of so many ailments that is is really the work of the family physician, according to an article by Lord Horder in the British Lancet. He mentions among other causes of itching such ailments as diabetes, jaundice, leukemia (great increase in the white corpuscles in the blood) and uremia (waste products left in the blood that should have been removed by the kidneys). The Pine River Journal (Pine River, Minnesota), 1937-04-01

________________________________________________________

But, not to worry, there are new remedies in the 1930s for sale:

liver

The Pine River Journal (Pine River, Minnesota), 1938-03-03

Catarrhal jaundice is now known as HAV. It is described in reports like this 1901 outbreak in the UK (LINK).  But even as late as 1961, researchers thought there were at least two strains of the virus but were still floundering around–as expert W. Paul Havens explains in Viral Hepatitis, Yale J Biol Med. Dec –Feb 1961-2; 34(3-4): 314–328., (LINK).

The Havens article also provides a sense of how a big a problem hepatitis was for the military during WWII.  This corresponds with this chart by Google showing the use of the word “hepatitis” in books over time.  Yet even in the 1800’s, when books (in English), or physicians, were not as available as they were in the mid-19th century, the topic is one of steady concern

hep ngram

Google’s search for the word hepatitis in BOOKS shows that the mentions begin to rise in the mid-30’s and takes off in the 1940s as a hot topic.

 I’m pleased with these finds and know they are just the “tip of the iceberg” in terms of the history of likely hepatitis strains in the U.S. population.

Posted in HCV Health, HCV Risks (documented), Medical News, Military Madness, Presumption of Regularity, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , | 2 Comments

CAVC–BIRTH OF A WRIT- ACT III SCENE 8-DOWN FOR DOUBLE

vetcourtappealspromoA short while ago in VA time, when I won my claim in June 2008, I noticed they (VA) forgot to go back to 1994. That wasn’t a deal breaker. I knew they weren’t going to pony up without a good fight. What I didn’t see coming was the rater, Victor Morales convincing  me to throw in the towel on my newly filed claims for cryoglobulinemia and fibromyalgia. I didn’t know I was going to win the Hepatitis and porphyria claims when I filed them. I felt it was prudent to file for any that might kill me.

When I was told of the big 100% win over the phone, the rater said there simply was no higher rating and it might be a good idea to let some of the other Vets in line get a shot at justice, too. I readily agreed and withdrew the claims. Unbeknownst to me, they were completely developed and ready to rate back in September 2008 when I pulled the plug. There they have sat complete with private doctor nexus letters for seven years.

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Dad and crew chief in November 1944 (only three kills on canopy)

When the VA tipped their cards and indicated they would not be granting the Motion to Revise my 2008 rating, I figured I needed a down for double path to an extra 60% to attain SMC S. I had 40% for porphyria and 10% for tinnitus. In VA math I needed another 20% for anything to get to the S rating. My two diseases above would grant me enough to reach the 60%. Problem solved. Unfortunately VA buried them somewhere and never made any effort to decide them. Fast forward to March 2015 and a red hot Writ.

In typical fashion, VA chose to run around the vehicle in a Chinese fire drill. They granted the SMC S under another method  but still continued to develop the Cryo and Fibro. Had they a good negotiator, we could have saved them oodles of time. Mr. Mark McNabb could have  offered to teleconference with LawBob Writpants and make some quick off the book deals which would have been greeted fairly. Instead, in true OGC fashion, Engine #6 was dispatched to 625 Native American Ave. NW and Mark was instructed to put out the fire poste haste and call in another ladder truck and a tanker if necessary.

Several days ago, on Friday, I attended my required C&P examination for cryo and fibro at QTC. Everyone including the doctor was swell. Cupcake helped me in and out and we both told a sordid tale of a year in the VAMC, bodily insult and infections. Dr. _________ gave me the exams which involved an oral interrogation for the cryo symptomatology and the pressure points to ascertain Fibromyalgia. A quick tube of blood and we were history. Coming out, a fellow Brother of the Red Clay had a lovely bumper sticker I must possess.

Vietnam — We were winning when I left.

downloadThe naming of this chapter is a memorial to my father. His fighter in WW2 was named the same -Down for Double. Dad was very fond of this Blackjack trick. It often guaranteed two payouts. He also was fond of keeping the sun at his back in true fighter pilot fashion. Don’t worry about your six. That’s your wingman’s job. Concentrate on the hunt. The hunt here was for that elusive 100% for porphyria but now VA has compounded the bet by forcing me to go down for double. When all is said and done, my actual rating may be well over 250%.

Excuse me but this is becoming ludicrous. I want them to husband scarce judicial resources and grant that which is blatantly evident in the c-file. VA is so obsessive-compulsive they feel obligated to proceed strictly by the book. Considering McNabb has great leeway to “arrange” these things, one can only wonder at the Keystone Cops comedy that is unfolding each day. Cupcake counted three assistants and the doctor at the C&P. That will run about $ 850 for each exam.

Add in turning the Seattle RO into an exclusive claims center for one Vet all week on the 17th through the 27th of February and you’re talking some serious baksheesh.  Across the country McNabb and his little people put a dent in the National debt over the same period.

I feel at this stage as though we are dealing with the Gang who couldn’t shoot straight. All you budding law dogs should take note. This isn’t a claim on appeal and OGC’s staff attorney is normally precluded from addressing you directly. The accepted way to proffer a repair order would be to do it in the Respondent’s response and retire gracefully. VA is still trying to play the incremental game of slowly advancing your token up to 100% from 10%, then 40% and the latest 60%. We are at seven years on this now and I grant you they have reached 60%. That last hurdle is what we will negotiate in the next few days.

It never ceases to amaze me how many resources can be deployed to defeat a Vet for such a long time to stave off the inevitable. Surely, someone with basic forensic claims skills could have fathomed this. You don’t need Hooked on Phonics to accomplish it. Nevertheless the Blind continue to lead the Deaf and get well-paid for it. I cringe to think how much time and money is being squandered to fix something so obvious for so long. We look at this claim and see the rot, the entrenched mindless regimen and the futility of accomplishing anything in a timely fashion.

FOPEJV1HLZROC8J.LARGEThe next few days will be anticlimactic and then Judge Davis will inveigh. That will be the “fat lady singing” moment that indicates it’s over. Or not. Could be McNabb will become incensed and throw down. Stay tuned. I’ll remember to keep the sun at my back. LawBob is my wingman so it’s his job to cover my six. He seems to be doing that quite well.

 This is a continuing series on how to file an Extraordinary Writ. Click here to read the final installment. All in all it was quite successful in provoking Secretary Bob into acting.

https://asknod.wordpress.com/2015/03/22/cavc-birth-of-a-writ-act-iii-scene-9-welcome-to-the-hotel-california-again/

Posted in AO, BvA Decisions, C&P exams, CAvC HCV Ruling, CAVC Knowledge, CAVC ruling, Earlier Effective dates, Porphyria Cutanea Tarda, SMC, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , , | 15 Comments

CAVC–BIRTH OF A WRIT-ACT III SCENE 7–I’LL SEE YOUR ‘ME WORRY’ AND RAISE YOU 10

vetcourtappealspromoIn a poker game, you don’t want to scare them off with a superior hand, but rather inveigle them to see you and raise yet again. We’re playing VA poker here so I want to convey the futility of further bets but let Mr. McNabb depart with his dignity and his pocket watch and fob. He is free to fold gracefully-as he should. I firmly believe he is at liberty to do this and is not being pressured to hold the line by higher ups. By the same token, he has delegated far too much authority to the Seattle RO and little people like VSCM AynMarie Lofgren. 

The CAVC is an august body who is legitimately head and shoulders above the legal riff raff  in Seattle as well as the OGC. They will not take lightly the stance of  a Veterans Service Center Manager telling Veterans they will get their c-file when it is damn well “ripe for copying”. Nor will they cotton to a condescending attitude of “semi-compliance” after a dilatory twenty two year lesson in how not to adjudicate claims. As for Mr. McDuff’s belief that a score and two years hardly meets the threshold of a refusal to act, I look forward to Judge Davis’ opinion.

Miz Lofgren has been hung out to dry by Mr. McDuff’s inattention to law business. He allowed her to use hangman’s language in her affidavit. She could have correctly stated  it based on “information,  knowledge and belief “instead of the much higher standard of a stack of Bibles with her right hand raised. She has been fed the OGC Koolaid and inadvertently perjured herself in the offing. Bummer, Ayn. Did they promise you a performance bonus?

Poker-Clip-Art_straightTomorrow the sun will rise in Seattle but Ms. Lofgren will be busy seeking legal counsel to extricate herself from her falsehoods. Mr. McDuff will be looking at his hole cards and making plans to either bluff again or fold. I never thought it would come to this to be truthful. But then I miscalculated VA’s entrenched intransigence.

Motion of Petitioner to Strike affidavit

I take no pleasure in wreaking havoc on these folks. I have given them ample time, in my view, to comply. Their recalcitrance is incomprehensible in light of the weight of evidence against them, yet they refuse to chieu hoi. What part of non adversarial was lost in this twenty two year dialogue? What did I say or do to offend them? Unless I am mistaken, ’tis I who is the aggrieved party.

This is one in a series on how to file a Writ and win it. To see the next chapter click here:https://asknod.wordpress.com/2015/03/08/cavc-birth-of-a-writ-act-iii-scene-8-down-for-double/

Posted in CAvC HCV Ruling, CAVC Knowledge, Earlier Effective dates, Extraordinary Writs of Mandamus, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , | 8 Comments

CAVC–BIRTH OF A WRIT ACT III SCENE 6- WHAT? ME WORRY?

vetcourtappealspromoI have to hand it to the VA’s Office of General Counsel. With perfect aplomb, Mr. Mark M. McNabb, a mid-level supervisor/litigator for OGC, filed his notice of appearance and the Government’s response to my Writ.

 Perhaps, by being mid-level, he’s not privy to what the Fed. Circus is handing down as precedence these days so much as at the Court. Law is so mind-numbing when it cuts into Twittertime. Perhaps that’s why he forgot  overlooked the fact that Kyhn v. Shinseki 716 F. 3d 572 (2013) put a fork in the practice of continually shoving new evidence in under the  CAVC tent like an intrusive camel’s nose. 

OGC’s Faery Tale

downloadJust in case, I sent him an email to read this so he can “freshen up” his next response. (no. just kidding, Bob) In a nutshell, VA tried this padding of the Record on Appeal back in 2012 to roll Arnold Kyhn on his appeal. The OGC showed up with  some “affidavits” from several VA shills who testified how the mailing process works so that the Presumption of Regularity of the Mail could be preserved. One little problem. Congress put a fork in this way back in 1989 with the VJRA when they said the CAVC decision must be based solely on the evidence of record. You can see where it might seem a tad unfair that VA can sashay on in and add anything they want to “fix” it so everyone can get a handle on the facts  more clearly. However probative and informative the affidavits were was a moot question. VA had plenty of time to introduce those at the BVA. The appeal to the Court must rise or fall on it’s own merits sans any post hoc PowerPoint™ Presentations by helpful VA employees. So you can imagine Counsel’s (mine) consternation when he spotted Veterans Service Center Manager (VSCM) Ayn-Marie Lofgren’s affidavit  chock full of handy dandy explanations of shoes–and ships–and sealing-wax–of cabbages–and kings–and why the sea is boiling hot–and whether pigs have wings.

Imagine for yourselves the confluence of events and people about their normal occupations at the Seattle Regional Office (346) on any given day. Now imagine one Veteran-one out of say 300 or 3,000 or 30,000- with pending claims, appeals awaiting certification for the odd CUE claim to revise a decision made in 2008. Add in another appeal for an Independent Living Program greenhouse grant. Add in a pending Joint Motion for Partial Remand (JPMR) for grant of earlier effective date growing old, musty and unfinished. Now, imagine that all Big Mac’s Horses and all Big Mac’s men suddenly converged on one Veterans’s claim on the same day and at precisely the same moment-quite by chance, mind you. The odds are stupendous that all this could be done in concert- let alone without ten individual copies of an eleven-volume c file that has never been digitized. According to the DRO, there was one, and only one, on October 3rd, 2014.  Nevertheless, this is what Ms. Lofgren’s affidavit purports to show. The wheels were in progress on this long before I filed my Writ. It’s merely that ol’ “confluence paradox” that needs little or no explaining. But, since I asked, Ayn-Marie will expound on it in Dick and Jane speak to assuage my fears and show me my $50 filing fee was a poor investment.

VSCM AffidavitVSCM Affidavit_2VSCM Affidavit_3

Could it be believed, the stars aligned so perfectly on February 17th that one would tend to search for Sagittarius on the cusp of Aries. I should have invested in Tesla that day. Perhaps renewed my wedding vows. Days like this just don’t happen unless…  unless maybe Miz Lofgren was funning us. There’s one little problem we detected. Columbo would have spotted this with one eye. There were fingerprints on the bullet inside the gun. If you want this to look convincing to a CAVC Judge, you simply have to do a better job of arranging the crime scene.

The first problem is that our observant VSCM was only recently assigned to the Seattle RO in April of 2014 so anything that transpired before her tenure there cannot be attested to under oath as she did on items II – V, XIV, XV and XVIII. Being generous, I would say her credibility has been severely compromised.

Item XI states that the rating decision was adjudicated February 19th but my Ebenefits shows it closed on the 17th.

 

Capture cryo fibro complete 2-17-15

What’s truly amazing about this is the pace of progress. I’ve helped hundreds to learn the ins and outs of eBennies. Never have I seen a decision published on the site in less than three days following the promulgation of the decision-let alone before being signed around for the requisite three signatures to release more than $25,000.00. Moving on…

Item XII states a SSOC was issued February 17th, to help Counsel better understand the denial of a higher rating for Porphyria that would not be adjudicated until two days hence (February 19th). This is what we call the DeLorean Conundrum. It’s Back to the Future litigation.

XVIII clearly states I have a claim pending for Cryo/Fibro filed October 2, 2012 yet the above screen shot shows a) it is no longer pending and b) Ms. Lofgren could not be personally cognizant of this event two years before her arrival. Judge Judy calls this Hearsay.  In Courtspeak, that’s inadmissible.

XX scares me the most. The Veterans Service Center Manager of my Regional Office has just thrown down the gauntlet and  announced she will convert my c-file into an electronic format “when the file is eligible for scanning”. How would one view, let alone review, the file to plan a defense for the future appeal(s) without it? Doesn’t the term “due process” reverberate around in the skulls of any of these folks?

Now for the icing. If Ms. Lofgren can be believed, it just so happens that the Tacoma QTC was contacted to set up a compensation and pension examination that very same auspicious February 17th I was remarking on above. The obvious fingerprint on the bullet ensconced in the gun now has a name. If the claim is still waiting to be adjudicated as described in XVIII, how can it be that it is an appeal? Item XVIII also states this claim was filed on October 2, 2012 yet the DRO transmitted it to QTC as an appeal with an effective date of August 12, 2012. This is like the immortal Traffic Song of the sixties You can all join in:   “Make your own date up if you want to/ Any old date that you think will do”.

QTC

qtc 2

 

I have asked Lawbob  Writpants to file a motion to strike this flawed document from the record. If this is the best answer Mr. McNabb can muster, VA should retire from the field of battle and be declared hors d’combat. Unfortunately, there is a high probability that Judge Davis would be generous to our Mr. McNabb because he is normally very courteous to these VA folks. I feel every motion we can file that is appropriate -and salient-should be. I’ve always been a big fan of enfilading fire. Why waste bullets? Let them run into the bullets. This becomes the template for many who will follow in my steps. Gordie and his mother Jean Erspamer are looking over my shoulder. Gene Groves is also front and center in an effort to help fine tune it. We want the compendium of the evidence to be an egregious insult to the intelligence of the Court.

As for Mr. McNabb’s observation that twenty two years of sitting on the Group W bench patiently waiting for justice hardly amounts to a refusal to act, I would point out two things. He cites to Jean Erspamer and Mr. Costanza as being the bright line rule. Jean waited 10 years for her decision. Mr. Costanza had no standing as he merely had eleven months on the bench. Neither approaches my record twenty two years in limbo nor the calluses on my derrière. Nevertheless, McNabb says the wait does not represent the “extraordinary circumstances” that would precipitate a grant of the Writ. Perchance  a delay of several generations of Grahams, to say, my unborn grandson’s before remuneration delay would be considered “extraordinary” is the metric Mr. McNabb feels is appropriate?

As for this insane argument over 100% versus 60%? Idiot’s delight. You can see the hubris well up in their breasts as they steadfastly refuse to entertain the 100% semantic tar baby named “Totally disabled”. Item VII  might have been written by Judge Hindin himself. “Mr. Graham expressed his objective was to obtain an increased evaluation of 100% for PCT effective March 31, 1994.” Good Heavens! The greedy Vet revealed his cards? Quick. Write a stinging rebuke and tell him it won’t be arriving until the Second Coming of Christ. And they did. Three days later (see VIII).

One thing is for sure. The OGC dallied until the very last day as we suspected they would to accomplish as much as possible. They filed at 1838 Local on the new, happy NW Left Coast which was a mere two hours and twenty eight minutes before the carriage and four-in-hand reverted into a pumpkin and mice. Bravo. Mr. McNabb. A grateful Veteran salutes you for your yeoman service and perseverance to try to get it right lo these one score and two years. Pardon me if I take on a Missouri-like scepticism and ask you to just show me.

Here’s Bob’s latest Opera Dei.

Petitioner’s Response to Respondent’s Faery Tale

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Hey. Ne problemo, right? All’s well that appeals well.

We are now at Launch plus fifty seven (57) days. I’ m sure I mentioned back in January this  would be VA Ratings on steroids at 78 RPM. Stay tuned. This is almost over- just in time for the NOVA Conference in April. My, what another odd coincidence.

This is a series in Birth of a Writ. To read the next installment please click here

https://asknod.wordpress.com/2015/03/05/cavc-birth-of-a-writ-act-iii-scene-7-ill-see-your-me-worry-and-raise-you-10/

Posted in CAvC HCV Ruling, CAVC Knowledge, Extraordinary Writs of Mandamus, Porphyria Cutanea Tarda, SMC, Tips and Tricks, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , , , | 5 Comments

The VA’s Improved Transportation Service in 2015

va van

Many veterans who are currently eligible for VA health care benefits and have a VA authorized appointment are eligible for VTS. Every medical center has made up it’s own rules on who can get a ride on the shuttle. Some are  very restrictive.

Not everyone will be able to ride the bus.  The links below should take you to the VTS phone line in your location.

Scheduling a ride to the VA may get easier for vets living within 20-miles radius of a center in Minneapolis.   But this should help veterans who most need help with transportation and aren’t too far from a VHA.  It should help reduce appointment “no shows” once the word gets out. “No shows mean that a different vet had to wait longer for an appointment.  It will probably reduce the VA’s travel outlays once it gets going and pay for it’s self when word gets out.

To enhance the VHA system, the Central Business Office (CBO) is launching a new transportation program for immobilized and remote VA patients to enhance existing programs implemented by local VA Medical Centers (VAMCs).  Veterans Transportation Service (VTS) seeks to provide transportation services to include vehicle routing/scheduling software for VA Medical Facilities. The ride scheduling and routing systems will include GPS modules for VTS vehicles.

I organized a brown bag picnic by a lake for some of the oldies here on a A/C van just like this.  There was room for walkers and a scooter. It was fun for those who don’t drive to be picked up, dropped off, and then returned home after lunch and doing some walking.  It cost everyone $3.00 for a pleasant outing.

Posted in Guest authors, Medical News, VA Health Care, vA news | Tagged , , , , , , , , , , , , , , | Leave a comment

CAVC–CLARK V. SHINSEKI–YOUR MOMMA’S LYING

vetcourtappealspromoWhen you get to the CAVC, you at least get the Judge, or more appropriately, the judge’s little people, to thoroughly investigate a case; this in a far more balanced perspective than the slanted judicial Titanic deck of AOJ and BVA where they keep rearranging the deck furniture (the facts) to keep them dry.

Meet Mr. Edward Eugene Clark, a Veteran of the Cold War front in Germany. You can tell right off the bat that if Gene’s Grandma and Mom journeyed to Fort Jackson, South Carolina to see him after he got a heapin’ helpin’ of southern fried jetguns in 1972 that he probably was sick. Maybe not sick with a capital S  but enough to get momma on the warpath to Fort Jackson on a Greyhound with Grandma in tow for mutual comfort and support. I find women often travel in pairs when in distress. If you have two irate mommas coming after you as a medical professional, you better have majored in Public Speaking. We’re talking 1972. You can’t get a word in edgewise.

Gene Clark’s adventures in Indianaland

Six weeks after my son enlisted and was in boot camp, my mother and I visited him at [the] Fort Jackson[, South Carolina,] hospital, along with several dozen young men that seem to be affected by the same thing. We were never told what he had. Several weeks before his illness, when he was being inoculated for several things that are required by the [A]rmy[,] Gene described to me the condition of the pneumatic injection system used by the military. He described the condition of the apparatus[] as being covered with blood, skin, and pieces of flesh after dozens of soldiers had been inoculated ahead of him.  Clark v Shinseki (2011).

Sound familiar? Flu-like symptoms and prolonged fever? I’ve heard that so many times from a lot of you. Sounds a little like my jet gun indoctrination. I can’t say that I became ill though. I came down with it in full bloom along with Hep. B in 1971 -89 days after a minor encounter with an errant 7.62 rd.

downloadGene also had a claim in for his back that devolved into a nexus war. Let me show you how VA can build a medical record out of thin air. The blue below is VA examiner #1 who lays the groundwork for #2 (in red) who comes in behind a year or two later and pours concrete around #1’s “ruminations”. The Board then turns that into a rebuttal of the Presumption of Soundness(in purple) Note Examiner #1 uses terms like “If it was indeed a…” and “might be“, “I am unable to determine definitively“, etc. The Court has routinely labeled this as equivocal mumbo jumbo that leads to “probably not a good idea in my Courtroom.”  He admits he had a “back event” in the cervical area of the spine before service. He was declared sound for enlistment. He injured his back thrice in the service. That is all you need to know. He had no post-service injuries -just “surgical interventions” which do not constitute an injury. Well, unless you’re using a 26 year-old VA back surgeon named José with a MD from Guatemala Witch/Medical Doctor University. That’s why they wrote 38 USC §1151.

In the 2006 VA-ordered C&P, the examining physician (or ARNP, CNA, RN, LPN, bedpan changer) opined thusly:

In July 2006, Mr. Clark underwent a VA spine examination. The examiner stated that he reviewed Mr. Clark’s claims file. The examiner recorded (1) two pre-service back injuries; (2) three in-service injuries, two of which the examiner noted were not in Mr. Clark’s service medical records; and (3) three post-service “surgical interventions,” including spine injections.

After a physical examination, the examiner gave an impression of “[s]tatus post[- ]L5-S1 posterior lumbar interbody fusion” with “intermittent radiculopathic pain.”

‘To give an impression of’ translates into “Most doctors, but not all, might think it’s …” Radiculopathic pain is pain that shoots down out of your back/hips and into your leg. I have it from an unscheduled aircraft landing in what VA would probably call a sylvan (forested) setting..

In an addendum, after reviewing x-rays, the examiner opined: I think his back injury is related to [his] lumbar symptoms[,] so I do not think the cervical spine injury when [he] was 16 is related. However, I am unable to determine definitively if an injury to his lumbar spine in 1972 might be related to his current symptoms. I do not have x-rays to review; however, I think if it was indeed a mild lumbosacral strain that it is probably less likely than not that this injury is the cause of his current lumbar symptoms.

Sounds like someone who is conflicted until the thirty pieces of silver come out of the pouch. Okay, so far so good. You couldn’t convict OJ Simpson with that. Now we advance to Examiner #2 who will pick and choose select words, dodging the “might be related”s and the “do not think”s. Examiner #2 will create medical facts such as this brand new diagnosis:  ” if it was indeed a lumbosacral strain” metamorphoses into something entirely different below. Surgical interventions likewise loses it’s postcedent “interventions” and is abbreviated as “multiple back surgeries” now. Kind of reminds me of my fishing buddy Wade. Them fish got huge after a few years.

In October 2008, VA requested another spine examination, apparently under the mistaken belief that one had not yet been provided as directed by the Board’s June 2006 remand decision. [I’m so sure!] Later that month, a VA examiner reviewed Mr. Clark’s claims file and conducted an examination. The examiner noted two pre-service and three in-service back injuries, as well as three post-service surgical interventions. The examiner recorded Mr. Clark’s current complaints and symptoms and [T]he patient’s back condition is less likely than not related to his in[-]service lumbar strain. The patient is 53 years old. He has had multiple back surgeries. He had an injection beginning in 1983 and surgery in 1989 and 1995. These can certainly be from age[-]related changes or other just normal activities of life. Additionally, the cervical injury of 1971 from wrestling and the automobile accident [of] March 1972 with a diagnosis of lumbosacral strain, although he was asymptomatic on entrance exam[,] it is less likely not contributory to his current back condition.

Gene now carries a diagnosis of L5-S1 strain now instead of the more severe “injury” in Examiner #1’s C&P. Get used to this technique. In the process, they have just eviscerated his Presumption of Soundness in purple.  He also had numerous surgeries he’s plumb forgot. Now watch them do something similar to him on the Hepatitis C claim. Here’s Veterans Law Judge Vito A. Clementi’s version of how it went down:

Gene’s BVA decision.

 It is wholly unworthy of belief that medical services personnel of the U.S. military, in a peacetime environment and engaged in an activity directed towards ensuring the health of its members, would engage in such patently negligent performance of their duties so as to not ensure the hygiene of such [jetgun] immunizations.

As to [Mr. Clark’s] account of “stepping on needles” used by heroin addicts, it is also inherently incredible that [Mr. Clark], presumably knowing of his roommates’ predilections, would not have immediately reported to sick call instead of waiting over 20 years in this attempt to gain VA compensation. [His] allegations are contradicted by his [service medical records] which show that [he] never made a single complaint related to be stuck by an infected needle or scratched or bitten by other servicemen who were heroin addicts.Clark supra

Now let’s see what Judge Hagel’s minions had to say about that.

The Board essentially denied the existence of the second element–in-service incurrence– because it found that Mrs. Clark’s statement regarding Mr. Clark’s description of the circumstances of his inoculation was not credible. The Board did so because it simply could not fathom that the U.S. military would act in such a negligent manner. This conclusion is devoid of any actual analysis and is insufficient to support a finding of incredibility. See 38 U.S.C. § 7261(a)(4); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). At no time did the Board discuss military procedures for inoculating recruits during the period at issue, nor did the Board consider that such “negligence” is only negligent in hindsight: that is, what we today would consider a dangerous and unsafe practice as a result of the relatively recent understanding of blood borne diseases might have been standard practice at the time of Mr. Clark’s service. See VA Fast Letter 04-13 at 1 (June 29, 2004) (regarding the blood-borne nature of hepatitis C). Clark supra

The above in red is why I chose this decision. This will give you valuable ammo to cite when the next VLJ bozo comes out with a cogent “”That’s incredibabble” in your Hep C denial. See this as well:

The Board also found Mr. Clark incredible with respect to his statement regarding exposure to dirty needles used by heroin addicts and to being bitten and scratched by heroin addicts because of a lack of documentation in service medical records that he ever voiced his concerns about these events or sought treatment for bites or scratches. Although the Board characterized this as evidence weighing against Mr. Clark’s credibility and, ultimately, his claim, it is actually the absence of evidence, which is not the same as negative evidence. See Kahana v. Shinseki (2011) ; McLendon v. Nicholson (2006) Clark supra

Decisions like these are how we lose and think we never had a case. Words really do hurt. Everybody knows that-just like when Jesse blew off Nell and left her. You remember. He rode off on horseback into the “E” in The End in that car insurance commercial. What more proof do you need?

download (1)

Jesse?

Hang around me too long and you’ll need a shrink or a six pack of beer every hour. But that’s not the teaching moment. VA’s proclivity to cheat is.

Posted in BvA HCV decisions, CAvC HCV Ruling, HCV Health, HCV Risks (documented), Jetgun BvA Decisions, Jetgun Claims evidence, Nexus Information, VA Medical Mysteries Explained, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , | 3 Comments

VA training book, “How to Lie with Statistics,” outed

book

Screenshot from gov. hearing by C-Span

Did you happen to catch this story last (CNN video–6 minutes or AZTV) fall? The best-seller was studied at the VA until 8/14 when Sec. MacDonald pulled it from training programs. The book is not promoting lying per se but Huelskamp (Kansas), who sits on the Veterans Affairs Committee, doesn’t like it one little bit.  Rep. Huelskamp claims to know plenty about statistics from his Ph.D.. In any case,  who can resist a banned book!  (What, no protests from the American Library Association over this outrage?)

owl-ebook

“How to Lie With Statistics” $7.99 Kindle version “This book is a sort of primer in ways to use statistics to deceive…. The crooks already know these tricks; honest men must learn them in self-defense.” Grahic: openclipart.org

I’m joking about the ALA because I love librarians and their often unpopular stance on the freedom to read–everything.  But Rep. Huelskamp does make an important point about how data can be visually presented with graphics that give a wrong impression; he calls the VA out on one example. Actually, I want to read this book because the title is satire and with the catchy title, it’s sold a ton of copies.

I’m looking forward to reading Nate Silver’s book, The Signal and the Noise which is supposed to put statistics into contexts laypeople can relate to.  Amazon delivered it and it’s calling to me.  Although I got a decent grade in a required introductory statistics in college many moons ago, I struggled with the subject.  But given all the research I’ve been reading, I have to tackle this subject again so I can spot some statistical trends or lies.

 

Posted in Guest authors, Medical News, Nexus Information, Tips and Tricks, VA Health Care, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , | 4 Comments

Today’s trip to a non-VA ER

Walking the beagle led to a nasty fall on snowy concrete for my old Marine this afternoon. He entered the apartment (cussing at himself) with blood streaming out of his nose, cuts on his hand and a knee screaming “pain, pain!”  With a small hospital is less than two miles away, he insisted on driving himself. Two hours and several X-rays later, he arrived home with his red broken schnoz, bandages, and pain pills.

Nurse-Practise

I’m really glad he bought a Medicare Advantage Plan ($48.00 month w/o drug coverage), reasonable ER visit co-pay ($65.00), and 10% X-ray co-pay as a back-up.

I called the VHA hospital in Minneapolis and reported that he was in the ER.  The switchboard put me through to the VA ER.  A VA-ER staffer said to call back when he either is admitted or discharged.  So I did.  The ER staff pulled up his record, asked a few questions about the trauma, and that was that.  Said to send in the unpaid bills in case he’s eligible for any payments on them–and wished him well (typical of all the nice Minnesotans).  The VA staff was fast and efficient.

Will the VA pick up the costs his Medicare Advantage Plan will not since he didn’t call for non-VA ER care prior-authorization?  I cannot tell from this VA webpage (LINK) or Fact Sheet which problem he might fall under.

If someone has other insurance, including Medicare, they can refuse to be a payer. Will his Veteran’s Choice Card help?  Maybe because the VHA is not “feasibly available” to him (LINK):

A preapproval for treatment in the community is required for non-VA medical care – unless the medical event is an emergency. Emergency events may be reimbursed on behalf of the Veteran in certain cases. –

 

er va

CLICK IMAGE TO READ FACT SHEET

TRICKS & Traps Alert:: Under the “Mill Bill,” he has 90-days to get a claim in using form VA 10-583.  It’s a shorty.  Only one page to fill out and attach bills. Since insurance companies can take well over 90-days to pay, I think it’s prudent to send the form in next week without the bills, a copy of his coverage, and letter to say bills will be sent in as received.

So this is a real-time test of a real event and if the VA will help us with this emergency and after Congress has filled the coffers with funds for non-VA care. Our experience will be based on his individual circumstances versus rules we can all understand and rely on.  As they say on shopping forums, YMMV (Your Mileage May Vary).

Posted in Guest authors, Medical News, Medicare for VETS, VA Health Care, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , , , , , , , , , , , | 2 Comments