VHA– HARVONI HAS ARRIVED

Posted on January 15, 2015 by asknod

downloadJust in time for the almost-gone  stage 4 (Metavir) Heppers of my era, the VA is apparently snapping up Harvoni at $867 a pill. That’s down from the official price charged Multicare and Franciscan of $1187.00 each. The best news is everyone’s making it to the far shore (remission or SVR). In the latest trial results of 1A and 1B, Harvoni licked the plate. One fell out of the 20 in the first study to autoimmune issues. The second group of 20 lost none. 

In what was always a harsh, debilitating battle against 1A and 1B, Heppers with it had to run the gauntlet with the hope, at best, of a 39% success rate using Interferon and Ribavirin. Nevertheless, VA doctors would tell you it was in the high 60s. Some went through the process again with no better results. Another  member here did it three times  with no luck. What was sad was that they just wanted to use him as a medical yardstick. No doctor in his right mind would keep repeating a failed attempt with the same tools over and over. VA would, though.

Up to the beginning of these new combo pills,  VA doctors were still pounding the pavement looking for more victims. The Victrelis 3-drug combo only brought the Geno 1s up into what VA and others had been promising all along.

We’ve always known that the Genotype 1s were the guys who rarely pulled out and rare as hens’ teeth in the win column. With Harvoni, the odds have swung 180% in your favor and the Geno 2s and 3s are not having as great a success. In the early days of the hep battle, they were the easiest to kill using the bug juice and riba.

With the vast array of ammunition now out there, it only remains to be seen who will buy what for how much. The drug I took was solely Sofosbuvir , yet the early trials in 2011 began with a combination that included Daclatasvir. These trials in just 12 weeks were hitting in the mid- 90% for a cure. Some included Ribavirin and some didn’t. The problem with transposing that into Harvoni was  due to Gilead Science’ not owning Daclatasvir. Unwilling to share the profit, Gilead instead put Sovaldi on the market as a single protease inhibitor and suggested getting the bug juice out of the basement again. What the hell. VA had bought a trainload of the triple drug combo. This was a golden opportunity to use some of it up.

It appears VA was more reserved this time out and didn’t start writing scrips for Sovaldi unless the Vet agreed to Interferon as a side dish. The doggy bone line was “Mr. Vet, we’re talking 12 weeks of flu-like symptoms here. That’s a whole lot less than the old, grueling  52 week regimen. Besides, this time we guarantee it will work.”

Well wonders of wonders. I already told you about one of our guys in Texas starting it but I got two emails today saying Denver is prescribing it as well as  Little Rock’s VAMC.  This shows a real sea change in thinking. The painful financial picture is clear. Pay now or pay later. If VA let HCVets go down the tube, the cost of a liver transplant far exceeds the cost of 12 weeks of Harvoni. Additionally, the VA raters get to open the book again and claim you are Lazarus- ergo no more compensation.

VA would never pencil in the human-Veteran argument when examining costs for Harvoni or Sovaldi. To do so might endanger their bonuses. If you just assume altruism and a positive outcome mentality would never enter into the equation, then the ulterior motive has to be a financial windfall from all those reduced ratings. The last thing in the world VA needs right now is to withhold anything from Veterans- including life-saving drugs.

So there you go.Time to saddle up and sashay on over to the VAMC ranch. Insist on brand name Harvoni for that Geno 1. Abbvie’s product is trying to glue two protease inhibitors into a two-pill a day regimen. Merck hasn’t finalized theirs and completed trials but the FDA gave them a bye on it.

Wouldn’t that be a hoot if they eradicated HCV or at least developed an immunization protocol like polio?

Posted in ASKNOD BOOK, HCV Health, HCV Risks (documented), Interferon claims, Jetgun Claims evidence, Reductions in rating, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , , , , , , , , , | 20 Comments

CAVC– BIRTH OF A WRIT ACT II SCENE 2-THE EAGLE HAS LANDED

Posted on January 15, 2015 by asknod

imagesThis morning I discovered the CAVC finally outfitted me with a docket number. This will make it easier to observe in real time for all of you just itching to learn the ins and outs of Filing an Extraordinary Writ. Issuance of a docket number is the first order of business in a filing. It seats you at the table of justice with a number that reflects the order in which it was received. 

Well, sort of. Were my claim before the BVA, Laura Eskinazi might choose to “rocket docket” it and decide it tomorrow. Conversely, she could did a deep hole and secret it there in hopes that I’d die before they had to act on it. Strangely, these problems of losing or misplacing important documents never seem to infect the Court.

The docket is # 15-112. Here’s how you access this for your reading entertainment. First, go to the CAVC’s web site here: http://www.uscourts.cavc.gov/

Then click on the “Docket Search” in the lower left corner of the Home page:

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The ECF site pops us and requests either a case number , a name of the appellant or a range of case docket numbers within which the docket might be found. I have inserted my case in the image below.

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Click on Search and the next screen pops up showing the history of the claim. Since mine was “born” this morning, the information is scarce. I drew an anti-Vet judge (Davis) who is not exactly the Veteran’s best friend but my hope is that the evidence I have provided is more than adequate to assure a victory in spite of his anti-Veteran proclivities.

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Click on the case number above my name (15-112) and the history to-be-written in the next few months will appear chronologically.

Capture 44 Judge “Hang ’em High” Davis had my 2010 Extraordinary Writ. I was in the Seattle VAMC and got short-sheeted  by him while I was paddling the Dilaudid canoe around 2 East. When I finally egressed the VAMC, I wrote in to tell them I was back in the saddle. Too late. No excuse for equitable tolling would suffice and the $50 was wasted. This time it’s belts and suspenders on everything and LawBob Squarepants standing in the wings waiting for the hand off in case I crump.

As I have mentioned, a Writ properly constructed is akin to a fire cracker  with an extremely short fuse. This one will be done in less than 125 days with 100% accuracy assuming Old McDonald hasn’t lost or misplaced the c-file. While I speak of Bob as being the miscreant in this, the fact is that the VBA is the culprit. He merely shares the blame because his troops are the ones that fumbled this claim for the last twenty one years.

As the docket info piles up, the ECF page will eventually have to abbreviate some of the legal manoeuvres.  To view it in its entirety as it develops, you can click on the “Full Docket” at the top and a new window opens showing the complete history.

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This is the full docket menu that pops up:

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Clicking on “Run Docket Report” will open the last window to show the entire history. You will notice the little  boxes in blue with a padlock in them. These represent documents that are redacted to prevent release of SSI or other things like my telephone number, DOB etc. The first one entitled Petition for Extraordinary relief  is attached to my post here.

Capture 66Capture 77

There you have it. Stay tuned to the same Bat time and Bat channel for all the excitement and the post hoc rationalizations that are going to soon grace the docket. I expect there will be some interesting excuses for why the overworked and over-bonused folks at the VBA, the BVA and Fort Fumble in Seattle were unable to get ‘er done for so long. Don’t be surprised if they blame George Bush (43) and global warming for the delay. Hell, maybe the VA rater was abducted by aliens and was just released yesterday. Stranger things have happened at the VBA and they all agree that anything is possible.

downloadThe Birth of a Writ continues here:

https://asknod.wordpress.com/2015/01/17/cavc-birth-of-a-writ-jim-dandy-to-the-rescue/

Posted in CAvC HCV Ruling, CAVC Knowledge, Equitable tolling, Extraordinary Writs of Mandamus, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

BVA–LAST 2014 DECISIONS POSTED

Posted on January 14, 2015 by asknod

downloadWell, good to see there were only 1006 more than the last, positively, no more end of the year, last minute rocket dockets from hold back files. And VA did it smartly within a two week period of the New Year. Would that they could do so well with our claims.

Ever notice that seal to the right has a rope around it? Yep. They’ve been advertising their specialty right under our noses all these years.

Having reviewed the majority of the 2014 decisions, the ardor for helping Vets with HCV via a jetgun, has abated in the last quarter. It was hoped that  their “glasnost” signified a new day. Unfortunately, there is none nor has there ever been any. Move along, folks. Nothing to see. Keep moving.

Here’s a  Hepatitis CUE win for the end of the year. And here’s Johnny Vet with gonorrhea and he still lost. His brother is a retired Army Col. and a physician and wrote what is possibly the worst nexus letter ever penned.

 

The service personnel records show that from October 1973 to August 1974 the Veteran was at Udorn, RTAFB Thailand. The service treatment records, including the entrance and separation examinations, contain no complaint, finding, history, treatment, or a diagnosis of hepatitis C, or of a tattoo or of ear piercing. On separation examination in January 1975, history included gonorrhea in 1974. On physical examination for identifying marks, scars, and tattoos, there was a single entry of a 3 inch transverse scar on the lateral aspect of the left leg. After service, private medical records document hepatitis C in May 2002. The private medical records contain no history of the etiology of hepatitis C.

How can  Penny Rentanurse say that HCV is not sexually transmitted or, in the alternative, how can she say it would be far too speculative to conjecture on it because it gave her the vapors. Proof of a STD  stands out in your medrecs (or STRs). “Gram positive”  is  the dead giveaway. The CDC acknowledges it. Looks like he’ll have to squander 50 George Washington coupons to get a nonadversarial trial.

As for the favorable medical opinion, the Veteran’s brother, who is a retired Army Colonel and a physician, stated that the Veteran acquired hepatitis while on active duty and that after service the Veteran had manifestations of hepatitis. The Board finds that the opinion is not persuasive evidence on a material issue of fact, namely, exposure to hepatitis C during service, because the opinion assumes that an airman or a sexual partner with whom the Veteran shared the tattoo and piercing instruments was already infected with hepatitis C. As there is no way to determine or to know on the evidence of record that one participant had hepatitis C infection, it is simply a matter of conjecture, that is, an opinion based on speculation or stated differently an opinion based on insufficient evidence to ensure reliability. Evidence based on mere speculation or remote possibility does not rise to the evidentiary standard of reasonable doubt. 38 C.F.R. § 3.102. As for the unfavorable medical opinion, the VA examiner assumed that the Veteran’s statements were factually correct about the risks factors in service, namely, getting a tattoo, ear piercing, sexual contact, sharing of toiletry items, or air gun injections, but unlike the favorable opinion the VA examiner concluded that the risks were limited and there was no way of stating with any certainty that the risks were in fact exposure to hepatitis C. The VA examiner stated that it was impossible to render any meaningful probabilities of infection as other risks, pre-dating and post-dating the Veteran’s period of service, were not known. Although the VA examiner concluded that an opinion could not be rendered without resorting to speculation, the VA examiner adequately supported his conclusion that actual causation of hepatitis C could not be selected from several potential causes. See Jones v. Shinseki, 23 Vet. App. 382, 390, 91 (2009) (a medical examination is not inadequate because the medical examiner cannot reach a conclusion without resort to speculation). The Board finds that the VA examiner’s opinion, which is evidence, opposes rather than support the claim and outweighs the favorable medical opinion.

There you have it. A medical examiner saying it’s too speculative to decide trumps a MD’s actual nexus that confirms it. We’ve come a long way baby. I could have sworn that “absence of evidence is not negative evidence.”

So we have a Vet with no credibility with an STD recorded as occurring in service. His brother, a physician said he got it in Nam. His biopsy points to that era in the number of years of liver degeneration. And the examiner can’t come to the conclusion that it was the clap because no one knows whether the prostitute(s) had the clap. They’re telling the Vet to round up the other six Tattoo/ear piercing party participants from his days at Udorn and submit their blood tests in the vain hope that one of them has HCV of the same genotype. I’ve never heard of bloody buddy letters other than the Vet in Texas to whom it was suggested that he find the whole company he was in the jetgun shot line with in 1967 to find out if it was the same genotype. That’s a shit ton of folks to sift through but would never be considered adversarial, ne c’est pas?

 

Remember that there are three outcomes to these travesties of justice-a remand for the RO to test out their new clothesline rope; a win with a remand to “Write ‘er up!” or the soft dulcet tones of “we tried ever so hard to see it your way, but….”

Posted in BvA HCV decisions, HCV Risks (documented), Medical News, Nexus Information | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

2017 VA UPDATES ON GETTING YOUR C-FILE

Posted on January 12, 2015 by asknod

caveman_2The Veterans Benefits Administration, or VBA, is now in full swing on digitizing records. Everything is now directed to Cheeseville, Wisconsin 53547. I don’t have to tell you that filing it electronically  on eBenefits is as advisable as throwing a bottle into the ocean. Many of you have some real thighslappers like “I don’t get it. I did a really nice doc with bulleted lists and merged the DBQ pdf into my 4138 pdf  on ebenefts. VA says they can’t find it and won’t give me my June 2014 filing date. What do I do?”

By the same token, my old advice on beating them with the FOIA stick is beginning to backfire. We’ve had reports of “They’re here. Come and get them.” This is not necessarily as advisable from what we are beginning to see out in the field. The VA has their new 21-3288 Request for C-files out now and the apparent (attempted) trend is a 8-week turnaround (think six months) following submission via Cheeseville only. No more requests to the local ROs. Cheeseville South got busted for hiding their unanswered overflow in a 40-foot long trailer out back.If VA is going to blow you off, it seems the polite way to go around them is to insert evidence in the hole in the wall in Janesville, Wisconsin- home of Speaker of the House Paul Ryan oddly enough…

U.S. Department of Veterans Affairs
Evidence Intake Center
PO Box 4444
Janesville, WI 53547-4444

Fax:        844-531-7818

If you’ve waited over six months, it’s time to get in touch with Mary at the VA Records Management Center in St. Louis. (MaryAnn.Wentzel1@va.gov).Please note, this is not the National Archives Records Center that sometimes catches fire after hours in St. Louis. This is VA’s single repository for all c-file records requests now. They issue the c-files in the order received unless it’s an Extraordinary Writ demanding RFN attention from (027) or the Office of General Counsel as it is known at the DVA.

Cheeseville now has confirmation of transmission for fax. I send everything that way for any number of reasons now. It establishes time in line and you follow up with Priority Mail for $6.70.  FAX quality is like dial up internet-pretty sketchy. It’s attached as a .pdf to the Fax but  it still lacks that pizzazz. You’ll be wanting those glossy 8 1/2 by 11s in all their original shining splendor at submission for scanning so VA can’t complain about the quality of the documents you sent. Having proof of mailing is a duh right out of the box. Belts and suspenders and number every page. If you send it in in color, they now have color in the VBMS .pdf c-file too. Not always so via fax or it’s a degraded  quality. I can confirm that  now that I have access to VBMS. I can compare the document in the e-folder on line  to the one I sent in.

Presumption of Regularity on mailing (lack of implementation of the Common Law Mailbox Rule) has destroyed gazillions of Vet claims. I would say USPS Form 3817 will suffice if you are financially challenged.  However, I have found out something interesting. When you mail a one oz. letter to VA via 3817, it’s a buck 50. The stamp on the envelope they print up says $1.15 but does not indicate a 3817 was employed. If VA can clothesline you on this, they will and declare they never got it. In this day and age, you can just take a picture of it with your phone or a digital camera but that doesn’t prove it made it into a mailbox. Insert a picture of the 3817 into a Word document and save as a .pdf for a small file. If they play dumb, you make a copy and send it in. It will stand up in Court, but with a Green card or a USPS Priority Mail envelope, you have a tracking number or the signature of the new GS-4 FNG bubblehead down on the intake center loading dock in Cheeseville.

The long and short is that we are now hitting the web filing portal enigma. Everything will have to be submitted in electronic OCR form for word-searchable .pdf format. VA raters insisted on the upgrade because they can’t “see things” in your file like service medical records or confusing concepts like “evidence”. If you have no access to the web, you are going to have to go down to a VSO bar and hire one of them. You might remind them that they can no longer use the venerable VAF 21-4138 anymore for filing claims. I noticed the AmVets in Tacoma was still doing this as late as last fall (2016). That’s a Bozo no-no. The new VBMS computer cannot “read” it.

Eventually hand written records that actually require reading and deciphering will be unnecessary as all of us who served pre-computer will be dead. This is when VBMS will come into it’s own. VA kiosks can be erected in malls like cash machines. You enter your SSN, Branch of Service and date of enl./sep. VA confirms your metrics and you file on the spot. The  VA’s newly rebuilt CAPRI/VACOLS/ PIES/ VISTA (VHA) which will still run on Microsoft XP or VISTA (but not Windows 7 or 8) will be capable of immediately telling you if you are eligible for a disability rating in 10 short minutes or less.

Capture 22

On the off-chance  your  are denied, you’ll be able to view your appeal in real time as it is electronically transmitted to DC several months later. All those happy electrons winging their way to DC. With eBenefits, you’ll know exactly which decision phase you’re in and can plan your celebration parties appropriately as you advance. The electronic frontier is upon us old Vets and it’s time to tame this computer bronco to our advantage.

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For now, the strong advice on filing with  VA is to call up the 1-800 Prize Redemption Hotline at  867-5309- scratch that. That’s my a Vet friend Jenny I’m helping.  1-800-827-1000 and tell them you wish to register your claim on that day. This is like booking a room at the hotel. You show up later with the suitcase full of evidence and send it in to the cheeseheads. VA will require a follow-on 21-526 EZ return or the long form if you’ve never filed before. You have one year to get it together on this “informal filing”.

The Presumption that you screwed it up will remain the operable word on filings so proof is essential to any claim until we can obtain a true electronic confirmation VA will honor. VA’s IT crew is looking at a 2022 role out  along the lines of the IRIS model. All you have to do is look at my case and how VA stepped on their necktie in 1994 for confirmation that VA will be the one who screws it up.

Electronic filing will someday become the norm but for now, eBennies is like a magic 8 Ball for information.  Hasbro has the new eBennies® VA-compatible version with a bluetooth connection feature. The App is at ebenniesblututhapp@va.gov. Bon chance, mon amis. Je suis Vet avec les armes.

 

download

 

Posted in Electronic Filing of Evidence, Informal Claims, Presumption of Regularity, Proof of Mailing | Tagged , , , , , , , , , , , , , , , | 15 Comments

CAVC–THE BIRTH OF A WRIT- ACT II SCENE 1- THE PUCKER FACTOR

Posted on January 9, 2015 by asknod

imagesIn airborne parlance, the pucker factor was a mathematical formula expressed thusly: The correlation between how tight the anal sphincter is, divided by the degree of danger and multiplied by the number of bullets with a near trajectory. Expressed mathematically, it appears as PF=AS/D X 7.62x39mm+n. If the ordnance coming at you was 12.7 or 37 mm, the pucker factor increased by a multiple of 10 and 100 respectively.

Similarly, in Writ jurisprudence, there comes a like moment when envelopes are opened and realization dawns at the hierarchy of the Veterans Administration that something is amiss-that a Veteran somewhere has been overlooked and it is going to have grave repercussions. Ignore for a moment that virtually all Veterans are overlooked for a goodly portion of their lives when they deal with the VA. When a Vet finally reaches the end of his or her rope, and they are capable of vocalizing it, they retaliate. Few are willing to do this because the VSOs across our fruited plain have inculcated a culture of fear- fear that if you speak up and express your dissatisfaction that you will be singled out for “special treatment”. Tales of Vets whose ratings have been reduced are the fodder for these lies.

Granted, Keith Roberts seems to have received this treatment. Few will dispute that and some even hold it up as the quintessential example. Keith had a ditz for a VSO. The VFW who was repping him and the chucklehead NSO simply egged him on into a untenable claim that irked the VA. We have not heard the last of Keith’s travails and I eagerly look forward to writing that story. It hasn’t played out yet but will shortly. The director of Comp and Pen. is still fence-sitting and desperately trying to figure out how to do it on a Sunday to avoid the excoriating press he’s going to receive when he does so. Rumor has it that Allison is apoplectic that it hasn’t been accomplished as well. How long this submarine of worms can stay submerged is a good question. Eventually Call me Bob is going to catch wind of it like an overflowing septic tank. Bob hates to be the last one to know. Shoot, maybe Keith ought to call Bob. I did. Unfortunately, my plea backfired which is why we’re here today.

A writ is a powerful tool when properly constructed. One need look no further than Gene Groves’ recent efforts to recognize the Court gets its nose bent out of shape when ignored. This is, in great part, what I am praying for as well. Writs generally result in the Secretary complying with what should have been done long ago. This satisfies all and the matter is dismissed. On the other hand, when you piss on the Court, you do so at your own peril whether you meant to or not. For several decades, we have rarely seen egregious behavior on the VA’s part rise to the level of outright blatant intransigence. I can count four with Mr. Groves being the most recent several months ago. I felt his Writ was the perfect introduction for mine. If it appears the VA is engaged in this in a wholesale fashion, you get far more traction.

In my case, much like Mr. Groves, we have a Joint Motion for Partial Remand (JMPR) that has been studiously ignored. However, the fingerprints of adversarial intent are all over my claims which sets them apart from the pure stupidity Mr. Groves encountered at the hands of the BVA. This is primarily why I filed the Writ-well, that and they were trying to give me the bum’s rush on about $75,000.00. I know you won’t believe me but the money is immaterial. I am blessed so it was not the make or break rationale for the filing. Simply put, the VA has bitchslapped me nonstop for nigh on to twenty one years. You are correct. I am mad as hell and the Writ is my not-so-subtle way of expressing my dismay.

I’m sure a majority of you are familiar with the 1976 movie Network where Howard Beale reaches that excruciating point where anger can neither be contained nor expressed with enough verve. I have reached that plateau. After twenty plus years of inaction, mistakes, ignorance, obfuscation, purposeful misconstrual and innocent-appearing gaffes on VA’s part, I’m throwing down the gauntlet. I, too, am mad as Hell and I’m not going to take it anymore. I felt my letter to Mr. McDonald was a finale. If the VA Secretary and his little people can’t right these wrongs, pray tell how is VA ever going to evolve into a truly nonadversarial agency?

The VA has, through a combination of inaction, indifference and pure malevolence, purposefully refused to grant that which even they know is due. Each legal action to compel their compliance is met with a partial remuneration rather than a full accounting. The number of laws and legal cases they have ignored to arrive here today is why my Writ ran on to 96 pages. I would have listed it all and run to 120 but I felt the point had been made adequately with what I submitted.

I do not fault Mr. McDonald or Ric Shinseki for this. The seeds of stupidity and ignorance were sown many years before in the era of Jesse Brown.  The miscreants were, with the exception of Veterans law Judge Mark Hindin, the ratings weenies of Fort Fumble in Seattle. They, like their counterparts in all Regional Offices, have been carefully instructed over the years to start with the premise that you are not entitled to that which you seek. Only by gradually accumulating evidence or forcing them to acknowledge what you have sent in does the scale slowly tip in your favor. Should you somehow be successful, the next battle is enjoined over an appropriate rating percentage. In combination, it is not uncommon to spend a decade just getting the basics established correctly as any of you can attest. What, then, to make of a legal process that drags on for twenty one years and is still unresolved? This is the conundrum I faced and which I was tasked to resolve.

When LawBob Squarepants won what I had been claiming all along at the CAVC in April 2013, he counseled me to sit tight and let justice play out. Even though the OGC had not been anally specific about my Porphyria Cutanea Tarda claim in the JMPR, it was all part and parcel of the Hepatitis C and would be assimilated into the new BVA decision. If it was somehow AWOL, he was prepared to come back and set matters aright. And here we are. Filing pro se is a subterfuge to get more sympathy from the Court. LawBob will be there next week to put a straight jacket on me and take me back to the asylum. At the same time he will raise his eyebrows and ask whether Judge Hindin was raised by wolves. In short order, the Court will be asking much the same thing.

1138C3E0C62EE9Judge Hindin sat at our Board hearing in April 2011 across from Cupcake et moi and did his level best bobblehead doll imitation of all time. He completely and unambiguously noted every point and the timeline I laid out. When we completed this friendly ninety minute meeting, we were all in agreement that this was a done deal. Having talked with thousands of Veterans, the takeaway I had always held is that the adjudicator, be s/he a DRO or a VLJ, would go out of his/her way to agree wholeheartedly with your synopsis and theory. Six month to a year later, you’d discover you were talking to the wall. All the evidence cited, all the medical records proving your contentions and incontrovertible testimony was an exercise in futility. I honestly felt I had prevailed. I was not disappointed. After fourteen years, this was the rule rather than the exception.

Had Judge Hindin not been so officious or rude in the follow-on enforcement of the JPMR, I may not have felt the anger I express today. His attitude of being “constrained”at gunpoint by the OGC to grant my 1994 effective date was clearly the antithesis of a “nonadversarial, paternalistic ex parte process that ensure fairness and honor to those who have served their country”. In fact, my treatment all the way from 1989 to the present has been notable for VA’s refusal to believe anything I say. It took me thirteen years to convince them I was in Vietnam. It took me six years to convince them they promised me a new rating decision in 1994. It took me two more years of waiting to discover they have no intention of timely finishing my claims-if ever.

This morning at 0523 HRSL EDT, one A. Prandy showed up and collected the Secretary’s, the OGC’s and the USB’s mail. In it, he will find my individual missives to Mr. McDonald, Ms, Hickey and Ms. Bradley. Here is what they will be ingesting:

Grahambo Writ

As with Mr. Groves, I expect a mad scramble will ensue to repair the screwups before the Court dockets this puppy and starts asking questions. Unfortunately, once the Court sinks its collective teeth into these things, they are loath to release them until they are satisfied the Secretary has complied with their commands. I didn’t ask for sanctions. There’s plenty of time for that. What would EAJA fees be for flogging the dog lo these twenty years?

The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/15/cavc-birth-of-a-writ-act-ii-scene-2-the-eagle-has-landed/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , | 11 Comments

CAVC–BIRTH OF A WRIT ACT I SCENE 5– BDA

Posted on January 8, 2015 by asknod

imagesNormally, about this time at 810 Vermin Avenue NW, the janitors have worked  their way up to the 3rd floor and begun the nightly chore of empty, sweep and vacuum. There may be a few lights still on tonight. Hell, maybe not. Maybe they’re all over at the grill across the street  getting lubricated and saying I deserve one of Laura Eskinazi’s famous Rocket Dockets. 

So here’s the Bomb Damage Assessment according to the USPS. The Writ had a soft landing just before lunch local time so it may docket today. The check was included. Docket numbers are already issued out to #15-037 as of tonight.

CAVC EWOM proof of receipt 1-08-15

Mr. D. Jackson signed for it and all is well with the world. On the other hand, the boyz ‘n the hood over at Vermin Lane aren’t picking up their mail according to the USPS. I have no confirmation they did so. Fortunately I can prove I threw their bottles into the ocean over a half hour before the CAVC filing. It appears the BVA has their own mailroom replete with their own zip code. Knowing that, you can understand how all these communiques with the VA seem to get “misplaced” or flat out lost. Nevertheless, I have all the proof I need and I can even give them a web address  on which to view it (in color). Kinda like Asknod’s eBennies without a passcode. They can probably get a grip on that concept after a while.

downloadI will consult with Dear Leader in Battle Creek and see what the tea leaves portend. Read the Writ soon you shall, Yessssssssssssssssssssssssss.

The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/09/cavc-the-birth-of-a-writ-act-ii-scene-1-the-pucker-factor/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Nexus Information, Tips and Tricks, VARO Misfeasance, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , , , , , | 1 Comment

VHA CHOICE CARDS FOR FREQUENT FLYERS

Posted on January 8, 2015 by asknod

downloadIn an apparent mix up with the rollout of the VA choice card, many Vets are discovering they don’t qualify. Apparently, in order to make VAMCs more user friendly, VA is installing 3,000 foot runways and mini-airports adjacent to their facilities to handle the expected rise in stakeholders using their facilities.

Said VA  Spokeswoman Sharon Hellman” Air travel is all the rage now and with virtually every other Veteran having a pilot’s license, we figured this would please everyone in the Veterans community. It’s a natural fit. Veterans are encouraged to call our 800-827-1000 Ride Share Hotline to pool their travel pay and save even more. Flying in will shave hours off the commute, too. And of course we measure that critical 40 miles using nautical miles. All pilots do. We now offer handicapped spots on the apron close to base ops with complementary wheel chairs. We’ll be announcing other exciting innovations in 2015 as they become feasible.”

Veterans Service Organizations point to this as positive proof that VA is responsive to it’s Veterans and their every need. Ms. Hellman asserted the few bugs in the system currently will clear up as soon as all Veterans get the hang of parking correctly after they exit the active runway.

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Small fender bender at VAMC American Lake December 2014

 

Posted in Humor, VA Caregivers Act, VA Health Care, VA Medical Mysteries Explained | Tagged , , , , , , , , , , | 3 Comments

CAVC–BIRTH OF A WRIT–ACT 1 SCENE 4–TROOPS IN CONTACT

Posted on January 8, 2015 by asknod

ABCCCPITA 26, CRICKET  

Roger CRICKET, 26 over.

26, I have a Tango India Charlie at Victor Alpha. Repeat Tango India Charlie at Victor Alpha. Meet Nail 21 on 118.9.  I have three fast movers incoming your Vermin Avenue NW frag order.

MISTY 21 Lead , CRICKET

21, Go ahead.

21 Meet PITA 26 on 118.9 . Continue heading 014.

click click.

hickey POMTarget designated “Hickey”

Bradley pom

Target designated “Bradley”

Old McDonald pom

Target designated “Bob”

CRICKET advises Barrel Roll NOTAM. SPECTRE 36 will be working Lima Zulu Wagonburner Lane 1300-1600 HRS Local. All traffic advised to avoid Pennsylvania Ave.  east to Route 395. CRICKET clear

CAVC POM

LZ Wagonburner Lane Northwest

As soon as everyone confirms they have their press handout, I’ll distribute one to the asknod membership. We wouldn’t want the Great White Fathers in Washington to think they were less important than the great Unwashed.

The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/08/cavc-birth-of-a-writ-act-i-scene-5-bda/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , | 2 Comments

FUTURE MARINES–SNAPSHOTS OF THEIR YOUTH

Posted on January 8, 2015 by asknod

imagesEvery once in a while a guy- a Vet, mind you, sends you something priceless and slightly risqué. It’s the essence of what  you are by hormone. You strive to exert back pressure against the immense tug of your Tourette’s syndrome. You are inexorably compelled to by someone in control of your lips and tongue.  Yeah, me. Okay, but it does embody that singularness that infects a large number of my era of Veterans-most especially Marines.

This is what we fight anyone for. Friends, enemies- hell even fellow Marines. Add some alcohol and it simply develops a better plot line with more characters.

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WRITS OF MANDAMUS THAT GO NOWHERE

Posted on January 7, 2015 by asknod

imagesIn keeping with the theme this week, let’s look at a request for a Writ that went nowhere. In this game there are three settings. One, the most rare, is a Writ granted with sanctions, fines, sackcloth and ash-anointed foreheads. In your dreams, jelly beans but it’s what we all aspire to.

The second outcome, which is what we reasonably expect, is a request dismissed as moot because our public shaming of the Secretary forced him into doing what you’ve been asking or waiting for for over two years. VA cites to Chandler v.Brown, 10 Vet.App. 175, 177-78 (1997) as an excuse to dawdle. The Court cites to their boss the Fed. Circus- Cmty.
Nutrition Inst. v. Young, 773 F.2d 1356, 1361 (D.C. Cir.1985). Either way, it’s an excuse most often cited for delay.

The last is the least desirable option which is not an option. It’s a denial of cert. It’s a refusal to even consider it and more along the line of “Get in line like everyone else and wait your turn. And be quick about it.”

Constructing that perfect writ requires four items which is the Gospel according to Jean Erspamer. You need each and every one of these ingredients in full measure. Failure to meet or exceed any one is grounds for denial. The bar is set high for this Holy Grail as it probably should. That’s what makes this such great theatre. Remember the old Queen For a Day shows in the fifties? Black and white TV but the raw emotion and wailing, the gnashing of teeth, the tearful entreaties that this tale of woe met or exceeded any tale heretofore told on the show was the hallmark. And speak of woe. You never heard a country song with this many troubles. In fact, a country song would have to run on to twelve minutes like the long version of InnaGoddadaVida in order to fit them all in.

Well, Vets don’t cry so we have to channel our theatrics more adroitly. At the CAVC, apparently they have very strict Queen for a Day rules so you have to read up at their site. Focus on Rule 21 and 32. That is what you have to obey. The days of sending in a paper towel with your gripe attached to a poverty pledge are over. You can still get in free but you have to learn how to type-reeeeeally reeeeeally good.

Rule #4 right out of the gate is the one most hit their forehead on. It is the hardest to attain as mentioned above. Many Vets get discouraged with this and it leads to a great many giving up in frustration. This is what VA intended. If you make the Halloween corn maze too difficult to navigate, nobody will want to pursue it. Duh.

Rule #4 states:

4) Moreover, when delay is alleged as the basis for a petition, the Court has held that a clear and indisputable right to the Writ does not exist unless the petitioner demonstrates that the alleged delay is so extraordinary, given the demands on and resources of the Secretary, that it is equivalent to an arbitrary refusal by the Secretary to act.

Very few have met that metric in spite of their travails. Mrs. Erspamer’s petition was dismissed after almost two years because the Court browbeat a recalcitrant Derwinski into complying with the dark threat of sanction. Remember also that Derwinski questioned the Court’s authority to even hear her (or any) Extraordinary Petition in the first instance. Pretty ballsy guy. What did he think the response was going to be?  Derwinski and his VA ilk are living proof that testosterone can cause social problems…

Here’s a brand new one issued today. Joseph W. Hallett case number 14-4327, filing for a hurry up on his SOC, has made a terrible blunder. Well, let’s say someone did. He has a law dog but when his esquire entered the picture is vague.  Joe received his wave off July 2012.   Mark that date. Better yet, let’s do the time line.

2012

July 2012— Denial received

August 2012—File NOD and ask for Traditional review.

November 2012 — File New and Material Evidence prompting a de novo review  a la  38 CFR 3.156(b). This creates the need for a new look at it to see if it can be granted based on the new submissions. In VAland, this would have to end in a second denial and a new filing of NOD to comprehend the new aspects of the denial based on his new and material evidence.

2013

October 2013—- Request issuance of SOC (nine months)

2014

March 2014— second request for SOC sent in. (seventeen months)

May 2014 — VA bait and switch. VA declares it is now in possession of the wayward NOD one year and nine months after it was mailed.  VA now asks Vet whether he would like DRO Review or Traditional appeal.

This request is out of time legally as Mr. Hallett submitted N&ME  November 2012. VA has yet to make a de novo decision on that in the first instance before addressing the NOD which is now void ab initio based on the NM&E. If VA continues, they are committing procedural error and due process violation by announcing a denial in a SOC. VA OGC PREC 9-97 puts a hold on this claim until he is given the de novo review and then a SOC/SSOC.

June 2014— Veteran now elects to take DRO Review-contradicting his August 2012 election of a Traditional Appeal. This is the bone of contention. VA quietly allows this to slip by. Hallett can now expect to wait another two years for his DRO review. Four years from NOD to DRO.

December 2014— Hallett files Writ with Court

Mr. Hallett is asking the VA to expedite the May 2014 bait and switch in both the Court’s and the VA’s view. He, on the other hand, thinks he is asking for an SOC to be issued from the NOD filed twenty eight months ago in August 2012 (as of his December 19th, 2014) Writ filing.

A VSO might not be able to follow this but it’s fairly elementary. VA takes everything you say literally at the most recent event. Here, even though Joe had earlier asked for the August 2012 Traditional Hanging in the Public Square in Washington DC, VA now asks anew if he would like to choose once more. Joe opts in this time for the private execution at the hands of the Decision Review Officer. This new choice resets the appeals clock in everyone’s mind judicially (except Joe’s) so his Writ is now in violation of Rule #1 by trying to speed up his request and avoid the normal appeals path.

A side note is in order here. Normally when VA acknowledges receipt of your NOD, they ask which appeals path you wish to pursue. In this they were not remiss or trying to confuse Hallett. However, his earlier election in his August 2012 NOD is not forbidden by law, and if he had stuck with that election, his Writ would have meaning and the potential to cause the Secretary heartburn. VA cannot ignore what the Vet chooses but they can wait two years and come back and say “What’ll it be?

Mr. Hallett was represented by an attorney who forgot the admonition to put handcuffs , suspenders and belts on every phrase so there can be no confusion.  Here, the disastrous effects surface for lack of an effective phraseology, a later changing in mid-stream of what was asked for and an ill-conceived attack on the wrong perceived decision.

Even though we cannot say VA was engaging in estoppel, by giving him a new bite of the appeals path apple to purposefully confuse him (or his VSO) was adversarial in a most subtle way. An erudite attorney might have spotted this three card Monte game but maybe not. The end result is still a train wreck. This gets filed in the “Be careful what you ask for” cabinet of Writ jurisprudence.

Mr. Joseph Hallett’s denial of Writ.

Hallett Writ denial

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