CAVC–WAGES V McDONALD–READ ‘EM AND WEEP.

Posted on February 2, 2015 by asknod

imagesIn what Law dogs from NOVA Sea to Shining NVLSP Sea have hoped for years, the long-ignored  38 USC §511’s codicil about how only the Board(s) could make the final decision on an appeal from the Agency of Original Jurisdiction was finally “discovered” by the Court. One decision on appeal suddenly has to mean what Congress intended. You can’t insert the Director of Compensation and Pension into the lineup like a designated hitter. What’s funny is the enlightened folks up at the OGC just couldn’t digest that.

This has to be as unsettling as Walker v Shinseki was for Vets. Here VA has had a path to denial on extraschedular in effect for almost fifty years and suddenly the Court up and reads 38 CFR §4.16(b) literally. And it conflicts (or shall we say collides) with 38 USC §511. VA maintains that it only conflicts if you read it wrong. Ergo, if you read it in the light most favorable to VA, then it’s peachy keen. Unfortunately, Congress wrote it and VA merely is tasked with interpreting it into a regulation. Watch as the Word Wizards at the Court tie the VA up in knots with their own semantics.

Willie C. Wages filed at the Drew Carey Memorial VARO in Columbus Ohio back in the early 80’s and got a few 0% ratings. He finally came back and began building his TDIU in 2000-2010. He was out of work, unemployable and had a rat’s nest of 30%rs, 20%rs and a lot of 10s and 0s. No singular disease was enough to create the benchmark of 40% to add up to a combined 70% nor did he have a singular one of 60%. By 2009 he had enough to do so and applied. VA and the BVA refused to budge. In a showing of what we all know is pure dog and pony show, the BVA judge made a grand gesture of sending out for the Director of Compensation and Pension to wave his magic wand over it and make an informed decision. No dice.

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The big error here, for all these years, was to involve the Director in it at all. He became a de facto judge in his own right and Vets didn’t get a “hearing” or an opportunity to rebut his findings. He became a third wheel in what was supposed to be a two step process. Anything he said could not be evidence against you because he wasn’t part of the BVA/VARO adjudication scheme.

Willie’s predicament has been suffered by so many as to be joke. Nobody gets extraschedular unless he/she is related to the VASEC or Laura Eskinazi. The Court decided to disassemble §4.16(b) and look at the component pieces. All was well until you insert the Dir. of Comp/Pen into it. The Court takes the magnanimous position that if you want to write goofy regulations, that’s your business but don’t let them conflict with the USC’s tenets.

Although the Secretary initially argued that the Director’s decision was indeed evidence upon which the Board could rely, the Secretary now contends, in response to the above-mentioned order, that the Director’s decision is not evidence. Rather, the Secretary now argues that, although the Board may review the factual basis of the Director’s decision to ensure that it is accurate and complete, § 4.16(b) operates to divest the Board of the authority to overturn a Director’s decision because determinations under § 4.16(b) are policy decisions committed to the Director’s sole discretion. A contrary view, the Secretary argues, would render the referral process in §4.16(b) meaningless, time consuming, and unnecessary.

You can see the battle lines being drawn here.  Rule #1 is: My regulations make sense because I wrote them. Rule #2 is: If they don’t make sense go back to rule #1. The Court is getting ready to take the OGC acolytes on a wild ride and disabuse them of this misconception. Here’s the first shot across the USS OGC’s bow:

Although the Board is required to obtain the Director’s decision before the Board may award extraschedular TDIU, we find no merit in the Secretary’s contention that the Board is limited to ensuring that the Director had the correct and full facts when rendering his decision, or that the Board otherwise is bound by the Director’s decision. Such a contention creates a direct conflict with the statutory mandate that the Board render the final decision for the Secretary on all questions arising under 38 U.S.C. § 511(a), which, as discussed below, indisputably includes an award of TDIU. See 38 U.S.C. § 7104(a) (“Final decisions on [section 511(a)] appeals shall be made by the Board.”)

The Court slowly dismembers the OGC in bits and pieces by cherry picking the proper language the VA has already incorporated into other regulations: The OGC argued above that misreading 4.16 would render the job of Director of Comp/pen superfluous. The Court disagrees subtly:

On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance. Indeed, nothing in the language of § 4.16(b) purports to limit the Board’s scope of review of the Director’s decision.

And:

Moreover, even if the plain language of the regulation could be interpreted as limiting the Board’s scope of review and precluding a final Board decision that was contrary to the Director’s § 4.16(b) determination, such an interpretation would contravene the clear congressional intent expressed in 38 U.S.C. § 7104(a) that the Board shall be the final authority on all benefits decisions.

Ruh-oh, Rorge rote it rong.

“It is the established policy . . . that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled”.        “[T]he mandatory ‘shall ‘ normally creates an obligation impervious to  discretion.”

In short, the Director’s decision is no different than an RO’s decision in terms of its effect on the Board’s statutory jurisdiction and the Board’s standard of review.

download (1)The judges just keep digging the pit deeper and deeper. Lord knows, the OGC gave them a wealth of shovels to do so. Here’ the clothesline  moment.  Hizzoner the Secretary  is free to write them regulations up any old way he wants to. We don’t see any conflict. If he wants to drive to Boston via Denver, why, by all means have at it.

As to the Secretary’s argument that de novo review of the Director’s decision by the Board renders the referral process in § 4.16(b) meaningless, we note that such a referral is the Secretary’s chosen procedure under § 4.16(b). Withholding the authority of granting extraschedular TDIU from the numerous and various ROs can provide a degree of uniformity over such decisions that would be difficult to maintain if each RO were permitted to award extraschedular TDIU.

The upside to this decision is long overdue. For years, the Director of Comp/Pen has wielded unparalleled power over all extraschedular decisions and rarely awarded any- even in the face of judges inclined to do so. Many are the Vets who ended up on the losing end of this logic-especially on appeal. From here on out the VA is put on notice that the Board has to be the bad guy and deny the extraschedular instead of making the Director the bad guy. Willie’s TDIU gets remanded back for a do over and the Director’s testimony gets tossed. It’s a win-win for us and one more positive step towards what is legitimately ours via §511.

2015 promises a wealth of these Veteran-friendly decisions. Willie might have to appeal all over again but I don’t think he will have to, personally. The writing on the wall for extraschedular is out of the closet. BVA judges are going to have a tough time finding good reasons and bases for denial with this precedent hanging over them.

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Posted in CAVC Knowledge, TDIU, Tips and Tricks | Tagged , , , , , , , , , , , , , , , , , , , , | 3 Comments

LZ CORK–BOB LOCKETT’S LP AT THE BOTTOM OF THE LZ.

Posted on January 29, 2015 by asknod

LZ Cork lpLZ Cork was a zit on Charlie’s ass from the moment they built it in early fall 1968. It’s artillery covered a wide swath of land from it’s high perch. The Viet Cong began an eradication plan in earnest when the dry season began in January. Probing gently for the soft spots every night, they eventually landed on a frontal assault on the listening post down at the bottom at the south end of the LZ.

This was A Company 3/21’s LP and manned by  Sgt. Plummer,  PFCs Bob Lockett, David Balzarini, Dennis Johnstonbough and Bernard “Ducky” Duran. A 60mm mortar round landed right in the middle of them that night about 2325 Hrs. Butch got clobbered in his bunker further up the hill moments later. Bob didn’t mention where the 90-day wonder Lt. Kellenbenz was. He perished as well above in the TOC.

That day, Gypsy Rose Lee, now a spry 58, arrived for a USO morale booster. Bob Lockett had his picture taken with her that afternoon. Right behind her in the picture, wearing a dark t-shirt was Butch, waiting for his autographed photo.No one could know that the future was going to change and dramatically alter 13 lives- 3 permanently.

GL Rose and Lockett

Bob Locket with Gypsy Rose Lee January 16th, 1969

I really appreciate Bob’s allowing me to tell this as so few can comprehend the grit of real conflict. Many of you are planning to see or have seen American Sniper by now. It conveys the same concept of eternal vigilance and angst but it’s still a Hollywood reenactment. The stunt men all get up and dust themselves off and go home. At LZ Cork the poker game was for keeps.

In Bob’s words:

If you look at the geography of LZ Cork, our squad (Plummer/Lockett/Balzarini/Johnstonbaugh/Ducky (can’t remember his real last name) were on the LP down stream from the top of the hill. I have some pictures that can give you some perspective). One of the first mortar rounds that hit was a direct hit of the bunker I was in with Balzarini and Johnstonbaugh(I use that term loosely). I attached a picture of the bunker and I humbly apologize for the “John Wayne” shot. What can I say, I was 20 and assumed I was invincible.

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That round cut Balzarini in half and took both of Dennis’ legs. I was so very fortunate, I took shrapnel to the head, cheek and arms, but the wounds were not all that bad. David lived for about 10 minutes after he was hit; I don’t know how. He basically was disintegrated from the waist down. I dragged Dennis to a bunker about 20 yards away, then went back and dragged David to the same spot. Everyone on the LP was wounded to some degree. Ducky had shrapnel to the stomach, I can’t remember what wounds Plummer had.

081It was pretty chaotic as you can imagine, the VC were trying to overrun the LP, Plummer, Ducky and I were laying down M16 rounds to keep them pinned down. At some point we ran out of ammo and the VC starting advancing again. I was looking for ammo when I tripped over a case of grenades (see picture where I am writing a letter – I am sitting on it. I dragged that back to our position and we started lobbing grenades down the hill and the VC retreated. About that time some guys from the hill arrived in our LP with ammo and that was the end of the fight. I do remember that ‘Doc Campanelo (I may not have the name correct) was one of the guys that came down and he bandaged me up and put tourniquets on Dennis’ legs. It is pretty much blurry after that (they shot me up with morphine) and I got on the chopper for the 312th Evac in Chu Lai. I was there for about 3-4 days, and was transferred to Cam Rhan Bay. I was there about a week (Fagan was there too), then to the 249th in Japan. From there I went to Fitzsimmions in Denver and had several operation. After I was discharged from the hospital, I spent my remaining time at Ft. Campbell.

I have never told this story to anyone – but if this helps Butch at all………I hope he gets his overdue accolades.

As a side note, I thought Post Traumatic Stress was for wimps. About 15 years ago I was in church and started crying for no reason. My wife asked me what was wrong – I didn’t have a clue. Turns out I was going to DC for a convention and one of my ‘side trips’ was to the Vietnam memorial. I wanted to find David’s name. It all came crashing down around me – emotions I did not know just poured out. After I visited the memorial, I tracked down David’s mother in Jeanette PA. I called and told her who I was and I was the last person to see David alive. We both cried and I agreed to meet David’s younger brother in Houston about a week later and gave him copies of the last pictures of David. It was like a burden had been lifted.

Balzarini and Johnstonbaugh looking down the hill toward the LP with M-60 on top of bunker

David Balzarini above the LP in the LZ bunker area.

As one Veterans site put it “This ain’t Hell but you can sure see it from here.” I thought we in the Air Force suffered the deprivations of war over there but Bob Lockett’s testimony and pictures speak volumes more than any Hollywood portrayals of that era.

As if all this wasn’t a coincidence that Bob would find his way here now, 45 years later, one of our fellow members of the WIN or DIE VA Claims Club  “Doc”Jules wrote me yesterday. He offered his help in doing an Independent Medical Opinion (IMO) for Butch on his muscle injuries from the retained metal fragments. Turns out, one of his medical acquaintances there was a fellow named Mike Balzarini-yep- you guessed it- David’s cousin.  And in his own words:

Yup, its a small Army but I would hate to have to paint it all.  I showed Mike your posting about Butch and Dave’s last stand and he was quite touched that anyone remembered after all these years. Mike was a medic in the 82nd’s Engineer Bn during the Grenada fun run and went on to become an SF medic. Lately he has been a surgical NP for the past 20 or so years in these parts. He has been helpful to me in pursuing my claims by providing me with orders for MRIs and other objective tests.

When I set out to help Butch, I had no idea this was going to balloon into a family reunion of 3/21’s A Company. Bob’s photos and history fill in a few blanks for some and create more for others but they are real and not concocted by reenactments. The photography accentuates the stark reality of life at LZ Cork- but only the prelude. Here’s a shot of Butch’s infamous bunker up the hill from the LP. The VC mortar round landed exactly  in between the two covers. A direct hit on the one to the right would have put Butch in a heavenly zip code along with Balzarini and Kellenbenz.

Butch bunker

Thank you Bob for opening up. Many would find it difficult, no matter how many years pass, to revisit these memories.

PS— Bob enlightened me later to say Lt. Kellenbenz was killed inside the TOC from the satchel charge. It collapsed the roof which crushed him when it fell.  Best to let history be. If the army knew he wasn’t busy fighting, he technically wouldn’t be entitled to a CIB. But we know every officer’s Silver Star was paid for with enlisted troops who were lucky to get a Bronze. Amen

Posted in Food for the soul, From the footlocker, Inspirational Veterans | Tagged , , , , , , , , , , , , , , , , , , , , , , , | 12 Comments

CAVC BIRTH OF A WRIT–ACT II SCENE 6-THE 30 DAY LETTER

Posted on January 29, 2015 by asknod

imagesThis is what we have been waiting for with parted lips, bated breath and straining eyes for fifteen days. Obviously Judge Davis is giving the VA lots of room to maneuvre their post-hoc rationalizations into place. Much like artillery emplaced at a strategic high point, it gives the OGC more breathing room to assimilate this Writ and develop a firing solution.

The thirty day letter is a Stand and Deliver Notice from the Judge asking the VA Secretary, in the guise of some young staff attorney out of the OGC’s office, to describe their side of the story as every story is multi-faceted. It could be that the Petitioner (me) is full of hot and air and lies and merely trying to besmirch the Secretary’s good name.

Judge Denied Davis

Judge Denied Davis

Dawdling this long ensures the OGC got another 15 days to fabricate a fanciful tale of demons and dragons inside computers that ate, swallowed, shredded or discombobulated justice in some never before seen scenario. The story may evolve into the fact that because of this, appropriate safeguards are going to be installed at the BVA to make sure this never happens ever again. Mercy for the transgressions will be begged for and a remand to make it all better will be expected.

On the heels of Gene Groves’ debacle, we pray Davis assumes the mantle of umbrage that the BVA would have the temerity to pointedly ignore the mandate and order of the Court. This is the chord we seek to strike. Bold- but not brash.

This is a series of articles on filing a Writ. To view the next installment, please follow this link: https://asknod.wordpress.com/2015/02/22/cavc-birth-of-a-writ-act-3-scene-1-the-ebennies-mad-scramble/

30 day letter

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Veterans Law | Tagged , , , , , , , , , , , , , , , , , | 7 Comments

CAVC–BIRTH OF A WRIT–ACT II SCENE 5-THE BITCHSLAP BACK

Posted on January 29, 2015 by asknod

imagesAs somewhat expected, but so inartfully done, Judge Davis has decided there will be no Oral Roberts speaking at the CAVC regarding my request for an oral briefing. Judge Davis is not “Veteran friendly” in most cases and could have held this request in abeyance until he sees what kind of cards the Secretary is holding. Remember, this is a poker game with hole cards. The Secretary will be bluffing and betting like he has a three of a kind and drawing for a Full House.

Judge hang 'em High Davis

Judge Hang ’em High Davis

The important thing would be to see and call this hand and then begin a new gambit. To refuse an oral before the case has even been dissected is very nearsighted judicially. Well, we didn’t expect much more from Judge “Deny” Davis.

Here’s the simplified denial in the CAVC EZ short form mode.

Oral Roberts denialThe Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/29/cavc-birth-of-a-writ-act-ii-scene-6-the-30-day-letter/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus | Tagged , , , , , , , , , , , , , , , , , , , , | Leave a comment

ROTTEN BUTTER AND HORSE TREATS

Posted on January 27, 2015 by asknod

downloadYeppers. Just like the title suggests, this did not turn out well. I have an incurable appetite and considering how skinny I am, it’s a good thing. I get those 8 pound cheesecakes at Costco and that covers a week. Being that hungry, I sometimes eat something that wasn’t meant to be. I’m sure a lot of you guys have this problem, right?

I’m somewhat of a bohemian when it comes to eating. When I discovered the red piss ants in my Fig Newtons one night in the dark in Southeast Asia, I finally made peace with the idea that dining was never going to be perfect with tablecloths, real silver settings and the fine china every meal. From then on, it was easier to eat things that were “marginal” under adverse conditions. It had stood me in good stead until I married. That qualifies for  an “adverse condition” if I ever heard of one.

Cupcake has told this story a thousand times and it varies from a cup of butter to a whole pound depending on how many brewskies. It could never happen again in a thousand years. For the record, I’m positive it wasn’t more than a half a cup (a quarter stick). My neighbor died (an old Navy Vet) and his daughter gave us his refrigerator (1988). I briefly glanced inside after the wife cleaned it, unplugged it and put it outside in our garage.We moved to a new home out here in Gig Harbor about 10 months later. The house had no refer so I wheeled Bill’s inside and plugged it in. Several days later I toasted some English muffins and put some butter on them. Standard military procedure. Refer/Butter box/butter/English muffin/ Forward march to dining hall.

I should add that I was addicted to the demon weed tobacco and smoked about a pack and a half a day of Marb Reds. I couldn’t smell very well and it “impacted” me as Cupcake likes to sneer say. I ate them English muffins with some honey on them and they were good.

Cupcake entered the kitchen and asked what died. She couldn’t find the smell so she took the garbage out.  The next day the same thing occurred but she caught me about a millisecond before I ate ’em.  A much better nose than mine immediately figured it out. Turns out she hadn’t bought any butter lately. The box said “best if consumed before August 1987”.  Shooooo doggies we were way past that. Somehow that was my fault.

The laundry detergent on the kitchen counter that looked like powdered sugar when you’re not wearing your glasses should have cured me of this a few years later. Who ever heard of putting laundry detergent in the Kitchenaid to bust up the lumps? It’s not food. It has no business being in the kitchen.

DSC01092Fast Forward to 2015 and Christmas/ New Years. Lots of chocolates and cookies and candy are lying around and quite frankly, demanding to be eaten before they spoil. So what should my wandering eyes behold the other day but a baggie full of what looked like, well, some kind of nutritious crap Cupcake is always pestering me to eat. It didn’t have one of those Chinese names like Tofu or Yoplait on it so it had that going for it.

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DSC01094One bite of this dang near took off my brand new VA-paid for porcelain crown and I turned to Cupcake and told her as much. She started giggling and I foolishly continued that this trail mix had a wheat grass-like back taste to it. Sugar Pie swallowed her tongue.  We’re talking blue face- 911 here. She laughed so hard she got the vapors and, well nevermind. She laughed a lot harder when I asked her if she got it at Costco because, frankly, I thought the shit was inedible. When she recovered, she called Buckwheat Junior and told him. Shucks. I’d be plumb laughed out by then but she’d just got started. She told him I was eating “Images” food. I sure didn’t discern any apostrophe in that word.

Turns out that’s Image’s Horsey Christmas treats. It was labeled Images. No apostrophes. Yeah, we do have a horse named Image (singular) but that doesn’t mean anything. I’m pretty sure there are companies that sell horse treats named Images. I can see the S at the end. Any fool can. It’s false advertising under the best of circumstances and should be labeled as non-human food. I’ll bet it’s against the law in forty five states to sell unlabeled horse food. Besides, Image doesn’t have hands let alone an opposing thumb. So how was he supposed to open this bag and get the treats out? Horses don’t eat plastic. It’s bad for them. All these queshuns and noooobody has any answers. It’s really not that funny. I think she set me up.

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Posted in Humor | Tagged , , , , , , , , , | 2 Comments

LZ CORK– ST. VALENTINE’S DAY 2015

Posted on January 26, 2015 by asknod
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Leslie “Butch” Long

As promised, our war hero Butch Long is recovering slowly and regaining his strength. He hasn’t graduated from his wheelchair yet but all in good time. We’re on for Congressman Kilmer presenting his medals and the CIB he somehow missed the boat on in 1969. Of more import is a slight problem I am hoping some of you may be able to help me out on.

I know I am going to be crucified for this but I’ll just go ahead and step smartly on my necktie. While Butch was in the ICU back in November/December, he took his upper dentures out before he went to sleep and carefully wrapped them in a kleenex to keep them clean. Some industrious gomer cleaning up threw them away the next morning while he was still asleep. No one in ICU would take responsibility and Butch is out half of his dining capabilities. This is becoming a serious problem as it’s hard to thrive when you cannot eat. Medicare is not going to come to the rescue. And because Butch didn’t serve after 9/11/2001, the Wounded Warrior Project has declined help.

However, I do have a lead through Representative Kilmer’s VA honcho. She, a Veteran and a denture builder (dentist?), may be able to do it for a greatly reduced rate as she’s done it for another Vet in similar circumstances. Butch and his wife are not well-heeled and are very proud as are most Vets. They don’t cotton to handouts-including mine. I am meeting resistance in any help I try to give so I am hoping a deluge of well-meaning Veterans from the asknod family will step in to help me fill the breech. They can’t deny total strangers right?    This is straight across the board. Every dime you folks donate to him goes to him. I’m just the wheel man. This is how Vet charities are supposed to work. He and his wife will probably kill me for doing this but I cannot think of more deserving souls and most certainly no more deserving Veteran.

Bischoff Food BankI do not have a 501(c)(3) so you’ll be writing the check directly to them. If you don’t think that’s a worthy idea, I’ll pitch another one to you. His wife Barb “works” for  the Key Peninsula Bischoff Food Bank. They are a 501(c)(3) and you can write the donation off if your goal is a tax writeoff. Or, if you feel sufficiently motivated, you might think about dividing your donation in two equal parts and give equally to both projects. I’m not on the best of terms with God so I can’t speak for Him but I expect he’d smile on this endeavor.

I donate all my excess food production to Bischoff as it is distributed very locally here on the Key Peninsula. I sometimes accidentally drop money on the floor there as I’m scatterbrained and suffer old timers disease. There are a lot of “underemployed” since the last economic rearrangement out here and a middling number are Veterans. Cupcake also generously contributes from her real estate company as well. After the Christmas rush, there’s always a dearth of food and money to help the needy in an enterprise of this nature. By rights, you’d think everybody would be going on a Jenny Craig New Year’s diet and trying to shuck some pounds and there would be even more food about.

Now, some proscriptions are in order. If you are destitute yourselves, please refrain from donating. The last thing we need is more problems elsewhere across our underfruited plain. Robbing Peter to pay Paul is right out. Please do not get a bad case of generous. It may embarrass Butch and backfire on me. I can’t take the money unless you write the check or money order in his name.  This is a temporary phenomenon until I can get his rating increased to a living wage because his SSI check barely covers the rent.  The new Affordable Care Act also means he has to pay the hospital back some shekels for his three-week staycation. If I can get him up to 100%, VA will cover his dental but not before. That’s VA’s catch 22- A grateful nation honors its Sons of War-sort of.

If you can believe it, the VA gave Butch a whopping 10% for “scars” covering less than 15% of his body in 1970. Somehow, they forgot about the SMC K for his right eye-the one the shrapnel went through the year before. It missed going into his brain by less than an inch. He’s been somewhat functionally blind ever since and was just reluctant to admit it to anyone. VA didn’t volunteer remuneration for that and I aim to rectify it. One big problem is they aren’t regurgitating his claims files in spite of me putting dynamite under their asses. I’ve turned that over to Rep. Kilmer’s folks now as well. The next step will be a Writ of Mandamus but I’m praying for VA to just be a stand up organization and disgorge them. Until that happens, we’re in the here and now.

I enclose pictures here of Butch’s right arm. I doubt any of you have ever seen the effects of a mortar round on human flesh. Due to the minute size of the retained metal fragments, they tend to surface much later over time. They couldn’t pick them out in 1969 and they certainly can’t now. Butch has been pulling them out for decades. VA somehow neglected to even issue him a pair of tweezers and a box of bandaids.  We have another Vet here on the Key Peninsula (Gordon) who had an encounter with a Bouncing Betty in 1967 near Quang Tri and he suffers similar problems. Unfortunately, he did lose his right eye and few other of his 2,000 body parts.  All those black spots are bits of the mortar. The right side of his body looks like someone spilled pepper on snow. The red spots are healing areas.

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If you are interested in helping, you can make a check payable  to Leslie C. Long, care of me here at my place. I’m going to present them to him on St. Valentine’s Day at his awards ceremony. Similarly, if you’d be interested in helping out the KP Bischoff Food Bank, I’d be forever in your debt. It will certainly help tide them over and keep body and soul together for those without.

The address is:                                         Leslie C. Long

c/o Alex Graham

14910 125th Street KP N

Gig Harbor, WA 98329

Substitute KP Bischoff Food Bank as payee and use my address for them as well. I promise to keep you apprised of your combined efforts here. KP N stands for Key Peninsula North. We live on a stretch of land like Florida. Imagine KP N being the north end like Orlando as opposed to KP S (South) being Miami. Allow me to illustrate with Google Earth.

Capture 3

I’ve never done this before. Then again, I’ve never been faced with this challenge. We former Air Force types tend to make do and “requisition” things as needed from our own resource pool.  I’d be obliged if you felt moved to help out. Seems St. Valentine’s is also an auspicious time to get a heart-especially the Purple variety.

download (1)

I thank you for your generosity in advance. No pay pals. No FundsRus. Just good old fashioned snail mail checks like good neighbors do. 100% of the ordnance will hit the target.

LZ CORK is a Multipart Series 

Here’s the next installment

Posted in Food for the soul, General Messages | Tagged , , , , , , , , , , , , , | 4 Comments

BVA’s ESKINAZI– THE PROBLEM BEGAN IN 1988

Posted on January 23, 2015 by asknod

download (2)When we think of delay in our VA benefits sector, we ascribe it to too few raters being asked to decide too many claims with too little information in real time. Unfortunately, in VAland, “real time” is three months ago. Veterans are on the cusp of an exciting age of electrons boldly going where no electrons have gone before (VBMS). Boldly venturing off the cusp seems to be the impediment at the VBA.

In theory, VA’s IT  sherpas should be reaching the summit of electronic information retrieval.  Access to it, once you have it assimilated in a word-searchable .pdf format, is childsplay. This is what we envision VA’s ratings departments are attaining in the transformation towards a paperless system. Hey, the mailrooms are freeing up additional personnel. Everything is now going to Cheeseville and Newnan’s Own down in Georgia. There, all the paper gets converted magically 24/7 into those bold little electrons. Either the fibreoptic cables or the electrons are misbehaving because this avalanche of information can’t make it back to the VAROs in that pesky “real time” we need to make VBMS a reality. VA’s version of reality, like their math, can often be cruel.

BVA’S ADJUDICATION TIMES—POST-VJRA

In 1989, it took from July 13th to October 20th to get a denial on my back , hips and hearing. I had a hearing test but no back C&P exam. I immediately appealed with a NOD and got a DRO hearing. There, in July 0f 1990 I was granted an exam for my back that September. It resulted in a denial again and I filed my Form 1-9 in February 1991. I had my BVA necktie party in March of 1992 and the DAV told me I was done. I got 0% for hearing, 0% for tinnitus. No mention of the brand new COVA. From start to finish was a ripping three years and seven months.

BVA’s Commander of the 7th Cavalry, Colonel (Brevet Maj. General) Laura Eskinazi, reached the nadir of hypocrisy recently when she blithely ascribed the new three to four year debacle of appeals backlog at the BVA on the advent of the Court of Veterans Appeals.

countReally, Laura? You want to die on that hill? 300,000 Veterans awaiting action outside your front door and that’s the repair order? Repeal that  pesky VJRA and let’s get back to our old three-Judge boards with one being an M.D.? Ooooookay. Let’s count the judges as they say on Sesame Street. It is mathematically impossible to reduce the BVA’s backlog with the number of VLJs as it currently stands. And, much like a log jam in front of a low bridge, it merely metastasizes as time goes on.

Laura knows this and has known it for years. She is now in a position to correct an intractable, growing dilemma and wants to blame it on the 1988 Congress. No mention of a repair order. Oh. Wait.

EXPORTING THE BACKLOG TO DC

The 58 VAROs, in a vain attempt to appease USB Hickey and comply with than insane Kaizen mantra of 2015, 125 days and 98% accuracy have simply punted to the BVA. An old French philosopher once opined Mes problèmes sont vos problèmes. Here, he couldn’t be more spot on. The backlog at the local VAROs is abating like a Roto-Rootered drain. Pretty soon you’ll start hearing that sucking noise as it empties. Unfortunately, there will be a line from Seattle to DC of appellants awaiting that mythical “one decision on review” promised us by Congress in a timely manner.

Here’s Laura’s take on it:

 “[T]he law mandates that appeals be reviewed in the order they are received.”

Laura. You know that’s not true. You personally invented the “rocket docket” which seems to be able to leap tall piles of older dockets at a single gesture of your hand.

The current process at the BVA is streamlined to one decision per judge per day. Even using the new, improved Eskinazi rocket docket model for the easiest of easy denials, we’re talking about reducing 100 claims a day on an excellent month when everyone isn’t on vacation or attending HR kareoke training in Orlando. Sounds good on paper view. Or are they saying pay-per-view?

WHY THE BVA WILL NEVER CATCH UP

Count the judges. On a good month, with a bunch of pedantic appeals, an Acting Veterans Law Judge can be assigned to it from the Staff Attorney pool of 500 or so JD slaves. These future VLJ judges in the wings are given the accrued benefits claims and an easy thumbs down but the numbers still do not add up. Even with the one hundred adjudications a day, the number of actual weekdays worked each year still precludes ever catching up.

download (4)Even allowing for a two week vacation to Wally World with the Missus and the rugrats, Mr VLJ is going to work approximately 230 days a year in good health with no dental checkups. Like the VA, I’m being overly optimistic with that number but as long as we’re in Six Sigma fantasy land, it’ll do for a starter. Carried out, that is 230,000 potential adjudicatory actions by VLJs- be they remands, grants or denials. With 300,000 waiting in the wings, that easily carries over the leftover 70,000 appellants into 2016. But that is not all-not by a long shot.

The CAVC is now becoming quite a Veteran tourist attraction. More and more of us are wandering off the BVA reservation penniless and discovering gazillions of law dogs begging to take our cases regardless of their merit. It used to be that 2,000 cases a year from the BVA was high tide. This last year it was 4,438. The CAVC judges armored up and hired two extra ones. Farthinkers, they. That disturbing statistic skews Laura Eskinazi’s math because 65 percent of the decisions at the CAVC either reverse, vacate or set aside BVA decisions which are substantially unjustified. Now we have 72,884 souls on the BVA’s Group W Bench. But wait. There are more returning from the VAROs yet again like dead Chicago voters materializing out of the woodwork in November. Remember remands are like boomerangs and 80 % of these things come back like a bad penny.

Introducing that error factor into the BVA decisions process and, by association, the VAROs who contrived this little game of Hide the Claim, the dynamic becomes one of a Rube Goldberg eternal motion machine that accomplishes nothing. We see a government entity- the VA in this case- engaged in measuring metrics of how many claims in, how many claims out but never how many done correctly which will never enter the system again. Absent this correction factor, the statistics are meaningless.

download (1)Making matters worse, Eskinazi would have us return to the pre-VJRA stone age of BVA hieroglyphics and the secret handshake. Imagine 40 Boards of three judges each (if one wasn’t on vacation) where one was a doctor of something-a gynecologist for argument’s sake. He will be allowed to opine on PTSD and Hepatitis C- a veritable jack of all diseases and master of none. In the event of his absence, the other two judges would still form a quorum legally. 40 decisions out the door each day with 100% accuracy and we’ll brook no more discussion on the subject. The doctor has spoken. Next?

Ms. Eskenazi said the problem began in 1988 when it became possible to appeal a Veterans Board of Appeals decision to a judge, adding another layer to the process. Prior to that, the final decision on appeals would be made within the agency.

Using this model, the BVA backlog will move inexorably forward but will still never begin to achieve it’s goal of six months to a year. Why this glaring statistic is so hard to absorb speaks volumes for the myopic VA hierarchy. Like a junkie being sent to rehab,  they are mortified at the thought that their decision making authority may be curtailed or diffused by “subcontractor rent-a-judges” brought in to alleviate the situation. Judging by how hard it is to rid ourselves of the Sharon Helman’s of the VHA, we can understand Laura is loathe to hire a bunch of new judges. She’d simply have to lay them all off in five or ten years. Well, that’s assuming we aren’t foolish enough to go gadding about and start some new wars. Perish the thought. We’ll cross that bridge when we come to it.

Posted in BvA Decisions, VA BACKLOG | Tagged , , , , , , , , , , , , , , , | 6 Comments

CAVC–WHY A WRIT CAN BACKFIRE–WE FIXED IT, YOUR HONOR.

Posted on January 22, 2015 by asknod

imagesIn keeping with Writ week, I peruse the Court decisions daily for fodder to illustrate how and why your writs can go astray. Here, Ms. Rhonda Hunt is going to find out that she was granted what she asked for. She is using Daniel Krasnegor and Co. as a shield bearer. She is also paying the filing fee which indicates she’s not indigent.

What happens next is predictable. So predictable that I was careful to bring my problems to a boil and keep them simmering for almost two years to give VA plenty of rope to clothesline themselves with. Ms. Hunt is complaining that Fort Fumble in Whacko, Texas has held her remand hostage for several years. VA is preparing to “fix” it as only they can fix your wagon.

Rhonda Hunt’s Holy Crusade Writ

Instead of adjudicating or responsibly dealing with Ms. Hunt in a nonadversarial manner, the RO jury quickly opens the door a crack and hands out an envelope with her SSOC continuing the denial. This squanders scarce judicial resources and will force Rhonda to climb back on the hamster wheel for several more years awaiting her claim’s immaculation as a certified, Form 8-stamped, Substantive Appeal ready for transmission to the BVA.

One thing you can be assured of. No one at VBAWACO even cracked the c-file. This puppy was Adobe II’d and sent to the copier. $50 dollars says they copied and pasted the denial onto the SOC  verbatim just to satisfy Judge Mary. Sadly, Schoelen is relegated to simply stating that the VA and the RO have complied with Rhonda’s request.

And when she and Mr. Krasnegor finally get a seat in DC at Vermin Lane NW, they’ll be insulted yet again by the paternalistic system set up to run us until we drop in the traces. Fortunately, her chances with Mr. Krasnegor are light years ahead of using her local DAV.

unnamedThat is what will happen to many of you who arrive at the CAVC seeking this avenue of relief. Be aware of it.  Always do everything in your power to prove you have been diligent in pursuing the claim but realize VA is heartless. Here, going after an extra-schedular rating was futile. Rhonda should know, and unfortunately does now, that going for extraschedular is like saddling up for the Holy Grail Crusade. Don’t expect a miracle. Good intentions aside, very few claims increases are achieved via this approach. Your circumstances must be so unique and extraordinary as to defy imagination for VA to even consider it.

Posted in Extraordinary Writs of Mandamus, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , , , , , , , , | 3 Comments

CAVC– BIRTH OF A WRIT- ACT II SCENE 4–THE BITCHSLAP

Posted on January 20, 2015 by asknod

imagesAs to whether LawBob Squarepants could get any more obnoxious, the verdict is in. Having snuck in to work on Saturday and filing his appearance before the Court electronically, he’s now compounded it with interest. 

Rarely do Veterans filing Writs ever ask for an oral hearing. Perhaps of more import, very rarely are they ever granted. LawBob estimates maybe 30 or so in the twenty five years of the CAVC have surfaced. But then, rarely has the sound of a VA bitchslap reverberated across two decades of worthless promises and broken agreements to one Veteran. Perhaps of more import, we have the added spectre of a broken VR&E system that has been caught with it’s pants down cheating.

unnamedI sure don’t cotton to be the recipient of that oral award but Bob does it for one simple reason. It sets valuable precedence just as Mr. Groves’ recent writ did.  An oral presentation tends to have Tourette’s Syndrome moments such as the one before the Supreme Court when the VA’s litigator inadvertently was forced to divulge that in 60% or more of cases, the BVA was “substantially unjustified” in their litigating position. This is the awkward spectre the OGC wishes to avoid. Airing the dirty laundry on paper is unfortunate. Putting it on Youtube is right out in VA’s mind.

A Writ poses another unfortunate spectre for VA. The pace of their required response is accelerated to light speed. There is no time to rehearse pedantically for hours in front of a mirror to summons the proper amount of servitude and debasement before the Judge. The OGC has to fish or cut bait. They must choose a “fight or flight” posture in less than a week. VA can’t find toilet paper in the bathroom in less than a week. Is the Veteran blowing bubbles? What do we have on him? Run a CBI and see if we can unearth some dirt. Belay that order. Grant the claims at 0% and issue an SOC! Somebody fall on their sword! Ask for an OIG investigation! Keep Bob and Allison in the dark on this if you can.

Most Veterans have a shaky posture on one or another facet of a Writ. Few have a full house and fewer still have a flush like me. In some of my adjudications, VA has committed themselves to a course of action that doesn’t permit a line of retreat.  For instance, it is now impossible for VA to “reconsider” their SOC they sent out telling me there is no such thing as a “totally disabled” rating. There is no way to drag back a SSOC reiterating why there won’t be a greenhouse in my 2014 Christmas stocking. This is the pearl necklace you create methodically over time.

A Writ would have no substance if I simply arrived with a grab bag of gripes the OGC and the Seattle VARO could solve before they even had to make their first appearance before the Judge. You want them to arrive still pulling fresh punji sticks out of their asses and begging for time to set matters aright. You want the judge to dryly comment that it would seem they’ve had twenty years to accomplish that already. Granted, Judges try desperately to appear impartial but we all know differently. Judge Davis is a hard ass by any judicial metric so it behooves us to appear as pure as the driven snow and also a whole lot more wronged than a pregnant, abandoned wife with five starving kids.

Appearance is everything. Check. Standing is essential. Check. Perseverance and long-suffering are more imperative than ever to create the perfect storm. And Checkmate. Once that hurdle is overcome, the Judge merely presides over a sackcloth and ashes ceremony where the miscreant (VA) gets points for authentic groveling. Somewhere at the end of each utterance by the Judge will be a “And be quick about it”. VA will need to comply with each element of perfidy individually and with celerity. They will not be allowed to assemble all the repair orders and present them neatly bundled up for inspection. This is going to resemble Supermarket Sweep with a hunt on for the big ticket items to appease the wronged soul and avoidance of the impending sanctions of the Judge. I will also be asking personally for my EAJA fees over this above and beyond LawBob’s. Oral Presentations are an excellent forum for these dog and pony shows if you are a Veteran. Not so much for VA. They tend to avoid them like Ebola.

And the Writ unfolds like an umbrella…

The LawBob Oral Bitchslap

My job is now simple. I’m what we used to call the the guy in back now and I’m okay with that.

unnamed (2)

 The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/29/cavc-birth-of-a-writ-the-bitchslap-back/

Posted in CAVC Knowledge, Extraordinary Writs of Mandamus, Veterans Law | Tagged , , , , , , , , , , | Leave a comment

ILP–MR. BOYD, WON’T YOU GRANT ME MY I-L-P

Posted on January 19, 2015 by asknod
DAVID BOYD cropped

VA’s VR&E Gomer David Boyd   Seattle Washington

I must make amends to Janis when (and if) I ever get to Heaven. As some know, a big part of my Writ is to provoke what the Veterans Rehabilitation and Education arm of VA has been avoiding for three and a half long years. No one has stood their ground with enough legal acumen to drive an ILP claim for big, big dollars through to the Court. Most of you do not know the largesse they’ve been syphoning off to the other side of the books- i.e. the Vocational Benefits side. 

Bruce g-house 1

My friends all drive Porsches. I must make amends.

Here’s the dough we’re talking about. Each severely disabled Veteran, and mind you, only the “severely disabled”, get this big ILP goody. The maximum award, per Vet, under ILP is $25,000.00 locally. If it goes over that, an authorization up to $60,000.00 must be obtained from VR&E-again-locally. If it goes over that, they refer it to the VACO down on Vermin Lane NW. On paper, there really is no limit because no one ever laid into them until member Bruce did down in Atlanta Georgia. That time they crumped and started actually granting ILP as it was intended. Seattle is a different story.

raised planter (greenhouse #3) Ruh-oh, Rorge! Lettuce freeze! All dead!

raised planter (greenhouse #3) Ruh-oh, Rorge! Lettuce freeze! All deeeeeeead!

Our illustrious Mr. Boyd is a disgruntled Army Lifer who served between Vietnam and the first Gulf War I. It’s rumored that he didn’t pass the USPS employee MMPI test so he applied to the VA. He’s living proof if you hang around long enough you get promoted up to a GS-14. Of course, the downside is you still hit the mental glass ceiling . Hey, we’re talking VR&E here, not the VBA.

Mr. Boyd and company subscribe strictly to the first word in their job description (vocational) and eschew the idea that “avocational” is part of their mission. If they obfuscate long enough, as in to mid-September every year, without granting anything substantial under the ILP program, all those riches transfer over into the Vocational side to be devoted to far more deserving Vets seeking a real-yep-vocation.

Ungawa. Kale no grow in greenhouse number 4 cheetah. Aruu?

Ungawa. Kale no grow in greenhouse # 4 cheetah.  No heat.

Here’s the most amusing part of all this. Boyd and Co. aren’t as adroit as the front line VSRs and RVSRs, let alone in the league of a DRO. Their denial decisions are too vague and deny the exact item based on the same old standard format. This allows the camel’s nose under the tent as any lawyer can attest. By telling me I do not need another greenhouse because  I  already have three or four (I don’t),  they are admitting I need at least one. When I say I must eat pesticide-free veggies and it’s easier to grow them, they change course and say I can (and should) go buy them. Note they are admitting they now agree with my need for pesticide-free produce. This is now a different rationale that will need another, different set of reasons and bases for the denial. And so on. Each change in denial rationale creates a quagmire of new legal defenses to buttress their logic for a new denial. In the process, they’ve lost sight of the fact that they now admit the greenhouse is necessary and vital to my independence in everyday living- BUT- my existing greenhouse(s), unheated and non-ADA compliant- is sufficient for my needs.

Also missing is any cogent rebuttal to say my cryoglobulinemia and porphyria is good to go and I can hang out outside in winter in the unheated greenhouse watching nothing grow. They merely mention they have “reviewed” my medical records. Not being doctors, they are precluded from making medical decisions a la Colvin v. Derwinski

No heat in cold frame (greenhouse #2) Spinach dying. Where's Super Dave when we need him?

No heat in cold frame (greenhouse #2) Spinach dying. Where’s Super Dave when we need him?

Any first year law student knows not to give away the farm this way but the VR&E folks don’t have that “go for the jugular” like a DRO. They fail to put belts and suspenders on their ratings. Coming from the social, liberal, poly-sci side of the sheets, they couch all their denials gently and with a lot of sighs. Sighs will never substitute for CFRs and most certainly not for 38 USCs. Absent any reasons and bases for the denial other than vague “We looked at the records and the medical and decided you don’t need it.”  is insufficient to stand up in a court of law. Read a denial for degenerative disc disease. It’s supported six ways to Sunday and easily defensible all the way up to the CAVC in a lot of cases. There are invariably 30 CFRs citing to both Part 3 and 4. Mr. Boyd’s failure is viewed by the Court thusly:

A bare conclusory statement, without both supporting analysis and explanation, is neither helpful to the veteran, nor ‘clear enough to permit effective judicial review’, nor in compliance with the statutory requirements.

2 month old romaine in unheated greenhouse (#1). Shooting for Late May salads

2 month old romaine in unheated greenhouse (#1). Shooting for late-May salads but adequate for independence in everyday living needs.

Above, you may have noticed, I used the word “locally” twice. VR&E Offices in the 58 VAROs across the planet are autonomous. Each one is a Kingdom where the Head Poobah gives the thumb up or down. If you disagree, you ask for an “Administrative Review” and it is sent to the DC VACO for a “pre” appeal. Many claims are granted right there. If it is asking for an extraordinary sum or the request is not appropriate, it goes back to the VARO for denial and proceeds through the normal appeals channel like an ordinary claim.

Petite, french-style salad greens a la VR&E.

Petite, french-style salad greens a la VR&E.

Mr. Boyd apparently is suffering from an ADD malady. He “lost” my NOD once and then artfully shipped the new one off to DC to be associated with my appeal on my Hepatitis in 2011. After the SOC rebuttal, he declared the grant had expired (two year maximum) and suggested I reapply.

After several more denials under various different reasons, Mr. Boyd waited patiently until the new, revised M 28 R Manual was issued on March 31, 2014. Shortly after, he utilized their brand new regulations to deny it unequivocally.

Unlike other agencies at your local Veterans Service Center, the VR&E folks have to have a listed phone number. This allows us to actually call them and talk to them. Imagine calling the most intelligent life form at the Seattle VR&E (and incidentally the head honcho) and explaining that VR&E cannot use a recent  rule change to justify the SSOC. Try then to wrap your mind around the non sequitur answer:

“Well, Mr. Graham, I suggest you point out my using the new M28R in your rebuttal to the SSOC if you feel I’m wrong.” Mr. Boyd authored the decision and is oblivious to his error apparently. In VAland, he has now lost the presumption of regularity as he is unaware of his own rules and regulations. What appears irregular is irregular and the presumption that VA officials are knowledgeable in their profession does not attach…

As I said, these people have no idea what they are about. They have a fixed denial logic. There simply no longer are ILP grants other than cordless phones, shoe horns,  grab bars near toilets/showers and top shelf can grabbers. A rare thing might be a set of headphones for the hearing challenged (with medical proof of deafness certificate) tied into the TV. Unfortunately, if the TV is old and incompatible with a bluetooth connection, the new M28R forbids replacement of the TV with a newer one that is.

The VA is desperately trying to strangle the ILP avocational model down to a Earl Scheib $99.95 paint job in spite of Congress’ intent. My appeal will be the first to combat this new proclivity because Mr. Boyd and his sidekick were foolish enough to state ILP was strictly vocational. With the utilization now of the new M28R as denial rationale, they have erected a huge red flag that is ripe for reversal.  I doubt anyone attempted a Writ for a VR&E entitlement but who would think you’d have to fight them for twenty one years and still be getting the run around on anything?

Remember, a Writ requires the VA to explain why they screwed up. We will soon be treated to a recital of the ins and outs of ILP and most especially the new revised M28R. VA is going to have to explain in detail why a program of such extreme value cannot find 2,700 severely disabled souls to fill the slots every year  and at the same time justify six different reasons why I am ineligible as well.

In VA law, you are not allowed to arrive at Court after you have denied a Vet and come up with new reasons made up ten minutes before you get there. A claim or VR&E request has to have logical reasons and bases for the denial so the poor stupid Vet can formulate a cogent defense. Otherwise, the Court says:

Next, the Secretary attempts to mitigate the Agency of Original Jurisdiction’s (AOJ) silence on the ILP Greenhouse denial cited by the petitioner by explaining why that evidence is not sufficient to support the petitioner’s arguments. The Court, however, cannot accept the Secretary’s attempt to provide a statement of reasons or bases on behalf of a silent AOJ decision followed by an equally silent SOC and SSOC. See Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 156 (1991) (“‘[L]itigating positions’ are not entitled to deference when they are merely respondent counsel’s ‘post hoc rationalizations’ for prior agency action, advanced for the first time in the reviewing court.”).

These guys are in so far over their heads they don’t know they’ve already drowned. Unfortunately, the OGC isn’t that mentally challenged and will be trying to figure out how to get David Boyd unstuck from this tar baby.

download 2db

What, me worry?

P.S. Thanks for the heads up on the M28R brainfart, Bruce. That’s why I have minders.

Posted in Independent Living Program, M-21 info, Veterans Law, VR&E | Tagged , , , , , , , , , , , , , , , , , , , , , , , , , | 3 Comments