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

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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.

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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

FACEPLACE–DECEMBER DETRITUS

Picture taken outside the Capitol of disgruntled donkeys leaving the Senate last week

Picture taken outside the Capitol of disgruntled donkeys leaving the Senate last week

I apologize for allowing all this valuable social media to crop up on my desktop but the Writ of Extraordinary pissed offness set me back chronologically. Therefore, subscribing to the better-late-than-never school of thought, I immediately disgorge the backlog of humor.

Life is too short to be deprived of these gems. As usual, not everyone can be accommodated. Due to excessive political incorrectness and a policy of G-rating shaded slightly to the R side, I  was forced to weed out several that might give the impression I was slanted politically. I remain a stalwart free-thinker and possibly a Libertarian. I am not, however, a member of any preconceived political school of thought.  Whatever Congress has not abrogated to themselves, I feel is a state’s right. They’ve had over two hundred years to get it right by now. Arriving at this late date with new Second Amendment interpretations of what a “militia” is seems like sour grapes. We at asknod also look forward to the plethora of Jeb Bush jokes soon to begin populating the internet should he foolishly throw his hat in the ring. We wonder how much bad press will suddenly surface about his days as Florida’s First Imam back in the days. Ignore the D’s and R’s and revel in the sheer humor.

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Humor is essential and helps build strong psyches 12 different ways. It’s been proven to cause hernias from excessive laughter. Santa was not harmed in the filming of these pictures. Any resemblance to you or your pets is purely coincidental. No rights reserved.

 

 

 

 

Posted in FACE HUMOR, Humor | Tagged , , , , , , , , , , , , , , , , , , , , , | Leave a comment

CAVC–BIRTH OF A WRIT–ACT II SCENE 3-JIM DANDY TO THE RESCUE

imagesAs per the game plan, after firmly sticking my foot in the door at 625 Wagonburner Lane NW, I summoned my faithful sidekick LawBob Squarepants-he of the juris doctor persuasion. He converses much better in VAspeak than I could ever hope to. With the introduction of his representation, old Judge Davis is actually going to have to handle this above board. I’m sure he was envisioning a quick trip on the Shortline Railroad over to the BVA where they could JMR it to death. No such luck. This baby is airborne with impressive credentials now. 

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Nothing like sneaking in to the CAVC on a Saturday and leaving a surprise for the Tuesday morning three-day weekend. Revenge, in this case, is a dish best served right before a hangover. Happy Martin Luther Day,  Mizz Bradley.  The LawBob is my shepherd. I shall not want.

The Birth of a Writ Series continues here:

https://asknod.wordpress.com/2015/01/20/cavc-birth-of-a-writ-act-ii-scene-4-the-bitchslap-2/

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

VARO PHILADELPHIA–BACK TO OVERTIME

Capture44In a stunning turnaround in less than two shakes of a lamb’s tail, the Philadelphia VARO reversed course and took back the unthinkable-$15,000.00 “team bonuses” for those stalwart raters who would stay the course at their desks, through thick and thin, to reduce the stupendous backlog. Even offers of personally sending out for Starbucks® Double Vanilla Mocha and Chinese from Mann’s was met with a polite “no thank you” by raters. Yeah. Right. In your dreams, jelly beans. 

Actually, they were all gung ho until the Washington Times’ Jacqueline Klimas spilled the jelly beans. Only then did ratings crews evince a desire to backtrack out of their former enthusiasm to embrace the new program. Funny how that works.

Can you imagine a VA DRO saying ‘Well, you know my crew and I talked it over and we were  totally on board with this because Veterans, as stakeholders, would benefit immensely. Several team members then voiced their worries that it might be disadvantageous, and maybe even adversarial, to even consider trying to speed up what is a very, very difficult process under the best of circumstances. We consider the Vet first and worry that haste might result in an error. None of us could live with that on our conscience.”  Who’s been sneaking off to Denver and smoking what-and how much?

Philadelphia VA ratings team members discussing the pros and cons of $15 K bonuses.

Philadelphia VA ratings team members discussing the pros and cons of $15 K bonuses (on break).

Posted in Humor, vARO Decisions, VARO Misfeasance | Tagged , , , , , , , , , , , , , , , , , , , , , , | 6 Comments

AO- GREAT NEWS ON THE C-123 AO VETS BATTLE.

bannerSeems the Institute of Medicine came up with the wrong answer after endless conjecture. So much so that the government withheld it as long as possible in an effort to either coerce the scientists into a different prognosis or corral the parameters of the ensuing report. Neither effort succeeded and the cat is out of the bag. Prognosis? AO kills. AO also continues to kill when left on the skin of aircraft decades later. 

This is a no brainer. The Air Force is not one to insulate aircraft. Hence, when you get to altitude, the A/C becomes cold. When you return to earth, condensation on its surfaces occurs much like that on a toilet bowl tank on a hot day. Moisture re-released  the AO into the interior of the aircraft where it was free to move about. And move about it did. The miracle is that the IOM came down on our side-or that we even heard they did. From what we’re hearing, sometimes the VA doesn’t think we need to bother our ourselves with confusing information that is contentious.

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Maj. Wes Carter

I wrote this up back in February 2013 when I first heard about it.  Wes Carter has done a marvelous job of pursuing this to a fruitful outcome. Sadly, he should not have had to. As Lincoln opined at his second inaugural address “For he who shall have borne the battle, his widow and his orphan son.” Wes added the postscript that nowhere was it written that you had to endlessly pester the VA to investigate the obvious. This seems to be the surreal theme song that haunts the VA. Why on earth abrogate for yourself a motto you have no intention of honoring?

Well done, Wes. I rode in a lot of Air Am  and RLAF $1.23s into and out of Long Tieng but I don’t think any were spray buggies. They do have a definite aroma though.

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Posted in AO, Vietnam Disease Issues, Vietnam War history | Tagged , , , , , , , , , , , , | Leave a comment

CAVC WRIT–MAINTAINING YOUR SANITY

DSC01066I get numerous letters from all of you asking me how I kept (and keep) my brain box screwed on securely while waiting for a process that has encompassed years and even decades. Simple. Start a garden. In addition, I suggest you buy a seedling Douglas Fir tree and measure it at the beginning and the end-if you ever get there. I planted a Noble fir that I had as a 5-foot tall live Christmas tree in 1993. I didn’t know it would be used as a measuring stick at the time. It’s now taller than the roof of that second story house or approximately 32 feet. I’m still not finished but VA implies I can see the light at the end of the chunnel.  

DSC01067Mental health and the assurance that others are getting the same shoddy treatment you are is important for your mental health as you travel this road. No one wants to think s/he’s stupid and is doing it incorrectly. That’s the beauty of Veterans Claims blogs. It provides a venue for the “You too?” audience. After you find yourself among thousands of others in this lifeboat, you need to focus the dead time constructively.

Two things come to mind. All work and no play makes for a dull Johnny/Jane Vet. It’s important to always seek out pertinent knowledge concerning the particulars of your claims. VA OGC precedents are very valuable and little known. They aren’t often cited in CAVC decisions but are just as lethal. Never sit back and say you’ve assembled all the pertinent cites or info on a claim. Always research it to death. In the interim, take a breather. Get a hobby. If you are a para/quadraplegic, I know one hobby that entertains many. Model railroads. It’s also a good venue to pursue as an ILP claim. I know. VA’s VR&E weenies are going to say it’s not necessary or vital to your life. Throw down and get your psycobabble shrink to argue otherwise that it’s a prerequisite to your continued sanity. Or do what I did. Begin a garden. I like it for the win/win outcome. Free food. Inherit a goat and some horses and you have a complete nature cycle of turning shit into chow. File an ILP claim for a greenhouse and say it’s imperative to your sanity to be able to go outside (safely) and garden in a heated greenhouse in winter.

DSC01069The rewards are multifold. You get a valuable source of Agent Orange-free veggies and fruit that you know the history of. You don’t spend money on gas to go get them. If you grow too much, you take it to the food bank so it isn’t wasted. But mostly, a garden allows you to slow down to the speed of light and view nature at it’s speed, which, oddly enough, is about the same speed the VA operates in. Trees might be more apropos in my protracted struggle but corn is a more natural analogy for most of you. Here in the northwest corner of the Left Coast, we need about 110 days for corn. That’s might similar to Allison Hickey’s claim that one day in this glorious new year we’ll see a 125-day claim that’s 98% perfect in every respect. Corn never lied to me.  I’m still skeptical but I’m a sucker so I’ll wait and see if she’s funning me.

Be it the ParaLine railroad to nowhere or a small 20 X 20 patch, a pastime that soothes the senses is infinitely superior to fussing and fretting 10 hours a day querying the IRIS and 800 VA gomers. When you finally arrive in the winner’s circle, don’t be ashamed to push further and pursue the ILP option. Congress intended it for America’s most severely disabled. There never used to be a “necessary and vital” codicil. VA dreamed that up to screw you in VA’s OGC  Precedent 6-2001. No one has ever challenged it-yet. And then  a few assholes like Bruce and me came along that couldn’t be rolled like turnip wagon drivers with a room temperature IQ. The sky is the limit in this game until a Court says it isn’t. No one’s been there yet.

The beauty of law, and more appropriately VA law, is that we are King. Everything was created for us. Precedential decisions support our grants and ratings. VA has to prove the intent of Congress was NOT to award certain largesse.  In this, we’re in the catbird’s seat. Numerous decisions say that it is presumed Congress knows what it is about when it writes a law. Further, it is presumed that Congress never intended some of the absurd results VA feels are par for the course. Your mission, should you decide to accept it, as Bruce and I did, is to stand up and prove them wrong. Wrap yourself in the armor of righteousness or find a law dog who will.

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Food for the soul

Winning is inevitable as VA subscribes to the squeaky wheel theorem assuming your claim has a basis in fact. Most do. But never lose sight of life. Your mental health during this trying time has to be fed and watered in equal parts. Your spouse and children cannot be neglected at the expense of your claim. I’ve made that mistake and had to reassess priorities. Fortunately, VA is time-challenged and this allows us that down time we so desperately need to keep body and soul afloat.

Find yourself a hobby. Hell, figure out the value of π to about fifty places if you’re bored. I got to about 3.14159268 before I lost interest. Gardening was more rewarding. The upside is all the prep afterwards. Playing squirrel Nutkin and packing all that food away is a great mental reward when you really need it. Well, that and trying to figure out a million new ways to prepare butternut squash. Pretend you’re Bubba in Forrest Gump and talking shrimp.

For those of you with a mobile zip code who are temporarily disenfranchised from a home, I suggest camping out near the front door of your VA regional office. If nothing else, a bucket or hat in front of you will elicit contributions to take the sting out of waiting. Besides, you’ll meet a lot of other like-minded Vets who commiserate with you when they come out of the RO. Chances are your claim(s) will magically develop wings with little or no effort on your part.

Lastly, keep your humor close and your anger at bay. No matter how bad it gets, I assure you there is someone much less fortunate than you. There are large numbers who decided the wait was too long and exited prematurely either by giving up or punching out.  I’ve been in this lifeboat for nigh on 25 years but have met some who began several decades before me. It always amazes me how they managed to make it to here in one piece.

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Win or Die VA

Remember, die trying- don’t suck on a lead lollipop.

Posted in AO, Food for the soul, Food for thought, Independent Living Program | Tagged , , , , , , , , , , , , , , | 4 Comments

VHA– HARVONI HAS ARRIVED

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

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.

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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

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

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.

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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.

 

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