YES FRANCI, THERE IS A SANTA CLAUS

Posted on December 20, 2023 by asknod

I guess I find it hard to express in mere words how lucky I am to be allowed to help Veterans. The only thing that could possibly be even more rewarding is to be allowed to help their surviving spouses after all hope of success is crushed by a denial when their husband dies unexpectedly. Remember that old boy who did the Queen for a Day program back in the ’50s? Well, you probably don’t but I feel the same way when I get to put that crown on someone’s noggin.

Tom and Franci 

In the instant case, Franci came to me with her daughter holding her up a short time after her husband passed away in October 2022. Distraught is a masterpiece of understatement. I disremember who she was referred by but that’s immaterial. What was striking to me was the logical conclusion I would have made that he died from a chemical contamination during his 20 years of service. After all, he was a jet mechanic and exposed to JP 4 for all those years. That VA couldn’t (or wouldn’t) make that connection speaks volumes as to how this PACT Act process works… or should I say how it doesn’t work.

Now, I know from experience (my own) that men are recalcitrant about going to see the doctor. Men don’t want to know why they have that killer pain in their gut. They’d rather chug a bottle of Ibuprofen and ignore it for as long as they can. This solves the problem of finding themselves in a hospital with kidney cancer. It’s even more unfair to their wives when they s unexpectedly find themselves a widow.

In the last year, I’ve watched VA slow down to a crawl, take everyone off doing ratings and assign them to building TERA (Toxic Exposure Risk Activity) and ILER (Individual Longitudinal Exposure Report) reports for Vets who aren’t even filing claims. What the hey? They did them on me and I don’t have any claims pending. Shucks. I’m even 29 years protected. How would they know how much Agent Blue and White I ate upcountry? What a waste of time. And of course, in the meantime, I have a ton of Vets with claims over 250 days old pending. WTF, over?

Nevertheless, after the May 2023 denial, I contacted my go-to IMO folks at Mednick Associates and they came through once again. It saddens me that Franci had to suffer such a protracted, long period wondering if she/we would prevail and I would be able to bring her across the line to a much-deserved DIC.

This morning, of all days, the VBMS Prize Redemption Line (formerly known as 800- Dial-A-Prayer) informed me her decision was ready for decision. In our business, that’s written as RFD. Usually, it’s another 2-3 days before it becomes RDC (Rating Decision Complete). Imagine my surprise when I dialed her file in and discovered that it had already been promulgated. Shut the Front door. Hooo doggies. I get to make that phone call and tell her to sit down first. Check it out.

Redact IMO

Redact RD 12.20.2023

My expectations of VA employees and their capabilities are very low so this restores my faith in the system in some small measure. A warm thank you should go out to John Francis K____ of the Saint Paul Regional Office for bringing this in sooner rather than later. He’s made a surviving spouse a mite bit more financially stable in her final years. In addition, he’s my hero of the week and entitled to a couple five attaboys.

Merry Christmas to you all. I had a few more of these successes this week but haven’t had the time to get them written up yet. I’ll get on that directly. I’m told by my Vets that it buoys their spirits and gives them hope their claims will be met with equally similar success.

More anon.

Posted in DIC, Independent Medical Opinions, Nexus Information, SC For Cause of Death, VA Agents, Veterans Law | 8 Comments

BVA-SMC T–ALL I WANT IS A CADILLAC RANCH

Posted on December 15, 2023 by asknod

Christmas is a great time to win a claim of this magnitude if you were wondering where you were gonna  scare up some shopping money… with a wife and three rug rangers. Just so you know- with the new economic plan passed by Congress (Brandonomics), your George Washington coupon is now worth about 87¢ and shrinking fast. Meet Allen- my newest SMC T winner. I’m not prognosticating but I’d reckon this win had not been factored in to his 401 K or Roth IRA plan in his lifetime. That’ why I feel so honored to be able to win these types of claims which many feel are nigh on impossible. 

SMC T is a relatively recent invention by Congress and fortunately separate from their economic plans thank God. So many Vets were driving over mines on the roads of Iraquistan in the last 20 years that the number of truly permanent scrambled egg brain Vets are beginning to surpass even the huge numbers of Bent Brain Syndrome (PTSD) Vets with Obstructive Sleep Apnea. The only difference is they never win the Big Banana.

There’s a shit ton of my fellow Vietnam Vets who almost ended up on the wall due to what VA would characterize as Acoustical trauma rather than concussion trauma. In 1969, doctors called it organic brain injury. Back then, VA had a home to bury these brain claims (10% jokes) hiding in §4.132 (now §4.130) under DC 9304 Chronic brain syndrome associated with brain trauma. That’s where the tinnitus  claims went to die pre-1976-(DC 6260=8045=9304 combined for 10%). VA gussied it up for the Wounded Warriors and began referring to 8045 as TBI. Six of one. Half a dozen of another. Getting the new SMC T was (and is) like winning the Powerball and with similar odds as the old organic brain game. Most folks don’t realize how this works.

There are 18.9 million Vets. 5 million are rated from 0% for hearing, scars or hemorrhoids all the way up to TDIU or 100% schedular for really big issues. In 2018, there were 119,000 ± at 100% schedular and about 115,000 at IU. There were about 38,000 in the SMC L to M cohort  for blindness, loss of, or loss of use or aid and attendance-many with a K or a bump under §3.350(f)(3)(4) moving them into SMC P.  But there were only about 8,000 on SMC O to R1. As for R2 and T, think less than 4,000 lotto winners combined.

TBI is ugly. It gives you hallucinations and waaaay more. Headaches, Meniere’s disease, photosensitivity, bent brain off the map, road rage, severe anger syndrome and extremely poor judgement skills are the legacy of this injury. The fact is your loving family probably doesn’t cotton to taking you out unless you’re on a leash with a choke collar or very heavily medicated. And none of it is your fault. You probably don’t even know you’re being socially awkward when you clock that cop with a sucker punch after he pulled you over for doing 90 in a school zone. I’m lucky. All I have is Tourette’s syndrome and a proprioception deficit. I flunk the Romberg test every time. TBI does that to you.

In these instances, your spouse needs far more Baksheesh to hire Visiting Angels™ (armed with tasers) to provide you aid and attendance. Entitlement to T has a nasty Catch 22 hook. You have to be mega messed up to qualify. In fact, you have to be nigh on to Kingsford™ Charcoal mentally to qualify. The dividing line is whether you would have to be institutionalized in the absence of your significant other (or wife). Even worse, it can’t be due to your bent brain from dodging B 40s. And guess who gets to make that determination?

So, in the most simplest terms, you are a financial black hole and require the highest rate of VA compensation payable. In this case, a husband and his spouse, not even counting any children, are entitled to $10,905.63 per month now with the latest 2023 COLA bump. VA, however, isn’t all het up about publicizing this too loudly nor are they inclined to grant it. When, and if, you do learn the secret handshake and the password as I have, it’s still a grueling path to the BVA for a win. You need a SMC Sherpa to navigate this or you’ll just end up in the ditch. I have yet to meet a SMC T Vet who won it by himself.

This is why most of my clients who are in this group of medical misfits are broke and need it the most. And, if you are adroit as a litigator, you’ll get them advanced on the docket RFN due to their being in financial hardship or terminally ill. This reduces their time spent sitting on the Arlo Guthrie Memorial Group W bench. Not to put too fine a point on it but on a scale of difficulty, winning SMC T is right below successfully mating Unicorns for fun and profit at your world-famous Cadillac Ranch.

Allen and his supportive wife (and children) have had a full time job taking care of him. I can’t even imagine all their horror stories over the years of their fight up the SMC ladder to get here today.  I see his plight replicated over and over in the system every day. Vets come to me with a SMC S and VA is adamant they do not qualify for more. It’s a semantic distinction. VA is like “Dude, you’re getting SMC housebound. You don’t qualify for more or we’d give it to you”. The suffix to that sentence should be “but we don’t know how to do SMC”. Ignorance is bliss. In the VA adjudications system, it’s a denial.

To begin with, Allen had a SMC L for A&A and a second 100%, separate and distinct due to his heart condition. Bingo. At the very least, he was due an instant bump up from the L to M under §3.350(f)(4). But nooooooooo. After numerous arguments, they reluctantly gave him a L 1/2. Wrong. That was nothing more than a distraction in the genesis of this appeals argument. When you’re playing SMC poker, VA is required to infer what you are really entitled to-not how little they can get away with giving you. They even have a fancy SMC Ratings Calculator for this. The problem is elementary. Garbage in= garbage out. The M 21 is remarkably remiss  as well or somebody hasn’t written that chapter yet. SMC is one of those rare times when what you don’t know can hurt you.

The modern miracle of Willy Pete

The denial technique is vintage VA. They get to determine if you qualify. But their doctors or ARPN/PAs are programmed to say it’s all too speculative as to whether your bent brain or the TBI is the cause for your need for a higher level of care for a&a. I guess I don’t need to tell you that 99% of Vets’ claims for T go down the tubes. None of them VA Examiners ever say “Gee. Johnny Vet suffers both of these problems (TBI + PTSD). Since we’re brain-challenged, let’s give him the benefit of the doubt and say it’s TBI. What the hey? No skin off our asses, right?” No sir. If they did, it might endanger their 30 pieces of silver for not kowtowing to the VA’s denial plan. So what’s a Vet to do? Well, to begin with, I’d suggest you send me an email.

My son, who is an attorney, calls my style of legal brief “thin-slicing”. Could be it is. I don’t have any legal training to say one way or another. In the BVA direct appeals lane, which is the fastest, we’re not allowed to submit evidence to prove they earned it. I recite the Vet’s history to save time. It’s like a mini-RBA or Record Before the Agency to give them a roadmap.   I don’t “tell” VA what they screwed up on so much as I tell them what they were required to do by law and federal precedence. I use the chronological receipt dates in VBMS to help those poor VA souls paralyzed from the neck up find the medical evidence they insist doesn’t exist to support  entitlement.  Then I lay out what the correct procedure and outcome should be. Then I beg like hell for mercy. This recipe is the ages-old axiom that honey attracts bees-not vinegar. Too bad it doesn’t work at your local Puzzle Palace. If it did, I’d be out of a job.

Face it. Nobody likes to be talked down to-especially VLJs and their staff attorneys. And, sadly, not all of  VA’s finest at the local level have a functional hard drive upstairs. You cut the Gordian Knot by giving them the evidence they cannot ‘see’ that supports your case. When they find it, they shout out Eureka! as if they’re Mensa material and directly descended from Sherlock Holmes. Let them gloat. Hush, child. Bite your tongue. It’s  reward enough to read the BVA decision and see they plagiarized all your cites from your legal landscape section as the legal predicate for their grant.

So, without further ado, let’s unwrap Allen’s brand new SMC T and see if anything here can help another Veteran similarly situated.

Redact SMC M & T Denial

Redact Code sheet 8.3.23 L 1.5

Redact SMC T filing

Redact SMC T 12.14.2023

If you would, take a gander at his Code Sheet above. The winning clue is right there in front of you. Note that DC 8045 (TBI) is in front of DC 9411 (PTSD) and note they are hyphenated. This is important.  We all know VA conjoins these two disease processes into one and says they are hopelessly entangled to the point that them poor doctors are totally conflusticated and unable to see where one ends and the other begins. This is VA shorthand for ‘you’re screwed’. You had a 70 for TBI and a 70 for PTSD and now all of a sudden after fling for T you have a 70 for them combined-or maybe they upped it to 100%. Take a look at the favorable findings at the end of the SMC M&T Rating Decision denial above. See the  “You need a&a”?  VA just admitted you’re charcoal but it’s PTSD charcoal- not TBI charcoal.

They act like they’re doing you a favor and throw in the SMC L for a&a but now the speculative clause comes into play. Sorry Charlie. No SMC T because we can’t untangle it. Case closed. This is the wrong legal standard of review but Vets don’t know that. Why should they? They’re not law dogs. All they know is they need a lot more financial help but they’re never going to get it because VA’s hired guns have foreclosed that possibility. That’s where I come in. I’ve learned how to play SMC poker. I’m not going to explain it here in detail because that will just provoke VA to “fix” the loophole and make my job more difficult (again).

My success lies mostly in digging out all the exams and medical evidence which proves your case. I frequently see the Raters say there is no evidence to support your claim but that’s because they gloss over anything over a year or two old. Or worse, they’ll glom on to an antique a&a assessment from a 2014 VAF 21-2680 form as proof you’re good to go. As for VSOs helping you out, get serious. They have a 200+-Vet case load and no time for doing a dumpster dive into VBMS to unearth the proof.

In January, I’m beginning classes on SMC to train ten VA representatives on bulletproof techniques to outfox VA raters and win these claims. My workload is plum off the map. By training others, I can pawn all my backlog onto them. Maybe then my horse Cooper and me can become friends again and go riding. Right now he’s so pissed he won’t even talk to me.

Congratulations are in order here to Allen for managing not to go completely bugf**ky before he found me and won. TBI is a nasty reality that VA is currently sweeping under the rug using bogus law and illegitimate techniques. Thus, SMC T falls into VA’s “Thursday Rule”. What? You weren’t born on a Thursday? Well, shucks. There you go. That explains why you lost. Should you actually answer in the positive, the next rejoinder would be “AM or PM?” Heads VA wins. Tails you lose. Unravelling their bullshit and getting it sorted is difficult because nobody knows how. I aim to fix that directly.

Everybody’s got something to hide except for me and my monkey.

Merry Christmas to you all from Cupcake and me. I’d throw in a “thank you for your service” but I don’t want anyone to get nauseous and throw up.

P.S. Here’s Ed’s LRRP Christmas humor to brighten your day.

Santa’s wish list:

Posted in Aid and Attendance, BvA Decisions, C&P exams, PTSD, SMC, TBI, Tips and Tricks, VA Agents, VA TBI, Veterans Law | Tagged , , , , , , , , , , , , | 7 Comments

FORT FUMBLE MISSISSIPPI–DASHING THROUGH THE SNOW

Posted on December 8, 2023 by asknod

This is one of those warm, fuzzy blogs I so enjoy putting up around this time of year. I actually finished up another for P&T on a Thailand Vet (Takhli RTAFB) on Monday for Agent Orange that took almost four years as well. I  began fighting his in early 2020 before they even dreamed up the PACT Act. This one, however, began back in early 2017. Terry came to me for a records review and decided to hire me to fight for what we finally won today. To think it took us from October 2017 to now is appalling on its face but it took me 28 years so I consider this to be somewhat of an improvement on the system. Thank you former USB Allison Hickey for rescuing  all of us from the VA’s paper jungle.

The back story is rather appalling in its own right. I flew down to Jackson Mississippi for a DRO hearing in September 2018 in an effort to resolve it quickly (LOU of the lower extremities and R1). I laugh in retrospect at my naivety.  My law dog mentor impressed upon me the value of confronting these chuckleheads at bayonet distance to show ones’ earnestness. He didn’t tell me I risked being ejected. I felt I had let Terry down and resolved to roll up my sleeves and fix it.

When I arrived that morning for the festivities, I discovered I was the only Caucasian male (cisgendered  or otherwise) in the establishment. Having been born in the South, I wasn’t put off or feeling threatened. It was more of a novel experience knowing VA is top heavy with White entitlement folks. I reckon I disremembered we weren’t north of Richmond, VA.

Ms. Teri Green, a senior DRO there, began by sandwiching us into the attorney-client conference room which is actually smaller than Cupcake’s walk-in closet. We were literally assholes and elbows in there with no ventilation. I’m pretty sure this was as intended, too. In most cases, these events are conducted next door at the spacious air conditioned VAMC conference room.

After about ten minutes of argument, Ms. Green rather impolitely and officiously informed us, that contrary to AB v. Brown (1994), Terry already had the maximum schedular rating for his lower extremities and there was nothing for it. He hadn’t filed for loss of use and until he did, we/I were pretty much pissing on a flat rock. Worse, my continuing arguments supporting his entitlement to DC 5110 versus two 8513s were beginning to irritate her and she proposed having me frogmarched out forthwith with a VA Gestapo agent on each arm if I didn’t cease and desist. So much for ancillary entitlements under the Akles Rule. Or §3.103(a) for that matter…

Seeing the writing on the wall, I acquiesced to her admonitions, I decided to piss on the fire and call in the dogs. It’s better to live to fight another day than waste one’s time on a fool’s errand. I flew back to Seattle with my tail between my legs and went back to the drawing board to begin craftily reassembling doctors’ statements and supportive medical evaluations to present to the BVA Veterans Law Judge on appeal. Nothing I submitted had had the least effect on the situation to date. Shoot. I was so conflusticated, I even went into my bathroom and examined my silver tongue in the mirror looking for cancer. No. Just kidding.

Terry’s condition didn’t have to be over-exaggerated. He was carrying a dual diagnosis of Muscular Dystrophy or Polymyositis and was retired prematurely due to it/them. Getting the necessary supportive nexus letters was childsplay. All his doctors were on board and extremely supportive. However, VA has a policy that demands VA be given “first right of denial” on the subject of what constitutes loss of use. The definition is so confusing you almost have to use Phonics™  to sound it out. Repeat after me.

§3.350(a)(2)(i) =:

“Loss of use of a hand or a foot will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow or knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of the foot, could be accomplished equally well by an amputation stump with prosthesis.”

I’m still dying to know what a suitable prosthetic appliance consists of to this day. Are there unsuitable prostheses out there in the marketplace?  If there are, does VA provide them both? All these queshuns…

In Tucker vs. West back in 1998, the Secretary became so bold as to define §3.350 as actually employing the use of a hacksaw at an elective joint somewhere below the knee and demanding a physical prosthesis(es) in support of the entitlement. Fortunately for all of us similarly situated, any “loss of” versus “loss of use of” requirement was quickly ruled void ab initio. Nevertheless, VA continues to this day to demand a far higher standard of loss than is required to suffice and qualify.

Continuing the fixed bayonet distance metric, Terry and I proceeded apace to the city of my birth to present our demand for justice at the BVA Central Office in person.  That was January 2020. I love Washington DC. If they haven’t painted over it, you can still find my “Alex was here” on about the 33rd floor in the stairwell of the Washington monument from our Cub Scout field trip back in 1960. Or the most recent 50¢ piece I left on my dad’s tombstone over in Arlington across the river this last October.

We drew Judge David L. Wight. I’ve had him before and he always writes a fair decision. Unlike some VLJs, he actually thinks Vets get the shitty end of the punji stick all too frequently. He said at the end of the hearing that he would like to cut the paper granting R1 on the spot but there were certain formalities that must be observed even when the obvious is staring you in the face. The “obvious” was Terry in his wheelchair and a mountain of medical records all saying he wasn’t going to be attending the Boston Marathon that spring due to prior incontinence commitments.

One trick I don’t mind sharing with all of you. I’m fond of asking verbally, with no forewarning, for AOD at these BVA bayonet hearings. 99% of the time the Judge will grant it but that also may hinge on the fact that virtually every one of my clients are already furiously pushing the RING™ doorbell at Heaven’s Door before we get there… or will be directly.

As I said, nothing gives me greater pleasure than prevailing in this David vs. Goliath business. I can’t express in words how honored I am to even be allowed to do this.  The only thing that might be more pleasurable would be to fly back down to Jackson, sashay into the VA Puzzle Palace there and wave the decision in Ms. Green’s face accompanied by maniacal laughter and dual birds. But then, I don’t relish the idea of getting the bum’s rush from their Gestapo.

For your reading edification and to prove to VSOs that R2 (and all SMC ratings higher than K) actually exist, enjoy. And Merry Christmas to all my readership.

redact r2 12.8.23

redact R2 CS 12.8.23

Redact Rating Calculator Worksheet(s)

P.S. As a postscript, and after consulting Terry, I wish to share the most incredible part of this journey to R2. Upon award of his R1, Terry announced to me his plans to become an accredited VA Agent. He accomplished that last year and  I neglected to include this in the above article but now wish to introduce him to all of you who might be seeking an advocate with that fire in his belly that rivals my own. Here’s his contact info.

https://serviceconnectdisability.com/

 

And today’s contribution from the peanut Gallery…

Posted in DRO and BVA Hearings, R1/R2, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , , , , | 3 Comments

BVA–SMC INFERRAL= DUTY TO ASSIST

Posted on November 30, 2023 by asknod

I don’t quite know how to express my thanks to Veterans Law Judge Leslie A. Rein for her BVA decision posted in Caseflow yesterday evening. It was a long time in coming but nevertheless a vindication of VA’s asinine demand for a VAF 21-2680 to “prove” a need to entitlement to aid and attendance of another. Thus, in 2020, I decided to fight this one in hopes of establishing a precedent of sorts on this uncalled-for requirement. My good friend Sam was dying of liver cancer. He was put on hospice when he decided to piss on the fire and die with a fifth of Single Malt by his side and a fine cigar. VA wasn’t buying.

Here’s my post on Sam’s last days. I flew down on the Fourth to be with him and his wife Kathie as they are close friends of ours through our mutual Hepatitis C Vets (HCVets) group. He passed peacefully that evening. Would that VA would have granted peacefully.

SAMUEL BAILEY–THE LAST DETAIL

After fighting VA for 28 years on my own claims, I take a “Contrary” position on VA adjudications akin to contrary as defined in the seminal movie Little Big Man starring Dustin Hoffman. I put everything VA does under the microscope to ascertain its legality, applicability and relevance. If it doesn’t pass the test, I fight. And boy howdy did the military ever teach me how to do that.

Our good friend Semtex

When Sam’s wife Kathie first popped smoke to say he was stern up like the Titanic and sinking, it became a matter of personal importance to file to defray the costs of the hospice at home for his final days. Aid and attendance was a given, right? Even if it was only going to be for a few months at best, it was still due and owing.

When I began this odyssey of VA claims work, I was taught two important facets. One was to support everything I did in duplicate such as filing via electronic means as well as by mail. This is called “belts and suspenders” in the legal vernacular or “always carry two hand grenades” in the military. Secondly, I was taught to leave no money on the table that rightfully belonged to the client.

During my fight for my greenhouse back in 2013, prior to my accreditation and electronic access to filing, I was fond of using the USPS Green Card to prove delivery of my filings. It finally paid off when VA insisted in a Statement of the Case (SOC) that I had not timely filed my VA 9. I simply produced the ‘return receipt requested’ green card showing VA mailroom employee John Q. Smiley had dutifully signed for it. A quick review of employees at the Seattle Fort Fumble confirmed his employ and it promptly squelched that bullshit line of attack.

Similarly, Sam’s terminal hospice was being supervised by a VA-contracted outfit locally who specializes in these things. Since they were in constant touch with VA, the presumption of regularity attaches to the concept that they had constructive possession of the knowledge medically that Sam was knocking on Heaven’s Door. So, why on earth would there be a requirement to medically prove he was going down the tubes?  Jez, weren’t a lowly RN’s treatment notes enough to substantiate the validity of his condition?

To add insult to injury, if such a thing is possible at the VA, they didn’t bother to answer the 526 filing for a&a for almost 6 weeks demanding the VAF 21-2680 signed by a doctor showing a need for a&a. Idiot’s delight, huh? He died before I/we even got the letter requesting it. Pissed me off, it did. I didn’t even contemplate an HLR informal conference. This level of arrogance/ignorance was simply too much. Hence, my departure for Washington DC and a substantive appeal at the BVA.

And here we are, three years and eight months later. Just imagine if they hadn’t passed the Appeals Management Improvement Act (AMIA) and revamped the adjudications procedures to remedy the unholy backlog! Why, we might be waiting for another aeon or two. While this won’t, in and of itself, enrich Kathie dramatically, it needed to be done. Sometimes we just have to put our collective foot down and call out their tomfoolery and silly requirements.

Attached here are VA’s initial denial, my legal arguments and VLJ Rein’s decision. I hope they may help even one of you to prevail or guide you in formulating a legal strategy to start calling these chuckleheads out on their obfuscation. To me, the mere filing of a 526 to ask for aid and attendance or any Special Monthly Compensation (SMC) is superfluous on its face. It’s an ancillary entitlement that must be inferred from the medical facts in the instant case (Akles vs. Derwinski 1991). I would have thought the dead giveaway was the word ‘hospice’ (no pun intended). Maybe that noun isn’t in the VA vernacular.

Redact 526 for A&A

Redact Sam RD 3-10-20

Redact Sam a&a 10182

Redact Kathie extra pgs for 10182

Redact Sam BVA Win

Seasons Greeting to you all and may this season bring you belated good tidings such as the above. Personally, I can’t believe I’ve been granted a license to do this work. Helping our Nation’s Veterans should be a given rather than a contest to figure out how to prevent them from attaining that which was rightfully promised them when they raised their right hand.

And that’s all I’m gonna say about that.

Posted in Aid and Attendance, Food for the soul, How to Qualify for VA SMC, Inferred claims, Presumption of Regularity, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation, Veterans Law | Tagged , , , , , , , , , , , , , , | 2 Comments

Hello everyone! A new Guest Contributor has joined!

Posted on November 26, 2023 by robinhoodesqvetsatty

Asknod was kind enough to invite me to write some guest columns. I’ve followed along the various Veteran focused blogs for years (Asknod, Hadit, /r/Veterans, etc) and I have a ton of respect for what Asknod does. He is definitely a zealous advocate! I will do my best to live up to his expectations and to contribute to the community he has created here.

So, my name is Robin Hood (yes it really is) and I am a practicing attorney. My first job out of law school was with the Veterans Benefits Administration in 2008, and I worked there until 2014 as a claims adjudicator. I was very senior by that point and would train and mentor the new folks. When the Director had a hot case that really needed to be moved along, my desk was one they would choose. I was very good at it, and I really did love my job; I got to grant people benefits by way of solving puzzles and using laws, regulations, and policies. It was glorious. But, it’s the VA, and no place is perfect. I finally had enough of the red tape and bureaucracy and lay people trying to tell me what the law is, when I’m the one with the law license. So, I left and joined a Very Large Law Firm in 2014 where I still work because they wanted to get into the VA space. (I’m not mentioning their name in order to avoid having to clear any of this with them).

Over time our lead attorney left and the leadership role fell to me, and our junior attorneys both quit within months of each other, and so now I’m faced with handling three attorneys worth of work and rebuilding the department. I am very fortunate that this summer we were able to hire Glenn away from the Board of Veterans Appeals. He’s a 20 year retired Marine and I’m hoping to get him to contribute here as well.

I’d like to try to write an article each week, talking about claims/appeals related issues, or maybe telling stories “from the trenches” as we deal with fighting/dealing with the VA. Oh the stories I could tell. It might give the regular readers a window or insight into what is going on behind the scenes.

Potential future topics I could write about:

  • Claims Sharks: how to recognize them and why they are evil.
  • How VSO and accredited agents/attorneys are similar and how they are different
  • The difference between “Service Connection” and “Evaluation”
  • Service Connection in depth (Direct, secondary, presumptive, aggravation)
  • The Appeals Modernization Act in the real world at the VARO level.
  • AMA at the BV
  • BVA Hearings
  • Higher Level Review Informal Conferences.
  • Independent Nexus Opinions or Evaluations
  • Effective Dates.
  • Dead Reckoning in the context of Blue Water Navy claims.
  • The “business” of being an accredited Veterans Attorney/Agent
  • “War Stories” as they occur to me, based on recent experiences with the VA
  • Other topics suggested by you, the dear reader! Post a comment with suggestions of topics you’d like to see.

Obligatory disclaimer to keep me out of ethics hot water. I’m an attorney, which means I have to follow the Rules of Professional Conduct as adopted by my State Bar. The preceding statements are not legal advice and do not create an attorney/client relationship. See my profile for contact information.

P.S. As a postscript, and due to potential legal attacks for discussing the subject of “VA Claims Sharks”, we (both Mr. Hood and I) are forced to state this disclaimer that anything you read here is not legal advice instructing any of you to stiff a company you contracted with to do your claims. Perish the thought. However, it does not prevent us from saying we do not sanction a business model clearly forbidden by the Congress and the DVA. As a VA Agent with no legal training and no JD, my thoughts on the subject do not constitute legal advice and never will. Consider Asknod.com/asknod.org as an entity akin to the Babylon Bee site.

Posted in Guest authors, Lawyering Up, Tips and Tricks, VA Attorneys, VBMS Tricks | Tagged , , , , , , , , , , | 28 Comments

A WARM, FUZZY THANKSGIVING FROM VA SECRETARY McDONONOUGH

Posted on November 22, 2023 by asknod

Denis the Menace

Every once in a while about this time of year, we all become a wee bit maudlin and little acts of kindness well up in our bosoms. We have this insane urge to spread joy and happiness across our fruited plains and draw those we love near to us. Well, most of us anyway. Thus, in order to make all of you feel much more self-assured it isn’t just you getting screwed over, I thought it prudent to share this one with you.

Co. F, 51st Inf. LRP Bien Hoa 1967

After fifteen years of asknod.com, I’m fairly certain ol’ Denis & Company know who I am.  What the hey? When a BVA Veterans Law Judge interrupts me in mid-sentence during a face-to-face Board hearing and asks if I work for asknod inc or are familiar with him (it) because my logo sits atop his legal brief he’s holding (and pointing to), it’s obvious my ‘bad company’ reputation has preceded me. In this case, it was VLJ Jon Hagar back in April of this year at the VACO on 425 I Street NW and he’d just granted a SMC R 1 claim for another of my Veterans about six months prior.

Oddly, this wonderful work I do, which is fairly well-known (and recognized) above at the Board, isn’t thought of quite so fondly by the troops in the trenches below at our 57 Fort Fumbles. In fact, those curmudgeons up there in Detroit don’t seem to cotton to my attempts to help my fellow Veterans. I reckon they don’t do Thanksgiving up there judging by what I’m fixing to share.

Let me put this in perspective. It’s dry season 1967 up in I Corps. A twelve-man LURP team has just engaged a NVA company and called for extraction. After all, that’s what they do. Roam around for a week or two out in the bush and find the dinks. When they find ’em, they call in arty and an airstrike. Next, they call in gunships and slicks to extract them RFN. Lather. Rinse Repeat for one year. My boy Bob is the team leader. I represent five others of his team as well.

In their haste to egress the overwhelmingly superior enemy force and the hot LZ, the Peter Pilot pulls a bit too much pitch and wallows off to the port side. Veteran Bob hasn’t managed to get a death grip on a D ring in the floor yet and falls from 40 feet. Fortunately, another gunship swoops in and grabs him but the swan dive really messed up his back permanently as you can imagine. VA knows this, too. It’s all in his STRs. Bob leaves Vietnam after his 375 and a wakeup. He’s sporting a CIB and a BSM.

Fast forward to 1994. Veteran Bob has finally worn out his back. A few fusions and a permanent, imbedded pain pump with Dilaudid later, VA generously grants the maximum schedular rating of 60% for his back with left leg radiculopathy. Fast forward twenty years to 2016. Veteran Bob’s back is so bad, if he sneezes he shits his pants. The dilaudid kinda slows him down a mite bit and he’s eschewed driving by now. Lack of exercise has caused DM II -if the Agent Orange didn’t first. He’s getting OSA from a nasal fracture that didn’t heal well from the fall out of the chopper back in ’67.

Bob puts in for SMC L aid and attendance and they grant. It’s legit, too. He’s having a hard time getting around. VA grants on an extraschedular basis because-well, hey- he’s only 60% screwed up and can’t walk without a walker and being a zombie from the dilaudid. Fast forward seven years and along comes that eeeevil VA Agent Alex Graham and his plans to get Veteran Bob up to SMC R 2.

I file him for PTSD, OSA, DM II and peripheral neuropathy, secondary to the DM II. I really don’t pay much attention to the fact that his claims are run out of Deteroit. I thought that was pretty much over with the new NWQ spreading all claims across the US depending on what they are. Uh-uh. Detroit’s been sharpening the punji sticks and waiting for this shindig to fire up.

It begins innocently enough. He gets the 20 for DM and the 50 for the OSA. No sweat. A few years back in ’15, they’d upped his Bronze Star to one with a V and still awarded him another one (first oak leaf cluster). They don’t hand them out in Cracker Jack boxes.  As for the PTSD, they’d called it DC 9433 “Dysthymic Disorder” back in ’93 and ’03 when he reopened it last. It figures. They said I was “passive aggressive with antisocial tendencies” after two years over there. Remember, they didn’t “invent” PTSD until 1981.

Right now, that one and the bilateral peripheral neuropathy are deferred awaiting God only knows what. Seems that BS with the V or the CIB would suffice for the bent brain gig. All his team members are at least 70% and have been for several decades. But you don’t know the VA. Veteran Bob just came down with Stage 3 lung cancer in the right upper lobe. It ain’t responding to the chemo or the radiation. They gave him 100% and a zero chance of remission. Of course, he’ll have to go back in to prove he’s not healed in December of 2024 if he wants to keep it.

Which brings us to today. Put your Holy Shit Batman safety belts on when you hear this one. Don’t even waste your breath on a ‘say it ain’t so, Bro.” This is downright ugly to read. Attached is the initial salvo and the Extraschedular fired off three days after I asked for all the new goodies and the a& a to go with them.

redact 526 filed 3.13.2023

Redact extraschedular

Happy Easter, Bob! We love you and we have a special present in store for you. We don’t even care if you’re 20-year protected under §3.951. We’re gonna fix your wagon. Hear? But that was not the end of the matter….

I haggled with these folks and finally wrangled a terminally ill flash out of them. It still didn’t budge them on the PTSD or the PN of the lower  extremities yet. I finally wrote ol’ Beth Murphy, Tom’s wife, who took his old Director of Comp. and Pen. Services job yesterday. I received a polite “We’re on it!” back from her this morning and dang if she wasn’t telling the unvarnished truth…

redact Dir. c&p response

redact RD 11.22.2023

Redact CS 11.22.2023

Boy howdy if that doesn’t just make you proud to work for VA. A Veteran is dying of service connected disease(s). As a government employee, it behooves you to protect the fisc and ensure no slackers slip through who are not entitled. Bravo, gentlemen. Another financial threat has been averted. Promote that man. Actually, it took three signatures. Detroit’s VSCM, the AVSCM and a RVSR all joined hands and sang Kumbaya and averted financial ruin.

Happy Thanksgiving. I have much to be grateful for. I have two new granddaughters-one 2.5 going on 16 and one just 5 months old. The best part is they don’t have cell phones and actually talk to me.

P.S. Of course, you folks know me by now. If I can’t win in Detroit, I go to DC.

RD R1 7.24.24

Posted in Extraschedular consideration, Thanksgiving and war, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , | 10 Comments

EXPOSED VET RADIO SHOW THURSDAY NIGHT 11/16/2023

Posted on November 13, 2023 by asknod

Following on the heels of last week’s Tennessee SMC Seminar, I’m happy to announce  the Post-Game Wrap of our presentations by none other than the speakers themselves. If you were unable to dial in that day (Wednesday the 8th last), you can still get a round up of the whos, whys and whats this Thursday at 1900 Hours Eastern or 1600 Newsome time. John and Ray will be hosting and the rest of the Peanut Gallery will be contributing bits and pieces as well.

Cocktails and snacks will be served virtually, as usual per Corona 19 protocols.

Here’s the computer link to the festivities

https://www.blogtalkradio.com/jbasser/12287062/connect/d85782b2a48f89768c4c68613143c01bd049f36e

And the call in number for you computer-challenged folks is

(515) 605-9764

Hope to see you there in the cloud or out loud. Dial one if you wish to contribute to the conversation. Look for the Bat Signal in the sky

 

Posted in Exposed Veteran Radio Show, Humor, research, Tips and Tricks, Veterans Day | Tagged , , , , , , , , , , , , | 1 Comment

THE TENNESSEE SMC WALTZ

Posted on November 4, 2023 by asknod

Happy Veterans Day coming up to all of you. I’m on the road again this week to Tennessee. Ray Cobb asked me to give a speech to a lot of VSO service officers and the general Veterans public on the subject of SMC. Included in the show will be Exposed Vets Radio host John Stacy, Beth Spangenberg, PA-C of the Valor4Vet IMO outfit, and many more.

Sharing a Marb and aerating the perimeter.

One thing I get a bang out of is meeting all these Vets. I represented Ray before the VA for his R2 but one of my Vietnam clients, Donald and his lovely wife Barbara from Portland TN  of the 51st Inf.(LRP) will also be there. I had a long interesting fight to get Donald his TDIU. Who’d a figured VA would give him a ration of shit about PTSD? Jez, he’s got a Bronze Star, two ARCOMs and two Air Medals. What all else did they want?  A MOH with a cherry on top?

Taking the Uber to work.

Possibly even coolest is all the R1s and R2s on parade. There’s going to be a constellation of them at this gig. James Cripps is slated to be there unless I’m ill-informed. Some of these I had a direct hand in and some I “ghosted” if I was too busy. Regardless, nothing gives me such a bang as to set up a good SMC ambush and lead VA right into it using their very own regulations. Them Veterans Service Center Managers (VSCMs) and Coaches in the ROs across the land think they’re too cool for school. It gives me great pleasure to take them down a notch or two with 38 CFR §3.350.

The Veterans Conference is an all day affair this coming Wednesday, the 8th of November in Winchester, Tennessee at the First United Methodist Church, 100 South Jefferson Street. The seminar begins at 0830 Hrs EST and runs until 1600 Hrs. unless anyone gets long-winded. I reckon they’ll pull the plug for lunch but the article I read didn’t discuss anything more than donuts and coffee. Reservations are a must. Call Ray at (931) 308-8914 to check to see if any seating is left.

NAPE-aka Liquid Sunshine, Hot Soup

Hope to see you there and if you’re one of my clients, I’d be honored to shake any of you all’s hand. Bring your cameras. I have Vets scattered all over the fruited plains and it flat out tickles me half to death  to get out of my office and actually set eyes on them. Sadly, a lot are severely disabled in one way or another or on the verge of punching out. Representing the most disabled is an emotionally challenging job and we lose more than a few every year during the pendency of their claims. It then becomes a battle royale after DIC to to finish it for the surviving spouse. I relish that eventuality because VA thinks they can chump the widow out of her accrued claims with a paper blizzard. Not on my watch, bubba.

P.S. A good friend (LURP) sent me this one (from North Carolina) left over from Halloween. Ah-ah-ah. No comments from the Peanut Gallery. This is a G-rated website.

Posted in Exposed Veteran Radio Show, Food for the soul, How to Qualify for VA SMC, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents, VA special monthly compensation, Veterans Day | Tagged , , , , , , , , , , , , | 2 Comments

VBASTPETE317–BULLSHIT CLEANUP ON VERA

Posted on November 3, 2023 by asknod

VA is awash in acronyms if you hadn’t noticed. VERA is VAspeak for Visitor Engagement and Reporting Application. This is what transpires after you keep pitching a bitch about why it’s been 218 days since your HLR decision finding a megafailure in the duty to assist, and a new  c&p exam that says you’re charcoal. VBASTPETE317 is the location Andrea ________ works from -translated as Veterans Benefits Administration, St. Petersburg Regional Office Number 317. Now let’s talk about the bullshit.

About ten years ago or so, VA came up with a plan to centralize the delegation of claims to what is known as the National Work Queue or simply the NWQ. No longer would you see the familiar address of your local Fort Fumble emblazoned at the top of your Rating decisions. The NWQ sent the next rating decision determination to the next available Regional Office (RO) to “work”. There, a coach assigned the rating to a lowly VSR. If all was well, s/he wrote it up and submitted it back to the Coach to approve, fix or alter. Of all was well, it returned to the NWQ for assignment to write it up.

Think of a Bingo ball hopper with all the balls swirling in the air inside. When the Bingo caller (the NWQ) is notified a rater is available to work a claim, they pull out a ball (your claim) and send it to the RO to work. If it isn’t ready to rate, they return it to the NWQ for repairs. Somehow this was supposed to speed up the rating process.

Crashed 3/21/1971 near LS 72 killing PIC Ben Franklin and 2 Meo kickers

Eventually, after about 15 tries, the claim again is dispatched by the NWQ to a RO and it is promulgated. The NWQ isn’t a rating entity. Think of it as a clearing house for assignment of claims. Joe Rater raises his hand and signals he’s available. NWQ pulls out the ball with your SSN claim number on it and Bingo (no pun intended)-it is routed to his desk to be worked.

So, after bitching almost nonstop to the 800 Dial-a-Prayer number (800 827-1000)- aka the Booth Bitch or the Prize Redemption Line- eventually somebody from the VERA crew calls you up and feeds you a line of bullshit that defies the imagination. Which is where I found my client Tony yesterday. They called him instead of me…

Check out this ol’ boy’s grease gun.

Attached below is the Post-Game wrap authored by Andrea ____ in the VBMS computer explaining the mystery of what is holding up his claim. This is rich. “His claims are currently with the National Work Queue which is not under the jurisdiction of the Regional Offices.”  Well, yes and no. The NWQ isn’t playing keepaway with Tony’s claims nor are the ROs subservient to the NWQ’s whims about dispensing claims. Actually, it’s quite the opposite. If Johnny rater is unoccupied in VBA 405 White River Junction in New Hampshire, he asks the NWQ for another claim to work. The NWQ is obligated to send him one and they do. There sure as hell ain’t no jurisdictional dispute about who gets to work the claim. The NWQ is the mailman-not a rating authority. Makes you wonder who’s been bullshitting Andrea or else what’s Andrea been smoking?

Redact query

The next sentence after the one highlighted in yellow is an outright lie. I have a large number of Vet clients whom I filed claims for long after 3/31/2023 whose adjudications have all been done and the Vets paid in full. None of them were advanced on the docket out of order or given the rocket docket treatment of decades past. The truth is much simpler. Tony’s claim is for a&a and SMC T.

F Co. 51st Inf. (LRP) Bien Hoa AB 1968

Knowing Tony has a positive c&p exam that says he’s in the same boat as Hogan’s famous Goat, and that c&p says they’ll be forced to grant the SMC T, they’ve decided to escort him over to the Group W (Waiting) bench to set a spell. Why pay Tony now? There’s no rush. Check out the 2680 for a&a. It says Tony would need to be institutionalized if his wife/caregiver divorced him or died suddenly.

Redact 2680

Lastly, VA assigns a “shit or get off the pot” suspense date for raters to work these claims. The NWQ knows when the Bingo date occurs and automatically dispenses the claim again to the next available rater to do it. Tony’s suspense date is 9/07/2023. Seems like VA is running a wee bit behind schedule on their high dollar three-signature claims.

Anyway, this isn’t an anomaly. I went back and looked at all my other SMC claims that had been HLR’d and been declared defective due to duty to assist errors. I clearly see the same pattern. One for R2 has been sitting there ready for decision since August 3. Date of claim? 3/29/2023. Days pending? 220. It’s like déjà vu. I could go on to cite more instances but I’m beginning to think VA is funning my clients and me.

 Maybe them fellers up at the NWQ ran out of money and are just holding onto these until they reload their coffers. Or… maybe it’s that old delay, deny and hope we die- game  before they cut the paper. 

Posted in Aid and Attendance, SMC, TBI, VA Agents, VA suspense dates, VBMS Tricks | Tagged , , , , , , , , , , | 5 Comments

QUILTS OF VALOR

Posted on October 31, 2023 by asknod

A funny thing happened on the way to my office just before the Spring NOVA event in Fort Worth. A gal named Sandy Heinzele of the Kitsap County branch of the Washington State Quilts of Valor Foundation called me out of the blue and asked me if I’d heard of the QOV Foundation. To be truthful, I hadn’t. She explained in brief detail that a Veteran somewhere, or an organization had nominated me to be a potential recipient of a beautiful quilt hand-crafted by industrious ladies from a large, nationwide group that honors Veterans. They chose me. The fact is, she didn’t specifically say it was gender-exclusive so I reckon there could be men involved in the quilting process. What the hey? Men are being taught how to multitask nowadays. I heard it on the news.

Be that as it may, the only thing I’ve ever won was a fishing derby in Westport, Washington in 1991. A client for whom I was building a home invited me to go fishing on Father’s Day to show his appreciation. Dang if I didn’t hook a 56-pound Halibut and win. The prize was one hundred dollars and my name in the local newspaper. Hoooo, doggies. The halibut was reward enough from my standpoint.

Other than that, I won the lotto to participate in the War in Southeast Asia back in 1969. I was one of the lucky two million,three hundred eighty three thousand that drew a low enough draft number ensuring my participation. Now, I know the most recent 2020 census data shows that there are no less than thirteen million living souls who claim they, too, were there in the flesh but I suspect there’s something amiss in the counting. But that’s another story for another day.

To say I’m honored is a masterpeice of understatement. I have no idea how many lucky souls who are nominated actually end up with a quilt. Mine is absolutely to-die-for gorgeous as you can see. I also wish to thank a fellow Veteran, Jules Fleischner, PA-C for this auspicious honor. Apparently it was he who nominated me. Jules and I met via this website in what seems like aeons ago and have become fast friends over the years.

Our friendship is further cemented by the long-running saga of LZ Cork and one of my clients who sadly passed during the Pandemic- Butch Long. One of his fellow platoon mates, Michael Balzarini was among those killed the night Butch was injured in the attack (1/18/1969). Mike’s nephew, if you can believe it, was a Special Forces trooper who works with Jules. I think they did the 60-klic Grenada Fun Run together back in ’83. He well remembers his uncle’s history and it was an inspiration to him to join.

Sandy Heinzele, the gal who presented me with the quilt, is the mother -in-law of a Veteran in addition to her quilting passion. He was clobbered in the cowardly Khobar Towers attack in 1996 but survived. More recently, her Veteran husband passed away on July 4th. Her losses will always reverberate in my mind when I look at this magnificent piece of artwork.

To be truthful, I’m not much of a parade kind of guy. I, like all in my family, served my country when called and am proud to say I did. I bought a Vietnam Veteran hat years ago after I won my VA claim but I never wear it. I know I was there. I don’t need daily attaboys or that abominable “Welcome Home!” sobriquet from strangers. Boy howdy does that grate on the ears fifty years later. I’m alive and plenty thankful for that alone.

Valor is a strange animal. Most folks don’t know they have it in them until they need it. Unfortunately, when mixed with PTSD, it sometimes demands to be fed like a hungry dog. Eventually, either your valor or your luck run out. Once a hand grenade came whistling in totally unannounced and bounced over next to a jeep near us. Some brave soul jumped on it and began screaming for us to run. It was a dud- like a lot of NVA ordnance was. He got a Silver Star and didn’t even get a scratch. A friend was opening a c ration can of peaches or fruit cocktail one afternoon. We were all lounging around taking a pseudo-siesta and some dink took a pot shot at us with an SKS from 300 yds. He hit the door to the barracks about 10 feet to our right.

The grunt opening his c ration can flinched and sliced the bejesus out of the flesh between his thumb and index finger. He hustled off to find the doc and we went back to work. He even told the pecker checkers the truth that it wasn’t really a SFW or GSW. A week later he gets the Purple Heart and politely declines it. The commander, a Captain, took him aside and explained it thusly. Rule #1 is HHQ never makes mistakes on awards or medals. Rule # 2 is if you suspect an error has occurred, refer back to #1. He shut up and put it in his duffel bag. That’s how screwy the War was. Sometimes you prepared for the ultimate act of valor and didn’t even get a scratch. Other times, you weren’t allowed to even deny your non-valor. Go figure.

Quilts of Valor Letter

I can think of about a hundred Vets I served with who deserve this quilt as much or more so than I do. Unfortunately, some never made it back or have passed due to the nasty effects of Agent Orange. On behalf of all of them, I consider it an immense honor to be the one to accept it and keep it safe.

And that’s all I’m gonna say about that.

 

Posted in All about Veterans, Food for the soul, LZ Cork, VA Agents, Vietnam War history | Tagged , , , , , , , , , , , | 4 Comments