Sorry for the absence, fellow readers. I’ve been busy doing my Ho, Ho Ho. imitation. Mailing out boxes to the Bruce Almighty back east. Returning some of the overwhelming abundance of goodies Vermont Frank sends out in kind as well. This has been a banner year for Vets and some of you claimants. I foresee it getting better and brighter for a number of reasons.
VA claims in the HCV sector have suddenly been experiencing a surge of wins. I’ve recorded some of them here as we find them in the BVA decisions but I hear of even more at the Agency level locally. Some Regional Offices are resorting to actually reading the claims and rating based on the facts. My lawyer friends tell me this is due to the VBMS word-searchable function in the .PDFs. If so, it reflects how lazy the raters are.
One thing I do not think anyone will quibble with but will be sorely missed is the old way where you could file a NOD on a paper towel if necessary. If DBQs mean more wins sooner, who are we to fight with Allison Hickey over it. We want speed, accuracy and quick resolution. VA can only want the same if they ever hope to get out of the hot seat with Congress. Make no mistake about it. You take those bonuses away and everyone suddenly has to work for a living and pay for their TIVO.
This year we have seen people in high places apologizing for some of the darnedest things… and then we’ve also seen them denying there were any Vets dying from schedulers gaming the books. Regardless, this shines the light in dark corners that have never seen light. If Jeff Miller keeps this up, we may get some relief. What’s more, we’re due for a brand new Senator in January to start ignoring us. We can’t let that happen.
I’m going into a full court press myself on January 2nd. I hope to file electronically at 0001 hrs electronically at the CAVC and bag that first number of the New Year- CAVC Case # 15-001. I want this to be as memorable as Erspamer, Harvey, Pousson and Groves- all rolled into one.
Mrs. Jean Erspamer, mother of Gordon the Enlightened, spent a goodly portion of her adult life ministering to Gordon’s dad as he lay dying and more after he punched out. It’s probably why Gordon became a rainmaker and began helping Vets. She turned the VA on its ear at the dawn of judicial review and her case still has some marvelous cites to choose from.
Pousson in 2009 was a hoot. Eric the Red lost his c-file over at Eye Street in the bowels of the AMC black hole. The OGC miraculously recovered it- or claimed they did but it was strangely much lighter. I notice Jim Pousson never showed back up at Indian Ave. NW. so some modus vivendi occurred over at 810 Vermin Ave. that we’re never going to be privy to. That silence speaks loud volumes.
More recently Mr. Cleveland. D. Harvey drew blood after VA ignored him for far too long. Oddly, they really didn’t owe him a dime but refused to tell him so. When Eric the Clueless was finished losing, they suddenly owed him money again. My case actually parallels Mr. Harvey’s closely as you will soon see.
And now we come to this amazing extraordinary intransigence again with Mr. Gene Groves, the pro se wonder from Shafter, Texas. The BVA took his remand from the Court and dropped it in the circular file. Which might have been okay except he reminded them about 8 times. The icing on the cake were those little USPS green cards. Not only did Gene write to the Whacko, Texass VARO. He pestered the BVA and even Allison and Eric. Nobody even bothered to get back to him so he wandered on over to 625 Wagonburner Lane NW and told his sorry tale there. Well, boy howdy did that ever stir up the hornet’s nest. When you get that deep into it, there just isn’t any excuse. Best to bend over, pull the pants down and take the spanking. One of these days VA may figure that out.
Here’s the JMR to fix my problem. I. too have the magic green USPS tarot cards.
My Joint Remand to fix 1994
Which brings us to me. Mrs. Jean Erspamer was neglected for ten years. Mr. James Pousson for about eight years from his filing in 2001 to his seminal case at the Court in 2009. Gene Groves only waited two years from March 2012 to last month for his injustice to be righted. Harvey was the same- several years. This one ought to be a daisy. VA is due for a shellacking. I filed in 1994. VA finally ponied up in January after 19 years and ten months but still could not bring themselves to give me the third and last piece of the pie. I am now over twenty years into it and Call me Bob’s gomers foolishly gave me that special treatment they reserved for Jean, Jim, Cleveland and Gene- bogus justice followed by a stern laissez faire “Get lost”.
The CAVC has begun to discern a notable disdain by the Office of General Counsel. It’s one thing to pretend to be stupid and another to start using it as a ploy to gain time. The VA has long begged for JMRs, vacates and set aside and remands to offer what should have been proffered all along. That they get caught cheating at the CAVC and are forced to do the right thing has, for years , been given a blind eye by past judges. The theory was “Gotcha! Now, go fasten a better noose or don’t come back.”
After twenty years of this, the lines are drawn. No more can the VA continue to commit Colvin violations. The CAVC is also getting wise to one VA examiner doing the flat foot C&P, the L5-S1 orthopaedic C&P and lastly finishing it off with a “less likely than more likely that the PTSD/ MDD is due to military service”-all in one visit. Hell, nobody has that many hats.
And, with the lines drawn on what excesses the Court will permit these days, I’m going to go out on the little branches and say they are not going to be enchanted with how the Secretary has had twenty years to get this right but for some reason just never figured it out. Twenty years. Clinton hadn’t even met Monica yet. Jesse Brown was the VASEC. Newt Gingrich was getting ready to take over the House. And I had just filed for Agent Orange and Hepatitis. What happened?
The comedy of errors continued upon reopening it in February 2007. They accidentally let the cat out of the bag and granted my tinnitus back to 1994 but mistakenly dropped the Hepatitis and Porphyria claims when they granted it. In October 2007 I discovered the screwup. VA granted my new Hep claim in June of 2008 but promptly dropped the Porphyria claim again. Finally, in October, they managed to grant that but the effective dates were oddly not back to 1994.
After six years of fighting, VA quickly begged for a JMR to give me the 1994 date. That was what we thought. The Veterans Law Judge, Mark Hindin, just could not write the Porphyria in and carefully exorcised it out of his forced do-over grant. Considering we’re talking about heeding the dictates of the CAVC as well as the OGC, I’d say that sawed off runt (He’s about 4-10 and wears those ridiculous built up heels) has golden cojones to disobey them. This epitomizes what the CAVC calls piecemeal justice that frustrates judicial review.
I take no pleasure in dragging Mark Hindin through the mud. As an attorney, he sucks-granted. But as a human being he is vindictive. Most judges would keep their poise and right the injustice. Mark took it personally as an affront to his judicial acumen and manhood. Hell, maybe that Randy Newman ‘Short People’ syndrome kicked in and he wanted a tit for tat moment. We’ll never know. I wonder how it will play out. Will the Court force him to write BVA decision #3 and admit total ignominious defeat? Will they simply reverse or order a decision following their specific recipe? Will there be a choir of amicus curiae in the loft filing briefs as well?
As could be expected, LawBob of the Squarepants will be my shield bearer and I the aggrieved party. The best things about Writs of Extraordinary Bitchslap are that they are done in a month or two. Pousson’s dragged on because they couldn’t find his c-file. The others suffered the indifference or ennui VA is so famous for. Everything is done on my claim. All the adjudications are complete. The ratings are written and all that needs doing is selecting the right date. Well, that and another big check to right the financial boat.
One niggling detail stands out like a zit on the VA’s nose. Two out of three claims filed in 1994 are done. They both have the same effective date. One claim, secondary to the big one, is mysteriously stuck in the future- in February of 2007 and no one wants to address it. No one wants to restart that 1994 clock. VLJ Hindin went so far as to build a corral around it with no gate to get in or out.
This is definitely going to be a Shakespearean dish best served chilled. Stay tuned, folks.
And while we’re at it, I’m throwing in the Independent Living program AWOL greenhouse, all my other unadjudicated claims and SMC S all the way back to 1994. In for a penny-in for a pound.
Benjamin Krause has been following former Phoenix VAHC Director Helman’s firing on his blog. The firing was upheld a few days ago. She improperly accepted lavish gifts from a lobbyist–and her former boss–and failed to report them. There are some whistle-blower hereos in his story and we shall acknowledge and praise them in another post. 
by lousy administers in future attempts to remove the worst offenders at different VISNs since the judge is shifting that argument back to headquarters and elsewhere–and headquarter’s doesn’t want scrutiny applied to them. So this ruling could have a chilling effect. That’s my take on it but you may see it differently. I also don’t think her administrative career is over for good because she won the first charge and a private healthcare company could hire her and look the other way with regard to her morals.
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