It never fails. Some HCVets member loves cats and sends me these. Thanks, Brenda. I’m a dog person and always have been. Until I married, I never suffered the indignity of felines. Nevertheless, I find them invaluable down in the barns for mousing now. For the big rats I still have dogs.
Rarely do you see Judge Lance in this good form. Enjoy it. It’s rare. He can’t get past the middle of page three before tooting his own horn on the Kahana v. Shinseki (Lance, J. concurring) cite. Some egos are born early in life and others are carefully nurtured and continue to grow enormous along with the narcissistic dolts who manifest them. A proper education at a good private school would have cured that proclivity. Let’s be glad Monsieur Juge Lance reversed here and examine where the BVA stepped on their necktie. It’s a memorandum decision but it is a lovely teaching moment.
Justice at the VA is an intriguing enterprise. The model most often cited is presenting a claim to GEICO for a fender bender right on up to a total loss. GEICO adjusters are no different from VA raters other than being honest and forthright. Their word is usually the last word and the check is in the mail. Drag that out for a decade or two, add three signatures for a totaled body and you have the exact same duplicate VA process.
GEICO has an M-21 1MR as well but their version has the “customer is usually right” widget installed. Small things like a bumper or left front quarter panel are no brainers. VA does this too-throwaways like tinnitus but only after a four year quest to the BVA to move from 0% to 10%. Thus when you arrive with some cock and bull story about being in Vietnam and coming down with prostate cancer, you better have some damn fine evidence or a doctor willing to opine as much. Oddly, Mr. James B. Walker had just that. All of it. To no avail, unfortunately, until he arrived at the Court. Once again, Danny Krasnegor argues what really doesn’t need repeating.
Great name by the way. I wonder if he had any Confederate Army on his daddy’s side? Anyway, Jimbo Walker filed way back in October of aught six for the weenie problem. VA didn’t give him much grief and in March of aught seven he got the rating. He mulled this over for a while and filed a NOD for an earlier effective date in December of that year. Obviously the Jimster had been reading up on 38 CFR §3.114(a)(3) and began a conversation with his treating physician Dr. Tinetti. Dr. Tinetti obligingly wrote him a beautiful letter that incorporated the magic quantifiable phrase
This was penned in late August of 2009 and submitted to the VA/BVA.
Since the dawn of judicial VA review time there have been several panel COVA decisions that have set the tone for how the Board shall conduct itself. A very early one was enshrined in Wilson v. Derwinski 1991 (COVA 90-673). The paint on the COVA sign out front wasn’t even dry. The Panel opined that the regulation [§ 3.303(b)] requires continuity of symptomatology, not continuity of treatment. This little Late July reminder was underlined by the seminal Colvin reversal which arrived barely seven months later. In concert, it put the BVA chucklehead Judges on notice that the old habit of “Denied” had to be more substantive. Federal Judicial review now demanded all Texas Necktie Parties performed over at Vermin Ave. NW actually provide a reason for the denial. Not only that, the VLJs were admonished to quit watching reruns of Ben Casey and Dr. Kildare. General Hospital was declared right out.
To this day this propensity of VLJs to do the Voodoo “read dem bones” still seems to cause much confusion as it apparently did here. Mr. Walker has stepped forward and desperately tried to fill the gap with a well-reasoned nexus letter to supplement any ambiguities in prior ones. Dr. Tinetti did a bang up job with a confirmed belief buttressed by sound reasoning. Since they are doing a look back, they and only they (doctors) can be the objective observers. BVA judges do not have the required expertise to opine on matters medical ever since Colvin but somehow find it irresistible to inveigh on these things. And yes, the Court has handed down some newer Colvinesque decisions that enunciate the same bright line rule. Perhaps if Secretary McDonald actually enunciated it in to 38 CFR § 19.15…
Mr. Walker is legitimately entitled to an earlier effective date of one year and one year only from his filing date for SC for his prostatitis under AO-friendly 38 CFR §3.114(a) (3). No one in their right minds can argue otherwise,,, but why would they? We’re talking financial peanuts but the OGC is manning the ramparts as if this was in danger of upsetting the whole benefits applecart. Shoot, they pissed that away in 3 seconds at the last Superbowl game on the advertisements no one bothered to watch.
The whole enchilada finally boils down to the Jandreau test :
Moreover, in Jandreau v. Nicholson, the U.S. Court of Appeals for the Federal Circuit noted that identifying a form of cancer was an example of when a lay person—in this case, the Board—would not be competent to identify a condition. 492 F.3d 1372, 1377 fn 4 (Fed. Cir. 2007). Therefore, the only competent opinion as to the onset of the appellant’s prostate cancer is Dr. Tinetti’s August 31, 2009, letter, which dates the onset of the appellant’s prostate cancer in 1995-96. Cf. Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011) (“[T]he Board may not consider the absenceof evidence as substantive negative evidence.)It seems insulting on it’s face that after the December 1990 Colvin bitchslap reversal, Mr. Jandreau had to endure the same thing seventeen years later. Compounding that with interest, here we are in September 2014 with a wet-behind-the-ears Acting VLJ (K. Millikan) blowing bubbles about when Mr. Walker took to his bed. At what point is a critical review of the evidence instituted with an eye towards the benefit of the doubt? It seems so easy to lay all this out on a table in analog form and use yellow highlighter on the important parts. Winnow it down, chuck the extraneous stuff and do the GEICO customer -friendly test. Why waste valuable judicial resources on these defective defensive pleadings?
As a postscript, Acting Judge Millikan can’t even cite to the proper CFR. His decision is limited narrowly to looking at 38 CFR §3.114(a)
Unfortunately, 38 CFR §3.114(a) does not end there and also has a codicil in (a)(3)
Who let this Milliken gomer off the reservation without a minder? And why weren’t Tammy Kennedy’s vaunted OGC watchdogs all over this thing like white on rice after Gunn retired departed moved on? Eskinazi should have pulled this back out of the Rocket Docket pile and given it to somebody who can read the CFRs. Could of, Would of and Should of. That’s the sign over the entrance to the 027 Bat Cave.
Justice Milliken
A Huey door gunner wakes up at the 312th Air Evac. surgical ward in Chu Lai late one night. He’s in great pain and sees a lot of tubes and medical gear over his head. He vaguely remembers the pilot yelling “B 40 incoming! Hold on!” You also know the feeling when your stomach tells you the rotors are no longer pulling pitch and the jungle canopy is rushing up to meet you. He carefully raises his head and looks down to survey what’s still there and slowly lies back with a sigh. It appears a wheel chair is going to be a big part of his new life. The monitor starts to beep.
A gorgeous young Butterbar nurse notices the movement and comes over to check on him. She carefully leans in close, turns off the alarm and makes eye contact with him. Slowly, she repeats “Hiiiiii, there. You…may…not…feel…any…thing…from…the waist…down.”
His eyebrows rise slightly as he struggles up on the gurney. His gaze breaks from her eyes down to her chest. In a low, measured voice he urgently mumbles into her ear through the Demerol haze “Can… I…feel…your…tits…then?”
Humor aside. American nurses in Vietnam were something to behold. Their GI name was “a round eye nurse”.
And here are some who served in country.
As a last rejoinder, I’ll add this. When I wrote the joke, I had forgotten about the B 40s that hit the 312th and killed Lt. Sharon Lane. She was a bright light in a dark era of medicine in Vietnam. It happened a year before I arrived.
Fake Veteran Steve Lowery with toy M-16
Documented proof now exists that there is a glitch in the VA’s Cray M21-1MR super computer in Reno. The latest VBMS update apparently disabled the 38 USC 1154(b) logic circuits and no further awards for Vietnam Veterans will be processed there. According to the Veterans Service Center Manager, there simply are no more Veterans of the Vietnam Boundary dispute living in Nevada. The computer said so.
Steve Lowery, a Marine grunt once upon a time, had the misfortune to file a claim at the biggest little RO in the world. This one was a no brainer but it stumped those RVSRs cold down there. Too many free casino drinks and the high altitude combined to short circuit old Steverino right out of a rating or two. It didn’t matter if he had a fistful of medals. Besides, I hear some of these stolen valor types have even shot themselves to inflict fake GSWs.
You could almost find it humorous until you start reading the denial. VA’s logic was cut and dried. They sent off for the records at the NPRC and got the outpatient/sick call folder. No attempt was made to get the military file or the hospitalization records from Yokosuka. Claim denied. After he thought he had it straightened out, they did the Phoenix “what C&P exam?” bait and switch. Funny guys those VA chowderheads.
I often warn Vets to be careful with rescheduling or canceling appointments for these C&Ps because VA is notorious for saying you a) failed to appear for no good cause or b) cancelled it and never rescheduled it. This allows them to deny by proxy. It doesn’t mean you are denied even though it says as much.
A great read for Pearl Harbor Day. Navy Cross recipient accused of lying- gets bitchslap from VA.
A warm thank you to Stevemeister for his service to our country. We’re glad he’s not on the Wall with CMOH winner Robert Jenkins Jr., his fellow service member that fell on a hand grenade that day to save others. A warm thank you to Maple syrup Frank for sending us this inspiring VA rating. Looks like “A. Bittler” VARO Reno boss will be getting his first star and a transfer to Vermin Ave. NW for this rating. He sure saved the VA a ton of money for a year or two.
P.S. Here’s and update
http://www.reviewjournal.com/news/military/postwar-vet-fighting-battle-benefits
Sovaldi- Breakfast of Hep C atheletes
Today, besides marking a day seventy three years ago that will live in infamy, also celebrates a milestone begun June 15th of this year. This is my first day post-Sovaldi in the 168-day treatment regimen. I’ll receive my pest infestation report from my Hep minder Tobi next week as to whether the bugs are gone. Another test in March 2015 will confirm it one last time. I expect they’ll do another in a year just for shits and grins.
Do not be dismayed at the picture. The eighteen tablets in the foreground, worth an additional $18,000 dollars, are surplus. The six bottles of 28 tablets each, represent $168,000.
My fellow Veteran Mark, who was forced to drop out of this prophyalxis in his fourth month, graciously gave me his unused portion after brain fog caused me to eat two doses one morning. This would have technically left me one short of the magic daily dose. For that, words cannot thank him enough.
Fellow Vet Randy of Colorado, also fell prey to the same fog and it caused him to slip up and forget to eat it on four occasions over a two-week period. Sadly, the error provoked a relapse in his disease process. The truth be told, Sovaldi in conjunction with Ribavirin is not very effective on Genotype 1A. In both instances, the Sovaldi did reduce the viral load to zero for a while but a sustained virologic response (SVR) did not continue. The rapid return indicates to many that Sovaldi, by itself, is most effective on Genotypes 2 and 3. I have Genotype 3A so I am hoping my cure “takes”.
With the advent of Harvoni, a mixture of Sovaldi and Ledipasvir, the hope is finally realized for a drug that is 99% effective against 1A and 1B-unarguably the hardest to eradicate. The upside is remarkable-it doesn’t cause blindness, Diabetes Mellitus or thyroid cancer. Our good friend WGM, of whom I have written numerous times, just began his Harvoni treatment in Texas. Next up are Mark and Randy again. There seems to be some foot dragging on the insurer’s part over whether they will grant retreatment to Mark. I feel certain he’ll get it either via Medicare or the VA. Being 100% P&T now, he’s in Group 1 medically. With the addition of being Stage 4 and sick as a dog, he’s in the red on the VA’s triage meter.
As an aside, the VA doesn’t trust us. Randy reported they made him drive 45 miles (one way) every two weeks for a new prescription of 14 pills. My prescription was for every 28 days-only marginally better. What did these folks think we were going to do with it? Go down to Needle Park in Tacoma and sell it to junkies for a 1000% markup? We will not venture into VA logic today.
Having a new potential lease on life is a strange feeling. Gone are the forebodings of never getting to see grandchildren as yet unborn. Gone, too, are the preparations for the bucket list, the writing of a bulletproof will that would prevent a slow agonizing, prolonged death at the hands of some idiotic doctor hell-bent on trying to keep me away from the bright light.
I think that bright light analogy deserves an explanation. Operation number two had a hiccup on May 2nd, 2009. My heart wasn’t up to the septal infarct. It seems when you fill the abdomen up with feces for eight days, strange things occur beside looking like Octomom.
As most know, when you start to do the chicken they hit you with that two-handed taser in the OR. That son of a bitch makes the ones the police use look like piezoelectric BBQ igniters. The bright light is the one over the table where they’re cutting on you that you see when your eyes pop open a millisecond after the 35,000 VAC jolt. I don’t care how much Propofol or Versed you have in you. Your eyes are going to bug clean out of your noggin. The jelly on the paddles is to keep your skin from being burnt by the high voltage. I think they ought to issue Vuarnet sunglasses under these operating room conditions.
With the introduction of Harvoni, any of you folks still holding stock in Interferon or Ribavirin pharmaceutical companies would be advised to dump it and take a loss. It’s rumored they’ll be combining both with rat poison soon because rodents are attracted to it.
Imagine having TWO stars on your CIB. That would require you to have been in three conflicts as an 11 Bravo line Infantryman. Three conflicts in which you traded fire face to face with the enemy. Three recognized conflicts I might add and the Afghanisraq Olympics only counts for one. That means, Vietnam, Gulf War I and Gulf War II. I’m not clear on this but it seems this fellow has THREE stars he”s pointing to. The Vet asking him is unaware three stars would have to either involve Grenada or indicate the Korean War as well.
Even if you were an 11 Bravo 10 grunt plinking away up in Da Nang or CRB in the last minutes of April 1975 and had signed up with a Pink Slip Daddy in mid 74 (on your seventeenth birthday), you would be a little long in the tooth by now- about seven years younger than me- or 57. That’s pretty old for humping a full sack and a 16. If you were poking around Seoul in 1952 at 18, that would make you 78 minimum.
I wonder if these Stolen Valor types think this through before emailing an order in to Medal of America? Meet SSgt. Yetman. Nobody at Ft. Lewis has ever heard of him. Bad recordkeeping? The 2nd of the 75th-(Death From Above). Wasn’t that Rambo’s outfit? Fort Bragg, right? This guy couldn’t jump out of bed.
SSGT Yetman, a slightly out of shape but very youthful looking fifty seven year old a Ranger in no apparent distress (yet) .
P.S. But wait. He was also a dead cop!
America is becoming more and more enamoured of it’s former warriors than ever. Each day reveals a new commission, a new museum showing or another commemorative gun from one of those outfits that advertises in American Rifleman. This month they’re pushing the longest barrelled .45 Thompson you never saw on the Indochinese peninsula. That thing’s begging for a hacksaw at the foregrip.
Member Tombo of the USS Long Beach Marines, sent me this very interesting link to the War. As most know, I viewed this close up from 64-73 first as an Air Force brat and lastly an enlisted man. I watched as a lot of my school friend’s dads went off to Nam and never came home. A lot.
The synopsis was that we were going to fight the war Detroit style. X numbers of hand grenades, bombs and bullets would be produced and it would require X number of each to erase the bad guys. To be safe, the Defense Department over-ordered by a margin of .00002% to allow for exigencies. The exigencies had eaten up everything by Fall 1966 and shortages of everything were beginning to surface, Large amounts of assets were pulled into the black hole from other theaters while we geared up for a real “war” as opposed to a “police action”.
Materiel needs began to stabilize by 1968 just after Tet. And then popular opinion began to drive the discussion. This brief piece confirms what I always felt over there. Every CBU-26, every MK-82 and every canister of nape had to have an address to send to if you expected to keep procuring it. Senator Fulbright’s remark toward the end seems to be the signal moment in what critics prior to now have genuinely felt were shortcomings in strategic far thinking caused earlier by McNamara and the Grand Poobahs of Fort 5 Sides.
LBJ’s prompt response to the USS Turner Joy fiasco was pronounced and misguided. It accelerated a war we were ill-prepared to prosecute. Up until then our Special Ops guys out of Fort Bragg enjoyed it for training purposes and MACV was an early winner in funding requests. The Montagnards were in high cotton because they’d traded in their muskets for M-1 carbines. RVN’s indigenous “Indians” suddenly became a cutting edge military outfit under our SF tutelage. Much like our Hmongs up in Laos under Gen. Vang Pao, they initially enjoyed broad support and training. All this came crashing down when we left. Both tribes have since been decimated, hunted to earth and a concerted effort made to eradicate them which has ensued for decades. That’s probably the downside to SF training a force with no allegiance to anyone but their benefactors.
One is compellingly drawn to the same set of circumstances in Afstan and Iraqiville. Our government is sounding the all clear as the NVA tanks roll into Cholon again. Substitute Karbala or Kabul and Kurds in lieu of Hmong if you will, but chieu hoi is in full swing. America’s finest field grade and senior enlisted cadre are being boarded out or RIFed. Generals who do not toe the party line are discovering their pink slips in their paycheck. This does not bode well. Used to be every fifty or so years we needed that wake up call to restore our reputation overseas and restore our military might. You can feel the Rip Van Winkle effect beginning anew.
Just imagine what this will look like a year or five from now. A bunch of gay drone operators demanding Officer Flight Pay, Distinguished Flying Crosses, Air Medals and the right to unionize and strike.
Speaking of Montagnards, here’s a preview of the the present I’m sending to Bruce back in Geee-orgia. He never got to play up country so he missed the weekend outings to the Pleiku Flea Market. These Montagnard crossbows were hot sellers in 70 when I went through. These were the ceremonial ones and much larger than the ones we shot Budweiser cans with at night after work.
put the cursor on it and click. It’s shot with megmegapixels
The dogs alerted to this glob of opium used to hold the arrows when I put them in hold baggage.
Detail of inlay
bamboo arrows
And here is the first batch of what portends an avalanche. How you folks find all these gems is beyond me. I have a hard time farming and writing to venture too far afield to the ramparts of Fort Faceplace. Enjoy.
We at Asknod always troll for the blood at the CAVC and Fed. Circus. On the rare occasion that we Vets have one of our own go up to the Big BIG House, of course that warrants even more attention. Reversals and Grants of Writs of Mandamus are rare as a June bug in December. When one appears, you know it will be a good read from cover to cover. Groves does not disappoint. This is a panel decision to boot. As could be expected, Judge Bruce Almighty dissents in favor of the VA’s position.
The first thing you notice on the full docket is this puppy came to life back in January 14th of this year. In terms of a Writ of Mandamus, it’s positively antique. The panel decision is the clincher. Now, to add drama, let’s sprinkle in a CAVC remand from March 2012 ordering the BVA to reinstate an improper reduction in Mr. Groves’ 100% rating for bent brain. If the plot plan still seems thin, imagine the remand going south at Fort Eskinazi and being filed in the “Affirmed” folder thus requiring no more attention.
If that were all there were to this, it really wouldn’t amount to a hill of beans. Gene Groves did all this pro se himself. It’s a piece of work. It’s a genuine legal work product commensurate with a ten year law dog’s. It’s a mite rough around the edges but is perfectly serviceable. What’s more, it shows the indifference VA thinks it can visit on us pro se claimants and for most of the rest to some degree. Gene sent in query after query and 
obtained no response. Sacre Bleu! It sounds like me. Fact is, kids, I’m going to hand this to Law Bob Squarepants and he’s launching mine after New Year’s. If Mr. Groves can get this degree of umbrage with the CAVC, imagine how twenty years and then two more of the same treatment will play up at 625 Wagonburner Lane NW. I’ve sure given them and Call me Bob plenty of warning and only got the same deal-Silence or an updated 24 hour rubberstamp SOC denial of the old CUE denial.
VA is not solely the culprit. This time it happened in a bastion of respectability and decorum. Somebody at the BVA hit the wrong key… or so they say. Here’s a Whitman’s sampler of great one liners.
I like Fort Whacko’s defense. We put seven of them in the temp. c-file and sent one to BVA.
Yeah, here at VA, we don’t actually forward the mail to the intended recipient. We put it in the c-file where everyone can find it. Or else sometimes we start a new temporary c-file -kind of like one of those appointment books down in Phoenix. You know, kind of like a file folder and if you want to find something, it’s probably in there. But if the BVA has it, well, then we forward it to them. It’s worked well that way for over a century.
Well, there you have it pilgrims. For lack of a horse shoe and a 44 ¢ stamp the claim was misplaced. For lack of a VACOLS technician to fix it, the Vet went unpaid. When this happens VA usually says “Wow. Good thing Mr. Groves spotted this and we could correct it. Sorry about that little two year glitch. Hope losing your house and being homeless wasn’t too big an inconvenience. But as you know, justice delayed is not justice denied so buzz off.”
The Court, with the exception of Judge Kasold, had no problem absorbing the enormity of the VA’s, and Bruce Gipe’s chutzpah. As for Kasold, we didn’t expect him to come down on Gene’s side anyway. He’s never met a Veteran he liked. What Gipe didn’t expect was for this to turn into a “Harvey v. Shinseki” moment like back in 2011. For sheer impact, we haven’t really seen anyone get their socks rolled down over at the OCG 27 corral since Jean Erspamer had her Nehmer moment back in the dawn of the 90s.
As for taking out the financial stick and whacking Call me Bob, they wisely abstain from it. It serves no useful purpose to punish McFlougle for it. He just inherited this overflowing cesspool. General Ric had pretty much already chieu hoi’d by then as well. As for what’s hiz butt Gibson- again- he was just the caretaker. If you could come down on Gipe or Laura “Rocket Docket” Eskinazi as the legitimate culprits here and wallop their paychecks, justice might be served. Could be in a short time those two will suddenly discover a need to be more family-oriented and take a breather from work’s travails.
Gene wins the 2014 Pro Se Vet of the Year Award hands down. I can’t say I’ve seen such a well-constructed spear go through a shield so cleanly and cleave into the VA OGC-Kasold notwithstanding. I guess we have to thank our lucky stars and Greg Block that Judge Davis didn’t get this assignment or we’d be seeing a Beraud-type reversal in a year. You can be sure Meg and Greenberg are silently giving Bruce the Bronx cheer in the privacy of their chambers.
Watch the CAVC website in the next few months. I think you will be pleasantly surprised to see a new tack in Veterans Appeals Jurisprudence. We’ve been “off-track” for almost ten years since Kasold showed up and it’s time to take a far less adversarial stance towards Veterans. We are accorded many niceties in law and there is no reason to be rude, crude and socially unattractive -not to mention boorish- towards those of us who are not the brightest lights on the Christmas tree. We were bright enough to serve. We were equally foolish enough to think we bargained in good faith in exchange for those services. There is absolutely no reason why Veterans law and the deference shown us for our willingness to sacrifice all cannot flow to and fro from the Federal level.
Every salient win in this business seems to elicit a nuanced revamping of 38 CFR to fill in the holes and prevent any misinterpretations by Veterans of purported entitlements accorded us. It’s time to rise up and file, baby. This should be a wake up call to all of us. By letting the camel’s nose under the tent in 1989, VA continues to suffer one indignity after another. Call me Bob will last only as long as he doesn’t follow any evidence of VA malfeasance back to 1600 Pennsylvania Ave. SECDEF Chuck Hagel’s Christmas Present is all the warning you need in that respect.
I guess it takes all kinds to make the world go around. I always thought the Marines had the inside track on collecting toys for the needy kids. Member Sue sent this one in and it makes you physically ill to read about these types. First, how they ever think they can get away with it amazes me. Secondly, what would possess them to do it to kids? Besides giving Vets and the Marines a black eye, it endangers the very act of giving to all legitimate charities.
The idea of stealing from children is unconscionable. I suspect there is a nice warm place in Hell reserved for them some day. No act of contrition would be large enough to overcome this sin.
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
Veterans Claims Help 