DADDY DAY AT SCHOOL

Posted on October 26, 2023 by asknod

Cupcake sent me the below article while I was in DC for a face-to-face, bayonet-distance hearing (my favorite) before a really great Veterans Law Judge yesterday afternoon. They say a picture is worth a thousand words. In my business, a face-to-face hearing is worth a thousand pictures. Creating empathy for a Veteran’s  incredible travails is the very essence of litigating- the je ne sais quoi, if you will. It’s the only thing I can hazard a guess on (outside of  my pure, ornery persistence) to explain my extraordinary successes in this VA poker game we play.

I gotta tell you it’s a good thing I didn’t read this article right before my hearing yesterday or I might have turned into a puddle of tears. Read on.

Daddy Day at School

As Told By Linda Lindley

 

Her hair was tied up in a pony tail. Her favorite dress tied with a bow. Today was Daddy’s Day at school, and she couldn’t wait to go.  Her mother tried to convince her she should probably stay home. The kids might not understand if she went to school alone. But she wasn’t afraid. She knew just what to say-what to tell her classmates-about why he wasn’t there, too. Still, her mother worried how she would face this day alone. And that was the primary reason she was trying to dissuade her from going.

But the little girl went to school eager to tell them all about a dad she never sees. A dad who never calls. There were dads lined up against the back wall of the classroom for everyone to meet. Children were squirming impatiently for their turn-anxious in their seats. One by one the teacher called on a student from the class to introduce their dad. As the minutes slowly passed, the teacher finally called her name.

Every child turned to stare. Each of them searched the room for a man who wasn’t there. “Where’s her daddy at?” she heard a boy call out. “She probably doesn’t have one.” another child dared to say. And from somewhere near the back, she heard one father say in a low voice to another “Probably another deadbeat dad. Too busy to waste his day.” Other fathers nodded in agreement.

The comments didn’t offend her. She gazed out at her mom and then looked back at her teacher who encouraged her to go on. And with her hands behind her back, slowly she began to speak. And out of her mouth came words incredibly moving. “My daddy couldn’t be here today because he lives so far away. But I know he wishes he could be here since this is such a special day. Unfortunately, you can’t meet him but I wanted you to know all about him and how much he loves me.”

“He loved to tell me stories. He taught me to ride my  bike. We used to share sundaes and ice cream cones. He liked to surprise me with pink roses and taught me how to fly a kite. And though you can’t see him, I’m not standing up here alone. ‘Cause my daddy’s always with me. Even though we’re apart, I know-because he told me. He said he’d forever be in my heart.” With that, her little hand reached up and lay across her heart feeling his heartbeat beneath her favorite dress.

And from somewhere in the crowd of dads, her mother stood in tears proudly watching her daughter who was wise beyond her years. For she stood up for the love a man who was not in her life-doing what was best for her; doing what was right. As she dropped her hand back to her side, she stared straight into the crowded room. She finished with a voice so soft but its message was clear and loud.

“I love my daddy very much. He’s my shining star. And if he could, he’d be here today. But Heaven is just too far away. He was a soldier and he died last year when a roadside bomb hit his convoy. But sometimes when I close my eyes, it’s like he never went away.” And then she closed her eyes, looked up and saw him right there by her side. To her mother’s amazement, she watched in surprise as a room full of fathers and children all closed their eyes as well.

Who knows what they saw before them. Who knows what they felt inside. Perhaps  they saw him at her side, too. Into the silence, she whispered “I know you’re here with me, daddy.” And what happened next perhaps made believers.

All those derisive, who only moments before were quick to rush to judgement, were silent. For each, even with their eyes closed, could almost envisage a long-stemmed rose on the teacher’s desk beside her. That little girl, if only for a moment, was blessed by the love of her shining star. She was blessed with the gift of believing that Heaven is far closer than we could ever conceive.

If you have a minute next week or so, how about you post this to let everyone know that our soldiers, sailors  and airmen will hopefully never be too far away in our thoughts… or forgotten after they pass. Honor them while they live.

Happy Veterans Day early to my readership. And in the immortal words of Forest Gump,  “That’s all I have to say about that.”

Posted in BVA Hearings, Food for the soul, Veterans Day | Tagged , , , , , , , , , | 5 Comments

VBACOL319–CLEANUP ON AISLE R1

Posted on October 14, 2023 by asknod

First of all, I’d like to explain that all Regional Offices are assigned a three-digit identifier number to confuse somebody somewhere. The Russians in case they attack? Why not just call it what it is? Columbia, South Carolina is, for example, VBACOL319. The numbering system begins at 301 with Boston. There are gaps in the numbering to allow for future VAROs to be inserted but the numbering would appear to be in the order they were added. VBAPROV304 is Providence, R.I.  VBANYC306 is New York City. Some states have more than one Regional Office. California has three ( San Diego(377), Oakland(343) and LA(344). 

VAROs beginning with a 400 prefix, as near as I can see, report to one of the 300-series Regional Offices. I do know If you call the Fort Harrison, Montana Regional office (436) the polite receptionist in Salt Lake City (341) picks up. The Anchorage, AK (463) office is answered in Seattle (346). And so on.

Few people know it but back in the late ’80s, the industrious raters in San Juan Puerto Rico (355) discovered a way to make some extra income on the side by cozying up to their local counterparts in the VSO offices and began selling ratings. The standard rate was $300 for a DC 6260 Tinnitus rating. The price went up from there. Everything was fine until some poor Veteran complained about the high cost. $300 was serious folding money back then and a tinnitus claim at 10% was only about $70 a month. The upshot  of the whole thing was San Juan’s raters were forbidden to write anything more than dependency ratings. The authority was transferred to Columbia S.C. for about five years. San Juan’s raters went through an ethics class and were “reprogrammed” to do it properly. Shoot, knowing VA, they probably even got a promotion up to DROs.

The following story is a study in incongruity to me. Back in about 2013, under the tutelage of Under Secretary for Benefits (USB) Allison Hickey, the National Work Queue (NWQ) was instituted. All the claims from across our country, including Manila and San Juan, all went into what can best be described as a Bingo Ball hopper. Each ‘ball’ (read claim) was pulled out and worked in the order it arrived-or so they said. If they screwed something up and a Congressman/woman pitched a bitch, the claim was pulled out and worked immediately by VBADC397-the Appeals Management Center (AMC) which has been renamed about 50 times and was, after the advent of the new AMA, renamed the the Office of Administrative Review (OAR). The OAR generally handled all the BVA remands but was repurposed after the new AMA came into effect. It is now one of three Decision Review Operations Centers or simply DROCs-the other two being St. Pete’s and Seattle.  Gradually, Veterans noticed that their ratings decisions (RDs) no longer had the location of their local Fort Fumble emblazoned at the top.

Now, the only way to determine who wrote your grant or denial is to view the ‘Notes’ section in the Veteran’s VBMS efolder to see who ‘worked’ it. As a general rule, the NWQ would assign the file to the very next rater who found his inbasket empty. So why did my Vet Harry get such speshull treatment from his hometown Regional Office? And why, pray tell, did they send it over to the Washington DC DROC to do the R1 reduction proposal on what can only be seen as a poorly-attempted screwover that was destined to backfire?

The raters in Columbia seem to have had it in for ol’ Harry since his first attempt to summit Mount VA in 2002. And 2010. And 2011. And on and on. It did get better by 2017 when he managed to snag his Aid and Attendance but no one in their right minds could honestly say he didn’t qualify for it. But all his ratings happened at Columbia-not Albany NY or San Diego. For some inexplicable reason, the boys at Columbia have had a death grip on every claim he’s ever filed. It’s as if the NWQ claims hopper doesn’t exist in Columbia.

Which brings us up to the present. Knowing Harry’s on his last legs medically, I felt compelled to clear up some old unfinished business even though it was a low-value claim. By now, I’d gotten him the loss of use of his upper and lower extremities and R1. It’s the principle of the matter to me to not leave any money on the table. He was entitled to a bump up from SMC L to L ½ right after  they cut the paper on his A&A in 2017 under §3.350(f)(3) and they blew him off. In addition, six months later, he got another 100% schedular for his lung disease which entitled him to the bump up from the SMC L ½ to M under §3.350(f)(4). Yep. They told him to go suck eggs on that one, too. It was subtle. It’s called implicit denial. VA’s take on this is simple. They deny by just not doing it. It’s up to you to ‘see’ the error and complain. In Harry’s case, they (the village idiots in Columbia) wouldn’t even concede they screwed it up when I CUE’d them. So I went back up to the BVA and laid it out in three part harmony for the Veteran’s Law Judge (VLJ).

LS/MFT-Liquid Sunshine Means Fried Targets

Well, being intelligent, the folks up at BVA VACO (BVA Central Office) saw right off that the Columbia raters couldn’t count to twenty even if they took off their shoes but then that anomaly generally exists at all Regional Offices. The SMC ‘calculator’ quits working right after SMC S and refuses to spit out the correct SMC rating. Any rating over SMC L has to be overridden and entered manually. Funny how that works, huh?

Now, Harry had won his ‘bumps’ at the BVA and the decision was returned to the NWQ to be effectuated and  the shekels distributed. But here’s where it gets queer. I know I’ve told a lot of you that it’s nothing more than an old VSO wives’ tale that VA raters have a unwritten program whereby they will attempt to reduce your ratings if you keep filing more claims. My classic example proving it untrue was if they do, how in Sam Hill did I get to 290% (two 100% schedulars, a 60, a 40, two 30s, a 20 and a 10 for my tinnitus) without getting a punitive haircut? I expect because it never rose above the level of SMC S. R1 is $9,267 a month and a whole different ballgame, apparently.

Take a gander below at the June 27, 2023 Rating Decision the VBA397 Washington DROC handed down. Vindictive? You don’t know the half of it. Not only did they begrudgingly cut the paper granting the bumps, but a decision was made somewhere up in the USB hierarchy to teach ol’ Harry (and by extension, me) that this kind of tomfoolery would not be tolerated by Denis the Menace. In fact, my/our effrontery would be punished to dissuade others from such conduct. It might have worked on some chucklehead snowflake VSO but not a combat Veteran. Granted, I’m no big boy like Combat Craig™ but I can hold my own in the litigation arena. Page one of the Code sheet couldn’t have made it more clear who we were dealing with. Even more obvious was that the decision was signed by the Assistant Director of the OAR.

redact CS ^ bump and CUE reduction

 

 What the VA poobahs proposed to do was take Harry’s old 2017 SMC a&a rating away due to a now-perceived CUE and reduce him down to SMC O for his two SMC Ls for loss of upper and lower extremities. Without that old 2017 L for aid and attendance, he wasn’t eligible for the R1. That’s a pretty drastic haircut financially and knowing their vindictiveness, I’m sure they were positively drooling at the opportunity to tote up the amount erroneously paid out back to 2017 and reduce him to abject poverty-and by extension his wife’s DIC for the rest of her natural born life as well- after the poor guy had passed on.

I was taught to never occupy a static position. You’re a sitting duck the longer you camp out there and do nothing.  When attacked, you attack right back-in spades. If they’re throwing hand grenades at you, return fire with the four deuce mortars and call in an air strike RFN.  I learned early on that nothing conveys that exquisite emotion of F___ You more eloquently than napalm and CBUs (liquid sunshine and Black Cats in our ’70s vernacular). Too bad we’re forbidden to use them in VA law. Harry had a spare 100% schedular for his Interstitial Lung disease and I’d debated using it to get him back-to-back A&As for R1 when he first approached me for representation. However, his loss of use of his extremities due to the Parkinson’s would provide him with an automobile and Specially Adaptive Housing (SAH) so I opted for that line of attack. It took a couple of years but we prevailed and I thought we’d put this puppy to bed- and then this cheap shot began. Shit. The guy is dying. How much more would he cost VA if they just let it ride? Too much, apparently.

So I filed for a new A&A entitlement solely for the lung disease and boy howdy did I have the airpower to back it up. Check it out. I’m sure the OAR folks stared at it for several weeks like a Rubik’s Cube trying to figure how to deny him and follow through with their proposed reduction. It didn’t pan out. They must have sent it back over to Columbia (again) who were forced to concede they’d run out of hand grenades. But the thing that grabbed my eyeballs was the concession on page 3 saying- “This proposal to reduce you from R1 to SMC O has been withdrawn. We have magnanimously decided to call in the dogs and piss on our proposal-to-reduce fire. Move along. Nothing to see here. As you were, Harry. ” Withdrawn? More like “We admit we stepped on our dicks.”

redact filed a&a 7.25.2023

Redact final RD protected R1

redact final code sheet 10.11.2023

During the war, I always packed a couple of hand grenades everywhere I went-even to the loo. Old habits die hard. Rest in Peace, Harry. You earned. it. Like ol’ Zac Brown says in his song…

You know I like my chicken fried
Cold beer on a Friday night
A pair of jeans that fit just right
And the radio up.

I don’t think there’s anything more satisfying than bearding the VA lion in his own den.

The M 26 Dupont Spinner for fishing

See you in DFW next week, folks.

Posted in Aid and Attendance, AMC or ARC, Implicit denial, R1/R2, Reductions in rating, SMC, Special Monthly Compensation, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , | 2 Comments

BRAIN MUSCLE TRAINING IN FORT WORTH

Posted on October 13, 2023 by asknod

Once again, the Biannual convocation of VA’s most committed representatives calls. We are assembling for the purpose of  learning new techniques with which to do battle with the incorrigible miscreants who inhabit the Veterans Service Centers across our fruited plains. Sadly, my Fuji apples just came due and they are TDF (to die for). I’m forced to leave in High Season. If you are an aficionado of Waldorf salad, it’s the derniere cri on the subject. Of the three types we have (Liberty and Gravenstein), the Fuji are incredibly late but more than worth the wait. Hopefully, I can take a few to Ft. Worth without getting arrested by the Fruit Police.

The hotel looks like a Carnival Cruise Liner if you ask me but hey-my taste is in my mouth. I got the email saying NOVA™ reserved block of rooms were going on sale on a Monday morning about 9 or 10 a month or so ago. I booked mine immediately (due to memory problems) then called a buddy down in Califunia and told him to get on it before they were booked out. He lollygagged about and finally began an hour later. Too late. They reserved a block of one hundred forty rooms. I checked the attendee list and see 267 individuals. Oh well, Uber drivers shall benefit handsomely. Yesssssssssssssss.

Classes run from Thursday morning to Saturday afternoon, 0730 to 1630 Hrs. We get a good grip on not only what’s new on the legal menu but insight from VA’s very own employees on how to maximize our use of the VBMS computer. My enduring wish is that VA had the bandwidth to allow all Veterans access to the platform. As it is, it can be slower than a tick on a cold day-even for us. Watching the little doomoflotchie sit there and spin brings back memories of the old Dial-up days in the 90’s.

Kinda looks like a cruise ship from here

Anyway, now you know why I probably will not be answering my phone in the next week or so. I checked my records and dang if I don’t have more clients in Texas than any other state in the Union. I reckon it must be some kind of Veteran friendly to pack them in like that. In Washington State, you get a free license plate if you’re disabled and very little else. Cupcake and I both work so there’s no property tax holiday yet. I’m not complaining. To be able to represent America’s bravest Veterans is an honor more than worth the minor sacrifice.

 

Posted in VA Representative Training, Veterans Law | Tagged , , , , , , , , , , , | 6 Comments

BVA STATISTICS–TAKE PROTEIN PILL, DON HELMET

Posted on October 5, 2023 by asknod

Just got this informative news bite on BVA costs versus performance output from a good friend and former Veterans Law Judge. Being an incredibly smart fellow, he wisely parted company with the BVA and sought employment at one of the unarguably finest outfits representing Veterans before the Department of Veterans Affairs. I speak, of course, of Chisholm, Chisholm and Kilpatrick. Attorney (and partner) Christine Clemmons does a wonderful job delivering devastating news on the Board of Veterans Appeals’ lack of progress in spite of onboarding 35 more Judges in the last year. I personally think the increase in the budget is heavily impacted by these new Judges’ salaries. They ain’t cheap… but then, nothing’s cheap north of Richmond from what I hear tell.

You can watch the bloodshed here:

The worst stat I heard which rolled my socks down was the cost per claim to adjudicate an appeal year over year. Think $1,695 per claim in 2020. Now think $2,760 per this fiscal year. If you think that isn’t terrible on a one-off basis, think about my greenhouse claim. I’ve been working that diligently since March 20, 2011 including two CAVC Ex Writs and two trips to the Board already. I’ll be flying back to DC again for Hearing number 3 directly due to the forced recusal of a certain VLJ who shall remain nameless. Hey, all I did was ask for recusal. It’s not like I insisted she be hoist on her own pétard.

If you read the grant, you’ll note the Deputy Vice Chairman, Thomas M. Rodriguez, stated: “It is the decision of the Board to act on its own motion to recuse Judge _________…”. Shoot. All I needed to do was draw arrows to the Hearing Transcript in my VBMS file and ask them to peruse a few verses. And here I went and wrote ten pages of carefully thought out prose with expletives deleted-all for naught.

Now, don’t get me wrong. I do love flying back to DC and shooting the shit with Thomas Williams. He’s the Greeter who serves drinks and ushers us in to the ‘courtroom’ at VACO to be introduced to the presiding judge (VLJ). We’re on a first name basis now. We both own horses and have a lot in common except for our height. He’s about 6’6″ easily. I get a crick in my neck looking up when I greet him. But there are other, far more personal reasons to go back, too. I like to visit the the Wall. Lots of friends and lots of memories chiseled in that black granite. And most of all, I get some quality time with my dad over at ANC.

In sum, we’re spending far too much for justice that is slower than the seven year itch. The AMA was touted as a panacea to end all panaceas. So far, all I can see is two more miles of darkness tacked onto an incredibly long tunnel already with no respite in sight. It’s almost like Ronald Reagan famously said- “What are the nine most dreaded words you’ll ever hear?”- I’m from VA and I’m here to help you.

And that’s all I want to say about that.

 

Posted in Appeals Modernization Act, BvA Decisions, vA news | Tagged , , , , , , , , , , , , , | 4 Comments

BVA–M-M-M-M-M-M-M-MY SHIRONA

Posted on October 3, 2023 by asknod

Shoot. Did I get enough ‘m’s in there? Gotta go listen to the song again to check. In this day and age, you have to put your foot down when the poop hits the rotary oscillator. This, I did. Yesssss. As for whether  Veterans Law Judge Lauren Cryan actually agreed to it, I could care less. She made her position blatantly clear from the outset of the hearing to the bitter end- actually even before I was sworn in. The short pre-hearing colloquy was actually more contentious than the hearing itself. That’s when I knew this was going to be an exercise in futility. Too bad we don’t get to pick our own judges but then you don’t always get a lime wedge with your Corona or a lucky extra bounce on your grenade.

 

I’ve been really busy and neglected to check my own c-file in VBMS. I’d wondered why I hadn’t heard one way or another as to whether they were going to give her the boot or not. And lo and behold, the USPS good tidings actually got here before I deigned to check VBMS. Shut the front door.

Anyway, not much to report here. Attached is the redact of my hearing transcript, my feelings on the subject in my Motion and the Dep. Chairman’s kindly reply. It’s a valuable tool in those rare circumstances when you find yourself in a Pickle.

REDACT BVA hg,. Txscript

Redact Recusal Motion

Graham BVA VLJ Recusal grant

File this one under “Watch that the door don’t bump your  ass on the way out”.  One thing I always say to VA’s litigators before we strap on our armor is that this isn’t about you and me. It’s about the Veteran. Remember him? The guy who has borne the battle?  It just so happened this happened to me and not one of my clients. I’d like to think I saved VA a lot of face by not putting it on Channel 7 at 6 PM. And that’s all I have to say about that.

Posted in BvA Decisions, BVA VLJ RECUSALS, Tips and Tricks, VA Agents, Veterans Law | 3 Comments

THE CLAIMS COMMANDO

Posted on September 30, 2023 by asknod

Someone (everyone is entitled to anonymity) sent me a link a month or six ago but I never took time out to go check out his website. I did today. What a hoot. A lot of conversation has been bandied about in the last year regarding the level of knowledge out there post-AMA that is based on experience. When I say ‘experience’, I mean recent experience- as in 2020-2023. As you can imagine, all the really big, brand name Vets websites are replete with information like how to file a Form 9 or the proper way to list your disabilities on your VAF 21-0958 Notice of Disagreement. With the exception of a few die-hard Legacy claims which might possibly be pending (I have a few), these forms are passé. Ils sont morts, dude. Ditto the RAMP program. If you see these, the help site is still living in the stone age. 

So, assuming you are a neophyte at this game- and rest assured most of us are (or were at one time)- you seek real time information and techniques to win your claim before the arthritis sets in and you get your wheelchair driver’s license. Considering it took me twenty eight years to accomplish this project, the internet now has shaved that number down to whatever speed limit the BVA or your local Veterans Service Center has put on it. But that only applies if you know what your doing to ensure a speedy adjudication.

The pitfalls are numerous. VA sends you those VAF 21-4142 and 4142a forms to sign and return but fails to point out that should you sign and return them, it may add another year to your claim. Worse, when Tina the technician at Kaiser Permanente informs your VA rater that it will be $51.50 for copying fees at the time of document release, Mr. VA rater says “I don’t think so. Either you give them to me free or piss off.” Of course, VA doesn’t tell you they gave Tina the raspberry. You’re laboring under the misconception they did what they said they would do-go get your private medical records. In the immortal words of George Jetson’s dog Astro- “Ruh-oh, Rorge.”

So, you need knowledge to avoid these punji pits. You go to Tellmehow.com and ask your VA questions. You get all the well-meaning moderators-some of whom are ten years older than God- telling you all about how to file a supplemental or HLR claim-something not one of them has ever done. They suggest (God forbid) filing for a BVA Hearing with new and relevant evidence. Folks, if you have rapidly metastasizing non-small cell carcinoma, I strongly suggest a quicker approach. I can almost guarantee that even with Nivolumab™, your chances of seeing three more New Year’s parties are somewhere between dang near slim or none.

So, I googled ‘Winning Your VA Claims’ and what pops up these days? Why the claims commando-Combat Craig©. I couldn’t resist this time. In his own words,

“For about the price of a tank of gas these days, there’s no contract and only an administrative fee of $99.95 for access. That’s it! Are you ready to Sign Up For a One Year BOOT CAMP Tour or as a BOOT CAMP LIFER (never expires + forever access to Combat Craig and his BOOT CAMP Support Team) and SUPERCHARGE your VA CLAIMS goal of INCREASED VA DISABILITY RATINGS and BENEFITS? You’re here right now looking for information and guidance, and BOOT CAMP has it for you on a platter. So stop half-assing it and wasting more time. Get it in gear and join now.”

Okay, I’m game. Let’s see if I have this right. Our commando claims he is rated at 100%. Does that include a component of PTSD? Okay, let’s not get picky. There are lots of highly functioning Vets with 70% ratings for MDD. How about asking how many claims  he’s filed, what percentage did he win, and what’s his BVA/CAVC appeals record win or lose? If this guy is selling admission tickets to the Chicken Dinner Winner Contest like they do over at Togetherweserved.com™, then you better do some more investigation on what you’re going to get for your annual tithe of a Benjamin Franklin coupon.

I don’t mean to denigrate a fellow Veteran-or any Vet like myself offering advice for that matter- but I smell something that doesn’t seem right. I do this for a living. We, and I mean all VA attorneys and Agents, constantly have to change our tactics as VA changes theirs. We have jungle drums and communicate with one another. Nobody has any proprietary techniques for how to skin the VA cat. The majority of us attend  legal conferences at least once a year and many twice. We learn the latest tradecraft on how to win and who to call/email in the  bowels of the VA when the claim goes south. Does Commander Craig modify his videos to comprehend these changing trends? Does he have VBMS and the Rolodex to VA’s Outlook? Of course not.

Thus, I will attempt to cast a bit of realism into what our claims commando is selling. To me it looks like a well-orchestrated spiel from a good ol’ boy who won his claims by himself. Okay so far. What is overlooked is that each and every claim or appeal is uniquely different. There simply is no “typical claim” you can copy and paste as a template. I’m sorry but judging what I’ve reviewed,  I  have to file this one under All Hat(s) and No Cowboy.

In summary, the short story here is there is no recipe that applies to everyone who files. A certain disease or injury might be presumptive due to the area you served in but why buy  the manual that covers all the areas when you only need to know about one facet in particular-e.g., the Indochinese peninsula (RVN, Laos, Cambodia, Thailand)  versus Southwest Asia.

 

Does the $99.99 per year cover our commando walking point and filing yet more claims to keep testing out his technique as he stated and then reporting back to his Boot Camp Buddies? Are we going to watch a video about how he did it in 2017 before the AMA changed everything after Valentine’s Day 2019? Does our erstwhile combateer keep abreast of new precedence emanating from the CAVC or the Fed. Circus and teach it? All these queshuns. Personally, I think Veterans deserve a higher level of legal help than a Haircombing 101 course in VA law.

Yes. I know I’m in the VA dog house more often than not because I do ask questions. I’m no longer on a lot of VSO Christmas Card lists. I’m persona non grata at almost every VFW bar across our  fruited plains. VBN and Hadit have 86’d me.  But I ask you- is it worth it to squander $179.95 for a Boot Camp Lifer membership in this outfit if you have Parkinson’s? Will you live long enough to get your money’s worth? Will you even remember it? Or even the $99.95 annual fee to learn a lot of stuff you don’t need or want to know? Considering how many diagnostic codes there are in Part IV of the VASRD, that’s a mega shit ton of “how to” videos our Commando needs to create to “personalize” your claims experience to your disease/injury.

One thing our knowledgeable expert said concerns me. He stated he continues to file claims to “get more experience” on how to do it. Back the boat up to dock, Gilligan. What? In this day and age, we are already challenged on getting legitimate claims adjudicated in a timely manner. As for filing claims just to see if anything might stick to the wall, that might fall into the realm of fraudulence. It most certainly falls into the realm of squandering scarce judicial resources better spent on other, more deserving Veterans in my book.

I might make a suggestion to the Craigster. How about you study up for the VA Agent Test and pass it? That way you can learn all the intricacies of this business and any quirks that are popping up these days on confusion as to how the AMA regs are beginning to collide with Congress’ statutes on the subject. Think 38 USC §7104(a). Frankly, anyone who can put this much effort  into producing what he touts as a winning technique based solely on his limited personal experience probably has the wits and wherewithal  to learn the system and employ it with some degree of proficiency.

I listened to just one video (free) discussion on the nuances of all the different forms of a 100% rating. Also mentioned was a 100% TDIU rating. As most who are on TDIU (Total Disability due to Individual Unemployability) know, they are not 100%. They are merely being paid at the 100% rate. What about the unfortunate ones who got railroaded into a “combined” 100% rating which effectively screwed them out of SMC at the S rate? Crickets. Navigating the VA ocean of law is far more complicated than watching a few videos and launching your claim boat.

In this business, there are no simple panaceas or shortcuts to a win. The fact is, you’re never going to get to 100% P&T with pes planus, hemorrhoids, tinnitus and 19 other 10% ratings no matter how you cut it. Total 100% schedular disability is awarded to people who are far worse off than Hogan’s famous goat. No nine minute and fifty second video is going to teach you how to get there if you don’t have the necessary medical ingredients before you begin.

There are a lot of Veteran’s help sites out there. Most, if not all, offer free advice. But  again, if all the advice you get is dated pre-2019 or unique to the Vet telling you about it, your chances of reconfiguring it to suit your circumstances is going to require a lot of book learning. Murphy’s Third Law is applicable here. Universal parts…aren’t. One size fits all… never does.

As for the “claim shark” outfits, their days are numbered. I do not include our buddy Craig in that group per se.  Congress will eventually get around to fixing that hole in the dike. I’d like to meet the joker who deleted that regulation in 2004 and let this Pandora problem out of the box. My advice to any reading this is to refuse to pay them anything if they come knocking. A Vet up in New Jersey got a great win recently on this and the Judge agreed he was within his rights to tell them to suck mud. No accreditation tickee-no laundry.

I merely report. You Veterans decide. I’d be interested in any satisfied customers who report back on how they fared under the Craigmeister’s tutelage. Did they get their money’s worth or merely a lot of video footage with attaboys and Craig’s amazing collection of hats? Every pathway to winning VA claims is to be encouraged. It could be ol’ Craig knows a lot more than I give him credit for. I’m not above granting him that. Shoot, I’d be obliged to give him a soapbox to stand on here to explain how he does all this with no legal training. Of course, I’ve been out of the service for more than fifty years. It could be they teach this as part of AIT combat training nowadays.

 

Veterans need to understand that there is a fine line between offering advice versus charging for the advice. Most folks who charge for legal advice hang a shingle out front and are accredited. Some of them even have an ‘Esquire’ after their name. It’s another matter entirely, however, to grab the pen and begin filling in the little squares on the VA Form 21-526EZ for your buddies. Asking for a $50 Home Depot™ gift card for your help is, of course, right out.

The regulation §14.629(b)(1) reads

 (b)(1) No individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an agent or attorney unless he or she has first been accredited by VA for such purpose.

I guess it goes without saying that if you aren’t even an Agent or attorney, preparation, presentation and/or prosecution of claims is a Bozo no-no. §14.636(b) also gets into the nitty gritty world of money…

(b) Who may charge fees for representation. Only accredited agents and attorneys may receive fees from claimants or appellants for their services provided in connection with representation.  

I will say I admire Mr. C. Craig’s verve and zest for his interest in Veterans’ claims. I merely worry that he may run afoul of the VA’s Office of General Counsel (OGC). What the hey? I wrote a book on this back in 2012 and explained it in layman’s terms for Vets. Yes, I was paid for it but Cupcake and I donated all the monies to Veteran charities. If that is Combat Craig’s objective, I certainly wish him the best. But if he’s simply translating VA law into DickandJanespeak and charging for it, he isn’t helping you unless his (and your) legal comprehension is incredible. It took me almost a decade to grasp the nuances of  just Special Monthly Compensation. I don’t see his videos preparing you to file for R1 -but hey, I could be wrong. In my considered opinion, your money would be better spent hiring a good attorney or VA Agent who will do all your claims work for you. I might add they probably do not all have fancy hats, though.

Imagine. 9 minutes and 50 seconds to instant comprehension of SMC. Whooo doggies.

And that’s all I’m going to say about that.

P.S. Just got a phone call ( 10/5) from a bystander. Our good buddy Craig migrated to his new position from VA Claims Insider. That explains a lot. He’s 70% for Bent brain syndrome and some small change for flat feet. The “combat” moniker is unsupported by his DD 214. Yep. No PHs, BSMs, SSs, DSCs CIBs, CARs or ArComs. Shoot. Not even any “I was there” medals. Is that Stolen valor?

Posted in All about Veterans, Appeals Modernization Act, Complaints Department, FACE HUMOR, Frivolous Filings, Humor, Service dogs, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 8 Comments

EXPOSED VETERAN RADIO SHOW– THURSDAY 9/28/2023

Posted on September 26, 2023 by asknod

John says Ray is out chasing the American Dream on the road. He may call in so we shouldn’t rule him out. The show will focus on the quickest way to win your claim as rapidly as possible in the new “Hurry up and slow down” AMA. Well, let’s say I’m going to show you how I’m doing it these days anyway. I’m sure every other agent and attorney has a similar schtick or maybe not. Who knows? I’ve met some attorneys who fly from Seattle to New York via Tokyo on the client’s dime so it would be pure conjecture to say they never let the moss grow under their legal shoes.

I’d like to tell you about the upcoming demise of Veterans Guardian™, VA Claims Insider™ and the rest of those pay through the nose outfits. Their method certainly works for some folks who are megabusy but the law is the law. The Statute says no more than 33 percent if it’s complicated and 20% if you want VA to collect it. There isn’t any provision for 500 times the amount of the increase times six months.

I’d like to discuss the hows, whys and needs for an Independent Medical Opinion. There seems to be a wealth of confusion on the subject. Ask yourself why you should pay $10,000 dollars for one if you only require an IMO for one single disability?

And lastly, I’d like to clear up the confusion regarding the VA’s Microsoft Excel Worksheet I published this spring. Rarely have I seen such a purposeful misconstrual of the information I presented. Well, either that or Alzheimer’s has finally arrived for a certain unhappy camper. I publish this comment I found on the open internet last week (unredacted below) exactly as I found it on the website of a law firm here in Seattle. They were the local lead legal outfit for the Veterans Service Organization which sued me back in 2015. This gal is not only way off base as to the identity of “Deep Throat” but mistakenly believes all the doctors listed are the crème de la crème in the IMO world and above reproach. Well… except for that one doctor whose license was revoked. She didn’t have any explanation for that outlier nor would I expect one. Makes you wonder if they’ve discovered a way to change water to wine up in Cohocton, NY. I can’t make this stuff up.

The call in number to the show is below.

 (515) 605-9764

For those of you with computers, here’s the link

https://www.blogtalkradio.com/jbasser/12272055/connect/49abe0e625a86834272849bfe65313289afe0529

What the hey. It may be a rip snortin’ good show even without Ray. We hope to see you there. Showtime is the same-1900 Hrs on the East side and 1600 on the Left. Dial one (#1) if you wish to speak to us.

PS. Here’s another daisy to raise your blood pressure. Contributed by Ed the LRRP. If you all hadn’t guessed it yet, Ed was a LA County Sherriff for 20 years after terrorizing I Corps for two years.

Posted in Exposed Veteran Radio Show, Humor, VA Agents, vA news | Tagged , , , , , , , , , | 1 Comment

BVA/VBA BACKLOG–THE NEVERENDING PARADE OF EXCUSES

Posted on September 24, 2023 by asknod

Before I begin this diatribe-nay-observation, I have something that needs to be illuminated. I don’t spend much time on my phone. If I did, nothing would get done. Personally, I think that’s what’s happening to the rest of the world these days. On my Gargle™ news feed, I have gradually accumulated about ten questions that just beg to be answered. I’ve never clicked on the items to find out the whyhow. I don’t think there’s enough room in my wallet for all the items either. Read on.

This conundrum deserves a brewski/wine seltzer and some Snyder™ Pretzel sticks with extra butter at a minimum and then you can return to watching the NFL further demean America by avoiding playing the National Anthem before the game to appease the 1% of our poor conflicted/offended players.

The bread clip ‘don’t leave home without it’ admonition

I spotted this one about four years ago. Being inherently lazy and busy to boot, I’ve just never put the world on pause to find out what dire trouble I’ve been in all this time and how that bread doomoflotchie is going to make me a) rich, b) thinner; or c) get back on the  WWP™’s Christmas Card list.

The Crayola™ crayon ‘don’t leave home without it’ caution

This requirement came and went far more rapidly than most. I haven’t seen it in years now. Either the good folks at Gargle™ found a way to combine the crayon need with the Bread Clip need or one of the others on this list below may be the reason we no longer need crayons to save our asses. Knowing crayons tend to melt on hot days, I thought immediately of how they might fare in a 98.6° wallet.

The ‘Do this to your phone by Sunday’ warning

This is actually flexible. The admonition could be any other day of the week as long as it’s two or more days hence. That’ll give it a suitable sense of urgency. If you’re mega insecure, you’ll probably fall for all these ploys-even the every day of the week ads on fixing the phone with your handy shish kabob from the kitchen-or is it a toothpick?

The tinfoil trick of wrapping the door knob for when you’re in a hotel

That one always invigorated my attention. Does this have something do with the Corona Virus? Are there coodies on the knob? What if the knob is a lever and not a round knob? What do you do then? Will Saran wrap work or does it have to be tinfoil? Shoo doodle. Making room in the wallet for the bread clip, the crayon and now tin foil? Pretty soon I’m gonna need one of them ‘man purses’ to cart all this crap around.

The ‘Put a water bottle on top of the tire’ warning device

This one may save your life. Well, it sure sounds that way. One thing’s for sure. Pretty soon the folks at the Hampden Inns™ and Motel 6’s across our fruited plains are going to get sick and tired of picking up all your water bottles and recycling them for you. Eventually, they’ll fine you for it if they see you do it. It could be you need to go back and check out the Bread Clip gig and or the crayon/tinfoil tricks to see it you can substitute them in lieu of the water bottle.

‘One teaspoon of this every night before bed and watch the weight fall off”

Well, to begin with, I’m 72 and in all those years I’ve never been personal witness to this phenomenon. I’ve seen a lot of stuff fall off things. Tires fall off cars. Nape and CBU fall off the hard points on a wing. Once a guy lost his camper shell off the back of his pickup truck and it sailed right over the top of my rig. I almost had one of those urinary/fecal moments in my pants to be truthful. I guess that might qualify for weight falling off and it doesn’t require a teaspoon of anything.

‘Here’s how much you need to save to be able to retire by 38’

Personally, I think you should also include some pointers on what kind of business you need to be in to pull down this kind of dough. My guess is it involves buying into the Dave Del Dotto™ patented Cash Flow System or you’re gonna need to move a shit ton of Fentanyl every week with your brand new best friends forever in the Mexican Cartel. I reckon flipping houses is right out by now. Even if you could find a house you could afford to pick up for a song and a dance, you’d still need some serious folding cash. Bidenomics is rapidly pricing you out of this future.

THE BVA/VBA DEBACLE

This is a real bone of contention with me. Not just because I do claims for Veterans but because as long as I’ve been doing it, the siren lure of Drive Thru lanes at the Regional Offices has always been touted as just around the corner. Under Secretary for Benefits (USB) Allison Hickey promised as much to Congress several times. Each promise was premised on the completion of electronic records files in the near  future and an infusion up front of some Baksheesh right now to implement it. Alas, each time defeat was snatched from the jaws of success as some unfortunate event intervened and the magic 125-day claim from start to finish was thwarted. Fortunately, the infusion of more shekels was capable of righting the wrong and accomplishing this worthy goal.

So, here we stand, almost ten years later and the 125-day plan still eludes the bean counters. Could it be that they need bread clips or crayons to fix this?  I decided to do a dumpster dive in my VBMS feed this morning to see the “average” delay in the claims based solely on my miniscule effect on the system. The average, even when pulled up statistically by several new clients’ submissions in the last 14 days failed to move the needle away from some ugly numbers. I count 21 of my active 40-odd pending new and supplemental claims are well over 125 days-most over 200.

I have a surviving spouse for whom I filed claims as her husband entered hospice. This was back in late 2021. He wasn’t going to make it but there’s no law that says you can’t file for a&a at the end. Sure enough he punched out in March 2022 so there were already four months on the odometer.  First thing is they “lost” the claim simply by cancelling it. This was humorous because they’d already received ACE (acceptable clinical evidence) c&p exam opinions back as to whether it was or wasn’t service connected (SC). Fact is they sure didn’t have any problems granting her DIC and burial benefits within 125 days. I reckon that claim-before-death thing was just way more complicated. From the looks of it, I’d say they were praying we’d just disremember it and it would all go away. What the hey? The Vet’s dead. He sure ain’t gonna get to spend it. Right?

I got the claim reestablished after a lot of screaming. However, the new 125-day clock began the day they “found” the old claim and restarted it. You can do the math. The claim was just denied a few weeks ago. It should have registered as about 455 days. But that’s nothing compared to the BVA’s backlog. Even worse, this ‘oops we accidentaly cancelled it’ game isn’t a fluke. I’ve had about 15 of those that required massaging to bring them back to life. Every last one involved a deceased Veteran. Coincidence? You be the judge.

When VA and the Big Six VSOs hornswoggled Congress into the new AMA revision so as to enable lightning -fast adjudications, they used the same old snake oil they’ve been selling for decades. Granted, I guess they didn’t see the Procopio 12-mile Blue Water Navy exception coming- but they did, really. Eugene Haas’ denial (Haas vs. Nicholson) about where the AO ended began this problem way back in 2006. Up to then, if you had a Vietnam Service Medal (VSM), VA pretty much granted service connection for AO crap. Then some bean counter at VA discovered Thailand Veterans were awarded VSMs, too. That began a massive do over and a gazillion CUEs to weed them out. Then they noticed the Squids out in the South China Sea were, too and bingo-that party ended until Procopio was decided. And now we have the PACT Act granting AO to Thailand, Anderson Island and every whistle stop between Saigon and San Diego.

Suddenly, after Haas, being in the “Boots on the Ground Club” became far more exclusive. You needed some pretty hard evidence to prove it. We began resorting to using the old Yellow Shot Books to prove incountry via the APO zip code. I even used a letter a Vet sent to his parents with the “Free” franking stamp in the upper right corner where the stamp goes. Credibility only goes so far at the VA. Merely stating you made the weekly Klong flight from Yankee Station to Da Nang to pick up the mail, Marbs and the brewskis wasn’t good enough. You had to show your MOS was mail carrier.

This phenomenon of proving credibility-for PTSD purposes- still prevails. If you were a 94B20 Cook, you would have to prove the gooks got in under the wire and overran the compound while you were there. VA accepts that everyone turns into an instant Eleven Bravo when that happens. VA uses the Joint Services Records Review Center (JSRRC) to do this. They have 12 (twelve-count ’em) “technicians” busy verifying your presence at LZ Bronco in 1968. Sometimes, this is impossible as many of you know. Everyone generally went to a dispersal depot and were assigned in country on an as-needed basis. These days, I use things like the Service treatment records (STRs) to show the APO zip code . You can access the list above https://asknod.org/vietnam-zip-codes/ to find most of them.

Lastly, the hoped-for gains at the BVA evaporated when the AMA swung into high gear. All of a sudden, a majority of Veterans decided screwing around down below at the Agency of Original Jurisdiction (AOJ) level was a dead end and decided the smart money was on a BVA decision. Unfortunately (you hear that word a lot at the VA), the AOJ was sloppy and a lot of claims that went to the BVA  weren’t ready or had some defect like duty to assist or procedural error or ________________.

The BVA gomers weren’t having that. If the claim, now called a notice of disagreement (NOD) appeal, was not perfect, it got booted back to the AOJ (remanded) to be “fixed”. Even this didn’t help with the avalanche of NODs. The backlog at the BVA continues to defy the bean counters. In spite of hiring even more Veterans Law Judges (VLJs) the number of appeals continues to metastasize like an unruly cancer. Who woulda thunk it? We just engaged in nonstop war  for twenty years and nobody saw this coming? Vietnam  had a rather similarly sharp learning curve 50 or more years ago. It, too, persisted from 1961 to 1975 depending on who’s counting. VA Medical Centers couldn’t begin to hold them. Same old shit. Different day.

Since a lot of you read Veterans Help Websites looking for information on how to kick ass and take names, I think it’s only fair to point out a few problems I’m beginning to see. Most all of the “Elders” and Moderators of the web sites cut their teeth on the old Legacy System that existed prior to February 2019. The advice they offer is so far off the mark nowadays that it is deleterious to your claim or appeal. I honestly believe VSO Service Officers might be able to give you better advice. We need every asset we can muster. Newer Vets of the Iraquistan era need to inject new blood into these older sites to help their fellow Vets. One site I viewed recently is still offering advice on how to switch over to the RAMP system from Legacy. Newsflash. RAMP ended February 14, 2019. A frequent Moderator even proposed to offer advice on the VHA’s Caregiver program and baldly stated it would take two to five years to get a decision. Someone wise once said if you intend to preach, you better be well-acquainted with the Bible.

Different times call for different strategies in VAland. I used to advocate for HLRs before the Corona crisis. As of several months ago, I changed my mind. I’m batting about .300 on them now- and not for lack of finesse. The problem is simple. VA used to assign senior RVSRs or Quality Control RVSRs to these claims. As my practice has changed and focuses more on Special Monthly Compensation (SMC), I find that the HLR reviewers I get are GS 11s who are utterly clueless on the subject.

A good decision at the BVA is far more likely -but again, you have to pick wisely. You have three lanes from which to choose. The Direct or ‘no new evidence’ lane is the chicken dinner winner and here’s why. A request for  a hearing will create a minimum of a two-year wait for a VLJ. Ditto for an evidence submission. I have several from 2020 still waiting. Worse, and a strong possibility due to the BVA gomers trying to pawn off as many as possible back to the AOJ, is the newer phenomenon of sending a dynamite IMO to the BVA and them kiting it back to the AOJ saying the AOJ deserves a shot at deciding if it’s a chicken dinner winner or a no-go. I leave it to you to guess the statistical outcome of  those remands. Nothing like a fresh horse and a new rope for a VA Texas-style Necktie Party.

Get all your IMOs decided up or down at the AOJ. Submit and complete all the supplemental claims actions below. Make your BVA  NOD Appeal rest entirely on the evidence of record. In more simple parlance, leave the VLJ with only one option-an up or down decision. Specify it in no uncertain terms. Tell them you’ll gladly waive any further review below and trust the VLJ to make the correct decision.

One of these days we’ll see those Drive Thru claims systems in place. It’s just that I don’t have confidence it will happen in our time.  And if any of you have discovered what use all of the items I mentioned above have, please by all means do share them with us.

 

P.S. Ed the LRRP sent this one in late.

Posted in Appeals Modernization Act, BvA Decisions, Duty to Assist, Humor, VA Agents, VA statistics | Tagged , , , , , , , , | 1 Comment

WHY THE AMA IS NOT WORKABLE (AND NEVER WILL BE)

Posted on September 10, 2023 by asknod

Sassy little header above, isn’t it? Well, Veterans, let’s “unpack ” this as they like to say in the hallowed halls down at the corner of Delay and Deny Ave. NW. I proffer a test case to demonstrate the unworkable tenets associated with the whole concept of streamlining the claims process. Somewhere, there’s a Power Point Presentation of this at VA that makes it sound like greased lightning. The translation into 57 ROs ( 60 now if you throw in the three DROCs) is now complete. I’ll pick a DROC as an example today. This one is From the DC Puzzle Palace. It’s a daisy but a classic example. Thank God I squelched it after only two BVA remands.

Somebody better contact these folks and tell them to lose the word ‘trans’ quick.

Let me see if I can make a long story short. Meet Harry. Standard issue boots on the ground Air Force. One year tour and lots of AO exposure. One look at his code sheet and you’re wondering what’s right with him. Nevertheless, he soldiers on. He hired me during the beginning of the Pandemic to be his swordbearer and take him up the ladder to SMC R1.

Once I accomplished that, he hit me with a second wish. I, of all people, know what it feels like to get dissed. When they said I’d never set foot in Vietnam in ’94 and wasn’t entitled to any Nehmer Class considerations, I damn near choked and puked. It would be fourteen long years before I made them eat those words. It would be another eight (2016) until they paid me everything back to 1994. Revenge still doesn’t sate the appetite without an apology. It lacks that Je ne sais quoi  of earnestness, I guess. A blithe off-the-cuff statement isn’t the equivalent. VA’s final statement on the subject in 2008 was ” Well, we’re willing to concede your presence in the Republic of Vietnam during your tour of duty in Southeast Asia.”

After Harry got over that test, he began to notice early on that he had something that strongly resembled about everything but Parkinson’s. It’s like his civvie doctors had every disease on the tip of their tongues but Parkinson’s. It was variously (rule out) Restless leg syndrome, myoclonus and about 50 other things you never heard of but not the Big P. This began to be a big problem  from 1997 on. It didn’t get better. Fact is, it got way worse and all the doctors sat there (as they usually do) and opined on just what the hell it wasn’t. This is referred to as “practicing medicine” as opposed to performing it.

Harry filed on 9/11/2002 – the very year after the new War started. Harry’s not a doctor. He just pointed to the owie and said “hurts”. VA promptly denied. He went through the motions but even he could understand the juggernaut he was dealing with and threw in the towel. Mr. Parkinson’s continued unabated and began to really get bad.

In 2010, he refiled when they included Parkinson’s into the AO list in §3.309(e). After a year of denials, he bagged it but there would be no talk of going back to 2002. Remember, he didn’t call it Parkie’s. He filed for “hands and feet shaking all the time with being very sad and I have headaches.”

So Harry dumps this in my lap and dredges up all- and boy howdy do I mean all- his med recs and kited them off to me. Well, sure enough there was enough mustard on that hotdog to invoke §3.816(c)(2)(ii) and I did so. VA denied (of course), the HLR booth bitch laughed at me (not with me) and off we went to the BVA. I’d republished duplicates into the VBMS of all the old 2002 Med recs but they wouldn’t even look at them. They weren’t VA authored. They were “tainted” so they never caught any air.

Finally, at the BVA, the Judge agreed and granted the earlier effective date back to ’02. VA, being the most fair and munificent agency in the US Government, on remand allowed as he had a few symptoms which would permit the paltry minimum of 30% under DC 8004-and not a dime more, mind you. Harry was certifiable 90% in 2002. Shoot, I wasn’t having any of that so I began a new AMA “ladder” to the BVA. Harry is mega-AOD material. He’s not over 75 yet but he’s terminally ill from the Interstitial lung disease and his doctors make no bones about how near he is to shaking hands with St. Peter and beginning the “onboarding” process up there.

So Harry and I went back and forth to the BVA a couple of times with this Remand shuck and jive and the Judge finally had a heart to heart discussion on the second remand that it might be necessary to reread them records ol’ Alex dragged out from way back in ’98 that said his hands and feet looked like they had a life of their own. Shake they did. Yessssssss.

They finally conceded as you can read here, that old Harry did deserve that 90% I’d been pitching since late 2020-three years ago. And herein lies the story upon which I began this blog. The new AMA, in spite of being touted as the cat’s pajamas for the 21st century, is quite the opposite. It’s true. When some chowderhead shows up and says “Hi, I’m from the US Gubmint and I’m hear to fix things.”, put your wallet in your front pocket and run. Don’t walk. Sadly the Big Six VSOs were pushing this on Congress as the panacea from Hell. Not.

Redact RD 2002 8.29.23

Redact code sheet 8.29.23

 

Here’s the problem in a nutshell. VA has inserted so many Indians into the mix, then salted in too many chiefs, and finally created a behemoth that has too many moving parts to be workable. Worse, they illegally delegate authority to the clinicians subcontracted to make nexus decisions and then ask for endless “clarifications” to try to denigrate or dissuade the clinician from confirming a positive correlation between  X (now) and the X you had in service. Sew enough doubt in the clinician’s mind and you eventually get a revised opinion that there is no nexus in spite of what they said last month.

We used to call this develop to deny. It’s still alive and kicking. In this day and age of monetized private nexus letters (IMOs), this is becoming more prevalent -not less. This used to be simple. VA denied. You went out and got a bulletproof IMO and they conceded. Now it’s a contest of wills to be right. We’ve lost sight of the objective-the Veteran.

I know this is true. I’ve been playing VA poker since 1989 and seen everything they have in their VA Cliff Notes™ book. I can even point to the month it began- July of 2020. Up until that time, every VA appeal I won for my Hepatitis C Vets resulted rightfully in a 100% total rating. Most would go on to die shortly thereafter so there wasn’t any question about their  level of illness.

That month, the first rating decision came out on one of my remands back from BVA. No c&p exam ensued. No verification of disease or level of disability a la Fenderson. It came out at 0%. “The BVA told us to give you SC for Hep C. Here you go sucker. You did the cure with Harvoni. Ergo you have no disease. 0%. Thank you for your service. Next?”

Thus began the new AMA hamster wheel. You file your substantial with yet another IMO, they deny. You get a HLR that’s hostile and you auger in again. Off to BVA and they remand back and say something inane like “Duty to assist error” and off to the races we go on a new remand. Lather. Rinse. Repeat. After several trips to the BVA remand laundry, you get a bump up to 20% for the Hep. This is old world VA style water torture from the Legacy days. So where’s the greased lightning? Where’s this high-powered, big improvement that’s going to eradicate the backlog which keeps growing?

We’re rapidly reaching new ways to thwart this new version of VA remand Badminton. You have to nail it down at the BVA and hold their feet to the fire. Develop that thing until there simply isn’t anything left for guesswork and send it up to the BVA on a direct docket. Hearings and evidence submittals only provoke a do over down below now.

That’s my story and I’m stickin’ with it.

P.S. Thanks to Amy Odom and her presentation of Haskell. After this one comes out, I think this Parkinson’s conundrum will resolve itself. But maybe not. It wouldn’t be the first time the Secretary decided to blow off the CAVC. Nor the last.

Posted in AO, Complaints Department, Duty to Assist, IMOs/IMEs, Remanded claims, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

BVA–WHO YOU GONNA CALL? –JUDGE BUSTERS!

Posted on September 9, 2023 by asknod

Sorry it’s taken so long to take keyboard in hand and write. I’m almost recovered from the most godawful cold that kicked my ass hard. I ached so bad I lived with my trusty neck sock full of rice. You nuke it in the microblaster for 3 minutes and it cooks your neck muscles for an hour or so. This hummer also carried a nasty headache so work was virtually impossible. 

But, I’m back. In fact, I’m Nationwide. The Boys in the ‘hood in Winchester, Tennessee have invited me back to explain SMC in Veteranspeak-something easier to decypher than VAspeak. It’s a free Veterans Seminar being conducted all day at the First United Methodist Church, 100 South Jefferson Street in beautiful downtown Winchester.

Vet seminar

Ray Cobb and James Cripps, in concert with John Stacy of Exposed Veteran Radio Show, will all be there. I contacted some of the wonderful people I’ve had the pleasure to represent over the years that I’d be honored to meet them in person. Fact is, this area represents a cluster of R1s and R2s that I’ve had a hand in helping. So it’s only fitting that I finally get to meet them too.

I was also going to contact all my old friends over at Hadit.com and invite them to this exciting VA hoedown but my password must have expired. I haven’t set  eyes on old Loyal (Broncovet) in years and he’s almost the President Emeritus there now since Berta and Tbird retired. Not to worry. I’m sure the Veterans network jungle drums will spread the joyous news. We in the Veterans world are blessed to have such a tightknit camaraderie. “Leave no Veteran behind” is rich with meaning-depending on what you’re smoking, I reckon.

 As for the continuing litigation for my greenhouse, the latest update is one of my good friends over at CCK™ was kind enough to provide me with a recusal template to employ when these distasteful situations arise. After suitable modification, I completed it this morning. That cold nightmare caught me at about day 2 of building it so it went nowhere until I began to feel human again.

Anyway, below is the finished product sent out this morning. One addresses these things to the Head honcho of the BVA- i.e., the Chairman of the Board. You don’t deal with the front office L&S krewe.

Redact Recusal Motion

Now, regardless of what people think, graduating 59th in a class of 64 doesn’t condemn you to the ranks of the IQ-challenged. I prefer to think my low standing in 1969 was based on trying to keep my teacher’s expectations low and sliding through to the needed pedigree. What the hey? It worked. My command of the English language is attributable to mom but I wield it like a Jedi Lightsabre. Nothing says F*** You better than a good ol’ multisyllabic word.

As most of you have probably heard, my oldest claim, Butch’s LZ Cork saga, was denied again at the Board. That’s merely a temporary setback. He’ll win. These idiots are blinded by the impossibility of conceding defeat on a million dollar claim. Always remember the immortal words of Saint Coral Wong Pietch: “§3.156(c) is the exception to finality.” Finality will always sit in the back seat to §3.156(c) because a rating must be predicated on all the evidence. If some of it gets there 50 years later, reconsideration is in order.

Most importantly, Butch’s claim differs from all the  §3.156(c) precedence to date. He isn’t relying on the JRRSC to produce something saying LZ Cork got the stuffing knocked out of it on 1/18/1969. Butch’s case hinges on the 135 pages of STRs , a CIB, an ARCOM and a Purple Heart showing combat and injuries by name all introduced into the record 48 years later. Just because I forgot to attach all the evidence the first time isn’t a disqualifier. You’ll note the fine print in §3.156(c) says “At any time…” That sounds pretty wide open to interpretation before an impartial jury. The operable word here is “impartial.”

VA calls this a “freestanding claim”. We call in by it’s legal name- §3.156(c). for some reason, VA thinks if you keep calling a duck a chicken enough times in spite of it’s proclivity to quack rather than cluck, that nobody will notice. Move along. Nothing to see here, folks. These aren’t the ‘droids we’re looking for.

When I began the latest rebuild, I did some dumpster diving into the history when it changed over in 2005 and moved to its present location in §3.156 from where it had been hiding in §3.400(q) all these aeons. I spotted this in one of the present cases on the subject. I can’t say which but that’s immaterial. I immediately ran out and got IMOs on the neuro and ophthalmological aspects to pour concrete around the case.

“Of note, VA proposed revisions to 38 C.F.R. § 3.156(c) in 2005. In the proposed rule located in the Federal Registrar, VA specifically describes the situation in which 38 C.F.R. § 3.156(c) would apply, stating the provision of subsection (c)(3), which instruct how to calculate an effective date for an award based on records identified in (c)(1):

“would apply, for example, in cases where a veteran files a claim for disability compensation, which VA denies because there is no evidence of an in-service injury. Years later, if VA receives service department records that show an in-service injury, and obtains a medical opinion that links that injury to the claimant’s current disability, it would grant service connection. Although the doctor’s opinion is not a document that meets the definition of proposed § 3.156(c)(1), the service department records showing incurrence, which provided the basis for the medical opinion, is such a document. Therefore, the veteran in this example would be entitled to reconsideration of the prior decision and retroactive evaluation of the disability.” New and Material Evidence, 70 Fed. Reg. 35,388, 35,389 (proposed June 20, 2005) (codified at 38 C.F.R. pt. 3).”

I don’t reckon you need to have one of them fancy summa cum laude Juris Doctorates in VA law to figure that one out, huh?

Now take a gander at page 11 below and tell me how all of you think this will play out up at the Big House  on Indiana Ave. NW. Shoo doggies, this one might even garner a panel. I’m filing the NOA next week after I can get the signatures without being the west coast distributor of this consarned cold bug.

Redact LZ Cork BVA Denial

You fellers know how I suggest you build a good, old fashioned punji pit with legal bamboo skewers for them to impale themselves on. Well, take a gander and see how they walked right into this one. I just love it when a good ambush comes off as planned.

P.S. here’s one from Ed the LURP. Who else?

Personally, I think this one is photo shopped but I had to share it.

Posted in 3.156(c), Independent Living Program, VA Agents | Tagged , , , , , , , , , , , , | 2 Comments