SMC-S–ATTEMPTING TO CUE OLD TDIU DECISIONS

Posted on August 16, 2014 by asknod

downloadI was contacted by a Vet seeking to readjudicate an old award pre-Bradley that entailed the same or similar circumstances. To review, Bradley was awarded TDIU for one, single disability as the predicate for the total disability rating. Nevertheless, he had additional ratings that added up to 60% (or more) which ostensibly entitled him to VA’s Special Monthly Compensation ‘S’ worth about $300+ back then. He took Kenny the Carpenter up to the Fed. Circus and finally made VA read 38 USC §1114(s) exactly as it was written-not the way Dr. Peake insisted it was intended. Jim Buie did much the same and refined it further by adding up his disabilities not in the order received, but in the amount of percentages. Once one rating was granted at totally disabling (100% schedular), he merely moved the old, less-than 100% TDIU rating over into the SMC column to attain his SMC-S. VA doesn’t cotton to you playing their 3 card Monte game as they do. They fought him long and hard but to no avail.

Importantly, though, I came across a little-known panel decision from 2006 that illuminates another old ploy of VA’s to deny us “substantially housebound” status which I am currently seeking. It, too, was repped by the Kenster. In a nutshell, VA said I was totally disabled (100%) by a secondary disease (Porphyria Cutanea Tarda) yet they low balled me at 10%. After a DRO review, they zeroed out the DC 7815 Porphyria rating and substituted DC 7704 for 40% for phlebotomies. This was clearly and unmistakably erroneous (CUE). A total disability is just that-total. What Diagnostic Code they choose to use is immaterial.

The focus of the argument is twofold. I maintained prior to this that I was “substantially housebound in fact”. I lacked the requisite additional 60% rating or ratings above and beyond the 100% schedular or, in the alternative, a TDIU rating based on one single disability. VA regularly uses an odd means test if you can call it that. Their conceptualization is that if you can make it to the CBOC (community based outpatient clinic) or VAMC without an ambulance, they you must not be very “housebound”. Hell, for all we know, the ambulance is not even a viable excuse. Your mere presence at a VA medical facility argues against the fact that you are at home- ergo you aren’t housebound. Game. Set. Match.

As I gave Rick advice on how to combat what I felt was an interesting point of law worthy of review for error, my research led me to Howell v. Nicholson.  There I found the argument to defeat these idiotic straw man inventions VA used in 2009 to defeat my request for SMC-S based on a purely “substantially housebound ” reading.

Copy of Howell 04-0624 opinion final

Read this on page 7:

B. Permanently Housebound Status – 38 U.S.C. § 1114(s)

SMC-HB benefits will be paid to a veteran who, “by reason of such veteran’s service-connected disability or disabilities, is permanently housebound.”  38 U.S.C. § 1114(s); see also 38 C.F.R. § 3.350(i)(2).  The term “permanently housebound” is further defined as being “substantially confined to such veteran’s house . . . or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout the veteran’s lifetime.”  Id.  The term “substantially confined” is not defined by statute or regulation.  See id.

The Howell court decided to define what ‘substantially’ finally meant here and this was in 2006. You will find that this didn’t percolate down to the VA judicial branch at the OGC or VBA level. It may have but I doubt they take any of this seriously until called out numerous times.

This is the stuff legends are made of. First, the Secretary (or what was to become the later DVA) insists on one broad interpretation of  what “substantially confined” is and then

Because the meaning of the term “substantially confined” is ambiguous and there is no regulatory interpretation, “the Court must determine the meaning” of the term “and the Board’s obligation” thereunder.  Thompson v. Brown, 8 Vet.App. 169, 175 (1995); see also Jackson and Cropper, both supra.  The Secretary submits that the clear implication of this term is that the requirement that one be “substantially confined” is met when the claimant is restricted to his house except for medical treatment purposes.  The Secretary, citing to Senate Report No. 1745 (June 27, 1960), notes that in passing section 1114(s) Congress intended to provide additional compensation for veterans who were unable to overcome their particular disabilities and leave the house in order to earn an income as opposed to an inability to leave the house at all.  Mr. Howell does not contest this interpretation.

Having synthesized the essence of the interpretation, the Court proceeds to apply the coup d’ grace on the Veterans Law Judge.

Accordingly, we hold that leaving one’s house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of SMC-HB benefits, and the Board’s interpretation of section 1114(s) to preclude the grant of SMC benefits on the basis of Mr. Howell’s leaving his house in order to attend VA medical appointments was erroneous as a matter of law.

That, fellow Veterans, is your can opener when you get hit with something like this. I have read numerous decisions that cite to the fact that the Veteran was able to attend his/her appointments and thus was free to move about the country.

The holding is well-cited and will stand you in good stead when they try to pull the blinders over your eyes. Always remember, Veterans. VA doesn’t know the law any better than your VSO or you. They make stuff up and run with it. If you are lucky enough to catch it or have an astute rainmaker who does, you will prevail. I can’t count how many Vets have come to me over the years and try to quote law to me to show why they lost. If 67% of all VA decisions are overturned, remanded, vacated or set aside for error or incorrect reasons and bases at the CAVC, then the smart money says appeal it. What is remarkable is that only a small number of Vets do so. Go figure.

Win or Die VA

 

Posted in SMC | Tagged , , , , , , , , , , , , , , , | 8 Comments

FED. CIR.–JOHNSON V. McDONALD-DISMEMBERING VA’S EXTRASCHEDULAR RATINGS SCAM

Posted on August 10, 2014 by asknod

downloadFor scores of years, and certainly for as long as the post-1988 modern iteration of the VA as we now know it,  some interpretations of the VA’s regulations have been granted ‘deference’ if I can convey that politely and sarcastically simultaneously. In Veterans’ parlance, ‘deference’ means the USS Nonadversarial sailed without you. What appeared to be a level playing field was suddenly discovered to have a yawning chasm indiscernible to the naked legal eye. The chasm was so large as to be impassible. In Veteran parlance, we too have a name for it-the Thursday rules. Rule #1: If you weren’t born on Thursday, you don’t qualify for this special program. Rule #2, If, by a fluke, you can prove you were indeed born on a Thursday, Rule #1 is then for default application.

Johnson_13-7104

A statute, 38 USC § 1155, was clearly phrased in the plural when enacted by Congress. We don’t need to repave the legal highway and bore you with legal tomes that presume Congress consisted of some pretty fart smellers back then and it’s presumed they knew what they were doing. Suffice it to say § 1155 was pretty clear to all except the few, and I do mean a select few entrusted with apportioning it out. Guess whoooo?

For the uninitiated, here’s the statute which is law-not everyday guidance.

 

The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. The schedule shall be constructed so as to provide ten grades of disability and no more, upon which payments of compensation shall be based, namely, 10 percent, 20 percent, 30 percent, 40 percent, 50 percent, 60 percent, 70 percent, 80 percent, 90 percent, and total, 100 percent. The Secretary shall from time to time readjust this schedule of ratings in accordance with experience. However, in no event shall such a readjustment in the rating schedule cause a veteran’s disability rating in effect on the effective date of the readjustment to be reduced unless an improvement in the veteran’s disability is shown to have occurred.

I  highlight, underline and bold the pluralities to show you how ludicrous the DVA’s rebuttal argument is that § 1155 clearly intended that each individual disability-all by itself-isolated if you will from any other service-connected ailment, be microscopically considered for Extraschedular Ratings. And here’s the added VA kicker, the BVA insists combining them together was not permitted. Each disease/injury had to be viewed apart from the combination as a whole for it’s added ‘impact’.

Rating: X (Not intended for children under 10 to view)

This woman controls your access to Extra-schedular benefits.

The VA Secretary wisely arrogated this valuable and lucrative contravening of the ratings scheme to a select few. The Director of Compensation and Pension Service and honorable Under Secretary of Benefits, currently Allison B. Hickey, are the few described in 38 CFR 3.321(b)(1):

(b) Exceptional cases—

(1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph…

an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

Again, seems innocuous as a handful of potato bugs or a daddy long legs on your face. How did this regulation metamorphose into a knock down, drag out fight over the semantics of one absolutely unambiguous phrase:

The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture…

 

Former upper management at Home Depot. God help us.

Former upper management at Home Depot. 21 years as a weekend warrior. A ‘company man’ and the other duly appointed guardian of Extra-schedular ratings

Tom Murphy (director of Comp. & Pen.) and his merry krewe have chosen to join Custer and his brave band and die on that hill as well. That the phrase “disability picture” is singular and not plural  is the main tenet of their argument. The fallback, Gorrilla Glue ®, last line of defense is that 38 CFR § 4.16 (TDIU) clearly supports it. Idiot’s delight. If the Federal Circus finds our argument is bogus and indefensible (which we already know it is), then we’ll fall back on yet another regulation (not statute) to defend the injustice. Nowhere in the argument is there a reasoned argument for this tortured interpretation based on statute.

What about the CAVC?

Just so. What about the CAVC? How in hell did this escape them? They thought it of such import they convened no less than an en banc Court of eight to consider the implications. Then they promptly threw in the towel and gave the VASEC a pass on it without any introspection.

Johnson10-1785enbanc

What ensued from that decision is so clearly in error as to be indefensible and the Federales said as much. This, fellow Veterans is what the focus of justice should be directed to. What possible reason could any majority of the en banc CAVC hang its’ hat on to defend this? A tortured interpretation arrived at by pandering to the DVA and going along with it? If the reason is simply to grant deference to an ambiguity, then show us the ambiguity. There is none and that is what should make your hair stand on end. Kasold pointed it out in great detail in his dissent and it became the gist for the Federal circuit reversal-almost chapter and verse.

Everyone with an ounce of legal sense should wake up and take notice. The author of the en banc decision was none other than whom many of us had come to think of as a Veteran-friendly judge (Schoelen). Conversely, Chief Judge Bruce Kasold, admittedly the most onerous and least Veteran-friendly, dissented and was joined by Davis and Bartley. We expected Meg to come down on our side but this decision  is warped beyond credible belief for the lineup of the players alone. How often are you going to see Bruce and Meg play house together with or without Davis?

Johnson, in Schoelen’s and the other five judges eyes, didn’t have a pot to piss in  or a window to throw it out of. They even strayed off the reservation in search of this epiphany, in of all places, the M21-1MR. What was simply constructed long ago as a How-To instructional manual of how to rate claims, the modern M21 is carefully infused with many little fenced-in areas. Ingress to service connection is limited at every turn with an “except in cases of…”. I submit in this case that it was a mere surrender of any semblance of judicial interest in favor of a disturbingly “far reach” of English to lasso in the singularity of the definition of “disabilities”. It is so glaringly bereft of precedence to depend on that it merely turns on the whim of six judges too lazy to read 38 USC §1155 and intuit the clear implication of plurality. This smacks of the “Predestined Interpretation” theory espoused by Henry Campbell Black. Ben Krause made a great analogy to it in his recent article about fixing this uncanny 85% predilection for Vets’ denials down at the RO and BVA level. Too bad he didn’t consider the implication that this is a far bigger Dog and Pony show than even he conceived of. How else would (or should) we Joe Average Vets interpret it? When examined in the light of all the other VA intransigence, disinformation and obfuscation, and the VAMC dishonesty, finding out an extra-schedular rating scam was afoot should not be cause for alarm. It should be expected. Additionally, finding out that it was abrogates yet another presumption of regularity. At what point does this whole presumption gig collapse for lack of evidence it exists?

This wasn’t even a brain teaser for the Feds. At nine pages, it is a remarkably short-winded rebuke of the CAVC, and by extension, the whole DVA adjudications/regulations/interpretations schematic with an “s” after each noun. Much like the overlooked clear meaning of 38 CFR §3.303(b) that was “misconstrued” in Walker v. Shinseki last year, Johnson unmasks yet again the impression that the DVA is unaware of what it is about. Walker will now permit thousands of decisions to be CUE’d by VA themselves and reduce erroneous grants. Similarly, for years we have been sandbagged by an equally narrow minded interpretation of how extra-schedular determinations are determined. Mr. Johnson just brought it to the fore and with the help of Ken the Carpenter, they finally discovered the meaning of what ‘disabilities’ is (are?)

I suspect the barriers to getting this valuable consideration will take time to rend asunder. As with all VA bureaucracies, The Tomster and Allison are going to have to stand shoulder to shoulder to staunch the influx of now-legitimate claims and will not go willingly into the night without a few more discussions about what the meaning of “is” is. Oh and as for CUE on all those old Extraschedular decisions for the last 25 years? Thursday Rule, dude.

The most telling bitchslap was left for last, too:

Given the intention of the regulation [38 CFR §3.321(b)(1)/38 USC § 1155], the government’s argument that the consideration of the need for extra-schedular review should occur by evaluating each disability individually, without considering the impact on a Veteran of his or her collective disability picture seems difficult to defend. In Veteranspeak, that’s abbreviated as WTF. Over?

Seems if anyone had read 38 CFR § 4.25, the ratings table, they would have noticed it discusses the cumulative effect of a number of different illnesses/injuries and contravenes the whole argument put forth to defend § 3.321(b)(1) espoused in Johnson. Regardless, all’s well that ends well. I wonder how many more aeons we’re going to suffer this warped ‘predestined misinterpretation’ nonsense.

 

 

 

 

 

Posted in Fed. Cir. & Supreme Ct. | Tagged , , , , , , , , , , , , , , , | 4 Comments

VASEC–TOWN HALL MEETINGS

Posted on August 8, 2014 by asknod

10475963_809545875767566_7904001166678239804_oThis should be interesting. Our new Fearless Leader has announced town hall meetings but they are to be conducted at all VA Regional Offices and VHA Medical facilities. They are slated to be done by the end of September yet we have not been told where these Come to Jesus Meetings will be held or when. Nothing like a good Kumbaya party after the dust settles.

Will there be just one at, say, Sioux Falls VARO/VHA in South Dakota or numerous ones across the fruited plain? Will there be any press releases to announce the dates? So much promise and so much opaqueness concerns many of us when we hear once again that VA has finally heard our plaints and feels our pain.

Goin’ Places that I’ve Never Been

Judging from the content of the newest Congressional compact with Veterans, the opinion on the street is “Just got screwed again.” sung to the tune of Willie Nelson’s On the Road Again. Any new legislation that resurrects VA bonuses again in light of all the recent abuse of said bonuses is a fool’s bargain. VA has been unmasked numerous times for their perfidy, unreliable statements and statistics, and lastly, cheating on something as mundane as scheduling appointments for us. The punishment? Why, more bonuses at the same rate and quantity as before. I suppose they’ll actually have to prove they earn them this time around.

The VA’s Bonus Army

Let’s compare the old to the new.

Old bonus program: up to $360 million in bonuses for simply doing your job, or, in the event that you couldn’t accomplish the job with the available number of doctors/ appointment slots, inducing your subordinates (who, incidentally did NOT get that bonus) into fudging the numbers so as to qualify you for the bonus.

downloadNew bonus program: No more than $360 million in bonuses but document it all regardless of whether you can make it work; don’t get caught cooking the books; collect bonus in December for making an effort even if nothing changes. Reinstitute one week, all-expenses-paid Human Resources getaways to Orlando for training/implementation of all the new changes. Find a new Patton look-alike, improved Karaoke machines with higher-quality teleprompters and enforce media blackout of festivities.

Getting Rid of the Miscreants Who Lied and Cheated

How about firing the incompetent, sleazy upper management types for their misfeasance. Yeppers. That’s covered as well. All McDonald and his minions have to do is prove the secret waiting lists were wantonly created to ensure bonuses. That’s a pretty fancy trip wire that everyone can see and avoid. There will be more fingerpointing than an incest-plagued family reunion. VISN managers have secretly been instructed to use the Shinseki/Obama technique and bemoan the fact that “Nobody told us”. Their minions in high places likewise have been instructed to stare stoically at the ceiling and repeat ” Mea culpas are long overdue but we had to wait for the OIG investigation to play out. But for my ignorance, I singlehandedly could have prevented this. And since I was in the dark due to the intransigence of those below me, I should not be demoted  or have to return my prior bonuses. In the future, I promise to punish those beneath me and move on.”

The Lowly, Well-Intentioned Whistleblowers

Scapegoat-03-10-13-400x400How about protecting the whistleblowers? That was a pseudo-concern addressed during the lead up to the Senate vote on it. The consensus was they should not be dunned for coming forward. In the future, if anyone tries to bring attention to “systemic problems”, they will be rewarded with nice corner offices in the basements of ROs and VAMCs to guard the archived paper files. These are  much sought-after jobs and there will be fierce competition for them. Understandably, promotions in this dead end exciting new field are few and far between due to the scarcity of positions. Whistleblowers are advised to check openings before opening their pie holes to ensure transitional compatibility.

Guidance on Who to Fire?

Firing well-trained higher echelon personnel is messy and to be avoided. VA has a lot of time invested in these goldbricks and where possible, retraining and indoctrination are the preferred path. In the case of the small fry who were caught holding the bag, wholesale dismissal shall be the panacea. GS-7s to GS-10s are renowned for acting on their own and coming up with nefarious schemes to line their own pockets -even if they never benefit with bonuses.  VA’s OIG has determined this time and time again and it is statistically documented. These personnel will not be considered essential and should be considered first and foremost for scapegoat material.

And that’s the gist of the new bill. They promise we won’t get fooled again.

images

Out of sight but not off the payroll.

P.S. VA Secretary McDonald announced this morning that Ms. Sharon Helman, former VISN director of the Phoenix VAMC has been chosen to replace retiring VISN Director Victor Maninguez of the Manila, Philippines VAMC. She is reputedly taking Rosetta Stone courses in Spanish which explains her low profile for the last three months.

Posted in VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , , , | 4 Comments

CAVC–BALLARD V GIBSON–BACK TO SCHOOL ON INFORMAL CLAIMS

Posted on August 5, 2014 by asknod

thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Reversals are like high-Greek drama compared to vacaturs  and set asides for remand to rehang the Vet. They always invoke the ‘aha’ moment where the Judge points to that fatal flaw of law and says “You can get away with  quite a lot here and we’ll even give your reading of the regulations great deference, but this is over the top, son. You need to go back and crack the law books again because you’re way off the reservation. And be quick about it.” This coming from Judge Hagel is amusing but every Judge gets handed a case where the error against the Vet is so egregious that it demands a bitchslap. Poor Rebecca Ballard had valiantly picked up the standard where Danny Ballard dropped it when he died on the VA Hamster Wheel of Justice in August 2010. 

Seems Danny had some big back/hip issues which he (and I) didn’t communicate in English to doctors too well. Since we were not acquainted with polysyllabic terms like ‘radiculopathy’, we kept getting denied. Eventually you prevail like Danny boy here did, but VA immediately gives you the newer C&P exam date for your effective date of rating or increase because that is the first time, to them, that it can be conclusively proven that you actually carried this diagnosis.

Ballard reversal

downloadThis bait and switch is so old, it predates the Cliff Notes book of VA excuses. “Oh. The hips? You never mentioned the hips, Danny. Let’s open a brand new claim for hips.” VA knows you are going to win this pissing match eventually but they try to impede the inevitable for as long as possible to make more work for all of us as near as anyone can tell.

Danny filed in 88 and won 30% straight out. He never came back to the trough for an increase until he was in serious shape. At that point, VA decided to become adversarial. Szemraj v Principi F3d (2004) pretty much invented the term ‘kid gloves for pro se claimants”. Comer v. Peake cemented it when they referred to VSO reps as ” the mailmen with the funny hats”. VSOs have a long memory for insults.

images2VA knows better than to play dumb. Hey, they have 500 staff attorneys all jostling for a position to move into a Veterans Law Judge slot when a retirement comes due. They learn the path to promotion is to bring in the denial for the team. When you arrive pro se, or nearly so, VA is required to inspect every possible permutation of what you might be entitled to. It’s not meant to be a “Well. You said you had a back problem. You asked for an increase for a what? A back injury. You never said anything about your hips. Now you want us to believe your hips are related to this and pay you back to 2004? Sorry. It doesn’t work that way”.

The BVA dragged it out further until Danny went to his maker. Rebecca immediately picked up the appeal and continued. When she got to the Court, I’m sure NOVA or NVLSP were more than happy to take this one on. Easy EAJA funds and no discussion of whether it was a win or loss for the attorney.

The irritating thing about this is always the fact that VA knows better than to pull this crap. It’s an art form to them. They string together phrases from a menu on an old Adobe 2 and end up with semantic coleslaw. They do convey the essence of the denial but the logic is often twisted as here. I see one problem. Someone should put them on the Lexis Nexis VBM list to receive a new one annually. Perhaps they’re just missing out on all the Federal Circuit Court stuff. Look at this and try to imagine not understanding that Mr. Ballard is evoking a request for an informal claim.

In September 2004, Mr. Ballard sent a follow up letter to VA stating that he was seeking an “increase in  disability compensation and rating.” Mr. Ballard further stated

“The ability to do even the most simple things such as putting on socks and shoes is now impossible. Anything that requires bending my legs at the knees, hips, or the combination of both[,] is almost impossible. Climbing stairs, walking even small distances, sitting[,] and getting up from the sitting position is extremely painful.”

Hey, that didn’t faze the raters. They sharpened their pencils and warmed up the M21 Ouija Board.

In November 2004, the VA regional office denied Mr. Ballard’s claim for an increased disability rating for his back disability. The rating decision did not consider entitlement to benefits for a hip disability. Mr. Ballard filed a Notice of Disagreement with that decision and ultimately appealed to the Board. In his April 17, 2006, Substantive Appeal, Mr. Ballard indicated that he
believed his hip problems were related to his service, which VA construed as a new claim for benefits for a bilateral hip condition.

Sure enough, a whole new claim for the hips materialized and finally, in November 2007, five years later Mr. Ballard finally got the popsicle stick without the pop on it. Had VA gone back to 2004 as they legitimately should have, he and Rebecca would have picked up a tidy $90,000 check and an effective date of 2004. VA wasn’t having any of that. Ignoring precedence, they treated old Danny and Rebecca like a couple of Perry Masons and gave them no kid glove treatment whatsoever.

The decision wisely mentions the Clemmons precedent and with good reason. Mr. Clemmons was similarly vocally challenged and had difficulty diagnosing himself mentally. VA ‘fixed’ it for him with a new diagnosis and a new effective date much more recent like Danny’s but he finally prevailed after proving he wasn’t a psychiatrist. A great read.

JudgeHagelUsing Brokowski v Shinseki 23 Vet. App (2009) brokowski.349-wp-  as the canvas to paint this decision, Judge Hagel clearly shows the error of the BVA and ROs ignoring the screams of an unrepresented Vet. Worse is to purposefully misconstrue the word “hip problems” used throughout the course of the accretion of evidence as merely a problem but not a problem specifically rising to the level of a VA claim. Using this logic, the BVA Veterans Law Judge Milo Hawley referred to Rule 75-The Vet didn’t actually vocalize the phrase ” I want to file for my hips.” In VAland, that means you blew it. VA just hates informal claims because the whole concept means they have to perform due diligence and actually check all 2000 of your body parts, not just what you are asking for a raise on. And if you say your hips hurt, they have to acknowledge it.

As usual, at the end, every Judge has to slip the knife into the back between the seventh and eighth ribs deeply. Judge Hagel adroitly plants the shiv into Milo Hawley’s back with gusto in his parting sentence:

Accordingly, this matter is remanded to the Board with instructions to determine the proper effective date for the award of benefits for bilateral hip vascular necrosis. In this regard, however, the Court notes that Mr. Ballard submitted his informal
claim on September 2, 2004, and the examination that first revealed a hip disability was conducted on September 25, 2004. This is a factual question to be decided by the Board in the first instance.

Such is VA justice. Hagel takes great pleasure in rubbing it in. Hell, he even tells VLJ Hawley what the correct earlier effective date should actually be to the day.

Posted in CAVC ruling, Informal Claims | Tagged , , , , , , , , , , , , , , | 1 Comment

ILP–NOD DOES FARMVILLE

Posted on August 5, 2014 by asknod
1534689_10203505860584831_1520420428808990813_o

Just cleared 10′ tall this AM

Corn is interesting. The more sun you give it, the taller it gets. Ditto on the water and fertilizer. However, this year, something is afoot. I vote global warming and I like it. Last year I blamed the good fortune on chemtrails but they haven’t been spraying 3,000 miles to the west of me over the Pacific Ocean this summer. I calculated that based on the prevailing winds and my new chemtrail spray aircraft finder. 

10298207_10203505860904839_5630419688322971368_o10536529_10203505861024842_5990176452000756966_o

Posted in Food for the soul, Independent Living Program | Tagged , , , , , , , , , , , | 3 Comments

FORT FACEBOOK–THE BEST OF JULY 2014

Posted on August 5, 2014 by asknod

10522434_10152639743343854_3893712493469377084_nThe creme de la creme of this month’s offerings. La dernier cri in avant garde, cutting edge social issues of the day. Knowledge lite. All this and more. 

 

 

10416642_10202135256891766_4031125465866804474_n12122_10152571595780816_4190172964885996170_n546994_121253944671966_1429650126_n10313645_10204377362133077_8718953420369282741_n10455349_786213221417384_6942630426311537056_n10300172_752990474739659_8554575406467840929_n1017473_10152208911930396_240825243_n1959795_10201770108994626_1800156404_n10245573_677892605591549_7077418637140270015_n934779_720164524720886_7075536227212837539_n10592929_10152541335765700_6775604625549860538_n10473422_10203302786663000_6306104071416700276_n

 

 

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

Guinness–Coming Home

Posted on August 4, 2014 by asknod

downloadFew commercials move you as this one submitted by members Paul and Leigh.  Someone who feels he has the stoic control of his emotions may still feel the lump and remember the moment when he/she arrived back from being in harm’s way. 

 

Check this one out. http://beerpulse.com/2014/07/guinness-fourth-of-july-inspired-empty-chair-ad-airs-during-world-cups-halftime-video/

This may atone for burning down the White House in 1814.

Posted in Food for the soul, Future Veterans, Gulf War Issues, Inspirational Veterans | Tagged , , , , , , , , , , , , , , , , , , , | Leave a comment

LA TIMES– INTERESTING TAKE ON PTSD

Posted on August 4, 2014 by asknod

images (1)I have been approached many times and asked to “coach” someone on how they can better present themselves at a PTSD C&P exam. I even have several widgets on my site for info on PTSD exams and so forth. It is not to instruct Vets on how to cheat but to give them an idea of what they are getting into. Maple Syrup Frank sent me a link to this article and it struck a silent chord in my memory I thought I might share with all of you.

I know about PTSD. I did two years in a war zone and some of it entailed violence. It took me several years after I returned home to achieve what I call the ‘new, revised normal”. One thing that never left me was a desire to cover my six o’clock. Another was being armed all the time. I wasn’t ‘coached” on this. I’ve never applied for VA benefits in this area. It was merely a byproduct of my environment. It does lessen with time but never goes away. Wild and crazy dreams are the only residuals that afflict me other than Hueys and O-1s going over or loud bangs. Cupcake has been kicked, clobbered and almost pushed out of bed numerous times over the years in an attempt to escape from something I don’t recall in my waking moments.

Which brings us to all of those described in the article who suffered irreparable trauma from breaking their leg on the way to the chow hall at Lackland AFB in Basic Training. I’ve worked with a fellow who was stationed in Bahrain (a noncombatant country) and nowhere near the combat zones of Aftstan and Iraq. He sought to file for bent brain and was striving to milk me for something-anything- he could use to hang his hat on to get VA comp. The problem was he was far more sane than me. I could also hear that plaint in the timber of his voice that implies a less than truthful analysis of his affliction. Face it. Some of you will always aspire to feel you were in danger and will manufacture the requisite emotions to convince yourselves and others. I see it frequently. The mind is an interesting playground of emotions and some can sway your vision of reality to fit your desires.

imagesThis creates a contretemps of sorts between those legitimately afflicted and those wannabes who see the pot of gold at the end of the VA rainbow. Some of you are very well acquainted with the fears of combat. If you’ve ever had 7.62 rounds zip past your ear or a B-40 whoosh into a nearby jeep and go off, you can identify with wanting to know where ‘they’ are and keep your body oriented to the direction of the danger. Conversely, if you are thousands of miles away in Bahrain, it cannot be said that your demise is ‘imminent’ or assured. And then we have the Major Sexual Trauma victims of assault. These folks are the ones most disadvantaged by the process as they often do not seek help for the assault- especially if it’s male on male. Women Vets were equally unlikely to do anything about it in decades past as it only caused more harm and abuse. This post is not meant to address that facet of PTSD so don’t think I am marginalizing any of you. I speak today of real combat-associated PTSD. Since the number of support troops to actual combat troops is 85% to 15%, by rights the number afflicted should be much smaller as it was in Vietnam. Granted, PTSD as an affliction was not devised until 1980, but it has many other names from conflicts past. Shell shock, the Thousand Yard Stare, the uncontrollable shakes from unmitigated fear to name just a few.

images (2)I can remember sitting on a stack of body bags eating lunch one day at Lima Site Betty. We were waiting for an Air America Helio Courier to pick us up and the glad bags were in the shade. It seemed the natural place to sit out of the sun. The Pathet Lao inhabiting the bags were by now having their spiritual meals with the Phee (Laotian for spirits) in the next world and could care less. By rights, according to the DSM- IV  I should be horribly afflicted with guilt for sitting on the dead Tahann (soldiers) but I’m not. Does this mean I’m inured to mental anguish? I’m sure a head shrinker would have a field day with this and try to pigeonhole it into some suppressed emotion due to explode in X number of years. Sorry. No sale. I remember it vividly and it didn’t give me erectile dysfunction for life.  It stunk to high Heavens. We used to carry a little jar of Vick’s Vaporub and put a spot of it under our noses to mask the smell. If you didn’t have that, a small bandana of parachute silk and a dip into  JP-4 or AVGAS would do the trick, too. The mind has a special device that blocks a lot of this out in times of stress in most of us. We take a cue from those around us and whether they are quaking in their boots, too. No one aspires to be the rock of Jello in an emergent situation so many squelch that fear of injury or death and press on.

719_05jjjj-DUSTOFF-_A_Chance_to_SurviveWhat is it that sets some of us apart? Why is my rubber band in my noggin more resilient that that of, say, Bruce Almighty down in Georgia. Could it be the sum of the mental insults combined over time? Bruce did four tours back to back- from 1968 to 1972- a large portion of it in a dustoff chopper as a combat medic. Contrary to popular belief, that big red crosshair with a white background did not give him immunity from ground fire. If anything, it was an improved aimpoint in the smoke and haze of battle. Add in the brainf___K of bullets hitting all around you out in the open in a hot LZ and no way to defend yourself. That is the essence of bent brain. It’s the reality of the very real probability that the Golden BB is going to find you eventually. In time, it turns into a fatalistic approach to life. Why burn both ends of the candle when you can break it in two and light four ends at once? I’ve been there and done that. I don’t need to ask others about it.

Compare that to more recent Vets who ran convoy up the highway from Baghdad to Mosul. The threat of violence was tantamount to actual harm in these instances (IEDs) but it fades in comparison to five minutes of Hell or actually being hit and wounded.  Seeing a fellow airman or soldier get dusted can be a predicate for bent brain but it only mobilized me to become more violent and vindictive-not fearful for my life. Somehow, over time, that emotion subsided and was replaced with sadness- and lastly- closure or something similar that ameliorates the ache.

downloadThus all of you who felt you were in danger, regardless of how far or near your service to the ‘front’ was, can understand that  some of us who served in Southeast Asia look at those of later wars and ask what all the theatrics are about.  The constant worry that bad things might have happened can never be the predicate for a lifetime of bent brain. Everyone who serves in combat brings away a different perspective of the horror. Those who didn’t often try to conjure up an alternate reality of “But what if I had been hurt?  We were 80 klics from the fighting and we always were on DEFCON 2 so we could have been legitimately impacted. The fact that we weren’t does not lessen the fear of imminent bodily harm.” Alternate realities are all well and fine but they are a compendium of nothing more than “might have”, “could have”- or less. To me, a CIB or a CAR are the predicate for opening a discussion about PTSD. A Purple Heart can also be a valid conversation starter on this subject. Merely possessing an “I was there medal” somehow does not evoke the sympathy of those who were doing the shooting.

My answer to the “almost” argument isn’t simple. PTSD is something that makes your eyes get wet merely thinking about an event 40 years ago. It’s a storm inside your mind that never abates-that just subsides for periods of time. With luck, it relinquishes it’s grip eventually and let’s you resume a semblance of your earlier life. To me, PTSD is not a disease but an affliction akin to Tinnitus. You feel it, you live it and you live with it. No one else can see or hear it. But primarily, with PTSD, you had a stressor that was valid. One that jumps up and bites you on the ass at 3 AM-for eternity like a Groundhog Day movie. Try stuffing the intestines back into a friend as you light up a Marlboro Red for him and tell him it’s just a minor flesh wound. Circle a downed aircraft in Indian Country with no other air assets other than a S&W Model 19 and a CAR 15 and try to run off a well-armed cadre of Pathet Lao determined to kill your friends on the ground. That, ladies and gentlemen Vets, is the predicate for a lifelong echo of PTSD in the noggin. Why I was not irreparably impacted will always make me wonder for life. I eat no drugs to modify my persona. I wouldn’t even if they were prescribed. Granted, I am one person who legitimately should be afflicted but am not. Why, then, the plethora of those now claiming far less exposure and far more deleterious effects that preclude employment? Does the new generation of warrior being turned out by the Army have some inherent mental defect that arises about the time they separate? What separates these two generations of Warriors?

After reading the article, I cannot say that I am convinced every Vet applying for PTSD actually suffers it. Admittedly, everyone has a point where the rubber band breaks. And then there is the flip side of the coin-all the Major Mental Disorders (MDDs) such as schizophrenia, bipolar disease, depression, anxiety, et cetera. None of those can be blamed on combat or the diagnosis would be PTSD. An interesting contretemps. But that is the subject for another day.

You can bet VA will only become more selective in the future on this subject. Be prepared.

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VAMC–WHAT A NICE SURPRISE/BRING YOU’RE ALIBIS

Posted on August 3, 2014 by asknod

vabuildingmugThis just in from Fort Fumble, Colorado. VA is actually talking about spanking their employees and even threatening to wash their mouths out with soap. Why, they may even go so far as to put a negative performance review in the personnel file and recommend remedial training by Human Resources facilitators to help them work through their time-challenged scheduling quandary. And sadly, yes… that perennial VA Bonus every year is gone. So long to the annual vacation at Lake Winnipesaukee. 

What everyone may not find entertaining is that someone innocently inserted a requirement to reinstitute the bonuses again poste haste but keep them down at $325 Million dollars instead of their historic high in 2008 at $360 million dollars. If you really dig in and read line by line (and I have not) I am told by reputable sources who have that it solves nothing now. It merely begins anew the circus of years and decades before. Try to find a trail of fired administrators of VISNs. Search for all the heads on a platter who will not be getting the 20 years and the golden parachute. Find those that have benefited by deceiving us into believing they were putting up good numbers based on what they were told by the little people.. Ask them politely to refund the VA bonuses they took. Deduct them every month until repaid if they decline to. You know. Just like VA does to you and me if they accidentally pay us too much and we fail to catch it.  If these higher-ups try to weasel out and quit, file a lien on their bank accounts and freeze the suckers. The savings from that simple step alone will refuel the VA’s treasury with hundreds of millions of dollars.

Now let’s add in the delay for trying to get faster medical care. Imagine what it feels like to hit the 1-800-827-1000 Oracle at Delphi Line at 1000 hrs. EDT and be told (after waiting 45 minutes) that you have to get a letter from the VA Secretary showing you’ve waited over 45 days/ >40 miles away. Do you know how long it takes to do anything at the VA? What part of Fort Fumble did you misunderstand?  Murphy’s 7th Law-You can’t get there from here- is the operative phrase. Of course, Murph’s First Law is immutable-No good deed goes unpunished. In their haste to get to Happy Hour at Harry’s Bar and Grill, they missed the niggling little fact that the VA is inept and unable to steer their personnel into new waters in the near term. The mere idea that a Vet contends he has waited more than 45 days first has to be investigated and verified.  That alone takes thirty days by itself. It is then evaluated by Google map apps at VA to discern if a Vet used back country two-lane roads, whether it could possibly be shorter. Forget the fact that he’ll have to leave three hours earlier if he obeys the 35 mph speed limit and doesn’t run any red lights.

We had this problem with the ACA. It was voted on before it was written in indelible ink. Representative Miller, in his haste to appease everyone and no one (and get out of town for vacation), has opted to stand behind the worst abortion of VA changes to come around in all of the former centuries combined. Nothing is cured. Vets cannot wake up tomorrow after the President signs it and proceed apace with their pacemakers to a Heart Doc near them. It merely sets in motion another Perpetual Government Motion Machine that impedes and defeats logic. Firing stupid, inept leadership will be so minutely defined such that no one will be able to be fired. The phrase “It blew me away. We just heard about the ________ coverup in the news this morning. Right here under our noses all that time and we were unaware of it. Boggles the mind, it does.” will become status quo for a legitimate excuse. We didn’t know. We’re in the same boat you are. We just heard. Yeah, they were our guys but they sure didn’t get these hare-brained ideas from anyone around here. I know it looks bad seeing’s how we got those bonuses but it’s a phenomenal coincidence.

images

Spin to determine blame.

Let’s review this. Fast and Furious? We weren’t in the loop. IRS? We didn’t have any oversight. Benghazi? Our intelligence was faulty. Wait. It was an anti-Islamic Utube video. VA? Wow. They lied to Shinseki. He was clueless. So were we. These folks at VACO aren’t entirely paralyzed from the neck up. They can see which way the Cliff Notes excuse book is going. You can logically assume it was a right wing conspiracy initiated by Bush and Cheney to deprive Vets when VA gets done spinning it. A janitor in Phoenix will be fired for throwing evidence away unwittingly. Several mid-level schedulers around the country will be sacrificed but none will have to return a bonus because they never got one.  VAOIG will continue to visit VAROs and VAMCs coincidentally located in the south near really well-kept-up golf courses. The VA’s HR bigwigs will organize a few Meet and Greets with a token ice sculpture and wine/cheese themes. New York is ideal. They can get lost in the shuffle and go unnoticed.

VA knows very well where each and every one of you is if you are in their system. They can tell via the travel pay computers exactly to the tenth of a mile whether you exceed the 40 mile limit. Remember also, any VA clinic is a broad definition. Having a CBOC near you is sometimes as useless as male nursing pigs in an emergent situation. If you are discovered to have cheated by a tenth of a mile or shaving a few days to make it look like you were over 45 days, well, it’ll cost you. VA will refuse to pay and you get stuck appealing that one for about 5 years if you want to get your money back without interest. We’ve been there and done that one.

BUT WHAT ABOUT THE BVA, JOSÉ?

Where I guess I get the heebie jeebies is to think if all this tomfoolery and purposeful misconstruing of the facts is going on in the VAMCs across our vegetabled plain, what has Mother Superior Hickey done to inspect the framework of the VBA for cockroaches? If she is still in denial and thinks knocking a million claims out the door by August is some kind of Guinness Book record, she needs to take the pulse of the score up at the CAVC. The Office of General Counsel is batting about 35% accuracy and suffers greatly from poor BVA jurisprudence and the dreaded VLJ Hanging Judges. Nevertheless, at each new appearance on the Hill, she regurgitates the same lies and statistics by rote-“86% accuracy of all decisions (with that number constantly going up); with FDCs, the adjudication rates are often less than 189 days and 2015 will be even better.” Things like this are often spoken just before aforementioned party pulls the ejection handle and departs at the end of the month. Thus they can be quoted, strongly suspected of authoring the ruse, but not blamed.

downloadVA is on what many consider the cusp of a new day. Great things are portended again. A bright future dawns with a brave new Captain of Industry at the Helm. We shall see. I predict sixty more years of winter. VA has always been a political dumping ground. Do a congressman a favor and bingo! Your kid with the freshly-minted Bachelors in Haircombing 401 from Mt. Altoona  Jr. Community College has a place to hang his sheepskin for life. Nothing will change. The reins of power may or may not change in 2016, but don’t hope for change at the VA regardless of who prevails.

P.S. Oh, and I forgot this vignette. You’ll love it. Oh, those other years up to 2010? Well, sheesh. Why didn’t you say you wanted them. Now we have to go back to the dungeon beneath 810 Vermont Ave. NW and dredge those up. It’ll be a couple of years because we haven’t gotten around to electronically digitizing them.

Posted in VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , | 6 Comments

CAVC–TRAORE V. GIBSON–GREENBERG THE MERCILESS

Posted on July 31, 2014 by asknod

thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Once again, we delve into the intricacies of just what it takes to invoke the dreaded word “Reverse”- the ultimate bitchslap to a Veterans Law Judge (VLJ).  Equally embarrassing  is the fact that the Office of General Counsel (OGC 027) has been hoodwinked into going along with this. I prefer ‘inveigled’ as it implies the RO examiners, the RO RVSRs, and all the industrious little elves  who fashion decisions out of whole cloth at the ROs were studious and dutiful in their investigation/decision of our claims. Additionally, all the staff attorney/future Acting VLJs and the actual judge himself who signed off on this travesty of justice have to have been equally hornswoggled or complicit in a ‘prearranged’ denial with a rat’s ass chance of ever winning.

Traore reversal

I’m sorry but this one goes over the top for stupidity on VA’s ‘independent medical examination’ or IME meter. The purported rationale for the remand to readjudicate this with an eye towards a genuine, independent assessment of Mr. Issa J. Traore is that the BVA VLJ failed to get ‘substantial compliance’ with the remand order and thus committed a Colvin violation or what we in DickandJanespeak call “busted for impersonating a  medical doctor”-or any kind of doctor for that matter. That includes, in no particular order, psychiatrists/psychologists, chiropractic doctors, naturopathic doctors (Wiccans excluded), medical doctors and the VA dentists. The idea is to look professional when you arrive with the hanging rope. Having a good denial nexus that covers all the bases and explains it in plain English is paramount. Having the proper credentials to opine with is even more so.

At the bottom of this decision, fortuitously pointed out to us by Judge Greenberg and his merry band of sleuths, is footnote² at the bottom of page three. The footnote annotates the phrase:

“The appellant separately underwent a  VA examination for his psychiatric issues in August 2012.”²

Prefacing this phrase above is the predicate for the term ‘separately’ at the bottom of page 2. Read this one carefully.

The appellant was provided an orthopedic examination in August 2012 wherein the examiner opined that the appellant’s shoulder condition did not impact his ability to work, noting “definite limitation of movement”, but found that the appellant could do sedentary work, noting that he spends much of his time at a computer (Record @ page 90). The examiner also opined that the appellant’s hypertension and foot conditions did not affect his employment. (Record @ page 80, 97).

So, various VA examiners, specialists all, replete in the knowledge of their respective fields of expertise, all opined over a very short period of time in August 2012 that Issa J. was not Totally Disabled due to Individual Unemployment (TDIU) but rather upper body-challenged for doing lifting over his head. Concurrently, another specialist, a psychiatrist probably, has inveighed and postulated that Issa is good to go on the Major Depressive Disorder thing and should be capable of holding down one of those “Earn $12,000.00 a day AT HOME in your Spare Time, Dude!” jobs. The Heart Doctor put him on the treadmill for the 5-minute/50,000 foot stress test – and he passed.  And lastly, the Podiatrist or orthopedist did an in-depth analysis of foot and ankle issues and gave him a clean Bill of Health for his new computer vocation. Or did they?

Minimal interaction with others and a steady income stream. A marriage made in Heaven. No heavy lifting, either. TDIU denied. Back to work, Issa.

Padewan you are, yessssssssss. Back up and reattach the boat to the dock, Gilligan.  Our erstwhile friend footnote ² has this to say:

²Both the physical and the psychiatric evaluation are signed by Monica C. Rupp, RN BSN (Record @ page 72, 97). The examinations therefore appear to have been completed by the same examiner.

Ruh-oh, Rorge. Can this mean that our multi-talented VA examiner Monica has even more initials after her name and is merely too polite and well brought up to brag by divulging them all? Well, not exactly. The BSN is explained here  Basically, it’s a RN who went for a Bachelor’s in Nursing. Boy, howdy. They must teach a shit ton of subjects there at the BSN community college. The amazing thing is that Nurse Rupp RN, BSN, can upstage a true medical doctor and her opinion is given added weight if she has had the pleasure of perusing Mr. Traore’s c-file. Just like that. Such are the prerogatives of the exalted VA Examiner-Poobah. This happens about 800 times a day across the fruited plain.

After reading extensively on why Nurse Rupp has the particular combination of letters after her moniker, the answer is simple. Monica did this on the fly. Monica was on a low budget. She did the Licensed Practical Nurse (LPN) to RN bridge program on line and then jumped into work and eventually took the BSN on line. Her actual hands-on experience in a medical environment is virtually nil but her value to the VA is immeasurable. Chances are the VA paid for her BSN or a big chunk of it. Thirty pieces of silver? Priceless. For all else there’s a VA bonus.

JudgeGreenberg-72dpiJudge Greenberg, the FNG at the CAVC,  is far too polite and well-schooled to call the VA out on this so he subtly footnotes it, and relegates it to the bottom just to let VA know he spotted it. Sharp-eyed law dogs should zero in on this like a gaggle of setters on point. The reason is simple. Our good friend the much-vaunted Presumption Of Regularity (POR) in all things medical is at stake. Every C&P, every doctor’s finding, every VA examiner’s reasoned explanation is a finding of fact. This one footnote implies VA has used gross chicanery and misfeasance to accomplish what they were unable to do via legal, independent venues.

Once you overturn the Presumption, there can be no more assumptions, presumptions or consumption of VA propriety. The whole legal concept that VA is pure as the driven snow abruptly melts and reveals a dirty parking lot full of potholes. We see this at the Phoenix VAMC and about 190 other VAMCs/CBOCs etc.  Much like the credibility presumption we cling to in a claim, once it is proven you are a card-carrying bigot from VA who cheated on a  C&P exam and screwed over the poor Vet, every action-indeed, every facet of the decisional process -is not just suspect, but incredible. Incredible like RVSR aliens with big eyes and gray skin. Incredible like a gigantic conspiracy by the worm people to take over the land east of Nod. As incredible as a systemic VA conspiracy to cook the books at VA medical facilities nationwide in pursuit of lucrative VA bonuses for ‘fixing the appointments backlog’.

VA avoids this like the plague. Nobody wants to be revealed as being devoid of credibility. Either you are an honest, pro-Vet, stand up agency or… or what? You’re a den of liars and thieves?  Mostly, nobody at VA wants to disturb, cast aspersions on or negate the POR. It is Sacred Writ. ‘Tis far better a rater who would grant the claim on remand now to avoid dismemberment or a rending asunder of the sacred holding. I’m sure that’s part of the password and secret handshake they use at VA. Although I’m not allowed to reveal my sources, I will confirm the Rater guy I got this from in Seattle has really big, bugged out eyes but it was dark and he was wearing a trenchcoat and what appeared to be gray slacks. And that’s all I’m gonna say about that.

The smart money in Reno is  10-1 on Issa driving a new 2016 Lexus and the VA’s POR remaining intact like a virgin’s hymen. The VLJ will be instructed to get the vapors and suddenly realize he is not House, MD. Issa will get his full ride and the P&T from the AMC to keep it away from those boorish RO chuckleheads. It’ll also take about another year or two for the attorney to get his EAJA funds just to be mean and spiteful.

Robert V. ChisholmVets should note the rainmaker on this was Robert V. Chisholm. He’s in the Yellow pages and he didn’t just arrive on the SS Mayflower last night. He’s very well respected in the Veterans Community.

 

 

Posted in CAVC/COVA Decision, Presumption of Regularity | Tagged , , , , , , , , , , , | 1 Comment