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

ILP–SUMMER PRODUCE

Posted on July 29, 2014 by asknod
Veteran John Perrat helps weed the corn

Veteran John Perrat helps weed the corn

July has been berry berry good to us. Raspberries are over and the blackberries have begun. The zucchini is running amok and the string beans are all but done. The corn is over seven feet high. We have Paul and Leigh Burch to thank for all the largesse. Silver Queen seems to like western Washington just fine. 

Here’s a compendium of July.

2014-07-24 18.20.33

Black Beauty zucchini

2014-07-27 16.32.19

Liberty apples

2014-07-24 18.00.52

beans and Purple Kohlrabi

First tomato came in yesterday morning-an Alaska Fancy

First tomato came in yesterday morning-an Alaska Fancy

Gewurztraminer grapes

Gewurztraminer grapes

incredible peach results this year

incredible peach results this year

 

Posted in Food for the soul, Independent Living Program | Tagged , , , , , , , , , , , , , , , , | 2 Comments

HCV–TODAY IS BROUGHT TO YOU BY THE NUMBER 12

Posted on July 28, 2014 by asknod

imagesMy Sovaldi minder contacted me this afternoon and told me I was getting:

1) More Anemic

2) My creatinine levels were dropping precipitously so my kidneys are not happy campers.

3) My Anti-nuclear Antibodies test (ANA) indicated my autoimmune Hepatitis component was climbing.

4) My IgG globulin level was going up indicating the White blood cells were massacring a lot of something nasty.

I had to disinterestedly ask “You didn’t happen to get the viral load test back yet, did you?” She indicated no and then corrected herself. “Oh. Here it is. It just came back a little bit ago. It says twelve copies which is virtually disease-free. By a month from now it will probably be zero. The doctor also says to reduce your Ribavirin amount again by one tablet a day and eat two in the morning and just one in the evening. So that’s a total of three a day. Do you want me to mail out that dosage note to you or can you remember it, sir?”

Twelve copies. Down from 857,000 two months ago. An amazing drug. Expensive at $168,000.00 dollars? Yes. The cost of long-term medical and a transplant? $552,000.00 conservatively. Pay now or pay later. Gez. I wonder how the VA OGC is going to take this? Priceless.

Posted in Sofosbuvir | Tagged , , , , , , , , , , , , , , , , , , , , , , | 4 Comments

Sen. Sanders and Rep. Miller compromise on Veterans’ bill

Posted on July 28, 2014 by Laura

downloadAfter six weeks of negotiation, and four days before recess,  it appears as if we will be soon  be seeing details of the new veterans’ bill.  This provision as reported in the Washington Post,  gets a thumbs up from me:

According to a draft summary of the measure provided by House aides, Congress would give eligible military veterans a “Veterans Choice Card” and allow them to seek health care outside the VA medical system from Medicare-eligible providers, other federally qualified health centers or facilities operated by the Defense Department or federal Indian Health Service centers….

Veterans eligible to seek care outside the system would need to be enrolled by Aug. 1, or enroll for VA care within five years of ending their military service in Afghanistan and Iraq, according to the draft agreement. A veteran could leave the VA system if they’re unable to receive an appointment within 14 days — the current VA wait-time goal, or if they live more than 40 miles from a VA facility.

Kiedove update (Tuesday noon):  To read Sander’s website updates from Monday night scroll down for the bill summary and bill.  This summary says a 30-day wait period for non-VA care which is different from what the WP reported earlier.  The conference committee report gives more information.  This gives more information about the 40-mile rule which has some exceptions.   C-span has video. 

We’ll have to stayed tuned to see what was decided. Check it out- Update.

Editor’s note. Be prepared to see the VA definition of a mile revamped to measure 10,560 feet from it’s current 5,280 feet. Either that or the new metric will measure it directly as the crow flies. In fact, if you had an F-15, you’d be there by now.h2-name-sign-n'bound-large

 

Posted in Guest authors, VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , | 12 Comments

VA: important lab tests for kidney function information

Posted on July 26, 2014 by Laura

The VA tests veterans with, or without HCV, for creatinine levels: 

grf

Three GFRs, less than 60, in a three month period, may indicate kidney disease and further testing will be needed.

The level of creatinine in your body is a marker of kidney function. Creatinine comes from the breakdown of creatine, a muscle protein. Properly functioning kidneys remove creatinine from the blood….If your creatinine level is too high, you may not be able to receive hepatitis C treatments.

The VA also tests the Glomerular filtration rate which the National Kidney Foundation say is an accurate test:

Glomerular filtration rate (GFR) is the best overall index of kidney function. Normal GFR varies according to age, sex, and body size, and declines with age. The National Kidney Foundation recommends using the CKD-EPI Creatinine Equation (2009) to estimate GFR.

There is a lot of good information on the NKF website including calculators, check lists, and risk assessments and more.  I’ve been unable to download their pdfs or even copy and paste the URLs, but there is a link to read information on this page, FAQ, Click here. 

The VA employs many nephrologists which is reassuring to me tonight because I checked my spouse’s most recent lab results that were just posted on myhealthevet;  he may actually have a kidney problem.  He has an appointment with his primary next week so he’ll be asking for an interpretation of the results.  Will report back if he receives any helpful guidance.  As always, your experiences/knowledge with any conditions you chose to share here will be read with appreciation.

 

 

 

Posted in Guest authors, HCV Health, Sofosbuvir, Uncategorized | Tagged , , , , , , , , , , , , , , , , | 10 Comments

FEAR AND LOATHING IN LAS VAROS

Posted on July 24, 2014 by asknod

POGORemember when I-never mind. I just want you to know I was wrong. I projected all fifty states would eventually be caught up in this deceptive business of screwing us Vets over. The POGO votes are not all counted yet so maybe the rest (15) will turn green too. I have no doubt. Those VA computer viruses are lethal.

Posted in VAMC Scheduling Coverup | Tagged , , , , , , , , , , , , , , , | 2 Comments

HCV–WHEN DOES SVR ACTUALLY EQUAL “CURED”?

Posted on July 24, 2014 by asknod

downloadToday “almost” viral-free Randy from the mile-high stoner city of Denver sends us this important “Well, not exactly.” article that we are coming to associate with the VA medical community. Hepatologists from our favorite AO laboratory at the National Institutes of Health (NIH) are beginning to retreat from earlier ebullient claims and throw out decoy flares to distract us from the fact that SVR-even SVR after six months or a year- does not mean “true” SVR. It merely means the HCV is lying dormant again as it usually does-hiding in this or that organ. Or, it is a reinfection. Or….”‘It’s Baaaaaaaack!” and no one knows why but make sure you notify your local Health Department so they can publish your name (again) in the ‘recently diagnosed with STDs’ BOLO newspaper release. 

Randy and I discussed this yesterday afternoon. He’s using the VA pharmacy and they disburse their Sovaldi in 14-pill, two-week increments so you won’t go out and resell it on the black market. Same for the Ribavirin. No, fellow Veterans. We won’t descend into an orgy of laughter and guffaws over this. Their logic is already well into the Twilight Zone. I merely mention this because they (VA) seem to also have trouble counting. Again, hold the Captain Obvious award. I’m not referring to scheduling practices in Phoenix. I’m referring to much smaller numbers emanating from their laboratory sleuthing.

sesame-street1Randy called to announce his recent reduction in perceived bugs per-square-inch of blood. Seems the stoned folks down at the lab need the services of the Sesame Street Count as they are unable to venture past the number of fingers and toes born with. Their initial number two humans and one extra hand (forty five) but after a quicky do-over, they discovered it was actually two guys  and seven fingers (twenty seven). 45-27= 18. 18 is not a rounding error. 18 is not close as in horseshoes, M-26s and Claymores. In science land, 18 is a gaping chasm. Apparently at the VA, it’s no big deal. Au contraire, ma cher. To us hoping for the Holy Grail of SVR, being off by 18 bugs is the difference of getting stung again inside a supposedly screened-in environment after a heapin’ helpin’ of OFF bug repellent.

Randy and I, being HCV rocket scientists with big long strings of impressive-looking capitalized letters after our names, opined that it may be impossible to scare all them critters out in such short order. Have you ever gone grouse hunting and flushed a covey out off the edge of a forest? There’s always that one bird who hesitates and the dogs almost run over him after you’ve flushed them and shot. Only then does he make his presence known.  And much like the reemergence of HCV, it scares the living shit out of you. We theorized that these rogue grouse viral cells can hide out in your organs. Hell, we know they love our livers. They’re like little PACMAN critters running around munching it up. Endemic evidence over time has revealed their presence in our brains and even the thyroid gland. Considering the x rays of my kidneys look like the Shenandoah Caves’ stalactites, I’d say they hang around there on spring break as well.

When the Practitioners of Medicine read the blood results from the lab, they are looking at the number floating in free liquid (your blood). If you’re running around with a Franchi SPAS  12 gauge and a 20-round drum magazine full of Sovaldi buckshot hosing these viruses, it stands to reason a few could hole up in the recesses of the body to avoid the slaughter. They’re smart enough to mutate ever so slightly to disguise themselves from your white blood cells so it is plausible. After 44 years with HBV, then HCV and now AIH, nothing would surprise me. One thing is certain. It’s freaking out the scientists enough that they’re actually thinking about trying to get to the bottom of it. As usual, the immediate panacea is: Take protein pill. Put helmet on; use protection when having sex, do not share toothbrushes/razors/coke straws and avoid intravenous drug use.  Yo, Gendarmes. Round up the usual suspects tout de suite.

I feel like I’m in the right place at the right time for once in my life. Mark went down from one million to 15 BSI (bugs per square inch) after four weeks and then bingo at six. Randy went from 2 million copies to 27, assuming we trust that latest VA estimate for the last four weeks. Next week I find out my initial number as well. I was starting from a lower number of 448,000 BSI. My autoimmune disorder manufactures a lot of white blood cells (WBC) which ‘hunt’ for viruses. Unfortunately, their aim is less than perfect and they incur collateral damage when they miss and hit the liver.  I’m glad I’m using a civilian lab. They rarely call back and say the bugcounter doomoflotchie wasn’t calibrated correctly.

Medical science re HCV is in such flux now that the Grand Poohbahs of the Art cannot even present a unified front on how to attack it. I hear several schools of thought  coming from different sources that queers me to the idea any of them even knows what they are about. One school of thought from the pharmacy who supplies me is “Do they still have you on the Ribavirin?” Remember, this is the beginning of the second month-not three or four later. If the pill salesman is amazed you’re still on it, it implies some of us are not. It also means they’re partially amazed you made it to the phone and answered it coherently before it went onto the answering machine.

HouseNext, I am becoming anemic. Not just a little anemic but a lot. The monogram on Ribavirin says “May cause anemia”. My Sovaldi minder (Mariah) at the doctor’s office called last Friday and said “Hmmmmm. Seems your getting a leettle anemic. I wonder what’s causing that? Let’s try something here. I want you to take one less Ribavirin a day henceforth. That would be four tablets instead of five a day. Can you remember that or should I send you a letter?” Wowser. Where did you park the ambulance, Dr. House?

Add in that they are perfectly aware, or should I couch it in VA terms and say “They are in constructive possession”, of the knowledge I get a phlebotomy of 800 ml (one pint) every month which, the last time I checked, is the speediest way short of slitting your wrists to attain perfect anemia. No one has suggested I refrain so I didn’t. I almost can’t wait to see the horrified looks next week over the realization that my Red Blood Cells (RBC) are going to be in the subbasement. Screw it. I want the BSI in the cellar. We have the technology to increase the RBC. That’s the very least of my worries right now. Besides, it gives me a bodacious buzz when I tie my shoelaces and stand up. It’s like a 30-second LSD trip where everything takes on that paisley look with a pink tint. Relax. It’s an anemia thing. You wouldn’t understand.

Today’s blog is brought to you by the numbers 2 and 7. In VAspeak, that’s all your fingers and toes, your four appendages and your ears and nose. Do not employ the bilateral factor when adding or this won’t work. Do not round up or down, either.

250_2016474635305e10af21e9CountCountsFlowers           +

Posted in HCV Health, HCV Risks (documented), VA statistics | Tagged , , , , , , , , , , , , , , , , , , | 5 Comments

NEW VASEC

Posted on July 23, 2014 by asknod

US_Navy_050901-N-0780F-003_The_dock_landing_ship_USS_Ashland_(LSD_48)_and_embarked_elements_of_26th_Marine_Expeditionary_Unit_(MEU),_arrive_in_Souda_HarborThis morning I heard Ronald McDonald had been formally crowned the new VA Secretary. This is an interesting development and one that has direct, if not dire, implications for Vetkind. How he approaches some of the old, intractable warlords in upper management and how hard a hand of poker he plays will tell us all we need to know soon. There’s no time to learn the ropes and start sanding off the peeling varnish of the USS Vermont Ave. (VBA-810). His new motto should be ” We jump from 8,000 at dawn.” Of course, an equally apt one would be “Boldly going somewhere finally “.

Make no mistake about it. Reforms are going to have to come hard and fast. New revelations about retribution to whistleblowers at Palo Alto is all over the news. VA is making no pretense or even trying to disguise their actions. It’s like the Red Queen running amok at the afternoon garden tea party screaming “Off with their heads!” In fact, the sugar baby responsible for trying to hang the VA whistleblowers in the pharmacy there was transferred to Phoenix as Sharon Helman’s replacement.  TA-DA! Yeppers, Elizabeth (Lisa) Joyce Freeman, who served as director of the Palo Alto VA Health Care System until she left this month to become interim director of the VA’s Southwest Health Care Network in Arizona was the Red Queen. imagesThey just really don’t get it. Witness Lucy Filipov having to Chieu Hoi last week up in Philadelphia and Diana Reubens taking a demotion to replace her. You eventually realize this musical chairs game is nothing more than a desperate rearrangement of the same old furniture on the aft deck of the Titanic.

This one has to change. The idea of creating a new file on the VA claims  ”desktop” (read in basket), filling it full of partially completed claims and then walking away from them without finishing them does not reduce the backlog. You can take them off the official “roles” of claims awaiting action, but you have not done anymore than make another mess that will eventually have to be cleaned up. Whether our new VA Clown will even scratch the surface of all this or go the protein pill/ helmet route is of burning interest. Does he have the cojones? Another Hispanican standoff is not going to pass muster with Uncle Jeff and the crew in HVAC.

downloadHow it plays out with the Col. Sanders show up in the Senate is still fuzzy in my magic eight ball. If they can’t even agree on how to fix our medical care without a fire hose of billions and billions, why bother? Perhaps integrating us into the new ACA would work. Not. The private medical system is now slowing down (as predicted) to dial-up internet speed with the massive influx of new Medicaid enrollees. Adding Vets in equally mass quantities will produce more and more of the same tortuous gridlock.

The Senate cares not if they overburden the budget. What the hey? Here, take another Elevendybillion for VHA. Just make sure you build some of them new hospitals in my state. Hear? The House, desperate to triage our public debt, is demanding offsets in all the public welfare programs to balance this added expense. Guess who gets the short straw? Legislative impasse once again paralyzes our system and nothing happens.

Coming soon to a VAMC or VARO near you soon.

Coming soon to a VAMC or VARO near you.

The new Bozo could have all the best intentions in the world but if Congress does nothing, the McDonaldmeister and his new, improved management team is going to be pissing into the wind to fix anything. Based on all organizations ever a part of government, you can expect a waste/fraud/redundancy factor of 37%. If Old Ronnie could squeeze this out of existing union/management and hire more Native Americans instead of Chiefs, he might make headway in spite of a recalcitrant, balky Congress. It would certainly be a good head start to begin paying  entry-level bedpan changers $15 an hour rather than $45.  Throw in some of that much-touted VA medical care, too. That ought to increase the “shareholder” mentality of VA employees.

As a postscript, it’s quite telling when the Big Six VSOs want to keep the same old VAMC model and touch up the paint. Of course, them fellers don’t have to use it. They have the new ACA or their own gold-plated plans.

Posted in VAMC Scheduling Coverup | Tagged , , , , , , , , , , | 2 Comments

FORT FACEPLACE–THE NEVERENDING BATTLE

Posted on July 22, 2014 by asknod

282863_10151187753006314_1575312628_nOnce again, in an attempt at weak weekly humor, we venture afield in the vast wasteland of that social interface network where we learn who did what when and with which new profile picture. Somewhere in between, in order to grab our attention, a keeper pops up that bears sharing with a much wider audience of appreciative Veteran. I think I speak for many of us that more humor is better than less. The VA is like wet firewood on a campfire- smokey and obscuring what’s afoot. Humor, like sunshine, is good for the soul. At Camp HepC, every day is a rotten day. This makes it ever-so-slightly more palatable.

10407278_10152507591555700_7862471284210020071_n

1238253_614944205225013_1083895503_n10363897_10152509609910700_5430290904743555952_n10350615_773257156045675_5022980711465562848_n1012889_10152290325914589_1726188225_n10458936_10152515132840700_7076054023197876890_n

 

Posted in FACE HUMOR | Tagged , , , , , , , , , , , , | 1 Comment

CAVC–JEFFREY V GIBSON-SHOW ME THE LEAD TEST

Posted on July 21, 2014 by asknod

thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9You’ve probably noticed by now that a decision with the word “reversed” in the ruling verbiage is a magnet to my senses. Glen R. Bergmann bags a good one here. The BVA and the RO were just not going to do a simple lead test on Buddy here. Even after a remand to do so, they reneged and started looking at the wallpaper and the clock when it came back without one.  The OGC then stood behind this indefensible bulljive instead of quietly trying to email Glen to reach an amicable JMR where everything was finally done according to Hoyle. This is a classic example of VA’s out-of-control VBA on parade. In a nonadversarial environment, an olive branch can often go a long way and preserve scarce judicial resources for others in line. When Gunn testosterone and Eskinazi estrogen mix with Veterans claims, you can guarantee some interesting, wasted judicial escapades and a lot of time spent hindering the process rather than helping it.

openingtable1152Just imagine a Perry Mason scenario where Hamilton Burger, with Lt. Tragg in tow, dropped by Perry’s office and they all went out for a two-martini lunch. Burger could agree to drop the murder charges to involuntary manslaughter and they could reach a modus vivendi to a sentence that was equitable and just. Perry would agree and even pick up the lunch tab because the client was paying for it anyway.  In that same vein, could you imagine Laura Eskinazi or one of her munchkins calling up Glen and Co. and proposing a top-drawer lead test to get to the bottom of it? Mr. Jeffrey was in the Navy. Ships had lead paint in copious quantities back then inside and out. If it still showed up in the blood, what the hey? He wins. No skin off Laura’s butt. It’s America’s money and if Buddy has gray blood, then it probably happened in the Navy. Everyone wins and another Vet gets his claim heard sooner rather than later. Yes, Virginia. In a more perfect world, perhaps.

Instead, VA decided to ignore his and his counsel Mr. Bergmann’s impeccable logic, fight tooth and nail over whether it was apropos to have one ( a blood test) and then try to drag out an old 2001 knee x ray in lieu of it and say “Nope. Don’t say that the technician identified any lead streaking in there”.

Jeffrey v. Gibson reversal

This is classic VA “I did it my Way” logic. Rather than comply, they sail the boat around the world backwards to avoid the Panama Canal transit fee. Ignored is the theory that the 2001 technician was looking for evidence of lead poisoning. He wasn’t. He was looking for a knee injury. Duh? You could have a tumor the size of Rhode Island and the VA technician is going to opine on the meniscus-not the cancer. VA’s attempt to repurpose the 2001 knee x ray as a valuable negative diagnostic tool to rate a disease runs up against the introspective capabilities of Judge Greenberg. Had Greg Block assigned this to Kasold, I wouldn’t be writing this. Jeffrey might or might not have been in transit to the Fed. Circus in hopes of a more nuanced reading of justice had that happened.

vlcsnap-492640b

VA Texas-style Necktie party

The reversal of the finding that the BVA Board “substantially” complied with the remand order is the bitchslap. Greenberg has, as does any judge, the right to summons the proper amount of umbrage to take with a VA adjudication failure. Hence the more egregious the omission of basic justice, the stiffer the rebuke. Considering they have several options that can preserve a Veteran’s right to another day in court, the tenor of the remand often expresses just how fed up Judge X is with VA’s Texas Necktie Party held in your honor.

Judge Greenberg is a sassy old fart. He retired as an O-7 and came up through the leagle beagle ranks. I doubt anyone expected him to be as pro-Vet as Bartley but he is a piece of work. Reversing the finding of substantial compliance informs the Veterans Law Judge (VLJ) below that he got his law degree whistle out of a Crackerjack Box.  Reversals bite like a cat-o-nine tails. It brings to the fore the question of just how able VLJ John J. Crowley actually is if he cannot master the concept of this basic judicial tenet in thirty three pages of BVAspeak.

Obviously, the real bitchslap is the one where it becomes patently obvious that this whole thing is part and parcel of the much broader BVA denial system. When a microcosm of Vets (5,000) who appeal and come to the CAVC annually out of the 50 thousand who appeal and lose, keep coming away with a static 65% remand, vacate or reversal of their adjudications, it speaks volumes about the quality of the decisions below. As the number of claims appealed continues to rise, the percentage stubbornly remains at 65%. Why is that?

VA’s Under Secretary for Apologies, Allison Hickey, assures us that the new VBMS, due to go online any decade now, is so perfect that it regularly clocks in at 89% accuracy and does it in just months. Months, of course, can be defined in Jupiter or Saturn months legally at VA without question. 89% can be defined as all the requests for burial flags being substantially correct and timely dispersed to the intended recipients.

Considering that Congress’ temper is getting shorter and shorter with VA’s intransigence, it follows that there will be some spillover into the judicial arena. Coming up to 625 Wagonburner Lane NW again and again with the same defective interpretation of what constitutes “substantive”, “marginal”or outright gerrymandering of the meaning of “lead test”  is guaranteed to get Judge Greenberg’s goatee.  His scathing dissent in the en banc Pacheco decision was all the ammo Paul Schoenhard needed to get a remand from the Fed. Circus. It’s like Greenberg ( and Bartley, too) researched Westlaw and squeezed all the juice out for him. Jeffrey is no different. It’s poor BVA law as usual with all the warts and missing parts in technicolor and 3D.

070206-F-4335C-004Mr. Bergmann gets to notch his six shooter,. VLJ Crowley will take a remedial course in the Presumption of Regularity as it applies to VA examiners.  Mr Gibson could give a flying donut because he’s going to be down the road in short order. Former 0-7 Hickey is similarly situated. I predict she’ll soon be pulling the curtain handle over her head and punching out. Maybe she can get her old job back at Accenture. Or become the director of cheerleaders back at her alma mater. Woe betide the cadets.

 

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