BVA/VBA BACKLOG–THE NEVERENDING PARADE OF EXCUSES

Posted on September 24, 2023 by asknod

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

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

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

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

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

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

The ‘Do this to your phone by Sunday’ warning

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

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

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

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

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

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

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

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

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

THE BVA/VBA DEBACLE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

Posted on September 10, 2023 by asknod

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

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

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

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

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

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

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

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

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

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

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

Redact RD 2002 8.29.23

Redact code sheet 8.29.23

 

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

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

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

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

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

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

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

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

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

BVA–WHO YOU GONNA CALL? –JUDGE BUSTERS!

Posted on September 9, 2023 by asknod

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

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

Vet seminar

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

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

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

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

Redact Recusal Motion

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

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

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

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

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

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

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

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

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

Redact LZ Cork BVA Denial

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

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

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

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

EXPOSED VET RADIO SHOW–WHAT IS EQUIPOISE AND HOW DO I GET SOME

Posted on August 29, 2023 by asknod

It was overcast this morning so I couldn’t see John and Ray madly flashing the Bat Signal over my house. No harm. No foul. Romeo Tango. I’m on it. I’m asked to tackle an old subject which many do not realize is the essence of VA law which illustrates one of the oldest judicial canons on the books. I speak of course of Gilbert v. Derwinski and what it began early on back at the 1989 inception of the Court of Veterans Appeals- now the CAVC. The fact is, I’ll probably line out some of the other presumptions only we enjoy as Veterans as well.

11B20 Eddie Dunn

On a scale of 10, today is an 8.  I snagged another R 2 for a deceased Eleven Bravo this morning. I got his father-in-law Swift Boat Dan R1 back in 2019 a hop, skip and a jump before he (FIL) went belly up. At the funeral, I was introduced to Eddie. In a first for me, I got him R1 right out of the box at the Little Rock RO without having to go up to the BVA.

Mrs. Dunn

His better half began to see the writing on the wall and called me last fall. I promptly filed him for the R2 then. He went into hospice and augered in March 5. We went to his funeral Friday the eleventh. By golly, they even had a real bugler there. Shut the Front door. A for-real hornblower. Who’d a thunk it?? Not me. It sure beat that corny, scratchy recording they usually crank up. This will make a nice addition to any paltry burial allowance and the free flag. It’s only $1328.64/month more than R1 but here it added up to six months. My sensei Bob Walsh always admonished me- “Leave nothing on the table for the scoundrels. They never do for you.”  Here’s a short video.

In the same vein today, I got my client Bien Hoa Harry a 90% back to 2002 under §3.816(c)(1). He’s on his last legs and this was important for him to see completed before passing. I won the earlier 2002 date last year but they choked and puked in the face of overwhelming evidence he was nigh on to charcoal briquets back then. The outcome was predictable. ‘Ok, gomer. Here’s your 30% minimum and noooo more. Now get lost.’ I had to go back to the BVA twice to  convince them I wasn’t going away. I “reshoved” the 1999 to 2008 evidence back in their faces three times until they simply couldn’t ignore it anymore. He can die happy now that I snagged that last $83,876 for his wife to tide her over when the gravy train ends and DIC sets in. That’s my idea of how a VA poker game should conclude- with the pot in front of my client.

Gosh, I wonder if Bien Hoa Harry knows Senator Dick “Bien Hoa Blumenthal” from Connecticut? Ooops. Hush my mouth. My Tourette’s is showing.

And if that isn’t enough, I’ve been invited back to the Winchester, Tennessee Veterans’  hoedown in November. The County VSOs are mystified as to why no one at VA will brief them in on SMC. I was asked to do the honors. I’ve never had the pleasure of meeting some of these great gentlemen in person. James Cripps, John Stacy, Ray Cobb and I will break bread for the first time in our lives after over a decade or more of friendship. We epitomize the ‘Win or Die’ mantra. We’re like the Energizer Bunny- we take a lickin’ and keep on tickin’.

Cookin’ Jiffy Pop on the Loach coach.

Thursday’s radio show will consist of a heapin’ helpin’ on the subject of the benefit of the doubt. We hear that phrase a lot but what does it really mean other than “Missed it by thaaaaaaat much, 99.”? I’ll clue you in.

The show begins at 1900 Eastern and 1600 Western. We do hope you’ll tune in to some wonderful Veterans style humor and discussion about some tips and tricks on how to make VA’s life more interesting. If you wish to contribute or ask a question, feel free to push the number ‘one’ and activate your microphone.

The computer link is:

https://www.blogtalkradio.com/jbasser/12263522/connect/79ee281e3820a31b3e82cfef7deb80b6cbcd4118

Or, should you desire to get an obnoxious crick in your arm, you can call the below number and keep your arm bent for a whole hour while holding your communicator up to your ear.

(515) 605-9764

Posted in Exposed Veteran Radio Show, Humor, Milestones, Special Monthly Compensation, VA Agents | Tagged , , , , , , , , , , , | 2 Comments

BVA- A LIPWHIPPING IN DC

Posted on August 20, 2023 by asknod

Quo vadis nonadversarial/Veteran friendly? Holy poop scoopers, Batman. In all my years litigating with VA, I had yet to meet an overtly hostile Veterans Law Judge (VLJ). How, then, to deal with a markedly overt VLJ who minced no words when she voraciously attacked me before we even had a chance to sit down and introduce ourselves? In this line of work, the order of business has always been polite, cultured discourse. Opprobrium is simply not part of the lingua franca in a hearing… until now. Read on.

 I like face-to-face hearings. If a picture is worth a thousands words, then an in-person hearing is tantamount to a thousand pictures in my world. A video camera can never capture the earnest look in one’s expressions regarding their claim/appeal. Your face is a window into your soul. Veterans Law Judges generally can discern a fake demeanor.

I’ve done a shit ton of hearings ranging from the old-fashioned DRO hearings in the Legacy era all the way through the newer “informal” verbal piss ass sparring over the telephone at a Higher level of review (HLR). Nothing prepared me for what I walked into July 12th. Nothing. It plumb rolled my socks down.

VLJ Laura Cryan  began her running diatribe, as I mentioned, before I even had time to sit down, unpack and get my brief or notes out. If you read the 76-page hearing transcript below, you will see the discourse between us was filled with interruptions throughout the hearing. I could no more get a word in edgewise than a dead man. Every time I began a sentence, she’d cut me off at the knees. I finally decided to just kept talking right over the top of her after half an hour of this tomfoolery. Shoo doggies. Once she set the tone to be rude, she should have expected I was going to follow suit. Granting her the honorific of ‘Your Honor’ flew out the window about 2 minutes after being sworn in..

REDACT BVA hg,. Txscript

In the world of BVA hearings, one of the prime purposes is collecting information from the Veteran in a civilized manner. That would generally require listening. Personal attacks are verboten-or so I thought. How, then, to do so when every answer is followed with a biased, prejudgmental rejoinder or a subjective conclusion as to case or controversy? Every attempt I made to explain the history of the Independent Living Program and my ILP grant of the greenhouse was met with “You don’t look disabled to me, bubba. Let me see if I have this right. You got on an airplane in Seattle and flew here for this hearing? You walked in here without so much as a wheelchair? You are currently employed as a VA agent? Why on earth should I grant a larger greenhouse? Personally, I don’t think you deserve one at all. In fact, I have the power to rescind the award because you no longer qualify.”

I ran into this exact same scenario back in July 2016 ( after I thought I’d won) when the head honcho of the Seattle VA VR&E program arrived and began a similar diatribe.  David Boyd, former peacetime tank commander in eastern Germany (E-6 20-year lifer) cum VA VR&E officer, started offering his observations on my health shortly after arriving on my property. The guy was morbidly obese- or in the current, woke vernacular, ‘weight-challenged’. If he’d been airborne, he’d of dug a pretty deep crater when he landed.

By way of explanation, I applied for a slot in the ILP waaaay back in March 2011. What the hey? There are 2,700 slots open every year. That’s pretty good odds for a lottery.  I asked for two things. I desired a heavyweight computer for writing my asknod blog and a greenhouse. Why a greenhouse you ask? Simple. I suffer one of those arcane Agent Orange diseases which is hardly run of the mill like prostate cancer or DM II. It’s called porphyria cutanea tarda. I can’t spend too much time in the sun gardening or it burns my skin up. It was one of the very first diseases, along with chloracne, to be associated with herbicide exposure manufacture…back in 1958 at the Monsanto factory up in Columbia, Tennessee. Seems all a large number of the  AO production workers were running around with no protection and had mega-irritated skin and huge, black zits all over the exposed areas of their hands, faces and necks. Well, certainly no more than 83% of them. It wasn’t like it was all of them.

Monsanto’s repair order for this was elbow-length gloves and paper masks. I reckon that would work for everything below the elbows. The masks were just for appearance’ sake like a good photo op for stockholders. I guess if they’d done a long -term study, they’d of found all them Monsanto fellers were also six feet under up at the Columbia cemetery due to a wealth of Parkinson’s, IHD, lung cancer, DM II et cetera. It would take about two more generations of folks (most all of them Vets) to demonstrate dioxin did a wee bit more than just kill plants.

I can remember now, in retrospect, the first spray event I witnessed somewhere in Southeast Asia. Probably east of the Plain des Jarres  near the trail.  The 123s had gone over about an hour before we landed. Our FRAG order had a NOTAM to keep out until 1300 hrs. Everything had a light, oily mist on it with a heavy odor of petroleum. When we landed again the next day, a lot of the local villagers started coming in with lots of fresh wildlife. Monkey ball soup was a rare delicacy. And boy howdy was it everywhere that day-and 10¢ on the dollar to boot (figuratively speaking). The reason for its relative rarity wasn’t that complex- it took a shit ton of monkey cajones to make this delicacy. What was really missing, though, were the mosquitoes. Ants. Snakes.

Fact is, there were a large number of us who considered this somewhat of a miracle with respect to the mosquitoes alone. If you never had a big, fat bead of perspiration laden with Deet™ roll down your cheek and into the corner of your mouth, you’ll never grasp my analogy. As for those little red piss ants, I can’t see how even God would  miss them. Too bad they didn’t tell us that in another 20 to 40 years that shit would begin killing us. I even heard of one guy who brushed his teeth with Deet and swore it came out through his pores and he never got bit. I wouldn’t doubt it.

So, meanwhile back in DC… The Vet who introduced me to the ILP was an old Georgia boy called Bruce Almighty. He was a four-tour Dustoff medic (’68-’72) with a few medals to go with it. If you ever wanted an advocate, Brucifer was your go-to guy. He went five years in the ILP desert before he won his greenhouse. It gave me something to do after 14 months and four operations at the VA. I studied hard and even kicked my Dilaudid jones the VA had graciously given me as an inpatient-all while I learned VA ILP law. My wingman at the hearing was no other than his son Brandon.  I reckon I disremembered to tell Judge Cryan he was also one of my clients but he swore to tell the truth so we were good to go. It’s too bad her honor the good Judge  was so busy yammering or Brandon mighta even got to say something, too.

I gotta tell you I have never had a Judge not let me approach the bench and hand him/her a copy of my brief to use as a roadmap while presenting my argument. Of course, I’ve never suffered an ad hominem attack the likes of this one before any venue at the VA. Having that brief frees the Judge up to listen to you instead of trying furiously to write down all  the regulations you cite to or the CAVC/Fed Circus precedence (that’s presidents to you folks over at Yuku VBN) you’re enunciating.

You can read my legal brief below. It felt like writing the Gutenberg Bible. I’ve never had one run to 26 pages (without exhibits, no less).  But then I’ve never been berated for 76 pages in a hearing so there’s a lot of new shit going on in my life. And I sure have never had anyone who works for VA say ” Here, Buckwheat. Sign here for your brand new 20’X 28′ heated ADA greenhouse with hydroponics.” and then  four months later fun me and  substitute the 15’X20′ one they and I had mutually determined earlier was too small.

This wasn’t even subtle. The first thing they tried to get me to sign was a blank VA Form 28-8872 saying ” here’s what you and I have agreed on.” Yeah right. You don’t see the USS Mayflower  tied up to my front porch and I wasn’t born last night. The second time was two months later when they handed me one all filled out for a 15’X20′. I asked why I didn’t get a seat at the table to discuss it.  The answer was rather blunt-“Shut up and sign or we’ll put it in the circular file and you’ll get nothing. The ghouse didn’t even have a heater or lighting. Water? You don’t need no stinkin’ water, señor. I guess you could say it went downhill from there.

So, the die is cast. We shall see whether I get to lie down in green pastures or I stepped on the dirty end of the VA punji stick. Good thing I’m admitted to the Court. I kinda get a sneakin’ suspicion ol’ Judge Cryan  has her preprinted marching orders on this one. I have 12 years into this and had 19 invested into my original claim. If you look up ‘delay, deny until we die’ in the dictionary, there’s undoubtedly a picture of me. I’m not about to piss on the fire and call in the dogs now. And that’s all I have to say about that.

redact filed BVA brief -exhibits filed 8.19.2023

Posted in Agent Orange, BVA Hearings, Independent Living Program, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , | 10 Comments

EXPOSED VET RADIO SHOW-THURSDAY 8/10/2023

Posted on August 9, 2023 by asknod

Ah. The Bat signal in the sky over Gotham indicates it’s that magic moment when we convene for another evening of VA-sponsored entertainment. You’d have to concede they give us plenty of fodder to chew on. Between constant changes in the law, congressional giveaways that slow it down to a snail’s pace and VA’s  general ignorance, it’s a never-ending battle to stay on top of things.

Tomorrow night, John and Ray have asked me to expound on all the iterations of Dependents Indemnity Compensation- generally referred to as DIC. It’s intriguing that they asked me to give this briefing because the other day I saw a gal’s query on the subject on my favorite Vietnam Veterans’ Face Place™. The FB page is called Vietnam Veterans The Best of the Baby Boomers. I answered her query because a number of others had commented and obviously weren’t up to speed on the DIC subject.

Truth is, I stepped on my necktie and fell in, too. But, just to be sure, I delved into the regulations on it to be safe and went back in and corrected myself by supplying the correct answer. The fact of the matter is that it’s not my forte, per se. I only do DIC stuff when my client passes away. It’s a favor I gladly indulge because what the hey?- I’d sure be glad if someone did it for Cupcake if I augered in.

Filing for DIC isn’t complicated unless your client has a pending claim. In those cases, I have to file the surviving spouse for substitution. For the benefit of the listeners tomorrow night, I attach two documents here for reference. One is the VA Form (VAF) 21P-0847 for substitution. Do not let anyone tell you you do not need to file it. (see comments below) You have one year to jump in and salvage the existing claim.

I’ve had VSOs who tell the spouse to just file the VAF 21P-534 EZ only and check the boxes. That won’t cut it. Worse, VA isn’t in the habit of writing to tell you to be sure to get your substitution  document (or the 534) in pronto. Fact is, VA isn’t in the habit of doing anything in a pro-Veteran sense for the most part. Some of the rating decisions (RDs) I read are a masterpiece of ambiguity. I’m guessing I’ve read over two thousand that say little more than “Sorry. You are not eligible for a&a.” No reason. No rationale. No “here’s what you need to win but you don’t qualify.”

By rights, your RD should have a blurb at the very end that says Favorable findings and another somewhere that indicates what you need to get there. But gosh. Since when did VA ever follow the rules?  Here’s the first-the VAF 21P-534EZ. The pages are numbered to include the instructions but using their page numbers, page 10, box #2 I, you’ll find the correct place to check off your choice.

VAF 21- 534

Yep. It says you can check off “accrued benefits”. That’s VA-speak for a pending claim that existed when your partner went tits up. Even VA employees will insist this is all you need to ensure you’re substituted. Don’t fall for it.

U.S. Special Forces troops stationed at BuPrang Special Forces camp 110 miles northeast of Saigon, run for cover as dust settles from an exploded enemy mortar shell that just landed immediately behind them in 1969. (AP Photo)

Here’s the VAF 21P-0847 for substitution. The funny thing is it soesn’t capture the spouse’s date of birth but don’t worry. That question is on the 534 so they actually need both forms to even make this fly properly. I “de-templated” it for this post. I put my VA email and office telephone number on mine to ensure they don’t get too hyperspazzed out and come unglued when they receive it.

VAF 21-0847 Template

One thing I’ve learned in this business is that if you use an old, outdated form to apply, they’ll always kick it back to you and say ‘sorry charlie’ and ask you to resubmit the proper most recent version. Of course, they don’t actually tell you that you used an outdated one. They just say they can’t accept it because it’s “defective”. They leave it up to you to decypher.

So, here are  the commo links for tomorrow evening. Feel free to chime in if you’re confused. That’s why we do this. Actually, of all the VA endeavors you may undertake, this one is probably the easiest for amateurs to do. The turn around time averages about two to three weeks unless there is some unforeseen complication but we’ll try to cover those eventualities on the show.

The telephone number remains unchanged (515) 605-9764

the computer link, if you choose that route:

https://www.blogtalkradio.com/jbasser/12256715/connect/342651d8fb67743bf51871b3f148d8a70504798a

Dial one (1) to speak to party you wish to speak to. We don’t have any Ernestines working here but I do a dang good imitation of her. Come to think of it, so do the VA gomers who call me.

What's a ringy-dingy? | How to memorize things, Lily, Makeover

Posted in DIC, Exposed Veteran Radio Show, FACE HUMOR, Tips and Tricks | Tagged , , , , , , , , , , , | 5 Comments

THE DOG DAYS OF SUMMER–PLAYING THE RACE CARD

Posted on July 30, 2023 by asknod

Greetings fellow Veterans. I’m hoping this finds the majority of you with completed claims and fat bank accounts. Right. What am I saying? Like that’s ever going to happen. From my perspective, it looks like VA is hiring more -and boy howdy do I mean More with a capital M- of every stripe of employee to try to get a grip on the backlog. That’s a dry hole in oil drilling vernacular. If you wage war for twenty-plus years straight, you end up with the proverbial shit ton of damaged Veterans. It takes 16 months to train a rater and they’re just now getting started? Didn’t Vietnam teach these chuckleheads anything?

Here’s what I know. I have about 80 active cases I work and right now I have five or six brand new clients lined up out the door just waiting for me to dive into their claims. They’ve been on Arlo Guthrie’s Group W (waiting) bench  for one reason alone. I have to keep fighting the VBA raters over and over on the existing claims. Litigating SMC is time-consuming. Nobody knows how to do it as evidenced by repeated denials even though their 2680s all say they’re charcoal.

There’s a simple reason for this. Primarily,  there are simply too few raters who have been trained to do it. The sub silentio reason is even more glaring. Raters know what happens if you’re maxed out with 100% for PTSD and TBI. They’ll artificially try to corral you in the SMC S hoosegow until you wake up one day and ask for more. With TBI, I find almost every one of my boys is a candidate not just for aid and attendance but for SMC at the T rate which we all know is SMC at the R2 rate. That’s $10,567.47 shekels per month (married).

Pulling the trigger on that authorization is anathema to most raters. They’d rather eat dogshit hotdogs than cut the paper in your favor. I get a bang out of some of the verbiage I read. How about “The clinician (think QTC/VES/Optum etc. FNP) stated you need ‘prompting’ to remember to take your Thorazine but not full-time medication management.” Ditto “You need to be reminded to take a shower and maintain your personal hygiene…but not on a regular basis.” Whiskey Tango Foxtrot, over?

Just for shits and grins, let’s parse what §3.352(a) actually says.  Down towards the bottom there’s the dead giveaway:

“It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.

Ruh-oh Rorge. To see this denial technique in action, you’d have to look at something I never spotted or dialed in on until recently. It’s ugly. Take your protein pill and put your brain bucket on. Here goes nothing.

In early April, a group of four Vets arrived at my front door looking for a&a and SMC T. Each and every one of them are eligible. The worst is one who had made 7 attempts since 2013 to summit Mount A&A and failed each time. One is burned on over forty percent of his body with enough ratings to pile up four 100%s combined. Do you think he qualifies? Oh Hell no. He hasn’t lost the use of any of his four appendages. He’s not blind. He can walk after a fashion if he eats enough Trazadone or oxycontin. So what is their impediment to success? All four of them, are black -as in African American.

Now, let me say this about that before I step in it. I might have been born in the south and seen blatant racism first hand in the fifties. I might have served in Vietnam and witnessed that subtle racism that divided blacks and whites into two camps. I even bunked with two of the most wonderful black folks I ever had the pleasure to know for six months. But I sure never expected to encounter all-consuming black hatred at the VA.

You read that right. How could that kind of racism over ratings be alive and well in this day and age of woke insanity? If you go into VA’s rolodex of employees now, we (yep-me too) can add our pronouns after our names just to ensure nobody “misgenders” us. Perish the thought that might happen. But, if you’re black, you get redlined. Game. Set. Match. Well, you do until you hire me as a Rep. I won the first one by brute force late in April but the Vet still hasn’t been paid yet. I actually had to contact the OAR (Office of Administrative Review) and ask if they had two sets of rules for this poker game- one for white bread and one for pumpernickel. They didn’t answer me other than granting it.

Turns out they really change their tune once you pitch a bitch. Bingo. Sorry Alex. Somebody screwed up and we fixed it…sort of. They kicked it back to the offending Coach in question and ordered him to cut the paper. He rewrote it granting a&a but couldn’t resist sticking the knife in and wiggling it a bit. He sent it back to the QTC gomer and got him/her(they?) to change his mental state to incompetent to handle VA funds. That means he gets a fiduciary who peels off a couple five hundred a month to ‘supervise’ him and make sure he doesn’t squander it all in Vegas on a stripper. Quo Vadis the nonadversarial VA-friendly venue in which to adjudicate our claims?

Given VA’s record of hiring fiduciary critters right out of prison with former records of embezzlement, I can say with authority that you do not want one of these bloodsuckers attached to your benefits. Extricating yourself from this tar baby isn’t hard but it’s time-consuming and should never even happen. Sure, there are some who probably need it but if they have loving family or a devoted spouse, they don’t need that overbearing presence watching their every expenditure like a hawk.

As for this black issue with VA, it actually isn’t a phenomenon. I googled it for shits and grins yesterday and was dumbfounded to find out VA figured this out waaaaay back in 2017. Check it out:

https://www.washingtonpost.com/politics/2022/11/11/racism-benefits-black-veterans-study/

Or this: Senator Richard (DaNang Dick, aka Bien Hoa Blumenthal) Blumenthal even helped get this rolling. Nothing like getting help from someone who disremembered being there!

https://www.washingtonpost.com/politics/2022/11/11/racism-benefits-black-veterans-study/

Or a VA finding of fact:

“According to a Yale University statistician who analyzed the VA records, the records show throughout the two-decade period that the VA denied Black veterans disability compensation at an average rate of 29.5%, compared to the 24.2% of White veterans who were denied disability benefits. The VA notably granted disability compensation to Black veterans at an average rate of 30.3% and White veterans at an average rate of 37.1%, the lawsuit says the statistician found.”

https://www.cnn.com/2022/11/30/us/va-black-veterans-discrimination-lawsuit-reaj/index.html

Or:

https://www.rand.org/blog/2023/03/reducing-racial-disparities-in-va-disability-compensation.html

I could cite 50 more articles but they are pretty much redundant on the subject. So, being a total dick, I emailed hizhonor Denis the Menace yesterday afternoon and asked him why this conundrum exists in 2023-and why to what appears to be a select cadre of Veterans of a specific race. I’ll get back to you if and when he deigns to enlighten me.

 But let’s think about that. VA has a cadre of bean counters-legions strong, I might add- who do nothing but try to figure out important statistics about Veterans like how many of us pee when we first get up in the morning versus how many can hold it until 10AM. That may be a facetious shot but it conveys the VA mentality on the “need to know’.

The corn is almost 12 feet tall this year. I get that. I can see it’ll  go taller yet and most will have three ears. I supersized the horse poop this year. I had to use a six foot ladder back in 2013 to retrieve them. There’s a lot of chemtrail activity hereabouts which folks tell me always guarantees a good crop. The beets are already huge. I checked out the carrots yesterday and it’s going to be a bumper crop. Shoot, I might need a backhoe to get some of them out.

The peach trees are overwhelmed with fruit so I had to take a pair of crutches out and prop up a few branches. Ditto all three apple trees and the plums. I’ll write an article here directly on the ILP greenhouse trip to DC and horrendous reception the VLJ gave me. It began with ” you don’t look very disabled to me, dude. You flew all the way across country for this hearing? Amazing Mr. Graham. Well, yeah. I did. But then again I wasn’t out in the sun in a f—–g biplane, your honor. It went downhill from there. In fact, it took so long I had to change my flight home because I couldn’t make it to BWI in time due to the 2-hour dressing down I got for having a job and the temerity to ask for a greenhouse.

This is a developing story. News and film when I get a chance.

Posted in Complaints Department, Food for thought, R1/R2, SMC, Special Monthly Compensation, TBI, VA Agents, VA TBI, Veterans Law | Tagged , , , , , , , , , | 3 Comments

EXPOSED VET SHOW–THE REAL VETERAN’S RADIO SHOW

Posted on July 17, 2023 by asknod

I’ve been sent links to watch this Vet’s show and that Vet’s site. I’ve searched high and low for shows that inform you in real time on how to file and which “lane” you want to be in. And all too often, they’re too generic or recite stale information which can actually be downright harmful to your bottom line. I’m not going to drag names through the mud. I’m sure not trying to hype my site, either. I don’t have enough time as it is to write full time the way I did in the good ol’ days of the mini-Depression. I enjoy climbing into the ring and duking it out nowadays.

This is why a good radio show that freely hands out current, up-to-date  data on our “Area of Operations” without any snake oil is rare. I ‘m not selling anything. John and Ray sure aren’t. It’s almost boring. Between us, we don’t have a single t-shirt or coffee mug emblazoned with our logos for sale. What we do have, I feel, is free information about specific fields of compensation-some that are rarely investigated or that few know of. No pay walls. No manuals for $9.95 + tax & shipping on ‘How to…’.

Nevertheless, I strive not to neglect the FNGs- the pings, the cherries or whatever you call  them. To them, our banter might sound more like French. EED? 4138? NOD? Becoming immersed in this and adroit just understanding the terminology is only half the battle. It  changes all too frequently. The Vet offering you a recital of what he did back in 2006 to win a mega six-figure retro is useless now. It’s like explaining a Motorola brick phone to a Gen Z. Yoo-hoo? We don’t use VA Form 9s anymore, old man.

I can’t even begin to tell you how depressing it is to sit like a fly on the wall and eavesdrop on some of  the oldtimers who pass for the resident experts handing out stale advice on how to accomplish something they haven’t done themselves in over 20 years. I reckon they mean well… or do they? I sure don’t mean to be that old lady in the Burger King™ commercial asking “Where’s the Beef?” But then, too, you can go to some of the Big Name sites of Big Attorneys PLLC and hit the chat button. You’re in for a heapin helpin’ of what if’s, couldas, betteroff’s and lastly, ‘let me get your email and I’ll have one of our paras get back to you. I just answer the phone, sir.’ In this day and age, everyone wants instant answers. Newsflash. There ain’t exactly a shit ton of us out there providing those VA Google© search answers licketyspit.

This simply doesn’t help with the VA claims addict who wants an instant fix. So naturally they come to Gotit.com and ask advice of  some Vet who goes by Tay Ninh 1970 and signs all his replies with ‘I am not an attorney or VSO and my opinions are strictly mine (no flies on me).’ These shade tree law dogs are also are fond of citing to CAVC “presidents” or the M21 1MR. Funny how they ignore the actual statutes and regulations or neglect to mention them considering that is where the legal answers lie. The problem is elementary. You need an Encyclopaedia Britannica to turn them into Veterans’ DickandJanespeak.

Well, folks, at Exposed Vet, I think John and Ray’s thrust is to find different, valid perspectives. Face it. You’d get bored with a constant diet of Broncoboy word salads which always end with telling you to call CCK Law or Kenny Carpenter. Shucks. I do business with Robert and Ken on a fairly regular basis but I use them for complex things like brain surgery up at the Fed. Circus-not tinnitus and pes planus. For everything else there’s  Mastercard™, right?

Now, don’t misunderstand me. I’m not suggesting you eschew attorneys in favor of VSOs- or agents like myself. One thing I know is a lot of Agents are not afraid to take on what we politely refer to as Unicorn cases. A lot of attorneys will refuse them. Regardless, I strongly suggest you use a National Org. of Vet Advocates (NOVA) atty. or Agent because of the high standard of training we pay dearly to get.

What I also strongly suggest is avoiding the new plethora of pop up ‘advisors’ who will do your claim based on their good ol’ five-fifty warranties- five months of your increase (including dependency) or not more than $50,000 dollars, whichever is larger.  Hell, that ain’t a warranty. That’s a guarantee they’re gonna soak you ’til you fingers get wrinkled. A NOVA dude doing it for 20% of whatever he can win is a chicken dinner winner…and far cheaper. If s/he loses, there’s no charge. The problem is usually finding a good law dog who isn’t a  claims cherrypicker. I’m sorry, Virginia but there is no Santa Clause in this business.

Face it. There’s uncomplicated, straight-forward musculoskeletal or disease claims. But then there’s §1151 claims. There’s §3.156(c) claims. There are SMC nightmares. Not everyone in this business has that intestinal fortitude for difficult cases. I’ll tell you what it feels like sometimes once you dig in. It’s that feeling you get down in your stomach when your pilot stalls the Porter 150′ off the top of the canopy (alongside a karst) and you see him silently mouth the words ‘oh.shit’.  I don’t feel that insecure anymore doing this but I can  say as I still don’t cotton to §1151 claims.

Exposed Vet is far more likely to acquaint you with real-time quirks developing in VA law. The guests will probably be far more hands -on, too. I’ve watched the guest speakers for the last 10 years or so, and, for the most part, I can’t see where you could go to get better advice. It’s funny. On one site I read occasionally, the Big Banana always exhorts newcomers to head to va.gov pronto and file! File! File! Who cares if the claim is meritless? Get out there and gum up the system, soldier. And be quick about it.

Conversely, the “pink site” should have a huge sign at the entrance saying “Abandon hope all Ye who enter here.” Their resident doctor (Ye Olde Medic) back in the day averred that all folks with the Hep C virus were parenteral drug abusers and unworthy of compensation. That one-size-fits-all mentality is a learned response-usually originating in 20-years-and -out lifers’ prefrontal cortex due to ETOH poisoning.

So, if the spirit moves you, tune in Thursday night at 1900 Hrs East and 1600 West. You won’t get Combat Charlie droning on about the chances of winning a HLR, The Three Stooges from VBN® or the seventeenth recital of how Tay Ninh 1970 won his SMC S pro se without an attorney. What you will get is some ol’ boys from the back woods of Kentucky or Tennessee with one hell of a country twang in their speech. If you can get by that, you’ll probably enjoy yourselves.  Be so kind as to mute your mic if you’re grazin’ the Fritos or the dogs are barking.

The call in number remains

(515) 605-9764

Dial one (1) (un)(nung)(duy nhứt) if you wish to enter the conversation and ask a question. Or, go on your computer, go to:

https://www.blogtalkradio.com/jbasser/12248813/connect/c019a8c5d0eea69aa642efb8e4703226ae07faa9

On behalf of myself and the rest of the crew, I hope we’ll pass the audition.

P.S., We’ll also be talking about my foray down to San Diego yesterday for a BVA hearing (video) with my client who has waited 4 years + for his day in the sun. The attached below was misconstrued as a desire to withdraw his request for said hearing. This illustrates what we are dealing with at the VA. Think about it. A GS 13 interpreted this Legacy document as an AMA docket. All AMA docket numbers are the date of your VAF 10182 NOD-e.g., 190707-31582 would be the 31,582nd VAF 10182 received in the year 2019 at the Board on July 7, 2019.

This is what a $143 BILLION dollar budget buys you -idiots.

redactWithdraw BVA Appeal No 1332498A

Posted in Exposed Veteran Radio Show, Tips and Tricks, VA Agents | Leave a comment

M 21-THE ORIGINAL AI–NO WONDER VETS ARE SCREWED

Posted on July 3, 2023 by asknod

I apologize for my absence here. The VA tasks me. They scheduled five hearings I’ve patiently waited four years for all at once. I’m racking up frequent filer/flyer miles at a stupendous rate but have no time to even answer the phone or offer advice to Vets. On top of that, my fourth grandchild Daphne was born last Monday and I was so busy writing appellate briefs, I didn’t get over to see her until the day before yesterday. Lots of news to share and very little time to do so. Here goes.

First off, I think everyone who doesn’t know it’s against the law to practice VA law without accreditation should be aware the bell will be tolling for you fellers shortly. I just received this from fellow agent Doug Haynes. I wondered how long it would be before someone geared up to combat this atrocity. Think about it. Even if you’re the most hotshit VA law dog in the universe, you’re still limited by law to charging no more that 33 1/3% commission on the winnings. I charge 20% and so do most others who authorize the VA to be their collection agency. Imagine having no accreditation whatsoever and soaking Vets to the tune of over 50% a pop for a win. Sucks, huh? So I was enthralled to read the Pels Group have decided to sharpen their spears and skewer these chuckleheads. Right on.  https://vadisabilityinvestigation.com/

Finally, after seven years waiting patiently for SOCs, VA 9s and VA 8s, my own day in the sun has dawned. Thomas Williams called me this morning from BVA VACO and asked me if I prefer tea or coffee while I wait in their  lounge on the 12th for my hearing with VLJ Lauren Cryan. There, the VLJ will entertain my plea for a larger greenhouse than the 10X15 visqueen shoebox w/ 60 watt lightbulb heating they originally proposed back in 2016. After appealing for a 24X28 and hydroponic gear, my entreaty was rudely rebuffed and the head of VR&E declared they were already being far too lenient in even granting entitlement to one. The trouble with that is the BVA was the one that granted it- after the AOJ VRE cowboys denied it for five years. VR&E folks have short memories or else they’re smoking some killer gunsha.

As for the M 21 and Artificial Intelligence, this will be a lesson on SMC in a roundabout way. It began with a serial stalker named Harry who snuck up on me during the ‘confinement’ pandemic in late 2021 and hornswoggled me into taking his claim for R1. Moreover, it metamorphosed into having to fight an incompetence allegation as well as an earlier effective date of 2002 for his SC for Parkinson’s under §3.816(c). To say this was a battle royale would be a masterpiece of understatement. Harry had arrived with a veritable suitcase full of problems. Harry is my kind of people.

Harry was granted a&a due to a plethora of problems.  Read his BVA decision down below this. Note how the VLJ wrote it. The need for a&a was based on “impairment” of extremities. Note she did not say the condition of loss of use of extremities existed. This is where the precedence embodied in Breniser v Shinseki  comes in handy. ‘Condition’ is the operable word. Note also on page three of the BVA decision that Harry was granted SMC S for Interstitial lung disease as the “anchor” 100% to the grant of SMC S. Thus it can be said Denis the Menace was in constructive possession of the knowledge that Harry was waaaay past severely 100%. What the hey? I got him advanced on the docket three times now off the same doctor’s note saying he’s terminally ill and expected to live no more than 2-5 years (circa 2022). https://www.va.gov/vetapp20/Files11/20075742.txt

I fought extensively for four months straight to get him his R1 and succeeded a few days after the New Years hangovers of 2022. During this period, I did some dumpster diving in VBMS and noted he hadn’t been granted the bumps we all get on top of the SMC L. He had been entitled to L 1/2 for several months and then an M for the lung disease up to his grant of R1 . As those who do this know, VA isn’t exactly forthcoming about all these 1/2 step and full step add-on bumps described in SMC P under §3.350(f)(3)(4). Surprise, surprise, surprise- in the immortal words of a TV Marine private. Purposeful it may be. Yessssssssssssssss.

So, being a perennial pain in the VA’s ass, I filed him for it. The Jedi master I learned this trade from said never to leave any money on the table. This is where it gets funky. I expect there’s no love lost between me and Denis. I’ve always pooh-poohed the old saw about VSOs chiding us not to be greedy or it’ll bite us in the ass idea or that they are always looking for a way to whack your rating and reduce you if you file too many claims. But this time, it appears true. Either that or Denis has a hard on for me. The funny thing is this is going to be easier to repair than trying to hit something with nape from 1000 feet ASL at 300 knots.

The BVA granted the bumps as I had expected but when it came time for the OAR in DC (VBA397) to write up the BVA’s decision, it went into cold storage. I found out why the other day. These bozos are trying to reduce him back to SMC O because the a&a was granted based partially on the Parkinson’s issues in all four extremities. Remember them? VA plumb forgot all about them for a year while I fought arduously to get him the R1. Now, they say they somehow forgot to retire the old 8515 and 8520 ratings they actually gave him in 2017-2020 and insert the DCs 5109 and 5110 for the loss of use. Kinda like the blind leading the deaf across the street against a red light.

So, their idea of how to fix it was not to apply the Akles rule and not examine all Harry’s disabilities in great detail to see if they could do a Buie “rearrangement” of the ratings such that the interstitial lung disease could be substituted for the a&a and he’d remain at R1. Oh, hell no. They went balls to the wall into “screw the Vet” mode and whacked him down to O. As an aside, if you wonder why VA can’t figure out SMC, part of the problem lies in the M 21. It’s riddled with errors on the subject and VA either chooses not to correct  it or is complacent and likes it the way it is. Keep in mind that §3.350(e) describes SMC at the O rate as the “maximum rate”. Yeah, right? Most of us would argue R2 or T is the maximum rate but semantics was never the VA’s strong point.

Redact bump and CUE reduction

Redact Code sheet for reduction to O

I figured I’d be getting that call with the “Another fine mess you’ve gotten us into, Ollie.” I did get the call but Harry said he trusts me to get it sorted. I will. It just seems like such a waste that I have to keep sweeping up the VA’s broken glass after they screw it up.

I reckon I’ll have to file a CUE claim and explain how §3.103, AB v. Brown and Buie v. Shinseki applies. Worse, these chuckleheads are using a BVA ministerial remand a la Encarnation v. McDonough as a vehicle to combine two disparate subjects into one. Seems there should have to be a proposal to reduce, n’c’est pas? Anybody down at the corner of Delay Street and Deny Avenue ever hear about §3.105? Due process? Oh hell no. They’re lost in space and happy as pigs in shit, folks. They have their M 21. What else do they need?

Happy 4th of July to all of you. Remember, there is no 1004 with hand grenades or fireworks so be careful. Notwithstanding my love of SMC, I like you with all your parts and pieces firmly attached whenever possible.

P.S. Enjoy the video from-who else- Ed the LURP.

Posted in 4th of July, Independent Living Program, Lawyering Up, Veterans Law | Tagged , , , , , , , , , , | 4 Comments

BVA–CLEANUP ON AISLE FIVE

Posted on June 17, 2023 by asknod

I’m sure we’ve all heard that one before down at Piggly Wiggly. Whoa there, hoss. That’s going to have to change. The name just drips fat-shaming and small airline seats. I’m sure  the wokefolks will be along directly to ask them to consider a more kind and gentle brand name. But that’s not what I called you here today for. Nope. Not for Father’s Day either. Below is one of those appeals that has never happened to me in my brief career using my new super power for the betterment of Veterans. Read on.

Back last summer, July 6th to be specific, I filed two disparate NOD 10182s. Both were for the same Vet but the subject matter was vastly different. One was for an earlier effective date ratings percentage. I’d already won the earlier 2002 date for the claim. We were just squabbling over the ratings percentage for his Parkinson’s.

The second NOD was a CUE. I hate to file CUEs. You just know it’s destined for the BVA if it involves SMC in any way, shape or form. I’d won the a&a and was merely “cleaning up” the assigned rating. It was a simple, straight-forward bump case under §3.350(f)(3) for two months and another eleven months up at SMC M (full-step bump under (f)(4).

I’m a silver-tongued devil at a HLR in most subjects but when you run into a booth bitch with no SMC comprehension who only sees you as a welfare cheat or trailer trash, that’s all she wrote. And boy howdy that’s pretty much what she wrote. I’m not sure what manual or book of CFRs she consulted but apparently, it/they didn’t contain anything on §3.350/§1114 . I got the 30- minute treatment. That’s how long it took to write up the denial and publish it in VBMS. I watched it happen in real time. It probably wasn’t even her personal best time either. This chick was ice cream brain freeze cold.

So, having struck out in St. Pete’s DROC, I headed up to the BVA with it. My mistake was in filing them both one right after the other. Both showed up a few days later in VBMS as having been received but I only got one AMA letter saying “it” had been docketed in the direct venue. I decided to cut bait and wait. Big mistake. Being pretty busy, it slipped my mind. Well, at least until December of 2022 when the other BVA appeal popped back up in the infeed with a remand. As you can read below, the VLJ noted there was another appeal docketed and pending, but in the new AMA, the VA can’t possibly digest two appeals at the same time without getting the vapors.

redact BVA 12.22 remand

I began pestering them in March that my boy was terminal and reminded them he was advanced on the docket. I got a nastygram from the BVA Litigation and Support krewe saying “We already decided that one, dummy.” and enclosed a new copy of the December remand. At some point I think I may have sent my own nastygram inquiring of their possible wolf parentage and suggestions to check in with Ancestry.com™.  The commo went dark for a while and then I shotgunned one of those emails off with a cc: to the VLJ who wrote the decision (the Honorable Ryan T. Kessel) mentioning the CUE was still pending. Boom Shaka laka laka. That did it.

 The BVA apologist called back and said they were flat ass on it. I couldn’t see it in CASEFLOW so I started throwing rocks at the CASEFLOW window. Wonder of wonders. In this now-AMA world we live in, this July 2022 NOD had segued into a Legacy NOD and was hiding in VACOLS. I attach it here below. Check out the Docket No. -23-00 162. I read that to be the one hundred sixtysecondth cleanup at 425 I Street NW this spring.

redact BVA grant for ^ SMC M

All’s well that ends well. Harry got his just deserts in this, his last CUE and we have the one last matter of being desirous of a rating which renders a decision granting every benefit that can be supported in law while protecting the interests of the Government. The VA examiners get a little too hasty after they grant a claim. SMC, being an ancillary benefit, simply doesn’t come up on their radar unless you whack ’em upside the head and remind them. Even then, I frequently end up having to go up to the Big House to find legal minds who can read with greater comprehension.

As for old retros back to 2002, we all understand VA’s recalcitrance about conceding such a large error. It really isn’t that much money in the scheme of things. I heard a few days ago in a congressional hearing they (VA) allowed as they disremembered where they put $3.4 billion last year. That’s a shit ton of disremembering in my book but maybe I’m just one of them small-minded thinkers who doesn’t get the big picture.

redact filed 10182 5.26.2023

Happy Father’s Day to you who procreated. Oh what the hey. Happy Fathers Day to all of you who identify as a ‘father’. Did I get that right?

 

Posted in Appeals Modernization Act, BvA Decisions, BVA Referrals, SMC, VA special monthly compensation, VBMS Tricks | 5 Comments