Col. (Sen.) Sanders Okay With VA Bonuses

Posted on February 10, 2014 by asknod
Col. Sanders after some of his hot and spicy.

Col. Sanders after some of
his hot and spicy wings.

Col. Sen. Sanders went on record with Stars and Stripes and had this to say on the subject:

“When people are doing a bad job we don’t want them staying in the job; when they do a good job we want to see them rewarded,” Sanders said. “I’m not going to tell you that’s always the case with the VA.”

When queried on all the recent malpractice, patients dying from hospital-administered overdoses, Legionnaires Disease and HCV infections caused by VA medical personnel,  the Colonel proffered this excuse:

Sen. Bernie Sanders, a Vermont independent who chairs the Senate VA oversight committee and is one of the agency’s biggest allies on Capitol Hill, says most veterans are satisfied with VA care. “If you do an investigation of any given [civilian] hospital on any given day you’re going to see negative things coming out,” The Wall Street Journal reported Sanders as saying.

Yeppers. It’s just that we seem to see and hear about a shitpile more medical misadventures at VAMCs than at other medical centers per 100,000 patients. It’s fairly obvious where this fellow sits if he can speak for me and say “most Veterans are satisfied with VA care.” He doesn’t get out much to VA parking lots.  This morning at the American Lake VAMC in Lakewood, Washington (the other Washington), I witnessed a Veteran holding on to the front of his truck loudly explaining to it just how satisfied he wasn’t with something. Funny how I never see this at regular hospitals. I don’t need to add my two cents in and pile on.

When the political yo-yos in the Senate who hold the financial keys to the VA’s budget are quite satisfied with the status quo of bonuses, it speaks volumes about how entitlement works. Bonuses- be they for low handicaps over at the Andrews course or for accidentally killing off  fewer Veterans than statistically projected within their VISNs- can never be justified in the bright light of the instant, dismal performance. If it were just a momentary glitch and the backlog had begun recently, I’m sure Congressman Miller would not be so quick or vocal to express his displeasure. I’ve personally witnessed the same pathetic system slow down like a computer with 150 viruses to a virtual crawl over four decades. Trying to continue this bonus ruse in the modern, internet-connected universe is a fool’s errand. As Miller stated, the only ones who think they deserve a raise are the ones getting one and the people awarding them. The best line was the one where the employees who stand to get the bonuses opined via their professional mouthpieces that this would cause a mass exodus to the doors by upper management. Jesus Father Christ. What , exactly, did you expect them to say? “It’s time for us sinners to do penance, don sackcloth and forego our bonuses till backlog do us part.”?

This dog chasing his bonus thing is self-perpetuating as in:

Tom:  “Bob, if we give a bonus to Jim for marginalizing all those VR&E Vets, then we’d have to give one to Ralph for cooking the books on the homeless figures-oh- and his secretary Delores ’cause she was in on it, too.”

Bob: “Good point, Tom. I think I’ll put you in for one, too. What’s our tee time?”

We don’t do political so I will end with the thought that it could just as well have been a republicrat. It makes no difference what party but what creed they espouse. It’s a little unsettling to hear him brag about it though.

images

Yeppers. We love the VA. Mo’ bonuses!

But wait.  This just in from the Tip Of The Spear In Georgia (Mac). Eric Shinseki’s list of who’s been nice. I’m guessing there is no “who’s been naughty” one.

Posted in VA BACKLOG, VA Bonuses, VA Health Care, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , , | 4 Comments

CAVC-BARNETT V. SHINSEKI–DENIAL WITHOUT REOPENING A CLAIM

Posted on February 9, 2014 by asknod

downloadWhat would you do if you tried to reopen a claim for Asbestosis or-what the hey- hammertoe, and they refused to reopen it?  Hell, it happens all the time. But try this one on for size. You file to reopen and VA fights you from one hedgerow to the next all the way to the Court, all the while telling you you have not presented new and material evidence to do so. In a desperate attempt to avoid allowing said reopening, they opt to give you another C&P to prove you do not deserve it. Meet Joseph E. Barnett.

Barnett reversal

Joe Barnett was a squid lifer from 1951 to 1970. Considering how much asbestos they used in ships back then, one wonders how he could not be suffering from it rather than the obverse. When I see these things, I point to VA math and say that anyone who could come up with that convoluted regulation can rationalize anything. And somehow they did-more than once. This is a reopening of a prior, denied claim and means he attempted this at some time in the past with no luck. This often sets the tone of the discussion and creates a “deaf ear” syndrome within the VA.

New and material evidence, for VA purposes, is a low bar to overcome-or should be. We are constantly lulled into complacency with the assurance of nonadversarial justice that will permit even the wildest and woolliest of stories to substantiate our claims. VA is supposed to perform due diligence, even with a smile on their faces, and at least pretend to entertain our requests. With the credibility problems of promising all manner of reform these days, the casualty is the Veteran with a “marginal” claim. Quite simply, a lot of babies are being thrown out with the bathwater and no one is complaining-least of all the babies. This explains why 85% of us lose by the way. We don’t appeal.

Joe arrived at the RO, probably back in 2007 or so, and attempted to reopen with nothing more than a lay statement that a nurse had opined asbestos “could definitely have caused chronic obstructive pulmonary disease (COPD) or at least made it worse”. Most of us who help Vets would probably focus on the word “could” in the prior phrase and cringe at his prospects without a nexus letter tying his COPD to asbestos.

VA has a job to do. Granted. They are inundated with claims and foolishly either refuse to hire enough people or abuse them horribly such that some quit in exasperation. Whatever the case, being behind the eight ball seems to be their lot in life for the last 200 years.  This does not give them the right to revamp the rules on reopening claims or to unceremoniously toss out lay testimony as being speculative simply because it is unsupported by the medical record (in VA’s mind).

downloadAlways remember, fellow Vets, new and material evidence submitted to open and even more importantly, to reopen a claim, is assumed to be credible for purposes of testimony. By serving America, they will at least allow us (on paper) to get our foot in the door to look at this with an eye to approving the reopening. It is a low threshold to get over-or was intended to be by no other than Congress.  Only after your request to reopen the claim is granted should the second facet of the jurisprudence kick in. By that, I mean a genuine weighing of the new and material evidence to determine if it is credible. When you scream that the sky is falling like Chicken Little, VA is at least required to accept that you believe it is falling before telling you you’re full of hooey. Joe didn’t even get close to that polite consideration.

Here, the Board determined that the appellant’s October 2008 lay statement “[e]ven if true, . . . is speculative and does not amount to new and material evidence sufficient to reopen the claim” and that he “was told on multiple occasions that he needed medical evidence showing a current lung disorder is related to service, including asbestos exposure.” R. at 15. The Board also determined that the October 2008 statement did not trigger the duty to assist under Shade and McLendon v. Nicholson, 20 Vet.App. 79 (2006), as the appellant “failed to provide a medical opinion from the nurse or nurse practitioner” and “VA provided [him] with another pulmonary VA examination [in April 2010,] during the course of which the examiner provided a medical opinion expressly rejecting the suggestion that [his] current COPD was related to service or his exposure to asbestos during
service.”  (Barnett v. Shinseki 2014)

download (1)This is where VA stubbed their toe. Veterans Law Judges (VLJs) remind me of little kids who get all dressed up in daddy’s pants and shoes and strap on a tie. We can forego the image of one in robes like Judge Judy because they don’t wear that attire. They’d probably like to but it’s like “all dressed up but nowhere to go” on the Titanic. They don’t hold court and have an audience. VLJs are not ready for prime time justice. They mean well and they look auspicious like judges but the similarity evaporates when they open their judicial pie holes and spout nonsensical gibberish. The unnamed VLJ who authored this abortion went so far as to discuss evidence that was not even a matter of record in the Record Before the Agency or what we call the RBA. When you do that, you are guaranteed to get a rise out of a  CAVC Judge like a small mouth bass going after a #2 Mepps spinner in May. Here’s Judge Lance’s take on it in footnote #1:

1
Secretary’s Br. at 19. The Court is precluded from considering any material that is not contained in the record. 38 U.S.C. § 7252(b); Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court shall be on the record of proceedings before the Secretary and the Board). Nor is the evidence offered by the Secretary the type of information warranting judicial notice. See Monzingo v. Shinseki, 26 Vet.App. 97, 103 (2012) (“The Court may take judicial notice of facts of universal notoriety that are not subject to reasonable dispute.”); Jones v. Shinseki, 26 Vet.App. 56, 64 (2012) (treatise evidence should generally be weighed by the Board in the first instance). Therefore, the Court may not and will not consider any of the Secretary’s arguments premised on extra-record evidence. (Barnett supra)

This is the kind of thing that separates the poker players from the ribbon clerks. It’s also illustrates graphically why 1) we have a CAVC and 2) why this VLJ is never going to be nominated to the CAVC bench. Here’s another major face plant.

In making these determinations, the Board erred as a matter of law in several respects. First, requiring the appellant to submit medical evidence, rather than accepting his lay evidence as credible, violates both this Court’s holding in Justus and the Federal Circuit’s holding in Davidson v. Shinseki, which “explicitly rejected the view . . . that ‘competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis,” 581 F.3d 1313, 1316 (Fed. Cir. 2009).

You can see where this VLJ’s judicial notions make his juris doctor’s degree appear to have issued from a box of Crackerjacks. The second half of Judge Lance’s ire falls on due process.

Second, by invoking the April 2010 opinion as a rationale for why the October 2008 decision did not trigger the duty to assist, the Board essentially weighed these new pieces of evidence against
each other without readjudicating the appellant’s claim on the merits. Cf. Justus, 3 Vet.App. at 513.  In essence, the Board determined that reopening was not warranted, as the proper course of action on reopening would be to provide the appellant with a new medical examination, which the RO already did. The flaw in this reasoning, however, and something clearly illustrated by the parties’ briefs, is that the Board precluded the appellant from obtaining meaningful review of its decision.  By relying on the April 2010 examination to find that the appellant’s October 2008 lay statement was not new and material without reopening the appellant’s claim, the Board conducted a weighing of the evidence but precluded the appellant from challenging the adequacy of that evidence as to the merits of his claim.

Let’s parse this in DickandJanespeak. Our VLJ tried to rubber stamp the RO denial with the path of least resistance-merely cutting and pasting in legal precedent with no basis in fact. Joe attempted to reopen his claim. The RO went into denial mode instantly. In their haste to run him off, they even gave him a C&P and convinced the C&P doctor to agree with them. That C&P became the raison d’etre for the refusal to reopen. The attitude was that “You didn’t bring enough evidence to us to reopen and just in case, we proved you didn’t because the C&P doctor said so. This is putting the cart before the horse. You are not permitted to create negative evidence to deny a Veteran anything-least of all a legitimate attempt at reopening an old, denied claim. Yet this is the caliber of justice we are subjected to and VA considers it not only nonadversarial but the best justice in town. I think it’s the best justice money can buy down at 810 Vermin Ave. NW 20420. Remember, The VA Secretary signs the checks there so  justice is what he says it is.

I counsel Vets to examine everything they get from their Regional Office when denied. VA is so inept, they tend to give us the tools with which to rebut their shoddy justice. Likewise, anything issuing out of the BVA is similarly suspect for exactly the same reasoning. Here’s a bright line example. I sent in new and material evidence with my NOD in November 1994. It was date-stamped 7 December 1994 and dutifully entered into my C-file. VA unceremoniously sent me out an SOC a month later and acknowledged they had received the evidence. This was assumed to be credible until they had an opportunity to examine it. They never did. When I reopened and won in 2008, they categorically denied I had sent in anything in spite of it being there large as life. Excuse number two was that they reviewed it but it would not have changed their decision.  Excuse number three was that I had failed to submit a Form 9. Each excuse became more feeble than its predecessor. No one even bothered to accomplish the simple task of thumbing through the c-file to ascertain this error until March 3, 2013. They were still willing to go to Court until my rainmaker started making noises about presenting evidence of AO usage in Laos. That changed their tone. VA is worse than the Keystone Kops. They are more entertaining than Ringling Brothers Circus and about as convincing.

I have often pointed out that I love to read about Fed. Circuit and CAVC reversals because they clearly illustrate just how far you can stretch the rubber band of jurisprudence before it breaks. Judge Lance was on the panel that decided Shade v. Shinseki which is probably why he was handed this one. One can only imagine his glee when he took the whole clerks’ pool under him out to Red Lobster for dinner and announced “Hey. It’s cut and paste time, kids. Let’s take Shade over to Vermin Ave. and TP that chucklehead VLJ’s office with it.”

The crime, as I iterated it in the Shade post was that VA screwed the Vet once at the RO. The BVA simply rubber stamped the denial with flawed legal theory and the Office of General Counsel (OGC) seconded the VLJ and proceeded to prosecute it yet again without even bothering to parse the legal significance of Shade. I take that back. They actually cited to Shade. Dumb and Dumber. This could be superimposed over Shade because it is Shade in everything but name only. How that escaped the OGC will forever remain a mystery.

Kind of like that old rag about those who refuse to remember the past are condemned to revisit it time and time again.

810 Vermin Ave. NW Washington DC 20420

810 Vermin Ave. NW
Washington DC 20420

Of course, the other graphic that comes to my mind is obvious.

45-inch-hole-plus-peripheral-traumaGosh. I hate that when that happens. Well, unless it happens to a VLJ. Then it is somehow fitting and proper comeuppance.

 

Posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision | Tagged , , , , , , | 1 Comment

VA-HOLD THE BINOCULARS BACKWARDS, PLEASE

Posted on February 8, 2014 by asknod

imagesSometimes, they really must take us for dolts, complete boobs or functionally illiterate, double -digit IQ  quirks of society legally licensed to drive automobiles. Children in adult suits if you will. This kind of three card Monte game is the most dangerous when someone fails to point out that we aren’t in Kansas anymore, Toto. Really? All of a sudden, the backlog has decreased, perceived accuracy has increased to a phenomenal 90 % and the average time for a claim is 179 days? Of course, taking a bow, they are amazed they have not yet reduced it to the projected 145 days? In accountantspeak, this is called making the elephant disappear up its own asshole. It’s a physical impossibility everywhere except 810 Yellowbrick Ave. NW, Wash. DC 20420.

VFW Deputy Grand Poohbah Gerald Manar  put it quite succinctly when he said:

“Today there are over 1.7 million compensation, pension and education claims and appeals. Instead of fully fixing the problem, VA leaders have redefined them,” he said. “Since VA couldn’t reduce the entire 1.7 million by 2015, they decided to define the workload as only disability claims requiring rating action.”

Which means, gentle readers, that the VA, not Congress or the public, is in charge of the Miriam Webster Dictionary. Claims are hyphenated like women now. You know. Used to be the simple Miz Arthur. Now it’s Mrs.  Mavi (silent a,accent on second syllable, puleeezze) Arthur-Dreyfus. Much the same, a VA Claim of yore has metamorphosed into a plethora of interesting sublets. Alphabetic ones (DBQ, FDC, PDQ, POW, DIC), presumptive claims for Agent Orange, simple claims, complex clams, dependency claims, burial benefits, education claims, insurance requests and then, of course, Appeals.

But when you partition Claims as a general category into claims with prefixes and suffixes, the landscape becomes blurred and miscommunication at high levels occurs:

longestIn recent months, VA has made significant progress in executing our benefit claims Transformation Plan. We reduced the backlog by approximately 36 percent since March of this year, and we expect these reductions to continue over the next year. More importantly, while increasing our productivity, we have also increased the quality of our work. In June 2011, when I arrived, our average for claims accuracy was approximately 83 percent; as of the end of November 2013, that number was approximately 90 percent. When measuring accuracy at the medical issue level –
which is a more precise measure of VA’s workload – our rating accuracy today stands at 97 percent. My testimony today will focus on how execution of our Transformation Plan has decreased the backlog and increased quality, resulting in better service to the Veteran community and pushing us closer to the Secretary’s goal of all claims completed in 125 days at 98-percent accuracy in 2015.

 You do have to hand it to USB Hickey. She aptly called it a “benefit claims Transformation Plan. She simply transformed the character and number of the claims. If this keeps up, we’ll have claims done to 150% accuracy before we actually file them. We can do away with the CAVC.   Maybe in 2016, VA will be launching what will be touted as the NSA claim.   A program by VA’s finest IT crews, who brought you the DBQ and the VBMS, will have partnered with the NSA who now is monitoring our social constructs and text messaging/phone calls.  Veterans help sites and other watering holes like this will be carefully perused to accomplish this feat. They will be able to decipher any informal claims we may harbor thoughts of filing. This will automatically provoke the filing of the claim and a denial decision will arrive in the mail a short time later. This has a twofold purpose. An inordinately large number of Veterans are employed by the United States Postal Service so this will protect civil service jobs. Secondly, it will help boost the bottom line at the USPS as well. They’ve been running in the red since about 1919 in case nobody noticed.

I really don’t mind getting lied to. I don’t mind having the wool pulled over my eyes. But when a maladroit magician comes on stage and can’t even find his rabbit in the hat and pulls out a picture of one, I become a little peeved. VA has no plan to produce a 125-day decision with 98% accuracy any more than I have a plan for global warming. I’ll make a prediction. If–a big if–VA could keep the VBMS up and running at something over 3 Mbps, they might be lucky to get a 125 day, 38% accuracy out the door by 2018. That assumes we don’t enter the fray on the ground in Syria with all our new-found Muslim friends there. If that happens, all bets are off.

images (1)Having witnessed not one, not two, but about four or more “complete transformations of how we do business” in the last 8 years, I vote for India. At least they answer the phone when you call. And more appropriately, at least they give out a number to call. Ever tried playing knock on the Castle door at your VARO? I know the prefix code at the Seattle RO now. It’s  253-220-XXXX. Hell, you just start inventing the last four and eventually you hit someone and say “Hey. You don’t sound like Christine Cringle. Who is this?” Idiot’s delight. They just give you the right number.  Pick out a name here.  I swear it’s like playing with kids in adult suits.

Posted in VA BACKLOG, vA news | Tagged , , , , , , , , | 4 Comments

FED. CIR.–DIXON V. SHINSEKI–WE AIN’T OBLIGATED TO HELP YOU

Posted on February 6, 2014 by asknod

downloadEvery once in a while, we get another piece of justice that preserves our sanity and rebuts the idea that we’re pissing into the wind. Veterans law, while touted to be the most lenient, and notably tilted in favor of the Veteran, always seems to have one of those “except when the Vet forgets (fails, neglects etc.) to file a motion in a timely fashion.” clauses. Perhaps we should call it “the Veteran’s clause” as in “Wow. You almost won. You see it? You didn’t manifest the disease to a compensable degree within one year of returning from Vietnam, dude. So that means AO didn’t cause it. Sorry. Thank you for your service, hear?”

Try as we might, we always seem to get fenced out. By all appearances, the rules and regulations are to be construed as to be lenient until a sudden new epiphany arises from the fertile brains of the OGC.  Try as the CAVC and the Fed. Circus might, the VA tortures the wrong meaning of “is” out of it and then pretends to simply be following what it perceived as right and proper. We all know people like this. They take a perverted interpretation and try to make it look mainstream and perfectly plausible to interpretation. They continue the charade until it refuses to fly. This time, the CAVC joined them against us.

In the instant case here, Mr. Donald. A. Dixon has run afoul of time constraints while being under the influence of pro se. Ordinarily, the kid gloves come out and the Donster gets every consideration accorded those who foolishly represent themselves. Don has bent brain issues. He served in the First Gulf War-the one where we politely escorted Saddam’s lost troops back to the border of Iraq from Kuwait. We were polite enough to go along with President Hussein’s  excuse about how GPS devices make lots of errors in that neck of the woods. Don had breathed and eaten a lot of weird chemicals. In addition, they’d hosed the guys with medications to protect against VX nerve gas and a host of others. We’re coming to find out that wasn’t any smarter than spraying AO everywhere in Vietnam. The long and the short of it was Don got horribly sick ten years after he got out with things that you just don’t get until you’re 70. Sarcoidosis of the lungs and transverse myelitis? Not good.

Don filed and lost. No story there. That’s the scenario 85% of the time and especially the first time out. He did appeal it, but with no nexus letter or IMO to link it to service, he went down in flames again at the BVA. Being new at this and suffering the effects of disease and mental defect, he filed his NOA with the Court a few days late. Well, okay. Two months late. I, too, have been so sick I missed filing my Form 9 on time. It  rarely happens but it has been known to happen . VA shows no mercy. Unfortunately, our protectors at the Court take a pretty dim view of this, too. Mr. Henderson went all the way to the Supreme Court for us and came away with a big win on this. Then the arguments began all over again about what sin was permitted to pass muster when you screwed up reading the calendar. That’s when the big takeaway began-or should we call it the “takeback”? Being’s how Indian Giver has become politically incorrect, do we now call it VA’s Native American bargaining technique?

As an aside, let me explain simple justice at the Court level. Court- meaning CAVC. After you lose at both the RO level and the Board of Veteran Appeals, no more evidence can be introduced technically. The VA Secretary loves to think this doesn’t apply to him and gets called on it fairly regularly. If both the Veteran and the Secretary agree to allow a new piece of evidence in mutually, the Court still has the last say but as often as not puts the Kibosh on it. In some instances it is allowed so that a definition or baseline assumption can be established. You can just about count on one hand how many times this has happened. It’s rarer than Extraschedular ratings.

However, when arguing for equitable tolling of your screwup, it follows that you’re going to need a note from Mommy explaining your tardiness or the whole thing falls apart and nobody gets their claim equitably tolled. Mr. Dixon, following suit, explained why he was late and even submitted a cogent note from his treating VA psychiatrist explaining what happened. The Court, in what could only be interpreted as “weird behavior”, denied his tolling motion based on the fact that the shrink had not made the sale that his (Donbo’s) bent brain etc. was “specifically” the reason for the tardy filing. This was a finding of fact that was not called for with a pro se claimant. The Donmeister was no Perry Mason but he was on the right track. In the spirit of equity, they granted the Donster more time to scare up some  good reasons why he should be given a bye.

downloadA few days later, some of the big law dogs jumped in and waved the Pro Bono wand over Mr. Dixon and everyone thought that justice would right itself and prevail.  They got an extension on August 28th, 2012. These new attorneys were the high-price spread and set to work obtaining clarification of the psychiatrist’s nexus letter about what condition Don’s condition was in.  They notified RO Denver on September 5th they’d be needing the C-file and all of a sudden VA sloooowwwweed down to 16 RPM. Sorry, no c-file would be forthcoming. VA flat out refused to do so. Rather than fight tooth and nail and knowing time was of the essence, the rainmakers quickly deployed a paralegal to RO Denver to do a detailed review in-house. VA’s earliest appointment? Why October 1st, senor. The VA minder stood over the poor gal and distracted her as much as possible for the whole viewing. When finished (and frustrated), she selected 30 or 40 documents and asked to have them copied before her departure. No dice. The hearing was four days hence and VA was in full heel-drag mode. The non had now become disconnected from adversarial and the gloves came off. The RO chowderheads refused to copy anything. When asked if they could just make sure to get the copies over to 625 Indiana Ave. NW for the impending extension adjudication four days hence, the RO folks busted out in gales of laughter with “You want it when?” No promises were made nor were any copies copied that day. Or the next. Or the next.

At the same time, Mr. Dixon’s law dogs were busy drawing up a draft with Don’s VA shrink who was simpatico. He polished off a lovely letter and told Don’s attorneys he had to pop out and get VA’s legal beagles to approve his efforts before submittal. Bingo. VA immediately put an end to that and forbid the shrink to do any such thing. Out the window went the IMO. You can hear Tim Allen saying “Arruuu?”

On October 4th, when Mr. Dixon and his shield bearers arrived back to plead at the Court, he got the bitchslap. RO Denver had stiffed him. The OGC had cut him off from his shrink and he was holding an empty bag. The Court did everything but throw a banana peel out in front of him. Using all the wrong legal standards they could erect, they denied his motion for tolling and sent him packing. I’ve been there and it’s an ugly sensation. Your urge is to raise your voice and say “Hey. You can’t do that! I was ill.” But what do you do when the judge and the jury have been bought off? Why, go to the Federal Circus and begin anew.

This is not a nice place. Federal Circuit judges don’t smile a lot. They’re a sour bunch and try to pick apart silly stories-especially ones about the fabled Duty to Assist. This occurred before Judges Dyk, Meyer and Chen.  They probably drink unsweetened lemonade. The CAVC judge who authored this abortion was none other  than the head honcho- Brucey Kasold. He, of all people, should have his little people who read law do this correctly. I could see a novitiate like Coral Wong Pietsch screw it up with less than a year under her robes-but Bruce? No way. There was something else afoot. This reeked of rotten jurisprudence. Kasold had merely done the bobble-head doll imitation and agreed with virtually everything the VA Secretary said and asked for. Somewhere, thirty pieces of silver had traded hands.

As with most cases, the Federal Circuit likes to cut down several fine old growth trees, discuss their authority, confirm they have the right to hear this and pass judgement. They then moved on to the legality of Kasold’s brand of justice. According to them, Bruce needs to go back to law school. When you start throwing roadblocks between Johnny Veteran and access to his records and his doctors, you are waaaay off the reservation. When it is as well documented as it was here, you just know the good judges were going to be more lenient on Dixon. And boy howdy were they ever. This is a reversal. It is not a polite discussion about how Brucey might have come to the wrong conclusion because he got the vapors. It was a DUI/resisting arrest ticket compared to a parking ticket.

Citing to Henderson and Barrett so many times it became supra twenty pages earlier, they demolished both Kasold and the Secretary at every turn. The Secretary went so far as to claim that just because Barrett II held that VA was required to help a Vet on a request for equitable tolling, it said nothing about helping on a Motion for Reconsideration of a request for equitable tolling. Imagine this. It’s a pretty big stretch to squeeze that meaning out of Barrett II. It’s akin to Les Schwab selling and mounting your four tires and then later on saying the warranty doesn’t extend to the front tires because they aren’t mounted on the rear.  

As for refusing to let Don bring the shrink back in to clear the air, that was so egregious it set the Judges’ hair on fire.

We conclude that the Veterans Court erred to the extent that it concluded that Rule 35(e) imposes an absolute prohibition on the submission of clarifying evidence in support of reconsideration of an equitable tolling decision. An attorney from the VA originally informed LeBoeuf that the VA’s Touhy regulations precluded
Kielpikowski from submitting his declaration. Under certain circumstances, the Touhy regulations prevent VA employees from providing expert testimony. 38 C.F.R. § 14.801; see also Parson v. Chet Morrison Contrs., LLC, No. 12-0037, 2013 WL 5961099, at *2 (E.D. La. Nov. 7, 2013). Those regulations, however, are inapplicable where, as here, the VA “is a party” to the proceedings. 38 C.F.R. § 14.801(b)(2)(i).

As I mentioned earlier, it is a given that in order to argue for an equitable tolling issue, it will require the introduction of something (like clear and convincing evidence) to warrant doing so. They don’t just flip a coin like Super Bowl and say “Heads. The VA Secretary has chosen heads so he will make his choice. Mr. Shinseki? What’s your poison? Outright Denial or a Joint Motion for Remand?”

We conclude that the Veterans Court erred to the extent that it concluded that Rule 35(e) imposes an absolute prohibition on the submission of clarifying evidence in support of reconsideration of an equitable tolling decision.

As a final slap in the face, the Fed. Circuit judges gave Mr. Dixon his costs for his attorneys. That’s no small potatoes and expertly conveys the ire of the Court in a not so subtle manner. Kasold should be disbarred or made to wear sackcloth and ashes for a year. I vote for a Scarlet A for Asinine, Abysmal or Anti-Veteran. There’s simply no legal excuse for the CAVC to come down on the wrong side of this. Granted, they’ve been frosted since Henderson took away their right to arbitrarily deny equitable tolling under any circumstances but to cling to each and every subsequent ruling (Barrett I and Barrett II) as being porous as a sieve and open to conjecture is piss poor law. Barrett sealed the portal against this tomfoolery but Kasold still tried to pound in pitons to get a purchase. Thank God someone caught him. This would have disastrous consequences if left as is.

February 4th, 2014 was merely one more case of Vet –1, VA–0. It should never have happened but is indicative of the travails we all endure in this process. So much for nonadversarial conduct and a Veteran friendly environment in which to present our claims. No one can say that Denver (or Kasold) is alone in this kind of behavior. It’s systemic and they got caught doing it. download (1)

Posted in CAVC Knowledge, CAVC ruling, CAVC/COVA Decision, Equitable tolling, Veterans Law | Tagged , , , , , , , , , , , , | 1 Comment

HCV TRANSMISSION VIA SEX

Posted on February 6, 2014 by asknod

downloadFinally, someone put this to rest with a concise study. Yes it is possible. In many cases it was the only known risk factor. The fact that VA lists it as a risk in the Risk Factors Questionnaire is a dead giveaway. Regardless, VA has been known to say it isn’t or that the risk is so statistically insignificant as to be unmeasurable. This study revokes the myth. As Murphy has been quick to point out over the years, if it can’t happen—it will.

Nodster

Posted in HCV Health, HCV Risks (documented), Medical News, Nexus Information, Tips and Tricks | Tagged , , , , , , , , , , , , , , , | 1 Comment

HCV COURSE KNOWLEDGE

Posted on February 3, 2014 by asknod

image_thumb[1]Here’s a great article to keep us to speed on what medical science has uncovered as secondaries to HCV.

Posted in HCV Health, HCV Risks (documented), VA Health Care, VA Medical Mysteries Explained, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , | Leave a comment

WIN OR DIE

Posted on February 3, 2014 by asknod

downloadThe email that prompts this is tempered by the magnificent game I watched yesterday. Having been raised in Seahawks since their inception in 1976, I have been captive of their dismal performances over the years. Nevertheless, I always kept faith with them. Yesterday simply confirmed what we all come to realize about life and our commitment to our morals-never say die. Not even if it takes thirty eight years. Having just put twenty years of the VA process under my belt, I see a strong parallel. Which brings me to the email.

Juanita asks “What is all this about ‘Win or Die’. I keep reading references to it but no how-to to employ it. Is it some kind of inside joke or just a tag line to sell your book?” Valid points that bear an explanation, Juanita. I apologize.

imagesIn honor of you, Juanita, I will name my next book ‘Win Or Die’. Allow me to tell you of the wondrous Win or Die logo and it’s meanings. It was born in the early days of 1978. We held yearly soapbox derby-type competitions in what was known at Pike Place Alley in front of the actual Market before being drunk in public fell out of style. This is in downtown Seattle up towards the north end above Elliot Bay. You may have seen pictures of fishmongers throwing around 25 lb. King Salmon in June.

download (2)ETOH was a prerequisite and the prime lubricant of this festivity. My company’s entry (Midnight Electric and Plumbing Co.  or MEPCO) was an all-black, all-metal child’s type car from the fifties. It was probably a fire engine at one time with the little ladders on the side and the little push pedals down inside with the Geneva gear. Sub-par steering rounded out the product. And sub-par steering was our downfall that year compounded by downing far too much Tanqueray. Tango does, however, mask the pain of lacerations. But wait. There’s more. Amazing for morale and good for sterilizing deep lacerations, too.

Ours still had the bell but was sans ladders. It was also sans the rubber on the right rear tire but did not seem to impair steering. Since the whole thing was 50 yards downhill to the right, it really didn’t appear to be a traction issue– on paper. You’ll notice the metal poles in the picture above.  Newtonian physics refers to them as  immovable objects as we came to find out.

The vehicle was prepped, painted flat black and our welder Roger had beefed it up with some Ben Hur spurs on the sides to impale any competitors who messed with us. And the logo was chosen by the wife of Bubba. She was the artist and worked for some outfit that did commercial art. Being free, she won the contract and we all agreed she was the best. We had no idea how good she was. When we saw the logo we immediately upgraded to a high gloss black over the primer. This was a class act. The logo was assiduously transferred to the hood.  Off with the Bell. Get out the bondo. And this, Juanita, was what Ruth came up with. We had t-shirts made and ended up having to make dozens more for Race Day.

Given a narrow mandate in keeping with liquor, guns, violence, single malt Scotch and victory, she unveiled her masterpiece. It took her two weeks but will be remembered forever.

Win Or Die Logo

Now, in its new iteration as an aid to VA claims, I bring the same intensity to prosecuting them- without the liquor and guns, of course. It’s not some cute catch phrase. It is not a verbal hook. It means, quite simply, that in order to win your claims, you have to be prepared to begin early. You have to be prepared to wait interminable months and years. Your patience and fortitude must surpass that of Job himself. If you are not in this to win, you shouldn’t even throw down. Since an inordinate number of us were stupid and didn’t begin until we were much older and discovered the problem, many of us die in the process of waiting.

Win or Die is a mindset. It is the fabric of desperation. It’s forged in the same oven of commitment you enjoyed in the military. Many who begin early on, accomplish much and have the rest of their lives to enjoy. Many who wait suffer financial hardship and ruin with a good number dying while still waiting. Currently, 53 Veterans a day pass away with unadjudicated claims and appeals. Win or Die is an inducement to take control of your claim yourself. Treat it like an automobile fender bender claim. Joe Idiot hit you from behind and he owes you.

Win or Die is a concept of how to fight your claim. It’s roots are found here and at other places like Hadit.com. A select number of people have been through what you have and can share their experiences. We can contribute law and technique from those who have run the race and won–and lost. Yes. There is knowledge to be gained there as well. We can tell you about exciting new precedent from the CAVC and the Federal Circuit that may affect your technique or aid you better in the pursuit of your claims.

Win or Die is lastly a philosophy of Life. It teaches you to pursue it to the end-up to and including after death. If your claim has merit, your spouse should pick up that banner and march forward. If you make that commitment to your claim(s), you will be surprised with the results. The squeaky wheel gets the grease. The longer your claim has been ping-ponged back and forth, hamster-wheeled to DC and back, and readjudicated, the higher your chances of success. Much higher.

Win or Die reveals the secret of improving your odds the higher you go on appeal. It reveals how to ensure you do not make claim-killing errors. Mostly, it teaches how not to lose. My book left off as I was waiting for the BVA to hear my appeal. I lost when I was confident of a win, but I was prepared for the loss. In fact, I had prepared for it much like hanging a fire extinguisher in the kitchen.  I prevailed due to all the hard work done six years earlier, not at the last moment in desperation.  When not fishing, cut bait. And that, in a nutshell, is Win or Die. With the amount of time required to make this happen, it’s like community service. Every sixteen months there’s a flurry of activity and then morose boredom for another year. Win or Die is related to it’s close cousin ‘Git ‘er done’.

Posted in Food for thought, Tips and Tricks, Veterans Law | Tagged , , , , , , , , , , | Leave a comment

AND EVEN MORE GOOD NEWS

Posted on February 3, 2014 by asknod

image (1)Mark, or Hepsick as he has used as a handle over the years, has had one of the hardest, nastiest examples of a VA HCV claim. Imagine the worst case of circumstances–then multiply it by two 48 week courses of Bug Juice. Both were unsuccessful and Mark says it was like being drug through a knothole backwards. 

 

Mark came to me with a sad VSO tale. His service rep down in the land of the fruits and the nuts (California) had stood him up from 2002-2006. Finally, Mr. Bob Penny forgot to send in Mark’s Form 9 and all the the hard work was lost. Of course, Ol’ Bob hadn’t told Mark about things like nexus letters and the Caluza Triangle of evidence needed. Bob, like all his buddies at the California Dept. Of Vet Affairs, was a mailman-and not even a good one at that.

2013-02-06-145540In November 2006, he began all over. By his first denial in round two, he spotted our old Delphi Board and contacted me about  his problems. Fresh off my own new win for the Hep, I started helping him assemble all the things needed to win with. This becomes increasingly more difficult when you screw it up like Mr. Bad Penny did. Each time requires new and material evidence to reopen. Fortunately Bob managed that part right. Mark finally packaged it up while I was doing my one year stint as an inpatient at the Seattle VAMC. It took a long time but he won. We won. Bob Penny sure didn’t but acted as though he had carried the water. Mark’s saving grace in all this was a lovely picture of him and his buddy showing off their brand new tattoos in the barracks parking lot at Ft. Hood in Texas- in 1977. That was the winning ticket.  An old, washed out Polaroid One-Step photo was all that had stood between him and a 100% rating. Once the BVA judge saw it, Mark’s claim was in the bag.

When Mark reconnected with me in February 2013, I discovered he had followed some more destructive advice from old Bob and filed a DRO review with Oakland over their low ball offer of 20% for his hep. Bob explained as how he was going to get Mark 80%. News flash. There is no 80% rating in DC 7354 but that’s the wonderful help you expect from a VSO. Keeping in mind that Oakland is also over 585 days out on DROs and you can see the makings of backlogus maximus. Ex Lax couldn’t break up this log jam.  On Janauary 2, we opted to call in the the Legal Eagle– Katrina Eagle, to be more succinct. Mark got his Big Brown Envelope several days ago with the 100% P&T. Nothing gives me more pleasure than seeing this Vet win after fighting and being given bogus VSO assistance over and over.

image

The NOD HQ in sunny NW Washington.

Speaking of Big Brown Envelopes…

Posted in HCV Risks (documented), Veterans Law, VSOs | Tagged , , , , , , , , , , , , , , , , | 9 Comments

More good news

Posted on February 3, 2014 by Laura

I want to share the good news that my husband’s disability claim has been largely thank-you-signsuccessful–although he was denied HCV.  We received a decision in under one year and the information found on this website was critical.

Nonetheless, there is much to learn.  For example, I thought that the VA was obligated to order a C & P exam for HCV but apparently, they do not.

My spouse, a former Marine, served in the Republic of Vietnam. He was lucky because he lived to return home–albeit to a hostile social environment–but unlucky because he has many health issues directly connected to his military service.  For decades we tried to discuss a little about his military experiences but it was too emotional.  We just couldn’t revisit that part of his past.  I often felt serious bouts of paralysis when we were preparing paperwork for the VA.  Without the stories shared by ASKNOD members, paralysis might well have won out.  Life will be a little easier for us now because we found the needed support here to act.  To get those statements written and mailed out, something so seemingly simple, were Herculean tasks.

But we will carry on learning and advocating for veterans, past, present and future.

Posted in Guest authors, PTSD, Vietnam Disease Issues | Tagged , , , , , , , , , , , , , , , , , , | 6 Comments

ALPHA SPERM AND CANTALOPE SEEDS

Posted on January 30, 2014 by asknod

2014-01-29 21.10.38In the process of cutting up a cantaloupe the other night, Cupcake came over from stir frying and said “Don’t forget to save the Alpha seeds.” Thinking I’d been lost in space for a lifetime, I immediately  looked at what most men might refer to as a shitpile of seeds more closely. I had a feeling this was going to be a teaching moment. Having been brought up in a civilized family and now being a lot more in charge of the kitchen, I commented that there were so many happy seeds that it was hard to determine just exactly which ones were the desired Alphas. This was insider knowledge. Martha Stewart didn’t even know about this stuff. Apparently, neither did I. This smelled of garden and that is my domain. 

gary-larson-cartoonCupcake immediately pointed out the little one I had hit with the knife that got pushed out when I cut it in half. And yes, it did look like it was  boldly attempting to go where Alpha seeds go in desperation to exit the melon and seek a new home.  Why, I had no idea. She proceeded to explain about the birds and the bees and how the Alpha sperm swims faster and more surely and arrives at the egg first. This is why the human race always improves and each generation is more intelligent than the preceding one. I tried to fit that into the context of the Veterans Administration and decided not to go there that evening.

However, I did pop her balloon and explained about the knife. She allowed as how it was a lot like finding out about Santa Claus being a hoax at 52. Personally, I was flat out relieved. I finally figured out where all those bags of cantaloupe seeds with one or two in each one were coming from. I had been planning to set my game camera up in the kitchen and make sure I wasn’t sleepwalking or going off the reservation at night.

Alpha 6 Actual

Alpha 6 Actual

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