BVA-§3.816(c)(1)–BENDIN’ ATOMS DOWN IN BIKINI

Posted on April 24, 2023 by asknod

Once upon a time down on a peaceful Pacific Island, the US Navy began testing a-bombs. My Vet was there (Johnston Atoll) standing on deck at parade rest (as ordered) in April ’62 to observe and, unbeknowst to him, being used as a human radiation dosimeter along with all his buddies. That title might seem incongruous as applied to a presumptive claim for an AO story but bear with me until we reach its final chapter.

Notice the “dead ” areas adjacent to the hardstands?

Doug was a trooper. He served proudly from ’59 to mid-’62 and then the bug bit him to do the whole 20 years. He came back that same October and pressed on until ’77. By then he’d also seen two tours inside the 12-mile limit off the coast of ‘Nam, too. Back then, if you weren’t boots on the ground, you never got to see the extraordinary effects of Agent Orange and it’s sister flavors. I reckon most of us who were there thought this new herbicide shit was totally awesome. No mosquitoes or spiders for a while. No red biting piss ants. No snakes or those 4 foot-long centipedes. The monkeys disappeared along with the tigers and pretty much everything else alive, come to think of it. Oh yeah. And the vegetation, too. Add a side of liquid sunshine and a couple five 1000 pounder MK 82s and the land around you resembled the moon-devoid of life.

So, along about ’87, Doug noticed he had myelodysplastic syndrome…bad. And then the MI hit (myocardial infarction)-i.e., heart attack. They air-evac’d him to a hospital licketyspit, cut him open like they was gutting a deer and triple-stented him. Doctor Doug had this all figured out. He was convinced it had a lot to do with bending those atoms down in the Marshall Islands in ’62. So much for his medical training. But each and every one of those filings-including hypothyroidism- would just happen to eventually become recognized herbicide presumptives.  If I was a betting man, I’d give even odds that it was just as equally related to the radiation, too.

About 2002, he started getting angina and SOB (shortness of breath). He was skinny as a rail but suddenly was dx’d with the diabetes. Then his left venticular ejection fraction sank to 30%. Then he started getting peripheral neuropathy in the lower extremities. Depression set in and Winky quit working. Doug decided to call in his marker from back in ’59 when he held up his right hand in marriage to the Squids and said ‘I do’. He filed his 526 and averred it was all due to Operation Dominic.

I guess I don’t need to cut a passel of trees down to go into detail on the denial. Suffice it to say that went over like screen doors in submarines. By now, Doug was getting mighty peeked in the gills. His check engine light kept coming on. He was out of gas and reduced to doing much of anything in the way of work except for making these beautiful wooden boxes with the different seals of the five branches of service. They were truly gorgeous and I considered myself lucky to own one.

Fact is, his daughter was one of my Cupcake’s real estate agents. Cupcake kept pestering Janine (not her real name) to get Doug to come see me to file for what was virtually guaranteed Procopio stuff. He told Janine they’d served close enough to ‘Nam to do fire missions from their destroyer. Finally, I went to see him in ’20. His wife had pretty bad COPD after 35 years of Marb reds and he had to do all the house chores. She was weak as a kitten and on oxygen. I mean to tell you he wasn’t much better though.

Foxtrot 6 Actual. Call your smoke over

I got the lowdown on the ship info from him to look it up. In fact, my friends at CCK have created a great website to identify entitlement to Procopio claims here-https://cck-law.com/blog/list-of-blue-water-navy-ships-exposed-to-agent-orange/ . I put it at the top of my blog above in the Widgets section. Sure enough it said he had a shit ton of sailing time inside the line spread over several destroyers so that box was checked. Too bad it took the VA nine months to retrieve those same ships’ logs even though I told them where to look. I swear sometimes it feels like I’m dealing with the shallow end of the dry lake bed of the gene pool for intelligence here.

Finally, in late September of ’20, VA cut the paper but did something I least expected. They did a retrospective Fenderson staged ratings based only on the records we’d been able to recover. No c&p exams- just a chainsaw Fenderson rating that looked like a roller coaster on a graph. 10% from ’02,  30% six months later (’06) and then 60% a year later for the IHD and then back to 30% for 8 years from ’06 to ’15. Then 100% for a year and then back to 60% for three more.  WTF, over? The DM II? Why, 20% and 10% (for just a year) for the PN in the lower extremities. They denied the erectile dysfunction and failed to even mention the bent brain syndrome secondary to the IHD. Finally, after more ups and downs, they granted 100 for the IHD in ’19 when his LVEF sank to 20% and stayed there. From where I stood, it looked like if it wasn’t for bad luck, ol’ Doug wouldn’t have no luck at all in this VA poker game.

I pointed out the obvious. What about 2002? Just because the Dougster didn’t attribute it to herbicides in ’02 didn’t mean it was dead in the water for Nehmer purposes under §3.816(c) now. VA acted like they were ignorant country bumpkins and allowed as they musta overlooked that and were plumb sorry they missed the fact… large as life and twice as natural right there in VBMS. Yeah. Right. But, being exceedingly generous, they had munificently given him 40%…which just happened to keep him out of range of his  DFAS retirement money until 2019, too. Missed it by thaaaaaaat much, Doug. Piss poor luck. What?

But thanks to Under Secretary of VA Allison Hickey and the modern marvel of VBMS, I had spotted that MDD diagnosis earlier and decided to play country bumpkin, too. The doctor had been anally specific and wrote it up as being 50% disabling due solely to his IHD under Part 4 of the VA’s schedule of rating disabilities (the VASRD). The Boys down at the corner RO didn’t like me springing that on them and denied it. It took a bit of arm twisting and an Advancement on the Docket at the BVA to get it SC’d. Effective date? Why shucks, 2021 of course. We made a u turn and quick like a bunny rabbit doubled back to DC to get it retro’d back to 2002. Sure enough, the VLJ agreed a disability secondary to a Nehmer disease was… wait for it… a Nehmer disease too. Of course, this was Dick Tracy 101 but VA was stonewalling the inevitable. Bingo. It was DFAS time.

This put ol’ Doug in the catbird seat and his 40% jumped to 80%. His DFAS avalanche had finally come in. But VA wasn’t having any of my TDIU argument back to 2006. No way, Jose. Try as I might, I couldn’t dynamite them out of that denial. They were digging in. They wouldn’t even entertain a extraschedular review back to Tom Murphy at the Director of comp. and pen. And that’s where matters stood on September 21, 2021 when Doug’s heart  finally went tits up.

I threw in a HLR just for shits and grins but I could tell it was futile.  The HLR booth bitch was as cold as a mackerel and had the denial published in VBMS in a record 28 minutes. So, never having been taught the definition of the term ‘defeat’, I armored up and went to my favorite Nexus letter factory. No, silly. Not Doctor Bash or VA Claims Insiders. We’re talking the Jedi Masters of the IMO- Mednick Associates. As if this story wasn’t incredible enough, these chuckleheads established the EP 040 claim on August 15, ’22 and had it denied by the 29th. Amazing. These DROC folks thought they were Smokin’…. as Jim Carry was prone to say in The Mask.

redact 8.29.2022 redenial of IMO info for 2002

redact 2022 final CS

Apparently, these GS 14s had their marching orders from Day One back in ’20. The  8/29/22 denial was a hoot. Every finding in the IMO was new but not relevant. Every c&p retrospective they’d cranked out said our IMO dog wouldn’t hunt. So, once again, it was off to the BVA in search of a friendly ear… which is what occurred on Thursday, April 20th while I was busy learning my ABCs of VA law in Orlando. VLJ Mike Skaltsounis, after mulling it for several weeks, arrived at the definite conviction that somebody was funnin’ him and it wasn’t me.

He gave us exactly what we asked for and what I knew ol’ Doug was entitled to- TDIU back to March of ’06 and SMC S from ’15.  Shooooooooooooooo, doggies. This appeal was more fun than Nape and CBU 26/49 at 0730 when Captain Charles was just rising and making his tea. Forty minutes later them delayed CBU bombis would begin to light up all over again.  Sorry. I’m not allow to keep my membership in a certain Veterans legal organization if I use contemporary pejoratives synonymous with nasty racist connotations to describe the folks who were shooting at me and trying to kill me every day for two years.

Doug can rest easy now up there in Heaven. I promised him back when I started that even if he augered in, I wouldn’t give down on him until I had this in the bag for the better half. And here we are. Mission accomplished. I guess it’s time to start looking for another client now that Doug’s file is ready for the archives. If I wasn’t a lost soul, I’d think it’s proof of a Higher Being looking out for these folks.

Reminds me of the lyrics in The Last Trip to Tulsa by Neil Young where he sang “They gave me back my house and car and nothing more was said.” Here, they gave Doug’s wife back her life in some small measure after they drove her husband to the grave with stress. This sucks. Which is why I do it. Somebody has to.

redact BVA decision 4.20.2023

redact RD 4.21.2023

redact 2023 final CS

P.S. Here’s to International Women’s Day from our resident LRRP humor supervisor.

Posted in Agent Orange, BvA Decisions, DM II, Independent Medical Opinions, TDIU, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 2 Comments

LEAVIN’ ON A JET PLANE-IT’S CLE TIME

Posted on April 16, 2023 by asknod

CLEs are “continuing legal education” credits we are required to obtain in order to keep our license to torture the VA. As for the song, I sure ain’t planning on walking or paddling to DC or Orlando. That’s for gyrines, groundpounders and squids. No sir. I was born into the Air Force. My dad was a full bird Colonel in Korea when I happened in ’51. I learned how to fly a Cessna 140 sitting in my daddy’s lap when I was ten. None of that rotary wing shit either. 

CLEs are measured in hours so it takes a while to earn them. Three days of it and you’re good to go for another two years but VA law doesn’t cease and desist in those two years so you need to attend more frequently in order to keep your game up. Which is why I go twice a year to keep the brain muscle working. Well, that and to break bread with old, dear friends and my sensei who introduced me to the VA poker game.

As luck would have it, the BVA Gatekeeper over at 425 ‘I’ Street scheduled a hearing for April 19th for one of my troops. I’ve been waiting for this one since April 18th, 2019. Mr. Thomas Williams, in charge of BVA central office hearings, probably had no idea the NOVA conferences were beginning the next day in Orlando. How cool is that? My client gets a free half-trip ticket to DC.  I expect Thomas is going to be seeing me more and more frequently. My greenhouse hearing has finally popped up for June so I’ll be busy racking up my frequent filer miles.

The fall conferences are scheduled for Fort Worth this October. I’m looking forward to that. I don’t know what it is about Texas but I have more Vets from there than anywhere else in the country. I love to finally meet some of them and shake their hand.  On top of it, I’m planning on hunting feral pigs south of there when the conference is over. There’s an outfit with full auto 16s and choppers who’ll give all you Air Cav troops the thrill of your lives again. Too bad they’re not using Hueys. It ain’t cheap and they use mini-choppers that look vaguely like loaches. But for a few thousand more, they’ll set you up with a pig mounted on a pintle and 2,000 rds of 7.62. I hope they figured out the trick with the peach can under the infeed.

My (now) P&T Silver Star Lurp Ed, who drowns me in questionable humor, sent me this link with tons of great statistics and actual valid numbers concerning the Southeast Asia boundary misunderstanding of the sixties.

https://www.uswings.com/about-us-wings/vietnam-war-facts/

According to our government, 2,709,918 Americans served in uniform incountry in Vietnam.  This required actually wiggling your toes in that skanky red clay for 24 hours or more. If you thought Georgia had a lot of red clay, you ain’t seen shit. Imagine a whole peninsula made out of it. In monsoon, you grew 2 inches taller with it always stuck to your boots and you blew out red snot throughout the dry season from all the dust. I’m not sure how they’ll incorporate all the squids into the above number who joined after they added the Blue Water folks after Procopio. Shoot, maybe the 2.7 mil above included them. Seems I always recalled it was 2.3 million all these years. And please, no offense to you folks who only served out there within the 12-mile limit, but it was a slightly more emergent event when Captain Charles dropped in to pay his respects at 0200 when you were snoozing.

 One statistic, with allegedly valid numbers, was the 1990 census answers on how many of us were still alive-1,713,823 souls. I hight one. What’s incongruous are the numbers of Vets (denizens of VFW bars, no doubt) who disremember where they were between 1961 and 1975-nine million, four hundred ninety two thousand, nine hundred and fifty eight of you to be exact. That’s a little more than a rounding  error even if you were to round it off. It gets worse. The 2000 census had even more liars. That Census count ten years later reflected the number of Americans falsely claiming to have served in-country had grown to 13,853,027. Relying on this later number means 80% (4 out of 5) of them (11,143,109) are liars. Whiskey Tango Foxtrot, over?

9,492,958 (1995)

-2,709,918 (1975)

____________

6,783,040 =Veterans actually pulling your leg about serving there (in 1995). If this were true, America would have experienced a decrease in births for the same decades. We talk of Stolen Valor often but this gives it a whole new depth and breadth. Nobody, in their wildest dreams or nightmares, could suffer a year’s schizophrenic delusion or coma and wake up convinced they had endured 365 wakeups. That’s what DD 214s are for. They also show your medals that prove these things. Granted, some of us have to go get a DD 215 to correct the errors but no one can obtain a new one with medals they didn’t earn.

So, now that you know that 6.78 million of your fellow Veterans ((11,143,109 in 2000 and growing) are liars, aren’t you going to feel stupid gladhanding all these guys with black motorcycle vests emblazoned with all manner of patches attesting to their faithful service in places such as Cu Chi or Phan Rang? Wouldn’t you feel more comfortable asking to see their 214s? As President Reagan said, “Trust. But Verify.”  Write down Qui Nhon or Quang Tri and ask them how they pronounce it. It’s a great way to separate the ribbon clerks from the poker players.

What I find interesting-perhaps pathetic- is why a real Veteran who served in Germany or never even left the States would feel the need to embellish his record. Isn’t it enough to just have served? I sure feel that serving in any capacity is one hell of a way of showing your commitment to patriotism regardless of where you did KP or picked up cigarette butts. I’ve represented Veterans who only served 43 days and have the same respect for them as any LRP -or one in a ‘Studies and Observation Group’.

Think about what I’m saying here. According to the government and USAA insurance actuarial tables, there were only 750,000- give or take 10 K- even still alive back in 2008 when I first started investigating the actual number who served.  Given I’ve buried (figuratively) about 25 of my own clients, not including my father, I’d have to surmise that number has shrunk dramatically rather than grown.

 Every year across our fruited plains, they have Veterans Day parades and they trot out some old boy who served in WWII or Korea. Those guys are veritable antiques and most are driving a wheelchair. I even remember a guy in Albany Georgia in 1954 who claimed to be a Confederate War Vet. He’d joined when he was 14. Seems that would have made him 103 at a minimum. Granted, they’re rarer than hen’s teeth. So, by the same token, by now-2023- that 750,000 number must have really decreased.  I’d be surprised if it exceeded half that number today. Agent Orange is a very harsh taskmaster.

 

So, all you real Vietnam Vets-and you know inside who you are- ought to begin asking some hard questions about all this. For those of you who belong to Veterans Service Organizations, I suggest a review of your membership if you really want accurate statistics. Don’t depend on a show of hands. I’ve been seeing some reports of Post Commanders up in New Jersey being outed as not even being in the military whatsoever. The days of taking a fellow’s word about his bona fides is sadly a thing of the past.

I reckon by 2050 or so, there are going to be 16 million who served incountry and boy howdy keep your eyes peeled for the number of troops who single-handedly took out a whole battalion of Al Quaeda Taliban in Iraqistan with only one magazine in their SAW -but the govt. lost their records and they never got their medals. Tall tales are like weeds if you let them fester. The good news is that if this keeps up, they’ll never run short of Vietnam Vets for Veterans Day Parades. Sadly, you’ll never see me in one. I’m not a parade kind of guy. I’m plenty proud just to be an American citizen.

And that’s all I’m going to say about that. See you in Orlando next week.

 

Posted in Food for thought, Stolen Valor, Veterans Law | Tagged , , , , , , , , , , | 4 Comments

HLRs–THE DOUBLE HEADER ( SMC)

Posted on April 8, 2023 by asknod

I wonder how many of you-both litigators and pro se Veterans- have ever had a double header HLR informal conference. You heard me right. I had a HLR on Thursday morning last with DRO Loralie. Forget she was 15 minutes late and accidentally called the Veteran instead of me. She got it straight after I emailed and asked if we were still on. Seems there’s a two-hour difference between Houston and Seattle. Whowouldathunkit? I laid out my case for Aid and Attendance and threw in at the end that the Akles rule (SMC requires no claim) is for application and, if  by chance he was granted a&a under SMC L, then the Secretary would have to equally entertain a claim for SMC T due to his bodacious 100% PTSD/TBI under AB v Brown (Vet seeks highest and best rating and the claim remains in contention until that happens). Loralie listened to my whole spiel, said she’d review all the legal points I raised, the evidence I pointed out and would make a fair and equitable decision. Yeah. Right. The check’s in the mail. We hung up.

The phone rang about an hour later and I promptly entered the VA déjà vu Twilight Zone. Loralie cheerfully identified herself (again) and then tossed the proverbial gender reveal hand grenade. She said she wasn’t trained on TBI and therefore this whole HLR gig had been an exercise in futility. But what she followed with was the illegal proposition as to how we might still salvage it and make the Vet a chicken dinner winner.

 

How many of you have been told/warned or admonished by your VSO that if you keep filing for disabilities after you win a pittance like tinnitus, you run the risk of having your ratings reduced because of your greed? I heard this for the first time from my DAV rep in ’89 after I got 0% for tinnitus and a matching 0% bookend for hearing in my left ear only. I followed the advice to a ‘T’ until 1994 when I began to get sick from Agent Orange shit. If there is any truth to it, I shouldn’t have two 100% schedulars and SMC S.

Lori offered me a Faustian bargain. Take the chance with her as the reviewer on winning the A&A and shut the f–k up about SMC T or…  I could opt to hold a brand new HLR tomorrow with her boss Natalie who was authorized to hear TBI HLRs. However, (pregnant pause) my Vet Donbo stood an incalculable risk inasmuch that he might have his ratings reduced and boy howdy you don’t want to go there now do you Mr. Graham? I thanked Loralie for her generous offer, promptly opted for the latter and eagerly awaited my new RVSR HLR yesterday morning. I wasn’t disappointed.

Sure as the sun rises in St. Pete, Natalie called (on time) and announced she was ready to rock and roll. Don’s case was like coming to a rocks, paper, scissors game with an M16 to me.  Donbo is on the VHA’s PCAFC caregiver  program. His wife has to help him bathe, toilet and prepare meals. She has to supervise his medications and protect him from himself and others. The beauty of it was it was all laid out right there in glorious color in his VAMC medical records. The VHA home visit Nursey nurse actually stated in haec verba he could be left home alone unattended for up to two hours. His anger management coping skills were sub par so he had to stay heavily medicated and he gave up driving years ago due to syncope at 65 mph on I 95. Of course, the VBA’s files said he was homeless in the past and lived in his car so he must be lying about that driving story. So much for dredging up negative evidence, huh?

To me, the picture was one of clear cut entitlement to a&a. In fact, he even had another VAF 21-2680 in the cfile from 2016 that essentially said the same thing verbatim-by the same doctor (his neurologist) who authored the latest one. The rating decision was typical Adobe 2.5 Pro Denialbuilder™ complete with dangling participles. Sorry Charlie. Uluz. No explanation as to how he was supposed to win it as required by law -§3.103(f)(5). Just the TY4YService, chump. What’s worse about this is the new AMA statutes specifically state if you pitch a bitch about getting shortsheeted and seek a higher rating at a HLR review, that VA is prohibited from readjudicating it and coming up with a lower rating. Turns out maybe Loralie speak with forked tongue.

I’d done some extra speshull VBMS dumpster diving and discovered that my boy Donbo had been sent to the Marines’ Brain Trauma Recovery Intervention Program  to- in USMCspeak- “learn compensatory cognitive strategies to help alter his memory and cognitive/coping skills post-blast exposure and teach him sleeping techniques to aid in  improving his chronic insomnia.” Apparently, it was unsuccessful and they decided the Donmeister couldn’t play GI Joe© anymore. They gave him “early retirement”. That flatass effectively ended his 20-and-out employment plan prematurely.

At the very end of the HLR, I pointed out that the Donster had a Combat Action Ribbon and that they didn’t hand those out in Crackerjack® boxes. His MOS was 0331 machinegunner. A CAR (or anything like it-e.g., a Purple Heart) means you can tell the VA what happened to you without supportive STRs. Unless they can come up with clear and convincing evidence that you’re a lying sack of shit, they have to buy your version of what is wrong with you. In the legal world, clear and convincing evidence dang near has to be news and film at eleven proving your version is incredible. It’s a higher legal standard of evidence- higher even than clear and unmistakable evidence needed for a CUE. Shoot. In my book anyone willing to fight (and die) for some sand rancher’s real estate deserves to be believed. It’s a worthy thing to fight for one’s own freedom. It’s a sight finer to fight for another man’s. I didn’t say that myself. I merely quote the brave man who did.

That DonVet needs a&a is unarguable. His entitlement far and away meets the “reasonable minds can agree” test.  It’s more obvious than that skanky, green wart on the nose of the Wicked Witch of the East of Oz fame. They’re saying he’s SMC S and housebound… but he shouldn’t be left alone for more than an hour or two? Are they worried he might order $10,000 dollars worth of Chinese food from Doordash™ on his spouse’s Amazon account or is the concern that he might suck on a lead lollipop?  There’s a big difference between housebound and needing lifesaving supervision. A very big difference.

I pointed out to Natalie the Naysayer that we were merely going through the obligatory gestures of crossing the HLR ‘t’s, ‘b’s and dotting the ‘i’s on our way to the BVA to ensure the Veterans Law Judge could see through this charade.  One thing I’ve learned in SMC bargaining is never beg. Go big or go home. Never ever meet them half way and accept a lesser benefit than that owed. It makes you look like a pussyfooted Snowflake. When you lay your cards out on the table and admit that you really don’t give a hoot how VA rules on this because you’ve been doing SMC for umpteen years and you welcome judicial review, they become horribly insecure. About that time, you begin to discern a note of doubt in their voices and a willingness to concede “that it appears” your guy may be entitled to a bit more than housebound. Natalie’s actual mea culpa was “It appears that previous reviewers might have missed that TBI clinic info.”

I’ll give you a good cite I always whip out during any discussion on whether SMC can be awarded, or, in this case, which disease/injury is responsible for the need. That’s just a smokescreen I encounter on all these denials.

Delineating the difference between PTSD and TBI is unnecessary as the sum of these SC (service connected) comorbidities unequivocally shows the Veteran cannot accomplish the activities of daily living. This is the correct legal standard of review under §3.351(c)(3)- not which SC disability is responsible. See Saunders v. Wilkie, 886 F.3d 1356, 1362–63 (Fed. Cir. 2018) “We have recognized that the word “disability” refers to a “functional impairment, rather than the underlying cause of the impairment.”   

When you spring that one on them, here’s what happens. Busted, dude. Saunders is mentioned in the M 21 so they aren’t strangers to the precedence:

Redact new HLR 20-0999 4.7.23

VA has taken denial to a glorified art form but not so much with SMC. They don’t understand SMC. It’s Greek to them. What’s worse is the M 21 is replete with errors on the subject. Learn how to read through the denial and see the truth and I guarantee you’ll always prevail. Crusaders were fond of screaming at the beginning of their charges against the Heathens ” Onward for King George. God sends the Right!” So far in my VA law travels, I have yet to meet the Veteran who wasn’t entitled to that for which he asked. In fact, most Vets err to the low side to avoid looking greedy. Thank VSOs for that faery tale.

But, because I’ve been hornswoggled once by a Vet with two 214s (with one OTH), I vet the Vet. It might sound discriminatory to some, but I prefer my post-Vietnam Vet clients have a combat medal before I’ll take their POA. Having served in that theatre of war, I’m all too acquainted with the trials and tribulations we endured in Vietnam-and especially Laos. On the other hand, I’ve observed REMFs like my shirttail cousin Senator Linsey Graham who come home from Southwest Asia dripping Silver and Bronze Stars and other medals who never heard a shot fired in anger. That bugs me. It cheapens the meaning of valor.

Anyway, Happy Easter or whichever Happy you celebrate this weekend. God does send the Right. I know. I was Right once-or so I was told. That’s all I have to say about that.

P.S. Late-arriving humor from LRRP Ed 51st Inf Co, F.

Posted in Combat Presumption, Higher Level of Review (HLR), Reductions in rating, TBI, VBMS Tricks | Tagged , , , , , , , , , | 6 Comments

R1–WE’RE GOIN’ UP AROUND THE BEND

Posted on April 2, 2023 by asknod

Great song. My pilot in charge (PIC) had a battery-powered GE tape recorder with the little 3-inch reels and a penchant to play songs while we were taxiing out to take off from Alternate in the mornings. He swore it calmed him down. After takeoff, the roar of that 331 turbo drowned out any hope of hearing the music. CCR was one of PIC Mulholland’s favorite groups along with the Moody Blues. Invariably, he’d crank up Ride My Seesaw or Going Up Around the Bend to 10 as we waited for the crew chief  to pull the chocks and wheel  the fire extinguisher out of the way. Winning my client’s claim for R1 this week made me think of him. They bear a vague resemblance to one another and both were pilots once so the song seems à propos. 

David was one of those Vets who realized he made the wrong choice joining the Navy and opted into the Army as soon as he came home from ‘Nam and finished up his first enlistment. Say what you will about the Bounding Main but it was hard to get laid out there and if you were 19, boy howdy was that uppermost in your mind. Well, it was in my mind and I don’t have to get into my pronouns.  Of course, the primary conundrum to me was, and always will be, why would anyone want to walk or paddle when you could fly wherever they wanted you to fight. And drop shit on the bad guys. In contrast to the Navy, the Air Force and AAm (Air America) always had good scotch and gin. Maybe not single malt but beggars can’t be too picky in a free-fire zone.

Somehow, David must have ingested too much Agent Orange during his tour there because he began to notice a problem forty two years later in 2012… as did the FAA. He couldn’t feel the rudders with his feet and was beginning to notice the tremors, muscle rigidity and “pill roll” effect of Parkinson’s Disease. That effectively put an end to his flying career-or any career- for that matter. I know the depression that can cause. I was bushwhacked back in 2007 when they hosed me with Interferon to kill my Hepatitis C and dang near killed me in the process. I lost my life-long joy of working framing houses. Sitting around in front of the boob tube watching The Price is Right with Drew Carrey doesn’t cut it. David tried to fight VA but we all know what you’re up against if you do it without a determined Sherpa. He was fighting for SMC S and should have been setting his sights far higher.

David came to me in 2020 or 2021 with the same complaint I hear from all my Vets in his predicament. What’s the secret password or handshake to get into the SMC club? I know it can be daunting to those of you who are unschooled in the art. Worse, few, if any, VSO service officers even know what it is-let alone how to win it. I’ve actually had them look me in the eye and tell me I’m lying; that there is no such thing as SMC. That shouldn’t come as any surprise to Veterans. Anything this lucrative is going to be a closely-held secret and VA is not known to be overly loquacious about the subject. Most Rating Decisions I’ve read patiently summarize the requirements (wrongly) and then follow up with the standard “Unfortunately, you don’t qualify for the entitlement but merci beaucoup  for your service.”  Here’s David’s. 612 days later after 30 c&ps.

redact RD 3.06.2023

Several years ago, I filed a FOIA with VA and asked for the numbers of Vets currently entitled to the various levels between L and T, excluding S and K. It took over a year for a response. They even threw in the S and K numbers. You’d think I was asking for a T/S Crypto clearance. I was dumbfounded to discover there were (and presumably still are) extremely few at the R1 and R2/T levels. About 3,800 R1s.  Whether that low number is due to ignorance of the availability of the benefit or an entrenched proclivity to deny automatically is a good question. I do know that the level of knowledge of SMC at the Regional Offices could be hidden behind a Greek fig leaf with room to spare for the plumbing.

The last HLR I had (last week) I asked the gentleman if he was well-versed in SMC R 2 and understood the reason we were here HLRing this thing. He said “Well, no. I’m not red hot on R2 but I’ll figure it out.” I bit my tongue and proceeded with great trepidation to spread the trail of bread crumbs for him to follow. For all you agents and attorneys with VBMS access, I’ll let you in on a trick I use. Prebuild a HLR cheat sheet and locate all the places where the evidence is that supports your client’s case. We all know they separate the legal argument from the actual VA form but a review of the evidence listed in the Rating Decision often shows they never looked at the very evidence you sent them. Cheat sheet example:

redact 996 Arguments

So, I go through and locate the documents or IMOs and note the “receipt date” on the far-left column as the bookmark. Next, I expound on what’s in the document that’s exculpatory. In one case, I had to list 14 different documents scattered from 1976 to 2008 that VA said didn’t exist. After pointing them all out and even sending in the list to help them, I still lost. The chowderhead at St. Pete’s DROC said they couldn’t consider my 4138 listing all the locations of the documents they say don’t exist because it was not included in the evidence before the supplemental AMA decision was made. Welcome to AMA and insanity. Absent their insistence the evidence didn’t exist and a future denial, how was I to know I should submit the c- file Atlas map to the evidence that doesn’t exist? Buy a DeLorean with a 6 gigawatt flux capacitor and go back to November 10th, 2022? That one’s on appeal up to the BVA but it shouldn’t have to be.

When they denied David for loss of use of the upper and lower extremities due to Parkinson’s and recharacterized it as bodacious PN due to Diabetes Mellitus II, I blew an assgasket. I kited off an email to, well, let’s just say I sent it to a lot of folks in high places. Having access to VBMS comes with a rolodex of everyone who works there. All of a sudden, there was barbed wire around the old  3/06/2023 Rating Decision. I’ve never seen upside down yellow triangle emojis with an exclamation point on them. They look like Yield signs. Put your pipper on one of them and up sprouts ” Danger! Danger! Will Robinson. Do not promulgate. Decision is in error.” Totally awesome, guys. I didn’t know you had emojis in VBMS. Where are they? I want to begin using them. This is too cool for school.

redactemail

For the first time in history, I got a call from not one, but two different RVSRs in Quality Control apologizing! Apologizing, I say. Did I mention they apologized?  Jez, that’s more rare than finding petrified unicorn shit in your Breakfast Mac©. Miz RQSR blamed it on an overzealous VSR who thought he had the nod (pun intended) from the Coach to push print on the Adobe PRO 2.5 Denialbuilder™. Now, I can see everything they can in the client notes and I can see the RFD from the Booth Bitch telling him to launch. They must think I recently tied the Mayflower up to my front porch and disembarked late last night.

redact 820

Anyway, here’s a copy of the “new and improved” replacement Rating Decision version of 3/29. I do not, for a minute suggest sending emails like this but emergent situations demand emergent measures to arrest a horrible mistake. To date, I haven’t been able to figure out how this went so far off the tracks unless, well, perhaps I shouldn’t go there and be content that someone fixed it. The idea of fiddling around with a pre-doomed Ex Writ as a hammer to coax them to fix it would take at least another 5 months of wrangling. My client might not have five more months.

redactRD 3.29.2023

In closing, I wish to welcome David to the ranks of the R1s and thank him for allowing me to represent him in his VA odyssey. Outside of being a man of the cloth, I don’t think there could be a more sacred, worthy job than helping Vets win their legal battles. What the hey? This might even get me off the hook with the Big Guy for nuking those elephants “grey jeeps” on Route 7 east of Muong Soui back in August ’70… where, of course  Togetherweneverserved®

And that’s all I’m gonna say about that.

 

Posted in Complaints Department, Humor, R1/R2, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , | 6 Comments

EXPOSED VET RADIO SHOW TONIGHT–3/30/2023@1900 ET

Posted on March 30, 2023 by asknod

Sorry for the delay in getting this up.

This show I’d like to throw in a BVA argument that will be used to illustrate my particular way of laying it out for the Judges.

Everyone has a theory. Everyone has a technique. Some say brevity is the watchword. Some don’t. I try to make it easy for the Judge and his little people for a good reason. If they don’t have to go look all these events/dates up, they can concentrate on the law. So you provide the law in the Legal Landscape. Once that’s done, you tell your story and bring in the history. Where a regulation has been ignored, you indicate using ________ supra meaning “above” in your legal cites. Et Cetera. Listen in. John and Ray I think are hosting.

Redact filed 10182 3.25.2023

https://www.blogtalkradio.com/jbasser/12212027/connect/2e1b1039102d4de7baa436c037d9cd8c134a0748

will take you to the show via computer or

(515) 605-9764

for our less electronically inclined/gifted.

Posted in Exposed Veteran Radio Show | Tagged , , , , , , | Leave a comment

VA AGENTS–AN INTERESTING QUIRK

Posted on March 26, 2023 by asknod

I currently have a few cases I’ve shared with a Jedi Master who’s almost a household word in VA circles. Kenneth Carpenter-aka the Word Butcher of the VA litigation World. Ken can dismember a phrase uttered by a VA examiner in a New York minute and find a wealth of information about what was said, but more importantly, what wasn’t said but acknowledged by VA. You folks have to remember who you’re dealing with. You would have a far higher probability of meeting Bigfoot-and even getting a picture- as you would dealing with a VA employee with a triple-digit IQ. These people are incapable of constructing sentences in their native language. They need a computer to tell them when to use the powder room -and then require three signatures to authorize it. Okay. Maybe I exaggerate but you catch my drift.

For many reasons, I try to avoid the CAVC even though I’m admitted to practice there. Federal rules of law require a special way of presenting the case, filing it and prosecuting it. Deadlines can be sudden and unexpected. You have to drop all your clients’ cases (if you’re a one-man band like me) and focus/search Westlaw/ write, write, write to get it perfect. Even then, you can step on your necktie unless you live and breathe that level of litigation. And boy howdy up at the Court, they don’t cotton to excuses. If your shit stinks, they don’t turn on the fan. They let you baste in it.

With the inception of the AMA, we can, for all intents and purposes do away with the Court for all but the most arcane situations a Veteran (or his surviving spouse) would ever conceivably find themselves in. The Court, now, and especially the Fed. Circus, are going to become more focused on pondering perpetual motion and other paradoxes of VA foibles rarer than unicorns. And that is as it should be. I find it odd they’re adding two more Judges to bring the total to 11. I don’t see the need. How many times do you need to do a panel on a tinnitus claim?

But I digress. The subject today is the optimum utilitarian usage of a VA agent. An agent is a far cry from a Veterans Service Officer. A good Agent is like a Swiss Army Knife. We’re sharp. Or should be. We actually have to know the statutes and regulations versus how to answer a telephone or lick an envelope. We have to be able to sort the evidence and find the smoking gun. We have to be prepared to obtain a nexus IMO for our clients to win if they are too poor to afford one. Well, at least I feel that way. We have to have access to VBMS if we have a realistic chance of winning our clients’ claims or appeals. Most importantly, we have to be able to write it such that a VLJ and his staff attorneys can absorb it and come to the correct conclusion (the Veteran wins). All the laws in the world  won’t help you if you can’t translate the above combo into written English.

A VA Agent is unique. S/he is in that limbo/netherworld between VSO and attorney. In spite of an Agent’s level of training requirements of VA regulations knowledge, we still lack the sheepskin of an attorney. That means we’re still sitting in the back of the bus with the VSOs legally-but VA employees don’t recognize our legal difference from attorneys. What the hey? All my correspondence when they disburse fees or discuss POAs refers to me as “Attorney Graham”. Relax. I don’t get bigheaded when that happens. Besides, I don’t want to be an attorney. You don’t have to look any further than that Trump attorney Michael Whazisbutt who paid off Stormy Daniels the $130 K and ended up in jail for three years. No thanks. So because we’re not attorneys, the Card sharks at your local Fort Fumble  and the BVA Judges are supposed to give us the white glove treatment and pretend we’re legal imbeciles. Right on.

I can argue my heart out at my local Puzzle Palace and write the most awesome briefs in the world and still be given the presumption of stupidity legally. Should I venture up to the 9th Floor at the CAVC to argue, I do not get that presumption. I’m presumed to be competent at what I do. At  the regional level and the BVA, the VA is required to sympathetically read my pleadings as if my client was pro se. They always blow it and look at me like an attorney. I want them to snap like an alligator at me. In fact, this is why I like to do my hearing face-to-face the old Legacy way. Bayonet distance is perfect.

Veterans probably don’t understand that they inhabit a special niche legally. We have our own separate legal system including federal review. Congress and the Supreme Court have gifted us a pro-Veteran canon that puts the thumb on our side of the scales of justice. But, even with that, if you are represented by an attorney, they are held to far higher standards. If they stepped on the pink snake and forgot to argue your bad back in the BVA brief, then they can’t dredge up the subject at the Court. The pro se Vet can though. And if I or another Agent were arguing our client’s case at the Board, s/he has to continue to sympathetically construe our arguments as the  pleadings of a mentally/physically deranged Veteran with no legal acumen. They rarely do.

So where this leads to trouble for the VA is when you get to the Court you can say the BVA Veteran Law Judge held you to a higher legal standard and didn’t put on the white gloves. This is like setting up the perfect horseshoe ambush with Claymores. They sashay in there thinking they shit ice cream and walk on water. You get the Dear John letter and that’s all she wrote. Well, ‘not exactly’ as they say down at the car rental place. The CAVC looks at it in an entirely different light. Lots of weird concepts come into play like due process and a fair fight. Concepts like nonadversarial and Veteran friendly become watchwords.

Veterans justice is always under assault. Mission creep at the VA is a fact. We don’t need any more proof of that. The AMA sure sounded like the cat’s pajamas when the Big Six VSOs trotted it out. Hallelujah. No more waiting. Drive thru Veterans Service Centers. Just like the Dry Cleaners-in by 10 and out by 2. What could go wrong? Well-at the VA, a lot. Maybe they didn’t realize there’s this thing called the Internet and a Vet can figure out how to file a claim faster than s/he can figure out where the nearest Starbuck’s© is. Filing a NOD at the Board just dumped about 3 years worth of work on each Vet up there in DC. You can imagine how happy they were to find out… with no  new employees to carry the water.

So, in order to help more Vets, I spend an inordinate amount of time trying to keep my Vets’ claims out of the BVA and dang sure out of the CAVC. Surely, every one of you on appeal are aware of that Corona horror story.  Take my boy Chris. We filed his 10 182 on 4/19/2019 for a hearing. We’d filed a beautiful IMO from Mednick and they refused to read it at Fort Whacko (349). I’m forced to get the VLJ to do so. I got a call from my favorite BVA waiting room supervisor Thomas a month ago. I have a date with the judge face-to-face in DC on 4/19/2023-four years and a day after filing. This is a good thing. Chris had his first heart attack (IHD) a week before they called.

My advice is to ride the local merry go round (formerly referred to as the hamster wheel) at your local VARO until you hit the wall. Go out and get an addendum to your IMO and re file a supplemental. Let them deny.  You’ll know you’re there when they call you up or email you and ask “What part of ‘no’ is it you don’t get?” Only then should you saddle up for DC and the Board. An addendum is great  evidence to take to the Board. You can show the VLJ you tried to reason with these chuckleheads. A judge will see the steel in your words by the fact that you’re willing to do an addendum. If he denies, you can make a u turn and start over… with another addendum.

I should point out that the log jam at the Board seems to be akin to the beginnings of a spring thaw. I got another notice of a hearing date in New Mexico for mid-June just last week. A  widow woman I’m helping who’s on a&a as terminally ill had her AOD done in record time-four months. It’s with the VLJ now ready for signature.  Harvey down in New Mexico has been waiting since September of 2019. Considering I only have one more awaiting a hearing in San Diego, I’ll let a sigh of relief out that I don’t have to continue answering all the emails asking ‘when do I get mine’.

Now, for those of you who want to read a good yarn on how to hornswoggle the Secretary into forgetting about sympathetic readings and due deference to a pro se Vet, click on this one. Kenny takes out his light saber and makes a total mockery of a couple of Veterans Law Judges who thought they were God’s gift to VA jurisprudence.

https://efiling.uscourts.cavc.gov/docs1/01208715155

https://efiling.uscourts.cavc.gov/docs1/01209270365

Roberto asked me for help in 2014. He is one of my oldest Vets. He was pretty far gone from Hepatitis C and was forced to use the San Juan PR VAMC. We got the win (for 10%) and then the liver cancer hit. I’m zero for three at the BVA based on different theories of CUE and this was the last hoorah. It’s bulletproof law, and fortunately the VBMS scan program captured the evidence in living color before it could hit the shredder room floor but VA isn’t about to fall on their sword back to July 1970 for a 40% CUE.

Winning at the VA or the Court is now more a game of ‘gotcha’; of technique and exploiting  your finesse at law. Pretend you’re a lawyer and they’ll make the mistake of treating you like one. After they do, get a real lawyer and hold their feet to the flame. Broadway ought to write a play on this subject- There’s no Business like Vet Business. So, if you think your claim/appeal is taking forever, think about Roberto waiting for 9 years for his day in Court…or 53 years from his September 1970 filing which we are contesting.

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

 

Posted in VA Agents | Tagged , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW

Posted on March 15, 2023 by asknod

As most of you know, Jerrel is somewhat under the weather since his latest medical misadventure. We’re certainly hoping and praying he recovers from this one and remain positive for the moment that he will. I’m sure he’ll be listening in. Chances are wild horses couldn’t drag him away from the broadcast anyway.

Tomorrow’s show will focus on losing your vision. Oddly, I have two different Vets suffering loss of use of the eyeballs so I had to do a major regulations review to understand it better. As with anything VA, being blind is not necessarily being “VA blind”. You could certainly be so blind as to not be a candidate for even a self-driving Tesla™ but still not qualify for 100% blindness a la VA’s regulations. That figures.

My Vietnam Vet won it at 90% via his Malaria infection in-country that rolled his socks down for a few weeks and left him weaker than a kitten for the rest of his deployment. I had to resort to an extraschedular request  to get SMC though. VA gave him 10% for the residuals for a year after he came home and then promptly reduced it to 0% without so much a c&p. That was pretty much par for the course back in ’70. Shoot. Virtually every old claims file I look at from that era reads the same. 0% for this and 0% for that.   My buddy old Butch, who died back in 2022 was notable for getting a single 10% for his right arm- the one that was numb from the elbow down about 50% of the time. I got him bumped up on a CUE in 2018 to 20% back to 1970 but that was a fluke. They were trying to buy us off and make us go away. VA artificially fenced us all out of anything 30% or higher back then because they’d have to pay for the wifesan and the rugrats.

My other blind Vet Jimbo, who I wrote about recently, was denied repeatedly even though you wouldn’t want this guy on the street behind the wheel. We lucked out because I spotted the c&p from two years ago in VBMS showing he legally qualified as VA blind. For any of you wondering, that’s 5/200 or less bilaterally or concentric contraction of field of view of 5° or less-again bilaterally.

  You’ll find out VA has all manner of different metrics for what they’ll concede as blind. For a single eye, you’d have to be at light perception only to get it. That’s SMC at the K rate. Think about that. If you were 5/200 or less in one eye (or had 5°< field of view), you wouldn’t get the Special K. Shut the front door. Likewise, you wouldn’t get the bump up to SMC N unless you had both eyes removed or didn’t even have light perception.

 I guess I shouldn’t be surprised at VA’s niggardly attempts to lowball us on blindness considering your back could be toast and you’d only get 60% max. Or you couldn’t walk on a leg due to Diabetes peripheral neuropathy  but were only rated at 40% because they didn’t consider it a total loss. They’d probably just give you crutches and tell you to drag it and suck it up.

Can you imagine a non-Vet VA employee with a ambulatory disability? Why, that sucker would be outfitted with everything and a wheelchair-friendly desk to boot. They’d make special accommodations for him/her and probably offer a bonus if they had the right pronouns.

Don’t get me started. I’m in a pissy mood this week since one of my Vietnam Vets got the denial of a lifetime on loss of use. Imagine being told you had to choose between being SC for peripheral neuropathy or Parkinson’s. Sorry, Charlie. Can’t get both because that would be pyramiding. Take your pick. Oh, bummer. You chose PN but you’re only 40% in the right leg and 20% in the left. Missed it by thaaaaaaaaaaaaaaat much, Bubba. Come back before you die and refile. Maybe we’ll take another gander at it and re-lowball you. Or maybe not. Meanwhile, we’ll continue the Parkie shit for the saggy face (10% bilaterally), constipation 20%), incontinence (40%), swallowing issues (10%), aphonia (0%) and balance issues (30%).

I belong to a nationally recognized outfit who specializes in helping Vets but I’ve been admonished not to admit it anymore because it causes them embarrassment when I write articles here about my clients’ adventures in Southeast Asia and some of the names we used to refer to the enemy back then. Apparently their idea of the least offensive term would be “Captain Charles”. Revisionism in history is becoming all the rage. Kinda makes you wonder what Captain Charles’ pronouns were.

The same outfit I mention above suggests we never call the VA Secretary to vocalize our displeasure with what his minions cook up for our clients. Boy howdy is that a hard one to choke down. When your client is dying of a disease, you perform triage. You don’t go into some semantic diatribe and dance around waving the flag trying to get attention. You use every tool at your disposal RFN. The operable pronoun here is YOU. If that includes contacting Denis the Menace and telling him his employees are cheating and denying my boy illegally, then so be it. What’s the purpose of having his email if you have an emergent situation and you don’t make every effort to help?  I lost a lot of friends over there but at least I tried with all my might to save as many as I could. I could do no less now in these circumstances.

I sign my VA emails below my name at the bottom with “We are the “A’ in ICARE”. ICARE stands for Integrity, Commitment, Advocacy, Respect and Excellence. Since VA considers us Agents and Attorneys shirttail VA employees and requires us to toe the line judicially, I think it’s only fair that we all kowtow to that metric. Advocacy to me means kiting an email off to Denis and spilling the beans when VA’s chuckleheads pull this shit. I ran a construction company for 30 years and went back to framing in the ’90s when I discovered all my boys were snorting coke on the job. I fired them. They thought I was a real sore loser and too strict. The last thing I’d want to be responsible for was knowing they were stoned and one to take a header from a 3rd story wall and eat it.

 In war, you sure don’t want your buds all smacked out or jacked up on speed. You want them at the top of their game. I figure old Denis would want to know if his “little people” were engaged in mission creep. This is how Erik Shinseki got into deep shit. Nobody told him his flunkeys were cooking the books. President Obama didn’t let him slide on it and fired his ass licketyspit.

It’s like the Truman thing- the buck stops here. So you bet your sweet ass I emailed him-and the VARO director, the Coach who authorized the stupidity and my change management agent (CMA) who constantly admonishes me to contact her first to pass  along any dissatisfaction I have with how they run their ship. I always get a return email from the Secretary’s gomer saying thanks for letting us know about it. I never get one from the CMA thanking me for bringing it to their attention. The Big Guy always says We’ll get back to you, hear? So if it was forbidden, I’d expect to get a demotion or booted out of VBMS for it. If it’s wrong and it works, then it isn’t wrong.

Back in the war, we had a problem up north on the other side of the fence. In the country that rhymed with Mouse, we were required to call in a TIC  (troops in contact) to Cricket/Hillsboro and request permission to drop ordnance or strafe the bad guys. I was often faced with the proposition of having to wait for 30 to 45 minutes for the Ambassador or his Air Attaché (my boss) for permission to respond appropriately. That was known as the Rules of Engagement- or Romeos in our slang. I dang near ended up in the brig a few times for failure to follow that admonition. Dropping liquid sunshine (nape) was all but forbidden even in an emergent situation. That’s pretty much how I feel about this in the here and now. If all you have on your hardpoints is nape, then nape it is. Clear them in hot and save your folks. It shouldn’t even be up for discussion.

So I hope to discuss some of these subjects tomorrow with John and offer some advice on how to win your VA claims for blindness. Of course we’ll talk about a lot of other things and tell jokes. We always do. The call in number is still

(515) 605-9764

That cute British gal with the accent is still there answering the call, too.

Or, if you are computer savvy, click on this link and join us about 1900 Hrs Easterly time.

https://www.blogtalkradio.com/jbasser/12207616/connect/4fde89affba1b3f0e7fba6eabbad7c16ea602bf3

We’d keep the lights on for you but Brandon just changed us all back to daylight savings time so there’s no need.

Posted in All about Veterans, Exposed Veteran Radio Show, Food for the soul, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

SMC N–I LIKE THAT OLD TIME SMC

Posted on March 10, 2023 by asknod

First off, a prayer for 11 Bravo 20 Eddie who passed last Sunday. I had him in for an upgrade to R2 and he fell prey to the old delay, deny until he died. I’ll be helping his surviving spouse pick up the flag and move forward on a substitution for the accrued and DIC. We offer that to any of you I represent without asking. Eddie married a Swift Boat client’s daughter. Both he and Doug (father-in-law Swifty) served in the ‘Nam at different times and wouldn’t come to know each other for another 20 years. I reckon there’s quite a few of us like that. My dad served from June ’66 to May ’68 at TSN-including the Tet. I didn’t get there until May ’70. The picture is at Doug’s funeral April 26, 2019 over at Tahoma Vet’s Cemetery here in western Washington.

The reason I write this one today is about SMC N. It’s an odd bird. Either you resemble a 50 gallon oil drum with a head and neck sticking out of it and two arms whacked at the elbows or you’re blind/eyeball-less with no light perception at all. Oh yeah. And one leg right at the torso. You get the idea. But, as with anything having to do with SMC, there’s more ways to skin a VA cat than you can shake a stick at. Meet Jim who still has all his fingers and toes.

Jim’s first mistake was to join the Marines in ’69 and run into the Training instructor from Hell. He escaped with his life-just barely. I’ve helped a lot of disabled folks but the blind really tear me up. It’s possibly the most limiting of all disabilities that can happen and the most mentally devastating as well. In Basic, Jim was up about 20+ feet near the top of one of those thick-ass ropes you shinny up when he seized up. We all do at some point in our lives. He just needed about 30 seconds to collect himself before descending. The TI didn’t give him that luxury. He scrambled up the adjacent rope and began screaming, Then he reached over and struck Jim causing him to fall and land hard on his left side-including a whing dinger of a good thump on the left eye and chest. Sgt. TI continued his tirade for a few more minutes before he noticed old Jim wasn’t responding with enough verve. A day or so later everyone realized there was a lot more wrong. They frog marched him over to Balboa and shoved him in the neuro wing. Everyone concurred he was no longer hitting on all eight cylinders. Before you could say boo, he was on his way home.

Jim’s second mistake was not getting a 214 before he waved goodbye a few weeks later. That would consume a lot of time to even prove he was ever there. The Marines weren’t very forthcoming. After all, one of their TIs almost killed him and then they desperately tried to cover the whole thing up by conning him into stating he wasn’t “cut out for this”. What the hey? If they’d just issued the 214  and let him go, I might not be writing this.

Jim was a real scrapper. His c file is over six hundred pdfs strong. He fought the good fight and got his TDIU in ’15 and then a true 100% schedular and finally SMC S in 2018 or so. As with all of us 70-ish warriors, some of our important parts and pieces quit working and there aren’t any replacement parts like at the NAPA® Store. Jim’s left side diaphragm had collapsed over the years from the fall and he was 100% for that alone. His eyes began to give out and he filed for them. VA started telling him he could see just fine but you can’t lie about that. By 2015, his VA psychmeister was noting that he was downright depressed because he couldn’t drive anymore or watch TV unless he sat about 2 feet away from a big screen.

Bingo. All that’s in the VBMS file. There was a lot more. A lot. In 2021, he had a c&p and they noted he couldn’t see much more than light in the SC eye and, because they’re paired organs, when the SC eye goes t— up, and the non-SC one follows suit, it’s ratable too. So they gave him 60%. Boy did that stick out like a sore thumb. Where was the SMC K for it? SM what? Never heard of it.

Jim finally came to me last fall and said these VA scalawags refused to say he was blind. I dug in and did the dumpster dive into the file and found all kinds of goodies. I decided to play along and filed him for an increase on the PTSD and the need for a&a for his now-bilateral “legal blindness”. I didn’t call CUE. Hell, no.  Instead, I affixed my “DUPLICATE IN VBMS” ink stamp and yellow highlighter to all seventeen pages of the 2021 c&p DBQ  declaring light perception OS and 5/200 or less in the better eye (OD).

And lo and behold, today dawned sunny at the Seattle DROC shop. Some poor overworked rater had to put his John Hancock on this and pray they don’t make him do telephone overtime on the Crisis Line during the three-day Memorial Day Weekend. I got everything he’s been fighting for since 2018. That psych note about him not being able to drive and thrive in 2015 is going  to be the effective date for aid and attendance soon. Seems if you’re gonna screw a Vet, you’d be smarter than to leave all the evidence out there to get busted. The inoperative adverb here is ‘smarter’.

redact RD 3.10.2023

Redact CS 3.10.2023

redact SMC calculator.

With the exception of mistyping SMC ‘M’ instead of ‘N’ on the Code Sheet, they got it right. They gave him the 100% for blindness and the bump up to SMC M from L for needing a&a. Then they gave him the second bump up to N for his brand new extra 100% for his PTSD. I’ll have him up to R1 before you can say Rip Van Winkle. You watch and see. He still has a spare 100% for the diaphragm fall injury. Time for some more of that old timey SMC Voodoo.

Posted in All about Veterans, Milestones, SMC, VA Agents, VBMS, VBMS Tricks | Tagged , , , , , , , , , , | 3 Comments

SMC (R)(2)–SOMEWHERE A VILLAGE IS MISSING ITS IDIOT

Posted on March 4, 2023 by asknod

Love that expression. I don’t know if Dr. Phil personally coined it or had one of his staff writers who hit upon it but it dang sure captures the essence of the new VA mindset. Which is “When in doubt, DBQ it”- each of which means the US taxpayers cough up $600 for a c&p plus .415 ¢ per mile for you, Johnny Vet. Of course after that first in-person exam (or two), VA starts asking for ACE (acceptable clinical evidence) exams from folks like Deshonda Rimbreath, FNP -status post 2 years from graduation from the RN University in Grenada. This is who will decide your fate. But that is not the end of the matter which is a phrase I do use frequently in legal briefs.

As some know, I do a lot of SMC R 1, R 2 and T claims for Vets. In fact, between that and §3.156(c) claims, it consumes most of my time. At 72, you really need to bench press your brain a lot to keep the oxygen flowing. Don’t get me wrong. Agent Orange claims are part and parcel of this because so many of us got the bum’s rush in the 66-73 era for our service in Vietnam. I’m still picking up the pieces of that era and righting the wrongs. Sadly, not all can be retro’d all the way back. Worse, most of these Vietnam Vets don’t even know there’s a whole new world after 100%.

Fortunately for some, though, VA was a little bit too loose-lipped in some of their old rating decisions and spilled the beans. From that, you can compare it to what they filed for and sometimes find a glaring mistake even reasonable VA minds can only concede is error. As most know, too, it will invariably result in a mea culpa of no more than a 0% rating until it magically metastasizes into a 100% rating forty years later on the day you filed for it again in 2015.

The secret to getting those 1970 wins for the big $$$ is always the fact that those lazy folks at the VA never bother to go get your records at the very places you identified on those antique 526s. They just kite off the 3101 PIES (Personal Information  Exchange System) requests to NPRC and blithely accept anything handed to them as the whole enchilada – never asking for the more probative records. Often, inpatient hospital records stay at the hospital-sometimes forever-or until requested. But if you patiently keep pointing in the right direction, those aspiring Dick Tracy wannabes will find the §3.156(c) magic paper but then try to slide it in unnoticed. About then you have to take it to the Board. Nobody at the AOJ level is going to grant it. It’s radioactive and you can kiss your VA GS 14 aspirations bye bye if you even volunteer to suggest it seems to resemble a §3.156(c) claim. Move along. Nothing to see here.

But back to the title subject. I have several of these R 2s in the pipeline on any given month and right now I have about four. So, fully well knowing once you are R 1, an advance to R2 can only fall into the narrow purview of §3.352(b). A determination that you are entitled to it hinges on your wife/brother/sister/ Visiting Angel™ or a VA caregiver administering a higher level of aid and attendance care on a daily basis in your home. Remember, in this Chutes and Ladders VA game, if you are institutionalized in a residential care facility, you drop back to SMC O automatically. Ergo, always go for early hospice in-home. But that is not the end of the matter.

In addition to oodles of other little Catch 22s in §3.352(b) which are easy to fix, you have to be “trained” and documented as such to take your charge to the pool or engage in physical therapy. But even easier to comply with is the need to administer injections. Lots of wives have to do this even if it’s just Vitamin B 12. But it could be insulin or even Rheumatoid arthritis heavyweights like  Tocilizumab® spring loaded like the old Morphine Styrets we had back in Vietnam for simplified dosage and administration. Makes no difference what you’re shooting up as long as it’s prescribed and administered by your “caregiver”.

Back in ’10 when I finally escaped the VAMC, Cupcake and her best friend were trained to hook me up to 1000 ml saline IVs daily with my VA-issued pump. They plugged in to my 3 lumen PICC for several months to rehydrate me that summer. I just couldn’t seem to get rehydrated. Eventually, they gave me a 18-inch extension so I could do it myself.

But here is the problem. Our missing village idiot, among perhaps many, is no other than the one in charge of sending out requests for the c&ps. Somewhere, in the cavernous innards of the M21, there must be an instruction that tells him a 2680 must be filled out to determine if you are eligible for R 2. After a couple of these face-to-face exams, said village idiot then determines the contractors haven’t answered the burning question. Does he need a higher level of care? So they send it out for a “clarification”. This is c&p #3 or so. That medical genius opines that yes, you need aid and attendance which still fails to answer the burning question. This can actually go on for years and has to my Parkinson’s Vet. I have one now that I filed 7/25/2021. We’re at the last phase where they’re asking just one more last time if the loss of use of the uppers isn’t due to PN secondary to Diabetes. Who cares? He’s SC for Parkinson’s and Diabetes so it really doesn’t matter unless you’re some mega-anal bean counter…or a VA “examiner”.

David, instead of being awarded loss of use of the uppers and lowers, was granted a&a instead- but for PTSD. I guess they figured we’d piss on the fire and call in the dogs. Fat chance. It did save me several months of work obtaining an a&a to add to a loss of use of uppers or lowers. All I need now is just one LOU of extremities and we have both in the bag. Just now, I counted 30 c&p exams in his VBMS folder-both ACE and in-person so far. David finally got a diagnosis of loss of use of upper and lowers from an October ’22 VA contract exam and that just stirred the hornet’s nest. She had to rewrite it twice and even  after all that they sent it out to a rent-a-doc in Texas for ‘clarification’ that it’s really Parkinson’s and not PN from DM II. She parlayed it into 5 c&ps -one for each extremity and one as a holistic medical opinion. Pretty soon, they’ll be asking how many angels can dance on the head of David’s EMG pin.

The obvious problem is SMC. Nobody knows how to do this anymore, or maybe they never knew how, which is pretty scary and why nobody wins without a Sherpa. If you attempt to explain the what and how and why, they politely shush you and point to the SMC calculator like the Oracle at Delphi. I’ve read their notes on this. It always says “Calculator refused to recognize SMC O and R 1. Coach says to override it and enter it manually.” But that is not the end of the matter either.

I had a “Pre-reduction” hearing on my blind Vet on Wednesday at bayonet distance instead of that hoky palloky videogame version. I like to look my enemy in the eye. I asked her point blank before she cranked on the tape recorder if she had been chosen for this because she was Seattle’s finest on SMC. I got the answer I expected. “Sheesh, no. said Tiffany (who’s younger than my daughter). We just upload the disability and the SMC Calculator does all that for us. They don’t really teach us to do it manually. There’s no need to with the M 21.”

Next thing that happened was she couldn’t get the microphone to work and announced that it looked like we were fixing to have an informal conference with no transcript. I stood up and said we’d be fixing to be back when she got it working and to reschedule. She had IT there in less than 3 minutes and he told her to push the right button (record). Bingo. We were in business. Funny how that works.

This ignorance of even the simplest machinations of SMC explains their asking for 3 a&a exams on 2680s for an R 2 determination and still deny when your VA-trained wife is giving you three injections a day and you don’t even know who the president is. Wait. Maybe that second part’s not such a bad thing…. But seriously. No explanation. Just that old fashioned love song “Here’s what the regulation says you need but we determined you’re not entitled.” It’s devoid of the requirements of §3.103(f)(5,6). File your 996 for an HLR and ask what you need to win and they’re guaranteed to look at you like deer in the headlights. It’s simple. They don’t know what you need but they dang sure know you don’t have it-whatever “it” is. The narrative decision gets pretty sketchy as if this all depends on what the meaning of “it” is.

Thus, the ages-old paradox of why you can’t get to the higher SMCs is finally revealed. SMC is so complicated, it’s easier to just fence it off and have a “Just say No!” mantra like First Lady Nancy Reagan’s old DARE drug campaign of the eighties. Problem solved. DBQ it a few times and deny. Listen rapturously at the HLR and then have Ralph over in DROC Appeals Tag Team “Victory” write it up in Adobe Rate Builder™ and see if they go away.  And here I always thought these folks were just being hardasses when the truth was they’re ignorant. I don’t blame them individually. Would you hate a rattlesnake? They’re only instinct is to strike their enemy. They don’t hate you. Shoot, VA folks are hive people. They don’t even know you so it’s not personal. They’re taught to upload data. The computer determines how to phrase the “What part of ‘no’ is it you don’t understand?”  Your average Joe Blow VA employees must be oblivious to this 88% denial rate. Well, until they get to the higher levels and know better. Then it has to be plain vindictiveness or orders from on high.

A good friend and client, and now an Agent, is applying for R 2. I carefully helped him dig the punji pit and have his wife schooled (and properly documented) in the art of caregiving ahead of time. He already has a running contract with a physical therapy outfit due to his musculoskeletal disabilities so that box is checked. So, what would you expect Joe VA  Intake development service representative to do? Right. Bifurcate all the evidence submitted away from the VAF 21-0526EZ by uploading them as two .pdfs and label the evidence as ‘Third Party Correspondence’. Poof. Gone with the wind. Develop the claim without the supportive evidence. This calls for a DBQ or two.Send that boy out for a 2680 A&A/Housebound. Yeah. We know. He’s already R1 for LOU of lower extremities and a&a so I guess they want to determine if…. ah… he needs…mmm more aid and attendance? Got it. Submit to (choose one) LHI, OPTUM, VES, Loyal. Push print. Send to 499 holding tank and await upload of unneeded 2680. Get attaboy for doing 5 in one day. It’s a well-oiled machine from start to finish and almost guaranteed to generate a completely wrong decision.

So, be untroubled when you’re denied SMC at the higher rates. This is a process that almost demands having access to VBMS so you can shepherd these things through and spot them innocently trying to sabotage the claim. Having real time access to a client’s efile is so critical to winning, I almost can’t imagine how I did without it all those years. This is a poker game and you deserve to see what they’re holding or know someone who does.  I hope I live to to see the day  they grant Vets access to  their claims file. There will much grinding of teeth. Congressfolk will complain mightily that their emails doth runneth over.

P.S. I love this one.   

 

Posted in M-21 info, SMC, Tips and Tricks, VA Agents | Tagged , , , , , , , , , , | 9 Comments

THE ‘WHAT CAME BEFORE THE CUSHMAN PARADOX?’

Posted on February 5, 2023 by asknod

My good friend and fellow VA agent Eric Hughes (author of Vet Chalk) has provided the greater Veterans community with some extremely beneficial ideas to implement-but only if the CAVC and Fed. Circus are amenable to a rules change requiring honesty from all parties at all times. Currently, that moral condition is inexplicably in short supply in some quarters of what we all thought to be a nonadversarial venue.   

Think about that. You or I (Johnny Vet) are required to testify by signing a 4138 stating “I certify that the statements on this form are true and correct to the best of my knowledge and belief.” It’s tantamount to the civilian version of holding up your right hand and swearing to tell the truth, the whole truth and nothing but the truth so help you, God.

In law, Veterans tend to confuse competence and credibility. They often have their credibility called into question which infuriates them no end. Eric merely exposes  the fact that VA and their employees should be held to the same legal standard. Here’s a short explanation:

Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997)

So… what happens when a BVA staff attorney or an OGC CAVC litigator presents evidence that is known to be untrue or slanted? Or uncorroborated? Or the avid pursuit of negative evidence in hopes of winning against you? Or whatever. We’d call that misfeasance. If it was a downright evil deed with purposeful knowledge the evidence was compromised, it would be malfeasance. While I’d like to believe the old VA saw of ‘grant when you can and deny if you must’, reality is far different. Thirty years of seeing the same method to deny is proof enough.

VA will deny a Veteran for years until they see the jig is up. Maybe the JSCRUR guys finally come up with the evidence showing even the cooks were issued 16s with fixed bayonets when they tried to overrun Camp English in ’68. That only validates your stressor. They grant because a shrink today-in 2023- says you have PTSD. But you don’t get your 1970 effective date grant for PTSD/anxiety because you didn’t actually have a diagnosis of PTSD/anxiety in 1970. The psychologist at Cam Ranh Bay said you were shakin’ like a leaf on a tree but his recorded diagnosis in your STRs was ‘rule out anxiety disorder’. Pretty convenient how that ‘rule out’ shit was used to deny you in ’70. Don’t even get me started on the quality of RN c&p exams nowadays.

As officers of the Court, all attorneys, be they VA employees or NOVA attorneys, are bound by a code of ethics. That code  presumes they speak the truth and will not tolerate known contamination of the judicial process by permitting lies to be promulgated into evidence. This is even more critical to Veterans because we enjoy a judicial canon that says our grateful nation should be more accommodating of us due solely to our sacrifices for their country. Cheating in the VA or, more concisely, a biased belief that all Veterans are welfare queens and trailer trash-and thus deserve to lose- should never even be permitted to flourish or be encouraged. That’s where I feel we are now.  Barrett is right on point here:

“The government’s interest in veterans cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive the benefits due to them.” Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed.Cir.2006); see also Jaquay v Principi, 304 F.3d at 1280 (2002) (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”).

How this mates up with the Department of Veterans Affairs’ attorneys’ practice of fabricating evidence out of whole cloth, presenting it as credible proof against a Veteran without said Bozos having to hold up their right hand and saying “I promise not to lie” is the problem. It shouldn’t be. Essentially, in this petition below, Mr. Hughes asks the CAVC to institute some codicil that holds VA’s attorney folk to account when they come to Court and propagate gross mistruths or withhold exculpatory evidence they possess which might help a Veteran win his claim/appeal. Exculpatory evidence, as you can see here, can also take the shape of res judicata records of 248 years worth of Veterans’ law. It would turn Bell v Derwinski jurisprudence on its ear far earlier than  October 31, 1992.

What Eric has uncovered is essentially the extraordinary efforts  the government went to in an effort to wipe the Veterans legal precedence chalkboard clean in the lead up to the 1989 VJRA. The end product of this travesty was that the Court had to spend decades reestablishing these very same precedents all over again. Say all after ‘Veteran Friendly’, over?

I’ve noticed the proclivity of VA raters to “omit” evidence of record I submit which is essential to the claim. The folks up in Cheeseville separate it and  label it “third party correspondence” and it never is considered until I point it out later at the HLR.  They always innocently say “Oh, dear. How did we miss that? Ooops. Duty to assist error.” Five more months in Purgatory. They also have a propensity to go off on a tear in the totally wrong direction quoting the wrong regulation-or worse- purposefully misconstruing the meaning of the correct regulation- and coming up with a convenient denial based on their interpretation of what Congress intended.

An example would be insisting that you have to have a 100% or single TDIU disease/injury before you are entitled to even queue up in line for Aid and Attendance consideration. Not the actual benefit of a&a, mind you, but the right to even apply for it with the reasonable expectation you might a) be entitled to it; and b) be awarded it. Say what you will but the old days of a paper c-file ensured there was no third party anything. It was all there in black and white.

Pity Philip Cushman’s 34-year travails in the judicial desert but thank your lucky stars he had the gumption to fight (and right) his wrong. It exposes the ugly underbelly of the true day-to -day machinations of the VA. They are not above manufacturing imagined conversations about what you said or torturing the facts to support their decisions. Worse, by relying so completely on the M 21 for dictum, they avoid passing the “I promise not to cheat when I deny you” and instead allow a machine (M 21) to deny you in order to cover their asses.

Petition to Adopt Fed R Civ P 11

This petition is an excellent argument to hold us all equally accountable and hopefully the Court can see it for what it is- a basic requirement by all parties-not just the Veteran or his representative- to tell the truth and pursue justice rather than seek to always win. Wouldn’t it be nice if we never had to cite to Bell v. Derwinski ever again? Yick Wo anyone?

Each decision of the Board shall include . . . a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented in the record.” 38 U.S.C. § 7104(d)(1). This statement of reasons or bases serves not only to help a claimant understand what has been decided, but also to ensure that  VA decisionmakers do not exercise “naked and arbitrary power” in deciding entitlement to disability benefits. See Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (Matthews, J.)

I feel richly rewarded for being allowed to litigate for Veterans. But even more, I get immense satisfaction by making sure every Veteran gets justice. Winning is not the object of the game. It’s usually the inevitable product after the successful application of justice. Sadly, in most cases at bar in the Veterans arena, real justice is never attained until you escape the VA reservation. And then we all live happily ever after…except for those who die waiting. Jez, what a totally new concept this might be to Veterans law. Thanks, Eric.

Posted in CAVC Knowledge, Food for thought, Lay testimony, research, vA news, VARO Misfeasance, Veterans Law | Tagged , , , , , , , , , , | 2 Comments