EXPOSED VET RADIO SHOW–AFTER THE DEAR JOHN LETTER

Posted on January 8, 2023 by asknod

Jerrel and John have invited me to their Thursday evening soirée. Cool beans. The subject will be about the aftermath of the denial of your claims. You just got the wave off and the depression has begun to kick in. Been there and done that-only it was 33 years ago in 1989, then another wave of despair in ’94. Ditto 2006 and lastly in 2011 when I lost at the BVA for the second time. Thank goodness for the CAVC and heavy hand of truly independent federal justice. But, with the inception of the new AMA, going up to the Big House at 625 Native Americana Ave. NW in Judiciary Square is not always the best path anymore- or even necessary- for that matter. 

We’ll talk about that new phenomenon and a few other things you padawans need to know to be agile Jedi Knights. VA Light sabers are neatsy keen but if you don’t know how to wield one-let alone build it, it’s dead weight.

So, what happens when they give you the Bum’s rush? Unlike the majority of agents and attorneys out there, I’m lucky enough to have taken the idiot, woke course on VBMS etiquette. This grants us access to just about everything there is to know about our clients. Better yet, we get to read those private notes that raters insert that reveals this is nothing more than an M 21-programmed denial factory.

 

Most Veterans are unaware that, on average, only 12% of live, actionable compensation claims- to be distinguished from dependency claims, DIC claims or VRE stuff- are actually granted on the first outing. VA “tests” you to see how savvy you are and also to see if you’ll just piss on the fire and call in the dogs. You’d be surprised at how many of you explode with the standard “How in the f— could they come up with that shit? This game is Catch 22-rigged. I give up.” That’s exactly what they want and count on. Fully 75% of all claims filed have merit statistically. But if you give up, VA gets to brag by saying their claims accuracy rate is 98% and the hard numbers prove it. Well, they do.

There is much discussion these days about the animosity between VSOs and the attorney/agent faction. VSOs foolishly say “Why pay? We do it for free.” Attorneys and this agent might say ” Yeah. But we win.” As with most disagreements, there’s truth and fiction to be had but a shit ton of truth exists on both sides. What’s true is VSOs do it for free. Anything free usually has some quality control strings attached. If your claim is shit simple, Homer Simpson’s monkey Mojo could win it for you. If you lose, you need to take stock of your position and figure out why. If you appeal and keep losing on- say, Obstructive Sleep Apnea secondary to PTSD- then you need to examine why you’re doing the déjà vu insanity imitation. You know. If you keep doing the same thing over and over expecting a different result, that’s the definition of insanity.

So, don’t lose heart. Everything I’ve ever done in life generally has a set of instructions and also the real-world reality of the necessity to have a Plan B. Like when they disremember the FRAG Order for air support and you have to depend on artillery?  Plan B, in this case, is considering the possibility that you need to read up on why you keep augering in or decide on whether you need to hire somebody a couple notches higher than a VSO to be your Sherpa. Don’t get me wrong. The last thing I need is more business or clients. This is general advice.

Dang near everybody that shows up at my front door has played the VA’s three-card Monte game enough times to recognize something’s amiss. What the hey? What took you so long? Any game in town handing out Backsheesh to all who can type up a 526 and push send is going to have more fine print than you can read with a magnifying glass. It’s also going to look like Black Friday at Best Buy if VA doesn’t show they deny frequently. Don’t be surprised when you hit a dry hole and for goodness sake, don’t take it personally.

If you’re an FNG, you probably ought to do some reading over at the Face Place page called Veterans Claims Assistance Group. Ask some questions. Do your due diligence. Get off your derriere and be a proactive participant. Handing it off to a VSO who has no legal training is a beginner’s option. When it’s late in the 10th inning and you’re down by 6 runs, it’s piss poor technique to start asking what’s next or try to saddle someone else with your dilemma. Procrastination is prohibitively costly in this game.

Worse, until the VA OIG and the Dept. of Justice get off their asses, outfits like VA Claims Insiders and their ilk will continue to hornswoggle naïve Vets into coughing up 50% of their winnings… forever. That’s where hiring an attorney or agent will often be the better option. Now, I’m not saying every one of us (agents/attys) are the sharpest knives in the kitchen drawer.  I just read a horrible decision up at the Court where an agent in DC has an RN or ARNP in his office who will write anything up- like “more likely than less likely due to the Veteran’s alien abduction while on active duty for training”. The jokers work for him. They may have a different telephone number and a different name but it’s all one carnival show under the same tent and when they see your doctor/nexus author just happens to have the same address and suite number, it begins to look a bit sketchy. Just sayin’. By the way, they lost. But then, Shit happens, too.

I won’t mention any other names in the business who write Independent Medical Opinions or promise a win for you. How in Sam Hill can anyone promise guaranteed wins in this game? You can’t. I had a Vet who professed to have clean hands who begged for my help. After I got into his VBMS file, I discovered the second DD 214 awarding the Big Chicken Dinner. I trusted him. In this business, it’s rare to have a mickey claim but it can happen.

Winning isn’t impossible. it’s 99% technique. It’s not the shitty VLJ who screwed you. S/he works from the 38 USC/38 CFR book. It wasn’t a greedy attorney trying to milk you out for 10 years. It wasn’t a lousy VSO with no smarts. It’s the way the system’s built. Heads I win. Tails you lose. You have to carefully examine a defeat. It’s kind of like reading the tea leaves or seeing how the chicken entrails fall out of the abdomen onto the dirt. You gotta read dem bones, Bubba. That or hire someone who can. It’s all there but it’s written in VA gibberish.

I walked the desert of defeat for almost 28 years before I figured it out in ’08. Nowadays, every Tom, Dick and Harry has a book out or a Combat Carl utube™ show that explains it in DIY (do it yourself) language. Some of these former “combat” commentators look like like they couldn’t jump out of bed but that could be said of me, too. Too bad you couldn’t just ask your VSO to watch it and learn from it. But that could also be said for some of us who do this 24/7/365. Just having a guide with a hunting license never guarantees a buck hanging in your garage. I’ve also met some dense attorneys who are convinced they’re God’s gift to Veterans.

I think this show might be a real eye opener for some of you frequent filer/losers. It’s cheap entertainment (free) and I’ll guarantee you’ll learn a few things that will roll your socks down about VA. I was crushed when I discovered VSOs work for VA in about ’06. Crushed. Did I mention I was devastated (just like finding out about Santa Claus and the Tooth Faery thing)?  Didn’t you ever kind of wonder why some of the Big Six (VFW/DAV/AmVets/AmLeg/WWP/VVA) have offices in the VAROs and have the same desks, computers and phones as the VA folks? And  low-grade access to the VBMS? Every VSO has a Congressional Charter extended to them by Uncle Sam. All 146 of them. And every man jack promises to help VA adjudicate your claim so help them God. I shit you not.  Quite the opposite, a VA attorney or Agent is beholden to you-the Vet- not the VA. We have to ask you if it’s okay for us to cave in or stand fast. VSOs don’t. There’s a vast difference. Right off the bat, you ought to realize that’s FUBAR.

With VBMS, I can see why a denial occurs almost instantly in real time. I keep VBMS up on my left screen (out of three) all day while I work like a live tickertape. That’s a week before they sign off on it and another two weeks before you’ll even see the Dear John paper.  I can see the reasoning and logic they employed behind it. I feel sorry that  none of you litigants can get equal access to VBMS so you would have the same advantage I have. But I can and will show you the forensics to enable you to fix these errors when you finally get your hands on them. Better yet, you’ll learn the importance of how to keep your claim alive for years- if necessary- until you can figure out the reason for the denial(s) and the repair order. This preserves your date of entitlement on an original claim and the size of your retro.

I’m not Mensa material but I usually can pick up a RD (rating decision) and what we call the Code sheet, and determine what caused your denial in short order. In virtually every case, Vets get pissed off about the denial and fail to focus on the after-action report. That’s often where you find VA fibbing or misunderstanding their own law. Here’s a common example. You send in evidence and it’s separated from the 526/995 in VBMS when they upload it at the Evidence Intake Center (EIC) P.O. Box 4444 in Cheeseville, Wisconsin. The  actual document submission is dutifully noted as “526 New Claim”. The evidence is immediately separated from the 526 and listed in a separate .pdf as “Third Party Correspondence” in the next VBMS entry. Roughly translated, that means a 3 month delay for an HLR and a new c&p to fix it-but only if you were lucky enough to have VBMS.

Personally, I think that’s on purpose but I’ll never prove it. Regardless, I work around it. I explain it to the Booth Bitch doing the HLR in DickandJanespeak and cite the reg supporting it. I don’t beg. It’s as simple as looking in the “Evidence Section” right after the denial announcement. Nowhere in the four corners of the evidence section will there be any listing for your IMO and the STRs proving your case. Mystery solved. Who woulda thunk it? VA “forgot” to look in your file and “see” it? These are the sharp GS 12 Dick Tracys working claims for VBA. Scary, huh? Makes you seriously wonder what they’re smoking or what kind of drugs VA is putting in the water cooler.

So, with all that said, I hope to solve all the problems of the world come Thursday evening. Because I’m not a parade kind of guy, I’m not going to part the Red Sea again when I come on. Been there. Done that. Boring.  Showtime is 1900 on the East side and 1600 on the Left. The call in telephone number to listen in is

(515) 605-9764

Dial 1 to actually talk to us or ask a question. For the more advanced computer-savvy Vets, go here:

https://www.blogtalkradio.com/jbasser/12185126/connect/100862b34aa01594fa60db9483c31b129670e49a

We hope to see you there. Bring your pronouns if you feel comfortable sharing them. And be warned that there may be some baaaad words used. I spent two years in SEA once and people used mean, ugly, nasty, hateful words. It was worse than having to give up being a prince. I apologize in advance for my/our crude, boorish vocabulary and poor upbringing. John and Jerrel are prone to use expletive deleteds rarely used in polite society so beware.

 

Posted in Exposed Veteran Radio Show, Food for thought, IMOs/IMEs, Independent Medical Opinions, Lawyering Up, Tips and Tricks, VA Agents, VA Attorneys, Veterans Law, VSOs | Tagged , , , , , , , , , , | 3 Comments

THE SANTA CLAUSE- THE MERITS OF DO-IT-YOURSELF LAW

Posted on January 1, 2023 by asknod

I wanted to talk about this one on the Christmas Eve Exposed Vet radio broadcast a week or more ago but was stymied for lack of time. The story, however desperately bears telling for its heapin’ helpin’ of giving at Christmastime and that warm fuzzy feeling you always get when you make someone’s world a bit brighter. In the Veterans’ world, we represent a miniscule 2 percent of the population but our giving is legendary for those in need. Pour yourself some eggnog, fortified or not, and grab a listen to a story ’bout a gal named Pat… 

This blog subject centers around an article I posted way back in March of 2018. It was a sad story about the nasty effects of Camp Lejeune’s contaminated water. If you wish to read it, it’s here: https://asknod.org/2018/03/22/bva-two-american-kids-growing-up-in-the-heartland/

At the beginning of January 2022, I got an email from a gal, Patricia T. who wanted to help her cousin. Yep. Not her husband but her cousin’s husband. That right there impressed the bejesus out of me. I’ve never seen that level of desire to help so strong. Yoda would probably say something like “The claims force is strong in this one. Yessssss.” As I was booked out to eternity, I offered her encouragement and a referral to another VA attorney as a possible solution. I didn’t hear back until the day before the day before Xmas eve. But boy howdy, what a wonderful email to read at this time of the year.  Howard, the Big Guy upstairs, was working overtime through Miz Patricia, I reckon.

Here ‘s what she first sent way back nigh on a year ago:

Hi Sir

Thank you for posting about Jack and Diane. The first time I read their story, it put a smile on my face for several reasons. I grew up in the heartland, I loved the way you told the story and I love that you beat the BVA and how you did it. When I read your post, I had no idea that one day I might be helping someone fight the same battle.

I will cut to the chase because I know you are a busy man.

My cousin’s husband, LT COL Floyd Henry “Hank” W____, Gulf War vet, served 7 years at Camp Lejeune. During that period, he was deployed on two 5 month med cruises, but other than that, he was at CL from 1977-1984, approximately 2465 days. He drank the water there, never ever took lunch from home, always ate at the base, was a total cleanliness freak, so took, at minimum, one shower a day, most likely two, depending on his activity level.  He never smoked, only drank about one beer a month, light appetite for sweets, had no other habits, no hits to the head, nothing.  He did serve about a month in Kuwait during the Liberation of Kuwait and was exposed to the oil well and trash pit fires. He served March 1976-Oct 1987, got out for less than one month (honorable, not sure why he got out, but technically he got out) back in Nov 1987, retired Aug 1996.

He began losing his hearing while stationed at CL and was giving a 50% disability rating while still active duty. Have no idea if hearing loss could be attributed to chemical exposure from the base water, but I’m sure when they SC it, VA would not have voluntarily used that for nexus.

In 2018 he had his first seizure, was MRI’d, brain tumor detected, removed and typed (Duke), Glioblastoma Multiforme IDH Wildtype. Evidently, IDH Wildtype means there is no specific cause found for the cancer to have occurred. He had never had cancer in any other part of his body, it was not metastatic. Never had any of the viruses associated with glioblastomas. He went on a cancer vaccine trial, lasted one year. As soon as the trial was over, within a month, a new area of glioblastoma occurred above the initial surgical site. He immediately became bedridden, lost the use of his right side, ability to speak, then in less than 2 months, he passed away. His father, a WWII Army vet, passed away from brain cancer, but it was metastatic lung cancer and that is stated in black and white on his death certificate, so Hank’s cancer definitely was not hereditary.

My cousin has little to gain from this pursuit other than some satisfaction and a small amount of DIC.  Unless there’s more money available that I think, but the way I read about DIC, a person just about has to be destitute to get any real DIC money and then it’s still not much.  Hank’s life insurance paid off the house and my cousin has around 190K in savings leftover and it, she doesn’t work, has no other income, other than social security, but I think all that together is enough to reduce any DIC payout to a minimum. So the goal here is not money.

We would both like to see Hank’s glioblastoma ruled SC, first of all, because he deserves for it to be acknowledged by the VA and secondly because it might help pave the way for other vets who are suffering with the same issue. We are thinking the more people who have glioblastoma SC to CLCW, the more it might help lead to glioblastoma being added to the list of presumptive illnesses sometime in the future.

Question: Do you think it would be worth pursuing on our own? Do you think we have a chance? I have a good start on the write up. My cousin will be obtaining Hank’s medical records from 3 different providers, but with the current Omicron surge, that’s going to take a month or so. I was thinking we will submit it and most likely be denied, then would need to appeal.  Evidently, initially, the local VA rep submitted the form for DIC and sent in a request for the glioblastoma to be SC solely because of the length of time Hank was stationed at CL. Of course, VA sent a letter stating more documentation is needed, etc. We will be sending them a request for extension due the Omicron Covid surge currently making the records unable to be obtained. They should give her an extension.

How much does it cost for an IMO?  We were going to see if we could get one of the oncologists from Duke, who worked Hank’s case, to write an opinion, but in your post you said it is better if the expert who write the IMO has never met the subject. The people you use sound good, but if it’s super expensive to go that route, I’m not sure we could do it. Any and all suggestions you may have will be majorly appreciated.  Thank you for your time.

Sincerely,

Patricia T

I gave her the briefing on IMOs and lots of ideas. Her own husband was 100% P&T so she wasn’t any stranger to this process- just the Camp Lejeune quirks of law. And here, on December 21, Patricia reported back the best news a feller could ever hope to read.

Hello Mr Graham ☺️

I just received the best Christmas present ever! My cousin’s husband passing from brain cancer due to exposure to CLCW was approved SC by the VA! My cousin just got the word this morning. She called crying and screaming and laughing all at the same time, overjoyed.

You had a big hand in all that HAPPY! Thank you for your post on HADIT and that one line especially “if I can get a vet SC for glioblastoma for CLCW, and it isn’t on the list, then you folks can do it too”. Your words encouraged me to take it on!

Hours of sifting through research studies, writing a 3 page submission, with 214 pages of research attached did the trick. Also included as a separate page between the two was an 8X10 of Hank’s beautiful smiling face in full uniform.

Lt. Col. Floyd Henry “Hank” W___ (Deceased)

So, thank you, thank you, thank you! I just had to let you know. ❤️

I hope you have a very Merry Christmas!

Pat

I promised Patricia I would write an article about this because similar stories have given others reason to hope they can accomplish these miracles too. Helping Vets, or, on a more familial level, helping your relatives who are Vets, must be one of the highest callings of life. I’ve only had the opportunity to help two relatives and both were via marriage-not blood. Shirttail wins work for me. One thing we can take to the bank is that if Hank is looking down right now, he must have the biggest shit-eaten grin a  Heavenly groundpounder can produce.

Congratulations on a job well done, Patricia. Would you give any consideration to the thought of becoming a VA Agent? It sounds like you have more than enough gumption to do what it takes to be one.

P.S. Sent an email to Patricia asking if it would be possible to publish a picture of Hank. Will include if I get one. Every picture tells a story, don’t it? Done. Attached in living color.

Posted in Camp Lejeune poisoning, DIC, Exposed Veteran Radio Show, Food for the soul, IMOs/IMEs, Independent Medical Opinions, Nexus Information, SC For Cause of Death, Veterans Law | Tagged , , , , , , , , , , | 7 Comments

EXPOSED VET RADIO SHOW THURSDAY 22 DECEMBER

Posted on December 20, 2022 by asknod

As many blogs as I have written about VA law and the shortest distance between filing and winning, VA nevertheless constantly reinvents the wheel to make it more complicated or just plain onerous. Considering we inhabit what many have called a nonadversarial venue in which to adjudicate our claims, the process   becomes more of a “gottcha” wiith every improvement. I don’t think I need point any further than the correct choice of VA form upon which to file a claim. None of you will ever get the same answer from VA techies if you ask them. So, let’s do a show with John and Jerrel on how to win in the shortest time possible using tried and true techniques.

At the outset, I’m going to suggest you not read my book I wrote in 2012 as it is somewhat out of date. While it has a lot of valuable advice, the actual nuts and bolts of winning have metamorphosed. In that ten-year interim since publication, the AMA has been passed, VA has instituted new forms they demand you use, and a pandemic has thrown sand in the gears. To add insult to injury, the BVA decided to hire a shit ton of  Juris Doctorates who are paralyzed from the neck up and have nary a clue on how this works. Each one has to be given a crash course by the existing judges. It’s tantamount to sending them back to law school all over again to learn the ABCs of Veterans law. Idiot’s delight. They should have that constipation sorted in time for the 2028 Presidential aspirants to tout their proposed recipe for how they propose to fix it once and for all.

While I focus mostly on SMC law and Vietnam presumptives, I still have to keep my hand in and file brand new claims to keep these gomers off balance. I compare it to throwing one hand grenade after another to make them hunker down and get to work. This way, they’re too busy trying to play catch up and attempting to deal with me instead of inventing ways to reduce my clients.

And boy howdy are we going to discuss that subject Thursday evening. That’s beginning to get waaaaay out of hand in a big way. When they generously hand you a 100% as an excuse to give you a&a (which is not required by law) and begin chipping away at your Parkinson’s and loss of use to fence you out of SMC R 1, it’s time to learn how to combat this. Worse, using §3.344 as a defense for their actions about not having to go through the rigmarole of a formal proposal to reduce is plain hooey. They don’t consider inferred SMC under Akles v Derwinski as a potential reduction because they have studiously avoided awarding it-let alone discussing its application.

I can remember my old DAV rep back in ’92 parsing old wives’ tales about how VA could (and would) reduce you if they perceived you were being too avaricious.  Utter bullshit. VA handed me a 0% for hearing loss and a 0% for tinnitus. I was expected to sit on the Group W (wait) bench for ten years according to Mr. DAV and then we’d meekly approach them for an increase on the tinnitus to 10%-and not a day sooner. Perish the thought of refiling for the L5-S1 lower lumbar disaster area from landing a PC 6 Porter in an “arborous landing environment”. That was a done deal and not for discussion.

Winning your VA claim is becoming more, rather than less, daunting without a Sherpa to walk point for you. Then, when you prevail and get your 0%, you have to begin anew. I’ll show you shortcuts no one even dreamed of. Unlike some in this business, I don’t mind revealing how I pull the VA claims rabbit out of my proverbial top hat. You sure don’t need a professional claim builder who soaks you five times over and above what you won. Shucks, I’ll show you for free. You don’t even have to buy anything from me.

With luck, and assuming the the good Lord’s willing and the creeks don’t rise, I look forward to chatting with you folks on the day before the day before Christmas. Maybe I’ll give you that stocking stuffer you can use to kick ass and take names down at the Puzzle Palace. Grab a cold one or a good single malt with a water back and join us for some politically incorrect discussions on VA law. Mute the microphone if you’re eating potato chips if you’d be so kind.

The contact info for Thursday night @ 1900 Eastern is here via your computer:

https://www.blogtalkradio.com/jbasser/12178804/connect/acac5606af49cf45831bd7ba838925474bbb3cd9

Or if you’re computer challenged, try your phone and call:

(515) 605-9764

On the off chance you wish to ask a question, feel free to do so. Dial a 1 and it’ll  make your phone voice-activated. Hey, we’re in the 21st century now. No more PTT (push to talk), baby. On behalf of myself and the rest of the krewe, we wish you the merriest of Christmases and a prosperous New Year.

asknod (it, we, Veteran)

Posted in All about Veterans, Appeals Modernization Act, Humor, Inferred claims, Nexus Information, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

FORT FUMBLE–HERE COMES SANTA CLAUS

Posted on December 16, 2022 by asknod

One thing I know is that VA higher ups can be cantankerous and throw an a&a decision in underneath the bottom of the inbasket out of spite. Especially if they see my moniker on it. They did it to me once in 2013 and tossed my CAVC decision into limbo. It came out over six months later. The VSC didn’t delay and wrote it up within a week. The retro check? About $400 K going back to 1994. In this case, the actual retro is peanuts. It goes back to Pearl Harbor Day 2021- a mere year. But that’s not why we do this for Vets, is it? It’s the actual a&a rating that is the prize. It’s being victorious over a dysfunctional system infested with idiots. Breaking through that wall of denials and the incorrect legal standards of review is the reward.

Since I didn’t go to law school and incur a horrendous debt, I don’t have to get my pound of flesh out of Vets (or pawn it off on the taxpayers). I still drive a 2001 Ford F 150 with 205 K. I don’t have to take claims up and down the legal ladder and milk them for ten years to cover the kids’ college. Fact is, Cupcake and I are empty nesters except for the dogs and horses. It only costs me sunflower seeds and peanuts to operate my parrot Buddy. So normal ideas on a business plan pretty much fall on deaf ears around here. Win or Die is the mantra. But winning around Christmas is always a hoot. Check it out.

Redact RD a&a 12.16.22

redact CS a&a 12.16.22

I could write about SMC from now to my passing and still have techniques to pass along. This particular decision is a great teaching moment for many. How many of you have applied for a&a and been told you don’t qualify because you lack a single 100% rating or a TDIU as your qualifier? Probably a stadium full at the very least. Read page 4 of this decision several months ago. What are they smoking in Houston? I want some.

BVA R1 Win & cite to a&a redact

Mr. Doe here could not buy or beg a rating out of VA after our BVA win for service connection back in 2020. Seems we were cursed-like we had better odds of being in an airplane crash or overdosing on Fentanyl than getting a total rating. No matter what I filed, VA came back with a 0% or an outright denial. I showed them PubMed peer-reviewed articles (by VA, no less) showing splenomegaly was always present in cirrhosis. Roger that. Denied. Next? Gall Bladder problems? Denied. Next. MDD? 10%. Hepatitis C residuals? 10%. bleeding varices? anemia for 10%. Here’s Cirrhosis for 30%-now get lost.

The ‘O’ prefix stood for Obsolete. Or off the books.

This went back and forth like a badminton birdie at Fort Waco and occasionally back up to the BVA. I finally got a decent gal for a c&p who was honest and bingo-TDIU and a&a. But the teaching moment has to be not to lose hope. I don’t care if the rascals refuse to give you ratings to help get to TDIU. Rules are made to be broken. Some Vets are far more screwed up than the ratings percentages reveal. Some VA raters are inherently unfair and low ball you. That’s when you take the lemons, get some vodka and make screwdrivers out of them.

This victory for Johnny Vet shows you what you can do when your highest rating is 30% because they refuse to be fair. You go around them. Whatever you do, don’t get in line somewhere and wait for 2 years. Severely disabled Vets spoil easily so time is of the essence. You have the right to demand they send your denial for TDIU back to DC to the Director of Compensation and Pension for a do over. We call this Extraschedular consideration.  It’s right there in plain sight under §4.16(b)…

(b) It is the established policy of the Department of Veterans Affairs that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

Yeah. Yeah. Yeah. It says “rating boards should submit” but here we go with the rules argument. It doesn’t specifically say you-Johnny Vet- can’t request a submission. And since the Veterans Administration is such a stand-up, nonadversarial environment in which to adjudicate our ex parte claims, why, it would be a violation of due process of our rights not to kite it off to DC.  Right? And boy howdy if they don’t, it makes for some bodacious legal screaming at the BVA. In fact, the only other body who can grant that special extraschdular after the Director denies it is.. yep- your BVA Veterans Law Judge.

 My Vet here didn’t have what VA wanted to see to grant ratings commensurate with his level of disability. He also had a bunch of typical VA doctors who developed writer’s cramp when it came to Johnny’s condition. If they give you meds to prevent bleeding and raging ammonia headaches, it shouldn’t surprise them if your headaches abate and your stool is no longer jet black. To argue that one and win, use this gaggle of puppies. The legal argument is a chicken dinner winner every time.

Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), the Court held that the veteran is entitled to a rating based upon his unmedicated condition – that is, the higher disability evaluation – if the effects of medication are not explicitly mentioned under the applicable diagnostic code of the rating schedule  condition.

It is well settled that the Court has jurisdiction to review VA’s interpretation and application of its own regulations. See, e.g., Lane v. Principi, 339 F.3d 1331,1339 (Fed. Cir. 2003) (holding that the “Court should review de novo the Board’s interpretation of a regulation”); Bradley v. Principi, 22 Vet.App. 280, 290 (2008). This power includes the ability to review the Board’s interpretation and application of a DC. See, e.g., Otero-Castro v. Principi, 16 Vet. App. 375, 380-82 (2002) (reviewing the Board’s interpretation and application of 38 C.F.R. § 4.104, DCs 7005, 7007 (2001)).

“The Secretary’s interpretations of his rules and regulations will only be given deference as long as they are not inconsistent with the regulation or otherwise plainly erroneous.” Ervin v. Shinseki, 24 Vet.App. 318, 326 (2011); see also Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009). The Court holds that the Board committed legal error by considering the effects of medication on the appellant’s IBS when those effects were not explicitly contemplated by the rating criteria.

What you want to avoid, if at all possible in the new improved AMA, is getting into the wrong VA lane of traffic at rush hour. Rush hour at VA begins every morning at 0001 Hours and ends at 2359 Hours. I’m still suffering a hangover with several of my Vets over this. We just didn’t see the BVA getting a virulent case of constipation. Wasn’t that what the AMA was supposed to be all about? Right now, going to the BVA is like finding yourself on the onramp to the Interstate and nothing’s moving-and hasn’t been for 62 years. The good news? It hasn’t radically affected requests for AOD unless they’re horribly complex and involve a trailer load of contentions.

The hardest thing on AOD, to me, is getting the BVA to “see” it. As the system works now, you send all your correspondence to  BVA Litigation and Support at P.O. Box 27063. Somewhere, little gremlins intercept it en route (or in DC) and transship it up to Cheeseville, Wisconsin where it goes into the VBMS scanner. If they mark it as 3rd Party Correspondence, I assure you Hell will freeze over before someone notices it. Been there. Done that. If it sits there more than 30 days I’m all over the 800 Dial-a-Prayer line like white on rice. If that doesn’t get it, there’s the White House hotline a week later. That always works. I get my Vet to call and pretend I don’t know anything about it and allow as I’ll have a talk with him and tell him never to do that again when they yell at me. Bad Vet. Bad Vet. Down, boy.

So- another one for the bookshelf, folks. But I never close out my Vets’ claims because eventually we’ll all need a higher level of SMC. At asknod, we even assemble a DIC file absolutely free for the future surviving spouse just so they don’t have to fret and get in a bother about all that when the time comes. Can you imagine having to remember all your deceased’s prior marriages and divorces as well as the dates of both … and their locations? Find your marriage license? Helllllllllll no. Of course you shouldn’t have to. That’s just another neat thing about the VBMS. It’s all there from 45 years ago on an old 686. The trick is to grab it before the Vet passes away and you lose access to the file until the surviving spouse is substituted. Tips and tricks folks. Kinda makes you wonder why VA doesn’t provide this kinda like a concierge service, huh?

Merry Christmas to you all. I hope the New Year doesn’t bring any new trials and tribulations… or pestilence. Bon Chance.

P.S. From my good friends over at Duffel Blog.

Posted in 100% ratings, Aid and Attendance, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

BVA-A&A–IT’S BEGINNING TO LOOK A LOT LIKE CHRISTMAS

Posted on December 12, 2022 by asknod

Nothing makes my heart skip a beat like seeing a BVA decision pop up in VBMS. Well, let me rephrase that. Nothing except for that infernal habit of  my heart suddenly deciding it wants to go apeshit at about 288 bpm for 29 seconds… then skip about 3-4 beats… and go back to normal. I think it’s just funning me. It most always slows back down about 29 seconds later-just before the ol’ onboard pacemaker/defib kicks in and gives me that 200-volt, 120-joule, 45 amp jolt. Boy howdy does that roll your socks down. But, skip with joy mon cœur did this AM. One thing I do know is I’m an antisocial, passive aggressive asshole so it figures my heart would follow suit, too. 

But that’s not why I called you here. Waaaay back in August 2019, these folks, let’s call them John and Jane, came to me and sought help getting service connection for his Hepatitis C which had pole-axed him with the residuals. As almost all of my original readership had Hepatitis C from one thing or another (transfusions, dental, jetguns, the clap or tattoos), they are well-acquainted with the plethora of secondary shit that comes with 40-plus years of undetected infection. Just taking the Harvoni 8-week cure won’t resolve the autoimmune disorders, the right upper quadrant pain, the edema and pruritis in the lower extremities, headaches, gastritis, brain fog, bleeding esophageal varices, ascites et cetera ad nauseum. You get to unpack all that for life. Well, everywhere except at VA. There, it’s all related to alien abduction or an overactive imagination. Somatoform symptoms anyone?

Jane came to me because her Veteran John couldn’t perceive he had all these problems. He’d go in to the VAMC for a check up because the check engine light was blinking. By the time he got there he’d plumb forgot why he went. The doctor would ask him how he was doing and he’d flash the international thumbs-up signal. Good to go, bro. The only thing holding him together was a mega- high dose of medications which masked his myriad cirrhosis symptoms. So I made sure Jane began accompanying him to these forays in order to make sure everything got on the record. It finally paid off.

The brain fog, also known as hepatic encephalopathy, is caused by the high amount of ammonia in the bloodstream. The liver can no longer filter it out. It knocks your IQ down into the low fifties. Cognitive deficits accrue and soon you can’t remember important shit like the combination to your gun safe. But you haven’t forgotten how to converse. If Dr. VA dumbshit asks you your last four and your name, no problem. If he asks you who the President is and you pause for a few seconds and say ‘I’m thinking ah…Obama?’, chances are you have brain fog. If you pull up to a stop sign and wait for it to turn green… yep-   brain fog, Bubba. You get the picture? John could present himself as relatively functional and, being a stand up guy, he tried his hardest. He was the diametric opposite of a malingerer.  He sure didn’t want folks thinking he was touched in the head or feeling sorry for him. I wouldn’t either.

I fought the usual fight we all do all the way to the BVA and we won the service connection as expected. When we returned to Fort Whacko, the VA poohbahs inaugurated him into the Zeros for Heroes Program without so much as a c&p. We fought for a while and went back up to the BVA yet again. In spite of the overwhelming evidence, a very anti-Veteran VLJ affirmed the low ball ratings so I took the obvious tack. Begin anew with claims for cirrhosis.

I got the wave off  for the cirrhosis with a 30 percent  and finally had to do a dumpster dive into John’s VistA VAMC records to get to the truth. You didn’t need OCR search mode to find the words ‘decompensated cirrhosis’ about every other paragraph. But the VA doctors lied and kept saying it was “well-controlled”. That’s like saying “John’s condition is terminal but the impending death is well-controlled.” By now his spleen was blown out from the back pressure of the clogged liver. Headaches, and everything you can imagine, to include free fluid in the abdomen, were festering faster than gangrene. Doctors call free fluid in the abdomen ascites but not at VA. Most doctors would call hepatic encephalopathy forgetfulness but  at VA that’s merely old age.  Or here, they call it poor memory due to insomnia (or alien abduction). Or simply a fig newton of your imagination. The Johnmeister was gulping down incredible amounts of propanolol to squelch the bleeding varices which meant he didn’t qualify for 100% for cirrhosis. It was like that at every turn. Johnny, you do not have ascites. You have free fluid in your tummy. There’s a major difference. Ascites is 100%. Free fluid is 0%. Thank you for your Service. Next?

Dining al fresco

Back to the drawing board. I filed him for a major depressive disorder, secondary to his hepatitis C and the VA munchkins turned that into the insomnia caused by too much ammonia. I didn’t know if I was gonna shit or go blind so I filed for TDIU based on an extraschedular need. Wonder of wonders, they finally caved in this summer and granted what was about as obvious as the sun coming up in the morning. Three years to reach this point and now John had progressed to one really hot mess.

FNG- check out the shiny Flak vest.

So, once again, I fired up the claims engines and filed him for aid and attendance.  Jane and John carefully wrote 4138 statements that captured the truth without John’s optimistic rose-colored spectacles on. The VA’s c&p clinician saw the writing on the wall and concurred with what everyone at VA knew but had been camouflaging with their bullshit medical word salads. The Johnmeister had a major case of hepatic encephalopathy and left unattended, he was gonna die from forgetfulness.

I have a great rapport with the folks who advance claims on the docket up at the BVA and finally got this one loaded into the chute three months after I filed it. While many may not think forty days is the speed of light to get a BVA decision via an AOD, most Veterans arrive with a laundry list of appeals. This was one contention-a pure a&a argument. It only required a reading of the law and a review of the evidence to make a thumbs up decision. That’s the new AMA technique-distill your argument down to its very essence. Keep it simple, stupid. Only do direct reviews at the BVA unless you want your spouse to be the beneficiary.

In this case, the utter insanity of the new AMA is on full display. Well, either that or the absolute ignorance of how Special Monthly Compensation works is the problem. How can VA state in haec verba ‘Johnboy, you need the aid and attendance of another. Several doctors and NPs have diagnosed as much. Therefore, based on the law and evidence of record, we are denying your claim for a&a because you don’t qualify. But, because of the new law, we have to let you know the favorable findings of fact preponderate in your favor inasmuch as you do need aid and attendance. So you got that going for you.’

Redact deny a&a

Roundeye Butterbars

So, back to the BVA for the third time-and the charm. This is a first for Veterans in a way. Last week Agent Doug Haynes (of Veterans Claims Assistance Group) asked me if I had an example of a Veteran with less than a total rating being granted a&a. I told him he’d have to wait until this week for one. I suffer PMA (positive mental attitude) so I was convinced John and Jane would win. Et voilà. John was 60% combined with extraschedular TDIU and a&a when we saddled up for the ride to Washington, D.C. Check it out. Here’s the code sheet from June 2022 before I went up to the BVA again for his a&a. I was convinced this misconception of the requirements for SMC was the reason, too. Considering it’s happened about 5 times in the last year, it’s becoming a canned, default response.

Redact Code Sheet going for a&a

Mr. Robert Chisholm of Chisholm, Chisholm and Kilpatrick (CCK) explained his theory of SMC thusly: “SMC is the art of the possible.” Sounds simple enough but you still have to learn the magic handshake and password to get into the higher SMCs. VA tries to hide this from us. When confronted, rather than battle it out at the CAVC, they’re prone to cheiu hoi and grant to keep it under wraps.

So, don’t fall for that faery tale line about needing a 100% rating for an injury or disease in order to apply for SMC L aid and attendance. It hinges strictly on whether you have any deficits with the activities of daily living listed in §3.352(a). Period. Other Veterans Help sites will tell you otherwise. When they call you a liar, tell them to read this.

So, with great pleasure, I welcome John and Jane into the SMC Club. I apologize for the three years and four months of VA’s intransigence, attempts at subterfuge and misfeasance. I wish I’d known that Fort Waco and the VA were going to take this new, perverted view of Hepatitis C and the idea that once it’s cured, you’re healed and there’s nothing further to discuss. Fortunately, I’m like a bad habit. I’m akin to dogshit stuck on the VA’s shoe. The stink doesn’t go away until the problem is solved.

Redact BVA a&a with 60% TDIU

I reckon the chuckleheads at Fort Whacko will send the Johnster out for a c&p just to ensure the VLJ didn’t make a mistake. I wouldn’t put it past them. Merry Christmas John and Jane. You folks earned this present long ago in my book. ‘Better late than never’ isn’t in my lexicon. It’s Win or Die. And that’s all I reckon that needs saying.

Clear Prop. Pull the chocks. Let’s get this puppy airborne.

 

Posted in 100% ratings, Aid and Attendance, BvA HCV decisions, HCV Epidemiology, Jetgun BvA Decisions, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , | 6 Comments

PYRAMIDING PARKINSON’S–PICK YOUR POISON, SONNY

Posted on December 5, 2022 by asknod

Imagine suffering from Diabetes with severe peripheral neuropathy. Now, supersize that with advanced Parkinson’s and a full load out of the symptomatology. You’re not a doctor so you file for loss of use of your upper and lower extremities. Does it really matter which of these disease processes (or both) is/are responsible for the loss of use of all four extremities if you’re service-connected for both? Well, I sure wouldn’t have thought so up to now. VA has, despite my best efforts, tried their damnedest to put a fork in this ol’ boy but this ain’t my first rodeo. Most Veterans, acting pro se, would either give up or seriously contemplate sucking on a lead lollipop. Shoot. I might. 

The only problem with that would be screwing the better half out of her DIC- which isn’t even an option. So you’re caught in this Orwellian Mobius loop of being so disabled with diseases that are rated using the same diagnostic code simply because they are analogous to the “disease process”. I speak of the conundrum of 38 CFR § 4.119 DC 7913 using the same peripheral nerve impairment ratings listed in §4.124a- to wit: usually 8515 (upper) and 8520 (lower) for Parkinson’s Disease under DC 8004.

Just for shits and grins, what do you think VA would do in this predicament? Why, give him SC under DC 8514 for the upper extremities with a 70% bilaterally at first before I began talking loss of use. Suddenly he got better and they tried their new ‘nothing is everything” bait and switch ratings game. They gave him 100 for bent brain but began chipping away at the extremities to make them appear better. They reduced him to a paltry 30% bilaterally and reduced the Parkinson’s balance issue under DC 6204 from 70% to 30%. Then bump up the DM II from 10 to 20%, increase the incontinence and constipation a dime each, and make it look like you’re only moderately screwed up physically and actually getting better. Loss of use? Not hardly.

Lastly, since you’re 40% for diabetic neuropathy under DC 8520 bilaterally, and that might make it look like you’re losing your use of your lower extremities,  they reduce each to 20% because everyone knows PN gets better. In fact, so does Parkinson’s according to these guys. Oh yeah, and to cover their naked asses – they have the balls to invite  a new claim for diabetes increase which they just reduced.

Of course, you’re not any closer to getting to what you filed for-the loss of use of the extremities (either upper or lower) because it would be pyramiding to grant both ratings reflecting the inability to ambulate or button a sweater.  So what’s a Veteran to do? Well, keep going to a c&p until you hit the chicken dinner winner. Actually, this was the last straw. I’d planned to go get an IMO saying Dave was hors de combat based on the medical evidence of record but we decided to cross the T’s and dot the I’s by asking for an HLR for one last stab at it. It looks better when you go up to the BVA and show you at least tried to get them to see reason. This can actually be a moneysaver in some cases. Not all Vets are well-heeled and could be they don’t have a couple spare Grover Cleveland coupons lying around.

What concerned me on this case was the obvious pushback after I  began talking about loss of use. My backup plan on this one after I got the first SMC L-any SMC L- was another a&a for his mental decline.  That fills out two SMC Ls and creates the entitlement to SMC O and thence automatically to R1. Since Parkinson’s is a neurological disease, it is separate and distinct from a mental disease secondary to it. MDD is rated under §4.130 DCs 9201-9440 which is a mental disease. Yep. 31 flavors just like an ice creme parlor. But here again, VA gets the willies and starts calling it pyramiding. Or better yet, they say it’s impossible to separate the neuro stuff from the psychiatric symptomatology. That’s just hogwash and VA’s way of lowballing you.

In the world of VA medicine, they get first shot at deciding whether you actually get to make the jump from DC 8514 up to DC 5109 (loss of use of hands) or, increase from DC 8520 to 5110 (loss of use of feet). Once they deny, you’re free to obtain an IMO saying you have loss of use-but not before. You’ll see this same phenomenon for PTSD or MDD. You cannot just file a claim with your own independent medical opinion (IMO) that you’re bugf*cky in the head. You file and go to a VA c&p where they diagnose you with PTSD or MDD… but then say it has nothing to do with the night the OPFOR (Operational Forces in wokespeak) overran the ammo dump at An Khe and bayoneted your BFF right beside you. Only then after the bitchslap denial can you go get your own magic paper and file your 995 supplemental.

Filing claims at VA is not an art form but filing them in the correct order is. That’s why we call this VA poker. You ante up, VA raises with a denial, you get an IMO and they deny again. You go up to the BVA on appeal and win. You win and it comes back down to the local Fort Fumble where they give you a 0% rating. Then you start all over. Lather, rinse. repeat. Smart Vets will get their IMO doctor to list just exactly how bugf*cky they are from the git go so they don’t have to keep making the pilgrimage back up to Washington DC.

I recognize time is our enemy. I want to get my Vets a win as fast as I can. With the new AMA, it actually is faster to get all these wins down at the local level whenever possible. Save the BVA appeal for the really difficult ones like OSA secondary to PTSD. In Dave’s case, the fact that he is obviously impaired in walking is obvious. And when you have to bend a spoon in a circle and wear it like a ring to keep your peas or corn onboard, then chances are the tremors have created loss of use of the uppers, too.

I filed a CUE claim on this conundrum shit where VA says ‘Sorry. Take your pick. Either you have loss of use of the extremities due solely to Parkinson’s or you have loss of use due to the Diabetes residuals. You can’t have both because that would be pyramiding.’ It may go to the BVA on appeal but I went down for double and also continued to fight the original claim with an HLR review. This way you can have two fishing poles in the water at the same time. If they don’t get that subtle reminder that the chances of you going away empty-handed are about the same as winning the Powerball lotto, then they never will. Most cases I work are for the highest ratings of SMC. Newsflash. I don’t go away. I’m like a bad habit and just keep punching paper at them until they scream ‘Uncle’.

In the new AMA venue, winning often comes down to how earnest you are. I’m discovering that VA personnel are beginning to recognize my name popping up at the DROCs weekly on new HLRs. I know this flies in the face of established advice on how to litigate. If I’d been namby pamby on my own claims and followed my VSO’s advice in ’94, I’d probably still be at 10%. By going on the offensive over and over and inundating them with incessant claims for everything you can imagine, it seems to make them more receptive to trying to grant and getting me out of their inboxes.

I’m beginning to see a clear phenomenon of a grant for a&a but a denial of the bigger R1 or SMC T awards. Kinda like 2nd or third Prize. They know they’ll lose eventually so why not do the knick knack paddy whack- give the Vet a bone. What is this crap of seeing if you can roll him on the big shit. At that point, I  piss on the fire and call in the dogs.

Here’s a classic example. I filed Dave for loss of use of upper and lower. VA denies.  I come back around and file him for every little Parkinson’s secondary you can dream up. They won’t even consider SMC S. They feel we need to have a 100% or TDIU rating in order to grant a&a. So they bump up Dave to 100 just for the mental and give him SMC L for a&a. But they give him the most bodacious haircut for all his Parkinson’s and DM II ratings.  Bam. We go get more ammo from the neurodoc he sees and get a prescription for ankle foot orthotics (AFOs). You know. Those gomer devices you wear like galoshes to keep you feet from dragging when you walk. We double down and refile for increase on constipation and alien abduction causing incontinence. Aphonia. Sagging face muscles. Difficulty swallowing. Ad nauseum.

Then we do the HLR and point out the obvious-Parkinson’s doesn’t get better. Neither does DM II unless you forever cease and desist from dining at Micky D’s and go on a mega-serious diet to get your BMI back down to 26. About this time the hired c&p clinician(s) can’t help but notice some of these VA shenanigans such as when they say you’re cleared in hot for the Boston Marathon with your new AFOs. At some point, the Big Three (LHI,VES,QTC) have to man up and get a case of the morals and acknowledge you are five times worse than Hogan’s Goat.

David will win. I know that. He knows that. No less than 30 Coaches, Asst. Coaches, Senior Quality Control RVSRs, DRO reviewers and a few hundred VSRs continue to work on their carpal tunnel syndrome by asking for clarification opinions, supplemental medical opinions and requests to discern how much of which disease  actually caused this “condition” of loss of use and when did it begin. This claim is more well-traveled than Voyager I. They miss the point. It’s immaterial which one causes it. The consideration is always ‘does he have loss of use?’ There simply is no follow on of “due to his SC diabetes or Parkinson’s” in that question.

This all began in 2013. Here’s what Dave came to me with in 2020. They’d just taken away his SMC S for housebound because he was ‘getting better’.  His pals at DAV sent him up to the BVA on a direct review instead of going on the warpath below for a&a.

dave redact

I cut to the chase and filed him for everything but the kitchen sink and they came back with this one as I’d predicted. I left the DM II subject alone for the moment and developed the Parkinson’s only. I accomplished the first (and most important) task-SMC L for a&a. But note well, the 100% for the MDD creates a separate, distinct pathway to another a&a all by itself. Sometimes you wonder who they have down there driving the VA ratings bus. Somewhere, a village is sorely missing their resident idiot but I’ll be damned if I’m gonna spill the beans. Look at the last page of the ratings code sheet next and see they’re actually luring me into filing for DM II increases. I don’t have to make this shit up. VA does it for me.

dave redact II

Page 6 redact

In the meantime, the HLR came back after I pitched a bitch about Dave redact II above . I know. This sounds complicated but it’s a bit like juggling six balls. As long as you can keep it straight, it’s no more difficult than riding a tricycle. It gets more dicey if you have 80 clients though.

Dave HLR 1

After thirty years of this, I’ve discovered the idea is to drive them to the point where they don’t know whether to shit or go blind. Toward that end, I hit them with a CUE claim for reducing Dave from 70 to 30% bilaterally for his upper extremities. Once they give you the shekels and the rating, they can’t reduce it without as thorough a c&p exam as the one they started with. Yep. VA tried to do the cheapo depot Covid ACE (Acceptable Clinical Evidence) c&p instead of crossing their T’s and dotting the I’s in person. This is world class dum – a higher level than even dumb. It makes me suspect they might not know what they’re doing.

Redact dave MTR filed 6.9.2022

But remember that chicken dinner winner of a ARNP I was praying for above? Bingo. Our ship came in so we won’t have to buy one. Granted, Dave has been going downhill since he filed in 2017 and this is an ongoing project but it’s still the same claim to get entitlement to the things he filed for in 2017. When we get to R1, we’ll sort out that effective date business.

Dave LOU IMO redact

But, noooooooooooooooooo (the way Steve Martin says it). They couldn’t just grant the LOU of the uppers and lowers. As you can see, our VES angel NP has ADHD or atrocious English and apparently left off in midsentence the complete phrase of ‘loss of use’. Thus, VA, being more anally retentive than a frog’s anal sphincter, demanded clarification. Was this to say he’d lost his hands and feet? Which ones? Were they totally toast? What caused it-the diabetes or the paralysis agitans? All these queshuns. Nurse Angel came back with an equally clarified IMO “revision” in spades…

Dave redact IMO 2

So here we are six months later and all of sudden VA is unclear as to what our contention was for the CUE. This feigned (concocted?) ignorance doesn’t pencil out. In order to create this note, the rater would have to have read the legal brief attached to the CUE filing. He plagiarized the sentence right off the first paragraph. That’s the only place where the mention of “Movant” appears. Gotta love that “council”, too. Obviously this ol’ boy missed the Phonics™ email.

Or, looking at the actual VBMS entry, you can see some industrious admin weenie actually listed the contentions of the CUE right there in the subject line when they uploaded it.

I don’t think VA actually reads their own work or this “subsequent development letter” would never have been launched. As it is, I can only reckon they’re trying to buy more time to come up with a viable legal argument to deny it. Gez, the best they could come up with was ‘Movant isn’t his name’? You can tell this VA employee is waaaaay ripe for promotion.

Dave we’re lost in space- tell us what you want

Shoo doggies. You know me. I just couldn’t let this one go by without at least launching one right back telling them they were braindead. But, in VA land we’re all civilized. No name calling. No questioning whether anyone was raised by wolves. We’ve been taught (and instructed) to employ the Hansel and Gretel technique leaving a virtual  electronic trail of bread crumbs. Bless their pointed little heads.

dave development letter redact

And that’s the way it is on December 5th. Over and out.

A P.S. is in order. I did get a win for Dave up to R1 but it took an email to Denis the Menace begging for the application of sanity. Bingo. A few days later the DROC hierarchy in St. Petersburg suddenly had an epiphany and quickly “saw the error of their logic. Dave is R1 and will be advancing to R2 if I have any say in it.

Posted in Aid and Attendance, AO, SMC, Tips and Tricks, VA Agents, VBMS, VBMS Tricks, Veterans Law, Vietnam Disease Issues | Tagged , , , , , , , , , , | 4 Comments

HAPPY THANKSGIVING 2022

Posted on November 24, 2022 by asknod

I hope this missive finds all my friends, clients and their families alive and in better health than some unfortunate folks in the world.  My “family” of Veterans is far more closely knit than most with a job like representation. I get a lot of LRRPS, Dustoff crews and even the occasional SEAL. How cool is that? I get calls from clients at 0500 Hrs who don’t know what time zone I live in. It’s not a problem. Unlike a lot of legal firms who do this, I try to answer every phone call or email.  Shoot. It’s not like there’s some magic, trained chimpanzee named Mojo running around here willing to be my receptionist.  

For Thanksgiving this year, Cupcake informed me we would spatchcock the turkey and throw it on the barbie with Kiawe chips. Which I did. Funny you can go 71 years, be an avid hunter and never hear the term spatchcock.  With the advent of phone cameras, I was easily able to immortalize this technique for all of you. I just knew you’d be mesmerized by the subject. You cut along both sides of the backbone and remove it completely. As a side note, I suggest you make sure it’s completely thawed before attempting the two-handed CPR maneuvre to break the breast bone and flatten it. You can see where you could mess up your wrists if it wasn’t. No. I didn’t. Ours was never frozen.

The finished product was rescued in the nick of time. I do a lot of chicken and cut them in half. A five-pounder is done in 32 minutes (16 X 2). Extrapolating, I went for 24 on each side and came close to turning it into a mummy.  The beauty of spatchcocking, if there is one at all, is everything gets done at the same time or close enough that  you don’t find that questionable pink-colored meat near the orthopedic intersection of the thigh/drumstick (patella?).

From all of us to all of you, I can’t thank you enough for entrusting me with your claims for benefits. I reckon I’d disadvise entrusting me with your turkey, though. For those of you extremely ill, it truly feels like being on a mission from God emotionally. I lose four or five of you a year during the pendency of your claims and appeals. It just revocalizes the immortal, redundant Veterans’ refrain of “Delay. Deny. Until we die.” And boy howdy let me tell you. VA runs your spouse through the ringer for months trying to decide if she truly is the surviving spouse and not some cheesy, ex or a Welfare queen looking to score. I had to do a notarized common law marriage statement once so don’t laugh.  Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and the District of Columbia all still allow it.

I must say that some of you fellers are prolific husbands and manage to become ‘Henry the VIIIs” like the old song. I count two marriages personally, including the current one, but I’ve had a few folks where I had to add an extra page to the 534EZ to list them all.  No offense, but that’s an incredible amount of ball and chain. Just saying.

Speaking of turkey, if I remember back about 52 years, I can almost recall the absolute worst tasting product to ever come out of a c-rats can. Spam ran a far second to this stuff. My sister had sent me a few of those small Tabasco™ bottles which were worth their weight in gold to tame meat… or camouflage the taste. It really compliments well-aged water buffalo. Don’t leave home without it.

Enjoy this day and this season. This is one of those Carpe Diem days. And if you are attending a Thanksgiving NFL football game today, please rise and put your hand over your heart when the National Anthem is played.  There’s a Black Granite wall in DC with 59,494 excellent reasons why you should. There’s 400,000 more across the Potomac in ANC. God Bless America.

Section 12 of Arlington National Cemetery, Arlington, Virginia, Oct. 29, 2018. (U.S. Army photo by Elizabeth Fraser / Arlington National Cemetery / released)

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

 

Posted in All about Veterans, Food for the soul, Thanksgiving and war, VA Agents | Tagged , , , , , , , , , , | 3 Comments

THE (CONTINUING) UNABRIDGED HISTORY OF THE VA

Posted on November 19, 2022 by asknod

I received a new package of “Chalk talk” blogs from Eric Hughes several days ago. I apologize for taking so long to put them up. The fact is my email has been recently bombarded incessantly with all the news about another Veterans’ help site going down the tubes. I asked a computer whizbang Veteran what was up with their problems staying afloat. The answer absolutely floored me. Turns out the monthly cost was only $167/month ($2004/year) so that couldn’t be the problem with so much extraneous income from advertising and donations. T shirts and coffee mugs don’t help you get a nexus letter. The reason the SEO ranking was sinking was simple. The site didn’t offer anything concrete or meaningful anymore to help solve a claims problem. It merely regurgitated links to VA attorneys and Yourtube™ videos which apparently failed to hit the nail on the head as a viable solution. 

As a comparison, my computer geek pointed me to a fairly new Faceplace™ site  I know well with 52,600+ members (and growing daily) which requires no dues, no donations and has no advertisements. It probably costs $0 dollars to operate and gives out clear, concise advice/information by actual VA attorneys and agents like myself… for free. I joined it several months ago after being extended an invitation. It might seem crazy but they do it without even having to resort to hawking coffee mugs and t shirts either.

https://www.facebook.com/groups/VeteransClaimsAssistanceGroup

As an apples to apples comparison, the older site closing down has 23,588 members and has been in existence for over 25 years. So how does this pencil out? Veterans Claims Assistance Group (VCAG) is the proverbial new kid on the block but now seems to be the go-to site to get a useful answer to a specific question without a word salad from ten self-appointed “experts”. And boy howdy you should see their SEO rankings. Oddly, I’ve been approached over the last 14 years by many outfits promising to ‘fix’ my SEO problems and get me to the head of the class for a small sum. I never took them up on it. Google asknod and I come up so who cares? I don’t sell anything and I don’t allow advertising. I  don’t write these articles to win friends or influence people. I speak truth which irritates some.  Seems to me it’s harder to hide on the internet than to not get found.

I completely understand the frustration that ensues when you ask a simple question and get ten answers-none of which are congruent with one another. It creates confusion and uncertainty. That doesn’t seem to be the problem at VCAG. You get one answer and everyone concurs -assuming arguendo the advice is correct. No one looks down their nose and says ‘Go search the posts-we’ve already answered that one.’

Helping Veterans comes with a heapin’ helpin’ of  a basic requirement of requisite knowledge of the subject based on a broad spectrum of personal experience. You can’t give helpful legal advice to another if the only experience you’ve had is your one claim/appeal  in the subject area they seek. Each claim is unique as to circumstances, injury(ies), the era in which you served, the theatre in which you served et cetera. I find it amusing someone would give you the low down and follow it up with a disclaimer of   “BTY, I’m not an expert in this and have no legal training so don’t blame me if it backfires on you.” WTF, over?

Worse, in this industry of self help, offering authoritative-sounding advice can more often than not harm the Veterans’ chances of prevailing if your grasp of VA law is slim or came off the back of a cereal box. That, in itself, to me is the reason for the death knell of the site I mention. Having a negative SEO is far different from having a dark, or black SEO attack. Ask yourself- who in God’s name would attack a Veterans help site? What could they possibly gain from it monetarily? More readership and potentially more advertising dollars by diverting them to your site? Higher Google rankings? We’re talking Veterans here. As a class of Americans, Vets are not exactly well-heeled. That’s precisely why they seek VA compensation for their ailments. Destroying a Vets claims help site would be about as lucrative as selling refrigerators to Eskimos. The trade in free ideas can’t be monetized.

A good example of a nasty negative SEO attack happened to my good friend and fellow VA agent Bethanie Spangenberg- the owner of Valor4Vet.com. She’s an ARNP and has a good IMO practice but doesn’t do claims even though she’s accredited. One day she woke up to the sounds of silence. Crickets. Everyone coming to Valor4Vet was being diverted to VAClaimsInsider.com. Ol’  Brian Reese had baldly hijacked her site traffic. My computer geek guru doesn’t see that phenomenon happening at the site I’m discussing. Their lack of traffic is entirely self-inflicted. Knowledge, in 2022, is the currency of trade. Everyone wants to know how to play VA poker. Oddly enough, VA agents have impressive win/loss rates in spite of the fact they never went to law school. Experiencia docet.

Back in the stone ages (about 2010), I found, or was pointed, to a site called Yuku or VBN. Regardless the name, they professed to be the dernier cri in Vet advice. Well, ‘not exactly’ as they say over at the rental car agency. Turns out they had a former VA DRO type who offered advice which was highly regarded. He had a problem with telling the truth.  They also had a lifer medic whose advice on Hep C claims was “Don’t waste VA’s time. You probably got it from shooting up. And besides, if it isn’t in your STRs, you’ll never win.” This from a 20-year medical/claims guru. I explained that you could never hope to find a left front quarter panel for a ’68 Mustang in a junk yard in 1955. They hadn’t “invented” Hep C until 1989- and didn’t have a viable test for it until 1992 so it wasn’t going to be in 1968 STRs. Yep. I got 86’d for being obstreperous and disturbing the inpatients. My bad. Murphy’s First law is still applicable-No good deed goes unpunished.

Functionally, a good Vet help site should teach, not preach. If the Poohbahs don’t agree with your proffered advice, the repair order is to question why you hold your belief and what you use to support the hypothesis. Far too often, these older sites become cliquey over time and the hierarchy become infatuated with their moderator powers. The last thing you want to do is drive the customer away with ignorant advice or send them galleywest on a knowledge search somewhere else. Shoot. They might get the impression you don’t have what they seek.

I think VCAG will be the model for Vets’ help sites in the future. In googleland, you seek answers instantly. If you can’t find answers licketyspit, or feel you’re getting advice from the village idiot who can’t discern the difference between there, their and they’re, you’ll march smartly down the list of google choices until you find an outfit who can provide you with meaningful answers.

Veterans Help sites become passé when they have nothing left to offer but platitudes and pleasantries. They become an echo chamber of the 20 year-protected Moderators’ beliefs. Pro se Veterans, on the other hand, seek a simple explanation. Lord knows, the new AMA is akin to trying to learn a new language in a week. Congress attempted to make it more Vet friendly but the Big Six of VSOs ensured it became a morass of regulations which in many cases requires endless repair orders so as not to conflict with one another. But that’s a subject for another day. I digress.  So, with that said, I  move on to present Eric Hughes’ (VA Agent) latest presentations on the history of our not-so-illustrious VA and their shenanigans in depriving us of needed knowledge to win our claims.

Start by reading this daisy for a broader overview of the subject…

The Lost History of Veterans Due Process Rights

And then Chapter 1 Episode III which continues the saga begun several days ago in the earlier chalk talk article.  https://youtu.be/w6yOOVFAj2M

Chapter 2 Episode I  https://youtu.be/OPzmOKL1Mx4

Chapter 2 Episode II  https://youtu.be/Dlq1pBOhzZU

Chapter 2 Episode III  https://youtu.be/uqqOxr4xSsY

As a parting comment, while I may make jokes about different service groups and their foibles, I are not dissing them. We in the Air Force used to make fun of the other three main branches (Army, Navy, Marines) by razzing them with the “Who would want to walk or paddle when you can fly there?” Or, “Who’d want to sign up to live in a foxhole and eat cold food?” I’m sure they had names for us too.  Those are just the musings of humorous interservice rivalry. I have never chosen my friends by their choice of which branch to serve in.  I never got into knock-down, drag-out, drunken brawls in bars with Marines. Or Navy. Or Army. Fact is, for the most part of my brief  four-year career, there weren’t any bars to go seek a fight in and darn few active duty Marines or Navy folk afoot up north in the land that rhymed with Mouse.

If you get a chance, I highly recommend VCAG as a reputable source to get your questions answered. Better yet, if someone gives you incomplete or confusing info, sixteen others are free to enter the fray and knowledgeably correct or clarify the misunderstanding. No one is going to look down on you for your ignorance. In the real world, you don’t get censored for telling the truth or asking awkward questions…well, unless you work for the government. But that’s a subject for another day and another website. Here at asknod, we simply report and let you draw your own conclusions. We sure don’t tell you what to think.  As my daddy used to say “Son, every man [and woman] has the right to remain stupid. That right is inviolate and built into the Constitution. No one can take that  away from you no matter how hard they try.”

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

Posted in All about Veterans, Food for thought, research, Tips and Tricks, Veterans Law, Vets Claims Advisory Group (VCAG) | Tagged , , , , , , , , , | 9 Comments

IDLE HANDS ARE THE DEVIL’S WORKSHOP

Posted on November 16, 2022 by asknod

While this blog won’t solve any VA claims problems, it’s a pleasant interlude in between claims filings and their resolution. Having been hatched on the day reserved for fools, humor is an integral part of my psyche. Nothing passes me by that doesn’t pique my interest in how I might make it humorous or fashion a joke out of. Which is why I called you all here.

One of my finest creations was the Semtex- C ration bottle rocket. It didn’t have a Military M model designation like M 26 rocket (bottle) but should have. Given lots of time to dream of anything your mind could conceive of, some of us sought to create interesting devices. Since I had a pyrotechnic bent, I was always trying to envision new uses for the toys they gave us to play with. I for darn sure would have loved to meet the 11Bravo who engineered the peach can repair order for the feed jambs on Pigs. Pure genius.

Semtex, or plastique, is a great item when respected. We had tons of it-literally. It was in Claymores and the propellant in 60 mm mortars just to name a few. Compressed, it will kill you. When removed from its normal confines, it burns quite well and I’m sure there a thousands of you still alive today who used it to heat up your c-rations in Southeast Asia.

Lacking any fireworks other than throwing the occasional 5.56 round into a fire to “wake” folks up, I thought long and hard on how I might make bottle rockets. While dropping a 60mm down the tube one afternoon, I became engrossed in how the propellant looked similar to that in the Claymores so I gave some the Zippo test that evening.

From there, it was a simple step to find a small enough container to put it in. I experimented by cramming some into a spent 7.65 round but it was too nose-heavy and came right back to earth without gaining altitude. After a day or two of experimenting, I came up with it. You cut apart a c rat can and make a 2″ by 2″ square. Pre-crease it in both planes and place the 60mm plastique in the lower center. Fold it in half with an 18 inch piece of baling wire crimped inside and fold that in half. Make sure there is plenty of clearance around the wire.

For maximum effect, I’d walk by a fire in the evening and throw it like a spear to get it to stick upright in the fire. When It  heated up enough, it ignited and took off. What I didn’t contemplate was what would happen if it hit anyone. Sure as shit, I dang near put a guy’s eye out a week later so the idea, while brilliant, was unworkable for entertainment value.

Once we got a ton of Tide detergent on a pallet. It was more than we could ever use to wash with and besides, the Hmong hootch gals used rocks down in the creek below us. After much study, we discovered you could thicken up AvGas with the Tide in a discarded 50 gallon drum and supersize it with Claymores, dig it in and tilt it at a perfect 45 degree angle outside the perimeter. Wire a claymore under it for the ignition system. Do a rude job of camouflaging it and then stay away from the area for a day or two. Curious Pathet Lao interlopers in the night would feel it necessary to see what kind of handiwork we stupid tahanns  erected during the day.  It was a poor substitute for a mine but it worked just dandy like a Civil War mortar and spewed out neat, sticky flaming gobs of AvGas  about 50 feet akin to Willie Peter.

The guy who got tagged by the bottle rocket got a Purple Heart by the way. I never let on I was the inventor. I’m not a parade kind of guy.

P.S. It is with great sadness we  learned that a fellow Veterans Help Site (Hadit.com) announced it is closing its doors soon. They have been in existence for years and years and have helped many thousands in their search for justice at VA. Their presence will be sorely missed by the Veterans community. I do hope someone else there is able to pick up the flag and continue to serve our Veterans. Finding good help on the subject of Veterans claims and appeals is extremely hard  as there are so few of us in proportion to the large number of Veterans. I think I speak for all Veterans when I say we will miss the site and Berta’s valuable advice on CUE claims.

Posted in All about Veterans, Humor, VA Agents | Tagged , , , , , , , , , , , | 3 Comments

THE UNABRIDGED HISTORY OF THE VA– PARTS I AND II

Posted on November 12, 2022 by asknod

Got these in the inbox from a fellow VA Agent who has devoted an extraordinary amount of time and research into investigating the feasibility of developing a neuveaux theory about the possibility discussed in NOVA v McDonaugh over the admissibility of BVA decisions to show precedence. This may become a continuing series so stay tuned.  

Cool beans, huh?

Posted in Equitable tolling, Food for thought, Important CAVC/COVA Ruling, research, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 1 Comment