GETTING YOUR C-FILE

Posted on September 30, 2013 by asknod
c-files

actual VA c-files

It never ceases to amaze me what some of you are forced to go through to pry a copy of your c-file out of the cold, deadly fingers of the Regional Offices. The stories I have heard make me ashamed to think the Veterans Administration can hold its head high and proclaim they represent us and our interests.

A c-file, more properly called  a claims file, is a compendium of everything that has transpired between you and the VA. Every letter you have submitted, every Vocational Rehabilitation or training program you have ever attended courtesy of the VA; in sum, any conversation you have engaged in on the 800-827-1000 Dialing for Dollars/Prize Redemption Center is compiled there to better understand you and your gripe/claim.

MAJOR UPDATE

Please be advised you should read my newer post here on the upgraded version of the best way to obtain your claims file–https://asknod.org/2015/01/12/2015-va-updates-on-getting-your-c-file/

When you have a protracted battle with the VA, this file can become an interesting repository of information-not all of which you are aware of. VA is not in the habit of “cc: the Vet”. In fact, when it comes time to appeal and stand your ground, you need the information in the file to assemble your defense. You may have lost a copy of something you mailed them. You may want to refresh your memory of the circumstances surrounding the claim. Of most import, you need to make sure there are no extraneous records from other Vets that have inadvertently been associated with your file. When I finally received my second copy following my loss at the BVA in 2012, the first thing I discovered were records of another Vet and internal memos from the VA  confirming rental of a ballroom near the Seattle Tacoma Airport for a scheduled conference. Oh, and a few cartoons from one rater to another.

Another major reason for obtaining your file is to be certain everything you have submitted as evidence actually made it there and was included. VA’s propensity to drop c-files and “accidentally” spill some into the waiting jaws of a shredder are fairly well documented. Thus, if you filed for things in 2008 and decide to reopen them in 2013, it is possible your file has suffered “shrinkage” without your knowledge. Regardless of the reason, you need your own copy in case VA’s magnificent computers crash some day and we have to revert back to the old trustworthy analog version that VA still currently employs. VA’s take on this is that the c-file is inviolate and closely guarded against any untoward insertions of a spurious nature or, God forbid, another Vet’s records. In the absence of verification, your c-file actually comprises whatever VA says it does and you have no legal recourse to do or say otherwise. This is the “Presumption of Regularity” clause that holds VA is presumed to do everything correctly unless you have incontrovertible proof to the contrary. With a copy of your c-file in your own hands, you in essence protect the VA from themselves. It”s a win-win for everyone but the VA doesn’t exactly see it that way. To their way of thinking, you have no business nosing around their file. Only VSO service reps who don’t know what they’re doing are permitted this luxury-unsupervised no less.

On occasion, and ever more frequently in the wake of a protracted backlog, the VA is getting further and further behind in requests for copies of our files. I would point to one example which is extremely outlandish-our very own Leigh Ann and her two year battle to obtain her file to see why VA is denying her.

I have taught that part of winning is being able to comprehend the reason for a denial in the first place. In a more perfect world, we would all file the bulletproof claim described in my book and win. End of story. In the real world of 85% denials, however, it becomes necessary to study your files to grasp the reason for an unjust denial. This also gives you the needed ammo to craft a better case and win it.

The Freedom of Information Act (FOIA) gives us certain rights and the VA is required to comply with them or face censure. This rarely daunts them. Upon request, they are legally required to hop to it and get a copy of your file to you within ninety days or face the consequences of failing to do so. To date, Vets have yet to see the consequences of VA refusals, but that isn’t the subject of this lesson.

The Veterans Benefits Manual, put out by the National Veterans Legal Service Program (NVLSP), has just the ticket. They have several sample letters for Advocates, such as lawyers or VSOs, to employ that incorporate the legal euphemisms and statutes that make the little pukes down at the ROs quail. I have taken the liberty of massaging them for use by self-represented, pro se Vets. You really don’t need any help getting the file regardless of the VSOs’ argument that you can’t go to the VA bathroom without them.

Herewith, I print for you a sample letter you can copy and paste directly into a Micro Word program. Be sure to send it Certified mail, return receipt requested otherwise VA will claim they have never seen it and are terribly sorry.

FOIA / Privacy Act Officer

VA Regional Office

1234 Yellow Brick Road

Oz, Kansas 60609

 Re:     Joseph Average Veteran

 VA Claim Number: 12 345 678

Social Security Number: 987-65-4321

Dear Sir or Ma’am:

This is a request for documents under 38 U.S.C. §§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011); and the Freedom of Information Act (FOIA), 5 U.S.C.  § 552, on behalf of myself, Joseph Average Veteran.

I hereby request a copy of all documents contained in  my VA claims folder, to include all documents in the right flap, left flap and center flap, as well as any temporary files. Please forward the copied documents directly to me at the following address:

 [your address here]

 As provided in the FOIA, please respond to this request within 20 (twenty) business-days. I may be contacted at (202) 867-5309 if there are any questions. Thank you for your assistance.

   Sincerely,

(don’t forget to sign here)

  Joseph Average Veteran

A sidebar here. The left flap of a c-file contains dependency issues-i.e. your spouse and children, how much (if any) they are being paid, etc. The center flap is all the judicial decisions, ratings and your correspondence with them. The right flap contains anything of or having to do with Vocational Rehabilitation matters, training, Independent Living Program etc.

Now, since we live in an imperfect world where 20 days in VA time is measured in Jupiter days, we often are required to send a polite reminder a month or more later to remind them that somehow, due to some glitch that they are probably unaware of, your request has been waylaid, misplaced or otherwise is temporarily unavailable for viewing. This second missive should not be judgmental or confrontational. Discussions about VA employees being raised by wolves are inappropriate because you do not have anything more than anecdotal proof. VA calls this “speculative”. A simple recital of the events and date of the last letter as well as the USPS Certified Mail tracking number and a full-color copy of your green card (both sides) showing it was signed for by _______ _. ______ is usually sufficient. For entertainment value, you can go to my widget VARO Who’s Who at the top of the page and look up the employees of your local RO. The lowest paid GS mailroom employee who signed for it will probably be listed there in the event his signature is illegible. You can show your familiarity with the system by correctly spelling out his name and GS rating as the one who acknowledged receipt of same. This really rolls their socks down. I send this after they do not respond to my first request.

After a suitable time waiting and hearing nothing, it is then time to “take it up a notch”. Here’s letter number three. This, you will notice, is to the Head Office (Office of General Counsel or OGC) asking them to see to it that their hired help get off their poor, tired, bonus-calloused asses and make a copy of your c-file and be quick about it. Again, no talk of wolf parentage. Be polite. I have always known Veterans to be cultured, well brought up and patient so please do not sully our good name.

Department of Veterans Affairs

 Office of General Counsel (024)

810 Vermont Avenue, NW

Washington, DC 20420

  Re:   FREEDOM OF INFORMATION ACT ADMINISTRATIVE APPEAL

 Joseph Average Veteran

C- file # 123-45-6789

To Whom It May Concern:

 This letter constitutes an administrative appeal of Department of Veterans Affairs (“VA”) action concerning a request for documents made under 38 U.S.C. §§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011), and the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

 In a letter dated  (month day, year), I submitted a FOIA request for documents on behalf of  myself  to the _(city)_, _(state)_VA Regional Office (VARO). See Attachment A. I requested a copy of all documents contained in my VA claims file. A certified mail return receipt shows that the RO received this request for documents on (month day, year). See Attachment B.  However, to date, I have received no response to this request.

 The failure of the VA to respond to this request is in clear violation of 5 U.S.C. § 552(a)(6)(A)(i), which requires the VA to determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request  and immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination. Today marks the __th working day since the RO received my request for the c-file documents.

I request that the VA release the requested records immediately. In any event, please make a decision regarding this appeal within twenty (20) working days, as required by 5 U.S.C. § 552(a)(6)(A)(ii). If you have any questions, you may contact me by telephone at (202) 867-5309.

Sincerely,

(be sure to sign here)

Joseph Average Veteran

Enc:   Copy of Letter to  (your) RO, dated (month day, year)

Copy of Certified Mail Return Receipt

 §§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011), and the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

You have now prepositioned yourself for a Writ of Mandamus at the CAVC if the VA remains recalcitrant and ignores you. We have had this happen as I mentioned to Leigh Ann, one of our very own members. I suggested she bypass any more of the standard letters above because, after two years, it’s more than obvious they’re plumb funning her. Leigh Ann followed my advice and they contacted a very able attorney who did just that. I enclose some of her (and VA’s) correspondence as well as a scathing denouncement of VA’s actions following the filing of the request for the Writ.

On July 13, 2013, petitioner Leigh Ann filed through counsel a petition for extraordinary relief in the nature of a writ of mandamus seeking to have VA provide to her attorney both a photocopy of her claims file and contact information for the VA employee responsible for supervising the photocopying process. She also requests attorney’s fees. Ms. Leigh Ann argues that she requested a copy of her claims file on April 25, 2012, and that the Baltimore regional office (RO) sent her a June 20, 2012, letter acknowledging her request and explaining that she would receive a prompt response. Despite the RO’s letter, she argues that she has not received a copy of her claims file. She also alleges that, between July 30, 2012, and June 17, 2013, she has sent requests for her claims file to the Baltimore and Detroit RO, VA Office of General Counsel, and Office of Government Services. Petitioner’s Brief Ex. A-M. She states that these letters, and various telephone calls to the Detroit RO, have been unanswered. Before proceeding to adjudicate the merits of the petition, the Court requests a response from the Secretary that addresses the allegations in the petition and provides supporting documentation. On consideration of the foregoing, it isORDERED that the Secretary, within 30 days from the date of this order, file an answer to the petition addressing its specific allegations and providing any documentation necessary to aid the

Court’s resolution of this matter.DATED: August 21, 2013

This is napalm to the VA. Their good name has now been besmirched by Leigh Ann even if she and the attorney refrained from using the pejorative “raised by wolves”. VA officials in DC tend to drop everything they are doing, come back from their three-martini lunches and roll up their sleeves. AT&T’s fiber optics heat up as they get to bottom of it. Some lazy daughter of a gun up in the Detroit RO has to apologize and fall on her sword. She is forced to pick up the phone and actually call Leigh Ann to ask her where to mail the c-file. No explanation for the horrendous delay. No apology. Nothing. Just a rude  “Where d’ya want this sucker, babe?” Leigh suggested that, under the circumstances, it might be appropriate to send it to the gentleman who requested it- that being her attorney of record. And then we have Gen. Shinseki’s response about the product shipped from Detroit. Apparently Leigh Ann and her attorney were not very helpful. Mr. Snyder failed to return the VA employee’s phone call. Shocked. I am shocked. What boorish behaviour on her attorney’s part.

The Secretary advises the Court that personnel from the Detroit RO, Ms. Littles, contacted Petitioner by telephone on August 22, 2013, requesting an alternative address to her Post Office (P.O.) Box number because the United Parcel Service (UPS) could not deliver a package (containing the copy of the claims file) to a P.O. Box. See Exhibit. Petitioner informed Ms. Littles that the copy should be sent to her attorney, Mr. Snyder. Id. Ms. Littles then called Mr. Snyder and left a voicemail message for him requesting that he contact her concerning the delivery of the claims file copy. Id. Mr. Snyder did not respond to the voicemail message.ld. UPS tracking information reflects that the package containing the copy of the claims file was delivered to Mr. Snyder on August 27,
2013, at an address in Rockville, Maryland, and that Mr. Snyder signed at the time of delivery.

And:

With regard to a delay in providing a copy of the claims file, the undersigned was informed by personnel at the Baltimore RO that the causes for such a delay included a high level of inventory, high volume of mail, and workload prioritization at the Baltimore RO. Personnel at the Detroit RO informed the undersigned that the claims file was forwarded to the Detroit RO as part of a special initiative to assist the Baltimore RO with claims processing and completion.

So if we understand this, the concerned raters at the Baltimore VARO, which is inundated in work, shipped it off to Detroit’s VARO which is in deeper claims shit that Baltimore. And:

The undersigned was further informed that following the issuance of the June 2013 rating decision the claims file was mistakenly forwarded to the scanning vendor on June 10, 2013. Pursuant to the special initiative, all claims files from the Baltimore RO were forwarded to the vendor for scanning after completion of the claims process. However, the undersigned was informed that Petitioner’s claims file should not have been sent to the scanning vendor in light of Petitioner’s request for a copy of her claims file. Personnel at the Detroit RO, as well as the Secretary, apologize for mistakenly forwarding the claims file to the vendor and further delaying Petitioner obtaining a copy of her claims file.

And the best of all:

The Secretary submits that where a claimant achieves the result desired in a petition because of a voluntary change in the Secretary’s conduct, rather than through a confession of error or a finding of error by this Court, the claimant is not a prevailing party for EAJA purposes.

images (1)So, from reading this, Ms. Littles, the tired, overworked, overbonused Detroit VA employee who drew the short straw, had to actually call a Veteran and ask her where to mail the c-file because she couldn’t be bothered to look up the correct address herself (in the c-file she was holding). I can almost hear that Steve Martin- ” Well. Excuuuuuuuuuuuuuuuuse me! You mean you want me to look up the address? Are you mad?”

Last but not least, we have the petitioner’s response to this insanity. Lawyers are great for taking the phrase “Raised by wolves” and ameliorating it such that it doesn’t grate on the ears quite so rudely. It’s also an opportunity to inject some irony into the conversation and make yourself appear to just be a bumbling law dog striving to comply with the ever changing VA rules. I pluck from the response the low-hanging fruit:

Further, from the Respondent’s September 19th response,
it is not clear whether the papers sent to the undersigned
were copied from the original claims file or from a “scanned” file prepared by an unknown vendor on an unknown date. It is not known where the original claims file is held although the undersigned did receive a telephone call from a Baltimore VA Regional Office employee who implied he had the original file. Telephone calls to that employee by the undersigned to address these issues went unanswered and unreturned.

And of special interest to all of you when you request a complete, certified, unredacted copy of the original c-file:

What is known is that copies of portions of the claims file previously sent directly to the veteran are not contained in the copy sent by the Detroit VARO. For example, the veteran initiated several Congressional inquiries for which she received some replies but these replies and memos from various VA personnel regarding her requests are not part of the records sent the undersigned. This suggests that VA withholds certain items in the original claims file prior to scanning or selects only certain records to be scanned.

Whoa. Say it ain’t so. Selective copying of a c-file (certified) to include redacting certain items? And that niggling little problem of another Vet’s records polluting your own?

Finally, the copy sent to the undersigned contains a record from another veteran. Who is the point of contact to request that this record be removed from the Petitioner’s original and scanned file and associated with the correct file?

This laissez faire approach to copying claims files may be endemic to the system and we simply are unaware of it. As I have pointed out more than once, VA is the keeper of this file if you neglect to. Therefore, the file contains whatever VA says it does. It is also presumed to be correct due to the Presumption of Regularity. Who are we to say differently? Or, in VA’s favorite parlance-“Prove it.” If you rebut the evidence and prove the c-file is contaminated or missing certain documents, the Presumption of Regularity is overturned and the whole file is open to re-inspection with all evidence being possibly tainted or corrupted. A very important concept to know.

And here’s an important update to consider too:

https://asknod.wordpress.com/2015/01/12/2015-va-updates-on-getting-your-c-file/

And lastly, I add on March 12th, 2018:

Of course, if the  VA attorney you hire has access to the VA’s Veterans Benefits Management System (VBMS), via remote computer, they can view your records in real time rather than wait the six months you currently suffer before they are copied and mailed to you. I finally switched over to this as it’s the cat’s pajamas. You wonder how you ever managed with green firewood, wet blankets and smoke signals from mountaintops in the past thirty years. We’ve come a long way, baby.

Posted in Extraordinary Writs of Mandamus, Obtaining a C-file, Presumption of Regularity | Tagged , , , , , , , , , , | 26 Comments

SOFOSBUVIR IN THE LEAD

Posted on September 29, 2013 by asknod

vertex_largeJust as I suspected, Gilead Science is going to be the big ticket winner in the race to kill the bug. Here’s an update on the field of competitors. The smart money says to buy some Gilead stock. I got in at $61 several weeks ago. 

Posted in HCV Health, Medical News | Tagged , , , , , , , , , , , , , , , | Leave a comment

CNN: VA disability payments could stop if shutdown is long

Posted on September 29, 2013 by Laura

imagesYesterday I emailed our representative to protest his anti-Affordable Care Act position and the possible government shutdown.  I pointed out that disabled veterans who were denied disability benefits (over 80%) are not eligible for VA health care if they are over the $80,000 income and asset limits.  Their only option is a high risk plan.  

Then I read this alarming article:

The Department of Veterans Affairs clarified itself Saturday, saying that if a government shutdown occurs, and lasts at least a month, not all compensation and pension payments would continue.

“Those benefits are provided through appropriated mandatory funding, and that funding will run out by late October. At that point, VA will be unable to make any payments,” spokeswoman Victoria Dillon said in a statement to CNN.   … Among the benefits in question would be disability and GI Bill payments.

Will active service members get paid?  Military-TabMaybe.

The VA has published some information:

Veterans Guide to Government Shutdown with a 2-page PDF that outlines the services that will be impacted:

http://www.va.gov/opa/docs/Field_Guide_20130927.pdf

VA Contingency Plan* Agency Operations in the Absence of
Appropriations

http://www.va.gov/opa/docs/VA_Contingency_Plan_Document_20130927.pdf

Certain House members are the culprits in this nasty drama.  The House VA website is silent on the shutdown.  News outlets are picking up the story slowly.  Our influence counts but only if they hear from us.

Ed. Note: I got an email giving me a brief on the BVA in DC. Seems they’ll (VLJs)keep on keepin’ on in ex parte chambers as it were but the little people will be laid off. Hence, no more BVA decisions issued until the impasse is surmounted.

In order to cast some humor on this, when the budget is approved, think of it as constipation with a vigorous application of Ex-Lax ®. There will instantly (in VA time) be a plethora of new decisions seemingly simultaneously. I read that as “Warning. Decisions are closer than they appear in mirror.” CNN was always one of those rather dramatic  news organizations with doomsday prediction scenarios of “What if?” Actually, I’m somewhat surprised FOX didn’t beat them to it. Too much focus on the TEA party and with good cause. But then that is why we do not discuss politics here because someone, somewhere, will take umbrage and voice their opinion and then we have mayhem. So, all the parties have been represented and identified. They comprise America. A loud, raucous cacophony of democracy. A Baskin and Robbins of ideologies. This will be interesting to watch- as long as the game of brinksmanship doesn’t continue too long.

Posted in Guest authors, VA Health Care, vA news | Tagged , , , , , , , , , , , | 2 Comments

American women and guns

Posted on September 28, 2013 by Laura
cold mountain

Image credit: Miramax film cover art

The Second Amendment codified the right for (free) people to bear arms in 1791. Long before the movie Cold Mountain famously portrayed circumstances in which women protected themselves during the Civil War, Colonial women owned and used guns. Scholarship of probate inventories by James Lindgren and Justin L. Heather, in their 2002 article, Counting Guns in Early America, state “..that at least 50% of all wealth owners (both males and females) owned guns.”  

Women have faced many social and educational barriers due to their gender throughout America’s past. In 1851,  Elizabeth Blackwell was the first woman to be awarded a medical degree. Free women were restricted from voting until 1920 with the passage of the Nineteenth Amendment by the all-male Congress–144 years after 1776.  (The votes were close & it’s quite a story.)  However, I am not aware of any restrictions on the rights of women to own firearms in American history.

There are more living females in the U.S. than living males (all ages).  In 2011, there were 150,643,000 males and 155,466,000 females (source: U. S. Census).  All elected representatives know that women vote in higher numbers than males.

HungerGamesPoster

Image credit: Lionsgate release poster for The Hunger Games in Wikipedia article.

According to statistics from Rutgers: Women hold 98, or 18.3%, of the 535 seats in the 113th US Congress — 20, or 20.0%, of the 100 seats in the Senate and 78, or 17.9%, of the 435 seats in the House of Representatives.  Some of these women are in favor of gun control but they know that legal gun ownership is a concern of.  Women have owned guns in America since the seventeenth century and they are highly unlikely to disarm now or in the future.  Women and weapons are an important part of the popular youth culture as we’ve been in the movie Hunger Games and the TV series LOST.

Kate Lost

Tough girl Kate in LOST– played by
Evangeline Lily.

We all have a keen interest in seeing that people known to be a danger to others or themselves, not have access to guns.  Gun safety education is extremely important.  Journalists are writing about women and guns. I don’t take any rights for granted, but I believe the Second Amendment will be upheld as long as the political entity called The United States of America continues to exist and women have a say in the matter.

rirle

Meme poster on Google images Artist not known.

Ed. note: Kiedove examines the female side of gun ownership in response to all of the MST coming to light in the military. Interesting viewpoint.

Posted in General Messages, Guest authors, MST | Tagged , , , , , , , , , , , | Leave a comment

CAVC–WILSON V. SHINSEKI–SIGN HERE, HERE AND HERE

Posted on September 28, 2013 by asknod

downloadI always troll the CAVC decisions site and look for these. The key word is “reversal.” If you see that, you know it’s going to be brutal. Most of them contain a “The Secretary seems to think that…” and concludes with “This is what the Secretary gets for thinking…” I often speak of Mission Creep -the inexorable ability of Chapter 38, Code of Regulations to get pregnant and give birth to new meanings while we sleep.  The Secretary’s minions attempt this with varying degrees of success at the CAVC and the Fed. Circus. Given too egregious an error, the Court puts it’s foot down.

Mr. Earnest Wilson was a ground pounder in Vietnam. He got a bit of bent brain syndrome and picked up a PTSD rating. Later as it progressed he applied for an increase. Again, several years later he did so. This is the established pattern VSOs use gradually attain a higher rating-bit by slow bit. It worked right up until Ernie hit the wall at 50% and VA refused to go higher. The battle lines were drawn. He eventually got his increase to 70% ten years later and an effective date of 2011 but in the meantime had picked up a 100% rating for CAD. When they denied his earlier effective date he was asking for on the 70% original 2001 filing,  he dug in.  Here’s the bones of contention:

In an appeals satisfaction notice, dated March 26, 2012, Appellant endorsed the document, which read, in relevant part, “Please only return this document if you no longer want to pursue the remaining items contained in your Board of Veterans[‘] Appeals remand.” (R. at 26 (26-27)). It was stamped as received by the Board on April 20, 2012.

And this:

In another document, also dated March 26, 2012, Appellant responded to the most recent SSOC, electing the following option, “I have no other information or evidence to submit. Please return my case to the Board of Veterans’ Appeals for further appellate consideration as soon as possible.” (R. at 29 (29-30)). This document was stamped as received by the Board on April 10, 2012.

download

VAland

In our wonderful world of nonadversarial, veteran friendly rainbows and unicorns, we have come to understand a different truth. The regulation says that but it is in theory only. Ernesto had signed two documents, one after the other in short order. He probably thought it was all part and parcel of the same thing. Not. One said he was happy and heading on down the road and the other said the exact opposite and also requested a new hearing on the subject. The one that said he was happy had instructiions on where to mail it but Mr. Wilson also overlooked that and mailed it to his VARO. In our unicorn world, that form would have rotted for a year in limbo before it again saw the daylight in DC. Yet miraculously it appeared only ten days after his correctly filed missive. Wonder of wonders. VA efficiency is sometimes legendary when it works against you.

VA would have us believe that because he filed a form surrendering, VA can only assume that anything else they received was rumors and propaganda.  Nowhere is there even a discussion about the enigma associated with two disparate, diverse documents -or a hearing which somehow never materialized.

In this case, the Court is unable to conclude that the context and content of the “appeals satisfaction form”fulfilled these withdrawal requirements. First, the appellant executed the “appeals satisfaction form” and the SSOC notice response seeking appellate consideration on the same day.  In accordance with the nonadversarial claims adjudication process, VA should have resolved any apparent discrepancy before proceeding to dismiss the appeal. See Verdon v. Brown, 8 Vet.App. 529, 533 (1996) (holding that it is insufficient to conclude that the appellant has withdrawn his claims “without providing an adequate statement of reasons or bases supporting that claim.”); see also Kalman, 18 Vet.App. at 524. Regarding the content of the “appeals satisfaction form,” the Court agrees with the appellant that it “speaks in terms of discontinuing other actions that were
requested by the Board in the May 2010 remand; it does not speak in terms of withdrawing new issues or the issues that were deferred.” App. Br. at 9; R. at 26 (“Based on the decision rendered, I am satisfied and wish to withdraw any remaining issues that have been remanded (sent back) to the
Appeals Management Center by the Board of Veterans Appeals for further development.”); see Kalman, 18 Vet.App. at 524 (holding that the veteran’s statements must be understood in context). After considering the nonadversarial nature of the VA claims adjudication process, the content of the appeals satisfaction notice, and the context of the appellant’s submission of that document, the Court is left with the definite and firm conviction that the Board lacked a plausible basis for its decision. See Kalman, supra; see also Padgett v. Nicholson, 19 Vet.App. 133, 147 (2004) (en banc) (holding that reversal may be appropriate even if there is “existence of some controverting evidence (that is, evidence that is not in the appellant’s favor).” ) (opinion issued nunc pro tunc to November 2, 2004, sub nom. Padgett v. Peake, 22 Vet.App. 159 (2008) (en banc)).  Accordingly, the Court holds that the Board’s determination that the appellant withdrew his appeal is clearly erroneous, and the decision will be reversed and the matters remanded for further
adjudication. See 38 U.S.C. § 7261(a)(4); Kalman and Gilbert, both supra.

So our teaching moment here is if you accidentally sign a fistfull of papers and send them in to all the wrong folks, that VA will take the absolute worst choice for you judicially and assume that you do not want any more money or a higher rating in spite of what you said on the other one that you meant to file. The CAVC has caulked yet another little hole in the wall for Vets and VA henceforth in the future will actually have to put off your hanging for a day or two and ask you what it is you were trying to file for. Rats. Foiled again.

Here’s the excuse factory:

Wilson 1

And here’s the Don’t ever do this to another Vet admonishment:

Wilson 2

Posted in CAVC ruling | Tagged , , , , , , , , , , , | Leave a comment

IFN HCV TREATMENT– YES OR NO?

Posted on September 28, 2013 by asknod

1imageHere’s the smartest bit of deductive (and inductive) thinking to come along in a great while. Pop Smoke sends us this enlightened exposé of the outcomes of those SVR versus the great unwashed like myself who are glow in the dark autoimmune. Dr. Ronald R. Koretz finally analyzes whether being the King and naked in his invisible finery (SVR) is infinitely  preferable to being infected and slowly disintegrating into end stage liver disease. The results will astound you. Bookmark this one to add to your cites. 

Posted in HCV Health, HCV Risks (documented), Interferon claims | Tagged , , , , , , , , , , | Leave a comment

CLASS OF 2013

Posted on September 27, 2013 by asknod

Ladies and Gentlemen, I proudly present to you the class of 2013-an eclectic bunch to be sure.

001

 

 Stretch (left, below) was elected class valedictorian and Chubby was voted most likely to be eaten first.

002

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

IMPORTANT INFO FOR THE NOVITIATE

Posted on September 27, 2013 by asknod

av-2625I found this over at Hadit.com., a sister site for Veterans help posted by 71M. He deserves a big thank you from us for ferreting out these things. This is how we learn to win.

Posted in Veterans Law | Tagged , , , , , , , , , , , | 5 Comments

FORTY YEARS LATER–POWS REMEMBERED AGAIN

Posted on September 27, 2013 by asknod

downloadMember and four-tour dustoff medic (68-72) Bruce sends me this poignant reminder of May 1973. I had been home from Vietnam one year and was struggling to make ends meet as a cab driver in Lancaster, California. While not terribly fond of politics in general or Nixon in particular, I nevertheless cheered the release of the POWs- some who were family friends from my youth. 

Fortunately for us, warfare has evolved sufficiently that Search and Rescue does not leave quite so many scattered about on the battlefield. It is my fondest hope that Laos or the Democratic Republic of Vietnam, Jane Fonda’s adopted country, would step up to the plate and relinquish the information on pilots still held from that theatre. To date, we have only one repatriated from Laos in spite of all that augered in there. We know categorically that many survived punching out as they were observed alive on the ground or were in contact by survival radio shortly thereafter. Their absence with no explanation is the heart of the MIA conundrum and why I will never hold out an olive branch to zipperheads until all have been accounted for. Similarly, I will never just say “Let bygones be bygones” and welcome Jungle Jane back into the fold of civilized human beings. She hasn’t earned it nor will she ever.

This video should make shivers run down your back. “Welcome home” does not begin to communicate the emotion owed by America to her troops who served there and were captured. We have never seen such atrocious behavior accorded prisoners of war in  recent history with the exception of the Japanese in World War II. Even North Korea was more accommodating albeit not by much.

The humble nature of these POWs is unique. They are proud to be Americans and not apologists. They kept their faith in spite of the bleak prospects of incarceration and torture. They continue to this day to be thankful to a President who, though  in no way responsible for beginning hostilities, did not shrink from what what was necessary to bring them home alive without turning it into the typical political Dog and Pony show. I don’t know about you all but it makes me very proud to have fought with them. And that’s all I’m going to say about that.

Posted in Inspirational Veterans | Tagged , , , , , | 2 Comments

Decisions, decisions: Stay with the VA or move on? Enroll in the VA or Obamacare?

Posted on September 26, 2013 by Laura

downloadI hope I haven’t made any gross errors in this post.   Please fact check everything because I am a layperson trying to figure this out like everyone else.

KEY FACT FROM THE VA ACA WEBSITE THAT IS HIDDEN IN THE FAQ:  

I am enrolled in a VA health care program. Would I be eligible for assistance to pay health insurance premiums on the Marketplace if I choose to purchase health care outside of VA?

Since VA care meets the standard for health care coverage, you wouldn’t be eligible for assistance to lower your cost of health insurance premiums if you chose to purchase additional health care coverage outside of VA. However, you may still purchase private health insurance on or off the Marketplace to complement your VA health care coverage.

My assumption:  The term “assistance” refers to a potential tax subsidy.  If so, buying additional health care coverage will be very expensive as we will see a few paragraphs down.

Since over 80% of veterans who apply for disability benefits are denied, let’s look at the situation for Non-Service Connected (NSC) and 0% SC veterans with regard to co-pays.  The first number to know about is the $80,000 limit on gross income and assets to avoid co-pays.

What kind of property is considered an asset? Although there’s very little guidance for this accounting concept, if you don’t report your secret assets, five years prison time is one penalty. However, make no mistake about this: your retirement fund and your spouse’s retirement fund are assets!  Add both IRAs together.  Add up the value of your cash, rare coin, stamp, or fire arms collections, vintage wine, stocks and bonds, your fishing cabin, canoe, boat, ATM, snow mobiles, motorcycles etc…  (Your car, house, house lot, and furniture–things you use everyday–are excluded.)  To determine your net worth, deduct liens and mortgages.  Is the other side of your duplex an asset? Yes. A riding lawn mower used in the summer? Who knows? An outbuilding like a shed? Hmmm..maybe.  If your house is sitting on acreage, beware! 

Section VII – Previous Calendar Year Net Worth. Your net worth is the market value of all the interest and rights you have in any kind of property. However net worth does not include your single-family residence and a reasonable lot area surrounding it. It also does not include the personal things you use every day like your vehicle, clothing and furniture.

2012 Gross Income is used in 2013 to determine status for VA cost-free care.  Here is the figure for a veteran with 1 dependent:  $39,304 or less.  (You can exempt $907 in medical expenses.)  This means that the veteran and spouse can own no more than $41,603 in retirement funds (and/or other assets) together to keep under the $80,000 income and asset limit. 

Post UPDATE (10/7/13  I’ve found a VA online calculator called Health Benefit Explorer that you can use to plug in your own numbers and zip code.  There may be some leeway depending on where you live and other rules I haven’t found:  http://hbexplorer.vacloud.us/

Now, some veterans aren’t required to fill out Form 10-10 EZ Financial disclosure sections IV-VII but they won’t enroll new applicants who don’t! Two examples: You were at Camp Lejeune for 30 days or you served in Vietnam within certain dates.  Why bother paying for ink to print this list when veterans disqualify themselves for care by not filling out the financial disclosures!

Means test

The last paragraph is nonsensical. If you’re not going to provide financial information, and you’re in one of these groups, don’t bother applying for VA health care. Click image to read over the whole form.

The figure of $39,304 for a family size of 2 translates to a Federal Poverty Level of about 251%.  The VA considers this the threshold income before crossing into “high income” veteran status.  I use $39,000 in the following example to see what a veteran & spouse would pay for Obamacare.   I’m using the Kaiser Subsidy Calculator (which calculates a Silver Plan). For a hypothetical non-smoking couple in Charleston, West Virginia (zip 25301), it appears as if this veteran (64) and spouse (62) would pay about 8.09% of their income for a Silver Plan or $263.00 a month ($3,156 a year).  But oddly, if only 1 person is covered, again using the Kaiser Subsidy Calculator,  the premium is the same! The government subsidy for this zip code would be about $12,749 for 2 or $4,625 for the one younger person.

If a veteran keeps the VA AND signs up for Obamacare, the veteran’s portion of the premium will be the retail cost . The un-subsidized premium for 2 is $15,905.  A subsidy for 1 is $4,625.  My best guess is that the cost for a couple to keep the VA and sign up for insurance in the exchange marketplace, the premium could be as high as $11,280 annually ( $15,905 – $4625 =$11,280).   The Kaiser calculator doesn’t allow this scenario but this option would not be affordable for most people earning $39,000!  (If the couple are both veterans, keep the VA and buy private insurance, there will be no tax subsidy for either.)

Therefore Congress is forcing veterans to choose between the two alternatives even though VA health care is not health insurance but a health benefit.  I think this is a disgrace because veterans have earned this benefit which they may not be able to use.   Why? Because Congress doesn’t want to give veterans tax subsidies for private insurance like other Americans.

Certain politicians in Congress are hysterical about granting health care subsidies to anyone (except themselves).  The VA is trembling too because they don’t know if they’ll be overwhelmed with new patients or the opposite, see an exodus.  Some veterans may be willing to trade the VA for a tax subsidy and the opportunity for flexible, convenient, private health care–without threats of prison terms for mistakes made on their 10-10 EZs.  Some will join, probably young uninsured veterans, for the sake of simplicity. 

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Image credit: Public domain image on Pixabay

And if a veteran needs a lot of medication and care, the VA would be more attractive than a Silver Plan.  However if the veteran’s spouse (62) is in very good health, she could opt for a Bronze minimal plan for $164.00 a month as a bridge policy to Medicare. Uninsured spouses are probably crossing off the days on their calendars to Oct. 1 when they can shop for a plan, and in 2014, get health care coverage despite pre-existing conditions.  But veterans should be furious when they realize that they’ll still be paying “retail” if they want to see a private specialist and keep their VA benefits.  That’s my current understanding of the situation.  I welcome your input and information and check out the multi-state Kaiser subsidy calculator. 

 

 

Ed. note: Is this too cool for school or what. Kiedove is crunching unbelievably large quantities of numbers and data for us here. Devotion to duty is on overtime. I commend her. Two attagirls and a warm Asknod thank you are overdue.

Posted in VA Health Care, VA Medical Mysteries Explained | Tagged , , , , , , , , , , , | 10 Comments