This just in from member , and now neighbor, Mark. In hopes of garnering support for our gallant, courageous cause, he opted to email the Big Guy with the buck stops here on his desk asking him how long it would be before this is resolved.
He got back:
Subject: Good News regarding VA backlog
I don’t know about Mark but I think this may be good news. I’m sending off for my free thirty day trial of Rosetta Stone in Arabic. I’m also on his speed dial so if he gets an update I’ll publish it.
Grandpa used to say that trees are just like corn but fortunately it doesn’t take 40 years to produce results or a body would only get this treat once or twice in a lifetime.
Above is the Silver Queen on top, flanked in front and behind by Jubilee. In the foreground is Peaches and Cream. Underneath the Silverqueen (invisible) is an ear of Kandy Korn. Fukushima has been berry, bery good indeed. As for those yellow kernels in the SQ, with as many flavors as I have in the garden, it is no surprise. They were invisible until we cooked it.
A warm thank you to Leigh and Paul for sharing this opportunity with me. Hopefully, Leigh will be up and back in the saddle next year and doing this herself. Remember she has kids to take care of on top of a brand new liver transplant. Paul is doing all he can to help but the VA isn’t. After two years now, she had to file her Writ of Mandamus just to get her C-file. More on that next month when we hear the VASEC’s explanation of what the delay is…
We have a problem, Houston, Waco, Oakland, St. Pete’s et al. Our VAROs are faced with an interminable backlog of claims. This, in turn, is being passed on to the BVA in the form of erroneously denied claims, perpetuating what those in the business refer to as the hamster wheel of remands, new C&Ps, eternal ratings disputes and even more appeals.
From what I see, it might be smarter to leave the country, change your nationality and return indigent and report to SSI for your free Welfare check, food stamps and Section 8 free housing. All of these amenities are yours instantly with no waiting period or interminable backlog. Win-win. No questions asked. Who do we make the check out to?
Member Mark has discovered the mantra of the VA beating the dead horse of claims adjudication. Quite simply, it is summed up in thirteen simple rules. VA seems to have engaged in the majority of them so I expect we’ll see the others employed soon. It seems like a list the government hands out to its problem agencies in times of trial and tribulation.
Herewith are the tenets of how to resolve the dilemma.
1. Buying a stronger whip. (appointment of Shinseki)
2. Changing riders. (USB Hickey)
3. Appointing a committee to study the horse. (Congressional Inquiry)
4. Arranging to visit other countries to see how other cultures ride dead horses. (Emulating Accenture Inc.’s approach)
5. Lowering the standards so that dead horses can be included. (FDCs)
6. Reclassifying the dead horse as living-impaired. (Post hoc rationalizations at the appellate level)
7. Hiring outside contractors to ride the dead horse. (VBMS outsourcing to IBM)
8. Harnessing several dead horses together to increase speed. (Tiger Teams)
9. Providing additional funding and/or training to increase the dead horse’s performance. (Congressional Appropriations again and again)
10. Doing a productivity study to see if lighter riders would improve the dead horse’s performance. (VA Aspire and the “Academy”)
11. Declaring that as the dead horse does not have to be fed, it is less costly, carries lower overhead and therefore contributes substantially more to the bottom line of the economy than do some other horses. (introduction of DBQs)
12. Rewriting the expected performance requirements for all horses. (Federal Register and tampering with 38 CFR)
And, of course, VA’s favorite…
13. Promoting the dead horse to a supervisory position. (Too numerous to list here)
Mark neglected to include rule #14
14. Offering dead, underachieving horses an annual bonus.
The VA makes this advance directive available: VA Advance Directive Durable Power of Attorney for Health Care and Living Will (VA Form 10-0137).
This advance directive form is an official document where you can write down your preferences for your health care. If someday you can’t make health care decisions for yourself anymore, this advance directive can help guide the people who will make decisions for you. You can use this form to:
Name specific people to make health care decisions for you; Describe your preferences for how you want to be treated; Describe your preferences for medical care, mental health care, long-term care, or other types of health care. When you complete this form, it’s important that you also talk to your doctor, family, and other loved ones who may help to decide about your care. You should explain what you meant when you filled out the form. A health care professional can help you with this form and can answer any questions that you have. If you need more space for any part of the form, you may attach extra pages. Be sure to initial and date every page.
There is a wide variety of religious denominational advance directives which can be attached to the VA Form. Roman Catholic hospitals abide by strict guidelines which they will adhere to regardless of the patients’ preferences. Jewish laws require quick burials; no post-mortem procedures such as dissections, organ donations, or autopsies are allowed without a rabbi’s permission. In general, Jehovah’s Witnesses refuse blood products and have their own special advance directives. All fifty states have statutes concerning living wills. And so it goes: secular and non-secular concerns inform one’s views on this topic.
My DH and I have not written ours yet. Why not? After all, we do have preferences and we know we aren’t invincible. We have a horror of having state officials or courts deciding our fates, especially if we are at death’s door in Vermont, Washington, Oregon, or Montana. I admit to being a bit superstitious about the whole thing. And Advance Directives guide your decision makers but can’t force them to do as you wish.
If we can’t communicate and the healthcare bills get too high, will Advance Directives really come into play? Say you put ink to paper and state that you prefer a feeding tube and hydration if you become comatose in hopes that you will awaken in the future. Will society allow you be able to stay in this unproductive condition indefinitely? Will we really have any control if we can’t communicate in a way that can be understood?
Rashid El Malik adds a comment to our Pending claims doctrine post and I thought I would bring it out here so others can see what he’s asking.
Mr. El Malik has a valid question. On its face, it appears the Court is fraternizing too much with the VA Secretary and Will Gunn. Let’s divide this up into it’s integral parts, for there are several.
You have one claim (r wrist) in 2003.
You win and get 10%. You appeal for a higher rating. VA tells you to piss on a flat rock.
You appeal and BVA remands with instructions to measure you again and rate appropriately. This is called a staged or Fenderson rating after Fenderson v. West. Ratings and effective dates are established by the Ratings Ranger at the VARO nearest you ( or another RO if they farmed it out) but not at the BVA. They may raise it based on a waiver of review however.
Insert remand, delay and Extraordinary Writ here
If the Rating Specialist refused to budge on an earlier effective date, it would go back to the BVA with all the new evidence of your latest (i.e. recent C&P exam revealing 70%) for a new decision on the correct effective date for the 70%.
BVA refused to grant the 2003 date probably saying the first documented proof in your files of a 70% disability is at the 2009 C&P exam. At no time prior to that day in 2009 is there any medical proof that your condition warranted a percentage higher than the originally assigned 10% in 2003. I suspect the RO rater said exactly the same thing.
You are beginning to wonder why VA blew you off for two years about here.
The Court then agreed with the BVA decision ( affirmed it).
I assume that sums it up.
Mr. El Malik is attacking with the wrong legal utensil. This is not a case of a pending claim doctrine. Put simply, Rashid received his rating effective in 2003 albeit for 10%- therefore there was (and is) no pending claim. He won. He has now been inspected, detected, injected, and rated 70%. This 2009 C&P is the first day VA can point to and say “Yeppers, Rashid. You get the big seven oh, dude.”
At about 2004 in the claim, Mr. Rashid would have been smart to also submit proof himself that this magical threshold had been reached at an earlier date-say somewhere around 2003-2007. This rebuts the VA’s contention that Rashid’s right wrist got immeasurably worse all of a sudden at the 2009 C&P-but not a day sooner.
Without this rebuttal evidence on the record, all the BVA judge has to look at is one (1) 2003 C&P and one (1) 2009 C&P. With nothing in between, there is no specific date to point to. With no new evidence submitted to support an earlier effective date for the 70%, the claim must fail. The earliest ascertainable date the 70% can be awarded is 2009. When you get to the BVA, that’s all she wrote on evidence submittal. You cannot go to the CAVC and introduce new evidence there.
The Court merely affirms that the BVA didn’t cheat while deciding they had two C&Ps to work with. The Court is not a trier of fact. They are simply the ones to take the legal pulse of this and make sure the BVA judge did it by the book. He did.
Now, as to the Court or the BVA Judge noting the Writ of Mandamus, that is an entirely different case that has nothing to do with this. It has a different docket number and is of no consequence to this adjudication. As for that two year delay? VA’s take is Justice delayed is not justice denied. You eventually got the C&P. I suppose in their eyes you were remiss in not notifying them after 90 days that you had not been scheduled for the dog and pony show.
That, Ladies and Gentleman Vets, is the tempest in the teapot that Rashid has sailed into. Poor legal advice or a poor legal strategy? Only Rashid can say and he has not given us enough to make that call. I will email him and ask him to review this for accuracy and to add any other comments. VA utilizes the House of Mirrors technique on claims filings. When they screw up. the attitude is simply ” Two years? My bad. Okay, schedule him for a C&P.” And since it’s the only game in town, we have to beg for each thing.
CUE ( clear and unmistakable error) has not occurred here. If it has, it is on Rashid’s part for not submitting evidence to rebut the 2009 C&P before it left the VARO.
Box hides well in the great pumpkin patch
so as not to draw the attention of grandkids
During the Stardust radio show last weekend, Rick regaled me with his new idea for a square pumpkin. Not to be outdone and figuring all of you on the Left Coast would like to have one in your back yard, I promptly constructed a receptacle for same.
It wasn’t 48 hours later that the subject pumpkin drafted for this endeavour exceeded its parameters and became wedged in the new constrictive environment. A quick check this morning confirms Rick’s observation. My grandson Hayden is going to have a very unique pumpkin this fall.
Thank you Rick for giving us endless gardening entertainment for years to come. I’ve already formulated a new military version (a pentagon) and will be contacting Chuck Hagel about distribution to the troops. The sky’s the limit on this. I’m thinking about drilling out a large (1″ diameter) hole to allow a VA-style “Pinocchio nose” to grow out and even one with a smile cut out via a jigsaw to allow a mouth to protrude. This would make a marvelous gift for our Undersecretary for Veterans Tall Tales Allison Hickey.
As usual, these are shot with a Sony megapixel. You can click on them twice and magnify a mosquito’s ass to fit the whole screen. Put your cursor on the area you want to focus on before the second click.
P..S. Rick must have thought he invented the wheel. Look what member Frank (#2) found. They stole my lips and nose idea.
I’m learning this computer stuff in fits and spurts. It should come as no surprise to some of you that I’m a novitiate. Here’s the latest Apple “apps” I’m encountering. This is very valuable knowledge because it’s harvest time and you need to know these things .
This one above is the applesause app. These are Gravensteins and always the first ones to arrive. They don’t hold up very long and get mushy about a month after picking so into the squisher they go.
Here’s the horse app. These generally don’t pass the “Cupcake test” so the horse and the goat tend to enjoy the largesse as well.
I have lettuce apps too but no horse lettuce apps.
Another one of those delicious emails we love to get.
Sweetness came to me in the mail. Award letter was not expected. The surgical report was what did it. C&P examiner was very sympathetic also. Now, before I get too comfy, can you tell me about backpay and what my wife is eligible to receive.
They have me as being diagnosed in 2010, but my original claim for HCV was filed in 04, in OKC @ VAMC. It felt like a ton was lifted off me. Now I can look forward to the future! Thanks for standing with me. Victory for Vets, loss for VA!
You have to admit that its better than the thrill that’ll get ya when you get your picture
On the cover of the Rolling Stone. I know it rolled my socks down a notch. We’ll be writing it up as soon as we get the supporting paperwork and permission from the Veteran to do so. We all learn from these things. Me included.
My DH and I watched director Steven Spielberg’s movie, Lincoln, last night. It tells the story of how the Thirteenth Amendment to the U. S. Constitution was narrowly passed. We found it to be a fine and inspiring movie and we were pleased that it ended with the words excerpted in this post’s title.
The trailer, cast, and synopsis is here: http://www.thelincolnmovie.com/
The VA says that Lincoln’s words are its motto. Like all human institutions, the VA is deeply flawed. But it is important to reflect on Lincoln’s acknowledgement that war casualties include family members with special solicitude towards widows and orphans.
In March (2012) Under Secretary Allison Hickey addressed the Senate Veterans’ Affairs Committee about the VA’s “transformation” in benefits processing. Before readers all howl about the baloney in her answers, I am convinced that she is interested in helping pension widows through legislation based on her testimony. (See text, page 25.)
Today, I know a lot about our pension recipients.
I know they are most – they are in some of the most dire
circumstances because there is a means‐tested environment. I
know when that pension person – when that pension veteran dies, today I am required to, by law, to make that pension widow send me a claim to do and go back through their process to validate that pension. I don’t get that one. These are for the most part, poverty level widows that I ought to just be able to continue that pension, pay those pension widows in a very difficult time in their life, and then go back and audit them, just to make sure that we’re okay. I ought to have a period of time where I can do that. We’re looking at that issue. I’d need legislation to do that issue.
This unfair situation is a relatively simple matter to fix. If anyone knows the status of this proposed legislation which Sec. Hickey asked Sen. Sanders and Sen. Burr for, please post it in comments or email Nod.
Her testimony regarding this begins around 1:19:50.
http://www.senate.gov/isvp/?type=live&comm=vetaff&filename=vetaff031313&stt=9:18
asknod
Bethanie Spangenberg
kcraveiro
robinhoodesqvetsatty
Wesley McCauley
