OPEN DISSENTION AT THE BVA

Posted on September 8, 2022 by asknod

I received this email over a month ago via a fellow litigator. I didn’t publish it then because it was still undisseminated information. Since then, it has been openly shared and discussed. Having met and befriended several VLJs who always remember me when we cross paths again at a later date, I feel I owe them (and you) the right to have the BVA chairman’s dirty laundry aired. It’s no fun being made the scapegoat or whipping boy for the hierarchy’s stupidity. We all wear big boy pants in this litigation business. There’s no room for sabotage when adjudicative assets are in such high demand. 

The advent of the new AMA essentially provoked a compendium of two versions of VA law. By rights, anyone in Legacy must have waited longer to arrive at this point. Ergo, logic dictates that the BVA chairman(woman) in charge clean up and close out the old baggage before addressing the new- advancements on the docket excepted.

Likewise, it would follow that if you could hire within the ranks of experienced staff attorneys who could begin as VLJs without a year’s training to become proficient, that it would greatly benefit our Nation’s Veterans and help greatly in decreasing the backlog. But noooooooooooooo. The chairman elected to hire 45 new VLJs.  Of that number, we now have 37 sitting VLJs who have to have their VA underwear color-coded (yellow in front, brown in back) in order to get them on right. In fact, lowly VSO service officers probably know more than these VLJs with no JD whatsoever.

Who’s the rocket boy or girl who dreamed up this fustercluck? Does it even matter once they clicked send? I speak as a Veteran when I say that I’m appalled but not the least surprised. I’ve been playing VA poker since 1989 and this is just more of the same eternal ineptitude we have come to expect. No matter how advanced VA becomes via computers, there are ample ways Government can invent roadblocks to logic and sanity. The idea that anyone could authorize this without oversight or three signatures is even more evidence that the inmates have taken over the asylum.

So, if you’re wondering why you’ve been waiting 1059 days for a hearing, The VLJs in DC want to let you know they’re even more disgruntled than you are.

Concerned-Judges-Letter_final1_stripped

Posted in BvA and VARO CUE DECISIONS, BvA Decisions, BVA Hearings, VA Agents, VA AMA appeals knowledge, VA BACKLOG, VA Conspiracies, vA news, VA statistics | Tagged , , , , , , , , , , | 6 Comments

SMC N– NEVER HEARD OF IT. GIVE HIM AN S

Posted on September 5, 2022 by asknod

You won’t see me write very much about SMC N because it’s the “hump” rating. To get there you need to have- at a bare minimum, loss of use of the lower extremities with one extremity useless above the knee (M) plus a 100% separate and distinct disability, or, loss of use of a hand and a foot with loss above the knee (M) plus the above 100% disability, or loss of use of the upper extremities (M) plus that extra 100% schedular, or… being so blind as to need the aid and attendance of another plus an additional 100% for another separate and distinct disability in nature. The separate and distinct disability could be Parkinson’s (neurological) or IHD (cardiovascular) or COPD (pulmonary). If VA has already given you A&A for the blindness because it isn’t total blindness, this still works (M). The key point is you have to arrive at M via the degree of your disability in order to get the 100% schedular full-step bump under §3.350(f)(4) described under SMC P.   

Most folks don’t get to SMC N for a multitude of reasons. First, If you’re using VA’s guide to the Galaxy (Part IV), you’ll notice it somehow omits discussion on the above. Some of these scenarios can certainly be found in SMC P which would require investigation. I mostly recite from my memory of past cases but I don’t remember every possible one listed in P. For intensive study of the why and how of SMC. I strongly suggest reading Breniser vs. Shinseki about five or six times until you have dreams about it.

(d) Ratings under 38 U.S.C. 1114(n). The special monthly compensation provided by 38 U.S.C. 1114(n) is payable for any of the conditions which follow: Amputation is a prerequisite except for loss of use of both arms and blindness without light perception in both eyes. If a prosthesis cannot be worn at the present level of amputation but could be applied if there were a reamputation at a higher level, the requirements of this paragraph are not met; instead, consideration will be given to loss of natural elbow or knee action.

(1) Anatomical loss or loss of use of both arms at a level or with complications, preventing natural elbow action with prosthesis in place;

(2) Anatomical loss of both legs so near the hip as to prevent use of a prosthetic appliance;

(3) Anatomical loss of one arm so near the shoulder as to prevent use of a prosthetic appliance with anatomical loss of one leg so near the hip as to prevent use of a prosthetic appliance;

(4) Anatomical loss of both eyes or blindness without light perception in both eyes.

That’s a pretty tough menu to order from so you can see most, if not all Veterans, are going to have to build this carefully in order not to arouse suspicion. Mark my words. I have a professional reputation and would never resort to illegal methods or chicanery to win my client’s claims. I proffer a good example in the Buie vs. Shinseki case. Jim Buie just happened to do what I do quite by accident. Or  vice versa.  I’ll swear I’m not bogarting his patented, proprietary technique but my actions probably do mimic what he set out to do. The major difference is I always aspire to R 1, not S.

If any of you read my most recent post on boosting the Donmeister up from L to M at his HLR, you’ll recall I filed him for MDD secondary to his blindness. Again, I’m not stretching the truth. I read his CAPRI/ VistA records and spotted the diagnosed disability. Don has 10% for tinnitus and 20% for DM II=30%- a wee bit short of the 60% I needed to get his SMC S. MDD was fair game so I took my best shot. I’ve had Donbo flashed for hardship ever since he went blind and the wife had to quit work and come home to take care of him. It’s still in the corporate flash file but I always seem to disremember to mention it to my CMA. It speeds things up like getting c&p exams expedited. So does being 85 or older.

Well, shut the front door. We got an honest QTC psychologist who didn’t mince words on the subject. She came up with some daisies of cites to psychological peer reviewed articles on the subject of horrible, life-altering injuries provoking deep depression. Whereupon she pronounced the Donster 100% damaged. I figured we’d end up doing a raise-and-call VA poker game over the next year from 30 to 50 to 70% but here they’ve handed Don the golden egg. Cool beans, huh?

If Don is 100% for his MDD alone, it’s a cakewalk to turn this into an additional A&A under  a SMC L because the depression is a mental disorder whereas the blindness is a Malaria-induced disease. Being totally zeroed out on the brainbox almost always implies a need for help- the aid and attendance of another. Basically, all this boils down to is you’re now about a VAF 21-2680 away from your private psychologist saying you cannot accomplish one or more of the activities of everyday living listed in §3.352(a). Who cares if the boxes checked on the 2680 duplicate  the same disabilities you claimed due to your blindness? In SMC land, you’re free to pyramid. The need is aid and attendance. Just because two separate disabilities provoke the need is immaterial. Take one away and you’d still need aid and attendance.

You can say ( or perhaps your psychologist can say) that your depression has destroyed your will to live. If your wife wasn’t shoving food down your gullet like a French goose soon to be pâté de fois gras, why, you’d dry up and die. Or you can’t see to eat your Thorazine or Metformin. Whatever. The point is, if you need aid and attendance, you get it if you get the magic 2680. 100% isn’t always the kicker either but it certainly will be instrumental if you have to appeal. If you got a 3 METS reading on your IHD under DC 7005, you’d need A&A for that too. Ditto a whopping big rating of Parkinson’s disabilities.

Now, in the instant case, because Don has been awarded SMC M for being so blind as to need A&A under §3.350(c)(1)(v), the additional award of 100% for the MDD allows the bump up of one full step from M to N. But here the party ends if you didn’t know any better. He can’t get a half step bump for anything and he’d still need to get a K in order to get the next bump following this path to get to SMC O. There, too. the party would end unless… well, unless we stir some more A&A into the mix.

The way to come at this is not get fixated on SMC N. As I said, it’s a hump rating. You’d never get there via amputations. It’s an anomaly. Go around it. Most of us who do this for a living (SMC law) get two A&As or one a&a and a loss of use of extremities. Here, in Don’s case, they’ve gift-wrapped a 100% rating for MDD without four years worth of theatrics. We can proceed apace to an amenable psychologist who will write a lovely IMO saying Don is irretrievably broken. And, just as Don’s SMC L magically transformed into a M and now an N, so too, will it metamorphose into an O and on to R1. That’s why I compare this to the Chutes and Ladders game. The master of this game once called it “the art of the possible”.

So here are the rating and the code sheet. But get this, the SMC calculator seems to have gone off the reservation again. Instead of the bump under §3.350(f)(4) up to SMC N, those silly raters have awarded him SMC S for having a 100% rating and now and an additional 60% or more. I can’t make this shit up. It’s worse than the blind leading the deaf. I was going to call it in or email the rater and point out the error as a CAR but I’ll wait and do it with an HLR next week. I wonder if they think SMC S is a greater award than N because it’s alphabetically higher…. Say it ain’t so, Denis.

redact MDD 100% 8.30.2022

redact Code Sheet 8.30.2022

And now you see that you can get to SMC N without cutting off a single thing. Look Ma. No prostheses. Who woulda thunk it? Today’s blog is brought to you by the letter N.

P.S. Happy Labor Day to you all. Let us all pray for the health of our Nation on this august occasion.

Posted in Independent Medical Opinions, KP Veterans, Nexus Information, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , | 2 Comments

FORT FUGETABOUTIT (HOUSTON)–A PAIR OF JEANS THAT FIT JUST RIGHT

Posted on September 2, 2022 by asknod

In 1973, I was unceremoniously evicted from the ranks of active military personnel. My crime? Why, being antisocial with passive aggressive tendencies. Since then, it’s metastasized. I have become social with active aggressive tendencies. This personality disorder pays off in winning VA claims for yourself and your buds. Good thing it didn’t mushroom into a full-blown psychosis like PTSD or something. Huh? Be that as it may, I will say having the VA rolodex of employees’ email comes in mighty handy when you can see the VA goombahs are ponydogging you.

The definition of ‘ponydog’ is a dog and pony show put on for your benefit to make it look like the VA’s busy little elves are hard at work on your claim(s). You receive oodles of mail telling you how busy they are. They send you VAF 21-4142s that ask you-  Johnny Vet – to give them permission to ask for your records. They will refuse to pay your provider for taking the time to reproduce them. If your provider wants a fee for this work, they’re done and out of there. No records and you think that box is checked. The form also instructs that filling it out and submitting it may add a year or more to your claim. So men, take heed. Reading the instructions on VA forms is de rigueur. I’ve walked point on this one already back in ’94. Bad idea. Go get the records yourself and send them in to Janesville, Cheeseconsin.

I’ve litigated a lot of claims with the Boys at the Puzzle Palace in Houston. Seems like virtually every time I get a client down in that neck of the woods, and file the POA, somebody from Fort What in the Name of Sam Houston reaches into the National Work Queue (NWQ) inbasket and grabs it out and starts working it themselves. They camp out on it. And boy howdy you don’t want that to happen to you unless… well, unless you have a VA rep with active aggressive tendencies that dwarf even theirs. I’m about as sociable as a Mary Kaye© cosmetics lady…with a black belt.

 

I suppress that rude, crude, unattractive, socially boorish part of my persona and put on the Johnny VSO hat. Remember? This is all about the Veteran, guys. It isn’t meant to be a trap for the unwary. The Boys in Houston just nod politely and deny with some of the craziest M 21 quotes. Well, that and a handful of 38 CFRs with no follow on. §3.350 can be a lot of different things depending on what subsection follows. It could be the difference between SMC S or T. VA ain’t telling.

Filing anything at Fort 362 to me is an act of faith. I bow my head and ask the Big Guy to grant me the patience not to use bad words or embarrass my fellow VA litigators. Golly gee, we don’t want to get a bad name and be called VA ambulance chasers by the DAV (again). So grab an IPA and some Do-ritos™ and listen to this one.

I wrote about Andy and his travails. Andy was Navy and had even reenlisted for the second 4 and was on his way when he came down with serious COPD. Asbestos anyone? They 86’d him with an honorable and he found himself unemployed. By 2008, he was 100% P&T for it. Then things really started going south medically. By the time he found me he was SMC S and Houston seemed awful bound and determined to keep him right there. No amount of reasoning with them worked. It was like Andy was a goldbrick, a malingerer, a charter member of the Food Giant© Slip-on-the-floor Club. In a word, trailer trash seeking a VA welfare handout.

I gave up and took him up to the BVA. In the meantime, I whipped out my patented attack operation. I filed him for  everything wrong with him. I filed him for increases to everything he was already rated for at less than 100%. The VLJ could see all this because it was back in Legacy times. Now, don’t get me wrong. Andy was no welfare queen. He was a legitimately entitled Vet who couldn’t get any traction in Houston. Just like most every other Vet I rep out of that VARO.

Winning at the BVA would be the end for most claims if the raters are intelligent and knowledgeable. But what do you do when you explain that they just gave your boy SMC L and overlooked his entitlement to M and they tell you to piss off and cancel the claim? And when you finally give up and CUE them by sticking their faces in it, you think they’ll finally get it. But nooooooooooooooo. They still screw it up and this time it backfired from SMC M into R1. That’s about a $4,000.00 dollar difference per month. I guess they were hoping maybe ol’ Andy might not be all that bright and see he got the brown end of the VA punji stick.

 

The biggest problem I see here right now-fully 28 days after the BVA decision- is that from reviewing the VBMS folder, a body can see they’re searching desperately through the old STRs and military personnel records looking for some UCMJ violation or willful misconduct like huffing spray paint propellant they can pin the COPD on and toss it for fraud. What the hell, over? Andy was clean as the driven snow. He didn’t even go on report for a messy bunk in 4 years. They searched from August 6th until August 29 and came up emptyhanded. The rater begrudgingly cut the paper and promptly decided that VA’s  Fiduciary Service needs to take a gander.

Holy shit Batman. Just imagine if you hand his wife that kind of folding money.  That’s a pretty tempting wad of baksheesh. Why, she might just toss being her husband’s caregiver and leave town with all the Moola and her new 21-year old personal fitness trainer. Seriously. Only in Houston, folks. When we finally got the last two snafus cleared up and all the retro in the bank, there was no talk of giving Mrs. Andy a Criminal Background Investigation. So why now, at the very end of our five-year tête à tête? R1 is the answer. Even though they’ve lost the battle, they can’t concede the error without inflicting more suffering. Keep looking for willful misconduct, fools.

redact R1 rating 8.30.22

Winning the R1 banana is not all its cracked up to be. Usually you are mega ill and, to put it mildly, not at the top of your game. The tradeoff is you finally don’t have to liquidate or give away all your possessions to go on the dole and Medicaid. Or (shudder) go to VA for “free” medical. It gives you more options.

I find it unconscionable how the delay actually can cost some Veterans another month’s 20% agent fee for the month beyond the BVA’s decision once entitlement to a claim is granted. Here, Andy “lucked out” inasmuch as the decision was cut on August 30th but he won’t see the check clear the bank for at least ten days from today. Maybe more when you consider Houston is ponydogging with all these holds.

 

I reckon there’s a special place in the inner rings of hell for scalawags who go out of their way to delay the inevitable or simply stall out of spite. I darn sure pray it isn’t because of me and my evil reputation as a litigator. At any rate, whatever the case, it’s the only VA poker game in town and I feel like I’m a card counter. It comes in handy.

Anyway, congratulations go out to Andy for finally winning the R1. He joins a rather rare club of other Veterans in the upper ranks of SMC. Considering how hard VA fights to fence us out of this entitlement, I’m surprised I haven’t gotten my ass kicked doing it yet. Win or Die, folks. As old Janis sang, “Freedom’s just another word for nothing left to lose.” Andy and his wife now have a pair of jeans that fits just right as the song goes.

 

Y’all come back now, hear? I’ll have another yarn here for you directly.

P.S. I was just apprised of the news that Ms. Jane Fonda has revealed she has non-Hodgkin’s lymphoma. I think I speak sincerely for all Vietnam Veterans when I say that we wish her a speedy recovery and complete remission. No hard feelings.

Posted in Aid and Attendance, SMC, Tips and Tricks, VA Agents, vARO Decisions, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 7 Comments

LINCOLN LOG SMC UPDATE

Posted on August 22, 2022 by asknod

Cupcake and I attended a soirée for a politician wannabe recently. A rude, pushy woman we know got in my face and asked my opinion á-propos  Roe versus Wade. Hoooooo, doggies. I thought for a few seconds and finally came up with what I was sure was not the correct, woke, transparent answer she sought. I said “Rowing is certainly faster assuming you’re talking about the Rio Grande- although global warming has certainly made wading possible judging from watching CBS.” I was rewarded with getting to witness  gin and tonic spilling all over her blouse and a few loud words of disagreement. Turns out she’s a teacher. I plumb disremembered that.

Being diagnosed with an antisocial personality disorder allows one to be opinionated in the New World Disorder without fear of recrimination. I recall a cocktail party back in 1983 at a very high end affair in Medina WA. After having been “outed” as a Vietnam Veteran inadvertently by an acquaintance, a similarly opinionated woman started spraying me with ETOH-laced spittle asking me how I could live with myself after  having killed all those poor women and children.  My rejoinder then was equally appalling- “Well, it’s actually quite simple. Since they can’t run as fast as men, you don’t have to lead them by as much.” Call it what you will, being passive aggressive serves its purpose. In sum, VA folks find me irritating.

I love to argue and Higher Level of Review (HLR) informal conferences give me a wonderful opportunity to quote real VA law -not made up M 21 drivel. There’s probably nothing more refreshing than demolishing  a poorly crafted denial based on defective legal reasoning. The latest foray is an example.

What disturbs me most is that all these rules are there for all to see. How you can misinterpret a regulation like §3.351(c)(3), which specifies that aid and attendance is available based solely on a factual need, but nevertheless in the same breath demand a Veteran have a 100% schedular rating/TDIU or a compendium of Parkinson’s conditions adding up to 100%  before meeting the M 21 super  requirement for aid and attendance?  HLR guardians of the VA fisc love to drag out their pet copy-and-paste phrases like…

“Also, Parkinson’s complications independently combine to a 100% evaluation. Therefore, veteran meets minimum requirement for aid and attendance per M 21-1 IV.ii 2.H.8.b.”

When I interrupt and ask what the supportive authority in CFR or USC is, I get the venerable 1000-yard deer in the headlights stare and a “Huh? Whadyamean? I’m not following you.” Thus, it’s rewarding to have a reviewer actually look up your reference to CFR and say ” Wow, I didn’t know that was in there. When did they add that?”

The truth is appalling. VA raters have no clue what they are about. They’re entirely dependent on a computer manual to instruct them on what (or how) they are to accomplish the simplest task. Worse, the manual changes about 135 times a year so it’s out of date in three, two one… Bingo. Why even waste your time printing it up if the next CAVC decision or OGC Precedential opinion will render it incorrect? It’s rumored in VA hallways that it takes three signatures to get clearance to go to the loo.

Now, let’s take it up a notch and talk about SMC. Before every HLR informal conference I hold with a reviewer, I ask them point blank if they consider themselves well-versed in the “art” of SMC. I’m not trying to embarrass them ahead of time. Perish the thought. I’m merely trying to gauge their level of knowledge. Considering it confused the bejesus out of me for 4 years, I can only imagine a VA rater’s comprehension skills if all they do is type in the diagnostic code and rely on what they see pop up. Besides, their ignorance becomes all too apparent once you get into the discussion. Most Reviewers are silent and and would have you believe they are there to absorb. Make them commit. Make them comment. Force them by baiting the hook… “Well, the Examiner denied and said it was because ____ but the rules are thus and so… based on §3.352. I didn’t write this. You guys demand Chevron deference so which is it? Does he have to have a total rating or can he simply demonstrate a factual need as the regulation requires? There simply can’t be two correct answers to this question. ”

Which brings us to the VA’s fabled “SMC Calculator Computer”. In VBMS, the document type is defined as “Rating Calculator worksheet”-e.g., a product of simple mechanical input.  Below is the attached calculator result on August 10 generated by the rating decision. Now, assuming it’s somehow tied into 38 CFR or 38 USC, the result should be an automatic SMC at the M rate under §3.350(c)(1)(v)-“Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.” I mean, they’ve now granted the SMC at the L rate under §3.350(b)(3) for a&a. Because SMC is so convoluted, Akles precedence demands  investigation of ancillary entitlements.  Seems it would just require pushing “print” to get the correct answer. So how could it give you an incorrect lowball of SMC L unless… unless… it’s rigged.

The reason we know this is when Don’s original RD came out granting only 90% with that patented Get Smart Agent 86 phrase “Missed it (a&a for blindness) by that much, Don.”, That same SMC Calculator gave him an automobile allowance of $20,773.00 but no SAH (Specially Adapted Housing) grant for $101,800.00-but it did when I reminded them they forgot it at the first HLR for a&a. This ‘computer’ is nothing more than a fig newton of the imagination. It’s on a par with the one the Wizard of Oz was operating behind the curtain. Fool’s gold. Three-card Monte. Or, I reckon if it really is a VA computer, then it’s to be expected that it’s going to lowball you and have an error rate around 74% as the CAVC observed over a decade ago. Move along folks. This isn’t the droid you’re looking for.

But somehow, the calculator above chose to lowball the Donbo and only granted SMC L. Only after I filed the 996 HLR and accosted the booth lady a second time, did the magic SMC calculator change and disgorge a SMC M. Seems to me it required a subtle nudge by a warm living being’s digits to get it to do that. The question remains why if it’s all automatic. Obviously, there’s nothing automatic about SMC. You get the correct rating using the AMA HLR cattle prod.

What’s even more amazing is that they went dumpster diving into §3.350(f)(2)(i) and excavated a rating for SMC L 1/2 (LB-2) and attempt to say the Donster is also entitled to it as well. It’s still lower than M so why even go there? Even they must be able to gather it might be pyramiding to offer it.

Now, let me say I’m not a misogynist nor do I hold women in low regard (with the possible exception of my ex-wife). Quite the contrary, I was taught to walk on the outside when escorting women to protect them from errant vehicles. I was taught to open doors, allowing them to go first and help  seat them at supper. I’m sure there are about another gazillion rules but I wish to convey that I was raised properly. With all that said, I find it interesting that I’ve had a mess of HLRs and every last one was held by a woman. Whoa. I guess I better back that boat back up to the dock and say that it appeared, based on my auditory input, that the HLR conferences were conducted by folks who had a higher vocal tone that led me to believe they were of the female persuasion. It could be that they weren’t. Could be they metamorphosed. I didn’t check or ask for their pronouns. Most all of them give me their first names only. I have to go into VBMS notes to find out their name rank and airspeed.

But… wait for it. If you so choose, you can ask to have your pronouns listed with your VA Outlook email address in VBMS. Boy howdy we sure wouldn’t want anyone using the wrong pronouns once they’ve been put on notice. We don’t even want to go there.

So, without creating further uproar, here’s the latest financial upgrade for the Donmeister to SMC M. It’s temporary as I’ve already filed him for MDD secondary to his blindness. I’m determined to get him to R1 and the way I see it, he needs help taking his meds because a) he can’t see them and b) his depression causes him to forget to take them. Bingo. That’s the factual need for a&a all over again. SMC Lincoln logs, folks. Easy to assemble. We call it VA Poker. Read ’em and weep.

redact SMC M RD 8.22.2022

SMC is an art form. You have to think in color rather than rely on black and white. You have to have vision to “see” the entitlement. You have to have never been taught law and be a country bumpkin like me with no JD to even think you can attempt this-let alone hornswoggle them into giving it to your clients. A large dose of antisocial personality helps, too. Remember, back in 1994, VA told me I’d never been in Vietnam and to go engage in flying intercourse at a rolling donut. A Veteran doesn’t forget combat. A Veteran doesn’t forget those he left behind. I don’t get mad anymore. I get even. Hence my Win or  Die™ sentiments about VA claims and appeals. VA law tends to separate the ribbon clerks from the poker players.

To those of you who litigate for a living, I strongly suggest utilizing the HLR platform more frequently. I know some, if not most of you, feel it’s akin to pissing on a flat rock and getting your shoes wet. Might I suggest filing 996s with no legal brief to illuminate the error you hope to reverse or revise? Keep them in the dark about why it is you object and on what grounds. Don’t even allow them to do their homework and assemble a punch list of M 21 cites to defeat your argument beforehand. I’m batting .1000 using this new ploy.

Welcome to the SMC club, Don. It’s a very small club and I aim to increase the membership rolls with many many more of you-the good Lord willing and the creeks don’t rise…

 

 

Posted in Aid and Attendance, All about Veterans, Higher Level of Review (HLR), KP Veterans, SMC, Tips and Tricks, VA Agents, VBMS Tricks, Veterans Law | Tagged , , , , , , , , , , , , , | 5 Comments

LINCOLN LOG SMC-PREPARE THE PUNJI PIT

Posted on August 16, 2022 by asknod

Some litigators are recalcitrant to reveal their techniques for getting from A to B. I don’t feel that way. This is a true Do-It-Yourself (DIY) site. I don’t have time to do every claim that comes through the door. If I find a better path or a superior shortcut, I don’t mind sharing it. No pay walls to get to see what’s behind Door #3. It’s Monty’s Cookie Jar every day of the week here at asknod. What’s better, we use live ammunition. I show you the latest successes for a reason. If I, a chucklehead who graduated 59th in a class of 64, can win these, imagine what you could do. 

But before I dive in, I want to share a failure. Sadly, today, I had to refuse to represent a Vet who really needs it. That hurts. It’s a rare thing to leave a fellow Vet behind. I wish it could be fixed. I had referred him to another Agent whom I trust and respect only to find out he didn’t feel the other Agent was “committed” enough to measure up. So he ‘let him go’ and came back asking me to rep him. I understand that MDD and it’s many iterations can wreak havoc in a body’s mind. Boy howdy, I’m no stranger to that. The problem begins when you let that little guy upstairs in your noggin run the show and destroy what others are doing to improve your financial future. Finding a high-calibre rainmaker is often 80% of winning. The only remaining task is patience, a shit ton of electrons, some VA forms and a private IMO. Stir, fold in the supplemental IMO after the denial, bake in a slow VA oven at 300° for 125 days and serve with champagne. My concern is I would be the next casualty of this and have wasted my time trying.

Firing said rainmaker just as he gets your file set up and begins to dumpster dive into your VBMS e folder all the way back to 2003 is counterproductive to winning. The whole idea is that you’ve spent X long years trying to accomplish this and failed.  If you’ve actually found a law firm willing to rep you, statistically you are already a chicken dinner winner.  Why wouldn’t you let an expert fix it with a proven technique? Sadly, that little man gets in the way and tells you your lawdog isn’t on it 9-5 M-F and he isn’t earning his paycheck.

This isn’t the first time I’ve seen this  self-destructive rep-shopping phenomenon. The horrible downside is that if you’re lucky enough the lasso a new rep, he’s going to see the trail of lawyer detritus in the efolder. Every rep you fire leaves documents in the file-be it a DAV VSO or a big outfit like Bergmann and Moore etc. When your FNG law dog gains access, he’s going to get skittish and most will pull the plug right then and there and say thanks but no thanks.

What’s worse, if you manage to win, you may have three law offices arguing over the 20% winnings. The VA’s OGC will wrap that puppy up tighter than a tinfoil ball and it may take four years or more to get it sorted. Why tie up resources for years and only get a 1/3 of the pie? Law dogs have bills to pay. If you show up with a Hansel and Gretel trail of 22a breadcrumbs, you’re gonna get treated like a leper.

But let’s talk Lincoln Log claims for SMC. I started fresh with Don. A clean slate is the best. The water isn’t all muddy and stirred up with confusion. I filed a brand new 526 pre-AMA even though he’d filed back in ’08 for detached retina due to Malaria. He was on the right track but his DAV rep had never gotten the email on Caluza/Hickson/Shedden. And, like millions of Vets before him, he got the bum’s rush. I planned for this and promptly obtained an IMO. Sensing another denial at the local Fort Forgetaboutit, I filed it at  the BVA. Just about that time the AMA kicked in and everything was in a state of confusion. The BVA, now in AMA mode, promptly found a ‘duty to assist’ violation and remanded  him back here to Seattle for another c&p… with an uncontested IMO.

This time, the optometrist saw the ophthalmologist’s IMO and the white wall of doctors kicked in. We won. Not to be defeated, VA got a bogus c&p nurse to opine that he wasn’t totally blind-just 90%. Boom. There went SMC L for A&A. Or so the raters thought. I ordered up a HLR and pointed out nobody had even discussed sending this back for extraschedular consideration to the Director of Comp and Pen. Whoosh. Off  to DC for a 3 month summer  delay.

Since it’s pretty hard to see your eyedrops bottle-let alone the eye dropper to put them in, or fry bacon and eggs in the morning without burning the house down, the Poohbahs agreed the Donbo deserved A&A. But… here’s the SMC trick. I’d simply asked for A&A under §3.350(b)(3) based on the need for A&A-not on §3.350(b)(2) for being so blind you can only figure out if it’s AM or PM. And here’s why. As most know, in order to get a bump up from L to M, you normally need a spare 100% rating for a separate and distinct disability. But read §3.350(c)(1)(v) more closely et voilà-

(c) Ratings under 38 U.S.C. 1114(m).

(1) The special monthly compensation provided by 38 U.S.C. 1114(m) is payable for any of the following conditions:

(v) Blindness in both eyes leaving the veteran so helpless as to be in need of regular aid and attendance.

You’d never be able to hornswoggle the ratings pukes to cough up the SMC M right off the bat. They’re too niggardly to even consider it. No way. You lead them into the ol’ asknod punji pit and let them step in.

You ask for a&a because it’s their next logical step. Since they can’t figure out SMC any better than Homer’s monkey Mojo, they auto default to §3.350(b)(3) for a&a because that’s what you asked for. Once it’s granted, it’s a finding of fact. The Donmeister needs a&a. Give that man an L. Nobody bothers to read the small print under M. They only think of that as a possible bump under §3.350(f)(4) or based on one of these scenarios:

(i) Anatomical loss or loss of use of both hands;

(ii) Anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place;

(iii) Anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place;

(iv) Blindness in both eyes having only light perception

Remember our good friend §3.103–it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3. And that includes SMC.

VA’s SMC Calculator is a hoot. You virtually have to enter all the parameters into it and even then it “autocorrects” to ignore 38 CFR. It only obeys the dictates of the M 21. Therein lies the 85% error rate in VA SMC adjudications.

So, here’s the extraschedular rating for SMC L a&a all the way back to the original 526 filing. Below it is my shiny new HLR claim for SMC M. I can’t wait to see how they’ll try to squirm out of it. I expect some inane logic like “Well, Mr. Graham. Obviously you’re not very well acquainted with SMC or you would have known the Donster is only 90% and you’d have to be 100% schedular to qualify for SMC M. Mr. Don only has a 20% for DM II and a 10 for golden ear ring so he doesn’t qualify even if you added them all up together. We oh-so-wished we could give him the M but our hands are tied.” Bullshit. The truth is they don’t even know the reg exists. They just make this shit up as they go along.

redact10.29.21 RD

Redact a&a denial

Redact SMC L RD 8.10.22

redact HLR M filed

Never tip your hand and show your cards to VA. Litigate in bits and pieces. That’s the new AMA technique. Everything must be digestible and cut into little claims pieces. Seems at present, it requires ten c&ps just to make sure. If it’s a shit ton of money, it’ll take 20 c&ps in a desperate effort to make an end run around Mariano v Principi and deny.

I look forward to sharing the SMC M award with the readership. Now, here’s another sparring technique. I just filed him for MDD secondary to his blindness. I’m not poking holes in the dark. It’s in his records. I just plan on building a new SMC separate and distinct for another a&a and his eventual increase to SMC O and R1. Lincoln Logs, folks. Think SMC Lincoln Logs all the time.

P.S. A wonderful Higher Level  of Review Officer called me this morning and asked to schedule an Informal conference. Since my argument for SMC M rests on law and not the facts of the case, I asked to conduct the Informal conference right then and there. She readily conceded error and agreed to get it revised to comport with law. And just like that, ol’ Donbo became entitled to SMC at the M rate all the way back to 10/2018… for the moment. This is how the system should work in a more perfect world.

a

Posted in Aid and Attendance, All about Veterans, HISA Grants, KP Veterans, SMC, VA Agents, VBMS Tricks | Tagged , , , , , , , , , , , , , | 3 Comments

PREGNANCY AND EXERCISE

Posted on August 8, 2022 by asknod

So, a Vet and his preggers wife go in for the pre-birth briefing on staying healthy and getting ready for the big day. The room is full of other husbands who have accompanied their wives….

Instructor: ” Good morning.  First, I’d like to share this with you soon-to-be mothers. Remember that exercise is good for you. Walking is especially beneficial. It strengthens the pelvic muscles and will make delivery that much easier. Be sure to pace yourself. I’d suggest making plenty of stops and trying, if possible, to stay on a soft surface like grass or a path.”

Gentlemen, remember -you’re a big part of this, too. You’re in this together. It probably  wouldn’t hurt you to go walking with her. In fact, that shared experience can be very emotionally rewarding for the two of you.”

The room suddenly became very quiet as the men absorbed this information. After a few moments, the Vet at the back of the room, slowly raised his hand.

“Yes?” said the instructor.

“I was just wondering if it would be all right if she carries a golf bag while we walk?”

Posted in Humor | Tagged , , , , , , , , , , | 3 Comments

BVA–(I CAN’T GET NO) SATISFACTON

Posted on August 5, 2022 by asknod

Have you ever had a claim go sideways over and over again ad nauseum? Hell, of course you have if it was the VA. Remember how they get to ‘construe’ what they think it is you’re asking for? Now imagine the intricate, convoluted rules of Special Monthly Compensation (SMC) that Johnny Vet tries to digest to no avail. Most use a VSO and file for SMC with little or no knowledge of what it is and the VSO promptly says “you can’t get there from here. You’re already 100% dummy.” He refiles on his own and they say “You’re not eligible.” They don’t explain what it is you need or what they would do in your shoes. You just get the wave off, go around again and keep turning left on final over and over until you hit Bingo and crash. And then you find me. 

I’m not one for blowing smoke. I don’t promise miracles. I promise justice. And most times, I eventually prevail without going up to the CAVC. Oddly, I’m still batting .1000 on everything I’ve ever touched. This is a case that exemplifies the old adage of ‘If at first you don’t succeed, try, try, again.’ I’d have to count how many times I tried to beat 38 CFR §3.350(e)(1)(ii) into some Houston RO Coach’s noggin to no avail. Trust me when I say this one took from late Fall 2017 until this morning.

Nasty, racist Veterans

Andy came to me via Hadit.com. I used to post advice on SMC there but that ol’ VA IMO shitlist I published cast a pall on their favorite go-to Doctor for IMOs. You know the one. His initials are CB and you’d remember him if you ever hired him. Apparently he’s on the bad boy list. From talking to BVA VLJs over the years at conferences, he’s considered suspect as to his “independent” opinions. Hadit used to be a red hot Forum back in the day but unfortunately the inmates have taken over the asylum and frequently offer atrocious advice to the detriment of those who seek it. But this isn’t about Hadit or casting aspersions on folks.

Andy was unique. He had a longstanding 100% schedular for  COPD (2008) and enough secondaries to run on to 8 sheets of paper on his Code rating sheet. Seriously. Talk about  a frequent filer. He wasn’t throwing claims spaghetti at the wall hoping something would stick. He was sinking slowly like the Titanic and VA wasn’t even listening. All those extra 10%s  they threw at him were merely to placate him. Eventually they toted up to enough to get to SMC S but it was obvious he deserved far more. SMC L would have been the very least award he was entitled to but Houston drives a hard bargain. No matter what he had wrong, he was stuck. And then they began lying about SMC. So he called me.

I immediately filed him specifically for the A&A due solely to all the stuff he was already rated for-the COPD being the ‘anchor’ for his A&A entitlement. VA contended all his ratings were being “used” to obtain SMC S so no dice. Huh? Seeing the spaghetti sliding off the wall and sinking down to the floor, I went up to the BVA and won it there. When it came back for the rating in Houston, they again dumped everything into one basket and said the BVA ordered them to do it that way. No bump up from SMC L to L 1/2 (or M) was available because the 60% for diabetes was being “used” to support the SMC L. But what they neglected to say was that his COPD was part and parcel of the A&A-just the DM II, the major neurocognitive disorder and the PN in all four extremities. That was the biggest financial mistake they’ll probably ever make. Shoot. Maybe not.

Now, if any of you have ever heard of Turco v. Brown or Prejean v. West, you’d know you only need one (1) item in the §3.352(a) laundry list to win A&A. Additionally, you don’t even need a solid 100% schedular rating to queue up in the A&A line for it. VA’s M 21 argues otherwise- especially at the Houston Puzzle Palace. More importantly, if a Doctor fills out a VAF 21-2680 saying you can’t accomplish one of those items in §3.352(a), and you demonstrate a factual need for A&A under the auspices of §3.351(c)(3), then you get it. Well, everywhere except Houston (or St. Pete or Seattle) or any of the other Fort Fumbles across the VA’s fruity plains for that matter.

The actual truth is scary. You can get A&A for a Vet with only a 40% rating and a 60% TDIU. I know. I’ve done it. It’s called an extraschedular consideration and requires sending it back to the Director of Comp and Pen for his personal imprimatur. That admittedly is the hardest way but a stellar example of the fact that what VA spews out as regulation is a bunch of hooey. They just make this shit up and insert it into rating decisions as far as I can tell.

So, try as I might, I couldn’t get Houston to budge on the §3.350(f)(4) bump from SMC L to M based on Andy’s extra 100% for COPD. They went sideways and said it was … wait for it… being used to support the A&A. But that’s not what the rating decision said after the BVA win for A&A. So I filed a CUE in August 2021 after failing to get any traction. Bingo! On Aug. 27, ’21, almost a full seventeen months after the SMC L win, the Houston overlords agreed with me and said by golly wolly they were wrong. Here’s your SMC M. And, because we stepped on our necktie, we’re even going to grant the SMC L for the A&A  back six months to February 2018 because that’s the day you filed your ITF (intent to file).

Unfortunately, some folks don’t examine their handiwork before they push print. Andy was only 50% for bent brain on February 12, `18. He would not get a 100% schedular until August 23, ’18 and VA had just  awarded the A&A back to a date where he couldn’t qualify unless… well, unless they substituted the 100% COPD as the ‘hook’ for A&A. But they didn’t. They incorrectly insisted he was 100% for bent brain on February 12th.  I filed a VAF 20-0996 HLR a week later and pointed out this impossibility to the HLR reviewer.

It didn’t faze her one iota. Let me give you an idea how stupid she was. She revised the rationale for the A&A from the bent brain disability and blithely substituted the COPD. And just for shits and grins, threw in the DM II on top to fat it up. But, being paralyzed from the neck up, she decided to throw in a phrase that wrecked all her illicit handiwork. She stated that now the COPD with DMII-without even considering the bent brain– was the predicate for A&A. Ruh oh Rorge. All of a sudden we had two A&As on the table. Houston, however, couldn’t ‘see’ it. I reckon they’re gonna have 20/20 vision here directly. Somebody there has to write up the New Testament according to St. VLJ.

When VA grants something, it’s akin to pulling the pin on a M 26 and hucking it. You can’t run out there, grab it, stick the bail back on it and reinsert the pin. Prussic acid is very corrosive along about that time. Sure, VA can call CUE on themselves and revise a decision. What they can’t do is rearrange it and change it over and over until they get it right. It’s cast in stone. They gave him A&A on March 4, 2020 because “the BVA said to”. When I called them on the error to award the SMC M, all they had to do was grant it. By going back and granting a new effective date unsupported by a total rating for bent brain, they were “re-CUEing” themselves without calling a CUE. That’s a Bozo no-no in forty nine states. Once you grant something, it’s a done deal-assuming arguendo you didn’t lie, cheat or steal to get it.

Silence is golden

Try as I might, I could not pound that rationale into the Houston raters’ noggins. They just kept coming back with that inane argument that all the shit had been used up – ergo there weren’t two A&As. Besides, in VA land 2 A&As is an impossibility- kinda like pots of gold at the ends of rainbows and unicorns.

By now, I had two BVA appeals in the pipeline. One was for the L 1/2 because by moving back the award date, it pushed him into §3.350(f)(3) for a half step bump. But no, the extra 50% disability was being used for… yep… the A&A. It was like arguing the Earth was flat as far as they were concerned. Besides, by now they were laughing their asses off and just kept denying each filing attempt I made at logic and reading the regulation correctly faster than I could get them CEST’d (CEST is a VA acronym for Claim Established) in VBMS. Their personal best was a filing on 12/10/’21 denied on 12/15/’21.

What’s a litigator to do? Why, write a Gutenberg Bible explaining it to the BVA Veterans Law Judge (VLJ). We’re taught to write as short a legal brief as we can to argue our case. Loquacious, redundant briefs are frowned upon. Nevertheless, it took me no less than 16 pages just to convey how ignorant these folks were. Apparently it worked. Check it out.

Redact NOD legal brief

redact R1

Last night I discovered that the BVA had shitcanned one of my NODs. This morning I discovered they’d rolled it all into the other one. I disagree that they were duplicative but why protest. I had already begun typing up  a revised NOD last night and was about 8 pages into it. But it was all wasted effort. After I got my ears lowered at the local beauty salon this AM, I came home, sat down and pulled up VBMS. There, in all its splendor was Andy’s shiny new R1 in his e file. Much ado about nothing. Andy and his wife were tickled pink, too, by the way. Check out the last paragraph on page 4 where the VLJ informs the reader that Houston’s finest are laboring under an M 21 misconception. Say it ain’t so, Denis.

Crew Chief Down!

I don’t reckon I can convey how much I enjoy fixing broken claims. I consider it an honor to bring justice to a Vet. With SMC at the higher levels, the monetary remuneration after 4 years is often over six figures. That’s a mega life game changer for virtually every Vet I represent. Oddly, I’ve never met any filthy rich clients. Virtually every one is in danger of having a mobile zip code under an overpass or  knocking on Heaven’s door.  Thank you Andy for entrusting your legal woes to me. I’m just pissed that VA caused you to wait four years for justice. That was uncalled for. And that’s all I’m going to say about that.

Posted in Aid and Attendance, All about Veterans, BvA Decisions, Earlier Effective dates, R1/R2, SMC, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , | 6 Comments

OUR NEW VA PACT ACT AND THAT PESKY PROBLEM AT THE BVA

Posted on August 4, 2022 by asknod

Wowser. Congress finally got it sorted. I’m not completely impressed or floored just yet. What’s certain is that, as usual, in a few short years, we’ll find out what was left out, deliberately ignored or never contemplated when mapping out this juggernaut. Just as we’ve discovered the magic AMA isn’t even touching the backlog problem as promised, we always discover some boneheaded “assumption” upon which billions were bet. Kinda like that intractable Oracle/Millennium Cerner EHR medical computer at $16 Bil and counting. I’m betting Congress will shoot out the tires along about when it hits $25 Bil and they can’t figure out why it’s still killing Vets. Please, Congressman Tarkano. Just another $10 bil. We’re almost there. 

 

What’s in this pork barrel? Lots of stuff I don’t think belongs and lots that’s way overdue. Vietnam Vets got Hypertension (HTN) and monoclonal gammopathy (MGUS). That’s a nightmare in its own right brewing. VA will now have to go back and find every one of us Vietnam Vets who put in for HTN secondary to DM II or IHD. Believe me. They’ll take about 15% or the raters off the normal flow of intake for new claims and devote them to this alone. Expect one-year delays as in the days of old when there was one line VA examiner for every 200 ready for decision claims. If it’s one for a 0%, add a year. Chances are most of the HTN and MGUS stuff will come back as a 0% and require a new supplemental to get a legitimate rating. Many trees will be cut down and pulped to feed this endeavor.

To me, the big win is for us Thailand/Laos/ Cambodian/Anderson Island/ Johnston Atoll folks. Again, the number of claims denied which , incidentally can fall under the auspices of §3.816(c) assuming the Vet is savvy, is also staggering to even consider. On top of that will be the tsunami of follow on Vets queuing up to file tomorrow thus ensuring an earlier effective date.

Once again, they are going to somehow phase this entitlement in gradually so as not to bankrupt the US treasury. Whoops. Too late. That happened when they started shoving IOUs in the Social Security lockbox. Veterans of all war eras are going to get more compensation for legitimate diseases. The wonder of all this is why it took so long. No wonder, this. It’s all about money. Your tax dollars are needed for the National Institutes of Health to send to China to support research into bioweapons like COVID. We have to install ecotoilets in Yosemite that are earth friendly… but have no $ for Veterans.

I have a theory on how to ensure world peace. Henceforth, when we opt to go to war anywhere, we should be forced to set aside X $ for VA to fix the injured folks. I’m guessing no one in Congress would have the stomach for erasing a $52 billion initial outlay on some boondoggle in East Bumfork Egypt and penciling in $350-$? billion in the appropriations guestimate blank. Well, it might give them pause. Maybe not considering Speaker Pelosi just landed in Taipei after flipping off the Mig 29 pilots flying off her right wing. Gotta hand it to her. That takes balls.

But now I wish to address what’s afoot at the BVA. The advent of the AMA was promised to cure the backlog at all venues – be it the AOJ (Agency of Original Jurisdiction) aka the VARO or our friendly Veterans Service Center (VSC) or the Board of Veterans Appeals (BVA). Misjudged they did. Yesssssssss. No pun intended.  When it became apparent that an inordinate number of Veterans were not going to piss on the fire and go home, they were dumbfounded. Apparently, the new AMA maze wasn’t confusing enough. More and more Vets opted in and appealed to the BVA in spite of what the BVA Poohbahs were told. This stampede toward justice meant they needed more Veterans Law Judges (VLJs). Finding attorneys who understand or practice VA law is dicey. Most potential candidates come from within the pool of VA’s staff attorneys at the BVA itself. Some (very few) come from the ranks of us who do this for a living. Regardless, you have to know that VA law is to Law as Military music is to Music. It’s two entirely different venues. Having a shiny Juris Doctorate and applying for a VA attorney job means a solid year of grueling indoctrination in just the basics without dwelling on the intricacies of CUE, SMC and §3.156(c).

So, without mentioning any actual names, the BVA chairman of the Board opted to hire unschooled, FNG JDs with nary an ounce of VA legal knowledge. Well, as anyone can tell you, when this happens at the XYZ Mousetrap company, you have to teach the FNG the proper way to build one and how to operate the machinery. After about six months, he graduates from Padewan to Moustrap Journeyman and can work unsupervised. Nevertheless, it requires taking someone out of production to teach him. In a nutshell, that’s is what has transpired at the BVA. They’re so busy training new VLJs, they have fewer warm bodies to operate the production line. Prying a decision out of them is becoming more and more time consuming to put it politely.

Chisholm, Chisholm and Kilpatrick (CCK) recently filed a petition in U.S. District Court to complain about this and argue the AMA never legislated permission to do what they’re doing at the BVA re Legacy versus the newer AMA appeals. The backlog of Legacy appeals was supposed to have been done by now yet they still remain embedded at the BVA like cockroaches. The AMA work seems to have taken precedence. Worse, these are two different systems with two different sets of regulations. Imagine training judges on a system that will soon be obsolete. You or I could come up with a better game plan. Hell, Homer’s monkey Mojo could, too.

Last night I received a copy of a letter an unknown number of VLJs penned to enlighten Mr. Chisholm on just why there’s such a problem at the BVA. Since I know very few VLJs both past and present and rarely meet new ones now, I can only venture a guess as to how many signed it.  Probably every one of the overworked, underpaid and ignored VLJs is my guess. Take a gander:

Concerned-Judges-Letter_final1_stripped

That’s the latest roundup of the VA News. You may discover I take a different slant on reporting it compared to other Vets help sites. That’s because I don’t have a filter. I’m sorry if it conflicts with your reality in doing VA claims. I litigate to win and I don’t settle for the 10% lowballs VA hands out. Since no one taught me how to do this, I get to stumble around and act uncouth. It works.

Posted in BvA Decisions, BVA Hearings, vA news, Veterans Law | Tagged , , , , , , , , , | 18 Comments

CAVC-STOVER v. McDONOUGH–THE LAST AO ROUNDUP?

Posted on July 29, 2022 by asknod

Assuming the new “Honoring our Promise to Address Comprehensive Toxics Act of 2021”, abbreviated as PACT, ever passes, Mr. Jack L. Stover’s appeal here and the remand back to the AOJ Puzzle Palace for readjudication (via the BVA) will become more moot than shooting a dead skunk in the middle of the road. Of course, if Republican intransigence over the Democrats packing the bill with a bunch of extraneous baggage holds, passage of the bill may die an ignoble death. I somehow doubt that. It’s the right thing to do to grant presumptive herbicide exposure to all of us who ended up in that country to the north of Thailand that rhymes with ‘mouse’ as well as Cambodia, Anderson Island and the Johnson Atoll.  But Thailand Vets deserve it most. “Honoring our Promise” seems a bit over the top. We Thailand Vets have been clamoring for recognition ever since VA first promulgated the regulations after Nehmer. Where were these gladhanders in 1989?

Notwithstanding the flimsy logic that granted a blanket presumption to all who ever set foot in Vietnam that they dined frequently on Agent Orange and its five sister flavors of herbicides, it would seem incongruous that Thailand Vets-who were actually penned inside the wire with AO- could have ever have been excluded.

Were it not for the declassified CHECO records clearly conceding use of “tactical herbicides”, this honoring our promise shit would never have surfaced. Sure, the Vets who dined on sand burgers in Southwest Asia might have gotten the burnpit presumption for snorting all manner of interesting carcinogenic substances but we never would have. Even more interesting was the absence of the last five or so pages of the CHECO which were extremely damning. And then… Et Voilà! They emerged from the depths. The military and VA went to extreme lengths to cast aspersions on the bona fides and provenance of the documents but to no avail. They’ve been used countless times to prove the use of the tactical herbicides in Thailand. I offered to testify on the subject of AO in Laos at the CAVC in 2012 and the Secretary caved in at the Rule 33 Conference to avoid going there. That might be one reason it’s taken twenty three years for this “promise” to surface.

Vietnam Vets, even if they were in the rear echelon areas, were presumed exposed.  We know nary a drop of this juice ever touched the earth around Tan Son Nhut Airbase. It was forbidden. Smart move in retrospect. You can still eat the rice produced thereabouts. But nevertheless, the troops in Saigon get the same consideration as the Vets up in I Corps who were dang near shampooing with it on an almost daily basis.

Thailand Vets, and all of us who purportedly worked for a civilian/government airline in nearby ‘neutral’ countries didn’t enjoy this presumptive. Imagine a big swimming pool with one ladder to get out at one end. That pretty much describes a Royal Thai Air Force Base. Now imagine lining the perimeters-including the ladders- with cyanide or arsenic every couple of weeks. If the wind is blowing even slightly, the overspray has been shown to travel 500 metres in tests.

Now, imagine that due to space restrictions, you placed the mess hall for the Enlisted pukes right up against the fence (Udorn) and the troops traipsed in three times a day. Wouldn’t that be considered being ‘in or on the perimeter on a daily basis while in performance of your regularly assigned duties”? Seems to me it would be a UCMJ violation to damage your body via anorexia if you didn’t eat.

But, in contrast to Vietnam Vets at Tan Son Nhut, your exposure factor would be one hundred fold. Barracks were less than 40 feet from the perimeter in some cases. To say our duties never took us to the immediate edges of the base is a pretty big stretch of the definition… kinda like we’re not in a “recession” even though we need a wheelbarrow of cash to go buy gas. Shoot, before long they’ll be printing thousand dollar bills again so guys can fold their billfolds and actually sit on them.

VA actually shot themselves in the foot on this. The BVA decision admitted as much. It began when this got to the Court…

“[W]e are asked to address how the Board defined the phrase “on or near the perimeter[]” as it relates to a veteran’s service at an RTAFB. As we will explain, the M21-1 provision provides that, under certain circumstances, veterans who establish that they served “on or near the perimeter[]” of an RTAFB may show, through performance of their duties, that they were exposed
to herbicides.  While the M21-1 provision does not provide a true presumption of exposure, the provision eases the burden of proving exposure, which is highly significant to a claimant.”

See? This was never a true presumption.  It was simply a concession of exposure if you could show your MOS qualified and nothing more. Fools gold. You still needed an IMO that said the ‘tactical herbicide’ employed caused your disease listed in §3.309(e). Far too many Vets got sucked into the belief that all you had to do was wave a black and white picture of your hootch showing the concertina wire a stones throw away to win. Or have your buddies write 4138 letters saying there was dead vegetation everywhere all the time. But VA would say the grass died because it wasn’t getting watered. Or that they probably didn’t spray the area around the main gate(s) because it was all laterite. 99.9999% of VA raters were never at a base in Thailand so it sure seems fishy that their recollections are gold but Jack Stover and his buddies’ recollections have faded over time as to where and what they were doing.

The actual foot-in-mouth moment was the seminal observation VLJ James G. Reinhart    let slip. Well, actually it was one of his munchkin staff attorneys who drew the short straw on this one.

“The Board acknowledged appellant’s reports that the flight line was “next to the runway, which was beside the base perimeter” and that his barracks were located close to one side of the base. However, the Board found “the preponderance of the evidence is against a finding that [appellant’s] daily work activities placed him near the perimeter or that [appellant] was exposed to herbicide agents.”  The Board reasoned that if VA conceded herbicide exposure for appellant, “everyone who worked on the
flight line would have been exposed to herbicide agents,” something that would run counter to VA’s position that Thailand veterans were not entitled to a presumption of exposure.  The Board applied a similar logic to appellant’s reports of his living quarters being near the perimeter; it found that this “would create a slippery slope” that would mean “everyone assigned” to those barracks was [sic] exposed to herbicides. 

Wow. What a concept. If we (VA) concede the truth, then Congress would be compelled to enact the PACT Act to cover this new revelation. Idiot’s delight. Here’s another:

“As to the photographs and maps appellant submitted, the Board rejected this evidence as well because it concluded the submissions did not “demonstrate that [appellant’s] regular activities or duties placed him at or near the perimeter.”

Nope. Sleeping is not a regular activity or duty. It’s purely voluntary. So even if we all slept soundly times 8 hours times 365 wakeups a dozen yards from the perimeter, that didn’t qualify. It would cost VA too much baksheesh. Can’t have that. They need every shekel they can lay hands on for that new EHR Medical computer.

It seems so anticlimactic to have Stover come down minutes before the PACT Act becomes law. And boy howdy if you thought we were encountering a wee bit of a backlog due to all those Blue Water Squids showing up with their hand out, just imagine what we’re in for soon. Any idea how many of us are still alive who served in those areas? But wait. What about all the Air America guys? Remember they have to fight this battle at the VA too. Ditto US Health Service employees. I would have figured the CIA would have an under the table slush fund for all of us but they don’t. Imagine all who had fake credentials showing they were USAID workers? Mine said I was a French Teacher. Seriously. It was like Terry and the Pirates. I flew (and crashed) with a guy named Jack Smith.  Some of the other illustrious PICs (pilot in charge) I spent a few hours in the cockpit with were Benjamin Franklin and Thomas Jefferson. I traveled in high circles.

 

Stover will merely become a footnote in history some day if and when the PACT gig gets approval. You can be sure it will be full of strictures saying you had to be born on a Thursday at night in an odd month. Naw. Just kidding. Sure, you no longer have to have been a Security Po-lice man. They’ll take that out of the M 21. Now you just have to show proof you were even in one of those countries to qualify for the presumptive. Pity all the poor guys who were doing TDY out of Clark or Kadena who didn’t keep copies of their 626s. A 214 without the VCM/VSM/COG is going to be useless for proof and besides, it won’t show Thailand Incountry- just RVN yes/no. For that, you’ll need to dumpster dive in your military personnel files for proof. But remember that the military rarely, if ever, kept TDY records. I knew some day I might need proof I was/wasn’t where I should/shouldn’t be. Think back to ol’ Lt. Calley of My Lai fame. In retrospect, I’m guessing he wishes he’d had a pocket recorder tape of Captain Medina telling him to ‘terminate ’em with prejudice’. I kept things that proved I was in country just in case…

TDY redacted

Of course, convincing VA I was even on that continent was a bit daunting. They said “no evidence” but we’re looking at it. They went with my DD 214 for eighteen years which was pretty sanitized. All it showed was an NDSM.

So, today’s teaching moment is prepare to adapt. I’d say PACT will become law soon-sooner if they take out all them environmentally friendly outdoor, unheated, Euell Gibbons earth composting toilets slated for Fort Harrison Montana and the other Northern Tier VAROs in the Act. So start getting your ducks in order pronto. We’re all about 66-88 years old folks. File now and get an earlier effective date under §3.816(c)(2)(i). Tell ’em axnod sent you.

Posted in Agent Orange, AO, CAVC Knowledge, Thailand AO presumptive path, Tips and Tricks, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , | 2 Comments

EXPOSED VET RADIO SHOW– THURSDAY 7/27/2022

Posted on July 27, 2022 by asknod

Greetings fellow Veterans. Jerrel called up asking for a good subject to discuss. Boy howdy was that a wide open invitation to ask what VA litigation subject wasn’t a good one to take a lip whipping to. So, to go out and take a gander at OSA seems like a good candidate as any. Considering they’re going to give that and tinnitus, the two most awarded ratings in the VASRD, a major haircut in the very near future, it behooves Veterans to know what cards they’re holding and which ones they aren’t. VA is well-known for changing the poker rules and trying to convince you it’s to your benefit. Kinda like someone peeing on your leg and telling you it’s raining. 

At any rate, it’ll be a rip snorter. Maybe you’ll learn something. Maybe not. I guess what concerns me the most about the OSA gig is that I got bitchslapped by the rater three times and even had a dyno-mite IMO that cited to VA’s very own peer-reviewed study on the correlation between OSA and PTSD. The VES booth bitch took the IMO cite and reversed it to say the cause of the OSA was upper throat collapse. Only at the VA, folks. Only at the VA could they think you might not read the private IMO and even if you did, you’d know it was bogus because it wasn’t conducted by the VA so the Vet is cheating and attempting fraud. And then drag in obesity. Talk about post hoc rationalizations for prior Agency actions…

redact OSA IMO

redact OSA

Can you imagine being obese in the Marines? I can almost see it now if it were to happen. Think back to the old TV show Gomer Pyle, USMC. So Gomer’s overweight and been told by Sgt. Carter to reduce his BMI RFN. Come Friday afternoon and Gunny shows up and says “Everyone’s confined to barracks this weekend. No town passes, girls. Pyle here is 10 lbs. overweight so you all have a date with your toothbrushes and the latrines until Monday morning. Make ’em, shine for me. You ladies are dismissed.”

Gomer would have  two black eyes, a broken arm and three teeth missing come Monday morning and report to sick call saying he slipped in the shower Saturday night. That and a few piss poor performance reports about disobeying a direct order to shrink. I reckon the VA rater figures if he’s a bit “portly” right now, he must have been so in service. How else could you get OSA, right?

We’ll talk about that tomorrow and the new haircut tinnitus appears destined to get, too.

The call in number is

(515) 605-9764

If you wish to speak to the person to whom you wish to speak, press one (1). Otherwise, keep the squelch turned up so we don’t have to listen to the crunch of potato chips or the better half yelling at you to take the trash out.

If you have a good computer connection, try this one on for size:

https://www.blogtalkradio.com/jbasser/12126660/connect/102d26ba1f39ef0adfb52be46b049593bbe9030a

The show starts at 1900 HRS in the easterly regions and, of course, 1600 HRS on the more erudite, progressive Left Coast. In fact, we’re so cool out here, we’ve found a way to save 3 hours and repurpose them.

Johnny Walker Black (bottom right kneeling)Don’t leave home without it.

 

Posted in OSA, Tips and Tricks, VA Medical Mysteries Explained, vA news | Tagged , , , , , , , , , , | Leave a comment