CAVC-PORTER V McDONOUGH–HCV WITH §3.156(c) SILVER LINING

Posted on October 21, 2022 by asknod

My Hepatitis C  (HCV) practice model is fortunately coming to an end. Those of you who didn’t die from it have been cured (read’ in remission’). I reckon I still have about 4 waiting for a BVA sit down but outside that, pretty much all my Vets are P&T. Nevertheless, I relish reading about other attorneys’ old ones being resuscitated for earlier effective dates using one of my favorite regulations. I speak, of course, of §3.156(c) and it’s marvelous DeLorean effect to be able to return to a bygone era and recoup a former loss born of illegitimate actions on VA’s part.  Quite simply, in most cases, they didn’t go back and get the STRs. Or they fell on the floor and got swept up with the day’s trash.

Anyone who comes from my era, and by that I mean the Vietnam ‘Conflict’, understands what I speak of. I cannot count the number of combat Vets with grievous wounds who returned to an indifferent populace of VA raters who more often than not handed out 0% and 10% ratings like confetti at a New York parade. This didn’t happen in WW II or the Korean Conflict. Back then, they just granted and promptly began calling you back in for c&ps and chipping away at your rating until it cast a mere shadow of the original. Six of one-half a dozen of another. The net effect was that Vietnam Veterans got the screwing up front instead of a decade of America’s munificence before being reduced.

Worse, all Vietnam Vets with HCV were tarred and feathered with the drug abuser onus and were only vindicated in 1998 when the makers of jetguns finally threw in the towel and discontinued manufacturing them for human use. The reason? Why, they’re unsanitary and transmit disease.

Don’t get me wrong. VA will still deny based on the jetgun transmission model unless you submit an IMO supporting it. Nevertheless, at the BVA they will grant if you can articulate your rebuttal with internet articles showing the history of the jetgun and it’s withdrawal from human use. They still use them for livestock inoculations.

So it warmed my heart to read about ol’ Lawyer Porter, through counsel, cleaning Denis the Menace’ clock at the CAVC with a reversal on the 18th of October, 2022. No matter how many cases come before these BVA folks, the concept of interpreting the meaning of ‘shall’ or ‘will’ (which are interchangeably used in law and identical in meaning) as written in §3.156(c)(1) escapes them. Well, that or the idea of disbursing some ungodly amount of retro loot to a Walmarket™-shopping, trailer trash Veteran sticks in their (VLJ’s) craw.

Read it. It’s not permissive. It’s compulsory that the VBA readjudicate your claim if old, pertinent STRs suddenly materialize. More recently, that has come to encompass JUSCRUR record research documents proving stressors.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.

As you can see, I enunciated the words ‘relevant’ and ‘will’. VA will make much ado about nothing insisting that just because the new records mention them sewing you back together after the Bouncing Betty medical mishap in ’68, that doesn’t automatically make them relevant. That’s a legal determination made in the back room of the VARO with no paper record and in 99.9% of the §3.156(c) appeals I’m working, ‘relevant’ is slipperier than a county fair pig covered in Yellow 77.  It shows this gives the regulation compulsory enforcement rather than a more dilatory interpretation that if VA feels the spirt move them, they ‘may’ pay it lip service and reinvestigate the matter.

Brien T. Brockway, Esq. (right)

I’m not sure how ol’ Lawyer got hooked up with his lawyer (Brien T. Brockway, Esq.) but I’m glad he did. From the photo here, it’s clear Brien has some OD green blood running through his veins. That’s fortunate for Veterans who seek help. It’s been my considered opinion that a Veteran is more capable of helping a fellow Veteran- especially if he has good legal training. What the hey? We’ve walked in those boots. We’ve lived that life and know what transpires in the service. Who better to learn the trade and help his fellow Vet? The VA process just becomes more convoluted and confusing as every day passes. A Veteran needs every tool available to him/her to win a claim. What better than a Vet law dog? I roamed through the ranks of NOVA recently and note there are darn few of us and only four who served in Vietnam.

Anyway, the decision is here and makes for a great read. Getting a reversal out of the CAVC-let alone one from Judge Toth- is no small feat. Thank you Brien for your one small step for Vetkind.

Porter v McDonough HCV-3.156(c)

Posted in 3.156(c), CAvC HCV Ruling, Jetgun BvA Decisions, Lawyering Up, VA Attorneys, Veterans Law | Tagged , , , , , , , , , , | 3 Comments

EXPOSED VET RADIO SHOW THURDSAY 20 OCTOBER 1900 HRS E

Posted on October 18, 2022 by asknod

How many of you have applied for an increase after about 10 years and they run you through the new c&p gamut of what would appear to be a normal physical with a side order of closer examination of an extremity or joint claimed? You were in there for 40 minutes tops and if you had access to VBMS, you’d be surprised to know you just attended no less than six or seven exams by no less than an orthopedist, a endocrinologist, a cardiac specialist and quite possibly a proctologist masquerading as a neurologist. If you’re lucky, most of them have PA-C or ARNP after their name but most will be sporting a FNP. They wouldn’t know the difference between Paralysis Agitans and myoclonus but would be willing to put their John Hancock on a document swearing they do. 

melting ice cream

I want to talk about that and what I get to see behind the VA Wizard of Oz’s green VBMS curtain. Considering there are about 5,000 of us who do VA claims, very few of us have gone throught the idiot treatment to be allowed to access the VA’s computer remotely. By the number 5,000, I do not mean to say these folks do VA claim exclusively. I’d say only 2,500 do this exclusively. I believe the last time I checked, there were 475 claims agents active. Of that number I’d guess there are fewer than 900 with access but more gaining it daily. This could be wildly off but I talk with other law dogs and some are still waiting two years now after the Corona lockdown.

A 1E “Spad” or “Sandy” Nakon Phanom RTAFB 1969

I don’t want to spoil the whole show with the punchline on how to defeat this but I do want to give you an idea how these folks can ingratiate themselves to you like Snake oil salesmen or Aluminum Siding contractors.

Requesting a Dustoff Mission 1968

John and Jerrel give me a valuable platform from which to preach from. I’m not interested in writing another book. I’m like a fighter pilot. I want to be in the cockpit in combat, not training other pilots. Teaching others via a radio program over a good single malt and an old extra sharp cheddar is my next best idea of passing it on. No pay walls. No BOGO offers. Teaching the right way or the newest technique to follow is enjoyable after the legal brief writing is over for the day. But more importantly, knowing I’m teaching it without the cacophony of 30 other Veterans not similarly situated offering their uneducated subjective advice that may condemn you to an eternal hell of denial. And I’m not talking about tinnitus or pes planus here. I’m referring to the highest levels of SMC after you get your 100%. VA law is dynamic rather than static. VA denial techniques metamorphose  slower than the seven year itch but metamorphose they do.

Agent B(eer) Monsoon 1967(?)

In this business, there is one boilerplate maxim. No two claims are ever alike. You can never draw up a template on how you’re going to win until you do the dumpster dive on every single document in a Veterans c or e file. A simple 8 digit c file number tells you the Vet filed before 1972 or it would be a SSN for his file number. If the STRs are not in the cfile, it’s more a matter of finding out where they are. There are a lot of military hospitals around the world and some must have incredibly large amounts of STR storage space because I find them there fifty years later. Roger that. They’re supposed to purge the files back to the NPRC but I’d be unemployed if they ever managed to figure out how to do that.

Another subject of concern is the newer VA propensity to reduce a handful of ratings from 40 to 20% and grant a few new ones at 10-20% and end up with a net push on your comp. check. Now why do I see so much of that? I’ll explain that directly on Thursday night. It’s ugly so put on your helmets and take your protein pills. VA says you cannot fight it via regulation but they fail to consider those reductions in the context of §3.344 and, far more importantly, §3.350.

Alpha 6

Lastly, yes. I am going to Cincinnati for Fall NOVA but have been told the Ohio is off limits for fishing even assuming arguendo there were any unpolluted fish still in there to catch. Orlando has been announced as the Spring 2023 site for NOVA. Good deal. I kinda have a hankering for Saint Petersburg because they have the East Coast DROC over there. We could have Karaoke contests in the evenings after our CLEs with all their VBA folk there and self-actuate to achieve our maximum human potential. Real honest to god Kumbaya circles with evening campfires on the beach passing around the talking stick to signify who is the Alpha talker. I’d really like to meet some of these VA SMC far thinkers and discuss their mental capabilities… or lack thereof. Peacefully, mind you. Equitably. We could even share our pronouns. Maybe we’ll discuss that Thursday, too. Wouldn’t that be speshull.

The world famous peach can Pig feeder

As usual, unless John changed it, the telephone call in listening option is:

(515) 605-9764

The computer link is here:

https://www.blogtalkradio.com/jbasser/12157282/connect/8fd8a9ecad4f174bb806c1a2fb70378d5a2820f9

The time is 1900 Hrs on the East Coast and variously staggered over the interior of the fruited plains to 1600 Hrs on the Lefterly-most portion of our great Nation. Please do not hesitate to press one (one) on your devices and enter the conversation or ask a question. After all, that’s what we’re here for-to win. Justice at VA is merely an incidental byproduct of winning.

P.S. A Public Service Announcement:

Posted in 100% ratings, All about Veterans, DBQs, Humor, Reductions in rating, SMC, Tips and Tricks, VA Agents, VA Attorneys, VBMS, VBMS Tricks, Veterans Law | Tagged , , , , , , , , | 2 Comments

FALL NOVA–WE’RE ON A MISSION FROM GOD

Posted on October 11, 2022 by asknod

Since I seemed to have attracted a few unsavory folks who are disgruntled with my recent unmasking of certain, how shall we say, ‘doctors with credibility baggage’, I like to give everyone fair warning if they want to meet me and settle the score. Naw. Just kidding. I’ve discovered for the most part they’re all hat and no cowboy. I dutifully showed up for my small claims court complaint September 26th that I owed a fellow at Tripodi LLC from Prescott, Arizona $5,000 dollars for having to fix one of them doctors’ reputations after I published the VA IMO Sh*tlist. The gomer withdrew his complaint back in late August but plumb disremembered to let me know before the trial.

70s Neo-Penitentiary style

That’s okay. I had to renew my concealed weapons permit and seeing’s how that office is right across the street, the gas wasn’t wasted. I have a handicapped plate so it didn’t set me back anything on parking either. I thank my good buddy Brandon inflation hasn’t hit our  government yet. It’s still only $32 every five years. I look at it like a hunting license to shoot bad guys that only costs $6.20 annually for a perp tag. That’s a bargain at twice the price.

 

Well, this year the NOVA troops are gathering in Cincinnati, Ohio. I loved watching Drew Carrey in his TV show with the pool table outside. I sadly realize that they probably filmed it in LA but it has that cache of nostalgia. This will be my first visit to the city. We were slated to gather here for the 2020 Spring NOVA but we all remember how that played out. Looks like I should pack a spinning rod and some Mepps #3s.

From the website, the Hyatt Regency has that ’70s neo-penitentiary architectural aspect on the outside. No offense but it’s pretty skinny in photograhs. Maybe I just have to see it in person. But you know what they (VSOs) say about all us VA ambulance chasers. We’re probably just going for the cheap, single malt scotch. Au contraire, ma cher. I fervently disagree. Personally, I’m a Johnny Blue kind of guy if they have it in stock. The Air America Hostel in Luang Prabang (L 54) spoiled me rotten in ’70. Shit, they even had real quinine water for the Tanqueray. And ice cubes.

One thing I’ve been watching from afar is a Veterans Help website where one of the prime contributors is convincing his fellow claimants to refuse to attend c&p exams. Well, not all of them but ones where you file for TDIU and they haul you in one last time to look under the hood and confirm you’re permanently one quart low and figure out why the heck the check engine light refuses to go out. Or ones where you’re going for SMC L aid and attendance. I guess I don’t have to dig too deeply in 38 CFR §3.655 to explain how this advice can be costly if followed blindly. Not going to the c&p is a guaranteed recipe for a Texas Necktie Party.

One thing I can’t wrap my noggin around is how any Vet who is collecting compensation from VA thinks he can dictate the rules on how this poker game works. Worse, advising all your buddies at ____.com they don’t have to pay any attention to all  that QTC paperwork that arrives by FEXEX™ Express overnight or the repeated phone calls from Optum® (they bought out LHI). All this valuable free legal advice is gonna cause a shit ton of bad feelings when VA drops you from TDIU back to 60%. Before you open that piehole, think like a doctor. First, do no harm.

I have a close LRRP friend who wanted to go into the §3120 ILP program recently apply for it. The VR&E folks tried to sign him up for §3107 training at the college for welding and set him up with some job interviews afterwards. They know fully well he’s TDIU so if he actually got a job, he’d get the reduction. VA was perfectly okay with letting him clothesline himself. It’s one thing for VA to screw you but when it’s your fellow Vet playing VA lawyer giving you bogus advice, it’s sad.

I sit on the other side of the desk now and do these claims for Vets. It amazes me how much misinformation circulates from “official sources”. Why do VSOs admonish you after a whopping 0% award for tinnitus to sit tight for a few years before filing for the compensable increase to 10%? I’ve heard thousands say they were told VA might think you were greedy and take it away from you altogether.

I’ve heard Vets insist that once you get to 10 years, your compensation is protected and cannot be taken away. Wrong. The truth is they can never take away the service connection after ten years. They can monkey with your percentage all they want right up until 20 years. After five years you get a flimsy aura of protection inasmuch as they have to do two c&p exams with a suitable intervening period to show enough improvement to reduce you. But, they also have to prove you can sustain that improvement for the rest of your life. VA doesn’t tell you that part. So you get three stents and your IHD gets “better”. They do a US six months later and say your LVEF went up from 23% to 51% so they drop you from 100 to 30%. What happens if it drops back to below 30% next year from all them Big Macs? VA would have you become a frequent filer just to keep up with your defective left ventricle and your DM II.

The fact of the matter is that VA regulations are constantly changing-and never in your favor. As soon as it became widely known that they were handing out CPAPs and 50% ratings for OSA, every swinging dick in Iraqistan started going in to sick call before separating and complaining about insomnia and sore throats from all that snoring.  They’d line each other out with buddy letters swearing up one side of the tent and down the other that they all got insomnia (and OSA) from listening to you. Pretty soon OSA was like Mardi Gras beads on Fat Tuesday. VA sat up and took notice of this as well as tinnitus. They aren’t stupid. They have bean counters. I forecast it several years ago and here we are getting ready to see a “realignment” of how all this is evaluated.

VA law gets more complicated and convoluted every day. Veterans are going to see major changes shortly. Worse, each revision makes it harder to win and harder to attain a rating commensurate with the level of disability. If you were stupid enough to jump out of perfectly good airplanes just to get your jump wings, don’t be surprised 30 years later when your knees, ankles/lower back/cervical give out.  And when they do, VA is not going to be there like a good neighbor. Make no mistake about it. They’re an insurance company but nowhere near as generous as Gecko© or State Barn®.

Have you ever gone to your civilian doctor and have him greet you at the beginning of the visit? “Hey there, Bill. Long time no see. How they hanging?” So how would you feel if your rejoinder was “I’m fine and you?” but the doctor writes down “Bill insists there’s nothing wrong with him. He honestly doesn’t even know why he’s here.” Say you were pissing  a little blood and wanted to get a prostate checkup or kidney creatinine lab reading. Would you expect a civilian doctor to also run a complete drug screen on your urine for ketamine, opiates, cocaine, cannabis or fentanyl? VAMCs do this routinely. I’ve read it in my own VHA records. Without your permission. If you have loss of use of a lower extremity or are just limping or using a cane, a VA doctor or the booth bitch will query you on how you arrived. Did you drive yourself or did the better half drive you? If you drove yourself and state as much, you’ll see “Patient arrived alone by private vehicle and ambulatory. WN (well nourished) and NAD (no apparent distress).” You see where this is going? You’re on parade when you go to a VAMC or CBOC. Metrics that would ordinarily have no medical significance will be warped into proving your medical condition began improving a year ago and now is vastly improved. Poof. You just gave them two c&p exams camouflaged as annual wellness exams. The best part of all was these visits were absolutely free because you’re rated over 50%. Hallelujah, huh?

I read VA-authored articles that insist Vets are tickled pink with the service they get at VAMCs. I lived at one for 14 months so I know better. I got peripheral neuropathy of the right wrist pushing the call button for hours at a time. They OD’d me on Heparin. I got MRSA. I had a septal infarct. I’m tickled pink I got out of there alive. It only took four surgeries instead of one. I suppose if you came here from a third world country, you’d think VA medical was the cat’s pajamas. Try calling them up and getting an appointment for a badly sprained ankle this Friday. Rots a ruck. Looking into my crystal ball, I see a lot of Ibuprophen in your future. I can go online and find an appointment time from my doctor’s calendar, schedule it and never talk to a human being. When I get there, they don’t look up in surprise and say “Jez, didn’t you get the email? The doctor couldn’t come in today. Sorry.”

Remember, when you give advice to a Vet on VA claims, please be sure it is accurate and helpful. I just took in a 76-year old Brownwater Vet last week. He’s pretty far gone from Parkinson’s and DM II. He’s been 80% for seven years. I can see in VBMS that the Rater deferred his TDIU and waited for his VSO to submit an 8940. Mr. VFW service officer expert never did so they denied the IU. Poof. There went $94 K in legitimate benefits for the last 7 years. Welcome to my world.

Maybe I’ll see some of you folks in Cincinnati. I’d look forward to that. The fellow who commissioned Soldierstone out in Colorado wrote a sentiment I will always hold dear.

” It is a worthy thing to fight  for one’s freedom

It is another sight finer to fight for another man’s.”

I can’t begin to tell you how honored I am to be allowed to do this. It’s almost akin to Dan Ackroyd’s observation in the Blues Brothers… “We’re on a mission from God”. See you in Cincinnati.

 

Posted in VA Agents, VA Attorneys, vA news, Veterans Law | Tagged , , , , , , , , , , | 4 Comments

LIFE THEN AND NOW–1970 AND 2022

Posted on October 5, 2022 by asknod

At some point in our sunset years we Vietnam Veterans look back on our military career, however brief, and compare it to the here and now. Most, if not all of us, probably feel like the old Virginia Slims™ cigarette commercial- “You’ve come a long way, baby”. No more foot rot. No more c rats. No more burning leeches off with your Marlboro Red. But I reckon if you’re still fighting VA for your benefits now then this sentiment isn’t shared. 

Since most of us aren’t still pounding nails or doing the 9 to 5 grind at the office as a regular job, we’re well-settled in our old age with nothing more than a few unpleasant dreams. A few of us still derive great pleasure, however,  delivering repeated collective VA bitchslaps for all those years of denials. This helping Veterans gig is tremendously rewarding emotionally. I guess I’m glad I don’t have to do it in person all the time because I usually shed a few tears  right along with the Vet and his wife when I come over to inform them we hit the jackpot after several years of delay and deny waiting for us to kick the bucket. I’m sure VA secretly prays equally for the Vet to punch out as well as me.

I found a picture below I took of the instrument panel of a PC-6 or U 17 cockpit I used to inhabit fifty years ago. Lots of memories of Tuesday and Thursday Chieu Hoi flights up and down Route 7 from Ban Na to Na Khang imploring Pathet Lao via loudspeakers to surrender and change sides. We even offered a bonus water buffalo with the hectare of land if they turned in their AK or SKS. The crew chief hated us. He’d have to use about a half a roll of 100 mph tape a week to cover all the holes from groundfire.

Here’s a picture also of the new, remodeled office cockpit to convey that same Virginia Slims adage. The most obvious upgrade is I don’t have to use a Coke® bottle as a urinal when the urge strikes. My PIC used to rock the Bird Dog back and forth the moment  I told him I was getting ready to relieve myself. He could be a real dick sometimes, God rest his soul. He augered in 2/21/71 somewhere between Alternate and Wattay (L 08).

Being a VA Agent/practitioner allows me to work from home. I have a silver Labradog retriever (Pickles) for a live shredder. Cupcake and I get our granddaughter once a week to babysit all day and she breaks up the monotony by feeding the paper to Pickles to shred. Endless entertainment for us all.

And talk about coming a long way baby…

Pickles 10 wks 4/25/2019

Pickles 3 yrs 7 mos. 9/28/2022

Pickles and Princess Penny are like peas and carrots. Ever see that commercial where the dog cleans off the baby’s face as Dad turns away?

You get the picture. Princess P is Pickles’ favorite popsicle and pre-shred paper feeder. Even funnier, Miss P has finally begun to allow her to lick her face a time or two…after the hands, of course.

Yessiree, Bob. We’ve all come a long way, baby.  And that’s all I have to say about that. Enjoy your day. That’s an order.

Posted in All about Veterans, Food for the soul, Humor, Pickles, VA Agents, Veterans Law | Tagged , , , , , , , , , , , | 3 Comments

WELCOME TO ASKNOD.COM

Posted on October 1, 2022 by asknod

Yeppers. You read that correctly. For over a decade, I’ve tried to hornswoggle that German domain squatter into coughing up asknod.com. He finally relented after an extended bargaining session. I’ll tell you he drove a hard bargain. GoDaddy© locked it in yesterday. Cupcake says I have to tune up my landing page and make ask nod one word up on the header logo. We’ll be working on that here directly. It may seem inconsequential but we always ran the risk of someone else grabbing the site and stealing my readership or diverting them to another place.

I was talking to a VA gal on the BVA’s help line (800) 923-8387) the other day and all of a sudden out of the blue she says “Wait a minute. Did you say you’re Alex Graham?” I said yeah. She came back with “The POA says Gordon Graham on it, sir.” I said Roger that. I go by my middle name of Alex. She pauses for about 5 seconds and asks if I’m “the Alex Graham” who does radio shows on Exposed Vet. I confirmed it and she says “Shut the front door. I can’t believe I’m talking to you. You are famous, mister.” I disagree. I prefer to be no more than the ‘A’ in ICARE. Famous people, to me are the 59,494 folks on a long black wall in Washington, D.C. I don’t do parades and I dang sure am not famous.

As any of you who know me can testify, I’m mindlessly driven to win my Vets’ claims-within the confines of the law, mind you. No cheating. No stretching the truth. I’ve been hoodwinked a few times by Vets trying to do nefarious things and I freely admit it. I’ve dumped each one and dutifully notified the VA  in each case. My congressman even handed me one back in 2018. Turns out, the Vet had two 214s and the second one was OTH and pretty much sandbagged his chances of winning anything at VA. I’d allow as he might have disremembered the second 214 with the problem. VA didn’t, however.

When I began the website with help from Patricia Lupole of HCVets.com fame, it was a sideshow to help dying Vets with HCV get a win. I’d just won using the Caluza triangle method we all know now. It was nouveau knowledge back in 2008, however. Everybody was caught up in submitting basic training pictures showing Vets getting blasted by jetguns. Unfortunately, the black and white pictures didn’t show the virus on the nose of the gun. Vets used to run into this very same problem attempting to show Agent Orange use at bases in Thailand before they passed the PACT Act last month. A black and white photo of you standing in front of your hootch with a vast dirt expanse behind you doesn’t reveal any 2,4-D, 2,4,5-T dioxin on the ground. Dead vegetation could mean lack of water in the dry season or that they mowed it. I’m not trying to play Devil’s advocate but you always have to consider the VA’s side of the argument. It helps you to win if you know what your VA adversary’s holding in his poker hand. I hear Vets say they could smell AO. Fat chance, gentleman. If you smelled it at all, you smelled some form of petroleum distillate used to thin it 1:1.

By 2011, it was apparent that HCV, as an incurable disease, was soon to be conquered. I succeeded in killing it after a six-month treatment in 2014. That’s cutting it too close. I didn’t have much longer to go and kept coming down with other problems-some related to AO and some to the residuals of having HCV for 44 years. You don’t magically get well after a long viral infection. It attacks everything in your body. Luckily, I made it. Between that and Agent Orange, Blue, White, Green, Pink and Purple, they can really make life difficult. Here’s surgeries #3 (3/21/2010)and #4 (3/28/2010 after surgery #3 failed). Pretty skanky, huh? Well, we’re talking VA doctors so that explains a lot.

The name asknod was born in 2008. It’s a contraction of ‘ask’ (about your) ‘Notice of Disagreement’ (abbreviated by VA as NOD). I was hellbent on WWVD or ‘What Would a Veteran Do?’ Patricia was lukewarm on that moniker and since it was her website, I obliged. Cupcake wasn’t too hot on it either. I was trying to reach out to Vets and help them rather than pull a Gen. George Custer and die on an acronym hill so I relented. Regretfully, WWVD will never grace the top of my blog. I thought it had a nice ring to it. Of course, having been born on April Fools Day, it drastically affects my common sense chromosome. An example would be teaching your 8 year-old son about the many constructive uses for gunpowder beyond just reloading ammo. Bad idea.

When it came time to choosing a name for the legal arm of my accreditation game, I was leery of using asknod. I didn’t want to tip my cards and expose myself. Cupcake disagreed. So what if I dished on the VA Secretary and the rest of his Agency on a daily basis? So what if I’m the one who spilled the beans on the Purple Book or any other of a long list of “inwards-facing documents” VA publishes for their employees? It reminds me of all the confidential documents we saw in the Vietnam ‘conflict’ stamped with “NOFORN” (no foreign nationals) to inform the reader the documents were restricted reading. Why they’d try to keep Vang Pao in the dark was illogical. We were supposed to be helping the Hmong Army fight the Pathet Lao.

I’m not the only accredited Veterans Representative with a website either. Ben Krause, my fellow VA litigator friend and Air Force Vet publishes Disabledveterans.org. Ditto Chris Attig (U.S. Army Vet) and his Veterans Law Blog.  I guess the only thing that separates our endeavors is technique. I don’t have a log in and a membership procedure. What you see at asknod.com is what you get. No dancing emojis. No advertisements for Viagra or Russian wives. No advertisements that uncannily mirror your Google® searches for dog beds or patio furniture. No sir. All that advertising is a distraction. You can go somewhere else to get that info.

Asknod.com will outlive me. At 71, my only hope is that it will help Vets win and remain free. Knowledge shouldn’t be monetized in this business. You shouldn’t have to pay anyone to figure out how to win a claim. Granted, there are those who are too busy to do it or too lazy. I think I speak for tens of thousands of Vets when I say that we (most Vets) no longer can find our way through the VA’s jungle of regulations-especially in light of the ever-changing legal landscape. Between the new (2019) AMA and the new PACT Act, most Vets are clueless about how different this is from back in the old days.

Asknod.com might be a new name but it still stands for the dissemination of free knowledge on how to spank VA’s derriere. It’s a free translation of the VA Rosetta Stone of claims adjudications. Why on earth would anyone keep this information proprietary and charge for same? I guess I get about 100 calls a month from Veterans. I get at least that many emails. Each and every one asks for help via representation. I wish I could but I will always take the time to tell them what they need if they are confused or need advice.

My trademark phrase, besides “Win or Die”, has always been my standard rejoinder whenever someone thanks me for my help. By that, I mean “If the shoe were on the other foot, I’m sure you would do the same for me.” I earnestly believe that as much as I earnestly hew to the practice of never censoring anyone who comes here.  I’ve been 86’d from every Veterans Help site out there. Why is that? Remember that old granny that used to pull up to the Drive thru window asking “Where’s the beef?”  Seems the moment I share the fact that someone’s advice collides with 38 CFR, I discover I’ve been cut off by the moderators. I won’t ever shade the truth or try to imply there is a secret technique to this and you can’t get there without my killer ju-ju.

In closing here today, I wish to thank my readership for their interest in Veterans claims and being allowed to teach about all the intricacies of the process. It’s a pretty neat soapbox to be allowed to even stand on. A lot goes on behind the VBMS curtain that many of you will never see. I feel honored to have the ability to walk point and see the trip wires VA erects in hopes of defeating your efforts.

In addition, I want to let you know I’ve noticed that some Vets help sites will ask for donations or charge entry fees to do this. They claim it takes money to keep these operations running. Teaching is expensive, they say. Websites cost money, they say. Newsflash. I pay about $100 or so a year  to keep asknod.com afloat at WordPress. Strangely, I’ve never been hacked even once.  How I do that escapes me. Everyone tells me I need this and that and google ranking experts to make sure everyone can find me. My blog subjects cost $0 dollars to research. I just plagiarize the VA rating decisions and publish them redacted. How is that expensive?  Beats me. The only thing that costs me money is going to legal conferences and learning  new ways to win. That’s a bargain at twice the price.

One thing Veterans can always take to the bank (besides their comp. check) around here is that I will always have your back. If you disagree with me, that is your right. If you don’t like my attitude, I apologize. This isn’t a popularity contest or a who has the best Dear Abbey™ advice column. We don’t blow smoke up your ass nor do we tolerate those who do. Sadly, there is a wealth of ignorance afoot about the subject of VA law. Letting Veterans offer advice on the subject willy nilly who have no training or experience scares the bejesus out of me. My only hope is that they will luck out and eventually get a highly qualified VSO or VA attorney/Agent to be their representative. VA has created too many pitfalls in the last 30 years such that a Veteran has a 12% chance of winning right out of the box and even less the longer he or she delays in pursuing it.

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

P.S. Check out this Glock™ horn. Man, I just gotta get one. This is too cool for school.

Posted in Agent Orange, All about Veterans, ASKNOD BOOK, General Messages, The Vietnam Wall, VA Agents, VA Attorneys | Tagged , , , , , , , , , , , , | 8 Comments

FED CIRCUS-NOVA vs DENIS THE MENACE–POST HOC CREATION OF “GUIDANCE” FOR THE COURT

Posted on September 24, 2022 by asknod

I get a big bang out of the rare occasions when the Federal Circuit (CAFC) really stretches their collective brain musculature and actually arrives at a decision that is meaningful for Veterans and not merely window dressing. And ones which are impeccably argued in Veterans’ favor. Here’s a real daisy. 

Granted, Judge Prost was a bit long winded in his ten-page dissent in search of a way to defeat the pro-Veteran canon of law established in Henderson v. Shinseki, 562 U.S. 428,441 (2011); (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.”). But leaning into the Chevron/Auer wind on this one is a dead end. And you’ll read why if you dive in. This decision has more side-cites worth bookmarking for future arguments than you can believe. And changing the rules while the game is in play was going to be noticed eventually in a higher Court.

§4.71a DC 5055

So, to understand this, I’ll briefly lay out the parameters. I don’t do musculoskeletal law if I can possibly pawn it off on another attorney. It just isn’t my bag. I have X brain cells left and have devoted most of them to SMC and §3.156(c). Nevertheless, I’ll point out the good one-liners for you if you’re lazy.

 

This decision all hinges directly on how the CAFC  previously ruled in Hudgens v. McDonald, 823 F.3d 630 (Fed. Cir. 2016). It involves §4.71a DC 5055 and 5257. Back in 2015, VA attempted to clarify what they meant to say, and forgot to, in DC 5055  about what constituted a knee replacement- i.e., a partial or a total one. The problem only arose when this appeal reached the Fed. Cir. Hudgens argued that there was no Chevron deference established with prior agency action re the diagnostic code. 17 out of 21 decisions at the Board were in favor of just such a partial replacement to grant a 100% disability. ‘Call me Bob’ McDonald insisted it had to be a total makeover.

 

But, as VA is wont to step on their collective neckties, they tried to offer guidance to raters, VLJs et cetera that the correct interpretation was being misunderstood rather than fix the diagnostic code language.

On July 16, 2015, twelve days before the Secretary’s final brief in Hudgens was due with this court, the VA published the Knee Replacement Guidance.  The Guidance stated that the VA was providing notice of the agency’s “longstanding interpretation of DCs 5051 to 5056” as providing for a 100-percent evaluation “when the total joint, rather than the partial joint, has been replaced by a prosthetic implant.” 80 Fed. Reg. at 42,040. The VA also announced in the Guidance that an “explanatory note” would be added to 38 C.F.R. § 4.71a stating that the “term ‘prosthetic replacement’ in diagnostic codes 5051 through 5056 means a total replacement of the named joint.”1 Id. at 42,041.

But you can’t then drag this “guidance” into the Court and say ‘see- this is our considered opinion and it proves it’. The Federales  (O’MALLEY, PLAGER, and WALLACH) rightfully saw it as highway robbery and reversed and remanded. So lets call this the Knee Replacement Guidance or KRG and move on. We (as of 2016) have Mike Hudgens’ precedence going for us. Fast forward to now.

NOVA has three members who challenged VA’s technique of just issuing ‘manuals” or ‘guidance reminders’ on how they’ll be denying you without incorporating it into the actual Diagnostic Code. That requires publishing the proposed changes or clarifying language in notes at the bottom of ratings in the Federal Register for comment. If VA had published a change to DC 5055 to say specifically that “knee replacement” meant total knee replacement, I wouldn’t be sitting here grinning from ear to ear. They just added notes to the M 21 and said from now on, deny if it’s partial. But DC 5055 still didn’t say total. In fact, there were notes in the M 21 that indicated there were two ways to do it- pre and post 2015. So the NOVA boys said okay, let’s take the Secretary to Court and object to his gerrymandering DC 5055 post-1978. You can’t just publish guidance to repair your grammatical error.

As the Big Boys said it in Legal Beaglespeak…

We reject this circular argument. We are evaluating whether the Guidance constitutes a valid interpretation of DC 5055. The Guidance itself inserted the explanatory note into DC 5055.  The Secretary would have us hold that the Guidance articulates the only reasonable reading of DC 5055 because the Guidance itself says so. See generally Resp’t’s Br. 29–31. That cannot be correct. Indeed, the Secretary’s argument contravenes a basic tenet of administrative law. Agencies must “use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.” Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 101, 135 S.Ct. 1199, 191 L.Ed.2d 186 (2015); see 5 U.S.C. § 551(5). The VA promulgated DC 5055 following notice-and-comment rulemaking procedures in 1978. Updating the Schedule for Rating Disabilities, 43 Fed. Reg. 45,348, 45,348–50 (Oct. 2, 1978). Therefore, the Secretary cannot have amended DC 5055 without going through notice-and-comment.

Ruh-oh, Rorge. That pesky Federal Register rigmarole gig again. Quick, somebody get that written up and published. We need to plug the loophole pronto. But before this latest decision is complete, the Judges feel compelled to address the Auer/Chevron deference argument that the Feds should shut up and believe Denis when he says he and all his forebears always meant it to mean a total replacement and somehow a few VLJs or ignorant RVSRs didn’t get the email back in ’78, right? And what the hey, VLJs are just single judge memorandum -type decisions and not precedential so get off your high horse. You Feds are making mountains out of molehills. I can almost imagine Denis singing the old Beatles song “We can work it out”. No dice. (Try to see it my way-Do I have to keep on talking till I can’t go on?)

In Hudgens, we gave two reasons for why the Secretary’s interpretation of DC 5055—excluding partial knee replacements—was not entitled to Auer deference. 823 F.3d at 638–39. First, “the agency’s interpretation conflict[ed] with a prior [agency] interpretation”—namely, “numerous inconsistent rulings by the Board.” Id. at 638 (second brackets in original) (quoting Christopher v. Smith Kline Beecham Corp., 567 U.S. 142, 155, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012)). Second, the Secretary’s interpretation was a “post hoc rationalization” “adopted to support the Veterans Court’s interpretation.” Id. at 639.

[ In addition to Christopher v Smith Kline Beecham, I like to use Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (explaining that “it is the Board that is required to provide a complete statement of reasons or bases” for its decision and “the Secretary cannot make up for [the Board’s] failure to do so” by providing his own reasons or bases on appeal). Here’s another daisy: Smith v. Nicholson, 19 Vet.App. 63, 73 (2015) (“[I]t is not the task of the Secretary to rewrite the Board’s decision through his pleadings filed in this Court.”).

The second reason regarding post hoc rationalization is not relevant here as we are addressing only the interpretation put forward in the Knee Replacement Guidance, not a previous agency interpretation that the Secretary is justifying with the Knee Replacement Guidance.

See how slick Judge Cunningham slid that subtle underlined 2nd reason jab in at the end above? One thing I enjoy about litigating is that everyone is so dang polite. The Judges don’t rub Denis’ nose in his blatant attempts at post hoc rationalizations yet again nor his predecessors thinly -disguised attempts to wallpaper over defects in agency regulatory diagnostic codes with new revisions to the M 21. They blithely gloss over his pathetic attempts to screw Veterans and go on about their business telling him to go back to his desk  and crayons. Color inside the Fed. Register lines from now on, Denis. You hear? Sure. You can do it. Go ahead and give it a try.

A wonderful piece of advice once proffered me was “If you find yourself in a hole, quit digging.” How à propos.

The Secretary contends that we should not characterize Board interpretations “as representing the agency’s official position.” Resp’t’s Br. 33–35. The Secretary notes that “to receive Auer deference, ‘the interpretation must at least emanate from those actors, using those vehicles, understood to make authoritative policy in the relevant context.’ ” Id. at 34 (internal brackets omitted) (quoting Kisor, 139 S. Ct. at 2416). The Board is not such an authoritative actor, the Secretary asserts, because it issues more than 100,000 non-precedential decisions a year where the judges act individually rather than in panels. Id. at 35 (citing Board of Veterans’ Appeals Annual Report to Congress (FY 2020), https://www.bva.va.gov/docs/Chairmans_Annual_Rpts/BVA2020AR.pdf). In the Secretary’s view, these facts, together with our statement in NOVA 2020 that Board decisions “appear not to be entitled to Auer deference,” 981 F.3d at 1382 n.14, “erodes the foundation” of our holding in Hudgens, Oral Arg. at 29:50–52.

I probably ought to go back and look up the utube™ oral argument to see who drew the short straw at  the Commercial Litigation Branch and was sent up to be slaughtered at the lectern on oral. Might be better than a Laugh In rerun. I’ve seen some poorly prepared OGC folks up there on the CAVC orals who hit that point where they don’t have any viable answer so they revert back to Plan A and re-recite some statistic that isn’t logical in the Veterans Benefits scheme.

What Kisor Brings to the Table for Us

But, while we’re on the subject of agency deference or statutory deference, let’s examine, in the Court’s own words, the new legal standard of review à la Kisor… Read Kisor here. 

Since our decision in Hudgens, the Supreme Court has addressed Auer deference in Kisor. In Kisor, the Court found “it worth reinforcing some of the limits inherent in the Auer doctrine.” 139 S. Ct. at 2415.

First, the Supreme Court held that before applying Auer deference, courts must “carefully consider the text, structure, history, and purpose of a regulation” and conclude that “the regulation is genuinely ambiguous.” Id.

Second, the agency’s interpretation must also be “reasonable” and “come within the zone of ambiguity the court has identified after employing all its interpretive tools.” Id. at 2415–16.

Third, “a court must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” Id. at 2416. This third part of the Auer inquiry is relevant here. The Supreme Court gave a list of several “especially important markers for identifying when Auer deference is and is not appropriate” given the character and context of the interpretation. Id.

Or this blurb below. I think it will give Veterans a lot of new tools in the pouch to point to prior agency action at the BVA that supports their hypotheses of service connection. Certainty, if the facts are identical, the same result should ensue to ensure uniformity. Well, everywhere but at the VA where you can win the Lotto and walk away emptyhanded.

 And although Board decisions are non-precedential and issued by single judges, they are—as we held in Hudgens—“the final decision[s] for the Secretary on all questions in matters affecting the provision of benefits” and provide persuasive authority to the Veterans Court on the interpretation of regulations. Hudgens, 823 F.3d at 638 (quoting Gibson, 26 Vet. App. at 566 (Kasold, C.J., dissenting) (citing 38 U.S.C. § 7104(c))).

So, the teaching moment here is for the VASEC-not you Veterans. If you want to repair a regulation or diagnostic code to make it easier to conduct a VA Texas Necktie Party, you have to follow the rules, sir. Considering it took them six years to fix this regulatory fustercluck, and they still don’t have it right, I wonder how long it ‘ll take to get the repair order in to the Fed. Reg. I also wonder how many Vets got the shaft between Hudgens and September 20, 2022. And will VA go back and fix ’em. All these queshuns.

In all fairness, I should mention that the Secretary got around to fixing it four years after Hudgens won his claim. Or so he thought. Until this, anyway. The Fed. Register bondo  set up on February 7, 2021 and they rescinded the KRG (remember that?) the following day on February 8th. I won’t go into the Knee Replacement Manual (M 21) Provision (KRMP) as it applies to DC 5257. Suffice it to say this is more or less a regurgitation of more vivid post hoc reimaginings of what Congress really wanted to say. The Feds lay it out thusly. The KRG preexisted the KRMP so it’s (KRMP) immaterial. But the KRG was never properly situated into the regulation because it revised 5055 waaaaay too much so it’s arbitrary and capricious, an abuse of discretion and not in accordance with law. In short, it doesn’t even resemble DC 5055 anymore as it was envisioned back in 1978. So it also gets thrown out. Back to the drawing board, Denis.

Posted in CAFC Rulings, Fed. Cir. & Supreme Ct., VA Secretaries, Veterans Law | Tagged , , , , , , , , , , | 2 Comments

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