ASKNOD–1,000,000 HITS IN 10 YEARS

I received a shock this morning when I looked up at the stats and discovered the site is on the cusp of going over one million hits by you, my fellow Veterans. My enduring hope is that one million Veterans used the knowledge to win their claims or bludgeon their Veterans Service Officers representing them into doing a better job in assisting them.

 

A short history. Back in 2006, I discovered I was dying. Hepatitis C had been eating my liver, unbeknownst to me, for the last thirty six years since my transfusion at the Sam Thong Air America hospital/veterinary clinic (LS 20). Not wishing to leave my wife penniless, I once again armored up to do battle with the VA. I foolishly chose a VSO again- this time the Military Order of the Purple Heart- as my shield bearer. Fat chance. As I would eventually come to find out years later, VSOs work for the VA. It’s written into their Congressional Charters. “Veterans Service Organizations are chartered by Congress and tasked with the noble cause of helping the VA adjudicate Veterans’ claims.”

My good friend Lars Showalter, a Huey pilot in the Indochinese Olympics, claimed they were suuuuper good and had managed  to finally get him a 30% rating for his back with promises of much more. Unfortunately, he passed away from pancreatic cancer before he became a chicken dinner winner.  My experiences up to that point were 0% and 0% for hearing/tinnitus and a denial on my back issues. I’d been hornswoggled by DAV and AmVets into believing untold riches awaited me if I could just convince these folks I was telling the truth. Nothing was ever said about what kind of proof would suffice.

Up to then, I’d been too busy building houses to even learn how to turn on a computer. Being this sick, I had the rest of my soon-to-be-abbreviated life to learn how and see if there was something I was missing in the VA claims game. Cupcake refused to do any more than show me the on/off switch. She was too busy trying to make ends meet since I was now mega-incapacitated and unemployed. Like all of you, I found the search bar and began my quest for justice. I found the Board of Veterans Appeals website showing all their appeals from 1992 to the present. By simply entering the word ‘Hepatitis’, it disgorged a thousand or more claims that had been adjudicated-some wins but mostly losers. I read. And read. And read.

Eventually, I discerned a thread of wins that hinged-not on luck- but on simple doctors’ letters in support of the Veterans’ contentions. What’s more, it applied broadly to any claims -regardless of the etiology.  A Vet claimed he jumped out of perfectly airworthy airplanes while in the 81st Airborne and his doctor said that was what caused his knees to go south. The idea of a ‘cookie recipe’ began to form in my addled noggin. I read some more and began taking notes.

The Foghorn Leghorn briefing

Needless to say, my good buddy down at the MOPH had failed to alert me to this unique requirement. In fact, none of the earlier VSOs had mentioned the requirement either. On my next visit, I asked about how I was going to win without one (a nexus letter). That’s when I became the recipient of the Foghorn Leghorn speech. “Nexus letter! Nexus letter? Why, lands son, of course you need a nexus letter. I say, I say, you can’t win without one. Hoo-doggies. The boy doesn’t know about nexus letters. What are they teaching these youngsters nowadays?” When we left, Cupcake turned to me and said “That’s your legal help? Shit, oh dear. We have a better chance of winning the Publisher’s Clearinghouse Sweepstakes.”  I sadly agreed.

On my next visit to my gastrodoc for the monthly “you’re dying more slowly than we anticipated” briefing, I broached the subject of a nexus letter. To my immense joy, he agreed and wrote a daisy. I dutifully carried this back to my MOPH minder who shoved it into the circular file. It never made it to the VARO. Being anal, I had taken the added step of sending it in directly to VA beforehand. It was not that I didn’t trust my VSO, mind you. I just had a few nagging doubts about how all this worked. When I informed him I had done so, I got the “I’m in charge and if you pull that stunt again, we’ll revoke your representation” speech. Several years later, after I discovered VA had claims files on all of us, I obtained mine. That’s when I discovered his perfidy. There was one-and only one-nexus letter in the file with a copy of the envelope I used to mail it in. Shocked. I was shocked, I tell you. To this day, I’m guessing he didn’t want to spoil his perfect denial record with a win.

By then, I’d discovered the Court of Veterans Appeals website and was avidly reading why I might finally win this time. I’d spotted Caluza v Brown and the discussion by the Justices of the three ingredients essential to winning at VA poker. When I subsequently won a year later, I began a blog for other Vets to teach them this. I was dumbfounded that no other Veterans website illuminated this essential ingredient. That was 2008. Here we are in 2018 and a million wiser Vets later.

Tan Son Nhut AB, RVN 1966

Helping others less fortunate was ingrained into me by my father. He retired from the Air Force as a Lieutenant General in 1973 and went to work for McDonnell Douglas helping develop the F-15. As most military buffs know, the Air Force, under Gen. Sweeney, had begun to adopt the concept of a fighter-bomber instead of a true air superiority fighter. Sadly, the last true fighter A/C, the F-86 was retired in 1957 with the advent of the F-100. The shortcomings multiplied when Republic came out with it’s improved big brother- the F-105 Thud. Dad advocated belligerently for a new fighter-the F 110-soon to be rechristened the F-4. Finally, a true fighter with an astounding thrust-to-weight ratio of 1.5:1. McNamara immediately wanted to know how many bombs it could carry. About that time, after the Air Force stripped the guns off the Phantom and put in 6 hardpoints, he began planning with Sandy McDonnell for the future F-15.  North Vietnam’s Mig 15s and 17s were a tremendous wakeup call for revealing the shortcomings of thinking we were always going to have in-theatre air superiority.

With the F-15’s future ensured, he retired from McDonnell Douglas to be a volunteer paramedic and eventually an animal welfare officer-again on a voluntary basis. This altruism infected me as well. Not satisfied to just adjudicate my own claims and help others, I decided to become street legal. Knowing VA’s penchant (and mantra) that ‘No good deed goes unpunished’, I could see the day when I would be stripped of my own ratings for helping others put a hole in the VA budget.

Yeppers. That’s me down in front in 1957.

 

In 2011, Cupcake induced me to begin asknod.org. Up to this point, asknod was a sideshow at the HCVets site. Patricia Lupole and Harry Hooks had done an admirable job of getting the word out about jetguns as the disease vector but the asknod forum was narrowly focused on Hepatitis C Veterans and not broadly based on the bigger picture of VA claims in general. Toward that end, asknod.org, in its present iteration, was born on Labor Day weekend seven years ago. If emulation is the sincerest form of flattery, my site might have been the platform that provoked many more on preaching the need for a nexus. Now, all manner of attorneys and Veterans have their own sites that discuss what we’ve been espousing for over ten years- how to succeed at this intractable conundrum. They act like they invented the concept.

The ‘cookie recipe’ analogy has finally borne fruit. More and more of you not only know what is needed to prevail, but more and more are doing so. The cat’s out of the bag on this one-finally. Imagine. VA has been funning us since the War of 1812 and depriving us of the recipe. I find it satisfying to see Congress finally made them divulge the information after one hundred and fifty years. In case you missed that, it was the Veterans Claims Assistance Act (VCAA) around 2001 that ostensibly forced them to do so but even back then, the VA couldn’t bring themselves to say it in simplified DickandJanespeak for us. It took my blog and others like Hadit.com to drum it into Vets that they would never prevail without an Independent Medical Opinion (IMO) also known as a nexus letter.

Proudly, in 2016, I became a VA agent. Knowing firsthand (after getting bushwhacked by a vindictive Veterans Law Judge in 2011) that you cannot win them all at the appellate level, I asked to be accepted to the Court of Appeals for Veterans Claims (CAVC). Because I’m ignorant and have no Juris Doctorate, I require supervision-albeit little or none- to practice there. The proudest moment of my life was this February 8th, with my Juris Doctorate son Matthew, when Gregory Block swore me in at the Court before Judge Michael Allen.

Gregory Block administering my oath

JD, no JD, JD

I guess I was promoted because I’m now an “Officer of the Court” and a “nonattorney practitioner”. I reckon that’s a micro-step up from VA agent. Who cares? I’m equally as lethal now as any VA leagle beagle with a JD after their name. The only difference is I don’t have a $225,000 Pell grant to retire for the college degree. I feel like I’m cheating somehow.

I strongly advocate for, and encourage others to do what I did. What do you have to lose? There are 350-odd VA agents out there kicking ass and taking names. Hell, I’ve even increased their numbers by two so far with several more hopefully in the wings.  The Court has granted 33 of us the right to practice there at the Federal level. Sadly, there are far too many Veterans who need good legal help from Agents/attorneys. To plagiarize a famous line from Star Trek… “The needs of the many outweigh the needs of the few.”

The National Organization of Veterans Advocates (NOVA) has excellent lawyers (and Agents) but our numbers are dwarfed by the immense numbers of unrepresented Veterans with complex cases requiring a bit more than a VSO degree in licking envelopes or filling out 526s. How many of you sit on your asses and complain (as did I) that you can’t get an attorney to take your case? A journey of this magnitude begins with the first step. I took that step, unbeknownst to me, when Cupcake showed me the on/off switch. Surely I can’t be that unique. We all held up our right hand and swore an oath when we joined. I could die happy if I knew every Veteran had an able advocate. And, if I only succeed in getting America to capitalize the word Veteran, I would really die happy. I feel competent in saying Churchill might have forgiven me bogarting his famous line-

“Never have so many owed so much to so few”

And to think we weren’t even allowed to charge more than $10 for doing this before 2007. Talk about VSOs disenfranchising America’s Sons of War…

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

P.S. Well, actually that was all I was going to say about this, but I received this from Bruce Almighty-our East Coast asknod CEO as I pushed print. It’s very touching and the below  is the most apropos pour les Vétérans Militaire. Indeed. Why haven’t more of us done something to help disabled Veterans fight and win their claims?

 

P.P.S. I lied. It’s only been seven years to reach 1,000,000 hits. Cupcake pointed out the error. Sorry about that, folks.

 

Posted in ASKNOD BOOK, KP Veterans, NOVA Attorneys, VA Agents, Veterans Law | Tagged , , , , , , , , , , , , , , , , , , , , | 17 Comments

HADIT.COM RADIO SHOW THURSDAY 8/30/2018

We’re going to have a radio show with John and Jerrell tomorrow @ 1630 Hrs on the Left Coast which is almost always 1900 Hrs back on the East Coast. I would have done it last week but I had a VLJ Hearing in Seattle last Friday and was busy preparing for it.

We’ll discuss VA’s propensity to disremember to tell you about suddenly finding your Service Air Evac records to CONUS recently associated with your claims file on _____ of 19__  or 20__and how that just might be a due process violation by depriving you of some serious pocket change based on §3.156(c)(1)(i)(ii),(3),(4) and how it tends to seriously impact your bank account. Shucks. I’ll even tell you how to spot them in the VBMS or your claims file.

Or, we’ll talk about how I’ve found four of these staring me right in the eye in VBMS with little or no attempt to even camouflage the introduction of those STRs/SMRs. No one can deny VA isn’t transparent after this.

Or, we could talk about why I never will do another Videoconference Hearing even if it means flying to San Juan Puerto Rico or Manila for my client the next time. As it is, I have two Travel Board Hearings back-to back on 9/19 and 9/20 at the Seattle Puzzle Palace coming up. I wonder how that’s going to play out when I show up on the 20th and the VLJ says “What the hey? You again?”

We can even talk about my ILP Extraordinary Writ (#18-938) which is now at day 92 and counting since the last rebuttal filing on May 29th. Remember, it takes a Panel to grant an ER and about six months to schedule oral arguments ad nauseum.

That will be a first for me and maybe even the Judge. God, I hope I don’t draw Marcus ‘Hang ’em High”Hinden. That’s like five miles of bad judicial road. Twice is two times too many. That’s worse than drawing Kasold and going 0/4 at the Court. We don’t get no respect. I drew VLJ Vito Clementi the last time. As Justice Emeritus around 810 Vermin Ave. NW, he ought to be able to pick and choose his Travel Board vacations. I get along with him like peaches and creme. And best of all, he’s a Veteran too.

Come join us at our usual all-about-VA chat

Be there or be square.

The call in number is 

347-237-4819

(push #1 if you wish to talk to us)

Posted in 3.156(c), KP Veterans, NOVA Attorneys, SVR Radio on hadit.com, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, vA news, VBMS Tricks, Veterans Law, VR&E | 2 Comments

SCHULER KING–A VOICE VETERANS NEED IN THEIR CAUSE

Rarely do you come across a true Advocate for your cause. Veterans find themselves on this slippery slope no matter what surfaces in the news. We discover that a lot of women (and some men, no doubt) got shortchanged on their Major Sexual Trauma (MST) claims by the VA’s much touted National Work Queue (NWQ). The media, instead, go bonkers over the President’s former attorney’s shenanigans or the conviction of his former campaign manager. As Rodney Dangerfield so eloquently said ” We don’t get no respect.” Read on.

An Advocate should be strident. An Advocate should be vociferous and arouse support like a prairie fire in a high wind. You want that Advocate to splash this all over Twitter and beyond… like someone we all know. You don’t want your advocate to pontificate. You want him at a high state of agitation that so perfectly sums up your plight; in a word, such that the invocation he or she paints engenders a veritable firestorm of support.

Well, thank Ed D., one of my clients and an old 11 Bravo LRRP (with a Silver Star, no less) from I Corps (68) for bringing to my attention what might be the perfect candidate to incite support from Patriotic Americans regarding our shoddy treatment at the hands of Congress and the NFL. Ladies and Gentlemen Vets, I give you Schuler King, raconteur extraordinaire. I submit this man might be the perfect panacea for our predicament. Gotta love that onomatopoeia, huh? Relax. It was an accident. I just happened to look up from my hunt-and-punch typing technique and see it. Back to our new spokesman.

Mr. King, in this clip, eloquently opines on the pros and cons of transporting illegal items through airports but is on point with his ability to create that “ick” factor we associate with giving you them little willies that run up that back of your neck. I submit his invective may be that intangible, integral, innate irritant that will work in our favor. It seems talking about 47 Vets in Phoenix who got hornswoggled into room temperature because VA kept canceling their medical appointments didn’t elicit much of a response. Inasmuch as it didn’t, I propose we try this dude out. I think he could really speak to the recent MST scandal by delving into the NWQ technique whereby every GS-08 VSR is now a quasi-psychologist-with power to deny based on that presumption. Considering Colvin v. Derwinski is established precedence, how this development came to pass is anyone’s guess. Ah, yes. I disremembered the old M 21…

Ladies and Gentlemen Vets, meet a silver-tongued devil that can paint a picture in less than 1000 words… Mr. Schuler King. He’s kinda the X-rated version of Jesse Watters.

https://binged.it/2o40p6Y

Posted in Humor, KP Veterans, vA news, Vietnam War history | Tagged , , , , , , , , , , , , , | 2 Comments

CUE?–GET THE FUGO OUT OF HERE

As a lot of you law dogs and agents know, VBMS can be berry berry goot to you. This will be the third fourth Vet I’ve encountered on this. I don’t get it. Well, I get it that VA has been very active in the shredding or circular filing of lots of important documents since the War of 1812. However, with the recent introduction of truly independent contractors -i.e. privately contracted from 3M® or Unisys™- the contractors don’t have a dog in this fight. They copy eeeeeeeeverything- front, back, envelopes-you name it. It’s also chronologically entered oldest to newest. 

Gone are the good old days of having to hire a paralegal for $1,500 to MS.doc a 3,000-page c-file with a chronological page-by-page inspection. Many of you who do this can testify you’ll find 1972 STRs cheek-and-jowl with 2016 confirmed rating decisions.

But wait. We’re in 2018 now. As you’re putzing along reading all the documents filed in your client’s e- file- yep, you know, the dude whose records got burnt up in 1973 at the St. Louis Barbecue, lo and behold—-there they are in glorious color. That’s one of the cool bean things about VBMS. Color documents. One entry right after another already chronologically arranged and just waiting for you.

Click on this to enlarge it

 

In this case, it looks like when he filed in ’71 they went back to Naval Air Station Key West looking for his hospital records. Negatory. They were long gone—back to the NPRC. Numerous times after that, requests were made to higher ups with the constant reply of no such number, no such phone. Finally, our boy wins in 2016 but they plumb disremembered to tell him they could reconsider (not reopen) his 1971 claim under the auspices of 38 CFR §3.156(c)(1)(i),(ii) (3),(4). Seems mighty peculiar that a pile of money that big and the belated entry of the STRs/MTRs didn’t set off klaxon horns in the San Juan P.I. M-21 mainframe.

If you were due for a c&p at 19 years and 9 months- three months shy of a protected 20-year rating,-I’m guessing that same M 21 would have that VES DBQ in the print queue six months in advance. So, why is this innovative computerized behemoth so balky when it comes to gargantuan payouts? Trust me, folks. This is not a “rare” Fugo-like error. We have to regularly file for SMCs at the S level all the way to R2 because VA is remarkably myopic when it comes to realizing your ratings add up to waaaaay more than 100 +60.

Squidly, one of our original founding members here, discovered last fall that the rocket boys at the Sioux Falls Fort Fumble did the same exact thing in 2013.  Squidly happened to mention to his nurse about a certain inpatient stay during active duty and she entered it into the VHA VistA (CAPRI). The rater calls her up and says “Say all after Yokosuka NAS Hospital?” She rogers that and bingo-§3.156(c) records pop up in the file  four working days later And, just like Roberto, they decided to fun Squidly and keep it a secret as to why they finally decided to acquiesce and grant SC 26 years later.

Most of you know about the LZ Cork Series with Butch Long. Same gig. We send back for his NPRC stuff from St. Louis and 156 pages of dustoff, the 312th Air Evac at Chu Lai, the records of debridement and eye surgery at the 95th Air Evac at Da Nang, his recup at  Camp Zama before the  evac out of  theatre to CONUS  all showed up.  They forgot to put the medrecs on his stretcher… along with his Purple Heart and CIB.   The whole shiteree from the Officer’s Daily Log to Letterman Hospital that went up in the ’73 fire showed up at Butch’s. We decided to share them with the VA. They were adamant they would not read §3.156(c) correctly so we’re all set for the sit down Travel Board face-to-face with  the VLJ next month.

Back in May, down at the David Koresh Memorial Regional Office in Fort Whacko, Texas, we had the exact same thing come to pass. In 1971, Chris listed William Beaumont Army Hospital (now the Wm. Beaumont Medical Center) on his 26-page VA Form 21-526 as having his inpatient records after his CONUS evac from An Khe. Yep. They never sent out for them. Shocked. I am shocked. He mentioned it again around May 5th, 2018. By May 15th, the records were belatedly uploaded into VBMS and annotated as “medical records-government facility”. No STRs boldly emblazoned on the entry. No “Holy Shit, Batman- this guys is going to clean up” entry. No VA 27-0820 Report of Information to Veteran saying “Time to begin shopping for a Lamborghini, sir”. Nothing. Silence. I bet you all wondered how it got to be called a 526 huh? They’ve shrunk it down a few pages since but that original document was a 45-minute construction project back then.

In Fugo v. Brown, we were treated to the admonition that CUE was a rare error and occurred about as frequently as Halley’s Comet. Thank goodness. Halley’s has made several rare and frequent appearances in my neighborhood in the past year.  The intriguing thing was I always had to tackle these types of claims as CUE because nobody at VA was dumb enough to let the STRs get into the c-file fifty years later. They’d shit can them. The reason we know this is the odds of one chucklehead nonattorney practitioner with no legal training (me) uncovering four of these in less than a year are pheeeeee-nominal. Shoo doggies, I’m going to lay $20 dollars down on the next big Powerball Lotto if I’m that dang lucky.

So, when they put your POA into the VBMS and your client pops up, check out his or her files with a fine tooth comb. Don’t buy that crap about something you just sent them is a    duplicate CAPRI record.  If they don’t have it, it’s a pretty good indication of spoliation of your claims file. That would be a matter of first impression if I had to fight it up at the big house on Indiana Ave. NW. but with the Village Idiots in charge of the claims file, you’ll find even easier ways to put a can opener into this project.

Click on this to enlarge it.

 

 

 

 

Here’s how we’re going to approach this Friday.

Redacted for asknod

Today’s post is brought to you by the numbers three, one, five, six and the letter C.

 

Posted in 3.156(c), C-Files and RBAs, KP Veterans, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, VBMS Tricks | Tagged , , , , , , , , , , , , , , , , , | 9 Comments

THE DEEP STATE RULING THE VA

Our Secret Squirrel officer from  security was recently down at Mar-A-Lago. S/he knows a certain paparazzi who snaps stuff for the tabloids. He managed to get these closeups with his drone of the purported secret cabal arriving at the servants entrance who are now running the VA behind our new VASEC’s back. Please don’t tell everyone we were the Vets who spilled the beans. We’re just passing this on…really. 

The head of the triumvirate nicknamed Dearth who insists on anonymity

Head of Covert Ops known as “Bozo”

Public Relations Chief “Fred”

Many of you may recognize these folks from their extensive work in Washington on other VA IT and HR projects over the last several decades. In fact, these are the folks who brought us VBMS, Virtual VA, VACOLS, WARMS and the new DoD/VA interface computer costing $13 billion that still is on training wheels.

Posted in Humor, vA news, VA Secretaries | Tagged , , , , , , , , , , | 2 Comments

VARO SHINANIGANS-DENIAL BEFORE THE C&P

Before I inveigh on the Winston Salem chowderheads for their transgressions, I wanted to pass along some valuable information to you guys. When you’re a) down to your last four eggs,  and b) you’re planning on serving them scrambled anyway; and c) you accidentally drop them on the floor (which is incredibly clean), I discovered you can’t pick them buggers up using a spatula. All is not lost, however. I rescued mine with a turkey baster. Yeppers. Sucked those puppies up, I did. I just thought I’d pass that helpful homemaker tip along to you guys. Where was I? Ah, yes. The Cigarette RO. Boy howdy is that going to become politically incorrect one of these days like Confederate statues.

This is bigger news than that old boy who had to sleep on the floor at the Alvin C. York Memorial VAMC in Murfreesboro, Tennessee.  Imagine filing a claim for nasal cancer due to AO. It’s a small cell carcinoma in the nasopharangeal passage on the way to the lungs which makes me think it’s fair game. If you get SC for lung cancer (which is a small cell carcinoma) due to AO, what’s the distinction? Cancer isn’t too particular as to where it manifests.

I asked for a Flash on his VBMS folder as terminally ill. This gets your foot in the door for a pronto adjudication. In the old Segmented Lanes Model, this was sent to the Express Lane for a 78 RPM decision. In the New World Order of VA claims, they send it to Winston Salem for their VSR(s) to pontificate on and say it ain’t so. In fact, the W-S gal even called me on June 21st to give me the good news and bad. They were granting P&T for his IHD but denying the nasal cancer. As he promptly died 9 days later from the cancer, any hope of DIC immediately flew out the window. Funny how that works. I can almost hear Maxwell Smart opining “Missed the 10 year requirement by thaaaaaaat much, boss”.

That much, boss.

But here’s the glitch. With our new ICU2 TV set called VBMS, I  “saw” Winston Salem  enter the decision and the Confirmed Ratings Sheet in real time (June 19th). Quite coincidentally, I had been haggling with the Seattle VA over Bob’s inability to attend his C&P exam. You know how that works, right? You’re just too dog-ass tired to drag yourself out of bed, peel off that Fentanyl patch, get dressed and chug some coffee to counteract all the morphine sulfate you’ve been hosing from the eyedropper.  Throw in that you’re semi-comatose and lost your cognitive abilities weeks ago anyway and that c&p really isn’t up there in your wheelhouse. Hospice shit will do that to you.

My Angel of Mercy (CMA Tina) at the Seattle Puzzle Palace was able to induce the VES doctor to do the unheard of- make a house call. She (the doctor, not Tina) dutifully arrived on- wait for it- Tuesday, June 19th bright and early. The good doctor opined in no uncertain terms that Bob’s cancer was at least as likely as not due to dining on too much Agent Tang during his two tours back-to-back in country. We call it the Dioxin Diet now. Helps eviscerate strong bodies 12 different ways. I was on it for two years as well. I pray fervently every night I, too, don’t join the Carcinoma Club.

Due to the vagaries of getting a c&p uploaded into VBMS in a timely fashion, Bob’s diagnosis wasn’t dutifully entered until June 29th, 2018. It didn’t go unnoticed. I called up my RO director’s secretary (Laura) on July 2nd and pointed out the dichotomy of deciding a claim ten days prior to receiving the results of the c&p. Laura immediately hammered out the VAF 27-0820 Holy Shit Batman report and uploaded it into the HAL 8000 VAICU2 TV.  VA doesn’t seem to think anything is amiss. I still haven’t heard back on it. Perhaps the NOD will be the wake-up call. I filed that daisy yesterday alleging misfeasance and demanded an a) reconsideration based on all the evidence; or b) a motion to revise it.

I filed the notice of disagreement yesterday. I had to wait to get his widow substituted in his stead. VA even went so far as to 86 my access to his VBMS record in the interim. Here’s what I missed in my forced absence. These Bozos actually uploaded the 4 DBQs for the c&p not once but 8 more times in the ensuing two weeks after the June 29th entry. Talk about constructive possession from Hell of the documents a la Bell v. Derwinski. No flies on these ol’ boys.

One thing I love about VBMS is the transparency. This is one of those rare instances where it occurs with notable frequency. VA can’t camouflage their machinations any better than the Palestinian donkeys cum zebras.   How about these daisies…

Harvey in Sioux Falls filed in ’92 for a header he took on the high seas in ’84. They couldn’t find his records because somebody entered his SSN wrong. Fortunately, the VBMS caught the problem in 2013 when some chucklehead put two and two together. What are the odds you’d have two Vets with the exact same name and DOB who served in the Navy at the exact same time but with dissimilar SSNs with one digit difference? So, what happens? They SC him lickity spit but neglect to tell him they’ve just associated Service Treatment Records from 1984 into his claims file. Ruh-oh Rorge… Here comes §3.156(c). Or…

Chris , who uses the David Koresh Memorial Regional Office in Whacko, Texas has been denied SC or lowballed for 40 years. He points out he was medievac’d to CONUS in 1969 after losing an altercation with a jeep going 35 mph at An Khe when he hopped out of his Huey gunship for a smoke break. PSP is softer than concrete- but not by much. He happens to remember he was seen (and indeed an inpatient for 3 months) at the William Beaumont Army Medical Hospital back then. He even noted in his contemporary 526 that the records were there.   The Rocket boys at Fort Waco immediately send out a PIES request for the records- albeit in 2018 and not 1971.

This is what a PIES request is going to look like in your c-file.

Bingo- incoming. 53 pages of Service Department Records never before associated with the claims file appeared magically from Beaumont Army Center. Do you think they bothered to tell Chris he gets a reopen with reconsideration of all his claims clean back to 1971? No way, Jose. Yep. §3.156(c) all over again. Counting Butch, that’s three (3) §3.156(c) claims for 1970, 1971 and  1992 in less than two years. Do you see a pattern or do I have the Force? Omniscient, I’m not.

My all time favorite currently up on a Motion to Revise is the one where they say John had a bunged up finger in 1983 when he entered service. They did four surgeries to “correct” the severed ulnar nerve and ended up destroying his right hand and wrist.  So often we forget Murphy’s First Law- “No good deed goes unpunished”. Yep. Loss of use-but with an interesting twist. They deducted (as in simple subtraction) 10% for the bonked finger from the LOU of right upper extremity. In VA mathematicsland, apparently, 60+10 = 64% which rounds down. Similarly, 70% minus 10% would yield 67% which rounds back up to, ruh-oh- 70%. Repair order?  Oh, bother! Screw §4.25. 70%-10% = 60%. Next? Look it up in §3.310(b)…

 The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.

Gee, does that mean using VA’s own math in 38 CFR Part 4 as in §4.25? Reverse interpolation (extrapolation?) would be my guess. 70%-10%= 67%  in VA’s convoluted math but they make up the rules as they go so it probably is only applicable in Alaska, Puerto Rico and Hawaii… but only if it occurred on a Thursday… in an odd month… with a full moon… and you were an Aries.

So, folks, and especially all of you out there who have retrieved your claims files from the maw of the shredder, keep your eyes peeled for those VA PIES requests for Inpatient Treatment Records from hospitals. Remember, they were not kept on the 6th floor where the Friday July 13th, 1973 records barbecue was held. Chances are two things may happen. You might find they disremembered to include them when they contacted NPRC for your STRs way back when or… they plumb forgot to tell you they just found them and that’s why they suddenly had a change of heart over granting that reopened claim for ______.

Today’s show is brought to you by the letters V and A.

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

 

Posted in 3.156(c), Agent Orange, C&P exams, C-Files and RBAs, CUE, KP Veterans, NPRC 1973 Fire, Tips and Tricks, VA Agents, VA Medical Mysteries Explained, vARO Decisions, VARO Misfeasance, VBMS Tricks, Veterans Law, Vietnam War history | Tagged , , , , , , , , , , , , , | 2 Comments

ROBERT WILKIE-QUO VADIS?

Well now, campers. We have a new VASEC but is it a Hallelujah moment or one more akin to a continuing series of disappointments? History provides us an endless parade of incompetent, well-meaning Secretaries that demonstrated a pronounced proclivity to say one thing and do something entirely different. Not that I’m appalled by their actions, but it does fly in the face of their professed mantra of  ‘to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. (§3.103(a)). Ahruu? Seems they got that regulation ass backwards and inserted “protects the interests of the Government” at the wrong end.

Really, folks. Let’s take a tour through recent VASEC history. Lest we forget, our dear Secretaries Principi and Peake were the progenitors of QTC via Lockheed Martin. Draining the swamp at the VA is going to require a bigger mudhog than our Mr. Wilkie. General Shinseki, in spite of that galaxy of stars on his shoulders, couldn’t sail this ship into calm harbors. I grant ‘Call me Bob’ (with Ranger Tabs)was closer to the mark and I would personally liked to have seen him stay. As for Shulkin, what can I say? Those wives will sink your career every time with side trips to Stockholm. Call it a Mermaid too far. I think he could have explained Wimbledon if he’d hung in there  long enough. Tennis? VA benefits? Surely you all see the similarity of subject?

Keep in mind, all the years we’ve been breathlessly awaiting some resolution on the plethora of VA’s  medical mishaps, surgical suites contaminated by cockroaches, unsterilized endoscopic gear transmitting Hepatitis C, infected VA dentists transmitting Hepatitis C via unsterile procedures, ad nauseum, we’ve been told relief is just around the corner. An endless parade of whistleblowers have come forth to expose the grief, fraud, misappropriation of narcotics and collusion between employees and their relatives. The outcome has been what? VA whistleblowers lose their jobs. Just like the Roman Colluseum-Lions 5, Christians 0. Those who come forth and try to expose the egregious excesses become the focus of VA’s ire rather than being thanked and promoted for their farsighted approach to conserving scarce resources for Veterans.

Today I read that Secretary Wilkie has promised to relegate the very employees trying to curtail or effect change at VA to the back benches. Granted, they are being referred to as Trump sycophants but remember they were the first to try to drain the VA swamp and succeed in making the law stick on firing the bad apples. Apparently that doesn’t sit well with the AFGE.  Is Wilkie mad or is he trying for the world’s shortest tenure in office as Secretary? VA is rapidly approaching ridicule status among federal agencies. Some would contend it leads the parade of Government excess and waste.  Anyone showing an ounce of backbone is shown the door. The President has promised change- but what? Can you imagine defending  spending $16.9 billion (with a B) in an effort to build a computer compatible with the DoD’s to ensure a smooth transition of STRs from military care to Veterans Administration care? How about this? We issue everyone separating from service a thumbdrive of their medical records. The Veteran makes a copy of it (if he’s wise) and submits it with his fancy dancy Fully Developed Claim for benefits. Problem solved. VA copies and pastes the thumbdrive into VBMS. So, do I qualify for a consultant bonus of $3.5 million for this $5.59 money saving approach? Never happen, GI.

The VA’s problems are myriad and not extremely complex. VA puts an inordinate effort into making itself complex-or to appear so to Congress. Therein lies the problem. Let’s take my request for a greenhouse back on May 8th, 2011. My VA counselor ($96,850.00/year with full medical/dental) explained to me that this was never going to happen. VA did not have an ILP program for ‘avocational’ pursuits- just vocational ones. I guess he didn’t get the 1997 email from OGC in the form of VA OGC Precedent 9-1997. He claimed he’d worked there for over 24 years. The more motions I filed to attain the greenhouse, the deeper they dug their heels in. He just retired to avoid having to fall on his sword over this. Now it’s someone else’s tar baby!

In September 2015, VLJ Vito Clementi agreed with me and awarded the greenhouse. VA has done everything in their power to ignore, defeat or renege on this award. The VR&E Officer spent 4 months after the award researching how he could refuse to comply. The OGC finally had to tell him to shut up and push print. The VR&E Officer is a grand poobah and gets $114,000.00 a year with the afrementioned medical benefits. The two of them have effectively been paid $798,000.00 and  $672,000.00 respectively (One million, four hundred seventy thousand dollars and some loose change combined) to deprive me of a lawful entitlement. Am I the only one who sees the problem? Fortunately no. Since I have no whistle to blow or a job to jeopardize, I can’t be suppressed or silenced.

Thanks to the far thinkers in Congress back in 1988, we were given a voice at the Federal level with the creation of the CAVC. I have partaken of their services six times now. I guess that makes me a Frequent Filer. Last Fall, I figured if I was going to be pestering them so frequently,I should ask to join the Sky Club on the ninth floor. So I did. The bigger surprise was they accepted me.

Finally, on the third try (CAVCs #16-2098, 17-1450 and 18-938), I think I may have gained traction. As most who have aspired to the lofty heights of winning an Extraordinary Writ know, it is no easy task. Climbing Mt. Everest is far easier. To date, and I could be wrong, I believe that honor has only been won by eight or nine individuals. One aspect that forebodes success or failure is the time from the last submissions of the petitioner (you) and the Respondent (the Secretary) to the time of a decision pro or con. In most cases, Extraordinary Writs are handled by single judges and are therefore not precedential in their conclusion of law. On the contrary, a protracted delay can often mean a convocation of a panel and an earth-shattering pronouncement for the ages. In sum, most Extraordinary Writs die a quiet death by dismissal or denial due to their nature. Most entail asking VA to do something they have neglected to do. The Secretary promptly “fixes” it and the Writ is declared moot. On the other hand, if what you have asked for is totally outlandish, it will be denied.

While I am only mildly optimistic in this endeavor, it would seem from the delay from my last filing to rebut the Secretary on May 29th, the ensuing silence from the Court is telling. Many of us in the Veterans Advocacy arena view this as a last stand for Veterans’ ILP benefits. VA has been chipping away at this program continuously at every turn for over two decades. The latest “revision” of the M-28 manual on March 31, 2014  inserted substantive new rules and catch 22s to further decimate the ILP. Nowhere in 38 USC §3120 can these new interpretations be interpolated nor extrapolated. The revisions are simply made up out of whole cloth and VR&E folks know it. Surely no one wants to be the whistleblower and piss on that $90,000 paycheck by calling them out on it. Worse, they are trying to pawn off these 2014 changes to the M 28-R retroactively back to my May 8th, 2011 filing. That’s a Bozo no-no at all 56 VAROs across our fruited plains.

Speaking of 56 VAROs, I had to call up Fort Fumble in Fort Harrison Montana about one of my terminally ill clients.  Valerie answered the phone with a cheerful ‘Salt Lake City Regional Office. How can I direct your call?’  A week later I contacted the Sioux Falls, South Dakota Puzzle Palace and lo and behold-Valerie answered again. Seems they’re downsizing with the advent of the VBMS. Valerie was rude, crude and socually unattractive-not to mention boorish and told me I had the wrong number. I had to explain to Valerie why the VA has Change Management Agents. She tried to tell me I had to call the 800 dial a prayer line. Valerie and I will probably never become BFFs but at least she treats me with a modicum of politeness now that we understand the Veteran is of paramount importance rather than her.

Come Monday morning, the Court will have been mulling this ILP conundrum over for sixty two days-an inordinately long time for a Writ. Either they are formulating the Mother of all Denials or treating it as a matter of first impression deserving of a panel. My quandary is whether to beg Ken Carpenter to argue it for me at the Court with his mellifluous voice or do it myself. I relish the idea of eviscerating the OGC’s attorney on the matter. I’ve been preparing for this discussion for seven long years.

The argument comes down not to whether I get a greenhouse but size it will be. I have asked for a 24′ X 28′ with hydroponics and new low-energy LED lighting. I also asked for a 240-VAC composting toilet as I have “issues” that are sometimes suddenly pressing. Just to be an irritant and see how far I could push them, I also asked for several years of the Lexis Nexis VBM at about $350 a pop. Shoo doggies. They agreed-right up until they didn’t. Therein lies the problem. Why would a VR&E Officer not only agree to, but indeed formulate, an ILP for me for a 24X28 greenhouse only to renege and say “Well, we warned him we could never get it through Washington and the Central Office. He knew his request was unreasonable. No flies on us.”  Yep. Under threat of perjury and 28 USC 1746 he did. Baaaaaaaaaad idea. You don’t lie to the Court. They call that “post hoc rationalizations” and frown on VA’s aftermarket excuses. It’s simply not done at the Court.

Unfortunately, my undereducated and overpaid VR&E Officers (who sit on bonus-calloused derrieres) are not acquainted with VA law and regulations. The Table of Organization shows the VR&E is under the aegis of the VBA-not a power unto itself. Thus, by extension, they have to adhere to §3.104 :

§ 3.104 Finality of decisions.

(a) A decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A final and binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part.

I’m going to leave it to the Court to decide if the VR&E Officer is a ‘duly constituted appellate authority’ or even ‘a duly constituted ratings authority’. Since the Grand Poobah in DC (Jack Kammerer, VR&E Director) has neglected to call a CUE on this “finding of fact” by the VR&E Officer, it is, by rights, a binding decision. Further, §21.98(c) says he can approve or deny it. I fail to see the term “modify” or “revise”. Ruh-oh, Rorge… Yep. The Catbird seat.

The teaching moment is simple here. VA screws up everything. They are a rule unto themselves. They make regulations up as they go. It is only correct because you do not contest it. If you do, you’ll be pleasantly surprised (eventually) at the outcome.  Remember, Chevron Deference can only extend to that which Congress has not addressed explicitly. In short, hunt diligently among their numerous regulations and hang them with one. There is no dearth of ammo. To add stupidity to a poor education, they put all this damning evidence in the claims file. It’s too easy.

Here’s a copy of the last filing. I love the Comer v. Peake jab. “It always goes to show it’s somethin'” in Rosanna Rosannadanna’s own words.

Graham Rebuttal of Respondent’s rebuttal

Yeah, baby.

Posted in All about Veterans, CAVC Knowledge, Equitable tolling, Extraordinary Writs of Mandamus, Food for thought, Independent Living Program, Inspirational Veterans, KP Veterans, Tips and Tricks, VA Agents, VA Secretaries | Tagged , , , , , , , , , , , , , , , | 5 Comments